STATE of Idaho, Plaintiff-Respondent, v. Danny R. GLEASON, Defendant-Appellant.
No. 19388.
Supreme Court of Idaho
Dec. 22, 1992.
844 P.2d 691
Coeur D‘Alene, October 1992 Term.
The committee found that Tway was undergoing personal and emotional problems caused by the break up of his marriage of twenty years duration and, further, that the acts in question took place over only a relatively short period of time, whereas for more than twenty-five years while Tway had been practicing law, he had enjoyed the respect of the legal community for his abilities, and he had also enjoyed a good reputation in the community for honesty and fair dealing.
In light of the above, we conclude that disbarment in this instance is not merited; rather, we perceive that a suspension which is conditioned on proper conditions relative to reinstatement will serve both to protect the public and to preserve confidence in the judicial system, the funсtion of the bar association, and the profession of law. We do not, however, accept the committee‘s recommendation of a one (1) year suspension given the serious misconduct by Tway.
III. ORDER
Tway is suspended from the practice of law for two (2) years. After serving the suspension, he may apply for reinstatement pursuant to ISBCR 518. Tway shall not be reinstated to the practice of law unless he meets the following conditions: (a) that he arrange to be supervised by a member in good standing of the Idaho State Bar in the management of his trust account for a period of one (1) year from and after reinstatement; (b) that he take and pass the Multistate Professional Responsibility examination; (c) that he shall have paid all monies due and owing to the surviving spouse under their agreement; (d) that he reimburse the Idaho State Bar for thе costs and expenses of investigating and prosecuting this action; and (e) that Tway obtain a payment bond which satisfactorily guarantees all client funds received by Tway.
An appropriate order will issue.
Larry EchoHawk, Atty. Gen. and Michael J. Kane, Chief, Criminal Div., argued, Boise, for plaintiff-respondent.
McDEVITT, Justice.
STATEMENT OF THE CASE
Defendant was arrested and charged by a Uniform Traffic Citation with having “operated a motor vehicle while under the influence of alcohol and/or with a Blood Alcohol Content of .10% or above” in violation of
In the early morning hours of August 29, 1988, Officer Alex Carrington noticed a white Thunderbird travelling south on Highway 41 that appeared to be weaving in its lane. Officer Carrington followed the vehicle for approximately eleven miles and radioed for help from the county. Officer Carrington testified that he could see thе car clearly the entire time he followed it and that there were no other cars on the road. He also testified that he observed the car meander back and forth several times between the curb and center line. Shortly after receiving the radio call, Deputy Wolfinger of the County Sheriff‘s Office
At trial, the court allowed a tape recording of the subsequent interchange between the defendant Gleason, driver of the white Thunderbird, and Deputy Wolfinger, up to the moment of defendant Gleason‘s arrest for driving under the influence. Deputy Wolfinger‘s tеstimony and arrest report also recited the same sequence of events. When Deputy Wolfinger first contacted Gleason, he noticed a moderate odor of alcohol on Gleason‘s breath and that Gleason‘s eyes were watery and bloodshot. Moreover, the deputy noticed a plastic cup on the transmission hump containing a liquid later verified as alcohol. Deputy Wolfinger requested Glеason to step from the vehicle and perform a series of field sobriety tests. Deputy Wolfinger has an Associate of Science Degree in Law Enforcement, has received training by experienced field officers, and has attended two training seminars on improving recognition of intoxicated persons and administration of the tests. In addition, Wolfinger has performed the field sobriety tests over 200 times in the past five yеars. Every DUI arrest he has made based upon these tests was verified by an Intoximeter 3000 Blood Alcohol Content (“BAC“) test.
Deputy Wolfinger performed five tests on Gleason: the horizontal gaze nystagmus (“HGN“) test, one-foot balance test, alphabet test, finger counting test, and hand-slap dexterity test. Gleason performed very poorly on each test. Gleason exhibited the onset of nystagmus prior to 45 degrees and could not maintain maximum deviation, he could not stand on one foot for more than 10 seconds, he could only recite the alphabet to “O“, he could not touch and count his own fingers in the proper order, even after several explanations and demonstrations by the deputy, and he could not keep the simple hand-slapping rhythm. Based on Gleason‘s performance, Deputy Wolfinger was of the opinion that Gleasоn was under the influence of alcohol, and arrested and charged Gleason accordingly.
Appellant Gleason objected at trial to the admission of evidence concerning the HGN test based on lack of foundation. After a brief debate out of the presence of the jury, the trial court found that the foundation for the admissibility of the HGN test was satisfied by Deputy Wolfinger‘s testimony of past testing experiencе and independent verification of his accuracy. The court allowed Deputy Wolfinger to testify that he administered the test, to give his opinion based on his observations in administering the test, and to state that nystagmus, or eye-jerking, prior to 45 degrees is a “strong indicator that he‘s under the influence of alcohol.” The court struck the word “strong“. On cross, appellant delved even further into the controversial quagmire of the HGN test, and failed to object when he evoked the response from Deputy Wolfinger that nystagmus prior to 45 degrees “is a good indicator of alcohol content above a .10 percent.”
In addition to Deputy Wolfinger‘s testimony, the State offered the testimonies of Officer Carrington and Chaplain Greg Linnebach, who was in the marked sheriff‘s car with Wolfinger. The two testified that, based on their own training and experience in the аdministration of field sobriety tests and their personal observations of Gleason‘s erratic driving pattern and uncoordinated mannerisms, they each formed the opinion that Gleason was intoxicated. Specifically, Gleason swerved in his lane several times and had somewhat slurred speech, the smell of alcohol was strong on his breath, and his movements seemed slow and deliberate. The prosecution presented evidence to show that defendant was driving under the influence, but failed to present any evidence that defendant had a BAC over .10 percent. Therefore, upon motion of the defendant, the court struck the second part of the pleadings relating to BAC levels.
Gleason had two friends testify that, subsequent to drinking with Gleason at a bar in Rathdrum, they pursued Gleason for a
At the close of defendant‘s case, the court instructed the jury on the term “under the influence” as follows:
You are instructed that to constitute the crime of driving while under the influence of alcohol, it is not necessary to show how much or the tyрe of alcoholic beverages that were consumed. It is necessary to show that the driver had consumed sufficient alcoholic beverages to influence or affect his judgment or ability to drive a motor vehicle.
The jury found defendant guilty of driving under the influence and judgment and sentence were entered June 29, 1989. The defendant thereafter appealed to the district court. The district court affirmed the judgment and sentеnce, by written memorandum filed May 30, 1991. The issues on appeal are
- Whether the trial court erred in admitting testimony concerning the horizontal gaze nystagmus test performed on appellant.
- Whether the jury was properly instructed on the elements of the crime of driving under the influence.
STANDARD OF REVIEW
With respect to the admission of evidence, the trial court has broad discretion and its judgment in the fact finding role will only be disturbed on appеal when there has been a clear abuse of discretion. State v. Crea, 119 Idaho 352, 806 P.2d 445 (1991); State v. Giles, 115 Idaho 984, 772 P.2d 191 (1989). On the issue of the jury instruction, we review the same to determine whether it charges the jury with all matters necessary for their information with respect to the nature and elements of the crime charged. State v. Beason, 95 Idaho 267, 275, 506 P.2d 1340, 1348 (1973). The question of whether the jury was properly instructed is a question of law over which we exercise free review. State v. Roll, 118 Idaho 936, 938, 801 P.2d 1287, 1289 (Ct.Aрp.1990).
I. ADMISSIBILITY OF THE HGN-RELATED TESTIMONY
In State v. Garrett, 119 Idaho 878, 811 P.2d 488 (1991), this Court recognized the admissibility of HGN-related testimony. State v. Garrett is a plurality opinion. It is authoritative on the issue of the scientific reliability of HGN test evidence, however it is not authority for the appropriate test against which such scientific reliability is to be measured. In Garrett, Justice Bistline developed a foundational test for the prosecution to satisfy in order to admit HGN evidence. First the prosecution must establish that the HGN test is indeрendently reliable under the Frye standard (generally accepted theory in the scientific community that persons who are intoxicated exhibit nystagmus), and second that the officer is competent and reliable enough to introduce HGN evidence and testify that nystagmus may be an indication of intoxication. Garrett, 119 Idaho at 882, 811 P.2d at 492. Chief Justice Bakes concurred, while Justice McDevitt concurred in the result only. Justice Boyle specially concurred, rejecting the use of the Frye standard as the measure of scientific reliability. Id. at 883, 811 P.2d 488. Justice Johnson penned a dissent in which he objected to the use of the Frye standard, advocating a standard of independent reliability, and found the trial court‘s use of HGN test results as indicative of a particular BAC level, to be prejudicial error. Id. at 884, 811 P.2d 488. This Court reaffirms that the appropriate test for measuring the scientific reliability of еvidence is
The trial court in this case did not venture beyond the permissive bounds of Garrett when it allowed Deputy Wolfinger to testify that based on Gleason‘s performance on the HGN and other tests, Deputy Wolfinger was of the opinion that Gleason was intoxicated. It is true that Wolfinger also testified that nystagmus was an indicator of BAC over .10 percent, however, this testimony was elicited on cross-examination. Appellant cannot now be heard to denounce testimony that he roused. This constitutes invited error. State v. Owsley, 105 Idaho 836, 837-38, 673 P.2d 436, 437-38 (1983). Deputy Wolfinger‘s testimony relating to the HGN test results was not offered as independent scientifically sound evidence of Gleason‘s intoxication. Rather, it was offered and admitted for the same purpose as other field sobriety test evidence—a physical act on the part of Gleason observed by the officer contributing to the cumulative portrait of Gleason intimating intoxication in the officer‘s opinion.
II. JURY INSTRUCTION
The proper jury instruction for the crime of driving under the influence can be found in State v. Glanzman, 69 Idaho 46, 202 P.2d 407 (1949). In Glanzman, this Court held that the driver need2 not be shown to have been in any particular degree or state of intoxication, but only to have consumed intoxicating liquor to such extent as to influence or affect his ability to drive. Glanzman, 69 Idaho at 49, 202 P.2d at 410. See also State v. Warner, 97 Idaho 204, 541 P.2d 977 (1975); State v. McFarland, 88 Idaho 527, 534, 401 P.2d 824, 831 (1965). The apрellant argues that the insertion of the word “judgment” into the jury instruction contravened the standard set out in Glanzman and was misleading to the jury. We are of the opinion that, in this case, the instruction was proper under the canopy of Glanzman. The reference to “his judgment” in this instruction describes a mental function that directly relates to defendant‘s ability to drive a motor vehicle. It is difficult to conceive of an instance where impaired judgment, which dictates reaction time, offensive and defensive tactics, and timing, does not absolutely translate into impaired ability, however, Glanzman does not approve the use of the term “judgment” and we would admonish future courts to avoid its employ.
As to defendant‘s second contention, the instruction clearly distinguishes “degree of intoxication” to inform the jury that they need not discern some magic number to represent Gleasоn‘s state and glean its conclusion of “driving under the influence” from that. Rather, the court‘s reference to “degree of intoxication” denotes a question of fact as to whether the driver consumed sufficient alcoholic beverages to thrust him into the realm of the continuum that represents persons whose ability to drive is influenced or affected by the alcohol.
For the foregoing reasons, the decision of thе district court is affirmed.
No costs on appeal.
BAKES, C.J., and JOHNSON, and TROUT, JJ., concur.
This one justice3 concurs with the majority to the extent of the holdings that: 1) HGN evidence is admissible in evidence as an indicator of intoxication; 2) evidence elicited by the defendant may not be challenged by him/her on appeal; and 3) the insertion of the word “judgment” in the jury instruction in issue was not reversible error. However, I can only concur in the result in Part I of the majority‘s opinion because I disagree with the majority‘s abаndonment of the test for scientific reliability, which test was set forth in State v. Garrett, 119 Idaho 878, 880, 811 P.2d 488, 490 (1991). I am especially troubled about the total lack of guidance given to the bench and bar relative to determining whether evidence is scientifically reliable enough to be admitted into evidence under
First, the majority‘s statement about the proper measure of the scientific reliability of evidence is not necessary to the decision. As the majority notes, Garrett “is authoritative on the issue of the scientific reliability of HGN evidence.” The question whether HGN evidence is scientifically reliable having already been resolved, the majority‘s statement that “the appropriate test for measuring the scientific reliability of evidence is
Second, the majority‘s bare statement that
Although the majority seems to assume the determination of scientific reliability under
Some courts have rejected the Frye test in favor of a broad admissibility standard. See, e.g., State v. Murphy, 451 N.W.2d 154, 156 (Iowa 1990); Kelly v. State, 792 S.W.2d 579, 584-85 (Tex.App.1990). Some courts have adopted, as did Garrett, the Frye test as part of their rule 702 analysis. See, e.g., United States v. Boise, 916 F.2d 497, 503 (9th Cir.1990); United States v. Two Bulls, 918 F.2d 56, 60 n. 7 (8th Cir.1990); United States v. Smith, 869 F.2d 348, 353 (7th Cir.1989). Some other courts have constructed a less-stringent version of the Frye test to use in its F.R.E. 702 analysis but have not abandoned it altogether. See United States v. Gould, 741 F.2d 45, 48-49, n. 2 (4th Cir.1984); United States v. Downing, 753 F.2d 1224, 1237-39 (3d Cir. 1985). In short there is a conflict among the state and federal courts as to the interplay between rule 702 and the Frye test. All of these cases, it should be emphasized,
Moreover, Idaho law is not clear as to the effect of Frye on
The opinions discussed above are not models of clarity and provide no real guidance to the bench and bar as to how to determine whether scientific evidence is reliable enough to permit its admission. Today‘s opinion does nothing to clarify the law. As I have noted previously, my concеrn is not so much that Frye is rejected but that
[i]f Frye is rejected it must be replaced with something. Otherwise, every form of “scientific” evidence, even evidence that does not deserve that label, will be admissible for the jury‘s consideration. Such prejudice in a criminal trial is improper.
State v. Rodgers, 119 Idaho 1041, 1054-55, 812 P.2d 755, 768-69 (1991) (Bistline, J., dissenting).
At this juncture it appears that the law would be better served by adhering to the familiar Frye rule rather than sending the bench and bаr down the dismal road of litigation without a road map. How a supreme court decides to govern the admission of scientific evidence is an important question which should be carefully considered and decided only after full briefing by the parties. Here the majority, having raised the question on its own volition, announces an ill-defined rule which leaves the reader without any clue as to the applicable ratio decidendi.