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State v. McCurdy4/18/2002
David McCurdy appeals from a judgment of conviction for operating under the influence (OUI), 29-A M.R.S.A. § 2411, entered in the Superior Court (Washington County, Hjelm, J.) following a jury trial. McCurdy argues that (1) there was insufficient evidence to convict him of the offense charged, (2) the court improperly allowed a witness called by the State to testify about her qualifications for determining intoxication and did not impose a sufficient sanction for an alleged discovery violation by the State, and (3) the court improperly excluded evidence of bias on the part of the arresting officer. We affirm the conviction.
[ 2] On November 6, 1999, McCurdy and Michael Tinker attempted to enter the country through the Lubec port of entry on their way home from a trip to Canada. They were questioned at the customs station by U.S. Customs Inspector James Doherty, and when they admitted to him that they had been drinking, Inspector Doherty asked them to pull into the Customs Office parking lot and to come into the station. Inspector Amy Jackson observed (but did not overhear) the interchange from her nearby office. Jackson went into the front of the station when she saw the men park and come inside.
[ 3] About this time, Officer John Fuller, a deputy in the Washington County Sheriff's Department, arrived at the entry port as part of his regular patrol. Although Fuller did not observe McCurdy driving or exiting the car, he did see McCurdy walk across the parking lot to the office.
[ 4] Tinker told Officer Fuller that he had been driving, and Fuller did not then ask either of the customs officers to confirm this. Because Tinker was acting intoxicated, Fuller arrested him for OUI. He also arrested McCurdy for drinking in violation of the conditions of his probation. [FN1] The next day Fuller went to get statements from the customs inspectors, and learned that McCurdy had been driving the car. [FN2] McCurdy was then charged with OUI.
FN1. The Superior Court found that this arrest was improper, and suppressed the intoxilyzer test later administered at the station. We do not address the correctness of that ruling.
FN2. Inspector Doherty stated in the police report, and later
testified at the trial, that McCurdy had been driving. McCurdy does not challenge this testimony.
[ 5] Prior to trial, the defense made a discovery request for all information establishing the qualifications of any witness that the State planned to have offer any expert opinions. The State did not provide anything to the defendant in discovery about the qualifications of Inspector Jackson or Officer Fuller. [FN3]
FN3. The parties refer to a discovery order but the record does not indicate that the discovery request was granted. M.R.Crim. P. 16(d)(3) requires the State to submit proposed expert testimony in writing prior to trial upon the request of the defendant. The State's failure to submit the names of Inspector Jackson and Officer Fuller as potential expert witnesses, however, does not appear to be a violation of the discovery order because opinion testimony as to a person's intoxication is generally not considered to be expert testimony. State v. Libby, 153 Me. 1, 133 A.2d 877 (Me.1957); State v. Hamilton, 149 Me. 218, 100 A.2d 234 (Me.1953); Stacy v. Portland Publ'g Co., 68 Me. 279 (Me.1878).
*87 [ 6] Jackson testified at trial about the symptoms McCurdy exhibited, McCurdy objected to Jackson testifying about her qualifications as an expert because the State had not provided anything in discovery about her qualifications to determine intoxication. The State responded that, although it wanted to have Jackson testify about her qualifications to recognize intoxication, it did not intend to have her offer a conclusion about whethe
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