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State v. Van Kirk9/6/2001
e consisted of a passing reference to the fact that the defendant went through bankruptcy years earlier, the State could well demonstrate that, qualitatively, there was no reasonable possibility that the tainted evidence might have contributed to the defendant's conviction.
Thus, restated, we hold that, in order to prove that trial error was harmless, the State must demonstrate that there is no reasonable possibility that the inadmissible evidence might have contributed to the conviction. To do this, the State must demonstrate that the fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence and, qualitatively, by comparison, the tainted evidence would not have contributed to the conviction. In those cases in which no such cumulative admissible evidence was presented, then we must determine whether the tainted evidence went to the proof of an element of the crime charged or, by contrast, to some fact not involving an element of the crime. If there was no cumulative evidence presented as to a fact proving an element of the crime charged, then the error in admitting the tainted evidence which proved that element cannot be considered harmless, the qualitative assessment is never reached, and the court's decision will be reversed. If the evidence in question did not prove an element of the crime, then the State must demonstrate that, qualitatively, there is no reasonable possibility that the tainted evidence might have contributed to the defendant's conviction.
Applying this test in the present case, the improper admission of the HGN evidence would be categorized as "trial" error under the above definition. Moreover, the HGN evidence was offered to prove that the defendant was "under the influence," which is an element of the DUI offense. The State therefore must demonstrate that (a) there was other admissible (cumulative) evidence demonstrating the "under the influence" element of the crime charged; and (b) that, qualitatively, no reasonable possibility exists that the tainted evidence might have contributed to the defendant's conviction. We conclude that the State demonstrated both elements here.
The fact-finder was presented with other admissible (cumulative) evidence that proved the same fact as the tainted (HGN) evidence, which was Van Kirk's intoxication. Officer Kelly testified to Van Kirk's slow, erratic, and suspicious driving. Once the ensuing stop was initiated, Officer Kelly observed that Van Kirk had bloodshot eyes and smelled of alcohol, and when asked to produce his vehicle registration and proof of insurance, Van Kirk handed over a map. At the police station, Van Kirk did not perform well on the walk-and-turn sobriety test, and he submitted to a breath test which indicated his blood/alcohol content was .115. On the basis of this other admissible (cumulative) evidence of intoxication, the State met its burden of proving that Van Kirk was under the influence. Moreover, we conclude that the introduction of the inadmissible HGN evidence was harmless because, qualitatively, and in comparison to the admissible evidence presented demonstrating that Van Kirk was under the influence, there is no reasonable possibility that it contributed to the conviction. Accordingly, Van Kirk's right to a fair trial was not prejudiced.
We will never be able to completely eliminate from judicial review the factual context surrounding each claimed error. However, we conclude that the harmless error test announced here, to be applied to the review of all cases after the date of this decision, will help to insure that the substantial rights of the defendant are not prejudiced by the admission of tainted evidence, and will bring the consist
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