State v. Welch

421 A.2d 142, 120 N.H. 687, 1980 N.H. LEXIS 379

• Court: Supreme Court of New Hampshire
• Decided: October 2, 1980
• Docket: 80-052
• Status: Published

Opinions

DOUGLAS, J.

The issue in this driving-under-the-influence case is whether it was error not to grant a mistrial because of an unresponsive answer of a State’s witness. We reverse.

At this twenty-three-year-old defendant’s trial by jury for operating a motor vehicle while under the influence of intoxicating liquor in violation of RSA 262-A:62, there was evidence that a breathalyzer test showed a reading of 0.26%. A videotape taken at the police station apparently showed that the defendant performed well in so-called sobriety tests. The Trial Court (Wyman, J.) asked Police Officer Tanguay, a State’s witness, how he could reconcile the defendant's performance on videotape with the breathalyzer reading. After a noncontroversial response, the court next asked:

“Is there anything wrong with the machine in your opinion?” The officer began with a proper response but then volunteered a nonresponsive addition:

“No, your Honor. Nothing wrong with the machine. I’d say he has a high tolerance; he’s a heavy drinker, possibly an alcoholic in my opinion.”

The defendant moved for a mistrial, which the court denied. The trial court ordered the answer stricken and later instructed the jury to disregard, it.

There is no doubt that in this jurisdiction a lay witness may express an opinion as to a person’s intoxication. State v. Arsenault, 115 N.H. 109, 111, 336 A.2d 244, 245 (1975); State v. Pike, 49 N.H. 399, 407 (1870). In the instant case, however, the officer had already testified that, despite the defendant’s success in the sobriety tests, it was his opinion that the defendant was under the influence of alcohol. The later comment, in response to the court’s question, that the defendant was “a heavy drinker” and “possibly an alcoholic” included facts not in evidence or reasonably to be inferred from the trial testimony. They lacked any foundation or support and were properly stricken by the trial judge.

In this State the test for determining in a criminal case whether error can be harmless is “whether it can be said beyond a reasonable doubt that the inadmissible evidence did not affect the verdict.” State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976); State v. LaBranche, 118 N.H. 176, 179, 385 A.2d 108, 110 (1978). The reason for our rule is that “[a]n appellate tribunal cannot read the jury’s mind or speculate on the result that would have been obtained had not this improper evidence been put on the scale against the defendant.” State v. LaBranche, supra at 179, 385 A.2d at 110.

The prejudice to the defendant adheres because this case involved a charge of driving while intoxicated and not some offense unrelated to the defendant’s use of alcohol. While this was not an error caused by the prosecutor, the failure of the judge to declare a mistrial cannot fairly be sustained. See State v. Scarlett, 118 N.H. 904, 395 A.2d 1244 (1978). Although the court was diligent to focus the issue for the jury, we cannot find beyond a reasonable doubt that the stricken response had no prejudicial effect on the jury.

Reversed; remanded for new trial.

Grimes, C.J., and Bois, J., dissented; the others concurred.