State v. Sarkisian-Kennedy

• Decision Date: 24 January 2020
• Docket Number: No. 2018-368,2018-368
• Citation: 2020 VT 6
• Parties: State of Vermont v. Venessa Sarkisian-Kennedy
• Court: Vermont Supreme Court

2020 VT 6

State of Vermont v. Venessa Sarkisian-Kennedy

No. 2018-368

Supreme Court of Vermont

September Term, 2019

January 24, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Criminal Division

Michael R. Kainen, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson, Eaton and Carroll, JJ., and Skoglund, J. (Ret.), Specially Assigned

¶ 1. EATON, J. Following a jury trial, defendant Venessa Sarkisian-Kennedy was convicted of operating a vehicle under the influence of alcohol, second offense (DUI-2), and criminal refusal of an evidentiary breath test (refusal). She seeks reversal of these convictions on appeal, arguing that the trial court erred in: (1) admitting—subject to what she contends was an ineffective limiting instruction—the results of a horizontal gaze nystagmus (HGN) test offered by the State absent scientific, foundational testimony from an expert witness; and (2) allowing the State to present evidence of her refusal to consent to a preliminary breath test (PBT) on the theory that it was relevant to consciousness of guilt. We reverse and remand the refusal conviction and affirm the DUI-2 conviction.

¶ 2. Prompted by concerns that defendant was driving with a suspended license, a Wilmington police officer made contact with her on the night of January 26, 2018. During this encounter, officers developed a further suspicion that defendant had been driving under the influence of alcohol. In connection with the ensuing DUI investigation, defendant participated in field-sobriety tests, including an HGN test. However, upon request, she declined to provide police with either preliminary or evidentiary samples of her breath. She was subsequently charged with DUI-2, refusal, and operating a vehicle under license suspension for DUI (OLS-DUI). Prior to trial, defendant pleaded guilty to OLS-DUI and admitted the existence of her prior DUI conviction, an essential element of DUI-2. She also filed two motions in limine, seeking to preclude the State from offering evidence of the HGN test results and her refusal to take the PBT. Before describing the grounds for defendant's motions, some background on the HGN and PBT tests and the legal framework governing their administration is helpful.

¶ 3. The HGN is a field-sobriety test in which officers look for involuntary jerking of the eyes—known as nystagmus—as a subject tracks an object across his or her field of vision. See State v. Wilt, 2014 VT 114, ¶ 9 n.2, 198 Vt. 1, 109 A.3d 439; State v. Blouin, 168 Vt. 119, 120 n.1, 716 A.2d 826, 827 n.1 (1998). An "overabundance" of eye twitching suggests possible intoxication. Blouin, 168 Vt. at 120 n.1, 716 A.2d 826, 827 n.1. While Vermont's DUI statute "is silent with respect to physical sobriety tests such as the HGN," see id. at 122, 716 A.2d at 828, our case law provides that, as with other physical sobriety exercises, an officer may request an HGN test where he or she can "point to specific articulable facts which, taken together with rational inferences from these facts, reasonably warrants the intrusion." State v. Gray, 150 Vt. 184, 191, 552 A.2d 1190, 1194 (1988).

¶ 4. In contrast, the administration of both preliminary and evidentiary blood tests is governed by statute. See 23 V.S.A. §§ 1202(a)(3), 1203(f). The PBT is "an investigatory tool used by officers in the field to ascertain whether probable cause exists to believe that an individualhas been driving under the influence of alcohol." State v. Schapp, 2019 VT 27, ¶ 11, ___ Vt. ___, 212 A.3d 1226 (quotation omitted). An officer may request a PBT if he or she "has reason to believe that a person may be" or has been driving under the influence. 23 V.S.A. § 1203(f). "The results of this preliminary screening test may be used for the purpose of deciding whether an arrest should be made and whether to request an evidentiary test and shall not be used in any court proceeding except on those issues." Id. But an evidentiary breath test, "as its name implies, 'is one that is intended to be introduced as evidence.' " Schapp, 2019 VT 27, ¶ 12 (quoting 23 V.S.A. § 1200(3)). Because an evidentiary breath test may be used as substantive evidence of guilt, an officer may only request one when he or she "has reasonable grounds to believe" that a person was driving under the influence. Id.; 23 V.S.A. § 1202(a)(3). "Reasonable grounds" are "akin to probable cause." State v. Perley, 2015 VT 102, ¶ 18, 200 Vt. 84, 129 A.3d 93.

¶ 5. In her motion in limine, defendant argued that HGN tests are scientific in nature and, as such, subject to the admissibility standards set forth in Vermont Rule of Evidence 702. Absent testimony from a witness qualified as a scientific expert, she contended, the State could not admit evidence pertaining to the HGN test. The State responded that an administering officer's testimony regarding HGN results is admissible, without more, with respect to a refusal charge—specifically, the jury's determination of whether the officer had reasonable grounds to request an evidentiary breath sample. 23 V.S.A. § 1202(a)(3). It urged the court to conclude that HGN evidence is categorically admissible for this purpose on the basis of decisions rendered by appellate courts in other jurisdictions, a procedure outlined by this Court in State v. Kinney, 171 Vt. 239, 249-250, 762 A.2d 833, 842-43 (2000).

¶ 6. In ruling on the motion, the court did consider decisions from other jurisdictions. It also cited the HGN-related testimony of a police officer taken in a separate case apparently then pending before the same judge, as well as a "series of studies"—the provenance of which is unclear on this record, as the court did not hold an evidentiary hearing on the motion—evaluating the HGNtest's known rate of error. On this basis, the court concluded that the HGN test satisfied two of Rule 702's three prongs: it was "based on sufficient facts and data" and "the product of reliable techniques and methods." See V.R.E. 702. However, the court went on to hold that, absent the testimony of "someone like" the officer who testified in the other case before the court, it could not be assured that those techniques and methods had been applied reliably to the facts of the case at bar. On this basis, the court concluded that the officer could testify only that he was trained to carry out "an exercise which observes eye movements," he administered this test to defendant in accordance with his training, and what he subsequently observed "can be associated with impairment." The court further indicated that it would issue a limiting instruction explaining that, while the jury could use the HGN evidence to evaluate the reasonableness of the officer's request for the evidentiary breath test, jurors could not consider it with regard to the underlying issue of defendant's impairment.

¶ 7. Defendant renewed this motion prior to the commencement of trial, arguing that the limited scope of the testimony allowed under the court's ruling was still an admission of the test absent an appropriate scientific foundation. She further indicated her belief that the HGN test result was a "crucial piece of evidence" in the State's DUI-2 case, and, as a result, a limiting instruction would not cure the prejudice resulting from its admission in the absence of expert testimony. The court declined to reconsider its ruling, but expanded on its prior reference to the HGN testimony it heard in the other case, where "the 702 issue was pretty heavily litigated," noting that the officer who testified "is not just your regular road cop, but . . . has been all over the country taking medical trainings and understands quite a bit." The court clarified that the other decision had yet to issue but would "probably" conclude that HGN evidence was admissible based on that officer's testimony and the court's consideration of appellate decisions from other jurisdictions. Reiterating that, in the absence of expert testimony, the evidence was inadmissible with respect to the DUI-2 charge, the court continued to hold that it was admissible with respect to thereasonableness of the officer's request for an evidentiary breath test so long as it was not "impugned with any type of scientific gloss."

¶ 8. At this time, the court also ruled on defendant's pending motion to exclude evidence regarding her refusal to provide a preliminary breath sample. Defendant argued that the language of 23 V.S.A. § 1203(f) precludes the admission of a driver's refusal to submit to a PBT—not just the numerical result of a PBT—as substantive evidence. The court, rejecting this argument, held that testimony regarding defendant's refusal to perform the PBT was evidence of consciousness of guilt, and therefore relevant and admissible.

¶ 9. During the trial, the following evidence was presented through the testimony of defendant and three police officers. Officer Corey Briggs was on patrol in Wilmington on the evening of January 26, 2018, when he recognized a passing vehicle as belonging to—and being driven by—defendant, who he knew. Because he believed defendant's license was suspended, Officer Briggs began to follow her vehicle. He observed no erratic operation during this time; rather, defendant proceeded to signal appropriately, turn into a municipal lot, and park her car.

¶ 10. Officer Briggs followed, making contact with defendant to address his concerns that defendant was driving while...