State of Maine v. Raymond N. Rourke III

2017 ME 10, 154 A.3d 127, 2017 Me. LEXIS 12

• Court: Supreme Judicial Court of Maine
• Decided: January 17, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 10 Docket: Sag-16-48 Argued: November 8, 2016 Decided: January 17, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

RAYMOND N. ROURKE III

HJELM, J.

[¶1] Raymond N. Rourke III appeals from a judgment of conviction for

operating under the influence with one prior conviction (Class D), 29-A M.R.S.

§ 2411(1-A)(B)(1) (2016), entered in the trial court (Sagadahoc County,

Horton, J.) after a jury trial. Rourke argues that the court abused its discretion

by excluding expert testimony that certain chemicals, if present in Rourke’s

system, could have resulted in a falsely elevated breath-alcohol test.1 We

affirm the judgment.

1 We are unpersuaded by Rourke’s additional argument, to the extent that it is preserved, that

overlapping testimony from two law enforcement officers about field sobriety tests administered to Rourke was unfairly prejudicial or needlessly cumulative and therefore subject to exclusion pursuant to M.R. Evid. 403. We do not address that contention further. 2

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the

jury could rationally have found the following facts beyond a reasonable

doubt. See State v. Fay, 2015 ME 160, ¶ 2, 130 A.3d 364.

[¶3] On August 2, 2014, around 2:00 a.m., Lieutenant Frederick M.

Dunn of the Topsham Police Department stopped a vehicle for speeding.

Dunn smelled the odor of alcohol coming from the car and observed that the

driver, Raymond N. Rourke III, had bloodshot eyes. Rourke acknowledged

that he had been drinking wine earlier that evening. After a second officer

arrived, Dunn administered three field sobriety tests, including the horizontal

gaze nystagmus (HGN) test. At Dunn’s request, the second officer repeated

the HGN test. Rourke showed signs of impairment during the field sobriety

tests, and Dunn arrested him for operating under the influence.

[¶4] After transporting Rourke to the police station, Dunn, who is

certified to operate breath-alcohol testing equipment, obtained a breath

sample from Rourke using an Intoxilyzer 8000 instrument. A display on the

Intoxilyzer indicated “radio frequency interference,” and the instrument shut

down. Dunn restarted the Intoxilyzer, and Rourke provided two more breath

samples. This time, the Intoxilyzer did not produce an error message, but 3

rather reported a final result of 0.11 grams of alcohol per 210 liters of breath.2

While chatting with Dunn at the police station, Rourke mentioned that he was

a mechanic and had been working at his place of employment that evening

before the traffic stop.

[¶5] In early September 2014, Rourke was charged by complaint with

one count of operating under the influence with one prior conviction

(Class D), 29-A M.R.S. § 2411(1-A)(B)(1).3 He pleaded not guilty to the charge.

A jury trial was held over two days in January 2016, where the parties

presented evidence consistent with the facts described above.

[¶6] During the trial, Rourke sought to present expert testimony from

Patrick Demers, who has training and experience in pharmacy and forensic

chemistry. In a report that Rourke had provided to the State before trial, see

M.R.U. Crim. P. 16A(b)(2), Demers asserted that “for several hours prior” to

Rourke’s arrest, Rourke had been working with automotive chemicals

containing hydrocarbons, ketones, and toluene, which, when inhaled, can

“result in a falsely elevated reading on [an] Intoxilyzer.” The State filed a

pretrial motion to exclude Demers’s testimony pursuant to M.R. Evid. 403, 2 A person is guilty of OUI if he or she operates a motor vehicle “[w]hile having an alcohol level

of 0.08 grams or more of alcohol per . . . 210 liters of breath.” 29-A M.R.S. § 2411(1-A)(A)(2) (2016).

3 At trial, the parties stipulated that Rourke had one prior OUI conviction within the past ten

years. 4

arguing that Demers had no basis to testify as to whether hydrocarbons or

similar chemicals were present in Rourke’s body when he took the breath test.

[¶7] At trial, after conducting a voir dire examination of Demers outside

of the jury’s presence, see M.R. Evid. 705(b), the court granted the State’s

motion to exclude Demers’s testimony about the possible effect of interferent

chemicals on Rourke’s breath-alcohol test. As the basis for that decision, the

court found, among other things, that although Demers had conducted

laboratory experiments that demonstrated a correlation between exposure to

hydrocarbon chemicals and a positive breath-test result, the experiments

involved an Intoxilyzer model that predated the one used in this case. The

court also determined that there was only “generalized evidence” about the

nature and extent of Rourke’s exposure to interferent chemicals, such that a

jury could not reasonably determine “the level of [chemicals] in [Rourke’s]

. . . breath or the rate at which he might have been emitting” them when the

Intoxilyzer test was administered. The court concluded, based on those

findings, that the probative value of Demers’s proffered opinion testimony

was “drastically outweighed by [its] lack of reliability . . . and the potential to

confuse the jury.”4

4 Later in the trial, without objection, Rourke presented testimony from Demers on other topics,

including the mechanics and limitations of the Intoxilyzer instrument. 5

[¶8] The jury ultimately returned a guilty verdict, and the court

sentenced Rourke to a jail term of ninety days, with all but seven days

suspended, followed by one year of probation; a $700 fine; and a three-year

license suspension. See 29-A M.R.S. § 2411(5)(B) (2016). Rourke timely

appealed. See M.R. App. P. 2(b)(2)(A); 15 M.R.S. § 2115 (2016).

II. DISCUSSION

[¶9] Rourke argues that the court abused its discretion by excluding

Demers’s expert opinion that certain chemicals, if present in Rourke’s system,

could have compromised the reliability of his breath-alcohol test result.

[¶10] Although the court stated that it was excluding Demers’s

testimony pursuant to Rule 403, which was the primary basis for the State’s

motion in limine and argument during voir dire, the court’s reasoning also

implicates M.R. Evid. 702. That Rule provides, “A witness who is qualified as

an expert by knowledge, skill, experience, training, or education may testify in

the form of an opinion or otherwise if such testimony will help the trier of fact

to understand the evidence or to determine a fact in issue.” Id. We review a

ruling on the admissibility of expert testimony for an abuse of discretion.

See State v. Diana, 2014 ME 45, ¶ 35, 89 A.3d 132; State v. Ericson,

2011 ME 28, ¶ 12, 13 A.3d 777. 6

[¶11] For evidence to be admissible pursuant to Rule 702, a court must

find that it “is relevant in accordance with M.R. Evid. 401, and . . . will assist

the trier of fact in understanding the evidence or determining a fact in issue.”

Ericson, 2011 ME 28, ¶ 11, 13 A.3d 777 (quotation marks omitted). Before

engaging in this inquiry, however, a court must make a preliminary finding

that the testimony is reliable. See id. Indicia of reliability include “whether

any studies tendered in support of the testimony are based on facts similar to

those at issue; . . . whether the hypothesis of the testimony has been subject to

peer review; . . . [and] whether an expert’s conclusion has been tailored to the

facts of the case.” Id. ¶ 12 (quotation marks omitted). Expert testimony that

is not reliable has “no probative value,” id. ¶ 14, and cannot “satisfy the

evidentiary requirements of relevance and helpfulness, and of avoidance of

prejudice to [the opposing party] or confusion of the fact-finder,” State v.

Boutilier, 426 A.2d 876, 879 (Me. 1981) (citing M.R. Evid. 402, 403, 702).

[¶12] For the following two reasons, we conclude that given the

particular factual circumstances in this case, the court acted within the

bounds of its discretion by excluding Demers’s testimony about the effect of

interferent chemicals on breath-testing equipment and test results produced

by that equipment. 7

[¶13] First, the “studies tendered in support” of Demers’s opinion were

not “based on facts similar to those at issue” here. Ericson, 2011 ME 28, ¶ 12,

13 A.3d 777. Demers testified during voir dire that his conclusion about the

effect of hydrocarbon chemicals on breath-testing equipment was largely

based on laboratory experiments he had conducted at least twenty-five years

earlier, where subjects produced positive breath-alcohol test results after

inhaling paint thinner. As the court found, however, Demers’s experiments

did not involve the Intoxilyzer 8000, which was the device used in this case.5

The court reasonably determined that it could not assume that the

Intoxilyzer 8000 reacted to hydrocarbons in the same way as the model used

in Demers’s experiments.

[¶14] Further, although not expressly cited by the court in making its

ruling, the court was presented with additional evidence—beyond the

differences in testing equipment—that supported its basic reasoning that

Demers’s analysis was not based on facts and circumstances similar to those

at issue here. For example, Demers’s experiments involved the intentional

inhalation of paint thinner in a laboratory, rather than ambient exposure to

5 Demers testified during voir dire that his experiments were based on the Intoxilyzer 4011 and

5000 models. In testimony presented after the court made its ruling on the State’s motion in limine, Demers acknowledged that he does not own, is not certified in, and has never even operated an Intoxilyzer 8000. 8

chemicals in an industrial environment. Although Demers asserted that there

is literature that supports his hypothesis that there is a correlation between

industrial exposure to hydrocarbons and a positive breath-alcohol test, he was

unable to identify the nature of the literature or whether it had been subject

to peer review.6

[¶15] These material differences between the studies that formed the

basis for Demers’s opinion and the facts of this case, combined with the

absence of meaningful evidence regarding the reliability of the authority he

relied on, are factors that by themselves support the court’s discretionary

decision to exclude Demers’s expert testimony. See Ericson, 2011 ME 28, ¶ 12,

13 A.3d 777.

[¶16] Second, Rourke’s offer of proof was not sufficient to demonstrate

the relevance of Demers’s opinion to the facts at issue in the case, because the

proffer did not did not include a description of the degree to which Rourke

was exposed to hydrocarbon chemicals. Demers offered an opinion that if

6 As further support for his hypothesis about the effect of ambient exposure to hydrocarbon

chemicals, Demers referred anecdotally to an incident where a worker produced a positive breath-alcohol test after cleaning up a paint solvent spill at a sewer treatment plant. Demers acknowledged, however, that in that incident officials merely “surmised that it was hydrocarbon material that [a]ffected the breath-testing device.” (Emphasis added.) Accordingly, although the incident involved circumstances that may have been similar to those in this case, the evidence was ultimately too speculative to serve as a reliable basis for Demers’s expert opinion, and this anecdotal evidence did not render the court’s order erroneous. Cf. State v. Tellier, 526 A.2d 941, 944 (Me. 1987) (stating that expert testimony was properly excluded when the testimony “was so . . . speculative that its relevance and probative value was virtually nil.”). 9

hydrocarbons or similar chemicals were in Rourke’s system, Demers “would

expect to see a contribution to a blood[-]alcohol test result.” Because

Demers’s opinion was framed as a hypothetical, it could be relevant only if it

were supported by evidence that demonstrated the fact or extent of Rourke’s

exposure to hydrocarbons—in other words, evidence that linked Demers’s

hypothetical opinion to Rourke. See State v. Hatt, 2002 ME 166, ¶ 9, 810 A.2d

415 (stating that expert testimony was properly excluded when the

proponent’s offer of proof was insufficient to demonstrate the testimony’s

relevance); State v. Collin, 441 A.2d 693, 695-96 (Me. 1982) (stating that

expert testimony was properly excluded when there was no evidence in the

record, or any offer of proof, linking the testimony to the defendant).

[¶17] Although, here, the court was presented with Dunn’s testimony

that Rourke had been working as a mechanic on the evening before the traffic

stop, there was neither testimony nor a proper offer of proof describing

Rourke’s workspace or the types of chemicals he regularly used, if any.7 As

the court correctly determined, the record contains—at best—only

“generalized evidence” that Rourke worked in an environment where 7 For example, during voir dire, Rourke’s attorney asserted that he had photographs depicting

“the scene of the shop” where Rourke worked. Because the proffer did not demonstrate a foundational basis necessary for the admission of the photographs, however, his assertion does not constitute a proper offer of proof. See State v. Williams, 462 A.2d 491, 492 (Me. 1983) (“An offer of proof must not only detail the proposed [evidence] but must also support the admissibility of that [evidence].”). 10

hydrocarbons could have been present. In the absence of an adequate offer of

proof linking Demers’s opinion with Rourke, the court was entitled to

conclude that the opinion was not relevant and would not assist the jury

either in its evaluation of Rourke’s breath-alcohol test results or in its

determination of whether he was impaired. See Hatt, 2002 ME 166, ¶ 9,

810 A.2d 415; Collin, 441 A.2d at 695-96. The court therefore did not abuse

its discretion by excluding Demers’s expert opinion based on its separate

determination that there was only “generalized evidence” about the extent of

Rourke’s exposure to chemicals that could have affected his breath test.

[¶18] In sum, the court did not abuse its discretion by excluding

Demers’s testimony about the effect of hydrocarbons on the breath-alcohol

test results because there was not a sufficient factual foundation to link

Demers’s testimony with the facts of this case, as shown by evidence of

Demers’s lack of familiarity with the Intoxilyzer 8000 instrument, the

difference between the circumstances of Demers’s experiments and the

circumstances at issue here, and the absence of a sufficient offer of proof

regarding Rourke’s alleged exposure to hydrocarbons.8

8 Further, contrary to Rourke’s argument, the exclusion of Demers’s expert opinion pursuant to

the Maine Rules of Evidence did not infringe on Rourke’s Sixth Amendment right to compulsory process under the circumstances in this case. See State v. Cross, 1999 ME 95, ¶ 7, 732 A.2d 278 (“[A] [d]efendant’s Sixth Amendment right to compulsory process does not provide him with ‘an 11

The entry is:

Judgment affirmed.

Christopher Ledwick, Esq. (orally), Brunswick, for appellant Raymond N. Rourke III

Jonathan R. Liberman, Dep. Dist. Atty. (orally), District Attorney’s Office, Bath, for appellee State of Maine

Sagadahoc County Unified Criminal Docket docket number CR-2014-746 FOR CLERK REFERENCE ONLY

unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’” (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)).