State v. Taylor, CUM-95-706

• Citation: 694 A.2d 907,1997 ME 81
• Decision Date: 18 April 1997
• Docket Number: No. CUM-95-706,CUM-95-706
• Parties: STATE of Maine v. Leslie J. TAYLOR.
• Court: Supreme Judicial Court of Maine (US)

Page 907

694 A.2d 907

1997 ME 81

STATE of Maine v. Leslie J. TAYLOR.

No. CUM-95-706.

Supreme Judicial Court of Maine.

Argued Nov. 7, 1996.

Decided April 18, 1997.

Stephanie Anderson, District Attorney and Carlos Diaz, Asst. Dist. Atty. (orally), Portland, for the State.

Anthony J. Sineni, III (orally), Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA and LIPEZ, JJ.

CLIFFORD, Justice.

¶1 Leslie J. Taylor appeals both from the order entered in the Superior Court (Cumberland County, Delahanty, J.) denying his motion to suppress evidence and from the judgments entered against him following jury verdicts of guilty on the charges of operating under the influence (Class D) in violation of 29 M.R.S.A. § 1312-B (Supp.1994), ¹ and operating after having been declared a habitual offender (Class D) in violation of 29 M.R.S.A. 2298 (Supp.1994). ² Taylor contends on appeal that the Superior Court committed error in denying his motion to suppress evidence obtained from the vehicle stop and admitting in evidence expert testimony regarding the Horizontal Gaze Nystagmus (HGN) test. We affirm the judgments.

¶2 On September 3, 1994, at about 1:00 a.m., Officer Mark Green was patrolling in Brunswick. Officer Green saw Taylor's car from a distance of about seventy-five feet and observed that the rear license plate was unilluminated. After stopping Taylor's car, Officer Green approached Taylor, explained his reason for doing so, and asked Taylor for his license. Taylor apologized for the light being out and said that he was unaware that the light was defective. Officer Green noted that Taylor had an odor of alcohol on his breath and that his speech was slow and thick. Taylor told Officer Green that he had consumed one beer about one and one-half hours earlier.

¶3 Taylor performed four sobriety tests after exiting the car. While attempting to recite the alphabet, Taylor correctly stated the order of the letters but paused twice during the recital. When performing the walk-and-turn test, Officer Green observed that Taylor did not count his steps out loud as requested, stepped off-line once, incurred balance problems, and did not turn as Officer Green had requested. Taylor put his leg down, swayed, and lost count while attempting to perform the one-leg stand.

¶4 Officer Green also administered an HGN test, which detects the presence of involuntary jerking of the eyes. During each of the three phases of the test, Officer Green observed jerking in both of Taylor's eyes. Officer Green testified that, as a result, Taylor had six "clues" of intoxication. At the conclusion of the sobriety tests, Officer Green placed Taylor under arrest for driving under the influence of alcohol. At the police station, Taylor refused to take a breathalyzer test. Officer Green never cited Taylor for a broken plate light, and both Taylor and his girlfriend, who was in the car with him, testified that the light was working when they checked it later at the station.

¶5 Taylor was indicted for operating a motor vehicle after his right to operate had been revoked pursuant to the habitual offender law, 29 M.R.S.A. § 2298 (Supp.1994), and for operating under the influence 29 M.R.S.A. § 1312-B (Supp.1994). After entering pleas of not guilty, Taylor moved to suppress evidence alleging that it was the product of an illegal stop. After a hearing, the court denied the motion based on Officer Green's testimony that he observed that the light was defective.

¶6 At the jury trial, Taylor moved in limine to exclude the HGN results because no case law or scientific foundation proved its reliability. The State directed the court's attention to State v. Superior Court, 718 P.2d 171 (Ariz.1986) (en banc), and the scientific evidence cited in that case, to show the reliability of the HGN test. The court denied Taylor's motion and concluded that it would allow expert testimony at trial on the HGN test subject to the laying of an adequate foundation.

¶7 Officer Green testified that he had taken a three-day course which included the horizontal gaze nystagmus testing procedure and was taught by instructors at the Maine Criminal Justice Academy. He testified that the HGN test "deals with the eyes ... [A]s a person's intoxication level increases, there is a distinct involuntary jerkiness of the eyes which can be detected. And my training consisted of picking up that or detecting that nystagmus out there in the field or on the road." Officer Green reported that the National Highway Traffic Safety Administration recognizes the test. Officer Green testified that, in his experience and training, four or more "clues" correlates with a 77 percent probability that the subject will test .10% blood alcohol by weight or higher. He also testified that in his experience in testing hundreds of people, only once or twice had someone had six clues but a blood alcohol level of less than .10%.

¶8 Officer Green also testified that he knows how to administer the test properly although he is unaware of the scientific basis for it. The person administering the test uses a pen to check for involuntary jerking of each of the eyes, which results in "clues" of intoxication. There are three parts to the test, and the officer looks for as many as six clues. First, the officer checks for lack of smooth pursuit of the eyes by bringing a pen back and forth in front of the subject's eyes. Second, the officer checks for maximum deviation of the eyes by bringing them out to the very extremes that they can travel in the eye socket. Finally, the officer brings the subject's eyes out forty-five degrees to observe at what point any involuntary jerking of the eyes begins. All of the evidence relating to the HGN test was admitted over Taylor's timely objections during the trial. Before the charge to the jury, the court granted in part a motion for a judgment of acquittal on part of the indictment alleging that Taylor's blood alcohol level was over .08%. ³ The jury subsequently convicted Taylor on both counts. This appeal followed.

I.

¶9 Taylor contends that the court erred in finding Officer Green had an objective basis for stopping Taylor's vehicle. He argues that Officer Green was factually incorrect and that the license plate light was illuminated. An investigatory stop is valid when it is "supported by specific and articulable facts which, taken as a whole and together with the rational inferences from those facts, reasonably warrant the police intrusion." State v. Hill, 606 A.2d 793, 795 (Me.1992) (citations omitted). Suspicion of a civil violation provides adequate specific and articulable facts. Id. (failure to display rear plate) State v. Carsetti, 536 A.2d 1121, 1122 (Me.1988), habeas corpus denied, 932 F.2d 1007 (1st Cir.1991) (partially obstructed plate and expired registration sticker); cf. State v. Pinkham, 565 A.2d 318, 319 (Me.1989) (safety reasons alone may be sufficient to warrant an investigatory stop). Although Taylor testified that the light was illuminated when he checked it after leaving the police station, Officer Green testified that he observed from seventy-five feet away that the light was defective. ⁴ Officer Green's testimony about whether the light was illuminated while Taylor operated his car is not directly controverted and supports an articulable and reasonable suspicion that a traffic violation was occurring. ⁵ The court chose to accept Officer Green's testimony. Because those factual findings are not clearly erroneous, the stop in this case was constitutional. ⁶

II.

¶10 Taylor also contends that the court erred in allowing Officer Green to testify regarding the results of the HGN test that the officer administered to Taylor during the stop and that as a consequence, he was improperly convicted of OUI. We review evidentiary rulings for clear error and an abuse of discretion. See Kay v. Hanover Ins. Co., 677 A.2d 556, 559 (Me.1996). Although we agree with Taylor that the court erred in admitting some of the HGN testimony, we conclude that the error in this case was harmless.

M.R. Evid. 702 provides that:

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 witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

We stated in State v. Williams, 388 A.2d 500 (Me.1978), that

[t]he presiding Justice will be allowed a latitude, which the Frye rule denies, to hold admissible in a particular case proffered evidence involving newly ascertained, or applied, scientific principles which have not achieved general acceptance in whatever might be thought to be the applicable scientific community, if a showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable to be held relevant.

Id. at 504 (citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923)). The HGN test is an integral part of a police officer's administration of the field sobriety test, and we take judicial notice of its reliability in making determinations of probable cause for arrest and for purposes of establishing criminal guilt in cases involving operating under the influence. This Court may properly take judicial notice on appeal. M.R.Evid. 201(f). "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." M.R.Evid. 201(b). ⁷

¶11 We are convinced that the Horizontal Gaze Nystagmus test is sufficiently reliable to be admitted as evidence in future cases. Nystagmus "is an involuntary jerking of the eyeball. The jerking may be aggravated by central nervous system depressants such as alcohol or barbiturates." State v. Superior Court, ...