March 6 2012
DA 11-0374
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 49
STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICHARD BOLLMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and For the County of Flathead, Cause No. DC 10-270C
Honorable Stewart E. Stadler, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lane K. Bennett, Attorney at Law, Kalispell, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant
Attorney General, Helena, Montana
Ed Corrigan, Flathead County Attorney; Lori Adams, Deputy County
Attorney, Kalispell, Montana
Submitted on Briefs: January 11, 2012
Decided: March 6, 2012
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 Richard Bollman (Bollman) appeals two orders of the Eleventh Judicial District
Court, Flathead County; one allowing expert testimony during his trial, and the other
denying his motion for mistrial. We affirm.
BACKGROUND
¶2 On March 15, 2011, Bollman was convicted of his fifth DUI offense, a felony, after a
jury trial. He was sentenced to serve a 13-month commitment with the Department of
Corrections (DOC), followed by a 4-year suspended commitment to the DOC.
Bollman’s Arrest
¶3 Columbia Falls Police Officer Craig McConnell (Officer McConnell) was on patrol in
the early morning hours of August 6, 2010, when he noticed Bollman’s white minivan drift
out of its lane, into the center turn lane, then back into its lane of traffic. Officer McConnell
followed the vehicle and observed continued drifting behavior. Bollman made a wide left
turn without signaling, then slowed as if to pull over, but continued driving slowly. Officer
McConnell activated his emergency lights and initiated a traffic stop.
¶4 Officer McConnell testified that, upon contacting Bollman, he could smell the “very
strong” odor of alcohol, Bollman’s speech was “mumbled and just kind of garbled,”
Bollman’s eyes were bloodshot and watery, and Bollman’s movements to get his registration
and insurance information were slow and he fumbled around to retrieve the items.
¶5 Officer McConnell testified that he asked Bollman how much he had to drink, and
Bollman said “way too much to be driving.” At some point, Bollman asked Officer
2
McConnell to give him a break and take him home. Officer McConnell did not give
Bollman a break, but rather asked Bollman to exit his vehicle. Bollman’s movements were
slow, he used the door for support, and was unsteady on his feet. Once Bollman was out of
his vehicle, Officer McConnell asked him to perform standardized field sobriety tests, or
SFSTs. Officer McConnell’s vehicle had videotaping capabilities but no videotape, thus
Bollman’s SFSTs were not recorded. However, Officer McConnell documented Bollman’s
performance and testified that Bollman exhibited 6 out of 6 indicators on the horizontal gaze
nystagmus (HGN) test, 3 out of 4 indicators on the one-leg stand test; and 8 out of 8
indicators on the walk-and-turn test. Based on his training and experience, Officer
McConnell determined Bollman was intoxicated and placed him under arrest for DUI.
¶6 At the police station, which did have videotaping capabilities, Officer McConnell
again asked Bollman to perform the SFSTs. Bollman said “This is the part where I’m
supposed to ask for a lawyer, right? . . . ‘Cause I’m screwed.” When asked if he had any
injuries or physical issues, Bollman stated he had rheumatoid arthritis, and takes Prilosec and
Ibuprofen. Bollman refused to perform the SFSTs. Officer McConnell then read the implied
consent advisory form to Bollman before asking him to take a breathalyzer test. Bollman
refused to take a breathalyzer test.
¶7 Bollman disputes much of Officer McConnell’s testimony. Bollman testified that he
was drifting while driving because he was fiddling with his Walkman, which was on the
passenger side visor. He testified his eyes were bloodshot and glassy because he worked all
day in the wind at a bark plant, and that Officer McConnell could not have smelled alcohol
3
because he (Bollman) spilled diesel fuel on himself before he left work. He testified he was
mumbling because he was nervous and his teeth were “all bad.” He testified that he fumbled
with his paperwork because his glove box was “full of junk.” He testified that he was slow
and unsteady because he was stiff and sore from working all day, and was suffering from
arthritis. He testified that he did not say he drank too much to be driving, but rather said “no
matter how much you have one beer is too much to be driving.” He testified that he could
not perform the one-leg stand test because of his arthritis, so he told Officer McConnell to
“just take me to jail.” Bollman denied performing the HGN test or walk-and-turn test.
Bollman testified that he did not tell Officer McConnell he was “screwed” but rather said
“I’m not going to get screwed, I just want a lawyer.” Finally, he testified that he did not trust
breathalyzer machines, so he refused the test.
Expert Testimony on the HGN Test
¶8 Prior to trial, the State gave notice that it intended to call Montana Highway Patrol
Trooper Tim Proctor (Trooper Proctor) to testify as an expert regarding the correlation
between alcohol consumption and nystagmus in the human eye, i.e. the scientific basis of the
HGN test. Bollman objected to Trooper Proctor being designated as an expert, and also filed
a motion in limine to exclude evidence of the administration and results of the HGN test
unless the State produced a qualified expert.
¶9 On the first day of Bollman’s trial, the District Court held a hearing to determine
whether Trooper Proctor was qualified to testify as an expert witness. The jury was not
4
present for the hearing. Trooper Proctor testified, and was cross-examined by Bollman’s
trial counsel. After the hearing, the District Court made the following findings:
[a]s an initial starting point this witness is not required to be a medical
professional.
Trooper Proctor's qualifications include an associate’s degree in
criminal justice with introductory courses in both anatomy and biology. He
attended the law enforcement academy with 40 hours of basic HGN testing.
He re-certifies yearly and has done so for the last four to five years. He's
completed an advanced traffic course, which is required of all patrolmen, at
the State Law Enforcement Academy. He has completed an Advanced
Roadside Impaired Drivers course, which is a two-day course. He has
successfully completed the drug recognition course, which included a two-day
16-hour ability to administer HGN, and then 1.5 weeks, or one-and-a-half
weeks of classroom in which there was four hours -- four hours taught as to
the scientific basis for HGN by a doctor of ophthalmology,[ 1] is what was
testified to. He then would -- had a field certification, three days in Arizona,
which included HGN, and a final exam of four to six hours. When he
completed that course he then took the Prosecution of Drunk Drivers course,
which also had a four-hour HGN component taught by the doctor of
ophthalmology,[ 2] which both of these four hours went to the scientific basis
of HGN.
He's further testified that he has the ability to explain and will explain
the concept and scientific basis of nystagmus and the correlation to alcohol
consumption and nystagmus, to include natural nystagmus.
Finally, he's been previously qualified in Flathead County Justice
Court.
Considering those findings, a review of the existing case law, and at
least the credentials of the people that have been approved to do this, the Court
does find that Trooper Proctor is qualified to testify to the result of the test that
was given to the Defendant.
¶10 Trooper Proctor testified at trial to the same qualifications. The District Court then
found him “qualified” as an expert regarding the scientific basis of the HGN test. He then
testified about what horizontal gaze nystagmus (HGN) is, how the HGN test is administered,
1
Dr. Citek is actually a doctor of optometry.
5
the correlation between alcohol and HGN, and the correlation between exhibiting 4 or more
(of 6) indicators on the HGN test and the subject’s approximate blood alcohol content.
Trooper Proctor did point out that the result of the HGN test is not, itself alone, an indicator
that a person is intoxicated. He said:
the determination for a person's impairment level should be based on the
totality of the circumstances. There should be a reason that we're asking that
person to submit to standardized field sobriety tests, something that we've seen
that's aroused our suspicion. And it's – the standardized field sobriety tests are
a battery of three tests, not any one of which is a stand-alone test.
Bollman’s Motion for Mistrial
¶11 Prior to the trial, the State filed a motion in limine to prohibit Bollman and defense
counsel from referring to the charge in this case as a felony, or referencing the possible
penalty for felony DUI. Bollman did not oppose the State’s motion. Bollman filed a motion
in limine pursuant to M. R. Evid. 404(b) to exclude “the mention or testimony regarding
other offenses, wrongs or acts besides those charged.” The State did not oppose Bollman’s
motion. Both motions were granted.
¶12 During the course of Officer McConnell’s testimony, the following occurred:
Q. [by prosecutor]: Okay. You also testified that you weren’t sure if you had
transported the Defendant to the Detention Center or if another officer had
done that.
A. [Officer McConnell]: Usually with felony DUIs –
[Defense Counsel]: Objection, Your Honor.
[Defense Counsel]: May we approach, Your Honor?
The Court: You may.
2
Again, Dr. Citek is a doctor of optometry, not ophthalmology.
6
¶13 After a discussion at the bench, the prosecutor continued with a new line of
questioning. Once Officer McConnell finished testifying, and outside the presence of the
jury, the following exchange occurred:
The Court: With regards to his comment, which I don't think was solicited by
the State, it was something that the officer testified to, you can make whatever
motions you wish, or you can request an instruction.
I guess my feeling is is to stop and give them some type of a cautionary
instruction on why not to consider this as a felony is like asking them not to
think about pink elephants, it's the first thing that goes into the jury room.
Sometimes I think whatever's left unsaid, if it's just glossed over, becomes --
but it's up to you guys to do whatever. They were precluded from raising that
issue, and they certainly did raise it.
[Defense Counsel]: Right. And I think, you know, we would ask the Court --
obviously I don't have access to anything right now -- to do some kind of
limiting instruction or –
The Court: Let me ask you a question, Ms. Nolan. What do you have for
witnesses?
[Defense Counsel]: We just have Mr. Bollman.
The Court: And you anticipate him to be how long?
[Defense Counsel]: Just for my direct exam?
The Court: Uh-huh.
[Defense Counsel]: Half an hour, if even.
The Court: We will do it today and then we will rest for tonight and come
back in the morning for cross-examination, and at that time if you have
motions to file or whatever you think would be an adequate remedy I'll
entertain it then. But I would suggest that the officer's testimony would -- was
not that this case was -- he said something that when we transport a felony, if
memory serves me correct. Again, I don't know, it's up to you people what you
wish. And then we will let the State respond.
7
¶14 After the exchange, the jury was brought back and the State rested its case. Bollman
took the stand in his own defense. The defense rested its case after Bollman’s testimony.
Once the jury was excused for the evening, the District Court stated:
The Court: With regards to the reference to the felony DUI, it would seem that
this was not testimony that was elicited by the State, it was something that just
was -- came out with Officer McConnell. And what I would be more
interested in anything is if you feel an instruction to be given, which should be
given such as although there might be speculation that there are prior or other
offenses these are not to be considered, something along those lines. But we'll
see you in the morning with whatever you have.
[Defense Counsel]: Thank you, Your Honor.
Shortly thereafter, court ended for the day.
¶15 The next day, after the jury instructions were settled, the District Court allowed either
party to make any motions they wished to make. Defense counsel moved for a mistrial,
stating:
I believe yesterday that Officer McConnell did mention the word felony,
violating the State's own motion in limine that said that it wasn't supposed to
mention the word felony. Even though it wasn't elicited by the State I think the
prejudicial effect is still the same, and for those reasons we'd request we be
granted a mistrial.
¶16 The State responded, arguing:
The statement from Officer McConnell was not elicited on a direct question
from Ms. Von Jentzen. I think as Your Honor could tell she was surprised by
the answer. He did not get the full answer out, as soon as he said the word
felony it was shut off and we went to side-bar. Ms. Von Jentzen then came
over and moved to a totally different topic. We don't think that that mention is
enough to cause a mistrial in this case, we think that if the Defense had wanted
they could have given a limiting instruction, they decided not to, and that
would have been the remedy, not a mistrial.
8
¶17 The District Court did not rule on Bollman’s motion at that time. Once the case was
submitted to the jury, the District Court denied Bollman’s motion finding:
[T]he Court's, I guess, feeling is that the comment was not solicited by the
State, it was something that was done inadvertently, or without plan or design
by the State. The mere mention of the word felony is not sufficiently
prejudicial that I think that it would cause this Court to grant a mistrial.
I think the Defense had an opportunity to do a curative instruction if
they so desired. I agree with the Defense that that would just reinforce it, but I
think that was the proper remedy if a remedy at all was proper, and the motion
is denied.
¶18 Bollman was convicted and filed this timely appeal. Bollman raises two issues on
appeal, restated as follows:
¶19 Issue One: Did the District Court abuse its discretion when it found Trooper Proctor
was qualified to testify as an expert about the correlation between alcohol consumption and
horizontal gaze nystagmus (HGN)?
¶20 Issue Two: Did the District Court abuse its discretion when it denied Bollman’s
motion for mistrial?
¶21 We address each in turn.
STANDARDS OF REVIEW
¶22 We review the district court’s determination regarding the qualification and
competency of an expert witness for an abuse of discretion. State v. Harris, 2008 MT 213,
¶ 6, 344 Mont. 208, 186 P.3d 1263. The trial court has “great latitude” in ruling on the
admissibility of expert testimony. State v. Crawford, 2003 MT 118, ¶ 30, 315 Mont. 480, 68
P.3d 848 (emphasis in original).
9
¶23 We also review the denial of a motion for mistrial based upon the admission of
inadmissible evidence for an abuse of discretion. State v. Gerstner, 2009 MT 303, ¶ 16, 353
Mont. 86, 219 P.3d 866. A district court abuses its discretion when it acts arbitrarily without
employing conscientious judgment, or exceeds the bounds of reason resulting in substantial
injustice. Harris, ¶ 6.
DISCUSSION
¶24 Issue One: Did the District Court abuse its discretion when it found Trooper Proctor
was qualified to testify as an expert about the correlation between alcohol consumption and
horizontal gaze nystagmus (HGN)?
¶25 Bollman argues that Trooper Proctor did not possess the necessary qualifications to
testify as an expert on the scientific basis of the HGN test; “[s]pecifically, his training
beyond basic training was not specialized or specific enough.” The State argues that there is
no list of required credentials, and Trooper Proctor’s credentials are similar to those we have
previously held sufficient.
¶26 Before the results of the HGN test are admissible, the State must present expert
testimony to explain the correlation between alcohol consumption and the presence of
nystagmus, i.e. the scientific basis of the HGN test. Hulse v. State, 1998 MT 108, ¶¶ 69-72,
289 Mont. 1, 961 P.2d 75; State v. Michaud, 2008 MT 88, ¶ 33, 342 Mont. 244, 180 P.3d
636.
¶27 We have established no “essential requirements” the witness must possess to testify as
an expert on HGN. Harris, ¶ 10. We have specifically rejected the requirement that the
proposed expert must be a medical professional. Harris, ¶ 10; Crawford, ¶ 27. It is clear
10
that basic training on SFSTs is not sufficient to qualify the officer as an expert on the
scientific basis of the HGN. Hulse, ¶¶ 71-72. We have also found that basic SFST training,
plus a bachelor’s degree in medical technology and work as a lab technician at the Montana
State Hospital, did not qualify an officer as an expert on the scientific basis of the HGN test.
State v. Van Kirk, 2001 MT 184, ¶ 28, 306 Mont. 215, 32 P.3d 735.
¶28 We have found the following qualifications, in various combinations, significant:
years as a law enforcement officer; relevant college degrees and/or course work; DUI and
impairment training, including administration and evaluation of SFSTs; certification as a
SFST instructor; certification as a drug recognition expert (DRE); specialized training in eye
anatomy and the science behind HGN; study in these areas; and previous qualification as an
expert in the underlying scientific basis for the HGN test. Harris, ¶¶ 11-12; Crawford, ¶ 28.
We described the officer’s training and education in Crawford as “extensive.” Crawford,
¶ 30.
¶29 Trooper Proctor’s credentials are similar to those in Harris and Crawford. Trooper
Proctor’s qualifications include: 1) an associate’s degree in criminal justice with introductory
courses in both anatomy and biology; 2) basic training at the Montana Law Enforcement
Academy on SFSTs; 3) yearly recertification in SFSTs; 4) completing the Advanced Traffic
Enforcement Academy; 5) completing a 2-day Advanced Roadside Impaired Driving
Enforcement course, which includes written and practical evaluations of SFST
administration; 6) certification as a DRE; 7) completing 8 classroom hours dedicated
specifically to the science behind the HGN test, taught by a doctor of optometry; 8) 3.5 years
11
as a Montana Highway Patrol Trooper, including over 100 DUI arrests; 9) continued
personal study on the science of HGN; and 10) prior qualification as an expert.
¶30 Based on these qualifications, we conclude that the District Court did not abuse its
discretion when it found that Trooper Proctor was qualified under M. R. Evid. 702 to testify
as an expert on the scientific basis of the HGN test.
¶31 Issue Two: Did the District Court abuse its discretion when it denied Bollman’s
motion for mistrial?
¶32 Bollman argues the District Court should have granted his motion for mistrial after
Officer McConnell referenced “felony DUIs” during questioning by the State because the
reference was prejudicial and contributed to his conviction. The State argues that the single,
unsolicited remark did not prejudice Bollman or render his trial unfair.
¶33 A district court’s decision to grant or deny a motion for mistrial must be based on
whether the defendant has been denied a fair and impartial trial. State v. Weldele, 2003 MT
117, ¶ 75, 315 Mont. 452, 69 P.3d 1162. Where there is a reasonable possibility that
inadmissible evidence might have contributed to the conviction, a mistrial is appropriate.
Weldele, ¶ 75; State v. Giddings, 2009 MT 61, ¶ 82, 349 Mont. 347, 208 P.3d 363. In
determining whether a prohibited statement contributed to a conviction, we consider the
strength of the evidence against the defendant, the prejudicial effect of the testimony, and
whether a cautionary instruction could cure any prejudice. Weldele, ¶ 75; Giddings, ¶ 82;
State v. Partin, 287 Mont. 12, 18, 951 P.2d 1002, 1005-06 (1997).
12
¶34 After reviewing the facts and circumstances of this case, we conclude there is no
reasonable possibility that Officer McConnell’s statement contributed to Bollman’s
conviction. We note that the statement was not solicited by the State, but appears to be an
inadvertent remark by Officer McConnell. However, it is undisputed that Officer
McConnell’s statement was inadmissible in light of the District Court’s ruling on the State’s
motion in limine. We therefore begin by analyzing the strength of the evidence against
Bollman. Unlike Partin, in which an officer’s inadmissible statement was “the only link
between Partin and the offense[,]” 287 Mont. at 18, 951 P.2d at 1006, here, disregarding
Officer McConnell’s statement about “felony DUIs,” there was ample evidence against
Bollman including his driving behavior, his performance on the SFSTs, and his own
statements.
¶35 We next consider whether the statement was prejudicial. The standard for
establishing prejudice is whether a substantial right was denied. State v. Brush, 228 Mont.
247, 250-51, 741 P.2d 1333, 1335 (1987). Bollman argues the statement was evidence of his
prior DUI convictions. While it is true that felony DUI requires at least 3 prior DUI
convictions (see § 61-8-731, MCA), Officer McConnell did not inform the jury of any of
Bollman’s criminal history. The statement cannot reasonably be seen as evidence of
Bollman’s criminal history or prior bad acts. The statement was not “drawn out by the
county attorney” nor was the information graphic or detailed. Brush, 228 Mont. at 251, 741
P.2d at 1335. Under the circumstances of this case, we conclude any prejudice resulting
from the statement was very minor, if it was prejudicial at all.
13
¶36 Finally, we consider whether a cautionary instruction could have cured any possible
prejudice. Bollman argues that any cautionary instruction would only reinforce the
inadmissible testimony, and that the District Court agreed with Bollman’s decision not to
seek a cautionary instruction. We have specifically rejected the argument Bollman now
makes. Brush, 228 Mont. at 251-52, 741 P.2d at 1335-36. Additionally, no matter what the
District Court thought of Bollman’s decision, the fact remains that Bollman opted not to seek
a cautionary instruction. We will not hold the District Court in error for failing to give a
cautionary instruction. In re Marriage of Caras, 2012 MT 25, ¶ 22, 364 Mont. 32, ___ P.3d
___ (we will not hold a district court in error for a ruling or procedure in which the appellant
acquiesced).
¶37 After reviewing the facts and circumstances of this case, we conclude there is no
reasonable possibility that Officer McConnell’s statement contributed to Bollman’s
conviction. The District Court did not abuse its discretion when it denied Bollman’s motion
for mistrial.
CONCLUSON
¶38 For the reasons stated above, we affirm.
/S/ MICHAEL E WHEAT
We Concur:
/S/ BETH BAKER
14
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
15