State v. Garba

• Decision Date: 05 October 2016
• Docket Number: No. 2015AP1243–CR.,2015AP1243–CR.
• Citation: 888 N.W.2d 246 (Table),372 Wis.2d 457
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Ali GARBA, Defendant–Appellant.
• Court: Wisconsin Court of Appeals

372 Wis.2d 457

888 N.W.2d 246 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Ali GARBA, Defendant–Appellant.

No. 2015AP1243–CR.

Court of Appeals of Wisconsin.

Oct. 5, 2016.

¶ 1 HAGEDORN, J.¹

Ali Garba was convicted of operating a motor vehicle while intoxicated. The State tested Garba's blood, and the results showed a substantial amount of alcohol in his system. Garba sought to challenge the reliability of this test result through expert testimony. According to Garba, the presence of anomalies in tests of other blood samples conducted the same day undermined the reliability of his results. However, the experts could not say what effect, if any, the anomalies had upon the reliability of Garba's results. The circuit court concluded that the testimony was speculative and excluded it under WIS. STAT. §§ 907.02 and 904.03. Garba contends that this was error and deprived him of his constitutional right to present a defense. Garba also challenges a portion of the jury instructions he claims created an unconstitutional presumption that the test results were accurate and reliable. We affirm.

Background

¶ 2 Garba was pulled over for a traffic violation in the City of Waukesha. The officer administered, and Garba failed, a series of field sobriety tests. The officer arrested Garba and took him to a hospital whereupon Garba consented to a blood draw. The test results revealed Garba's blood alcohol concentration was .206g/100mL. The State charged Garba with operating a motor vehicle while under the influence of an intoxicant (OWI) and operating a motor vehicle with a prohibited alcohol concentration (PAC)—both third offenses.

¶ 3 The Wisconsin State Laboratory of Hygiene tested Garba's blood using a method called headspace gas chromatography. The laboratory tests each blood sample twice in separate vials. To summarize, the test involves placing a blood sample in a long column where the blood is carried by pressurized gas and separated into its component substances. The individual substances then escape at different times and are measured by means of flame detection. A flame ignites any alcohol present in a blood sample as it escapes the column; the strength of the flame is recorded and provides a measurement. These results are then plotted on a graph—a chromatogram—and indicate the alcohol concentration in the sample.

¶ 4 The day Garba's blood was tested, several chromatograms from test vials of others indicated a series of so-called "jagged humps."² These jagged humps—visible as a series of peaks in some of the chromatograms—appear on the graph/chromatogram before any signal should be detected. In other words, the chromatograms showed readings before the carrier gas had time to carry the sample through the column. Blood samples for the same person would sometimes display jagged humps in one test vial but not in the other. The cause of these jagged humps remains unknown. However, the laboratory calibrated the testing equipment daily and monitored its performance throughout the testing day. Additionally, although jagged humps appeared in chromatograms before and after Garba's, his results contained none.

¶ 5 Seeking to undermine the accuracy and reliability of his results, Garba consulted two expert witnesses—Jimmie Valentine and Janine Arvizu—and sought to introduce their testimony at trial. Valentine is a pharmacology professor and Arvizu is a certified quality auditor. Both experts opined that the presence of the jagged humps on some chromatograms created reliability issues with all of the results. According to their testimony at the motion hearing, the jagged humps should not be in the results, and the lab should have conducted a thorough analysis to determine what caused the anomalies. In the absence of an explanation, the experts maintained that none of the results could be trusted even though individual tests may or may not have been accurate.

¶ 6 The experts did, however, candidly admit a level of uncertainty in their opinions. Arvizu admitted that the machines were calibrated daily to determine at what point in the test the ethanol was separated from the sample. Because the jagged humps appeared on the chromatograms before the results for alcohol, Arvizu granted "in that respect it would not directly interfere with an ethanol determination." Arvizu conceded that she observed no inconsistencies in the alcohol readings between two test vials of the same blood sample even where one result showed a jagged hump and the other did not. She simply could not say whether the jagged humps produced a false positive or negative, or whether the humps had any effect whatsoever on the accuracy of the test. Valentine similarly admitted that the laboratory conducted controls and standards testing every ten samples, and the results were within the accepted tolerances on the day the laboratory tested Garba's blood. He too admitted he could not say to a reasonable degree of scientific certainty that Garba's test results were either accurate or inaccurate. Finally, both experts conceded that no jagged humps were present in Garba's blood test.

¶ 7 On the State's motion, the circuit court excluded the experts' testimony, reasoning it was not the product of reliable principles and methods, and any probative valued was outweighed by the danger of unfair prejudice. Garba also challenged part of WIS JI—CRIMINAL 2663, arguing that it created an unconstitutional presumption that the blood test was reliable. The circuit court rejected this argument and gave the instruction as written. Garba's case proceeded to trial before a jury, and the jury found him guilty of the OWI charge and the PAC charge. On the State's motion, the PAC charge was later dismissed. Garba appeals.

Discussion

¶ 8 We affirm and conclude that the circuit court properly exercised its discretion in excluding the proffered expert testimony. That decision did not violate Garba's right to present a defense because he does not have a right to present testimony where the danger of unfair prejudice outweighs the probative value of the evidence. We further conclude that WIS JI–CRIMINAL 2663 does not violate due process, and that even if WIS. STAT. § 903.03 required a modification to WIS JI—CRIMINAL 2663, any error was harmless.

A. Expert Testimony

¶ 9 Garba complains that the circuit court erred in excluding his experts' testimony. First, he claims that the court's decision was an erroneous exercise of discretion under WIS. STAT. §§ 907.02 (governing admissibility of expert testimony) and 904.03 (allowing exclusion of unfairly prejudicial evidence). Garba insists that the circuit court applied an incorrect legal standard because it concluded that blood tests are presumed reliable and the burden shifts to him to prove they are inaccurate. He also maintains the court misunderstood the distinction between accuracy and reliability. Just because individual results are accurate, Garba reasons, does not make them reliable. Even though his experts could not opine that any results were in fact inaccurate, Garba insists they should have been allowed to testify because they cast doubt on the reliability of the results. Second, he claims that the circuit court's decision denied him his constitutional right to present a defense.

¶ 10 The court's decision to admit or exclude expert testimony, like most evidentiary rulings, is discretionary and will not be reversed unless the court erroneously exercised its discretion. State v. Giese, 2014 WI App 92, 356 Wis.2d 796, 854 N.W.2d 687, review denied, 2015 WI 24, 862 N.W.2d 602. The court appropriately exercises its discretion if it rationally applies the correct legal standard to the facts of the case. Id.

¶ 11 WISCONSIN STAT. § 907.02 governs the admissibility of expert testimony and adopts the reliability standards the United States Supreme Court explained in Daubert.³ Giese, 356 Wis.2d 796, ¶ 17, 854 N.W.2d 687. It provides:

(1) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a [qualified] witness ... may testify thereto ... if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

Sec. 907.02(1). Under this standard, the circuit court acts as the "gate-keeper ... to ensure that the expert's opinion is based on a reliable foundation and is relevant to the material issues." Giese, 356 Wis.2d 796, ¶ 18, 854 N.W.2d 687. Experts are not permitted to speculate. Id., ¶ 19 ("The goal [of § 907.02 ] is to prevent the jury from hearing conjecture dressed up in the guise of expert opinion.").

¶ 12 This standard is flexible. The court has "considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable." Khumo Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The court may consider a variety of factors including whether the expert's opinions have been subjected to peer review and whether they were developed for the express purpose of testifying. Giese, 356 Wis.2d 796, ¶ 18, 854 N.W.2d 687 ; Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1314 (9th Cir.1995) ("[I]n determining whether proposed expert testimony amounts to good science, we may not ignore the fact that a scientist's normal workplace is the lab or the field, not the courtroom or the lawyer's office."). "The focus [of the court's inquiry] must be solely on principles and methodology, not on the conclusions that they generate." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ; see also Giese, 356 Wis.2d 796, ¶ 18, 854 N.W.2d 687.

¶ 13 Even if evidence is relevant and otherwise admissible, it may nevertheless be excluded under WIS. STAT. § 904.03 if the court determines that its probative value is substantially...