Zimmerman v. State
| Decision Date | 19 February 1997 |
| Docket Number | No. 130,1996,130 |
| Citation | 693 A.2d 311 |
| Parties | Kevin L. ZIMMERMAN, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | United States State Supreme Court of Delaware |
Upon appeal from the Superior Court. REVERSED and REMANDED.
Bernard J. O'Donnell, Assistant Public Defender, Wilmington, for Appellant.
John Williams, Deputy Attorney General, Department of Justice, Dover, for Appellee.
Before VEASEY, C.J., and WALSH and BERGER, JJ.
In this consolidated appeal of sentences imposed on two convictions of the defendant for driving under the influence of alcohol ("DUI"), we consider first the proper standard for admitting evidence of "horizontal gaze nystagmus" ("HGN") 1 tests in prosecutions for driving under the influence of alcohol or drugs. The HGN test is scientific in nature and the State must establish a proper foundation before evidence about the test is admitted. Because the trial court admitted the results of an HGN test without a proper scientific foundation in the first conviction, we hold that the court abused its discretion. We find that the error in this case was prejudicial. Accordingly, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.
The second appeal raises the issue of the proper meaning of the term "offense" as it is used in 21 Del.C. § 4177(d), the sentencing statute for driving while under the influence. In view of our reversal of the first conviction, we need not necessarily address the issue raised in the second appeal. Nevertheless, for the future guidance of trial courts, and because the issue may arise in later proceedings in this case, we take this opportunity to clarify the meaning of the term. We hold that only when an individual is convicted of a violation of 21 Del.C. § 4177(a), where such violation occurred after three prior convictions under section 4177(a), may he or she be sentenced as a fourth time offender under section 4177(d)(4).
On June 25, 1995, Kevin L. Zimmerman was arrested for driving under the influence. He was confronted in the parking lot of a bank, after using the MAC machine, because two women reported to Officer Peter B. Sawyer that the white van (allegedly driven by Zimmerman) at the MAC machine almost hit someone. At the time, Sawyer detected a strong odor of alcohol from Zimmerman and noted that Zimmerman had bloodshot, glassy, red eyes. Zimmerman refused to take two field sobriety tests (reciting the alphabet backwards and counting backwards), which are divided attention tests. Zimmerman alleged that he had a "right not to do it." He did respond to a third divided attention test, a request to provide his birthday. But he also provided his social security number, without prompting from Sawyer. Zimmerman also refused to perform the one - leg stand test, the finger-to-nose test and a PBT test at the scene.
Sawyer did, however, administer a horizontal gaze nystagmus ("HGN") test using a pen. The test checks for involuntary eye movements using six "clues." Zimmerman failed the test in all respects. After being arrested, Zimmerman stumbled into the police station, dropped the phone book twice, and dialed the same number twice, asking for the same person. Zimmerman refused to take an intoxilyzer test. At the time of his arrest, he claimed that he was taking the prescription drug Xanax, to reduce his anxiety.
On August 26, 1995, Zimmerman was arrested again and charged with driving under the influence. A chemical analysis of Zimmerman's blood revealed a blood alcohol content ("BAC") of 0.22%, well over the legal limit of 0.10%. On December 13, 1995, Zimmerman was convicted of the earlier, June 25, 1995, incident after a bench trial. On December 28, 1995, after a jury trial, Zimmerman was convicted of the later, August 26, 1995, driving under the influence charge.
Zimmerman was sentenced on February 23, 1996 for both offenses. For the conviction for the June 25, 1995 incident, Zimmerman was sentenced as a third-time offender. For the conviction for the August 26, 1995 incident, Zimmerman was sentenced as a fourth-time offender. Zimmerman's prior driving under the influence arrests occurred on November 18, 1991 and December 2, 1993.
Zimmerman filed a consolidated appeal on these convictions. For the June 25, 1995 incident, Zimmerman alleges that the Superior Court prejudicially erred by considering the HGN test without sufficient scientific medical expert foundation. For the August 26, 1995 incident, he alleges that the Superior Court plainly erred when it imposed mandatory minimum penalties for a "fourth" offense of driving under the influence because, at the time of the commission of the alleged "fourth" offense, Zimmerman had not been convicted of the predicate third offense for the purpose of the mandated statutorily enhanced penalty.
Zimmerman argues that the Superior Court abused its discretion in the non-jury trial of the June 25, 1995 DUI charge by permitting the arresting officer, Sawyer, to testify about the results of the HGN test administered to Zimmerman, without requiring a proper foundation. This Court reviews a trial court's evidentiary rulings for an abuse of discretion. 2
At trial, the defense objection was: "I object, unless the State can establish this as an accepted test, that this test has been accepted in the State of Delaware as a proper test for the detection of intoxication." 3 The trial judge stated:
I will listen to the officer's testimony concerning it and determine whether or not it has relevance. There is no list of tests that need to be accepted. We are attempting to determine what the defendant's condition was at the time of the incident and whether this has relevance to the trier of fact depends on an explanation of the officer administering it. 4
Zimmerman argues that the Superior Court erroneously disregarded the evidentiary requirement that the proponent of "scientific, technical or other specialized knowledge" must demonstrate its general acceptance in the scientific community. 5
At the conclusion of all of the evidence, including Zimmerman's own testimony in which he admitted drinking one or two beers the afternoon of June 25, 1995 and driving that evening, the trial judge found the defendant guilty of driving under the influence. 6 Because there were no chemical tests performed to determine Zimmerman's blood alcohol content, the trial judge was required to evaluate critically the arresting officer's observations of Zimmerman. Regarding the HGN test, the judge stated:
... and finally, the test ..., I have to admit I can understand the standard by which the officer applied it. I am not exactly sure of its significance, and it would seem to me a purely objective test, although with perhaps some additional evidence, I might see it as subjective. In any case, the officer, having administered a test in which he had been instructed was informative, found that this defendant failed it in every conceivable way. I certainly would not base a conviction on that test alone, but then, again, it becomes one of the numerous factors involved here. 7
In Ruthardt, decided after the case sub judice, the Superior Court recognized the scientific validity of HGN test evidence both for the purposes of establishing probable cause and as substantive evidence of intoxication. 8 The Superior Court's opinion in Ruthardt is well reasoned. Accordingly, we adopt its scientific analysis and expert qualification portions as the appropriate standard for accepting HGN evidence. 9 Because the HGN test is scientific, a proper foundation for testimony about it must be laid. 10
Therefore, 11 This foundation is necessary to "balance the testimony of the arresting officer, whose bias toward supporting his arrest could cause an inappropriate advocation of the reliability of the test that is unsupported by his training or experience." 12 Because there are problems with the "physical application of the HGN test and a risk of misdiagnosis because of other causes of nystagmus," this foundation is necessary to allow the jury to give the evidence its proper weight. 13 But even after a proper foundation is laid, HGN testing is not admissible "to independently and conclusively establish that a defendant's blood alcohol content equaled or exceeded a specific concentration...." 14
At trial, Officer Sawyer did not testify as to the underlying principles supporting HGN. He testified merely that he was trained to administer the test. Sawyer did not testify about the standards set forth in the NHTSA training manual or that he followed those standards, including the standards for scoring. 15 Although the Superior Court indicated that it understood the "standard" by which the officer applied the test, it also indicated that it was unsure of its significance. Because the Superior Court admitted the evidence without a proper foundation, it was an abuse of discretion to admit the HGN results into evidence to establish guilt. Even if the court found that the evidence was otherwise relevant and probative, the prejudice to Zimmerman, caused by the trier of fact potentially according the evidence too much weight, outweighed its probative value.
"An error in admitting evidence may be deemed 'harmless' when 'the evidence exclusive of the improperly admitted evidence is sufficient to sustain a conviction.' " 16 Even when the "evidentiary error is of a constitutional magnitude, the convictions may be sustained if the error is 'harmless beyond a reasonable doubt.' " 17
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