State v. Quaale
| Decision Date | 18 December 2014 |
| Docket Number | No. 89666–6.,89666–6. |
| Citation | 340 P.3d 213,182 Wash.2d 191 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Ryan Richard QUAALE, Respondent. |
Andrew J. Metts III, Spokane County Pros Offc, Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Petitioner.
Eric J. Nielsen, Dana M. Nelson, Nielsen Broman & Koch PLLC, Jennifer L. Dobson, Nielsen Broman Koch PLLC, Attorney at Law, Ryan Boyd Robertson, Robertson Law PLLC, Briteney Ann Mercer, Schroeter Goldmark & Bender, Jennifer Paige Joseph, King County Prosecutor's Office, Seattle, WA, Theodore Wayne Vosk, Ted Vosk, Attorney at Law, Kirkland, WA, for Respondent.
Ryan Boyd Robertson, Robertson Law PLLC, Briteney Ann Mercer, Schroeter Goldmark & Bender, Seattle, WA, Theodore Wayne Vosk, Ted Vosk, Attorney at Law, Kirkland, WA, Amicus Curiae on behalf of Washington Foundation for Criminal Justice.
Jennifer Paige Joseph, King County Prosecutor's Office, Seattle, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.
¶ 1 The arresting trooper in this DUI (driving under the influence) trial testified that he had “no doubt” that the defendant was impaired based solely on a horizontal gaze nystagmus (HGN) test. We hold that the testimony was an improper opinion on guilt and affirm the Court of Appeals.
¶ 2 Washington State Patrol Trooper Chris Stone saw a truck, driven by Ryan Quaale, speed by in a 25–mile per hour zone on a residential street. Trooper Stone's radar captured Quaale's speed at 56 miles per hour. Trooper Stone activated the lights on his patrol car and attempted to pull the truck over. In response, Quaale turned off his truck's headlights and accelerated.
¶ 3 Trooper Stone pursued. Quaale lost control and overshot a corner, skidding into a homeowner's yard before he regained control and sped away for several more blocks. After Trooper Stone activated his siren, Quaale pulled the truck over and stopped. Quaale exited his truck but did not attempt to flee on foot. As a part of standard pursuit protocol, Trooper Stone ordered Quaale to the ground and handcuffed him. As he approached Quaale, Trooper Stone smelled a strong odor of “intoxicants” on Quaale's breath. Partial Verbatim Report of Proceedings (RP) at 12.
¶ 4 Trooper Stone then performed the HGN test on Quaale. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person's eyes will jerk or bounce as they move from side to side. Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because, unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Id. at 27. Trooper Stone did not perform any other sobriety tests on Quaale in the field.
¶ 5 During the HGN test, Trooper Stone observed Quaale's eyes bounce and have difficulty tracking the stimulus. Trooper Stone placed Quaale under arrest for DUI, reckless driving, and attempting to elude. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test.
¶ 6 Quaale was charged with attempting to elude a police vehicle and with felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of vehicular homicide while under the influence. RCW 46.61.502(6)(b)(i).
¶ 7 Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:
¶ 8 In closing, the State argued that the odor of intoxicants and Quaale's erratic driving supported its theory of driving while impaired by alcohol, but the State primarily relied on the HGN test. Indeed, during its rebuttal, in response to the defense explanation for the odor of intoxicants, the State said, Clerk's Papers (CP) at 153–54.
¶ 9 The State also remarked on Quaale's revoked license during closing in violation of the court's ruling. The jury found Quaale guilty of DUI.
¶ 10 On appeal, Quaale argued that the trooper's testimony amounted to an improper opinion on guilt. He also argued that the prosecutor committed misconduct when she commented on his revoked license and that the trial court improperly denied a motion to dismiss under CrR 8.3(b) alleging “governmental misconduct whe[re] there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.” The Court of Appeals reversed Quaale's DUI conviction, holding that the trooper's opinion testimony violated Quaale's “constitutional right to have a fact critical to his guilt determined by the jury.” State v. Quaale, 177 Wash.App. 603, 617–18, 312 P.3d 726 (2013). The Court of Appeals ordered a new trial and did not reach the other issues that Quaale raised, including the prosecutor's misconduct. Id. at 619, 312 P.3d 726. The State filed a petition for review regarding the opinion testimony issue, which we granted.1 State v. Quaale, 179 Wash.2d 1022, 320 P.3d 719 (2014).
¶ 11 We review decisions to admit evidence using an abuse of discretion standard. State v. Demery, 144 Wash.2d 753, 758, 30 P.3d 1278 (2001). The trial court is given considerable discretion to determine if evidence is admissible. Id. “Where reasonable persons could take differing views regarding the propriety of the trial court's actions, the trial court has not abused its discretion.” Id. However, the trial court has abused its discretion on an evidentiary ruling if it is contrary to law. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (1996). “An abuse of discretion exists ‘[w]hen a trial court's exercise of its discretion is manifestly unreasonable or based on untenable grounds or reasons.’ ” Id. (alteration in original) (quoting State v. Stenson, 132 Wash.2d 668, 701, 940 P.2d 1239 (1997) ).
¶ 12 At trial, defense counsel objected to a question posed by the prosecutor—whether the testifying trooper formed an opinion about Mr. Quaale's impairment based on the HGN test alone—because the question went to the ultimate issue. The state correctly points out that, under Washington's rules of evidence, opinion testimony is not objectionable merely because it embraces an ultimate issue that the jury must decide. ER 704 states, “Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
¶ 13 An opinion that embraces an ultimate issue, however, must be “otherwise admissible.” Id. When opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. City of Seattle v. Heatley, 70 Wash.App. 573, 579, 854 P.2d 658 (1993). Here, the trooper's opinion based solely on the HGN test was inadmissible under our decision in State v. Baity, 140 Wash.2d 1, 991 P.2d 1151 (2000).
¶ 14 In Baity, we considered whether a drug recognition protocol employed by police officers to detect behavior associated with certain drugs constituted novel scientific evidence generally accepted in the scientific community, satisfying the Frye test for admissibility of expert testimony. Id. at 3, 991 P.2d 1151 ; Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). Police officers trained to use this protocol are often referred to as drug recognition experts (DREs). DREs use a 12–step procedure to classify behavioral patterns associated with seven categories of drugs. 140 Wash.2d at 6, 991 P.2d 1151. Officers employ the HGN test as one of the 12 steps. Id. at 6–7, 991 P.2d 1151.
¶ 15 We analyzed whether the HGN test satisfied Frye when used for drug detection and we held that it did. We agreed that the underlying scientific basis of the test—an intoxicated person will exhibit nystagmus2 —was undisputed. Id. at 12, 991 P.2d 1151. We also noted that officers perform the test in the same way whether the officer tests for alcohol or drug impairment and that the officer also looks for the same result: involuntary jerking in the driver's eyes. Id. at 13, 991 P.2d 1151. Thus, our analysis of the HGN test in the DUI drug detection context, as discussed in Baity, applies equally to the DUI alcohol detection context in this case.
¶ 16 Although we held testimony on the HGN test admissible as evidence that a person was intoxicated on drugs, we placed limits on that testimony because the HGN test merely shows physical signs consistent with ingestion of intoxicants. Id. at 13–14, 17–18, 991 P.2d 1151. We said that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.” Id. at 17, 991 P.2d 1151. The officer also cannot predict the specific level of drugs present in a suspect. Id. We further instructed that a DRE officer, properly qualified, could express an opinion that a suspect's behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs. Id.
¶ 17 Here, the trooper's testimony violated the...
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