State v. Rose

PAUL M. SPINDEN, Presiding Judge,

concurring.

Officer Gerard McConaha’s testimony that a score of six on the horizontal gaze nystagmus test always, in his experience, indicated that the person taking the test had a blood alcohol concentration of .10 percent apparently was a volunteered, nonresponsive opinion to which Douglas Rose did not object. As such, the testimony was properly admitted into evidence and became only an issue of weight for the trier of fact. Washington v. Barnes Hospital, 897 S.W.2d 611, 616 (Mo. banc 1995).

McConaha gave his opinion in response to the prosecutor’s question: “Officer, based on your experience and training, what does a score of six indicate to you?” Rose did object to the prosecutor’s question. He announced that he was objecting that McConaha was “incompetent to make such a conclusion.” The circuit court properly overruled the objection.

This court declared in State v. Hill, 865 S.W.2d 702, 704 (Mo.App.1993), “that the HGN test has achieved general acceptance within the behavioral science community. We find that when properly administered by adequately trained personnel, the HGN test is admissible as evidence of intoxication.” That conclusion was reaffirmed in State v. Myers, 940 S.W.2d 64 (Mo.App.1997).

Hence, the circuit court was correct in permitting the question to McConaha, asking him to explain the HGN test results. Had McConaha only told the jury that Rose’s score was six — the observation of fact that Rose sought to restrict McCon-aha’s testimony to — the jury would not have been able to attach any significance or meaning to the testimony. The prosecutor was asking McConaha to explain the significance of a score of six.

Previously, the circuit court had sustained Rose’s objection that the prosecutor had failed to show that McConaha had sufficient training and experience with the test to be able to explain what the test was and what its results indicated. The prosecutor cured this by inquiring extensively into McConaha’s experience and training with the test. At the end, the circuit court properly declared that the prosecutor had established sufficient foundation for seeking McConaha’s explanation of the test results.

Rose continued to object that the prosecution had not laid sufficient foundation for eliciting any opinion of any kind from *110McConaha concerning the test. The circuit court properly overruled these objections. As we said in Hill, “[Wjhen properly administered by adequately trained personnel, the HGN test is admissible as evidence[J” Hill, 865 S.W.2d at 704. The prosecutor established that McConaha was properly trained to administer the test. Logic dictates that he be able to explain what the test results were and what they meant.

The prosecutor obviously was expecting McConaha to testify that a score of six indicated that Rose was intoxicated. That is indicated by the prosecutor asking, in halting fashion after McConaha had given his opinion that a score of six indicated that Rose’s blood alcohol concentration was .10 percent, “And that — that—you’re basically telling the jury that they’re intoxicated?” McConaha answered, “Yes.”

Had McConaha simply said that at the outset — that a score of six indicated that Rose was intoxicated — his testimony would have been quite acceptable. He didn’t. He offered an opinion that a score of six always indicated a blood alcohol concentration of .10 percent — a correlation that the state had established no foundation in science for making. As we said in Hill, Missouri has recognized the HGN test as an indicator of intoxication, not a predictor of a specific blood alcohol concentration.

The problem for Rose is that after McConaha uttered his offending opinion, Rose sat silent, making no objection. He had objected strenuously, without justification, to McConaha’s giving any opinion, but when McConaha gave what was clearly an improper opinion, he sat silent.

The dissenter would excuse his silence and would craft an objection for him — a lack of scientific basis foundationally for McConaha to testify as to the specific meaning of the HGN test results. That was not Rose’s objection. He objected to McConaha’s giving any opinion — that McConaha’s giving any opinion lacked a scientific basis. As we have already established, this was incorrect. Where Rose erred was in not focusing on the specific and choosing to challenge any opinion of any kind.

When the key offending evidence came, Rose sat silent. His failure to object is crucial. The Supreme Court has made quite clear that “[i]f a question exists as to whether the proffered opinion testimony of an expert1 is supported by a sufficient factual or scientific foundation, the question is one of admissibility. It must be raised by a timely objection or motion to strike.”2, Washington, 897 S.W.2d at 616. What happens if no objection is raised or a motion to strike is made? The Supreme Court instructed:

Once opinion testimony has been admitted, as any other evidence, it may be relied upon for purposes of determining the submissibility of the case. See Goodman v. Allen Cab Company, 360 Mo. 1094, 232 S.W.2d 535, 539 (1950). The natural probative effect of this testimony is a consideration for the jury. DeMoulin v. Roetheli, 354 Mo. 425, 189 S.W.2d 562, 565 (1945).

Id. Hence, because Rose did not object, McConaha’s opinion was an issue of what weight the jury should give the testimony and not an issue of the opinion’s admissibility.

*111The Supreme Court reaffirmed, in Bynote v. National Super Markets, Inc., 891 S.W.2d 117, 125 (Mo. banc 1995), the longstanding principle that only specific objections preserve issues for appellate review. The Bynote court said:

National urges that Bynote failed to show that she would require future surgery because neither of her health care provider witnesses testified that they founded their opinion on the assertedly talismanic “reasonable degree of medical certainty.” Unfortunately, National did not offer a specific objection at trial that the phrase had not been used. The objections offered — that Dr. Lipede lacked the qualifications to discuss the costs of surgery and that Dr. Forbes lacked the qualifications necessary to discuss surgery at all — were not sufficient to challenge the degree of certainty of either of the witnesses’ opinions about the need for surgery. By failing to offer a specific objection at trial, National deprived Bynote of the opportunity to ask the question in the form that National now demands on appeal. See Seabaugh v. Milde Farms, Inc., 816 S.W.2d 202, 210 (Mo. banc 1991). Moreover, National failed to question the providers’ degree of certainty on cross-examination, the proper forum for raising the doubts it now brings up on appeal.

This case presents an identical situation. Rose’s only objection at trial concerned qualifications. He did not offer a “talis-manie” objection at trial.

To allow him to do so now, as the dissenter would do, would be inherently unfair trial practice. It would permit him, in effect, to “sandbag” the circuit court. By withholding his specific objection, he avoided the prosecutor’s being able to cure the problem with a proper question or with the circuit court’s proper instruction to the jury and, after getting an unfavorable outcome, used the issue to seek reversal on appeal. As the Supreme Court has explained, “Appellate courts have held an objection to a question should be so specific the trial court can recognize what rule of evidence is being invoked and why the rule would disallow a responsive answer.” Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 446 (Mo. banc 1998).

As I noted in a similar situation in State v. Butler, 24 S.W.3d 21, 35 (Mo.App.2000) (Spinden, J., concurring), “Because of the lack of objection, we need not concern ourselves with whether the content of [an expert’s opinion] testimony was proper in the absence of plain error. The circuit court did not err in admitting evidence offered without objection. Without error, we have no basis for plain error review.” The majority, therefore, need not concern itself with whether McConaha’s opinion was prejudicial because the evidence was not erroneously admitted. The dissenter, by the same token, need not anguish over the proper standard for whether prejudicial evidence is “outcome determinative” because the evidence was not erroneously admitted.

Finally, I note that the majority gratuitously reviews Rose’s contention that the circuit court should have granted his motion in limine to exclude evidence of his refusal to take a breath test because refusal was not found in his administrative suspension hearing for plain error. I agree with the majority that Rose did not preserve this issue for review because rulings on motions in limine are interlocutory in nature and because he did not object when the state introduced evidence of his refusal. I disagree, however, with the majority’s reviewing for manifest injustice or miscarriage of justice under plain error.

Rule 30.20 grants us authority to consider “plain errors affecting substantial rights ... when [we find] that manifest injustice *112or miscarriage of justice has resulted” from plain error. The rule presents a bit of a conundrum by granting us authority to review plain error only if we find manifest injustice or a miscarriage of justice. How are we to make a finding of manifest injustice or a miscarriage of justice without reviewing the case?

The Supreme Court suggested in State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, 516 U.S. 1031, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995), that it intended for Rule 30.20 to mean that we should first examine whether the claim of plain error is one that, on its face, establishes substantial grounds for believing that manifest injustice or miscarriage of justice has occurred. Only then, the Brown court instructed, should we review the claim to determine whether manifest injustice or a miscai'riage of justice actually occurred. If we find that the claim of plain error does not facially establish substantial grounds for believing that manifest injustice or miscarriage of justice has occurred, we should decline to exercise our discretion to review a claim of error under Rule 30.20. Brown, 902 S.W.2d at 284. “The rule makes it clear that not all prejudicial error — that is, reversible error — can be deemed plain error.” State v. Dowell, 25 S.W.3d 594, 606 (Mo.App.2000). Plain error is evident, obvious and clear error. State v. Bailey, 839 S.W.2d 657, 661 (Mo.App.1992).

I do not discern from the face of this record evident, obvious and clear error. Indeed, as the majority recognizes, “Missouri courts hold, for collateral estoppel purposes, that no relationship exists between a determination of fact in a criminal case and a determination of fact made in an administrative proeeeding[.]” State v. Rotter, 958 S.W.2d 59, 64 (Mo.App.1997). Hence, I would decline to review Rose’s contention under Rule 30.20.

The evidence clearly was sufficient for a jury to find that Rose was driving while intoxicated. Hence, I concur with the majority in affirming the circuit court’s judgment.

ROBERT G. ULRICH, Judge, JAMES M. SMART, Jr., Judge, and WILLIAM E. TURN AGE, Senior Judge, concur.

. The circuit court properly recognized McConaha as an expert to the extent that it was willing to permit McConaha to explain what the HGN test was and generally what its results meant.

. I added the emphasis.