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State v. Van Kirk9/6/2001
ulse v. State, Dept. of Justice, 1998 MT 108, 289 Mont. 1, 961 P.2d 75. The State counters that even if it was error for the District Court to allow the HGN testimony, it was harmless error because there was overwhelming evidence to convict Van Kirk of DUI.
In order to lay the proper foundation for admitting the results of the HGN test, the State, in addition to showing that the test was properly administered, must also establish a scientific basis for the reliability of the test results. Hulse, 72.
Before HGN test results can be introduced into evidence, a qualified expert must explain the underlying scientific basis of the correlation between alcohol consumption and nystagmus. Id.
Officer Kelly has a bachelor's degree in medical technology and worked as a lab supervisor and technician at Montana State Hospital. Officer Kelly was certified to administer the HGN test and he testified that he properly administered the test to Van Kirk. However, nothing in the evidence establishes that Officer Kelly was specially trained or educated, or that he had adequate knowledge to qualify him as an expert able to explain the correlation between alcohol consumption and nystagmus, the underlying scientific basis of the HGN test. Pursuant to our holding in Hulse, we agree with Van Kirk that the District Court abused its discretion in permitting Officer Kelly to offer the HGN results into evidence without the State first establishing the requisite scientific basis for the test's reliability. We next examine whether the error was prejudicial.
Section 46-20-701(1), MCA, provides that not all error committed by a district court in a criminal proceeding is reversible error:
A cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.
We have held that error is prejudicial, and requires reversal, if a reasonable possibility exists that the inadmissible evidence might have contributed to a conviction. State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266. However, we have at times applied a slightly different standard when confronted with errors that arguably implicate constitutional rights, relying on Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.
In Chapman, the United States Supreme Court held that the test for harmless constitutional error is whether the court can declare its belief that the error was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. The Court in Chapman rejected the notion that all federal constitutional errors, regardless of the facts and circumstances, are harmful and require automatic reversal of a conviction. Id. at 22. We have applied the Chapman harmless error rule to cases in which federal constitutional error is involved. State v. Rothacher (1995), 272 Mont. 303, 312-13, 901 P.2d 82, 87; State v. McKenzie (1980), 186 Mont. 481, 532-33, 608 P.2d 428, 458. However, over time it appears we have interchanged our harmless error rule expressed in State v. Gray, supra, with the Chapman harmless error rule, resulting in some inconsistency and confusion over the proper test to be applied in a harmless error analysis.
In State v. McKenzie, supra, we addressed whether the error in giving jury instructions on rebuttable presumptions, which effectively shifted the burden of proving each element of the crime from the State to the defendant, was harmless. We weighed what appeared to us to be three definable approaches to harmless error under various United States Supreme Court cases, and concluded that the proper test for determining federal constitutional errors unde
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