U.S. v. Iron Cloud

• Decision Date: 19 March 1999
• Docket Number: No. 98-2430,98-2430
• Parties: UNITED STATES of America, Appellee, v. Anthony George IRON CLOUD, Sr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 587

171 F.3d 587

UNITED STATES of America, Appellee, v. Anthony George IRON CLOUD, Sr., Appellant.

No. 98-2430.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 15, 1998.

Decided March 19, 1999.

David L. Zuercher, Asst. U.S. Attorney, Pierre, SD, argued, for Appellee.

Curtis D. Ireland, Rapid City, SD, argued, for Appellant.

Before McMILLIAN, LAY and HALL, ¹ Circuit Judges.

LAY, Circuit Judge.

Anthony George Iron Cloud, Sr. was convicted by a jury of involuntary manslaughter under 18 U.S.C. §§ 1153 and 1112. He appeals the district court's decision to admit into evidence the results of a portable breath test ("PBT") claiming that its admission deprived him of a fair trial. We reverse and remand for a new trial.

I. FACTS

At 9:30 p.m. on January 19, 1997, Anthony Iron Cloud gave a friend a ride to his home in the Evergreen housing area of Pine Ridge Reservation. According to Iron Cloud, he had consumed six beers over the course of six hours. ² When Iron Cloud reached the housing area, he saw a pedestrian, Abel Iron Rope, walking along the right-hand side of the road. According to Iron Cloud, he pulled over to the left to avoid the pedestrian. He then turned to look at his passenger and hit Iron Rope. It is undisputed that Iron Cloud never applied his brakes and was driving 15 miles per hour in a 10 mile per hour zone before the accident occurred.

Abel Iron Rope had an extensive history of mental illness and was characterized by his family as a danger to himself and to the community. Iron Rope also had a history of jumping in front of cars. In 1993, he jumped in front of a propane truck on the highway causing the truck to careen into a ditch. Furthermore, a police officer testified that at approximately 4:00 p.m. on January 19, 1997, the day of the accident, Iron Rope ran out directly in front of his patrol car and the officer was barely able to avoid hitting him.

After the accident, Iron Cloud and his friend checked on Iron Rope, who was sitting up and nodded when asked if he was fine. Iron Cloud left the scene of the accident, went home, and asked his wife to call 911. ³ The police arrived shortly thereafter. Twenty-five minutes after the accident, Tribal Officer Twiss administered a portable breath test ("PBT") which indicated a blood-alcohol level of .14 percent. Iron Cloud was arrested and approximately one hour after the accident he was given an intoxilyzer breath test which registered his blood-alcohol level as. 11 percent. Five hours after the crash, a blood test was taken and registered .033 percent. Abel Iron Rope subsequently died as a result of the accident.

Iron Cloud was charged with involuntary manslaughter under 18 U.S .C. §§ 1153 and 1112 for operating his motor vehicle in a grossly negligent manner. Iron Cloud filed a motion in limine to exclude the PBT as evidence of anything more than a screening test used to determine probable cause for arrest. The district court overruled the motion without an evidentiary hearing. At trial, the government's witness was allowed to calculate a blood-alcohol level reading based on a hypothetical question which included the PBT and the other tests performed on Iron Cloud. The expert concluded that Iron Cloud's blood-alcohol level at the time of the accident was .13 or .14 percent. ⁴ At the conclusion of the trial, the district court gave a limiting jury instruction which provided that the PBT should not be considered in isolation, but could be considered with the other tests as proof of intoxication. The jury found Iron Cloud guilty and he was sentenced to 21 months imprisonment and three years supervised release. Iron Cloud appeals the admission of the PBT as substantive proof of his intoxication.

II. DISCUSSION

Admissibility of the PBT

In United States v. Black Cloud, 101 F.3d 1258 (8th Cir.1996), this court set forth a two part test to determine when scientific testimony is admissible. First, the district court must "determine whether the testimony is based on reliable scientific technique, and whether it will assist the jury." Black Cloud, 101 F.3d at 1261 (citation omitted). In its determination, the district court should consider the following factors when assessing the reliability of a scientific technique: "(1) whether the technique can be and has been tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error for the technique and the existence and maintenance of standards for controlling the technique's operation; and (4) whether the technique is generally accepted in the scientific community." Id. (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Second, even if the district court concludes that the expert testimony is admissible, it "may exclude the testimony if the testimony has an unfairly prejudicial effect that substantially outweighs its probative value." Id. (citations omitted).

The district court in this case did not follow either of these steps. The court refused to hold a Daubert hearing to determine the reliability of the test, stating before the jury: "[the] PBT test does not require a Daubert hearing. The PBT test is a test which has been recognized in the scientific community and as such, Daubert is not appropriate." Tr. at 43. Neither did the court analyze whether the test would be unfairly prejudicial. We review a district court's decision to admit evidence for an abuse of discretion. Black Cloud, 101 F.3d at 1261.

By denying Iron Cloud's request for a Daubert hearing on the reliability of the PBT, the judge took the accuracy of the PBTs for granted and he ignored established procedure. Contrary to the court's statements concerning the reliability of the PBT, the PBT has not been established as reliable. PBTs are used in the field for screening purposes. The government's expert witness, Roger Mathison, agreed that the PBT was only a preliminary screening test. Tr. at 197-199. Furthermore, almost every state that has addressed the issue has refused to admit the results of the test for purposes other than probable cause. ⁵ Although the admissibility of evidence is governed by federal standards, ⁶ in the face of this overwhelming case law as to the limited reliability of the PBT, we conclude, without further foundation being laid, that the PBT is not reliable as anything more than a screening test to be used for probable cause.

We are not persuaded by the government's argument that the district court was correct in admitting the results of the PBT test without a Daubert hearing because the technology has been in use for an extended period of time. The mere fact that a test has been used for a long time does not make it reliable. The same argument could be made for polygraph tests, which clearly are not admissible in this circuit. See United States v. Williams, 95 F.3d 723 (8th Cir.1996); Conner v. Auger, 595 F.2d 407 (8th Cir.1979).

Finally, we hold the error was not cured by the judge's limiting jury instruction. Jury Instruction No. 12 stated as follows:

The Court has permitted the introduction of evidence of a portable breath test (PBT) taken of the defendant. You are instructed that a PBT test is not recognized, standing alone, as proof of intoxication. It may be considered, however, together with the tests of the blood, breath (intoxilyzer) and other evidence pointing to the question of whether the defendant was under the influence of alcohol at the time of the event for which the defendant stands charged.

As we have discussed, the PBT should not be used for anything other than probable cause determinations. This instruction simply makes matters worse by instructing the jury that they can consider the PBT as substantive evidence, albeit in conjunction with other evidence.

Harmless Error

This court has held that "[e]videntiary rule violations 'which do not affect [a defendant's] constitutional rights are subject to Fed.R.Crim.P. 52(a) harmless error analysis.' " United States v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994). Under this court's interpretation of Fed.R.Crim.P. 52(a), "[a]n error is harmless if the reviewing court, after reviewing the entire record, determines that no substantial rights of the defendant were affected, and that the error did not influence or had only a very slight influence on the verdict." United States v. Wilcox, 50 F.3d 600, 603 (8th Cir.1995) (citation omitted). We will reverse the conviction "only if the jury may have been substantially swayed by improperly-admitted evidence...." Id. (citations omitted).

Iron Cloud was accused of involuntary manslaughter under 18 U.S.C. § 1153 and 1112. The indictment was based upon the allegation that Iron Cloud operated his motor vehicle in a "grossly negligent manner" with actual knowledge that his conduct was a threat to the lives of others or with actual knowledge that would reasonably enable him to foresee the danger to others. The government sought to prove this allegation primarily by showing that Iron Cloud was intoxicated, and heavily relied on the PBT results to do so. We find that the jury may have been improperly influenced by this admitted evidence.

The admission of the PBT results becomes significant considering the government's primary contentions. The government used the PBT results in two ways. First, the government used the results to establish that Iron Cloud was intoxicated. Without the PBT results, Iron Cloud might have successfully disputed the level of his intoxication. The PBT was taken only 25 minutes after the accident and registered a blood-alcohol level of .14 percent, well over the legal limit. Without that level, as the defense expert testified, based on the blood-alcohol reading of Iron Cloud taken some five hours after the accident, Iron Cloud's blood-alcohol level at the time of the accident could have been argued to be between .7 and .8 percent, which is...