State v. Massery

David Newbern, Justice. The state has appealed the acquittal of the appellee, David Massery, who was tried for driving while intoxicated. It is contended that the appeal is authorized by Ark. R. Crim. P. 36.10(b) and (c) because an error has been committed in the trial court which will prejudice the state and review is, as provided in subsection (c) of the rule, required for “the correct and uniform administration of the criminal law.” We find no such issue here and thus dismiss the appeal. Massery was observed by patroling officers driving erratically in the parking lot of a grocery store. He failed a field sobriety test and was taken into the station for a blood-alcohol test. A breathalyzer test was administered, and Massery was arrested on the basis of a blood alcohol reading of .116. The state presented Officer Keyes as its first witness. He testified about certification of the breathalyzer machine used in this case and his personal certification as an operator. He testified about the procedure used to calibrate the machine. Massery’s counsel questioned Keyes about the simulator device used in the calibration process. In the course of extended examination and cross-examination, Keyes said the simulator was one manufactured by the Stephenson company and was on the list of simulators approved by the state health department. When asked how he knew it was a Stephenson machine, he said it had been in use many years and at one time had had a Stephenson label on it. The “Arkansas Regulations for Blood Alcohol Testing” along with addendum letters published by the Arkansas Department of Health were introduced as an exhibit. Several Stephenson model simulator machines are listed as approved. Officer Keyes could not say that the machine used in this case was any one of the approved models. The court ruled that the results of the test and the testimony of the officer were to be excluded because the officer did not know whether the particular simulator used was on the approved list. The court ultimately ruled that the State had failed to meet its burden of proof without the test results and dismissed the charges against appellee. The State appeals the ruling striking the testimony of Officer Keyes. The state argues that the trial court has created a new burden of proof in these cases and that it is one which is not required by the statute or supported by the case law. It is asserted that there is no requirement in the rules of evidence or of criminal procedure that a certified intoxilyzer operator possess firsthand knowledge concerning the brand and make of the simulator that he used to calibrate the Intoxilyzer at issue, and our holding in Smith v. State, 301 Ark. 569, 785 S.W.2d 465 (1990), cited to support that assertion. The precise holding of the Smith case is as follows: Arkansas Code Ann. § 5-65-206(d)(l) (1987) does not require the machine operator’s testimony, or his certificate, as a prerequisite to the introduction of chemical analysis test results. This court adopts the rationale of the Arkansas Court of Appeals in its holding in the case of Johnson v. State, 17 Ark. App. 82, 703 S.W.2d 475 (1986), that the provision only requires that the person who calibrates the machine, and the person who operates it, will be made available for cross-examination by the defense upon reasonable notice to the prosecutor. However, there is ample evidence in the record of this case to uphold the verdict of the lower court aside from the results of the breathalyzer test. The case does hold that the certificate of the officer and his testimony are not threshold requirements under the statute but makes it equally clear that the officer should be available for cross-examination. The only logical purpose for such cross-examination is for the defense counsel to challenge the certification either of the machine or of the officer in the context of the particular case. This is precisely what occurred here. The officer appeared for cross-examination and during his testimony revealed that he did not know for certain what simulator he was using because the device used had lost its label. He assumed it was one of the two approved devices because the entire unit had been approved by the health department, but nothing in the testimony made it clear that this particular device is the one that is approved. The propriety of the certification of the machine was called into question in the mind of the trial judge, and he was not convinced that the officer had adequate knowledge to state with certainty that the simulator he used was approved. This led the trial judge to conclude that the test results and the testimony with regard to the test lacked an adequate foundation. The question in this appeal is not whether the trial court created a new evidentiary requirement. Rather, it is who is the proper party to make this type evidentiary determination, and is it permissible for us to second guess the trial court in this regard? In other contexts our case law supports the conclusion that, in evidentiary determinations, the trial court has wide discretion, and we will not reverse absent an abuse of that discretion. Pollard v. State, 296 Ark. 299, 756 S.W.2d 455 (1988). This is especially true where the issue is one of witness credibility. Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988). Any conflict in a witness’ testimony is for the trial court to resolve. Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988). Determinations of an expert’s qualifications lie within this discretion and such a decision will not be reversed absent an abuse. Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988). The trial judge was acting within his discretion in permitting the inquiry. He could have held substantial compliance was shown based on the officer’s assertions that this was the approved device at the time of the certification, and it is doubtful we would have reversed. The judge characterized the problem as one of the testimony of Officer Keyes lacking a proper foundation. We cannot say that amounted to an abuse of discretion. While Ark. R. Crim. P. 36.10(c) provides that the attorney general must make the determination whether this is the sort of case we should take on appeal, the ultimate decision rests clearly with this court. If we were to reach the issue posed, it would have no universal affect on the administration of the law. The decision we are asked to review was factual. Our rule on taking appeals by the state in criminal cases dates back as far as §§ 3410-11 of Crawford & Moses Digest which contained the same language permitting such appeals for the correct and uniform administration of justice. In State v. Massey, 194 Ark. 439, 107 S.W.2d 527 (1937), we were presented with an appeal by the state of a trial court’s decision that evidence to corroborate accomplice testimony had been insufficient. We regard that as similar to the question here of whether the foundation evidence was sufficient. We wrote “[i]n this case the error complained of did not relate so much to a question of law as one of fact, or a mixed question of law and fact. It does not appear to be of sufficient importance under the provisions of the statute as to require an opinion upon the correctness of the conclusion reached by the trial judge.” See also State v. Spear, 123 Ark. 449, 185 S.W. 788 (1916). Appeal dismissed. Hays and Glaze, JJ., dissenting.