State v. Dahood

148 N.H. 723

814 A.2d 159

The STATE of New Hampshire

v.Michael DAHOOD.

No. 99-510.

Supreme Court of New Hampshire.

Submitted Aug. 27, 2002.

Issued Dec. 20, 2002.

Philip T. McLaughlin, attorney general (Constance N. Stratton, assistant attorney general, on the brief and orally, and Brian M. Quirk and Jeffery A. Strelzin, assistant attorneys general, on the supplemental memorandum), for the State.

Jenifer Bensinger Ackerman, assistant appellate defender, of Concord, and Carl Olsen, assistant appellate defender, of Littleton (Ms. Ackerman, on the brief, and Mr. Olsen orally, and Albert E. Scherr and Keith Barnaby, of Concord, on the supplemental memorandum), for the defendant.

Kerry P. Steckowych, of Goffstown, and George E. Wattendorf, of Dover, on the brief, for the New Hampshire Association of Chief's of Police, Inc., as amicus curiae.

DALIANIS, J.

The defendant, Michael Dahood, appeals his conviction for driving while under the influence of intoxicating liquor, second offense, see RSA 265:82-b (1993 & Supp.2002), following a jury trial in the Concord District Court. The sole issue presented on appeal is whether the Horizontal Gaze Nystagmus (HGN) test, as administered in New Hampshire, is admissible at trial. We hold that the test is admissible and affirm the defendant's conviction.

This is the second time this case has reached us on appeal. See State v. Dahood, 143 N.H. 471, 728 A.2d 817 (1999) (Dahood I ). In discussing the facts of this case, we incorporate by reference the underlying facts detailed in our earlier opinion.

In Dahood I , we reversed the defendant's conviction for driving while under the influence of intoxicating liquor, second offense, on the ground that the State improperly introduced expert testimony regarding the defendant's estimated blood alcohol concentration (BAC) level and remanded the case for a new trial. See Dahood I, 143 N.H. at 475, 728 A.2d 817. On remand, the defendant filed a motion in limine to exclude all testimony concerning the HGN test unless the State first laid a proper foundation for the admission of such evidence. Specifically, the defendant requested that the court hold a preliminary hearing to determine whether the HGN test is reliable for purposes of New Hampshire Rule of Evidence (Rule) 702.

The Concord District Court (Robbins , J.) denied the defendant's motion and, instead, took judicial notice of the reliability of the HGN test.

At trial, the court allowed New Hampshire State Trooper Steven Puckett, the arresting officer, to testify as to the defendant's performance on the field sobriety tests, including the HGN test. Trooper Puckett testified that he administered several field sobriety tests, including the HGN test, and that the defendant failed each test. With respect to the HGN test, Trooper Puckett stated that the defendant "had [a] lack of smooth pursuit in both eyes ... [and] a moderate to severe nystagmus at the maximum deviation. In other words, when the eye was all the way over it was bouncing. And that he had an onset of nystagmus at a predetermined location."

The defendant was subsequently convicted of driving while under the influence of intoxicating liquor, second offense. On appeal, he argued that the trial court erred by taking judicial notice of the reliability of the HGN test and that the State should be required to establish the test's reliability under Rule 702. Because we could not conclude from the record whether the HGN test, as administered in New Hampshire, is scientific evidence, we remanded the case to the trial court, but retained jurisdiction. State v. Dahood, No. 99-510 (N.H. June 5, 2001). We ordered the district court to hold an evidentiary hearing to determine whether the HGN test incorporated scientific principles within the meaning of Rule 702 and, if so, whether the test is reliable under the Rule. Id.

Upon remand, the parties stipulated that the HGN test incorporates scientific principles within the meaning of Rule 702 and that the court should determine the test's admissibility using the legal standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In addition, the parties stipulated that the evidence regarding the HGN test was not to be used to calculate a defendant's specific BAC level. Following a five-day evidentiary hearing at which both parties introduced detailed expert testimony and exhibits, the court concluded that the HGN test as administered in New Hampshire is not reliable for purposes of Rule 702 and, therefore, is inadmissible as evidence of the defendant's intoxication. The court ruled, however, that HGN evidence may be admitted to establish probable cause to arrest. The parties thereafter filed supplemental memoranda in this court addressing the district court's ruling as to the first issue.

I. Standard of Review

Generally, we review the trial court's rulings on evidentiary matters, including those regarding the reliability of novel scientific evidence, with considerable deference, and will reverse the court's decision only if its exercise of discretion is unsustainable. State v. Hungerford, 142 N.H. 110, 117, 697 A.2d 916 (1997) ; see also State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (explaining unsustainable exercise of discretion standard). When the reliability or general acceptance of novel scientific evidence is not likely to vary according to the circumstances of a particular case, however, we review that evidence independently. Hungerford, 142 N.H. at 117, 697 A.2d 916; see also State v. Vandebogart (DNA), 136 N.H. 365, 376, 616 A.2d 483 (1992). The defendant argues that we must review the trial court's decision under the deferential standard set forth in Hungerford . Specifically, he argues that HGN evidence is less like forensic DNA evidence, to which we have applied de novo review, see Vandebogart (DNA), 136 N.H. at 376, 616 A.2d 483, and more like repressed memory syndrome evidence, to which we have applied deferential review, see Hungerford, 142 N.H. at 126, 697 A.2d 916. We disagree.

"The level of scrutiny we employ in our reliability inquiry will depend upon the complexity of the evidence involved and the impact the evidence likely will have on the trial itself." Id. at 117, 697 A.2d 916; see Vandebogart (DNA), 136 N.H. at 376, 616 A.2d 483 (stating that question of whether scientific theory and technique are reliable and generally accepted does not vary according to the circumstances of each case). In Hungerford , our inquiry into repressed memory evidence was not purely a question of admissibility of scientific or expert evidence, but also one of witness competency. See Hungerford, 142 N.H. at 118, 697 A.2d 916. In contrast, our examination in Vandebogart of the reliability of DNA evidence was an inquiry as to scientific reliability only. Consequently, because the reliability of the scientific theory and technique underlying forensic DNA testing would not vary in each individual case, we reviewed the admissibility of such evidence de novo. See Vandebogart (DNA), 136 N.H. at 376, 616 A.2d 483. Because the scientific reliability of the HGN test should not vary according to the circumstance of each case, cf. State v. Garrett, 119 Idaho 878, 811 P.2d 488, 490 (1991), we review its scientific reliability independently and make our own determination, without regard to the findings of the trial court. See Vandebogart (DNA), 136 N.H. at 376, 616 A.2d 483.

II. New Hampshire Rule of Evidence 702

We review the admissibility of HGN testing in this case under Rule 702, in accordance with the principles set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Baker Valley Lumber v. Ingersoll-Rand Co., 148 N.H. ----, 813 A.2d 409 (2002). Rule 702 provides: "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." N.H. R. Ev. 702.

In Baker Valley , we adopted the following four factors of the Daubert test: (1) whether a theory or technique 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 error rate of a particular technique; and (4) whether the theory or technique has been generally accepted in the relevant scientific community. Baker Valley, 148 N.H. at ----, 813 A.2d 409. When analyzing the known or potential error rate of a particular scientific technique, Daubert also provides that the court should consider "the existence and maintenance of standards controlling a scientific technique's operation." Daubert, 509 U.S. at 594, 113 S.Ct. 2786. We did not apply this aspect of the known or potential error rate factor in Baker Valley because it was not relevant to those proceedings. Nonetheless, because the existence and maintenance of standards governing HGN testing is at issue here, we will consider this additional aspect when analyzing the reliability of the HGN test under Rule 702.

In summarizing the analytical framework of Daubert , the United States Supreme Court explained that:

The inquiry envisioned by Rule 702 is ... a flexible one. Its overarching subject is the scientific validity-and thus the evidentiary relevance and reliability-of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.

Daubert, 509 U.S. at 594-95, 113 S.Ct. 2786. Importantly, the Daubert test does not stand for the proposition that scientific knowledge must be absolute or irrefutable. State v. Vandebogart, 139 N.H. 145, 156, 652 A.2d 671 (1994). The Court acknowledged that "it would be unreasonable to conclude that the subject of scientific testimony must be known to...