State v. Garris

• Decision Date: 03 September 1992
• Docket Number: No. 24511-KW,24511-KW
• Citation: 603 So.2d 277
• Parties: STATE of Louisiana v. Steven Mark GARRIS.
• Court: Court of Appeal of Louisiana — District of US

Page 277

603 So.2d 277

STATE of Louisiana v. Steven Mark GARRIS.

No. 24511-KW.

Court of Appeal of Louisiana, Second Circuit.

Sept. 3, 1992.

Robert William Raley, for Garris, Steven Mark.

James M. Bullers, for State.

Before SEXTON, LINDSAY and BROWN, JJ.

BROWN, Judge.

This application for supervisory writ arises from defendant's conviction for DWI. Applicant contends that the trial court committed several errors during his trial.

FACTS

During the early morning hours (2:18 A.M.) of November 10, 1991, Trooper Chris McGarity of the Louisiana State Police was driving southbound on Airline Drive, just north of the Bossier City limits in Bossier Parish, when a 1982 Honda crossed the center line almost striking his vehicle. The officer testified he actually was forced off the roadway with his right side tires to avoid being hit. Officer McGarity turned around and caught up with the car and observed it weaving in the roadway. At this point he stopped the vehicle.

The trooper testified that as the driver of the vehicle (the defendant) exited the car, he appeared unsteady and smelled strongly of alcohol. The trooper then proceeded to give the defendant several field sobriety tests.

The first of these was the horizontal gaze nystagmus test, in which the officer moved a pen before the defendant's face and instructed him to follow the pen's movement with his eyes.

Nystagmus is an involuntary jerking of the eyeball. This jerking is aggravated by central nervous system depressants, such as alcohol or barbiturates. State v. Armstrong, 561 So.2d 883, 885 (La.App.2d Cir.1990), citing Ludington, Horizontal Gaze Nystagmus Test: Use in Impaired Driving Prosecution, 60 A.L.R. 4th 1129 (1988).

Horizontal gaze nystagmus is the inability of the eyes to maintain visual fixation as they move from center focus to the point of maximum deviation at the side. State v. Armstrong, 561 So.2d 883, 885 (La.App. 2d Cir.1990), citing State v. Superior Court, County of Cochise, 149 Ariz. 269, 718 P.2d 171 (1986).

This test allows the officer to observe the eyes of the subject to see whether nystagmus was present at maximum deviation, whether he can smoothly pursue while tracking the pen with his eyes and to see at what point the onset of nystagmus occurred. The officer testified that the pursuit of both of defendant's eyes was very jerky. He stated that nystagmus was present at maximum deviation and the onset of nystagmus was prior to forty-five degrees.

The second test administered was the "one legged stand" test. In this test, defendant was asked to raise one foot, with the toe pointed into the air, and count to thirty. Trooper McGarity stated that the defendant had to lower his foot back to the ground on two occasions and at that point the officer stopped the test. McGarity explained that as part of his training on field sobriety tests, he had been instructed that if a subject must lower his foot twice for balance, he is unstable and the test should be stopped for his safety.

The third test was the "walk and turn" test. Defendant was instructed to place the heel of his right foot to the toe of his left foot with his arms at his side, and walk in a straight line, toe to heel, for nine steps, counting the steps aloud, and then turn in a pivoting maneuver and return the same way. McGarity explained that part of the test involves the subject remaining in the heel to toe position prior to walking until the officer has concluded his explanation of the test and has given permission for the subject to begin. The defendant did not remain in the stance as he was instructed to do, but rather got out of this position four times. When he finally began walking, defendant failed to place heel and toe together three times (though the officer could not remember how much he missed by) and had to be reminded to turn. Defendant also failed to count aloud while walking.

The final test administered by the officer at the scene was the "finger to nose" test. Although stating that he had received instructions on how to administer this test and had given the test under the supervision of other troopers, McGarity explained on cross-examination that this is not one of the standardized tests, but rather one he learned in the Air Force and used on this occasion. The defendant was instructed to hold his arms out to his sides and separately touch the tip of his nose with his index finger. McGarity stated that the defendant touched his nose with one finger, but with the other touched just below his nose.

Having come to the conclusion that defendant was under the influence of alcohol, Trooper McGarity placed him under arrest for driving while intoxicated. McGarity testified that he had already advised defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to administering the field sobriety tests.

After placing defendant in the police car, Officer McGarity then went through the Uniform DWI Arrest Interview form. He asked defendant if he had been operating a motor vehicle and defendant responded affirmatively. McGarity also asked defendant if he had been drinking and defendant stated three beers. When asked whether or not he was ill, the defendant informed the officer that he was a diabetic. We note that at trial defendant relied solely on his medical records and these statements to the trooper concerning his diabetic condition as a defense. Only the trooper testified at the trial.

The defendant was then taken to Troop G Headquarters in order to provide an opportunity to take an Intoxilyzer test which defendant refused. At the station defendant did sign a rights form which contained among other things, his Miranda warnings. The trooper testified that he read the entire form to defendant.

Defendant was tried before a judge and found guilty of driving while intoxicated. He has now applied for writs alleging five assignments of error.

DISCUSSION:

Assignment of Error No. 1: Trooper McGarity testified that he had apprised the defendant of his "Miranda Rights" prior to conducting any of the field sobriety tests, but he did not elaborate on what these rights were. During direct examination, the trooper testified that the defendant stated at the scene that he had been drinking (three beers) and that he had been operating the motor vehicle. Defense counsel objected, contending that the state had not properly laid a foundation for the introduction of inculpatory statements.

Defendant argued that the court's acceptance of trooper McGarity's assertion that the accused was advised of his "Miranda rights" was in error where the officer did not detail the specific rights which were told to defendant. Defendant contends that this allowed the trooper to state a legal conclusion.

The state has the burden to prove that the accused knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). In absence of any evidence to prove that petitioner knowingly and intelligently waived his Miranda rights before making inculpatory statements to police, the statement is inadmissible. Tague v. Louisiana, supra. See also, State v. Willie, 410 So.2d 1019 (La.1982), cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 723 (1984); State v. Watkins, 526 So.2d 357 (La.App. 4th Cir.1988), and cases cited therein.

Trooper McGarity testified only that he "read [the defendant] his Miranda rights", but did not elaborate on what those rights were. In State v. Thomas, 504 So.2d 907 (La.App. 1st Cir.1987), cert. denied, 507 So.2d 225 (La.1987), the officer testified that defendant was read his Miranda rights from a field notebook, but at trial could not recite the warnings nor did the officer produce the notebook. The court in Thomas found the evidence sufficient to prove the appropriate warnings were administered noting the lack of contradictory evidence. See also State v. Robinson, 525 So.2d 712 (La.App. 1st Cir.1988), where officers testified the Miranda rights were read from a card but failed to produce the card.

In the instant case there is nothing in the record which indicates that defendant was not correctly Mirandized. The police are not required to have either a signed waiver or another officer to substantiate that the defendant was given the warnings. The record does not contain any information that the trooper did not correctly give the Miranda warnings. Under these circumstances the state sufficiently showed that defendant was given his Miranda rights. State v. Thomas, supra.

Even if error was committed, it was harmless. In State v. Gibson, 391 So.2d 421 (La.1980), the Louisiana Supreme Court adopted the "harmless error" test set forth by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as the test that adequately complies with both Federal and Louisiana law in assessing whether or not an error may be deemed to be harmless. State v. Westfall, 446 So.2d 1292 (La.App. 2d Cir.1984), writ denied, 450 So.2d 957 (La.1984). The Chapman test asks whether there is a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction and requires that the reviewing court be able to declare a belief that the error was harmless beyond a reasonable doubt.

The burden of proving harmless error lies with the state. State v. Gibson, supra; State v. Westfall, supra. The trooper observed defendant driving the car, smelled a strong odor of alcohol and administered several field tests which, along with defendant's obvious careless driving, clearly prove him guilty of DWI. Defendant did not testify and relied solely on his diabetic condition as a defense which was not credible. Defendant's statements after arrest did not contribute to his conviction.

Assignment of Error No. 2: Defendant claims the trial court erred in...