Campbell v. People

• Citation: 443 P.3d 72
• Decision Date: 24 June 2019
• Docket Number: Supreme Court Case No. 16SC267
• Parties: Randy CAMPBELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Supreme Court of Colorado

443 P.3d 72

Randy CAMPBELL, Petitioner,

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 16SC267

Supreme Court of Colorado.

June 24, 2019

Attorneys for Petitioner: Megan A. Ring, Public Defender, M. Shelby Deeney, Deputy Public Defender, Centennial, Colorado

Attorneys for Respondent: George H. Brauchler, District Attorney, Eighteenth Judicial District, Susan J. Trout, Senior Deputy District Attorney, Centennial, Colorado

Attorneys for Amicus Curiae Colorado Criminal Defense Bar: The Noble Law Firm, LLC, Taylor Ivy, Matthew Fredrickson, Lakewood, Colorado

Attorneys for Amicus Curiae Colorado District Attorneys' Council: Katherine A. Hansen, Denver Deputy District Attorney, Thomas R. Raynes, Executive Director, Colorado District Attorneys' Council, Jennifer R. Knudsen, Traffic Safety Resource Prosecutor, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case requires us to decide whether the trial court abused its discretion in permitting a police officer to testify regarding the results of a Horizontal Gaze Nystagmus ("HGN") test without first qualifying that officer as an expert witness under CRE 702 and Venalonzo v. People , 2017 CO 9, 388 P.3d 868.¹

¶2 We conclude that, on the facts of this case, the officer's testimony concerning the HGN test was expert testimony under CRE 702 and that the district court therefore erred in holding otherwise. We further conclude, however, that on the facts presented here, the court's error in admitting the testimony was harmless.

¶3 Accordingly, we affirm the district court's judgment.

I. Facts and Procedural History

¶4 One evening at around midnight, a police officer was on patrol when he noticed a truck drive past him with only one headlight on. Because of that, the officer pulled the truck over and initiated a discussion with the driver, Randy Campbell. The only other person in the car was a friend of Campbell's, who was intoxicated and sitting in the front passenger seat.

¶5 In speaking with Campbell, the officer detected a moderate odor of alcohol on Campbell's breath and noted that his eyes were bloodshot and his speech was slightly slurred. In addition, when the officer asked to see Campbell's identification and Campbell tried to remove it from his wallet, he dropped the wallet on the floor, although he was eventually able to retrieve the identification for the officer.

¶6 Based on these observations, the officer asked Campbell if he had been drinking. Campbell initially responded that he had not had any alcohol that evening, but after the officer said that he could smell alcohol on Campbell, Campbell responded that he had had one beer at approximately 2:30 p.m. that afternoon. The officer then requested that Campbell perform a series of voluntary roadside sobriety maneuvers, and Campbell agreed to do so. According to the officer, when Campbell attempted to get out of the truck, he unsuccessfully reached for the door handle twice before finally grabbing it.

¶7 The officer proceeded to administer three roadside sobriety maneuvers, namely, the HGN test, the "walk and turn," and the "one-leg stand," all of which the officer had been trained on and was certified to administer. After determining that Campbell had failed to perform all three of the maneuvers as a sober person would, and based on the officer's observations of Campbell and on Campbell's admission that he had been drinking, the officer arrested him.

¶8 Following the arrest, the officer noticed three small bottles of alcohol—one opened and two unopened—on the floor of Campbell's truck. In addition, with Campbell's consent, the officer administered two breath tests to determine Campbell's blood alcohol content ("BAC"). These tests showed that Campbell had a BAC of 0.07 and 0.086, respectively, which allowed a permissible inference that Campbell was, at a minimum, impaired by the consumption of alcohol. See § 42-4-1301(6)(a)(II)–(III), C.R.S. (2018).

¶9 The prosecution subsequently charged Campbell with driving under the influence ("DUI"), driving while ability impaired ("DWAI"), operating a vehicle with a defective headlamp, and possessing an open alcohol container. Campbell pleaded not guilty and demanded a jury trial.

¶10 The case proceeded, and during pretrial proceedings, Campbell noted that the prosecution intended to have the officer who conducted the roadside maneuvers on him testify as a lay witness. Campbell argued that such maneuvers comprised "a specialized area of knowledge" and therefore the officer should only be permitted to testify about his observations and should not be allowed to offer "any opinions that stem from those observations that are based on this specialized knowledge that the officer had."

¶11 The court responded that it was working in a bit of a vacuum because it did not know what the officer's testimony would be. The court observed that there could be testimony on roadsides that would require expert opinion but that general testimony by an officer that he was trained to do the test in a certain way, that he did so, and that people who are intoxicated look a certain way while people who are sober look a different way was not scientific testimony necessitating any expert designation. The court then stated that it was not making a finding one way or another but that it would consider an objection at the appropriate time. The case then proceeded to trial.

¶12 At trial, the prosecution called the officer as a witness, and the officer testified at length about his training and experience regarding the roadside maneuvers that he had conducted on Campbell and regarding the maneuvers themselves. In particular, with respect to his qualifications, the officer testified that (1) he was "certified in the standard field sobriety roadside maneuvers and DUI detection"; (2) to obtain this certification, he had taken an initial course at the police academy, which he stated may have been forty hours in length (although he was unsure of that); and (3) he was subsequently recertified every other year through a sixteen-hour course. In addition, he estimated that he had performed approximately seven hundred DUI investigations during his then-fifteen-years of service as a police officer, and he explained that in his training, he had gone through what officers called the "wet lab." In the wet lab, trainees administered the standardized maneuvers on test subjects to see if the subjects could perform the maneuvers as a sober person would. The officer confirmed that at the time he conducted the voluntary roadside maneuvers on Campbell, he was certified to administer them.

¶13 The officer then testified that he typically conducted three different sobriety maneuvers on someone whom the officer suspected was driving under the influence and that he did so in this case. With respect to the HGN test in particular, the officer explained that "you're looking for a total of six clues, three separate clues in each eye." He then described these clues in detail:

During the initial part of it ..., what you do is you hold a stimulus, which is my finger approximately 12 inches from the individual's nose. You then instruct them to follow that stimulus with their eyes, and their eyes only[,] keeping their head perfectly still. As you move it or start the maneuver you start with the left side of the body and what you're initially looking for is equal tracking in the individual's eyes. ... The other thing that you're looking for is the pupil size. ... The next clue or when you start into the clues is lack of smooth pursuit. And what you're looking for is[,] as the eyes are following the stimulus[,] whether or not the eye is stopping or if it's following the stimulus smoothly as it passes in front of their face. The second clue that you're looking for is distinct and sustained nystagmus

at maximum deviation and what you do there is you hold the stimulus out at maximum deviation[,] which is basically there's no white left in the corner of the eye[,] and what you're looking for is an involuntary jerkiness of the eye[;] the best way to describe it is if you take a basketball and bounce it against the side of the wall[,] that's the kind of the movement that the eye would make. And the third clue that you're looking for is an onset of nystagmus prior to 45 degrees.

¶14 The officer stated that in this case, he "observed all six clues on the Defendant" and specifically that he "observed the lack of smooth pursuit," "a distinct and sustained nystagmus

in both eyes," and "a[n] onset of nystagmus prior to 45 degrees in both eyes."

¶15 Based on the foregoing testimony, the prosecution asked the officer, "Now [was Campbell's] performance of the HGN[,] in your opinion[,] based on your training and experience[,] was that consistent with a sober person?" The officer responded, "No, it was not." At this point, defense counsel objected that the officer's statements amounted to expert testimony, but the court overruled that objection.

¶16 Notably, at trial, Campbell did not deny that he had been drinking. His theory of defense was that he drank after he was pulled over. His counsel thus told the jury that "the key detail here is when Mr. Campbell drank. He drove, then he drank." She went on to explain that Campbell "took a shooter of schnapps [after being pulled over] to calm his nerves for the interaction with the officer." Counsel suggested that, consequently, even though Campbell was impaired when he took the sobriety and breath tests, he was not impaired while driving, as evidenced by the alleged fact that he had not been driving poorly or weaving all over the road. In further support of Campbell's defense, counsel introduced testimony from some of Campbell's friends and from his son, all of whom testified that they had been in Campbell's company in the hours before Campbell set out in his car and that they had not seen him consume any alcohol.

¶17 The jury ultimately rejected Campbell's assertions and...