State v. Hendrickson

• Decision Date: 25 February 1976
• Docket Number: No. 525,525
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Tarry HENDRICKSON, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 846

240 N.W.2d 846

STATE of North Dakota, Plaintiff and Appellee, v. Tarry HENDRICKSON, Defendant and Appellant.

Crim. No. 525.

Supreme Court of North Dakota.

Feb. 25, 1976.

Rehearing Denied March 24, 1976.

As Amended April 2, 1976.

Syllabus by the Court

1. If an alleged error is not of such a character that prejudice normally results or does not affect a defendant's constitutional rights, this court will not deem it reversible error unless in all probability the error affected the jury's verdict.

2. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence.

3. For reasons stated in the opinion, certain testimony relating to the behavioral effects of the consumption of alcohol upon a controlled study group was irrelevant to the defendant's having been under the influence and was cumulative, but its admission was not prejudicial error.

4. Instructions must be considered as a whole and if, when so considered, they correctly advise the jury as to the law, they are sufficient although parts of them standing alone may be erroneous or insufficient.

5. A statement that a person having, at Any time, ten-hundredths of one percent or more by weight of alcohol in his blood is presumed to be under the influence of intoxicating liquor is not reversible error where the remainder of the instructions repeatedly makes it clear that the defendant must have been under the influence at the time he was driving.

6. An instruction that a presumption serves as evidence and governs the jury in finding the facts unless it is disproved by evidence or if, from the evidence, the jury has a reasonable doubt as to the existence of the presumed fact does not shift the burden of proof to the defendant, but merely informs the jury how the presumption may be rebutted.

7. For reasons stated in the opinion, certain irrelevant testimony was harmless error only and the instructions as a whole adequately advised the jury of the law.

Richard L. Schnell, State's Atty. for Morton County, Mandan, for plaintiff and appellee.

Daniel J. Chapman, Bismarck, for defendant and appellant.

ERICKSTAD, Chief Justice.

Norman Evans of the North Dakota Highway Patrol arrested Tarry Hendrickson after he had observed Tarry's car drift completely into the east-bound lane of Memorial Bridge while Tarry was proceeding west. He testified that Tarry subsequently failed to stop at a stop sign and crossed the center line on Highway 10 between Bismarck and Mandan (commonly known as the 'Strip'), forcing an oncoming car onto the shoulder of the two-lane highway. After stopping Tarry, Evans noted the odor of alcohol, but he observed 'nothing in particular' as Tarry walked from his own vehicle to Evans' patrol car.

Tarry consented to a blood alcohol test after Evans advised him that he was arresting him for operating a motor vehicle while under the influence of intoxicating beverages and asked him if he would submit to a blood test. During the ride to Mandan Hospital, Evans noticed that Tarry's eyes were bloodshot and again detected the odor of alcohol.

Evans advised Tarry of his rights to remain silent and to have an attorney present. Tarry responded to most of the officer's questions. While Tarry's speech was not slurred, it was 'mush-mouthed,' described by Evans as 'more an example of having something dry in the mouth' with 'a muffle effect, but not slurred.'

Evans stopped Tarry at 1:45 a.m. They reached the hospital at 2:00 a.m. Carol Schmitt, a laboratory technician, was called at 2:15 a.m. and completed drawing the blood at 2:28 a.m.

On appeal from judgment following a jury verdict of guilty and from denial of a motion for new trial, Tarry specifies three instances of error.

He asserts that the trial court erred by allowing a medical technologist from the state toxicology lab to testify as to her observations of an experiment relating to the effects of alcohol upon a group of volunteers. In determining whether a trial court has committed error which warrants a new trial, we look to the relation of the error to the result of the trial. 'We must consider the entire record and the probable effect of the actions alleged to be error in light of all the evidence in order to determine whether substantial rights were affected. State v. Johnson, 231 N.W.2d 180, 185 (N.D.1975).' State v. Allen, 237 N.W.2d 154, 162 (N.D.1975). Before we will reverse a verdict on the basis that the error committed was not harmless, prejudice must be shown, substantial injury must have resulted to the defendant's case, and a different decision is probable absent the error. Since the error alleged here is not of such a character that prejudice normally results, nor is it alleged to affect Tarry's constitutional rights, the standard to apply is whether in all probability the admission of the testimony affected the jury's verdict. Id.; State v. Marmon, 154 N.W.2d 55, 64 (N.D.1967); See Rule 52, N.D.R.Crim.P., and commentary thereto. We do not believe that it did.

Tarry asserts, however, that the testimony relating to Ms. Lee's observations of the experiment should have been excluded because of our decisions in Fisher v. Suko, 111 N.W.2d 360 (N.D.1961), and Larson v. Meyer, 135 N.W.2d 145 (N.D.1965). The situations in those cases are inapposite to Tarry's situation.

In Larson we determined that the trial court did not abuse its discretion in refusing to admit evidence of an experiment relating to a tractor attempting to pull a truck from a ditch. The accident had occurred in May, while the experiment was conducted in December. The experiment occurred on a hard-surfaced road, while the accident occurred in a farmyard.

'We held in Fisher v. Suko, N.D., 111 N.W.2d 360, that evidence of relevant experiments is admissible where they are shown to have been made under conditions substantially similar to those prevailing at the time of the occurrence to which they relate * * *' Larson v. Meyer, supra, 135 N.W.2d at 165.

Fisher also involved the exclusion by the trial court of evidence relating to an experiment. That experiment was conducted by an expert witness, a consulting engineer who had made a study of the forces involved in automobile collisions. While we noted that evidence of relevant experiments is admissible 'where they are shown to have been made under conditions substantially similar to those prevailing at the time of the occurrence to which they relate,' we approved the trial court's action because there was 'no evidence that even remotely connects (the model car experiment) with conditions and circumstances prevailing at the time of the accident.' Fisher v. Suko, supra, 111 N.W.2d at 364.

In both Larson and Fisher the experiments were not shown to be reliable and valid recreations of what really happened. Both involved matters not ordinarily within lay experience or knowledge. Both were graphic and likely to play a substantial role in the juries' deliberations.

In the instant case, Ms. Lee was qualified as an expert in the operation of a gas chromatograph. During direct examination by the state's attorney, she did not testify to her observations concerning the effect of alcohol on individuals. That topic was pursued by defense counsel when he recalled Ms. Lee.

'Q. (Mr. Chapman) Are you familiar with the term tolerance as used in connection with the effect that alcohol (has) upon any particular individual?

'A. Some people who are regular drinkers are able to compensate in certain ways for the effects of alcohol on their body, such as they may walk with their feet a little wider apart so they don't appear to have an impairment in walking, or they may speak more slowly so that the slurring of words is not as apparent.'

'Q. (Mr. Chapman continuing) I started to ask the question, Ms. Lee, if tolerance is not actually the ability of the organism to withstand the effects of alcohol, and it may differ from one individual to another?

'A. Alcohol does have different effects on different individuals.

'Q. Thus the same alcohol in the blood may not have the same effect in the two different people; isn't that correct?

'A. That is correct.'

'(Mr. Chapman restating a question) The symptoms of having consumed alcohol, may be different even though the blood--the blood alcohol rate is the same, depending upon how long after the alcohol has been consumed? Am I making myself clear to you?

'A. I don't believe in an individual, it would make any difference as the time, amount of time, after the alcohol was consumed as to a certain rate. I think within an individual, a certain level would have a certain effect.

'Q. That's your training; is that right?

'A. This is my opinion.

'Q. There could be other opinions; could there not?

'A. Yes.'

When the state's attorney asked whether Ms. Lee's training covered the effect of alcohol on various people, she responded that she had been an observer to a controlled study with 26 subjects but that none of the subjects were 'higher than .10, or maybe slightly higher.'

'Q. (Mr. Schnell) Would you state the things you observed about the individuals?

'MR. CHAPMAN: We are going to object as to immaterial.

'THE COURT: Well, I think this whole question of how this affects the person and what it does to him is brought out by you on your cross-examination as when you recalled this witness. I think now to cut it short would be a denial of the State's right to present the knowledge of this witness, and I am going to overrule your objection.

'You may answer the question.

'THE WITNESS: Would you repeat the question?

'Q. (Mr. Schnell continuing) The question was: What did you observe about these people at the level that they did reach?

'A. Some of them had difficulty in coordination. Their inhibition were decreased. Their judgment was not--they--how shall I say it? Their judgment wasn't quite as good.'

'Q. How did you...