FILED
November 7, 2013
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30933-9-111 Respondent, ) ) v. ) ) RYAN RICHARD QUAALE, ) PUBLISHED OPINION ) Appellant. )
SIDDOWAY, A.C.J. - At issue is whether Ryan Quaale was denied his right to a
fair trial when the State's witness, an arresting trooper, testified to his opinion based on a
horizontal gaze nystagmus (HGN) test performed in the field that there was "no doubt"
Mr. Quaale was impaired from alcohol consumption. Given the type of witness involved,
the nature of the testimony, and the limits that our Supreme Court placed on opinions that
may be expressed from HGN testing in State v. Baity, 140 Wn.2d 1,991 P.2d 1151
(2000), the opinion might well have improperly int1uenced the jury, depriving him of a
fair trial. We reverse and remand for a new trial.
Mr. Quaale's remaining assignments of error complain of prosecutoriaI
misconduct alleged to have occurred during closing argument. In light of our reversal of
the judgment and sentence, we need not address his arguments that the trial court should No.30933-9-III State v. Quaale
have declared a mistrial. With respect to his claim that the alleged misconduct warranted
dismissal of the felony driving under the influence (DUI) charge under CrR 8.3(b), Mr.
Quaale fails to demonstrate that any prejudice cannot be remedied by the new trial.
FACTS AND PROCEDURAL BACKGROUND
Ryan Quaale was charged with attempting to elude a pursuing police vehicle and
felony DUI based on his detention and arrest in August 2011, following a pursuit by
Washington State Patrol Trooper Chris Stone. Trooper Stone had seen Mr. Quaale's
truck speeding in a residential neighborhood in Mead and activated his lights to pull him
over. Mr. Quaale responded by turning off his truck's headlights and accelerating. Even
after overshooting a comer and skidding off the road into a front yard, Mr. Quaale
recovered, returned to the road, and persisted in speeding away. Trooper Stone continued
to pursue, turning on his siren, and after several more blocks, Mr. Quaale stopped his
truck and stepped out.
Trooper Stone handcuffed Mr. Quaale and, as he did, smelled alcohol. To assess
whether Mr. Quaale was legally impaired, the trooper performed a field sobriety test for
HGN. Nystagmus is the involuntary oscillation of the eyeballs resulting from the body's
attempt to maintain orientation and balance; HGN is an inability to maintain visual
fixation as the eyes tum from side to side. Baity, 140 Wn.2d at 7 n.3. HGN occurs in
persons consuming alcohol. Id. at 12. The only field sobriety test that Trooper Stone
performed on Mr. Quaale was the HGN test. He concluded from the test that Mr. Quaale
, No.30933-9-II1 State v. Quaale
was impaired and arrested him. He transported Mr. Quaale to a state patrol office, where
Mr. Quaale refused to submit to a breath test.
When Mr. Quaale was first tried on the two charges, the jury found him guilty of
attempting to elude a police vehicle but was deadlocked on the felony DUI charge. The
trial court declared a mistrial on the latter count, and it is Mr. Quaale's second trial on
that count that is the subject of this appeal.
At the second trial (as in the first) the State relied on the testimony of Trooper
Stone to establish that Mr. Quaale had been driving while intoxicated and impaired.
It established that the trooper had been trained as a drug recognition expert (DRE). DREs
are trained to recognize the behavior and physiological conditions associated with certain
psychoactive drugs and alcohol and, from that, to form an opinion whether a driver is
impaired. Id at 4. A full DRE examination of a suspect includes 12 steps, some
involving observation and others involving questioning and testing. Id at 6. HGN
testing is one of the 12 steps. See id
After having Trooper Stone describe the extent of his experience, explain HGN
and the procedure for testing it, and tell the jury about his administration of the test to Mr.
Quaale, the prosecutor asked, "In this case, based on the HGN test alone, did you form an
opinion based on your training and experience as to whether or not Mr. Quaale's ability
to operate a motor vehicle was impaired?" Report of Proceedings (Apr. 9 & May 17,
2012) (RP) at 33. Mr. Quaale's lawyer immediately objected that the trooper was being
No.30933-9-III State v. Quaale
asked to provide an opinion on the ultimate issue determining guilt. The objection was
overruled. Trooper Stone answered, "Absolutely. There was no doubt he was impaired."
Id.
A second evidentiary issue relevant to this appeal arose later, during the redirect
examination of Trooper Stone. During cross-examination, Mr. Quaale's lawyer had
asked the trooper whether Mr. Quaale was driving with a suspended license at the time
the trooper stopped and arrested him. She would later explain to the trial court that she
intended to use the fact that Mr. Quaale's license was revoked to argue that her client
attempted to elude the trooper not because he was intoxicated, but out of concern he
would be charged for driving with a suspended license. In response to the question,
Trooper Stone affirmed that Mr. Quaale's license was revoked at the time.
On redirect, the prosecutor asked Trooper Stone why Mr. Quaale's license had
been revoked, knowing that it was revoked when Mr. Quaale earlier refused to take a
breath test. See former RCW 46.20.308(7) (2008); RCW 46.20.3101 (providing for
suspension, revocation or denial of an arrested person's license to drive in the event of
refusal of a breath test).
Mr. Quaale's lawyer made a timely objection. Outside the presence of the jury,
she argued that the question was designed to introduce evidence of criminal history that
was not admissible. The prosecutor conceded that "if I had tried to bring it out in my
direct, it absolutely would have been objectionable," but "[c ]ounsel brought it out in her
cross, and the state is entitled to go into it on redirect." RP at 48. The trial court
overruled the defense objection and when the jury returned, Trooper Stone testified that
Mr. Quaale's license had been revoked for a prior refusal to take the breath test.
Before the parties delivered closing arguments, Mr. Quaale's lawyer raised the
issue of the reason for Mr. Quaale's prior license revocation again, asking for a limiting
order preventing the State from mentioning it during closing. The prosecutor represented
that she would not address it in closing unless there was something in defense counsel's
argument that warranted rebuttal. The trial court ruled, "I am going to permit that
evidence to stand, and it may be responded to in rebuttal." Clerk's Papers (CP) at 147.
Mr. Quaale's lawyer then asked, "So, Your Honor, to clarify, if in closing arguments it is
not discussed by me, is that then limiting the State as well?" Id. The trial court
responded, "Right." Id.
During closing arguments the defense did not raise Mr. Quaale's license status.
The State raised it in its rebuttal argument, however. Although the trial court granted one
defense objection and told the jury to disregard Ii statement by the prosecutor, it overruled
Mr. Quaale's objection to other statements.
After the jury was dispatched to deliberate, Mr. Quaale moved for a mistrial
because the State violated the trial court's ruling. The two lawyers disagreed over
whether Mr. Quaale's lawyer had raised her client's revoked license status in her closing
argument. The trial court reserved ruling on the issue until a transcript could be obtained.
No. 30933-9-111 State v. Quaale
A transcript of the arguments revealed that Mr. Quaale's lawyer had steered clear
of her client's license status during closing argument. Having established the violation of
the court's ruling, Mr. Quaale then filed a motion to dismiss the felony DUI charge on the
basis of governmental misconduct, relying on CrR 8.3(b). He argued that the court
should dismiss the case because no limiting instruction could have cured what he
characterized as the critical prejudice: namely, that his lawyer had forgone an important
explanation for Mr. Quaale's conduct-his concern about being arrested for a suspended
license-in reliance on the court's ruling.
Faced with the transcript, the State admitted that the prosecutor had violated the
court's ruling but argued she was justified in raising the revoked license because it was a
fair response to the defense argument that in refusing to submit to a breath test, Mr.
Quaale was exercising a legal right. The trial court denied Mr. Quaale's motion,
reasoning that the tendency of the defense statement was to "advance a rationale for the
decision to refuse the breath test" and "the prosecution is entitled to counter with an
alternative rationale for refusing the breath test." CP at 122. Mr. Quaale appeals.
ANALYSIS
Mr. Quaale makes four assignments of error: that (1) he was denied a fair trial
when Trooper Stone testified that there was "no doubt" he was impaired, (2)
prosecutorial misconduct denied him a fair trial, (3) cumulative error denied him a fair
trial, and (4) the trial court erred in denying his motion to dismiss the prosecution. We
address the opinion testimony and governmental misconduct issues in tum.
Did Trooper Stone's opinion that Mr. Quaale was "absolutely" impaired deny him a fair trial?
Mr. Quaale first argues that Trooper Stone's testimony amounted to an opinion on
guilt and thereby denied him a fair trial. The trial court has wide discretion to determine
the admissibility of evidence, and the trial court's decision whether to admit or exclude
evidence will not be reversed on appeal unless the appellant can establish that the trial
court abused its discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001)
(citing State v. Rivers, 129 Wn.2d 697, 709-10, 921 P.2d 495 (1996)). A trial court
abuses its discretion when its evidentiary ruling is based on untenable grounds or reasons.
State v. Neal, 144 Wn.2d 600,609,30 P.3d 1255 (2001). Where reasonable minds could
take differing views regarding the propriety of the trial court's actions, the trial court has
not abused its discretion. Demery, 144 Wn.2d at 758.
ER 701 permits testimony in the form of opinions or inferences that are "rationally
based on the perception of the witness" and "helpful to a clear understanding of the
witness' testimony or the determination of a fact in issue." ER 704 provides that
"[t]estimony in the form of an opinion or inferences otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact."
Notwithstanding ER 704, however, "[n]o witness, lay or expert, may testify to his
No.30933·9-III State v. Quaale
opinion as to the guilt of a defendant, whether by direct statement or inference." State v.
Black, 109 Wn.2d 336,348, 745 P.2d 12 (1987). Impermissible opinion testimony
regarding the defendanf s guilt may be reversible error because such evidence violates the
defendanfs constitutional right to a jury trial, which includes the independent
determination of the facts by the jury. State v. Kirkman, 159 Wn.2d 918,927,155 P.3d
125 (2007). On the other hand, "testimony that is not a direct comment on the
defendanfs guilt ... , is otherwise helpful to the jury, and is based on inferences from the
evidence is not improper opinion testimony." City ofSeattle v. Heatley, 70 Wn. App.
573, 578, 854 P.2d 658 (1993).
Even where expert testimony is helpful to the jury, "[i]t is unnecessary for a
witness to express belief that certain facts or findings lead to a conclusion of guilt." State
v. Montgomery, 163 Wn.2d 577, 592, 183 P.3d 267 (2008). "[O]pinion testimony should
be avoided if the information can be presented in such a way that the jury can draw its
own conclusions." Id. at 591 (citing FED. R. EVID. 702 advisory committee notes). In
Montgomery, our Supreme Court explained that "[t]o avoid inviting witnesses to express
their personal beliefs, one permissible and perhaps preferred way is for trial counsel to
phrase the question 'is it consistent with' instead of' do you believe.'" Id. at 592.
Washington decisions have previously addressed whether HGN testing and the
other 11 steps of a DRE evaluation are scientific, and whether they meet the requirements
of Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) for novel scientific
evidence. In Baity, 140 Wn.2d at 14, the Supreme Court held that although not all
components ofDRE testing are scientific in nature, HGN testing is. It also concluded
that HGN testing is generally accepted in relevant scientific communities as a means of
indicating the ingestion of certain drugs or alcohol. Because the conclusions to be drawn
from HGN testing are indefinite as to the amount of consumption or impairment,
however, the court explicitly limited the type of opinion that may be offered from HGN
testing. Baity involved challenges to HGN testing for impairment from drug use rather
than alcohol, but its discussion of limitations on the type of opinion that may be offered
have equal application where a DUI charge is based on impairment from alcohol
consumption.
The court held in Baity that even where an officer has fully evaluated a driver
using all 12 steps of DRE,
an officer may not testify in a fashion that casts an aura of scientific certainty to the testimony. The officer also may not predict the specific level of drugs present in a suspect. The DRE officer, properly qualified, may express an opinion that a suspect's behavior and physical attributes are or are not consistent with the behavioral and physical signs associated with certain categories ofdrugs.
1d. at 17-18 (emphasis added).
These limitations find support in later decisions by other courts, evaluating even
more recent studies and scientific opinion. The most recent Frye hearing on the
admissibility of such evidence that we encountered in our review was ordered by the
Illinois Supreme Court in 2007. In that Frye hearing conducted in 2007 and 2008 (the
Frye hearing reviewed in Baity appears to have taken place in 1998) it was concluded
that testimony regarding HGN testing results "'should be limited to the conclusion that a
"failed" test suggests that the subject may have consumed alcohol and may [have] belen]
under the influence. There should be no attempt to correlate the test results with any
particular blood-alcohol level or range or level of intoxication.'" People v. McKown, 236
Il1.2d 278,293,924 N.E.2d 941 (2010) (alterations in original). The Illinois Supreme
Court affirmed that limitation in 2010, explaining that "[a] failed HGN test is relevant to
impairment in the same manner as the smell of alcohol on the subject's breath or the
presence of empty or partially empty liquor containers in his car"-each fact is evidence
of alcohol consumption and is relevant and admissible for that reason. Id. at 302-03.
Division Two of this court was called upon to apply the limits on opinion evidence
imposed by Baity in State v. Koch, 126 Wn. App. 589, 103 P.3d 1280 (2005). In that
case, the trial court had ruled in response to a motion in limine-"correctly," according to
Division Two-that the State's experts "may testify that an HGN test can show the
presence of alcohol but not the specific levels of intoxicants." Id. at 597. An arresting
officer called by the State abided by the order, testifying that "when he detects HGN, it
tells him '[t]hat there is a chance that there is alcohol in the person's system.'" Id. at 593
(alteration in original). But when the prosecutor asked the State's toxicologist about the
reliability ofthe HGN test, the toxicologist testified that it was '''like 91 or 92 percent
reliable'" at a .08 leveL Id.
Division Two found that the admission of the toxicologist's report was error and
that it had not been waived. But it concluded that the error was harmless because the
result of the defendant's breath test (a blood alcohol content of .147 and .141) had also
been admitted into evidence, and properly so. In light of the blood test results, the
defendant could not show that the toxicologist's testimony about the reliability of the
HGN test so prejudiced him as to require a new triaL
We tum, then, to the admission of Trooper Stone's opinion testimony in this case.
To determine the admissibility of challenged opinion testimony, Washington courts
consider the circumstances of the case, including the following five factors: '''(1) the type
of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges,
(4) the type of defense, and (5) the other evidence before the trier of fact. '" Montgomery,
163 Wn.2d at 591 (internal quotation marks omitted) (quoting Demery, 144 Wn.2d at
759).
In Montgomery, the Supreme Court analyzed how several of the five factors are
weighed in the context of an arresting officer providing testimony that is arguably an
opinion on guilt, direct or by inference. As to the "type of witness involved," the court
reiterated the well-recognized fact that police officers' testimony "carries an 'aura of
reliability'" yet at the same time, their opinions on guilt "have low probative value." 163
No. 30933-9-II1 State v. Quaale
Wn.2d at 595 (quoting Demery, 144 Wn.2d at 765). Police officers' area of expertise "is
in determining when an arrest is justified, not in determining when there is guilt beyond a
reasonable doubt." Id. (citing Deon J. Nossel, Note, The Admissibility of Ultimate Issue
Expert Testimony by Law Enforcement Officers in Criminal Trials, 93 COLUM. L. REv.
231,244 n.70 (1993)). This factor, then, weighed against the admissibility of Trooper
Stone's opinion.
As to the specific nature of the testimony, the prosecutor did not merely ask
whether Mr. Quaale displayed HGN consistent with the consumption of alcohol; she
asked the trooper directly for his opinion whether Mr. Quaale's ability to operate a motor
vehicle was impaired. This was equivalent to framing questions and receiving answers in
the form of personal belief, which was criticized in Montgomery. See id. at 594 (stating it
was "very troubling that the testimony in this case was quite direct and used explicit
expressions of personal belief'). Moreover, the trooper's testimony that he had
"absolutely" formed an opinion that there was "no doubf' Mr. Quaale was impaired
overstated the exactness ofHGN testing in respects explicitly forbidden by Baity.
The State protests that the Baity limitations were not violated because the trooper
did not testify to blood alcohol content in numeric terms. But testimony need not be
numeric to violate Baity. To say the HGN test establishes "no doubt" of impairment casts
an aura of scientific certainty that the level of drugs was sufficient to impair. This second
factor, then, strongly weighed against the admissibility of the trooper's opinion.
As to the nature of the charge and the type of defense, the core issue and only
disputed element of the felony DUI charge was whether Mr. Quaale was impaired. The
jury was instructed that to convict Mr. Quaale of felony DUI, it was necessary for the
State to prove, among other required elements, that in driving his truck at the time he was
stopped by the trooper, Mr. Quaale had been "under the influence ofor affected by
intoxicating liquor." CP at 91 (Instruction 4). It was instructed that "[a] person is under
the influence of or affected by the use of intoxicating liquor if the person's ability to
drive a motor vehicle is lessened in any appreciable degree." Id. at 92 (Instruction 5).
The trooper was asked, again, whether he formed an opinion "whether or not Mr.
Quaale's ability to operate a motor vehicle was impaired," to which the trooper
responded, "There was no doubt he was impaired." While not a direct opinion on guilt, it
was an opinion on an ultimate issue and sufficiently equivalent to the key element in
dispute to create a concern, in light of the other factors, that the jury would be unduly
influenced by the testimony. Cf Black, 109 Wn.2d at 349 (rape counselor's testimony
that in her opinion, there was a specific rape trauma profile for rape victims and the
alleged victim fit it "constitutes, in essence, a statement that the defendant is guilty of the
crime of rape"); State v. Alexander, 64 Wn. App. 147,154,822 P.2d 1250 (1992) (expert
stating beliefthat child was not lying about sexual abuse "effectively testified" that
defendant was guilty); State v. King, 167 Wn.2d 324,219 P.3d 642 (2009) (State
No.30933-9-II1 State v. Quaale
conceded that officer's testimony that defendant's actions had been reckless within the
meaning of that element of the crime of reckless driving was improper).
The State argues, however, that this case is on all fours with Heatley, in which
Division One of this court held that an officer permissibly testified to his determination
that the defendant was'" obviously intoxicated and affected by the alcoholic drink that
he'd been, he could not drive a motor vehicle in a safe manner.'" 70 Wn. App. at 576.
We agree that the subject matters on which the opinions in Heatley were expressed-
intoxication and impairment-are the same as the subject matters here. But there are
critical differences between the opinion offered in Heatley and the opinion offered in this
case.
The opinion expressed in Heatley was, as that court pointed out, "based on [the
officer's] detailed testimony about his observations of Heatley's physical condition and
performance on the field sobriety tests." Id. at 581. As a foundation for his opinion, the
officer described a number of observations as well as Mr. Heatley's performance on tests
that included reciting the alphabet, counting backwards, and performing several balance
tests. "The jury was therefore in a position to independently assess the opinion in light of
the foundation evidence." Id. at 581-82. Some effects of alcohol are, as recognized in
Heatley, "'commonly known and all persons can be presumed to draw reasonable
inferences therefrom.'" Id. at 580 (quoting State v. Smissaert, 41 Wn. App. 813, 815,
706 P.2d 647 (1985)).
14 No.30933-9-III State v. Quaale
In addition, the officer in Heatley spoke only to his determination based on these
fully described, nontechnical observations, not to certainty. As our Supreme Court has
since said of Heatley, "A lay person's observation of intoxication is an example ofa
permissible lay opinion. But the advisory committee to Federal Rule of Evidence 702
explained that witnesses should not tell the jury what result to reach and that opinion
testimony should be avoided if the information can be presented in such a way that the
jury can draw its own conclusions." Montgomery, 163 Wn.2d at 591 (citation omitted).
Here, unlike in Heatley, Trooper Stone testified to an opinion arrived at from a test
that Baity concluded was scientific and subject to Frye. And rather than testify that Mr.
Quaale's HGN was consistent with consumption of alcohol, he testified that there was
"no doubt" as to impairment, exceeding the opinions that Baity held could permissibly be
expressed. Heatley itself recognized that "[w]hether testimony constitutes an
impermissible opinion on guilt or a permissible opinion embracing an 'ultimate issue'
will generally depend on the specific circumstances of each case." 70 Wn. App. at 579.
Accordingly, while the "nature of charge" and "type of defense" factors might not
have weighed against admissibility had the trooper testified to a foundation whose
support for his opinion could be independently assessed by the jury, they do weigh
against admissibility here. The opinion addressed not only an ultimate fact, and not only
the core disputed fact, but in the form of a conclusion from scientific evidence that the
jury was not in a position to independently assess.
15 No.30933-9-III State v. Quaale
As to the fifth factor-the other evidence before the trier of fact-Trooper Stone
offered testimony that Mr. Quaale smelled strongly of alcohol and he testified to Mr.
Quaale's reckless and irresponsible driving before being stopped and arrested. But
Trooper Stone was the only witness who offered evidence of Mr. Quaale's intoxication.
As a result, this fifth factor might not weigh in favor of excluding the evidence but it does
not weigh in favor of admitting it, either.
Given four factors weighing against the admissibility of the opinion (one
strongly), and no factor weighing in favor, we conclude that admitting Trooper Stone's
testimony violated Mr. Quaale's constitutional right to have a fact critical to his guilt
determined by the jury.
Constitutional error is harmless if the State establishes beyond a reasonable doubt
that any reasonable jury would have reached the same result in the absence of the error.
State v. Brown, 147 Wn.2d 330,341,58 P.3d 889 (2002). In light of the fact that the
trooper's testimony was the only evidence that Mr. Quaale's ability to drive a motor
vehicle was lessened in any appreciable degree, and the jury deadlock on the felony DUI
count in the first trial, the error was not harmless. The judgment and sentence must be
reversed and the case remanded for a new trial.
Has Mr. Quaale demonstrated prejudice from governmental misconduct that materially affected his right to a fair trial and cannot be remedied by a new trial?
Mr. Quaale's three remaining assignments of error are related to his contention
that the State engaged in prosecutorial misconduct when it violated the court's order
limiting references to his license status in closing argument. Because we are reversing
and remanding the case for a new trial on other grounds, we need not reach two of these
assignments of error, which seek only reversal. There is no reason to believe that the
same limiting order will be needed in a retrial or, if needed, will be violated.
Mr. Quaale's last assignment of error, however, is to denial of his motion to
dismiss. Because he seeks reversal with directions to dismiss the felony DUI charge with
prejudice, this assignment of error must be addressed.
After obtaining a transcript demonstrating that his lawyer did not raise the revoked
status of his license in her closing argument, Mr. Quaale moved the court pursuant to
CrR 8.3(b) to dismiss the felony DUI charge against him for government misconduct.
CrR 8.3(b) provides in relevant part that
[t]he court, in the furtherance ofjustice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial.
The power to dismiss a prosecution under the rule is discretionary and is
reviewable only for manifest abuse of discretion. State v. Dailey, 93 Wn.2d 454, 456,
610 P.2d 357 (1980). Dismissal is considered an extraordinary remedy for prosecutorial
misconduct and will be granted only when there has been prejudice to the rights of the
accused that materially affects his right to a fair trial and cannot be remedied by granting
a new trial. State v. Whitney, 96 Wn.2d 578,580,637 P.2d 956 (1981) (quoting State v.
Baker, 78 Wn.2d 327,332-33,474 P.2d 254 (1970».
We need not determine whether there was prosecutorial misconduct that
prejudiced Mr. Quaale in the second trial, because it is clear that the prejudice he
identifies will not abide retrial. He may still argue whether the State's theory of why he
refused a breath test is relevant. He may still argue whether evidence of a prior arrest, or
that implicitly reveals a prior arrest, is subject to ER 404(b). He may still seek, through
rulings in the next trial, to make the argument he claims he was required to forgo in the
trial below.
We reverse the judgment and sentence and remand for a new trial.
WE CONCUR:
Brown, J.
F~~~S: