STATE v. RUSSO

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Docket Number

(AC 19709)

Attorney(S)

Joaquina Borges King, special public defender, for the appellant (defendant). Rita M. Shair, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Mark Brodsky, senior assistant state's attorney, for the appellee (state).

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Smart Summary

Factual and Procedural Background

On November 16, 1998, Patsy Russo's vehicle collided head-on with Arliss Gamble's parked vehicle. Officer Eric Kovanda arrived, observed signs of intoxication (odor of alcohol, slurred speech, glassy eyes, poor balance), and administered field sobriety tests, including a horizontal gaze nystagmus (HGN) test. Kovanda observed "jerkiness" on the HGN and other failures on field tests; Russo admitted drinking beer and rum since noon. At the station Russo failed to provide a Breathalyzer reading and refused a urine test. At trial Kovanda testified regarding his observations and the HGN results. The defendant objected that the state had not satisfied the Daubert criteria for admission of scientific evidence; the trial court allowed the HGN testimony, ruling it was not a "classic scientific test." The jury convicted Russo of operating a motor vehicle while under the influence (General Statutes § 14-227a (a)(1)). Russo appealed; this opinion affirms the conviction.

Legal Issues Presented

Whether the trial court improperly admitted testimony regarding the HGN test and its results without requiring the state to satisfy the criteria for admission of scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc.
Whether State v. Porter overruled or otherwise affected State v. Merritt with respect to the admissibility of HGN testimony.
If admission was erroneous, whether the error was harmless.

Arguments of the Parties

Appellant's Arguments

The court abused its discretion by admitting testimony about the HGN test and its results without requiring the state to satisfy the proper scientific-evidence foundation under Daubert.
Under State v. Merritt, HGN testing is scientific evidence and required compliance with the then-prevailing Frye standard (and thus should meet the relevant foundational requirements).

Appellee's Arguments

The state contended that Merritt is no longer valid in light of State v. Porter, implying Porter affected the admissibility framework for HGN evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)	The Daubert approach provides a flexible test for admissibility of scientific evidence and enumerates nonexclusive factors (testability, peer review, error rate/standards, general acceptance).	The court held that Daubert governs admissibility in Connecticut (per Porter) and that HGN testimony must satisfy Daubert's requirements prior to admission.
State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995)	Held that HGN test and its results are based on a scientific principle and, under then-prevailing law, required compliance with Frye (general acceptance) before admission.	The court treated Merritt's primary holding as intact: HGN is the type of scientific evidence that may mislead a jury and requires a proper foundation; Porter modified only the admissibility criteria.
State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998)	Adopted the Daubert approach to govern admissibility of scientific evidence in Connecticut, while retaining general acceptance as an important factor.	The court concluded Porter modified Merritt's criteria (switching to Daubert) but did not negate Merritt's holding that HGN is scientific evidence requiring the applicable foundation.
Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000)	Describes standard of appellate review for evidentiary matters—trial court has wide discretion and reversal requires abuse of that discretion.	Used to state the applicable standard of review for the trial court's evidentiary ruling.
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)	Under Frye, scientific evidence is admissible only if the methodology has gained general acceptance in the relevant scientific community.	Explained Merritt's earlier reliance on Frye and noted that Frye's "general acceptance" remains an important factor under Porter/Daubert.
State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994)	When an evidentiary ruling is incorrect but nonconstitutional, the defendant bears the burden to show harmfulness of the error.	Applied to place the burden on the defendant to demonstrate that the improper admission affected the trial result.
State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986)	Defines the harmless-error inquiry: whether the erroneous ruling was likely to affect the result.	Quoted to frame the harmlessness standard the court applied to the HGN admission error.
State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994)	Referenced in connection with the harmlessness analysis and whether an error affected the trial's outcome.	Used as supporting authority in articulating the harmless-error inquiry.
State v. Grenier, 55 Conn. App. 630, 643, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000)	Cited in discussing the standard for establishing harmfulness of an evidentiary ruling.	Relied on for the proposition that a defendant must demonstrate it is more probable than not that the improper ruling affected the result.

Court's Reasoning and Analysis

The court began by stating the applicable standard of appellate review for evidentiary rulings (wide discretion; reversal only for abuse). It reviewed the lineage of authority: Merritt held HGN testing to be scientific evidence requiring Frye-based foundation; Daubert established a broader federal test and enumerated nonexclusive factors; Porter adopted the Daubert approach for Connecticut. The court concluded Porter modified Merritt by changing the admissibility criteria to Daubert but did not negate Merritt's primary holding that HGN testing is scientific evidence that can mislead jurors without a proper foundation. Because the trial court in this case explicitly concluded HGN was not a scientific test and admitted the HGN testimony without performing a Daubert analysis, the court held the trial court abused its discretion. The court declined to decide whether HGN satisfies Daubert, noting Porter preserved general acceptance as an important factor and stating that determination is unnecessary here and left for another day. Finally, applying the nonconstitutional-harmless-error framework (defendant bears burden to show prejudice), the court reviewed the trial evidence and concluded other admissible evidence (odor of alcohol, slurred speech, glassy eyes, poor balance, admission of drinking, failures on multiple field sobriety tests) supported the jury's verdict; thus the improper admission of HGN testimony was harmless.

Holding and Implications

Affirmed.

Holding: The appellate court held that the trial court abused its discretion by admitting HGN test results without applying the Daubert framework because HGN testing constitutes scientific evidence under Merritt as modified by Porter. However, the court concluded the error was harmless because other admissible evidence supported the conviction, and therefore affirmed the conviction.

Implications: The court clarified that Porter adopted Daubert for Connecticut and thereby modified the admissibility criteria articulated in Merritt, but it reaffirmed Merritt's core holding that HGN testimony is scientific evidence requiring the appropriate foundation. The court did not decide whether the HGN test satisfies Daubert's criteria and explicitly left that issue for future resolution.

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STATE OF CONNECTICUT v. PATSY RUSSO

Syllabus Convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor, the defendant appealed to this court, claiming that the trial court improperly admitted testimony regarding the results of his horizontal gaze nystagmus test without requiring that the state satisfy the criteria for the admission of scientific evidence set forth in the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc. ( 509 U.S. 579). Held that the trial court improperly determined that the horizontal gaze nystagmus test was not a scientific test and, therefore, that court abused its discretion in admitting the challenged evidence; contrary to the claim made by the state, the decision of this court in State v. Merritt ( 36 Conn. App. 76), determining that the results of a horizontal gaze nystagmus test constitutes scientific evidence, was not overruled by the Supreme Court in State v. Porter ( 241 Conn. 57), but because the jury heard other evidence from which it reasonably could have found that the defendant was intoxicated, the improper evidentiary ruling was harmless.

Opinion

SCHALLER, J.

The defendant, Patsy Russo, appeals from the judgment of conviction, rendered after a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes (Rev. to 1997) § 14-227a (a)(1). The defendant's sole claim is that the trial court improperly admitted testimony regarding the results of a horizontal gaze nystagmus (HGN) test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). We affirm the judgment of the trial court.

General Statutes (Rev. to 1997) § 14-227a (a) provides in relevant part: "No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence . . . if he operates a motor vehicle on a public highway of this state . . . (1) while under the influence of intoxicating liquor or any drug or both. . . ."

The jury reasonably could have found the following facts. On November 16, 1998, at approximately 6:45 p.m., Arliss Gamble was sitting in his vehicle, which was parked on the side of Craigmore Road in Bloomfield. Gamble noticed another vehicle, operated by the defendant, traveling toward him. The defendant's vehicle collided head on with Gamble's vehicle.

Thereafter, Officer Eric Kovanda of the Bloomfield police department arrived at the accident scene. Kovanda approached the defendant, who was still in his vehicle. After some initial observations, Kovanda suspected that the defendant was intoxicated because his breath emitted a strong odor of alcohol. The defendant's speech was slurred and his eyes were glassy. When Kovanda asked the defendant for his driver's license, the defendant had trouble retrieving it from his rear pocket. Kovanda, at that point, requested that the defendant step out of his vehicle. Once out of his vehicle, the defendant had difficulty keeping his balance and swayed back and forth. The defendant admitted that he had been drinking beer and rum since noon.

Kovanda then administered several field sobriety tests. First, he asked the defendant to recite the alphabet from A to P. Despite those specific instructions, the defendant recited the entire alphabet from A to Z and slurred the letters M, N, O and P. Second, Kovanda instructed the defendant to perform the "four-finger test." Kovanda twice demonstrated to the defendant how to perform that test. Under the test, the defendant had to touch his thumb to each of his fingers while counting from one to four and back. The defendant, again ignoring Kovanda's instructions, simply made a fist and counted to four. Third, Kovanda required the defendant to count backward from fifty-seven to forty-eight. Without even attempting to do so, the defendant responded that he could not complete that test.

Finally, Kovanda conducted an HGN test on the defendant. To conduct that test, Kovanda placed an object — his finger — approximately fifteen inches in front of the defendant's eyes. Kovanda asked the defendant to track the object from side to side as far as his maximum sideways gaze (maximum deviation) would allow without moving his head. While doing so, Kovanda observed the reaction of each eye in three respects: (1) whether the eye exhibited "smooth pursuit"; (2) whether the eye exhibited "jerkiness" at "maximum deviation"; and (3) whether the eye exhibited jerkiness "prior to forty-five degrees" as the object moved toward the maximum deviation point. Kovanda noticed that the defendant's eyes exhibited "jerkiness." On the basis of the defendant's demeanor, and his performance on the HGN test and the other field sobriety tests, Kovanda concluded that the defendant was under the influence of alcohol or drugs.

"Maximum deviation" represents the farthest limit of one's sideways gaze.

Thereafter, Kovanda placed the defendant under arrest and transported him to the police department. Upon arriving at the police department, the defendant agreed to take a test on a Breathalyzer machine. The defendant's attempt at utilizing that machine, however, was unsuccessful because he did not properly follow Kovanda's instructions. As a result, Kovanda was unable to register an accurate reading on the machine. Kovanda asked the defendant to take a urine test instead, but the defendant refused to take any more tests.

At trial, the state called Kovanda to testify about his observations of the defendant's demeanor and performance on the sobriety tests, including the HGN test. The defendant, however, objected to the introduction of Kovanda's testimony regarding the HGN test and its results because the state did not establish the proper foundation for the admission of scientific evidence as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 593-94. Nevertheless, the court permitted the testimony without such a foundation, reasoning that HGN testing was not scientific evidence and stating: "I'm going to allow the officer to testify [about the HGN testing because] I feel that it's . . . not really, in my book, a really classic scientific test." The jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, and this appeal followed.

The defendant claims that the court improperly admitted Kovanda's testimony regarding the HGN test and its results without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert. We agree.

As a threshold matter, we note the proper standard of appellate review applicable to a trial court's determination on evidentiary matters. "Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law." (Internal quotation marks omitted.) Bunting v. Bunting, 60 Conn. App. 665, 670, 760 A.2d 989 (2000).

The defendant argues that under State v. Merritt, 36 Conn. App. 76, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995), the court abused its discretion by concluding that HGN testing was not scientific evidence. The state contends that Merritt is no longer valid in light of our Supreme Court's recent decision in State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998). The dispositive issue, therefore, is whether Porter overruled Merritt.

To resolve that issue, a clarification of the relevant case law is necessary. In 1994, this court decided Merritt, the facts of which are similar to those in the present case. In Merritt, the trial court admitted testimony regarding the HGN test and its results without requiring that the state satisfy the criteria for the admission of scientific evidence. We concluded that "the HGN test and its results are based on a scientific principle, namely, that there is a discernable correlation between the increased incidence of and the angle of the onset of nystagmus and alcohol consumption." State v. Merritt, supra, 36 Conn. App. 90. We further noted that "the HGN test [is] unfamiliar to jurors, and a juror would not be in a position to weigh the testimony concerning the HGN test and its results without abandoning common sense and sacrificing independent judgment to the expert's assertions, which are based on understanding the technical aspects of the test." Id., 91. We held that, prior to admission, testimony regarding HGN tests and its results are the type of scientific evidence that must comply with the then prevailing requirements in Connecticut for the admission of scientific evidence derived from Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Merritt, supra, 91.

Under the rigid Frye test, parties seeking to introduce scientific evidence could do so only if they proved that the scientific methodology has gained "general acceptance" in the scientific community. Frye v. United States, supra, 293 F. 1014.

When deciding Merritt, however, we also recognized that the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals , Inc., supra, 509 U.S. 586-89, had adopted as federal law a broader test for the admission of scientific evidence and had held that the rigid rule of Frye no longer governed. State v. Merritt, supra, 36 Conn. App. 79-80 n. 2. Nevertheless, we adhered to the Frye test in Merritt because our Supreme Court had not yet addressed the issue of whether Daubert had superseded Frye as a matter of state law. Id.

The Daubert approach is more flexible and allows the admission of scientific evidence if it is scientifically reliable or valid. Under that approach, the United States Supreme Court enumerated four nonexclusive factors with which courts can determine whether scientific evidence is reliable. Those factors are as follows: "(1) whether [the scientific method] can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, including the existence and maintenance of standards controlling the technique's operation; and (4) whether the technique is, in fact, generally accepted in the relevant scientific community." State v. Porter, supra, 241 Conn. 64, citing Daubert v. Merrell Dow Pharmaceuticals , Inc., supra, 509 U.S. 593-94.

In 1997, however, our Supreme Court squarely addressed that issue in State v. Porter, supra, 241 Conn. 66-68. It explicitly held that "the Daubert approach should govern the admissibility of scientific evidence in Connecticut." Id., 68.

Contrary to the state's argument that Porter overruled Merritt, we view it as having modified Merritt. While Porter affected the criteria for the admission of scientific evidence reiterated in Merritt, it did not affect the primary holding of Merritt. Testimony regarding HGN testing is still the type of scientific evidence that may mislead a jury in the absence of a proper foundation. Merely changing the criteria for the admission of scientific evidence has no affect on the primary holding of Merritt. Accordingly, we conclude that Porter modified Merritt so that, prior to admission, testimony regarding HGN testing is the type of scientific evidence that must comply with the now prevailing requirements in Connecticut for the admission of scientific evidence derived from Daubert.

Having clarified the law with respect to admission of testimony concerning HGN testing, we now turn our attention to the present case. The court, over the defendant's objection, allowed Kovanda to testify regarding the results of the defendant's HGN test without requiring the state to establish the proper foundation for the admission of scientific evidence as set forth in Daubert. Rather than conducting the proper Daubert analysis, the court simply disregarded the primary holding of Merritt by concluding that HGN testing was not scientific evidence. It stated: "I'm going to allow the officer to testify [about the HGN testing because] I feel that it's . . . not really, in my book, a really classic scientific test." We conclude, therefore, that the court abused its discretion in admitting Kovanda's testimony regarding the results of the defendant's HGN test without requiring that the state satisfy the criteria for the admission of scientific evidence as set forth in Daubert.

Whether the HGN test satisfies the criteria of Daubert is a separate issue. Although our Supreme Court adopted the Daubert approach, it noted that the Frye test was not completely abandoned. Instead, the "general acceptance" test of Frye is "an important factor in a trial judge's assessment." State v. Porter, supra, 241 Conn. 84. So important, according to our Supreme Court, that "if a trial court determines that a scientific methodology has gained general acceptance, then the Daubert inquiry will generally end and the conclusions derived from that methodology will generally be admissible." (Emphasis in original.) Id., 85. Because the court here held that the HGN test is not even subject to the Daubert analysis, we need not address the issue of whether the HGN test satisfies the Daubert criteria and, accordingly, leave that issue for another day.

Our inquiry, however, does not end with the conclusion that the court abused its discretion in admitting the testimony. We also must determine whether the court's admission of such evidence constituted harmless error. "Where an evidentiary ruling has been found to be incorrect, but the improper ruling, as here, does not implicate a constitutional right of the defendant, the burden rests on the defendant to establish the harmfulness of the claimed impropriety. State v. Chapman, 229 Conn. 529, 544, 643 A.2d 1213 (1994); State v. Merritt, [supra, 36 Conn. App. 92].

"In order to establish the harmfulness of a trial court ruling, the defendant must show that it is more probable than not that the improper action affected the result. State v. Chapman, supra, 229 Conn. 544. The question is whether the trial court's error was so prejudicial as to deprive the defendant of a fair trial, or, stated another way, was the court's ruling, though erroneous, likely to affect the result? State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); see also State v. DePastino, 228 Conn. 552, 567, 638 A.2d 578 (1994)." State v. Grenier, 55 Conn. App. 630, 643, 739 A.2d 751 (1999), cert. granted on other grounds, 252 Conn. 931, 746 A.2d 794 (2000).

In the present case, we cannot conclude that the admission of Kovanda's testimony regarding the HGN testing and its results affected the outcome of the defendant's trial. The jury heard other evidence from which it reasonably could have found that the defendant was intoxicated while operating his vehicle. Kovanda testified that prior to the administration of the field sobriety tests, the defendant's breath smelled of alcohol, his speech was slurred, his eyes were glassy and he was unable to keep his balance. The defendant, according to Kovanda, also admitted to drinking beer and rum since noon. Kovanda testified that in addition to the HGN test, he administered three other field sobriety tests and that, in his opinion, the defendant failed all three. On the basis of his experience, Kovanda concluded that the defendant's demeanor and failure of the sobriety tests indicated that he was intoxicated while operating his vehicle. The admission of Kovanda's testimony regarding the HGN test and its results did not impede the jury's ability to evaluate the credibility of the other evidence he offered. We cannot conclude that, absent the HGN testimony, the result of the defendant's trial would have been different. Therefore, the court's improper admission of the HGN testimony was harmless.