No. 01-722
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 200
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GILBERT RUSSETTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Fort Benton, Montana
For Respondent:
Mike McGrath, Montana Attorney General, Cregg W. Coughlin, Assistant
Montana Attorney General, Helena, Montana; David G. Rice, Hill County
Attorney, Havre, Montana
Submitted on Briefs: April 18, 2002
Decided: September 5, 2002
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Appellant Gilbert Russette was charged by complaint with
operation of a vehicle with an alcohol concentration of .10 or
more, a misdemeanor, in the Twelfth Judicial District Court, Hill
County. Russette sought to introduce expert testimony at trial
challenging the validity of a blood alcohol analysis performed by
an Intoxilizer 5000. The District Court did not allow Russette’s
expert to testify and a jury subsequently convicted Russette of the
offense. Russette appeals from the District Court’s judgment, in
part, on the grounds that it excluded the pertinent testimony in
violation of the Montana Rules of Evidence. We affirm.
¶2 On appeal, Russette presents three issues for review.
However, for the reasons discussed below, we will address only the
question of whether the District Court abused its discretion when
it refused to allow Russette’s expert to testify at trial.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 At approximately 1:00 a.m. on September 10, 2000, Highway
Patrol Officer Roger Hinckley observed a speeding vehicle, driven
by Russette, and initiated a traffic stop. During the course of
the stop, Officer Hinckley detected an odor of alcohol emanating
from Russette’s person. Russette admitted to consuming three beers
within the preceding hour. Thus, Officer Hinckley proceeded to
administer standardized field sobriety tests, i.e., the walk-and-
turn test, the horizontal gaze nystagmus test, the one-leg-stand
test, and the portable breath test. Based on the results of these
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tests, Officer Hinckley placed Russette under arrest for driving
under the influence of alcohol, a misdemeanor, in violation of
§ 61-8-401, MCA, and transported Russette to the Hill County
Detention Center. At the Detention Center, Russette again
performed the field sobriety tests and provided one breath sample
for analysis by an Intoxilizer 5000. The Intoxilizer 5000 reported
that Russette had a blood alcohol concentration of .176.
¶4 Ultimately, Russette pled not guilty in the Justice Court to
driving under the influence of alcohol and the case proceeded to a
non-jury trial. On March 21, 2001, following the non-jury trial,
the Justice Court found Russette guilty of “driving with a BAC of
.10 or greater,” a misdemeanor, in violation of § 61-8-406, MCA.
On March 28, 2001, Russette appealed the Justice Court’s judgment
to the Twelfth Judicial District Court and requested a trial by
jury on the matter.
¶5 On June 25, 2001, Russette notified the District Court that he
intended to call Robert Christek as an expert witness. Christek, a
chemistry professor at Montana State University Northern, was
expected to testify that the Intoxilizer 5000 analysis constituted
a “scientific test.” While Christek admitted that he had no
specific knowledge regarding the operation of the Intoxilizer 5000,
he intended to testify that a scientific test is not valid or
reliable until at least two tests have been performed pursuant to
the principles of the “scientific method.” The State argued that
Christek’s anticipated testimony was inadmissible because he had no
specific knowledge regarding the Intoxilizer 5000 and, thus, his
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testimony would not help the jury to understand the evidence or
determine a fact in issue. The District Court agreed with the
State and, consequently, prohibited Christek from testifying.
¶6 On July 25, 2001, a jury found Russette guilty of “driving a
motor vehicle on the ways of this state with a blood alcohol
content of 0.10 or more,” a misdemeanor, in violation of § 61-8-
406, MCA. The District Court sentenced Russette to ten days in the
Hill County Jail, all suspended with conditions, fined Russette
$320.00, and suspended Russette’s drivers’ license. On August 3,
2001, Russette filed a notice of appeal from the District Court’s
sentence and judgment. Russette contends that the District Court
erroneously prohibited Christek from testifying, in violation of
Rule 702, M.R.Evid., and his constitutional rights to due process
and to call witnesses on his own behalf.
STANDARD OF REVIEW
¶7 The admissibility of evidence is left to the discretion of the district court judge. State
v. Lancione, 1998 MT 84, ¶ 20, 288 Mont. 228, ¶ 20, 956 P.2d 1358, ¶ 20. This Court
reviews a district court’s evidentiary ruling to determine whether the court abused its
discretion. Lancione, ¶ 20. An abuse of discretion occurs when a district court acts
arbitrarily without conscientious judgment or exceeds the bounds of reason. Ingraham v.
State (1997), 284 Mont. 481, 485, 945 P.2d 19, 22.
DISCUSSION
¶8 Did the District Court abuse its discretion when it refused to
allow Russette’s expert to testify at trial?
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¶9 Russette argues that as he “stood trial for driving with a
blood alcohol level of .10 or greater, the central issue was
whether the scientific test which resulted in an alleged blood
alcohol level of .176 was valid.” Russette insists that Christek
had specialized experience regarding the validity of scientific
tests. Russette sought to inform the jury, through Christek’s
testimony, that when conducting a scientific test, one must perform
at least two analyses to obtain a scientifically valid result.
Russette theorized that the result obtained from the Intoxilizer
5000 was not scientifically valid as the State administered only
one test. Russette admits that Christek possessed merely a
“general understanding” of the Intoxilizer 5000 and “doesn’t know
the interworkings of it.” However, Russette contends that
Christek’s lack of familiarity with the Intoxilizer 5000 should
have affected the weight and credibility of his testimony and not
the admissibility of it.
¶10 As indicated above, Russette attempted to call Christek as an
expert witness at trial and the State objected. Accordingly, the
District Court requested an offer of proof as to Christek’s
anticipated testimony. After listening to arguments from each
party, the District Court concluded:
The evidence is submitted under Rule, Chapter 7, probably
Rule 703, that this gentleman is an expert witness. He’s
not here as a layman, and he is to give an opinion
concerning the scientific method. The only relevance to
this gentleman’s opinion is [to] create an argument,
which is you can create arguments by use of experts that
the test was improperly done and that the results of said
test are improper.
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In order to do that, the witness must have some
foundation that this test was done improperly, that he
has some familiarity with this machine, that he has some
knowledge whereof he speaks, that he has knowledge of the
facts that are in issue of this case, and that the test
in this instance, in the opinion of the witness, based
upon his knowledge, is either questionable or invalid and
in his opinion the reliance of the jury on the test
should be diminished because this is what we’re talking
about.
. . . .
[Y]ou are trying to establish that the State isn’t doing
this right, for reasons that you’ve stated on the record,
and in order to do that, you have to have somebody that
knows whereof they speak that they are not doing this
right, they have to know something about this machine and
have to be able to, with the proper foundation, say this
isn’t a good test, and your witness can’t do that.
. . . So I exclude the witness based upon the offer of
proof.
¶11 Rule 702, M.R.Evid., governs the admissibility of expert
testimony and provides as follows:
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.
The test for admissibility of expert testimony is whether the
matter is sufficiently beyond common experience that the opinion of
the expert will assist the trier of fact to understand the evidence
or to determine a fact in issue. Hulse v. State, Dept. of Justice,
1998 MT 108, ¶ 48, 289 Mont. 1, ¶ 48, 961 P.2d 75, ¶ 48. Hence, in
conducting an admissibility analysis, a district court must
determine: (1) whether the subject matter of the testimony is one
that requires expert testimony; and (2) whether the particular
witness is qualified as an expert to give an opinion in the
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particular area on which he or she proposes to testify. State v.
Southern, 1999 MT 94, ¶ 49, 294 Mont. 225, ¶ 49, 980 P.2d 3, ¶ 49.
Rule 702, M.R.Evid., implicitly requires a foundation showing that
the expert has special training or education and adequate knowledge
on which to base an opinion. Southern, ¶ 49.
¶12 The District Court’s oral admonition contained no reference to
the first prong of the admissibility analysis articulated above.
Instead, the District Court’s rationale appears grounded in the
qualification portion of the analysis. For purposes of this case,
we presume that consideration of the mechanically analyzed breath
sample was an appropriate subject matter for expert testimony and,
therefore, will focus our attention on the second prong of the
admissibility analysis.
¶13 Russette argues that Christek’s testimony was to “pertain
solely to the existence and meaning of the scientific method,”
i.e., the proposition that scientific validity requires multiple,
corroborating analyses. Christek may well have received
specialized training which would qualify him as an expert witness
on matters within his area of expertise. Perhaps Christek had
sufficient education and training to offer commentary on the
intricacies of the scientific method. However, at some point,
Christek would have had to apply his theories to the facts at hand
to “assist the trier of fact to understand the evidence or . . .
determine a fact in issue,” as required by Rule 702, M.R.Evid.
¶14 The party presenting a witness as an expert must establish, to
the satisfaction of the trial court, that the witness possesses the
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requisite knowledge, skill, experience, training, and education to
testify as to the issue in question. O’Leyar v. Callender (1992),
255 Mont. 277, 280-81, 843 P.2d 304, 306. According to Russette,
Christek sought to call into question the validity of the
Intoxilizer 5000 analysis. Yet, by Russette’s own admission,
Christek lacked familiarity with the “interworkings” of the
Intoxilizer 5000. In short, Russette failed to lay any foundation
which showed that Christek had adequate knowledge upon which to
challenge the “fact in issue,” which was the validity of the
Intoxilizer 5000 test result. Accordingly, we hold that the
District Court did not abuse its discretion when it precluded
Christek from testifying.
¶15 On appeal, Russette also maintains that the District Court
violated his constitutional rights to due process and to call
witnesses when it rejected the proffered testimony. However,
Russette raises these issues for the first time on appeal. It is
axiomatic that we will not address issues raised for the first time
on appeal and, therefore, we decline to further address these
assertions.
¶16 Affirmed.
/S/ PATRICIA COTTER
We Concur:
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ JIM RICE
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/S/ W. WILLIAM LEAPHART
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