State v. Bollman
| Decision Date | 06 March 2012 |
| Docket Number | No. DA 11–0374.,DA 11–0374. |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Richard BOLLMAN, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Lane K. Bennett, Attorney at Law, Kalispell, Montana.
For Appellee: Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney; Lori Adams, Deputy County Attorney, Kalispell, Montana.
[364 Mont. 266] ¶ 1 Richard Bollman (Bollman) appeals two orders of the Eleventh Judicial District Court, Flathead County; one allowing expert testimony during his trial, and the other denying his motion for mistrial. We affirm.
¶ 2 On March 15, 2011, Bollman was convicted of his fifth DUI offense, a felony, after a jury trial. He was sentenced to serve a 13–month commitment with the Department of Corrections (DOC), followed by a 4–year suspended commitment to the DOC.
¶ 3 Columbia Falls Police Officer Craig McConnell (Officer McConnell) was on patrol in the early morning hours of August 6, 2010, when he noticed Bollman's white minivan drift out of its lane, into the center turn lane, then back into its lane of traffic. Officer McConnell followed the vehicle and observed continued drifting behavior. Bollman made a wide left turn without signaling, then slowed as if to pull over, but continued driving slowly. Officer McConnell activated his emergency lights and initiated a traffic stop.
¶ 4 Officer McConnell testified that, upon contacting Bollman, he could smell the “very strong” odor of alcohol, Bollman's speech was “mumbled and just kind of garbled,” Bollman's eyes were bloodshot and watery, and Bollman's movements to get his registration and insurance information were slow and he fumbled around to retrieve the items.
[364 Mont. 267] ¶ 5 Officer McConnell testified that he asked Bollman how much he had to drink, and Bollman said “way too much to be driving.” At some point, Bollman asked Officer McConnell to give him a break and take him home. Officer McConnell did not give Bollman a break, but rather asked Bollman to exit his vehicle. Bollman's movements were slow, he used the door for support, and was unsteady on his feet. Once Bollman was out of his vehicle, Officer McConnell asked him to perform standardized field sobriety tests, or SFSTs. Officer McConnell's vehicle had videotaping capabilities but no videotape, thus Bollman's SFSTs were not recorded. However, Officer McConnell documented Bollman's performance and testified that Bollman exhibited 6 out of 6 indicators on the horizontal gaze nystagmus (HGN) test, 3 out of 4 indicators on the one-leg stand test; and 8 out of 8 indicators on the walk-and-turn test. Based on his training and experience, Officer McConnell determined Bollman was intoxicated and placed him under arrest for DUI.
¶ 6 At the police station, which did have videotaping capabilities, Officer McConnell again asked Bollman to perform the SFSTs. Bollman said When asked if he had any injuries or physical issues, Bollman stated he had rheumatoid arthritis, and takes Prilosec and Ibuprofen. Bollman refused to perform the SFSTs. Officer McConnell then read the implied consent advisory form to Bollman before asking him to take a breathalyzer test. Bollman refused to take a breathalyzer test.
¶ 7 Bollman disputes much of Officer McConnell's testimony. Bollman testified that he was drifting while driving because he was fiddling with his Walkman, which was on the passenger side visor. He testified his eyes were bloodshot and glassy because he worked all day in the wind at a bark plant, and that Officer McConnell could not have smelled alcohol because he (Bollman) spilled diesel fuel on himself before he left work. He testified he was mumbling because he was nervous and his teeth were “all bad.” He testified that he fumbled with his paperwork because his glove box was “full of junk.” He testified that he was slow and unsteady because he was stiff and sore from working all day, and was suffering from arthritis. He testified that he did not say he drank too much to be driving, but rather said “no matter how much you have one beer is too much to be driving.” He testified that he could not perform the one-leg stand test because of his arthritis, so he told Officer McConnell to “just take me to jail.” Bollman denied performing the HGN test or walk-and-turn test. Bollman testified that he did not tell Officer McConnell he was “screwed” but rather said “I'm not going to get screwed, I just want a lawyer.” Finally, he testified that he did not trust breathalyzer machines, so he refused the test.
¶ 8 Prior to trial, the State gave notice that it intended to call Montana Highway Patrol Trooper Tim Proctor (Trooper Proctor) to testify as an expert regarding the correlation between alcohol consumption and nystagmus in the human eye, i.e. the scientific basis of the HGN test. Bollman objected to Trooper Proctor being designated as an expert, and also filed a motion in limine to exclude evidence of the administration and results of the HGN test unless the State produced a qualified expert.
¶ 9 On the first day of Bollman's trial, the District Court held a hearing to determine whether Trooper Proctor was qualified to testify as an expert witness. The jury was not present for the hearing. Trooper Proctor testified, and was cross-examined by Bollman's trial counsel. After the hearing, the District Court made the following findings:
[a]s an initial starting point this witness is not required to be a medical professional.
Trooper Proctor's qualifications include an associate's degree in criminal justice with introductory courses in both anatomy and biology. He attended the law enforcement academy with 40 hours of basic HGN testing. He re-certifies yearly and has done so for the last four to five years. He's completed an advanced traffic course, which is required of all patrolmen, at the State Law Enforcement Academy. He has completed an Advanced Roadside Impaired Drivers course, which is a two-day course. He has successfully completed the drug recognition course, which included a two-day 16–hour ability to administer HGN, and then 1.5 weeks, or one-and-a-half weeks of classroom in which there was four hours—four hours taught as to the scientific basis for HGN by a doctor of ophthalmology,[ 1] is what was testified to. He then would—had a field certification, three days in Arizona, which included HGN, and a final exam of four to six hours. When he completed that course he then took the Prosecution of Drunk Drivers course, which also had a four-hour HGN component taught by the doctor of ophthalmology,[ 2] which both of these four hours went to the scientific basis of HGN.
He's further testified that he has the ability to explain and will explain the concept and scientific basis of nystagmus and the correlation to alcohol consumption and nystagmus, to include natural nystagmus.
Finally, he's been previously qualified in Flathead County Justice Court.
Considering those findings, a review of the existing case law, and at least the credentials of the people that have been approved to do this, the Court does find that Trooper Proctor is qualified to testify to the result of the test that was given to the Defendant.
¶ 10 Trooper Proctor testified at trial to the same qualifications. The District Court then found him “qualified” as an expert regarding the scientific basis of the HGN test. He then testified about what horizontal gaze nystagmus (HGN) is, how the HGN test is administered, the correlation between alcohol and HGN, and the correlation between exhibiting 4 or more (of 6) indicators on the HGN test and the subject's approximate blood alcohol content. Trooper Proctor did point out that the result of the HGN test is not, itself alone, an indicator that a person is intoxicated. He said:
the determination for a person's impairment level should be based on the totality of the circumstances. There should be a reason that we're asking that person to submit to standardized field sobriety tests, something that we've seen that's aroused our suspicion. And it's—the standardized field sobriety tests are a battery of three tests, not any one of which is a stand-alone test.
¶ 11 Prior to the trial, the State filed a motion in limine to prohibit Bollman and defense counsel from referring to the charge in this case as a felony, or referencing the possible penalty for felony DUI. Bollman did not oppose the State's motion. Bollman filed a motion in limine pursuant to M.R. Evid. 404(b) to exclude “the mention or testimony regarding other offenses, wrongs or acts besides those charged.” The State did not oppose Bollman's motion. Both motions were granted.
¶ 12 During the course of Officer McConnell's testimony, the following occurred:
Q. [by prosecutor]: Okay. You also testified that you weren't sure if you had transported the Defendant to the Detention Center or if another officer had done that.
¶ 13 After a discussion at the bench, the prosecutor continued with a new line of questioning. Once Officer McConnell finished testifying, and outside the presence of the jury, the following exchange occurred:
The Court: With regards to his comment, which I don't think was solicited by the State, it was something that the officer testified to, you can make whatever motions you wish, or you can request an instruction.
I guess my feeling is is to stop and give them some type of a cautionary instruction on why not to consider...
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