Court: Court of Appeals for the Eighth Circuit; March 19, 1999; Federal Appellate Court
Anthony George Iron Cloud, Sr. was convicted of involuntary manslaughter under 18 U.S.C. §§ 1153 and 1112. He appeals the district court's decision to admit the results of a portable breath test (PBT) into evidence, arguing it compromised his right to a fair trial. The incident occurred on January 19, 1997, when Iron Cloud, who had consumed six beers over six hours, struck pedestrian Abel Iron Rope while driving 15 mph in a 10 mph zone. Iron Cloud did not brake before the collision. Iron Rope had a history of mental illness and dangerous behavior, including previously jumping in front of vehicles.
Following the accident, Iron Cloud checked on Iron Rope, who indicated he was fine, before leaving the scene to call 911. A PBT administered 25 minutes later indicated a blood-alcohol level of .14%, while a later intoxilyzer test showed .11%, and a blood test taken five hours post-accident showed .033%. Iron Cloud was charged with involuntary manslaughter for allegedly driving grossly negligently, and his motion to exclude the PBT was denied by the district court without an evidentiary hearing. During the trial, an expert witness used the PBT results to estimate Iron Cloud’s blood-alcohol level at the time of the accident as .13 or .14%. The jury was instructed to consider the PBT results alongside other evidence. Iron Cloud was sentenced to 21 months imprisonment and three years of supervised release. The appellate court reversed the conviction and remanded for a new trial based on the improper admission of the PBT as substantive evidence of intoxication.
The court established a two-part test for the admissibility of scientific testimony in United States v. Black Cloud. First, the district court must assess whether the testimony is based on a reliable scientific technique and if it will assist the jury. Key factors for evaluating reliability include: (1) the test's ability to be and its history of being tested, (2) peer review and publication, (3) known error rates and standards for the technique, and (4) general acceptance in the scientific community. Second, even if deemed admissible, testimony may be excluded if its prejudicial effect outweighs its probative value.
In the examined case, the district court failed to adhere to these steps, notably refusing to conduct a Daubert hearing on the portable breath test (PBT), asserting it was already recognized in the scientific community. The court did not evaluate the potential unfair prejudice of the test's results. The appellate review found that by not allowing a Daubert hearing, the judge assumed the PBT's accuracy without following established procedures. It was noted that PBTs are primarily preliminary screening tools and have not been recognized as reliable beyond probable cause. Furthermore, the argument that the longevity of the test's use equates to reliability was dismissed, referencing the inadmissibility of polygraph tests in the circuit.
Lastly, the judge's limiting instruction to the jury did not rectify the error of admitting the PBT results. The instruction misleadingly allowed the jury to consider the PBT as substantive evidence alongside other tests, despite the court's conclusion that PBTs should only be used for probable cause determinations.
Evidentiary rule violations that do not affect a defendant's constitutional rights are evaluated under Fed. R. Crim. P. 52(a) for harmless error. An error is considered harmless if, after reviewing the entire record, it is determined that the defendant's substantial rights were not affected and the error had minimal influence on the verdict. A reversal of conviction occurs only if the jury may have been significantly swayed by improperly admitted evidence.
In the case of Iron Cloud, charged with involuntary manslaughter under 18 U.S.C. §§ 1153 and 1112, the indictment alleged that he operated his vehicle in a grossly negligent manner while knowing it posed a threat to others. The government aimed to prove intoxication primarily through preliminary breath test (PBT) results, which indicated a blood-alcohol level of .14 percent shortly after the accident. Without this evidence, defense expert testimony suggested Iron Cloud's blood-alcohol level could have been argued to be below the legal limit.
Experts disagreed on the reliability of the PBT and intoxilyzer tests. The defense challenged the accuracy of these tests, asserting that the intoxilyzer's blood-alcohol level estimates could be flawed. The government's expert acknowledged that blood tests are more reliable than breath tests. The admission of the PBT results may have improperly influenced the jury by enhancing the credibility of the intoxilyzer results, thus swaying their judgment in favor of the government's expert.
The circumstances of the accident further complicate the case; it was established that the victim, Abel Iron Rope, had a history of running in front of vehicles, potentially impacting the jury's interpretation of the events. Without the PBT supporting the intoxication claim, the jury might have concluded that the accident was primarily due to Iron Rope's actions rather than Iron Cloud's alleged intoxication.
The government utilized the results of a Preliminary Breath Test (PBT) to challenge the credibility of Iron Cloud, who claimed to have consumed only six beers on the day of the accident. Expert testimony indicated that to achieve a blood-alcohol level of .13 or .14, Iron Cloud would have needed to consume at least eleven beers. Without the PBT results, his blood-alcohol level could have been as low as .07 or .08, which would have supported his testimony and maintained his credibility. The jury's perception may have been significantly influenced by the high PBT result, suggesting both intoxication and diminished credibility, leading to the conclusion that admitting the PBT results constituted a harmful error.
The court reversed the district court's judgment and remanded the case for a new trial, with a concurring opinion expressing that while the admission of the PBT results was erroneous, its impact on the jury's verdict was minimal, viewing the error as harmless.
The legal standard for involuntary manslaughter requires proof of gross negligence, defined as acting with reckless disregard for human life. Evidence at trial indicated that Iron Cloud drove under the influence of alcohol and marijuana, speeding through a residential area and ultimately hitting Abel Iron Rope after diverting his attention.
Independent of the PBT, the government presented results from an intoxilyzer test shortly after the incident, showing a blood-alcohol content of 0.11, and additional chromatography results suggesting a level of 0.13 at the time of the accident. Iron Cloud's own evidence indicated a blood-alcohol level between 0.07 and 0.09, but expert testimony suggested significant impairment at 0.08, exacerbated by recent marijuana use.
Additionally, Iron Cloud fled the accident scene instead of assisting the victim and exhibited signs of intoxication when approached by police, undermining his defense. The cumulative evidence supported an inference of impaired driving ability, particularly due to marijuana's effects, even at lower alcohol levels.
Iron Cloud demonstrated a clear awareness that his actions posed a threat to Iron Rope's life, yet he acted with wanton disregard for that life, indicating gross negligence. The judge found that the admission of the Preliminary Breath Test (PBT) results had minimal impact on the verdict, deeming it harmless. The majority opinion suggested that Iron Cloud might be exonerated if Iron Rope jumped in front of his truck; however, the judge disagreed, stating that if Iron Cloud had not been drinking, smoking marijuana, speeding, and distracted, he could have avoided the incident regardless of Iron Rope's actions. The judge recommended affirming the judgment against Iron Cloud. The document notes a dispute over the exact amount of alcohol Iron Cloud consumed, with claims of six to eleven beers and evidence of recent marijuana use, while Iron Cloud asserted he had not smoked for two days prior. Iron Cloud left the scene out of fear of bystander retaliation and called 911 upon reaching home. Additionally, without the PBT evidence, expert testimony indicated his blood-alcohol level could range from .07 to .09 percent, while the government maintained it would exceed .10 percent.
Preliminary breath tests (PBTs) are generally deemed inadmissible as substantive evidence in court, primarily accepted only to establish probable cause for arrest. Various court rulings reinforce this principle, noting the inherent unreliability of PBT results. For example, courts in Alabama, Arkansas, Delaware, Iowa, Michigan, Missouri, Montana, Nebraska, North Dakota, Pennsylvania, Virginia, Washington, and Wisconsin have all held that PBT results cannot be used in trials or are restricted to determining probable cause. Disagreements among experts regarding blood alcohol elimination rates were noted, with most agreeing on an average rate of .015. One expert calculated a blood-alcohol level of .13 using an elimination rate of .019 based on tests taken after an accident, while another indicated that a lower rate from the PBT would yield an unrealistic level of .06. Furthermore, inaccuracies in breath testing can arise from individual variances and potential calibration issues with the testing machines, leading to possible errors up to 10%.
Variables related to the intoxilyzer breath test affect the weight of the evidence rather than its admissibility, as established in McMillan. The Supreme Court recognizes the intoxilyzer as a reliable method for measuring blood-alcohol concentration. Additionally, the gas chromatography test is noted for its high accuracy in detecting alcohol and drugs in blood samples. The majority opinion suggests that admitting preliminary breath test (PBT) results might have led the jury to doubt Iron Cloud's credibility regarding his alcohol consumption. However, it is argued that Iron Cloud's evasive actions post-accident sufficiently justified the jury's skepticism. Testimony from two drivers indicates they successfully avoided hitting Iron Rope, while Iron Cloud was distracted by his passenger and failed to see Iron Rope until it was too late. This distraction, combined with driving at excessive speed in a residential area, nighttime conditions, and drug impairment, is characterized as gross negligence.
