Opinion
(15045)
Argued April 27, 1995
Decision released May 30, 1995
Substitute information charging the defendant with the crime of operating a motor vehicle while under the influence of intoxicating liquor, brought to the Superior Court in the judicial district of New London, geographical area number ten, and tried to the jury before Leuba, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, Dupont, C.J., and Schaller and Spear, Js., which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court. Appeal dismissed.
Conrad Ost Seifert, for the appellant (defendant). Leon F. Dalbec, Jr., assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Mary Jean Kanabis, assistant state's attorney, for the appellee (state).
The sole question in this certified appeal is whether the Appellate Court was correct in concluding that the admission of testimony by an East Lyme police officer concerning the administration and results of a horizontal gaze nystagmus (HGN) test in a prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a(a)(1) was harmless error. The Appellate Court determined that the trial court had "abused its discretion" by admitting the officer's testimony because the state had failed to introduce evidence in the trial court establishing the general acceptance of the HGN test in the scientific community pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Merritt, 36 Conn. App. 76, 91, 647 A.2d 1021 (1994).
The officer explained that the HGN test is administered by placing an object approximately fifteen inches in front of a subject's nose, moving it from side to side and observing the subject's eye reaction. State v. Merritt, 36 Conn. App. 76, 80, 647 A.2d 1021 (1994). The theory behind the HGN test is that there is a strong correlation between the amount of alcohol a person consumes and the angle of onset of the nystagmus. "Nystagmus is an abnormal and involuntary movement of the eyeballs from side to side or up and down, but usually from side to side." (Internal quotation marks omitted.) Id., 84.
The Appellate Court proceeded to review the other evidence presented at trial, however, and stated that it could not conclude that the testimony concerning the HGN test had affected the outcome of the trial and concluded, therefore, that its admission was harmless. Id., 93. We granted the defendant's petition to appeal the merits of the Appellate Court's conclusion. After examining the record on appeal and after carefully considering the briefs and arguments of the parties, we have determined that the appeal in this case should be dismissed on the ground that certification was improvidently granted.
We granted certification for appeal limited to the following issue: "Did the Appellate Court correctly hold that harmless error occurred when the trial court improperly admitted horizontal gaze nystagmus test results and improperly allowed the jury to hear evidence that if eye jerking occurs prior to a forty-five degree angle a subject is more than likely above the legal limit of 0.10 of one percent for intoxication in a trial under General Statutes § 14-227a(a)(1)?" State v. Merritt, 231 Conn. 926, 648 A.2d 165 (1994).