State v. Crawford

• Decision Date: 29 April 2003
• Docket Number: No. 00-634.,00-634.
• Citation: 2003 MT 118,68 P.3d 848,315 Mont. 480
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Duane CRAWFORD, Defendant and Appellant.
• Court: Montana Supreme Court

68 P.3d 848

2003 MT 118

315 Mont. 480

STATE of Montana, Plaintiff and Respondent, v. Michael Duane CRAWFORD, Defendant and Appellant.

No. 00-634.

Supreme Court of Montana.

Submitted May 14, 2002.

Decided April 29, 2003.

Eric Olson, Public Defender Office, Great Falls, Montana, for appellant.

Mike McGrath, Montana Attorney General, John Paulson, Assistant Montana Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, John Parker, Deputy Cascade County Attorney, Great Falls, Montana, for respondent.

Jeffrey T. Renz, Lucy Hanson-Gallus, School of Law, Missoula, Montana (Criminal Defense Lawyers), for amicus.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Michael Duane Crawford (Crawford) was charged with five separate driving-related offenses, including felony driving under the influence (DUI). He pled guilty to three of these offenses—driving on a revoked license, failure to have motor vehicle insurance and failure to use a seat belt. The jury found him guilty of the other two—felony DUI and violating a red traffic signal. He appeals the felony DUI conviction. We affirm in part and reverse and remand for a new trial.

ISSUES

¶ 2 A restatement of the issues Crawford presents is:

1. Did the District Court erroneously deny Crawford's motion in limine to preclude the use of the results of the preliminary breath test (PBT)?

2. Did the District Court erroneously allow Officer Malhiot to testify as an expert on the scientific basis for the horizontal gaze nystagmus (HGN) test?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Crawford was stopped by Officer Sorenson just before midnight on December 2, 1999, for failing to stop at a red flashing light. At Crawford's trial, Sorenson described, without objection, his observations and actions that ultimately led him to conclude that Crawford was driving while under the influence of alcohol. He explained that after he initiated the traffic stop and asked Crawford for his license, registration and proof of insurance, he noticed Crawford's fingers "were rather clumsy," he smelled of alcohol, his eyes were "glazed and somewhat bloodshot," and his "speech was somewhat slurred and thick tongued." Also, according to Sorenson, Crawford admitted to having had two beers.

¶ 4 Sorenson asked Crawford to get out of his car and to perform field sobriety tests. Crawford told Sorenson that he had bad knees, so Sorenson did not ask Crawford to perform any balancing maneuvers. He asked Crawford to perform the HGN maneuver and Crawford showed four of the six HGN indicators of possible alcohol impairment. Sorenson then asked Crawford to recite the alphabet. Crawford could successfully recite the alphabet to the letter "G" only. Sorenson, with Crawford's permission, administered a PBT that showed a breath alcohol concentration (BAC) of .153. These observations and tests provided probable cause for Sorenson to arrest Crawford for DUI and transport him to the Cascade County Detention Center, where Crawford refused further processing and testing, including specifically refusing to take an Intoxilizer test.

¶ 5 Crawford was charged by Information with felony DUI, among other charges. The District Court issued an Omnibus Hearing Memorandum and Order on March 8, 2000, and ordered that all pretrial motions be filed no later than four weeks before trial. On April 17, 2000, the first day of his trial, Crawford pled guilty to driving on a revoked license, failing to have motor vehicle insurance and failing to use a seat belt. Crawford also filed a written motion in limine to suppress evidence of his PBT results. The District Court denied the motion on the merits. Additionally, the State made an oral motion to qualify Matt Malhiot as an expert witness for the purpose of laying scientific foundation testimony regarding HGN. The court granted the motion over Crawford's objection.

¶ 6 On April 18, 2000, the jury returned a guilty verdict on both felony DUI and failing to stop for the red flashing traffic signal. On June 13, 2000, the District Court sentenced Crawford to the Department of Corrections for nine months for placement in a pre-release center, to be followed by three years probation, for felony DUI. Crawford received suspended sentences and fines for the misdemeanor charges. The District Court's Judgment of Conviction and Sentencing Order was entered on August 15, 2000. Crawford filed a timely appeal.

STANDARDS OF REVIEW

¶ 7 A district court's ruling on a motion in limine is an evidentiary ruling and the court has broad discretion in determining whether evidence is relevant and admissible. As such, this Court will not overturn a district court's determination absent an abuse of that discretion. Somont Oil Co., Inc. v. A & G Drilling, 2002 MT 141, 310 Mont. 221, 49 P.3d 598.

¶ 8 The determination of the qualification and competency of an expert witness rests within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. State v. Clausell, 2001 MT 62, 305 Mont. 1, 22 P.3d 1111 (citation omitted).

DISCUSSION

¶ 9 The first issue we consider is whether the District Court erred in denying Crawford's motion in limine to preclude the use of the results of the preliminary breath test (PBT).

¶ 10 In State v. Weldele, 2003 MT 117, 315 Mont. 452, 69 P.3d 1162, 2003 WL 2007808, we analyzed and decided the precise issue presented by Crawford. We will not repeat our full analysis here but will reiterate some essential points and apply our holding.

¶ 11 In Weldele, we affirmed State v. Strizich (1997), 286 Mont. 1, 952 P.2d 1365, and held that despite the statutory language of § 61-8-404, MCA (1997), PBT results obtained under field conditions are not admissible at trial as evidence of BAC without a showing that the results are demonstrably accurate and reliable. We noted that since Strizich was decided, we have not been made aware of any scientific evidence that allays our concern that the PBT instrument remains inherently unreliable for the purpose of accurately quantifying BAC. We also opined in Weldele that because the PBT utilizes a scientific instrument, the result would likely be accorded greater weight by a jury or judge than non-scientific, subjective indications of intoxication, i.e., officer observations and performance on field sobriety tests. For these two reasons, we concluded that admission of PBT results into evidence to prove actual BAC was error. Weldele, ¶ 57.

¶ 12 We further observed in Weldele that proponents of the 1997 statutory changes sought to have PBT results admitted in conjunction with the arresting officer's observations and interpretations of the defendant's performance of field sobriety tests, but that the amended statute failed to incorporate this caveat. Weldele, ¶ 54.

¶ 13 In the case sub judice, as in Weldele, the State offered no scientific evidence establishing consistent reliability and accuracy of the PBT equipment used to test Crawford. However, relying exclusively on § 61-8-404, MCA (1997), the District Court admitted the PBT results at trial as evidence of Crawford's intoxication. As we did in Weldele, we hold that this was an erroneous legal conclusion which led the District Court to abuse its discretion in denying Crawford's motion in limine.

¶ 14 It is at this stage in our analysis that the facts in this case diverge from those in Weldele. After concluding that admission of Weldele's PBT result was error, we concluded that it was harmless and non-prejudicial error. We reached this conclusion after conducting a "harmless error" analysis under State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d 735. We first determined that admitting Weldele's PBT result was "trial" error rather than "structural" error, and as a result was subject to a "harmless and prejudicial" analysis. Weldele, ¶ 61; Van Kirk, ¶¶ 38-40.

¶ 15 We next applied the "cumulative evidence test" developed in Van Kirk. The "cumulative evidence" test requires that the court have before it admissible evidence that proves the same fact as the tainted evidence was submitted to prove. Under this test, if the tainted evidence is cumulative and is presented for the purpose of proving an element of the charged crime, the State must prove that, qualitatively, the tainted evidence would not have contributed to the conviction. If, on the other hand, the tainted evidence is not cumulative and is presented to prove an element of the crime, such admission of evidence cannot be considered harmless and thus is reversible error. Van Kirk, ¶ 47.

¶ 16 In Weldele's case, the jury was presented with various types of evidence admitted for the purpose of establishing the intoxication element of Weldele's DUI charge. First, the arresting officer's observations at the time of the traffic stop as well as the results of the field sobriety tests he conducted were admitted without challenge by Weldele. Weldele, ¶ 5. More importantly, Weldele's PBT result and the result of his Intoxilizer test were presented to the jury. Weldele, ¶ 63. We concluded in Weldele's case that because the more accurate Intoxilizer result was admitted, without challenge, to prove the intoxication element of the crime, admission of Weldele's PBT result was merely cumulative and its presentation to the jury did not harm or prejudice Weldele. Weldele, ¶ 63. This is not the situation in the case before us.

¶ 17 As we noted above, Crawford refused to take the Intoxilizer test. Thus, the evidence presented to the jury to prove the intoxication element of Crawford's DUI consisted of the arresting officer's testimony and Crawford's PBT result. While we believe that each of these types of evidence serves an important and necessary function, we do not believe they are qualitatively comparable.

¶ 18 As suggested above, there is a natural propensity among jurors to accord greater weight to objective scientific evidence than to subjective observations that are open...