{ "id": 1155466, "name": "Mark Allen ELSER v. STATE of Arkansas", "name_abbreviation": "Elser v. State", "decision_date": "2003-05-08", "docket_number": "CR 02-1297", "first_page": "143", "last_page": "154", "citations": [ { "type": "official", "cite": "353 Ark. 143" }, { "type": "parallel", "cite": "114 S.W.3d 168" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-65-103", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "pin_cites": [ { "parenthetical": "superseded" } ], "opinion_index": 0 }, { "cite": "350 Ark. 238", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404487 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0238-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "348 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74074 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0106-01" ] }, { "cite": "341 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148003 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/us/341/0479-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "256 Ark. 658", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723709 ], "weight": 4, "year": 1974, "pin_cites": [ { "page": "661" }, { "page": "659" } ], "opinion_index": 0, "case_paths": [ "/ark/256/0658-01" ] }, { "cite": "318 Ark. 799", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455882 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "804" } ], "opinion_index": 0, "case_paths": [ "/ark/318/0799-01" ] }, { "cite": "348 Ark. 686", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 74148 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/348/0686-01" ] }, { "cite": "350 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404464 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0311-01" ] }, { "cite": "350 Ark. 398", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1404488 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/350/0398-01" ] }, { "cite": "295 Ark. 473", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893736 ], "weight": 8, "year": 1988, "pin_cites": [ { "page": "474" }, { "page": "476" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ark/295/0473-01" ] }, { "cite": "79 Ark. App. 440", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142794 ], "weight": 4, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark-app/79/0440-01" ] } ], "analysis": { "cardinality": 822, "char_count": 18951, "ocr_confidence": 0.698, "pagerank": { "raw": 1.2093177188479728e-07, "percentile": 0.5955426358834048 }, "sha256": "b182c08ca35d9f381ab22b791d2b38f4a2ab892d4f8844545636fc5c4e89d36f", "simhash": "1:c5ff1e8a7d8947b2", "word_count": 3178 }, "last_updated": "2023-07-14T16:12:52.629354+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mark Allen ELSER v. STATE of Arkansas" ], "opinions": [ { "text": "Jim Hannah, Justice.\nAppellant Mark Elser was convicted of driving while intoxicated, first offense, after a jury trial in Crawford County Circuit Court. Elser appealed to the Arkansas Court of Appeals, arguing that the circuit court erred in denying his motion for mistrial where, during her opening statement, the prosecutor stated that Elser would testify. He also argued that the circuit court erred in refusing to allow Elser to present evidence of the results of a portable breath test (PBT). The court of appeals reversed the decision of the circuit court in Elser v. State, 79 Ark. App. 440, 89 S.W.3d 353 (2002). The State filed a petition for review of that decision, and we granted it, pursuant to Ark. Sup. Ct. R. l-2(e). We affirm the circuit court and reverse the court of appeals.\nFacts\nOn October 3, 2000, at approximately 3:21 a.m., Officer Cletus Hudson of the Van Bur\u00e9n Police Department noticed a red pickup truck parked on the side of the on-ramp to Interstate 540 in Van Bur\u00e9n. Hudson approached the vehicle and found the driver of the vehicle asleep in the front seat behind the steering wheel; the truck\u2019s motor was running. After Hudson knocked on the window of the vehicle several times, Elser awoke and opened the door of the vehicle. Hudson testified that he smelled a strong odor of alcohol when Elser opened the door.\nElser stepped out of the vehicle, and Hudson administered a PBT. Hudson testified that Elser \u201cfailed the test.\u201d Hudson also testified that Elser was unsteady on his feet, that Elser\u2019s eyes were bloodshot and watery, that Elser\u2019s speech was slurred, and that Elser had an odor of intoxicants about his person. Subsequently, Hudson administered field sobriety tests, including a horizontal gaze nystagmus test and \u201cthe finger to the nose test.\u201d Hudson testified, without objection, that Elser failed \u201call six points\u201d of the horizontal gaze nystagmus test and that Elser \u201cmissed the tip of his nose with both hands.\u201d Hudson also stated that he attempted to administer the \u201cone-legged stand\u201d test; however, he did not administer that test because Elser told him that he was too tired to do it.\nAfter administering the field sobriety tests, Hudson placed Elser under arrest and transported him to the Crawford County Jail to perform a breathalyzer test. The BAC Datamaster measured Elser\u2019s blood-alcohol content at ,10%.\nOn November 6, 2000, Elser pleaded no contest in Van Bur\u00e9n Municipal Court to driving while intoxicated. Elser appealed to the Crawford County Circuit Court and, on May 15, 2001, a jury convicted Elser of driving while intoxicated, first offense. Elser was sentenced to a term of twenty-four hours in the county jail, a fine of $150.00, costs, and a ninety-day suspension of his driver\u2019s license. \u25a0\nThe court of appeals reversed the circuit court in Elser v. State, 79 Ark. App. 440, 89 S.W.3d 353 (2002), holding that the circuit court erred in refusing to allow Elser to present evidence of the results of the PBT. In so holding, the court of appeals cited this court\u2019s holding in Patrick v. State, 295 Ark. 473, 750 S.W.2d 391 (1988). The State filed a petition for review, which we granted.\nWhen we grant a petition for review, we treat the appeal as if it were originally filed in this court. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002); Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002). Thus, we review the circuit court\u2019s judgment, not that of the court of appeals. Cook, supra.\nProsecutor\u2019s Opening Statement\nElser\u2019s first point on appeal is that the circuit court erred in denying his motion for mistrial where, during her opening statement, the prosecutor stated that Elser would testify during the trial. Elser argues that the prosecutor\u2019s statement violated his right to remain silent and was tantamount to coercion. Near the end of the opening statement, the prosecutor stated:\nProsecutor: Now Mr. Witt will present witnesses today, the defendant himself and I believe another witness . . .\nAfter the prosecutor\u2019s statement, defense counsel moved for a mistrial. The motion was denied.\nA mistrial is a drastic remedy and should be declared only when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). The circuit court has wide discretion in granting or denying a motion for mistrial, and, absent an abuse of that discretion, the circuit court\u2019s decision will not be disturbed on appeal. Id. In Boyd v. State, 318 Ark. 799, 804, 889 S.W.2d 20 (1994), we stated that \u201c[t]he bottom line on mistrials is that the incident must be so prejudicial that the trial cannot, in fairness, continue.\u201d\nThe Fifth Amendment of the United States Constitution provides that . .no person . . . shall be compelled, in any criminal case to be a witness against himself, . . .\u201d Likewise, article 2, section 8, of the Arkansas Constitution provides that a criminal defendant shall not be compelled to testify against himself or herself.\nIn Clark v. State, 256 Ark. 658, 661, 509 S.W.2d 812 (1974), the court held that a remark made by the prosecutor during opening statement violated the defendant\u2019s Fifth Amendment right not to testify. During the opening statement, the prosecutor stated:\n... If you notice, I\u2019m here by myself, and this vacant chair. He might be here to tell his side but he\u2019s not here. The story then that you will have about what happened out there will come from her ....\nId. at 659.\nThe trial court denied the appellant\u2019s motion for mistrial; on appeal, the appellant argued -that the prosecutor\u2019s remark compelled her to testify when she would not otherwise have done so. Id. The court wrote:\nA comment on the defendant\u2019s failure to testify may not require reversal, but before such a comment can be harmless error, the court must determine that it is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 (1967). . . .\nTherefore, in applying the rationale of the Fifth Amendment and our own state constitution and statutory provision in the instant case, we certainly cannot say with confidence that the remark of the prosecutor did not to some extent compel the defendant to testify in her own behalf. It is fair to say that the remark resulted in pre-evidentiary coercion which is just as forbidden as is post evidentiary comment. Certainly we cannot say that the effect of the comment was harmless beyond a reasonable doubt. To the contrary, it is precisely the sort of coercive activity the Fifth Amendment is designed to prevent. The guarantee or privilege against self-incrimination \u2018must be accorded liberal construction in favor of the right it was intended to secure.\u2019 Hoffman v. United States, 341 U.S. 479 (1951). The right to testify or remain silent is an absolute and \u2018unfettered\u2019 right for a defendant only to exercise. Unless justified, the state should not comment in any manner upon that basic right in the opening as well as closing statement.\nId. at 660-61.\nElser argues:\nHere, as in the Clark case, Mpk Elser was coerced into testifying against himself by the Prosecutor\u2019s statement that he would testify. The prosecutor had no indication as to whether or not the defendant would testify in the present case.\nHowever, as the State points out, the prosecutor did have an indication as to whether or not Elser would testify in the present case. The following colloquy took place during voir dire between defense counsel and a potential juror:\nDefense Counsel: This man\u2019s gonna testify, this officer sitting here next to me about what happened in this case, I don\u2019t anticipate there are any grandiose differences in their testimony, but I suspect there will he some differences in his testimony and Mark\u2019s testimony, that\u2019s the framework I\u2019m setting to you. Now since you\u2019re related to a Van Bur\u00e9n Police Department officer my question to you is specific, do you believe that you can judge his credibility and Mark\u2019s credibility on an even level, or would you be inclined as most people are, and there\u2019s nothing wrong with it, to believe the uniformed officer, if the uniform\u2019s testimony is disputed by the person that\u2019s not in uniform?\nJuror: I believe I could be fair.\n(emphasis added).\nDefense counsel\u2019s questions during voir dire indicate that, prior to the beginning of the trial, Elser had decided to testify. The State was justified in commenting on Elser\u2019s anticipated testimony, given that during voir dire, defense counsel specifically made reference to Elser\u2019s testimony. We hold that the prosecutor\u2019s reference to Elser\u2019s testimony during the opening statement was harmless error beyond a reasonable doubt.\nElser also argues that, even if the prosecutor\u2019s statement did not violate his right not to testify, the statement was outside the scope of opening statements. Elser failed to make this argument before the circuit court. We have repeatedly stated that we will not address arguments raised for the first time on appeal. Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). The circuit court did-not abuse its discretion in denying Elser\u2019s motion for mistrial.\nResults of the PBT\nElser states: \u201cThe trial court erred in refusing to allow Mr. Elser to present exculpatory evidence of his innocence, namely the results of the portable breath test, which indicated that Mr. Elser was not intoxicated within the meaning of the law.\u201d At trial, after Officer Hudson testified that Elser failed the PBT, defense counsel attempted to elicit testimony from Elser concerning his PBT results. During the direct examination of Elser, the following colloquy took place:\nDefense Counsel: . . . Now did you see what the result of the PBT was?\nElser: . . , Yes.\nDefense Counsel: Now I got the report out to check and see what the results of the PBT was, did I not?\nProsecutor: . . . objection, Your Honor.\nDefense Counsel: This is not offered for the truth but for the . . .\nProsecutor: ... I\u2019ll drop the objection.\nDefense Counsel: ... I got the report out for you to examine, did I not?\nElser: Yes.\nDefense Counsel: And because you saw the results of the PBT, you told me, did you not?\nElser: Yes.\nDefense Counsel: And what were the results of the PBT, that\u2019s that little machine that you blew into?\nProsecutor: Objection ....\nAt that time, the prosecutor and defense counsel approached the bench for a sidebar conference out of the hearing of the jury, where the following colloquy took place:\nProsecutor: I\u2019m just wondering why the prosecution can\u2019t give the results of the PBT, if the defendant can give the results?\nDefense Counsel: Because the Supreme Court of Arkansas said the defendant can.\nThe circuit court asked defense counsel to provide a case citation to support his proposition. Defense counsel stated that he did not have the case with him and told the court that he needed to make a phone call to obtain the case cite. However, defense counsel was unable to obtain the cite, so the circuit court sustained the State\u2019s objection.\nThereafter, defense counsel continued direct examination of Elser:\nDefense Counsel: All right, young man, did you see the results of the . , . PBT, did you not, yes or no?\nElser: Yes.\nDefense Counsel: All right, and your testimony here today would be different than the officer\u2019s testimony regarding the results of the PBT\nProsecutor: . . . objection, Your Honor.\nThe Court: Sustained. The officer gave no results, let\u2019s move along.\nDefense Counsel: The officer testified that you failed that test, right, the PBT?\nElser: Yes.\nDefense Counsel: You\u2019d disagree with that, would you not?\nElser: I would, yes.\nHi H\u00ed H* H*\nElser attempted to present evidence of the PBT result by stating that result was not \u201coffered for the truth but for the . . . .\u201d It appears that Elser was attempting to offer the evidence to question the credibility of Officer Hudson\u2019s testimony that Elser \u201cfailed the test.\u201d Subsequently, Elser abandoned this line of questioning and, instead, argued that this court\u2019s case law indicates that a \u201cdefendant can put in evidence the result of the PBT.\u201d We recognize that Elser was attempting to cite Patrick, supra, to the circuit court.\nOn appeal, Elser argues that our holding in Patrick, supra, stands for the proposition that a defendant \u201cmay use the results of a Portable Breath Test to prove the defendant\u2019s innocence if the defense can show the test was reliable.\u201d\nIn Patrick, supra, the court stated:\nThe legal question in this case is whether the results of a portable breath test, or what is sometimes called a roadside sobriety test, which are not admissible to prove a person is guilty of driving while intoxicated, are admissible when they would indicate a person is not guilty. In this case the answer is yes because the evidence is exculpatory, was crucial to the defense, and sufficiently reliable to warrant admission.\n295 Ark. at 474. Further, the court stated that the appellant\u2019s DWI conviction must be reversed \u201cbecause Patrick was denied the right to use evidence that he was not guilty.\u201d Id. at 476.\nThe Patrick court, noting that the PBT was not certified by the Arkansas State Board of Health, stated that \u201cthe results of such tests are not admissible in Arkansas.\u201d Id. at 479. However, in light of Chambers v. Mississippi, 410 U.S. 284 (1973), the court held that the PBT results should be admitted if the results are reliable. Id. The court wrote:\nWhen we examine the evidence excluded in this case, in the light of Chambers, we see immediately that the results of the PBT were critical to the defense. The officers testified they smelled alcohol, but Patrick denied he was drinking. No liquor was found in his vehicle. He was not given a breathalizer test nor offered a chance for a blood test. While he may not have requested a phone call until later that night, the fact remains he was in jail incommunicado until the next morning. So the results of the test, which were negative, and would have shown he was not drinking, were critical to his defense and a fair trial.\nId. at 478-79.\nIn Patrick, the trial court heard testimony from Dr. Roger Hawk, an assistant professor at the University of Arkansas at Little Rock, and an expert on breathalyzers in criminal cases. Id. at 479. This court noted that Dr. Hawk \u201ctestified that the instrument is generally accepted as reliable in detecting the presence or absence of alcohol, although not the exact quantity.\u201d Id. In addition, Dr. Hawk stated that an independent study had been performed regarding the reliability of the Alco-Analizer II, the model of the PBT that was administered to Patrick, and that the study \u201cshowed that the chances of a negative reading being wrong were 1 in 10,000.\u201d Id. This court stated:\nWe are convinced that the evidence is not so inherently unreliable that a jury cannot rationally evaluate it. This, together with the fact that the test results were necessary for Patrick to receive a fair trial, leads us to conclude that the trial court should have admitted the test results into evidence; it should have allowed the officers to be cross-examined about the test results; and the relevant admissible testimony of Dr. Hawk should have been admitted.\nId. (Citations omitted.)\nIn Patrick, the court did not hold that the PBT was reliable to test a person\u2019s blood-alcohol content. Rather, the Patrick court held that Patrick\u2019s defense was that he had not drunk any alcohol, and the PBT was reliable, based on the proffer before the trial court from the expert witness, to prove whether Patrick had drunk any alcohol. In Patrick, the PBT result was exculpatory for the purpose of proving that Patrick had not drunk any alcohol.\nIn the present case, Elser maintains that the results of a PBT are admissible if they are consistent with the BAC Datamaster results. Elser states:\nIn the present. case, Officer Hudson testified that the BAC Datamaster Machine was accurate plus or minus .01%. According to Officer Hudson\u2019s testimony, the results of the BAC Datamaster test taken by Mark Elser could have been .11%, .10%, or .09%. Therefore, the results of the PBT test were admissible if they were consistent with the findings of the BAC Datamaster Machine. Furthermore, if the PBT test results were consistent with the BAC Datamaster Machine test results, then the results must be as rehable as the results of the BAC Datamaster Machine. If the PBT registered .09%, then the BAC Datamaster Machine would have been inaccurate as Officer Hudson testified to the jury it could be, and Mark Elser would not [be] intoxicated within the meaning of the law. The defense attempted to introduce this evidence that would have shown that Mark Elser was not intoxicated within the meaning of the law, but that his actual results were below the legal limit. The PBT, if consistent with the BAC Datamaster Machine, must be held to be admissible and rehable because the PBT reliability is proven by virtue of the BAC Datamaster Machine.\nIn effect, Elser is attempting to \u201cbootstrap\u201d the reliability and admissibility of the PBT upon the reliability and admissibility of the BAC Datamaster Machine. Elser offers no authority to support his argument. This court will not entertain an argument where there is no citation to authority or convincing legal argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).\nWe hold that PBT results are not admissible as substantive proof absent proof PBT results are reliable. This holding is not inconsistent with Patrick, supra.\nWe affirm the circuit court and reverse the court of appeals.\nAffirmed.\nAt the time Elser was arrested, the DWI statute provided:\n(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.\n(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time there was one-tenth of one percent (0.10%) or more by weight of alcohol in the person\u2019s blood as determined by a chemical test of the person\u2019s blood, urine, breath, or other bodily substance.\nArk. Code Ann. \u00a7 5-65-103 (Repl. 1997) (superseded). In 2001, the blood-alcohol content threshold was changed to .08%. See Acts 2001, No. 561, \u00a7 2.\nElser contends that the PBT measured his blood-alcohol content at .09%.\nOn appeal, Elser\u2019s sole argument concerning the PBT result is that the PBT result should have been admitted because it was reliable. The issue of whether Elser should have been allowed to present evidence to question the credibility of the officer\u2019s testimony that Elser \u201cfailed the test\u201d is not before the court.", "type": "majority", "author": "Jim Hannah, Justice." } ], "attorneys": [ "Witt Law Firm, P. C., by: Ernie W. Witt, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Mark Allen ELSER v. STATE of Arkansas\nCR 02-1297\n114 S.W.3d 168\nSupreme Court of Arkansas\nOpinion delivered May 8, 2003\nWitt Law Firm, P. C., by: Ernie W. Witt, for appellant.\nMark Pryor, Att\u2019y Gen., by: Lauren Elizabeth Heil, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0143-01", "first_page_order": 167, "last_page_order": 178 }