Com. v. Sands

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before WILKINS; ABRAMS
• Citation: 675 N.E.2d 370,424 Mass. 184
• Decision Date: 03 February 1997
• Parties: COMMONWEALTH v. Paul J. SANDS.

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675 N.E.2d 370 424 Mass. 184 COMMONWEALTH
v.
Paul J. SANDS. Supreme Judicial Court of Massachusetts,
Middlesex. Argued Oct. 8, 1996.
Decided Feb. 3, 1997.

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Barbra I. Black (Daniel K. Sherwood, Wakefield, with her) for defendant.

Stephen C. Hoctor, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, GREANEY and FRIED, JJ.

ABRAMS, Justice.

A District Court jury of six convicted the defendant, Paul J. Sands, of driving an automobile while under the influence of alcohol. See G.L. c. 90, § 24(1) (e ). The defendant appealed alleging error in the admission of (1) the results of the Horizontal Gaze Nystagmus (HGN) sobriety field test and (2) the admission of a statement made by him during booking. We transferred the case to this court on our own motion. We reverse and order a new trial.

[424 Mass. 185] 1. Facts. We summarize the facts of this case as the jury could have found them. In the early morning of March 28, 1994, Massachusetts State Trooper Robert Murphy stopped the defendant who was driving a pickup truck on Route 99 in Malden. Trooper Murphy had seen the truck driving at about ten miles an hour in a thirty-five miles per hour speed zone, and swerving three times across the double yellow line, partially into the opposite lane. Trooper Murphy stopped the defendant's truck and thereafter conducted four field sobriety tests, including the HGN test, the nine-step walk and turn test, the alphabet test and the one-legged stand. The defendant failed all four tests. Trooper Murphy then arrested the defendant, and brought him to the State police barracks. There, during booking, he asked the defendant if he would take a breathalyzer test. In response, the defendant answered, "I'm not drunk, but I'm over," and did not take the test.

2. The HGN test. The defendant argues that the trial judge erred by admitting the results of the HGN test in evidence. He argues that the judge first should have required the Commonwealth to lay an evidentiary foundation for the admission of scientific evidence. We agree.

In Commonwealth v. Fatalo, 346 Mass. 266, 269, 191 N.E.2d 479 (1963), we adopted the "general acceptance" test of Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which required that courts consider "whether the community of scientists involved generally accepts the theory or process" underlying the evidence to be introduced. Subsequently, in Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994), we also adopted, in part, the reasoning of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and held that "a proponent of scientific opinion evidence may demonstrate the reliability or validity of the underlying scientific theory or process by some other means, that is, without establishing general acceptance," because the touchstone of admissibility is reliability, and not necessarily general acceptance within the scientific community. Lanigan, supra at 24, 26, 641 N.E.2d 1342, and cases cited. We also stated that, "[w]e suspect that general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue." Id. at 26, 641 N.E.2d 1342. Thus, a party seeking to introduce scientific evidence may lay a foundation either by showing that the underlying scientific theory is generally accepted within the relevant scientific community, or by showing[424 Mass. 186] that the theory is reliable or valid through other means. ¹ See id.

Expert testimony on the scientific theory is needed if the subject of expert testimony is beyond the common knowledge or understanding of the lay juror. If jurors can evaluate an expert's testimony with common sense and experience and can understand the underlying methods or theories of the testimony, then the expert's qualifications and the logical basis of the testimony

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can be effectively tested through cross-examination and rebuttal evidence.

The HGN test offered by the Commonwealth measures the onset of the phenomenon known as nystagmus. Nystagmus is "[a]n abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side. It is a sign of a number of ailments, usually of a nervous origin. It may, however, be due to simple fatigue of the eye muscles, as when watching a tennis game." State v. Merritt, 36 Conn.App. 76, 84, 647 A.2d 1021 (1994), quoting 3 J. Schmidt, Attorneys' Dictionary of Medicine (1993).

The HGN test consists of three parts which measure various aspects of these involuntary movements which cause nystagmus. In the first part, the "smooth pursuit" test, the officer asks the defendant to first look straight ahead, focusing on an object, such as a pen, which the officer then moves back and forth horizontally. As the driver follows the path of the pen, the officer looks to see whether the eyes move smoothly from side to side, or whether they exhibit nystagmus, characterized by an unsteady, bouncing movement. In the second part, the "maximum deviation" test, the officer moves the pen horizontally to the limit of the driver's field of vision, and watches the eyes for bouncing at the extremes. In the third part, the "forty-five degree" test, the officer again moves the object from side to side, asking the driver to follow the movement with his eyes. The officer watches for the onset of the nystagmus prior to a forty-five degree angle between [424 Mass. 187] the driver's nose and the position of the object. ² The underlying theory is that there is a strong correlation between the degree of a person's intoxication and the angle at which the person's eyes begin to exhibit evidence of nystagmus. See generally Merritt, supra at 80-85, 647 A.2d...