State v. Dilliner

Decision Date02 July 2002
Docket NumberNo. 29993.,29993.
Citation569 S.E.2d 211,212 W.Va. 135
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Ray Lewis DILLINER, Defendant Below, Appellant.
Concurring Opinion of Justice Starcher, July 26, 2002.

George J. Cosenza, Esq., Cosenza, Underwood & Merriman, Parkersburg, West Virginia, Attorney for Appellant.

Darrell V. McGraw, Jr., Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, West Virginia, Attorney for Appellee.

MAYNARD, Justice:

This case is before this Court upon appeal of a final order of the Circuit Court of Wood County entered on October 4, 2000. In that order, the circuit court sentenced the appellant and defendant below, Ray Lewis Dilliner, to one-to-three years in the penitentiary and imposed a $3,000.00 fine for his conviction of third offense driving under the influence of alcohol (hereinafter "third offense DUI"). In this appeal, the appellant contends that the circuit court erred by not setting aside the guilty verdict because it was inconsistent with special interrogatories answered by the jury. The appellant also contends that the circuit court erred by admitting into evidence the results of his intoxilyzer test.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel. For the reasons set forth below, the final order of the circuit court is reversed and this case is remanded for a new trial.


On September 19, 1999, at approximately 12:30 a.m., the appellant was stopped as he was driving south on Grand Central Avenue in Vienna, West Virginia, by Sergeant G.M. Deem of the Vienna Police Department. According to Sergeant Deem, he stopped the appellant because his vehicle was weaving and drifting into the next lane. When Sergeant Deem approached the appellant, he noticed the odor of alcohol. He asked the appellant if he had been drinking, and the appellant replied that he had not. Sergeant Deem then asked the appellant to exit his vehicle and perform a series of field sobriety tests.1

The appellant passed the first series of field sobriety tests but failed the horizontal gaze nystagmus test and the preliminary breath test. Consequently, the appellant was taken to the police station and given an intoxilyzer test which showed a blood alcohol concentration of .156 percent. The appellant was arrested. Subsequently, he was indicted for third offense DUI and driving a motor vehicle with an alcohol concentration in his blood of ten hundredths of one percent or more by weight. The indictment alleged that the appellant has been previously convicted of DUI twice in Marietta, Ohio.2

Prior to trial, the appellant moved to suppress the results of his intoxilyzer test, but the motion was denied. At trial, the appellant testified that he had not consumed any alcohol during the twenty-four hour period immediately prior to his arrest. He further testified that he owned a body shop and that hours before his arrest he had painted an automobile without using a protective mask. The appellant maintained that the vapors from the paint and other chemicals he used while painting accounted for the results of his intoxilyzer test.

In support of his testimony, the appellant presented the expert testimony of Robert J. Belloto, Jr., R.Ph., Ph.D. Dr. Belloto testified that he had examined the various chemical products used by the appellant to paint the automobile before his arrest. He further testified that these chemicals metabolize in the human body in such a manner that they are expelled as alcohol and thus could cause a false reading on an intoxilyzer test.

Thereafter, the jury found the appellant guilty of both counts in the indictment. In response to interrogatories relating to their findings of guilt, the jury indicated the verdicts were based upon a combination of the appellant drinking alcohol and inhaling chemicals while painting his car. The jury further indicated that it did not believe that the appellant inhaled the chemicals to cause himself to become intoxicated. Based on the jury's responses to the interrogatories, the appellant moved to set aside the verdicts. Alternatively, the appellant requested a new trial. After considering the motions, the circuit court set aside the verdict on count two, driving a motor vehicle with an alcohol concentration of ten hundredths of one percent or more, by weight, and entered a not guilty verdict. However, the court denied the motion with regard to the first count and sentenced the appellant to one-to-three years in the penitentiary and imposed a $3,000.00 fine. This appeal followed.

A. The Special Interrogatories

The appellant first contends the jury's finding of guilt with respect to the third offense DUI charge was inconsistent with its answers to the special interrogatories, and, therefore, the circuit court erred by not setting aside his conviction. As noted above, after the jury returned its guilty verdict, the circuit court asked the jury to answer special interrogatories relating to their findings of guilt. The interrogatories with respect to the third offense DUI charge and the jury's answers thereto were as follows:

You have found the Defendant guilty of driving under the influence of alcohol by being under the influence of alcohol. Was this verdict as a result of the Defendant: (Check all appropriate lines)
______ drinking alcohol
______ painting his car and inhaling the chemicals
v a combination of both

If you find that the Defendant was driving under the influence of alcohol as a result of painting his car and inhaling the chemicals, do you further find that the painting of his car was done in such a manner to knowingly cause himself to become intoxicated?

____ Yes v No

The appellant claims that the jury's answers to the interrogatories clearly establish that the jury did not find him guilty of driving under the influence as set forth in W.Va. Code § 17C-5-2(k) (1996). While we understand the appellant's argument, we reverse the appellant's conviction for a different reason.

This Court has long since held that special interrogatories should not be submitted to juries in criminal cases. In State v. Boggs, 87 W.Va. 738, 749, 106 S.E. 47, 51-52 (1921), this Court stated that:

Statutes permitting findings to be required in response to interrogatories are held not to apply to criminal cases, for the reason that to so apply them would be to impair the right of trial by jury secured by the Constitution. It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.

(Citation omitted). This Court concluded in Boggs that "special interrogatories cannot be propounded to the jury in criminal cases." Id., 87 W.Va. at 749-50, 106 S.E. at 52. In State v. Bowles, 109 W.Va. 174, 176, 153 S.E. 308, 308 (1930), this Court reiterated that "[t]he practice of submitting interrogatories is not followed in the trial of criminal cases." Finally, in Syllabus Point 5 of State v. Greater Huntington Theatre Corp., 133 W.Va. 252, 55 S.E.2d 681 (1949), this Court held that "[W.Va.] Code, 56-6-5, which provides for the submission of interrogatories to a jury in the trial of any issue or issues does not apply to trials in criminal cases."

While the issue of submitting special interrogatories to juries in criminal cases has not come before this Court since State v. Greater Huntington Theatre Corp., several other jurisdictions have addressed the issue more recently. Generally, special interrogatories in criminal cases remain disfavored and discouraged. United States v. Acosta, 149 F.Supp.2d 1073, 1075 (E.D.Wis.2001). It is believed that special interrogatories may "coerce the jurors into rendering a guilty verdict," State v. Sheldon, 301 N.W.2d 604, 614 (N.D.1980), or "destroy[] the ability of the jury to deliberate upon the issue of guilt or innocence free of extraneous influences." State v. Simon, 79 N.J. 191, 199, 398 A.2d 861, 865 (1979). See also United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir.1989)

(special verdicts are disfavored in criminal cases because they conflict with the basic tenet that juries must be free from judicial control and pressure in reaching their verdicts); United States v. Coonan, 839 F.2d 886, 891 (2d. Cir.1988) (there is some belief that eliciting "yes" and "no" answers to questions concerning the elements of an offense may propel a jury toward a logical conclusion of guilt whereas a more generalized assessment might result in an acquittal); United States v. O'Looney, 544 F.2d 385, 392 (9th Cir.1976) (danger that special verdicts might be devices for bringing judicial pressure to bear on juries in reaching their verdicts).

Although some courts have permitted the use of special interrogatories in criminal cases,3 we believe that they should not be permitted except where provided for by statute. Since State v, Greater Huntington Theatre Corp. was decided, the Legislature has provided for the submission of special interrogatories to juries in criminal cases in certain limited circumstances.4 Primarily, the statutory authorization of special interrogatories in criminal cases is for sentencing purposes. In that context, the reasons for prohibiting the use of special interrogatories do not exist.

However, special interrogatories like those used in the case at bar invade the province of the jury. There is the strong possibility that such special interrogatories will lead the jury to believe that the court wants a particular verdict. Additionally, special interrogatories infringe upon the power of the jury to arrive at a general verdict without having to support it by reasons. Simply put, special interrogatories in criminal cases are contrary to the basic principle...

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  • State v. Davis
    • United States
    • Hawaii Supreme Court
    • May 15, 2017
    ...n.27. However, other jurisdictions have considered the question implicitly, and found the answer to be "yes." See, e.g. , Dilliner , 212 W.Va. at 141, 569 S.E.2d at 217 ("The accuracy inspection report of an intoxilyzer sets forth matters observed pursuant to a duty imposed by the Code of S......
  • Melendez-Diaz v. Massachusetts
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    ...that breathalyzer was in working order); State v. Ruiz, 120 N.M. 534, 903 P.2d 845 (App.1995) (same); State v. Dilliner, 212 W.Va. 135, 141–142, 569 S.E.2d 211, 217–218 (2002) (same); State v. Huggins, 659 P.2d 613, 616–617 (Alaska App.1982) (same); State v. Conway, 70 Or.App. 721, 690 P.2d......
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