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United States v. Hamilton

United States District Court, D. New Mexico

July 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY HAMILTON, Defendant.

          MEMORANDUM OPINION AND ORDER

          JUDITH C. HERRERA, UNITED STATES DISTRICT JUDGE.

         Defendant Gregory Hamilton was federally prosecuted for the misdemeanor offenses of driving under the influence of alcohol and unsafe operation of a vehicle at the El Morro National Monument in western New Mexico. A federal magistrate judge found Mr. Hamilton guilty on both counts following a bench trial and sentenced him to one year of probation with special conditions and assessed a $20 fine. Mr. Hamilton appeals his convictions, arguing that they were supported by insufficient evidence. He also argues that the prosecutor's waiver of his opening statement deprived Mr. Hamilton of fair notice of the law and facts against him, thereby entitling him to an acquittal. The Court affirms the convictions and dismisses the appeal.

         I. FACTUAL BACKGROUND

         In September 2017, Mr. Hamilton, an architecture student at the University of New Mexico, was on a class trip at the El Morro National Monument. See Information, ECF No. 1; Transcript of Bench Trial 156:1-15, ECF No. 21 (Tr.). The class arrived around 1:00 p.m., hiked for about two hours, and then started to make dinner in the campground area. Id. at 156:16-17; 157:7-15. The group, including Mr. Hamilton, started drinking Bud Light beers. Id. at 157:18-22. Before his arrest, Mr. Hamilton drank a total of two beers. Id. at 37: 16-20; 158:9-12.

         Because the class members parked their cars in a way that congested the one-way looped road, park rangers arrived at the campsite and told class members, including Mr. Hamilton, to move their improperly parked cars. Id. at 159:5-21. It was in response to this command that Mr. Hamilton went to his car and began moving it to an open spot behind a Jeep owned by a classmate. Id. at 95:10-12. Park Ranger Ryan Gallagher, the arresting officer, watched and heard Mr. Hamilton strike the Jeep. Id. at 36:6-7. Then Mr. Hamilton reversed his car so that the driver of the vehicle behind him sounded its horn, although no collision occurred. Id. at 36:6-9. Watching all of this, Ranger Gallagher “fear[ed] another collision to be imminent.” Id. 36:10. However, Ranger Gallagher testified at trial that no visible damage resulted to the Jeep and that Mr. Hamilton's rate of speed was about five to ten miles per hour, an appropriate rate of speed for the area's 15 m.p.h. limit. Id. at 92:21-25 - 93:1-4.

         Ranger Gallagher approached Mr. Hamilton in his vehicle and described at trial his observations as follows:

As I reached the driver's side of the vehicle, the window was open. I asked the Defendant if he was okay. His response to me was, “What happened?” I noted that his speech was slurred and there was an odor of alcoholic beverage about the vehicle … I asked him to produce registration and identification documents for the vehicle. [He] had some difficulty in doing that. I asked him how much he had had to drink. He responded to me, two beers. I asked the Defendant then to step out of the vehicle. [He] had difficulty with the seatbelt and had to use the door to aid in his exit … His eyes did appear bloodshot.

Id. at 36:14-24; 37:15.

         At this point Ranger Gallagher attended to an unrelated altercation. Id. at 40:6-9. The ranger instructed Mr. Hamilton to sit on the tail of the officer's truck, and for about 45 minutes Mr. Hamilton remained seated there as directed and “complied quite well.” Id. 40:9-19. When he came back Ranger Gallagher administered three field sobriety tests (FSTs) to Mr. Hamilton - a one-legged stand test, a walk-and-turn test, and a horizontal gaze nystagmus (HGN) test. Ranger Gallagher did not breathalyze Mr. Hamilton because he did not have a portable breathalyzer and driving Mr. Hamilton to a police station with a breathalyzer would have resulted in several hours of transportation time. Id. at 88:13-17. Based on his observations of Mr. Hamilton performance of the FSTs, his admission to drinking two beers, Mr. Hamilton's collision with the Jeep and then getting honked at, Ranger Gallagher cited Mr. Hamilton for DUI and unsafe operation of a vehicle. Id. at 87:10-21.

         II. PROCEEDINGS

         a. The Court's Evidentiary Rulings and Ranger Gallagher's Testimony

         At trial each side called only one witness. Ranger Gallagher testified for the United States while Rod Gillson, Mr. Hamilton's classmate, testified for the defense. Concerning the three FSTs, defense moved on both substantive and procedural grounds to preclude Ranger Gallagher from offering expert testimony linking performance on the FSTs to intoxication. Defense argued that substantively such testimony must be subjected to Fed.R.Evid. 702 analysis set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Procedurally, Defense argued that the United States did not disclose experts as required by Fed. R. Crim. P. 16(a)(1)(G).

         The trial court mainly granted Mr. Hamilton's motion. It allowed Ranger Gallagher to offer lay testimony about his general observations from the field tests but precluded him from offering expert testimony that the tests results were indicators of intoxication. Thus, as to the HGN test, the court permitted Ranger Gallagher to testify that he conducted the HGN test as background information but prevented him from opining about what that test yielded. See Tr. at 48:5-8;13-15. Concerning the other two field sobriety tests, the court ruled that Ranger Gallagher could “testify as to general observations during the field sobriety test that's relevant as to impairment, ” but not opine on whether Mr. Hamilton's performance was “a pass or a fail” or extrapolate Mr. Hamilton's likely BAC from his performance on these field studies. Id. at 71:18-25; 72:5.

         With these limitations on his testimony, Ranger Gallagher took the stand. He testified that before he administered the one-legged stand test, he instructed Mr. Hamilton on how to perform the test by keeping his arms at his sides, “raise one foot, point that toe forward and look down at that foot, and then begin counting out loud, 1-1, 000, 2-1, 100, 3-1, 000, until such time the officer tells them to discontinue.” Id. at 80:2-3; 5-8. Ranger Gallagher even demonstrated putting his foot down and re-raising his foot all the while counting. See id. at 80:19-24. Ranger Gallagher described Mr. Hamilton's performance on the one-legged stand test as follows:

The Defendant did begin the test when told to do so. He did look down at the foot that was raised and was pointing. He did sway, but kept his arms at his side, … and swayed to a degree that I was fairly certain he was going to lose his balance. He did not. The manner of counting the Defendant used changed. He changed from counting 1-1, 000 - or I think it's 1, 000-1, 1, 000-2, as I denoted in my probable cause. Just then, after the fourth digit, in essence, started counting by 4, 000, 5, 000, 6, 000, until he reached the number 10, 000. Then he put his foot down and did not continue to complete the test. I did not - he did not continue to the point at which I would have told him to finish the test.

Id. at 82:7-19.

         As for the walk-and-turn test, Ranger Gallagher instructed Mr. Hamilton that completing the test involved “stand[ing] in a particular position, arms at [his] sides, feet placed in a heel-to-toe manner … [and to] visualize a line on the pavement, and to walk heel to toe, ” continuing for nine steps while counting out loud. Id. 83:6-11; 83:25 - 84:1-2. On the ninth step Ranger Gallagher instructed Mr. Hamilton to “take a series of small steps pivoting on the lead foot around in a manner described … [t]hen continue back … towards [the] starting point and another series of nine heel-to-toe steps.” Id. 83:17-20. Ranger Gallagher explained that

very quickly, [Mr. Hamilton] began to step off line, and, in essence, walk in a normal manner - was not heel to toe at all. He did continue in a straight line with hands to the side. Upon reaching the ninth step, he, again, stopped and did not continue the test … [he] just stopped performing the test after the ninth step, without turning or returning the nine steps back.

Id. 84:25 - 85:1-4.[1]

         b. The Court's Findings of Guilt

         Testimony concluded and the magistrate judge, sitting as trier of fact, rendered verdicts. As to the DUI count, the court began by noting that the DUI regulation can be violated in one of two ways - by having a BAC of 0.08 which is DUI per se or by driving “under the influence … to a degree that renders the operator incapable of safe operation.” 36 C.F.R. § 4.23(a)[2]; Tr. 182:22-25. The court noted that it was significant that Mr. Hamilton was charged with violating the latter, and therefore the main question was the degree to which the two beers rendered Mr. Hamilton incapable of safely operating the vehicle. See Tr. 182:24-25 - 183:1-10. The court acknowledged that “this is a much closer case than a typical driving under the influence case, ” and that of the two counts the DUI count was “a much tougher case.” Id. 182:22-24; 184:3-6. However, the court reasoned that the following indicia of intoxication, in the aggregate, supported a guilty verdict: Mr. Hamilton's admission to drinking two beers and the unquestionable fact that he was driving, hit a parked car, backed close enough to another one so that it sounded its horn, and seemed unaware of this all when Ranger Gallagher confronted him. See Id. at 183:4-21. Without elaboration, the court stated that it considered Ranger Gallagher's field observations “relevant.” Id. 183:12-13.

         Concerning the unsafe driving count, the trial court explained that the standard for criminal liability was “less serious than reckless driving, ” and that the question was whether Mr. Hamilton failed to maintain a degree of control of his vehicle necessary to avoid danger to persons, property, or wildlife. Id. at 181:25 - ...


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