









2014 VT 114










State v. Wilt (2013-119)
 
2014 VT 114
 
[Filed 24-Oct-2014]
 
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@state.vt.us 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.
 
 



2014 VT 114



 



No. 2013-119



 



State of Vermont


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Bennington
  Unit,




 


Criminal Division




 


 




Maureen Wilt


May Term, 2014




 


 




 


 




Cortland
  Corsones, J.




 



Alexander Burke, Bennington County Deputy State’s Attorney,
Bennington, for
  Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, Joshua S. O’Hara,
Appellate Defender, and 
  Trevor Kinahan, Legal
Intern, Montpelier, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ. [1]
 
 
¶ 1.            
SKOGLUND, J.   Defendant Maureen Wilt appeals a
conviction for driving under the influence (DUI) on grounds that the trial
court improperly allowed a police trooper to testify about the results of a
field-sobriety test he administered to defendant.  We affirm defendant’s
conviction.  
¶ 2.            
Defendant was arrested on December 26, 2011, while a passenger in her
own car, on grounds that she had been seen driving earlier in the night when
intoxicated.  According to testimony by defendant’s neighbor, he came over
to defendant’s house to cook a post-holiday dinner with her in the late
afternoon.  It took well over an hour to prepare the meal, and by
neighbor’s estimation they ate around 6:00 p.m.  During his visit,
neighbor observed defendant having two or three five-ounce glasses of blush
wine.  After dinner, neighbor returned to his house, and did not see
defendant again until she showed up at his door, injured, approximately an hour
and a half later.  
¶ 3.            
In the meantime, an acquaintance of defendant, Mr. Rondeau,
testified that he received a call from defendant around 8:00 p.m., asking him
if she could come over.  He said no, telling her that he had to get up
early and that he was going to unplug the phone and lock the doors.  Mr. Rondeau estimated that the call lasted twenty
minutes.  Shortly thereafter, he heard someone loudly knocking on the
front door and a window.  After looking outside and seeing defendant’s car
in his driveway, Mr. Rondeau waited about ten
minutes, hoping defendant would leave.  When her car remained in the
driveway, he checked the garage, heard a noise in the cellar, and then found
defendant lying at the bottom of the cellar stairs, apparently unconscious and
bleeding from her head.  Mr. Rondeau instructed
his son to call 911, but before the son was able to, defendant got up, walked
to her car and drove away, wearing only one shoe.  Mr. Rondeau
estimated that defendant left around 8:40 p.m. and testified that that her
driving “seemed fine”—defendant backed up on the correct side of the road and
then drove straight away from the house.  
¶ 4.            
Defendant then arrived on neighbor’s doorstep at close to 9:00 p.m.,
very upset and with blood running down her face.  Neighbor invited
defendant in and assessed her injury, locating a wide gash near defendant’s
forehead that was bleeding profusely.  Neighbor also observed that
defendant’s eyes “were very glassy” and she had a “faraway look in her eyes,”
which he feared was an indication that she might pass out.  Neighbor got
his shoes and coat on to take defendant to the hospital, and as he was doing
so, he saw defendant drink from a bottle of 100-proof Southern Comfort
alcohol.  Neighbor estimated that the level in the bottle had “gone down
about an inch.”  Based on his thirty years of bartending experience, he
estimated defendant drank two ounces of alcohol.  At that point, neighbor
grabbed defendant, helped her into her car, and started toward the
hospital.  Not far down the road, police—who had been alerted to look for
defendant by Mr. Rondeau—pulled the car over.
 
¶ 5.            
Two state troopers began asking questions of both neighbor and
defendant.  The trooper speaking with defendant observed blood matted in
her hair and smelled intoxicants coming from the car and defendant, who
admitted she drank wine with dinner.  The trooper also noted that defendant
had difficulty getting out of the car and walking unassisted, although he also
noted she was not wearing shoes.  He then asked defendant to complete
three standardized field-sobriety exercises: a horizontal-gaze nystagmus (HGN)
test, a walk-and-turn test, and a one-leg-stand test.  The trooper’s
assessment was that defendant failed all three tests, and based on these test
results, the odor of intoxicants, and the difficulty in walking unassisted, he
concluded that defendant was intoxicated.  Defendant was eventually
transported to the hospital, where her blood was drawn.  At the time of
the sample, defendant’s blood-alcohol concentration (BAC) was .160.  
¶ 6.            
A jury trial was held in which neighbor, Mr. Rondeau,
the two troopers, and blood-alcohol experts for both the State and defendant
testified.  Both of the experts addressed defendant’s blood sample result
and, using relation-back reasoning, estimated what defendant’s BAC would have
been at the time she was alleged to have driven intoxicated on the night in
question.  As both experts testified, the accuracy of the relation-back
BAC estimate was heavily dependent on how much alcohol defendant consumed at
neighbor’s house between the time she drove and the time she was
arrested.  The State’s expert testified that if defendant had two ounces
at neighbor’s house, her BAC at the time of operation would have been .136, but
if she had four ounces her BAC would have been closer to .068, which is below
the legal limit.  Defendant’s expert corroborated these estimates.  
¶ 7.            
On appeal, defendant’s two claims of evidentiary error both stem from
the testimony of the police trooper who conducted the field-sobriety exercises,
and specifically regard the administration and results of the HGN test. 
Defendant first argues that the trial court erred in allowing the trooper to
offer his assessment of defendant’s BAC based on the results of the HGN
test.  Similarly, defendant argues that it was also error for the court to
allow the trooper to testify about the HGN test after he admitted that he did
not strictly follow the standard procedure for a subject with an obvious head
wound.  Defendant asserts that without the trooper’s HGN testimony, there
is no link between defendant’s BAC level and her level of impairment at the
time of operation, and therefore the jury would not have convicted her. 
We disagree. 
¶ 8.            
Before addressing each argument in turn, we note that this Court reviews
the question of whether evidence was properly admitted deferentially, reversing
only for an abuse of the court’s discretion.  State
v. Fuller, 168 Vt. 396, 404, 721 A.2d 475, 481 (1998) (“The admissibility
of evidence is addressed to the discretion of the trial judge, and this Court
will reverse only if the trial judge has abused that discretion.” (citation omitted)).  
¶ 9.            
Turning to defendant’s first claim, the State concedes in its brief that
it was error for the court to allow the trooper to estimate that defendant’s
BAC was “over a .10” based on defendant’s performance on the HGN test.[2]  Although both parties acknowledge
that the trooper was unqualified to offer such a quantitative assessment, there
is a dispute as to whether this error should be analyzed under the plain or
harmless error standards.  The State argues for a plain error analysis,
contending that defendant did not object to the trooper’s estimation during his
testimony, and therefore failed to preserve an objection on appeal.  See V.R.Cr.P. 52 (“Plain errors . . . may
be noticed although they were not brought to the attention of the court.”);
V.R.E. 103 (stating the objections to rulings on evidence must be timely and
specific or constitute plain error); see also State v. Beattie, 157 Vt.
162, 169, 596 A.2d 919, 923 (1991) (noting that where defendant failed to
object to testimony, review is limited to plain error).  Defendant
maintains that the objection was preserved and therefore the harmless error
rule applies.  Ultimately, it matters little whether the objection was
preserved, as we conclude that any error in the trooper’s estimation of
defendant’s BAC was harmless, and therefore not grounds for reversal.  
¶ 10.         Under
Vermont’s Rule of Criminal Procedure 52, “[a]ny error . . . which does not affect
substantial rights shall be disregarded,” and only requires reversal where this
Court cannot say beyond a reasonable doubt that the jury would have returned
the same verdict.  State v. Brooks, 2013 VT 27, ¶ 27, 193 Vt.
461, 70 A.3d 1014.  The two most important
factors we look at in this determination are 1) the strength of the State’s
case without the admitted evidence, and 2) the strength of the admitted
evidence itself.  Id.  Here, the trooper’s BAC estimate
carried very little weight on its own.  It was clear that it was only an estimation, and the jury subsequently heard expert
testimony on defendant’s actual BAC from the blood sample, which was
higher than the trooper guessed.  The State’s case that defendant drove
while she was intoxicated relied on the actual BAC and the expert’s
relation-back testimony to show that defendant was intoxicated at the time of
operation, not on the trooper’s estimate.  Thus, whatever error was
carried to the jury in the trooper’s statements about defendant’s potential BAC
based on the HGN test was cured by the expert testimony of defendant’s actual
BAC.  In other words, the trooper’s BAC testimony was cumulative evidence
of defendant’s intoxication at the time of arrest, and not what ultimately
substantiated that defendant drove while intoxicated; rather, her blood sample
BAC was what allowed the jury to convict defendant.  See State v. Hunt,
150 Vt. 483, 494, 555 A.2d 369, 376 (1988) (holding error harmless where
evidence admitted was cumulative).  The error was therefore harmless.
¶ 11.         We
reach the same conclusion on defendant’s second claim of error.  Defendant
argues that the court should have excluded the trooper’s testimony of the HGN
test results after he admitted that he did not alter his administration of the
test to try to rule out the possibility that defendant’s head injury was
causing the nystagmus he observed.  Following this admission, the defense
attorney asked the court to preclude any further testimony from the trooper on
the HGN test.  The court denied the request, stating that it was satisfied
that the trooper was qualified to administer the test and that defendant’s
objection went to the weight of the evidence, on which defendant was free to
cross-examine the trooper in front of the jury.  
¶ 12.         Defendant’s
attorney then cross-examined the trooper about the head injury issue, and the
trooper again admitted that he did not follow the specific protocol for
administering the test to someone with a head injury, as outlined in the
training manual.  As a result, the jury was well-aware that the HGN test
results, such as they were, were potentially unreliable.  The fact that
the results may not have firmly substantiated defendant’s intoxicated state
does not require reversal, however.  This court has “long recognized that
judging the credibility of witness testimony is a duty left to the jury.” 
State v. Couture, 169 Vt. 222, 227, 734 A.2d 524, 528
(1999).  Moreover, the trooper’s testimony on the HGN test was by
no means the “key” link between defendant’s alcohol consumption and her
“alleged impairment at the time of operation,” as defendant contends. 
Rather, the key link was again the State’s expert testimony relating-back
defendant’s .160 BAC to the time she allegedly drove her vehicle while
intoxicated.  
¶ 13.         Defendant
further claims that because the testimony by the State’s expert was
contradicted by defendant’s expert, the HGN testimony is all the more
vital.  We cannot agree.  The ultimate point of contention in this
case is how much alcohol defendant drank at neighbor’s house because the
relation-back to defendant’s illegal BAC at the time of operation relies
entirely on this point.  Therefore, the critical information is not the
HGN testimony, but the experts’ testimony about relation-back amounts and
neighbor’s estimate of how much Southern Comfort defendant drank at his
house.  
¶ 14.         Even
assuming arguendo that it was error for the court to allow the trooper to
testify to potentially unreliable HGN test results, any error would be harmless
because the HGN testimony proved nothing about defendant’s condition that was
not established by her BAC at the time of the blood sample.  Defendant’s
reliance on the trooper’s HGN testimony as the key to her conviction is
entirely misplaced; it was the blood sample that confirmed her BAC, and the
relation-back testimony based on neighbor’s estimate that allowed the jury to
find she drove while over the legal limit.
¶ 15.         Admittedly,
the facts presented in this case are unusual for a DUI charge in that police
never observed defendant driving, and she was arrested while an intoxicated
passenger who had consumed a disputed amount of alcohol between the time of
operation and arrest.  The State’s expert admitted that the relation-back
evidence, reliant as it is on a timeline pieced together by rough estimates
from the individuals who testified, was not exact and she could not say for
sure what defendant’s BAC was at the time she drove her car.  Nonetheless,
defendant has not raised a challenge to the sufficiency of the relation-back
evidence; rather, her appeal is limited to the two narrow evidentiary claims
regarding the trooper’s HGN testimony addressed above.  For the reasons
stated, we affirm defendant’s conviction. 
Affirmed.

 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 
 
¶ 16.         ROBINSON, J., dissenting.   The
State and defendant both agree that the trooper in this case was unqualified to
speculate that defendant’s blood-alcohol level was over .10 at the time he
administered the horizontal-gaze nystagmus (HGN) test.  And the majority
accepts for the sake of discussion that it was error for the court to allow the
trooper to testify to potentially unreliable HGN test results on account of the
trooper’s admitted failure to follow the appropriate protocol for administering
the test to someone with a head injury.  Notwithstanding these two
errors—one conceded by the State and one assumed for the sake of argument—the
majority concludes that the errors were harmless and thus affirms defendant’s
conviction.  In doing so, I believe that the majority misapplies the
concept of “harmless error” and conducts its own analysis of the evidence,
rather than considering whether, beyond a reasonable doubt, the jury’s verdict
was unaffected by the improperly admitted evidence.
¶ 17.         I
note at the outset that defendant’s objections to the trooper’s testimony
extend far beyond the trooper’s purported quantification of defendant’s BAC on
the basis of the HGN test, and far beyond the use of the test even though the
trooper failed to evaluate the impact of defendant’s head injury, as required
by the applicable protocol.  Defendant’s deeper argument is that, while
the trooper was competent to explain what protocols he followed in the field,
how he administered the test, and what he observed while performing the test,
he was not competent to interpret the results of the HGN test for the jury,
including testifying that certain observations in the testing are indicative of
intoxication.  That’s because, defendant argues, in contrast to the
walk-and-turn and one-leg-stand field-dexterity exercises, the link between the
jerks in a subject’s eyeball as he or she follows a moving finger across the
horizon and his or her intoxication is based on scientific principles that lay
jurors generally do not understand.  Defendant argues that the HGN test is
a scientific technique requiring a scientific foundation for admission, and
cites decisions from twenty states supporting this view.  I infer that the
majority’s harmless-error analysis thus extends beyond the trooper’s testimony
as to the specific BAC he speculated defendant had at the time of the HGN test
to the trooper’s testimony concerning the HGN test in its entirety.[3]  
¶ 18.         Under
the harmless-error standard,[4] we may find an error harmless only if we
can state a belief that the error was harmless beyond a reasonable doubt. 
State v. Carter, 164 Vt. 545, 553-57, 674 A.2d 1258,
1263-66 (1996).  An error in admitting evidence cannot be
considered harmless if “there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.”  Id. at
553, 674 A.2d at 1264 (quoting Fahy v. Connecticut, 375
U.S. 85, 86-87 (1963)).  The burden is on “the beneficiary of the
error to prove it was not harmful,” id. at
553-54, 674 A.2d at 1264, and “we must approach harmless error arguments
cautiously,” id. at 556, 674 A.2d at 1266.
¶ 19.         There
is no dispute in this case that defendant drank two or three five-ounce glasses
of wine while eating a large meal with a neighbor over some period of time prior
to 7:00 p.m. on the night in question.  That evidence in itself is not
particularly damning.  The neighbor, a former bartender, confirmed that he
did not observe anything prior to his departure around 7:00 p.m. that indicated
to him that defendant was intoxicated.  There is no dispute that
defendant drove her car around 8:40 p.m.  There is no dispute that around
9:00 p.m., after she drove, but shortly before she was subjected
to field-sobriety tests, defendant drank from a bottle of 100-proof Southern
Comfort, although the amount that she drank at that time is in dispute.   And
there is no dispute that defendant’s BAC, as measured by a blood test, was .160
at 11:35 p.m.  The critical question for the jury was whether around 8:40
p.m., when she last operated a motor vehicle, and before she consumed the
liquor, defendant was intoxicated.
¶ 20.         Nobody
saw defendant when she was actually driving.  The jury was left to infer
from defendant’s conduct before and after driving, and from expert testimony of
her likely level of intoxication, what her condition was at the time she
drove.  The value of most of that evidence is greatly compromised by her
consumption of the undetermined amount of liquor after she drove. 
For example, the trooper’s testimony that he smelled the odor of intoxicants on
defendant is of little import, since defendant undisputedly drank at least two
ounces of Southern Comfort shortly before the trooper pulled over the car in
which she was a passenger. 
¶ 21.         In
this context, the jury heard from two experts who analyzed her BAC as of 11:35
p.m., and, using “relation-back” calculations, opined as to her likely level of
intoxication as of 8:40 p.m.  They made disparate assumptions in their
calculations based on conflicting evidence of how much Southern Comfort
defendant had consumed.  The State’s expert assumed that defendant had
consumed two ounces—an assumption supported by neighbor’s estimate that the
one-inch drop in the level that he observed in the bottle corresponded to two
ounces.  Based on this expert’s testimony, defendant’s BAC at the time of
operation would have been .136—a level that would support a finding of driving
under the influence.  That expert conceded that if defendant had consumed
four ounces of liquor at neighbor’s house after she drove, her BAC at the time
of operation would have been closer to .068—below the legal limit.
¶ 22.         Defendant’s
expert measured how many ounces are contained in an inch of liquor in a
750-milliliter, or a fifth, Southern Comfort bottle.  She testified that a
one-inch drop in the liquor in that bottle corresponds to four or five ounces,
as opposed to neighbor’s two-ounce estimate.  Defendant’s expert thus
assumed that defendant had consumed four or five ounces after she drove, and
calculated a likely BAC at the time of operation as .067 or .033, respectively.

¶ 23.         The
trooper who pulled over the car in which defendant was a passenger was also
allowed to testify about the field-sobriety tests that he administered to defendant
shortly after the time she last drove her car. The trooper testified that he
had been involved in approximately forty to fifty DUI investigations, and had
administered the standardized field-sobriety exercises approximately one
hundred times.  He described completing two week-long trainings at police
academies focused on administering the field-sobriety exercises, and he
provided a detailed explanation of the various components, including the HGN
test.  In particular, he explained that for the HGN test, he asks the
subject to follow his fingertip with his or her eyes as he moves it from about
twelve to fifteen inches from the bridge of their nose to the side.  He
explained that a nystagmus, or involuntary jerkiness
of the eyes, before the eyes hit a 45-degree angle indicates a BAC level above
.10.  He also described six clues evaluated in the test, and said that if
four or more clues are present, the subject fails the test, implying that the
subject is intoxicated.  Based on his administration of the test to
defendant, he testified that she was impaired, and “that she was over a
.10.”  These statements purportedly relating a subject’s performance on
the test to a specific BAC, and purporting to do so specifically with respect
to defendant, are the ones the State concedes were improper.
¶ 24.         The
issue before this Court is not whether we would have, as factfinders,
considered the trooper’s testimony to be superfluous, or whether we would have
concluded that defendant was intoxicated at the time that she drove even
without the testimony.  It isn’t whether a juror could have viewed
the testimony in that way.  The question is whether, given the record as a
whole, we can conclude beyond a reasonable doubt that there
is no “reasonable possibility that the evidence complained of might have
contributed to the conviction.”  Carter, 164 Vt. at 553, 674 A.2d
at 1264 (quoting Fahy, 375 U.S. at
86-87).  I cannot fathom how the majority can answer that question
in the affirmative.
¶ 25.         The majority
rightly notes that the jury was likely forced to rely on estimates of the
defendant’s BAC at the time of operation to decide the case, since it had no
testimony of direct observations of defendant while she was driving, and before
she drank the Southern Comfort.  But the suggestion that there is no
reasonable possibility that the trooper’s testimony affected the jury’s
analysis is impossible to square with this record.  The jury was faced
with disparate expert opinions about defendant’s level of intoxication when she
was last driving, driven in large part by divergent assumptions concerning how
much she drank.  The amount she drank was itself unknowable, and the jury
heard competing estimates of the amount from different witnesses.  In the
face of this unknown, the jury also heard testimony from a state trooper that
when he administered the field-sobriety tests—very shortly after she drank the
liquor—she had a BAC of at least .10.  This testimony concerned her
supposed BAC at an instant very close in time to her last driving.  It
didn’t rely on relation-back analysis, and a jury could reasonably conclude
that it did not fully reflect the liquor she had consumed only moments
before.  It is entirely consistent with the State’s expert’s relation-back
testimony and associated assumptions, and is in conflict with defendant’s
expert’s opinion.  And it came cloaked with a veneer of specialized
training and knowledge from a trained law enforcement officer who has
administered the test “approximately one hundred times.”  
¶ 26.         The
majority postulates that the jurors credited the neighbor’s estimate of how
much liquor defendant drank after she drove, and thus credited the associated
relation-back testimony, such that the trooper’s testimony was irrelevant to
their calculus.  That’s certainly one possible story of what happened in
the jury room, or in individual jurors’ minds. But it seems at least as
plausible that in trying to figure out how much defendant actually drank and
defendant’s level of intoxication when she last drove, at least some jurors
were influenced by evidence from an officer of the law that effectively
contradicted the testimony of defendant’s expert.  The officer’s testimony
was not tangential to the case.  In its closing argument, the State
specifically pointed to the HGN test, the trooper’s training and experience
with the test, and his conclusion that the test showed that defendant was
impaired by intoxicants.  This was an important piece of evidence the
State relied upon in making its case.  I cannot understand how the
majority can conclude that there is “no reasonable possibility” that this
testimony might have contributed to the conviction.



 


 


 




 


 


 




 


 


 




 


 


Associate Justice



 
 









[1]
 Justice Crawford was present for oral argument, but did not participate
in this decision.


[2] 
According to the field-sobriety testing manual used by the Vermont Criminal
Justice Training Council, the HGN test is designed to test for an involuntary
jerking of the eyes (nystagmus) as they move to the side that can be caused by
alcohol and other drugs.  See State v. Blouin,
168 Vt. 119, 120 n.1, 716 A.2d 826, 827 n.1 (1998) (“The HGN test involves
moving an object such as a pen across the subject’s field of vision to observe
the manner in which the eyes follow the object. . . . [A]n
abundance of eye twitching indicates possible intoxication.”).  The
trooper testified that he was looking for six clues throughout the HGN
exercise, that the presence of four or more clues indicates failure of the
test, and that he observed all six in defendant.  It was from this result
that the trooper estimated defendant’s BAC to be .10.  


[3] 
Because I conclude that reversal is required on the basis of the more specific
testimony purporting to quantify defendant’s BAC, which the State concedes was
improper, I do not address defendant’s broader objection to the court’s
admission of the trooper’s testimony concerning the interpretation of the HGN
test.  Defendant raises a substantial issue that merits more extensive
consideration in an appropriate case.  Likewise, I do not address the
merits of defendant’s argument, accepted by the majority for the sake of discussion, that it was error for the court to allow the
trooper to testify to potentially unreliable HGN test results on account of the
trooper’s admitted failure to follow the appropriate protocol for administering
the test to someone with a head injury.  As set forth above, I strongly
reject the notion that if this testimony was admitted in error, the error was
harmless.  But because I believe the trooper’s purported quantification of
the BAC level in this case was itself sufficient to support reversal, I need
not evaluate the merits of this claim.
 


[4] 
Because defendant preserved his objections to the trooper’s testimony by
conducting voir dire, and arguing to the court that
the trooper had no ability to explain the scientific principles underlying his
testimony concerning the HGN test, I conclude that this is not a plain error
review case.  



