Appeal from Spokane Superior Court. Docket No: 11-1-02707-5. Date filed: 06/06/2012. Judge signing: Honorable Gregory D Sypolt.
Eric J. Nielsen and Dana M. Nelson (of Nielsen Broman & Koch PLLC ), and Jennifer L. Dobson, for appellant.
Steven J. Tucker, Prosecuting Attorney, and Mark E. Lindsey and Andrew J. Metts III, Deputies, for respondent.
AUTHOR: Laurel H. Siddoway, A.C.J. WE CONCUR: Stephen M. Brown, J., George B. Fearing, J.
[177 Wn.App. 606] ¶ 1 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 influenced the jury, depriving him of a fair trial. We reverse and remand for a new trial.
¶ 2 Mr. Quaale's remaining assignments of error complain of prosecutorial 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 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
¶ 3 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 corner 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.
[177 Wn.App. 607] ¶ 4 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 turn 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 was impaired and arrested him. He transported Mr. Quaale to a state patrol office, where Mr. Quaale refused to submit to a breath test.
¶ 5 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.
¶ 6 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.
¶ 7 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 [177 Wn.App. 608] Proceedings (Apr. 9 & May 17, 2012) (RP) at 33. Mr. Quaale's lawyer immediately objected that the trooper was being 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.
¶ 8 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.
¶ 9 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).
¶ 10 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 [examination], it absolutely would have been objectionable," but " [c]ounsel brought it out in her cross[-examination], 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, ...