Sturma v. State, 77A04-9604-CR-144
| Citation | 683 N.E.2d 606 |
| Decision Date | 11 July 1997 |
| Docket Number | No. 77A04-9604-CR-144,77A04-9604-CR-144 |
| Court | Court of Appeals of Indiana |
| Parties | William S. STURMA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Defendant-Appellant William S. Sturma (Sturma) appeals his conviction of operating a motor vehicle with a blood alcohol content of ten hundredths percent (.10%) or greater, a Class C misdemeanor. 1
We affirm.
Sturma presents the following re-stated and consolidated issues:
1. Whether the admission of certain evidence violated Sturma's constitutional rights.
2. Whether the trial court abused its discretion in ruling on events that occurred during jury deliberations.
3. Whether the trial court abused its discretion in allowing certain testimony on cross-examination.
On October 15, 1995, Sturma was drinking at an establishment in Shelburn, Indiana. Sturma's actions while in the establishment prompted the bartender to call the Sullivan County Sheriff's Department. Bryan Kinnett, a Sullivan County deputy sheriff, and Thomas Lahay, a conservation officer with the Department of Natural Resources, responded to the call. The officers asked Sturma to step outside with them, where they had a conversation which lasted approximately ten minutes and was video taped by a recording system in the police car. During this conversation Kinnett asked Sturma to go home and not to drive. Sturma assured the officers that he had called his wife and was waiting for her to pick him up.
Kinnett and Lahay then left the establishment. However, they parked their car not far away, with a view of the parking lot. They then returned to the parking lot when they saw a car moving which they later identified as Sturma's car. Kinnett used his car to block Sturma's from exiting the lot. Sturma then got out of his car and was arrested. Within an hour of the arrest Sturma was given a breathalyser test showing a blood alcohol content of .10%.
Sturma was charged by information on October 18, 1995, with operating a vehicle with a blood alcohol content of .10% or greater. The jury trial began on December 19, 1995, and the jury found Sturma guilty two days later. Sturma then brought this timely appeal. Additional facts will be provided as needed.
Sturma first questions whether the trial court erred by denying his motion to suppress and admitting certain evidence at trial. He claims that his detention and arrest were unlawful, and therefore, the evidence was not admissible. Our standard of review in this area is well-settled. The admissibility of evidence is within the sound discretion of the trial court, and "[t]he decision whether to admit evidence will not be reversed absent a showing of manifest abuse of the trial court's discretion resulting in denial of a fair trial." Spires v. State, 670 N.E.2d 1313, 1315 (Ind.Ct.App.1996). In determining admissibility of evidence, the reviewing court will only consider that evidence in favor of the trial court's ruling and unrefuted evidence in the defendant's favor. Reaves v. State, 586 N.E.2d 847, 857 (Ind.1992) (quoting Russell v. State, 460 N.E.2d 1252, 1254 (Ind.Ct.App.1984)). Additionally, a claim of error for admitting or excluding evidence cannot be brought unless a substantial right of the party is affected, and a specific and timely objection and offer of proof was made to preserve the error for review. Ind.Evidence Rule 103(a); Carter v. State, 634 N.E.2d 830, 833 (Ind.Ct.App.1994); Borkholder v. State, 544 N.E.2d 571, 574 (Ind.Ct.App.1989) ().
On December 15, 1995, Sturma filed a motion to suppress statements made by him from the time he was detained, observations made by the police officers at that time, and the results of any sobriety tests administered. He challenged the evidence on the grounds that the detention and following arrest were without probable cause, and therefore, a violation of his Fourth Amendment rights. Pursuant to a hearing on the matter, the trial court denied Sturma's motion to suppress the evidence. During the trial Sturma made no objections to the evidence at issue on the constitutional grounds he asserts on appeal. He did object to the admission of the results of a sobriety test which was offered, but that objection was based on the lack of an adequate foundation.
As stated above, for us to review the admission of evidence a specific and timely objection must be made to preserve the error for review. Evid.R. 103(a). The trial court's denial of a motion to suppress is not sufficient to preserve the error. Poulton v. State, 666 N.E.2d 390, 393 (Ind.1996). "Where a defendant fails to object to the introduction of evidence, makes only a general objection, or objects only on other grounds, the defendant waives the suppression claim." Moore v. State, 669 N.E.2d 733, 742 (Ind.1996), reh'g denied. Sturma did not object during trial to the evidence at issue on the basis of a violation of his Fourth Amendment rights due to lack of probable cause; therefore, the issue was not properly preserved for review. We will not question the trial court's decision to deny the motion to suppress and admit the evidence.
According to the transcript of proceedings, 2 after the jury retired for deliberation they requested to see again the video tape labeled as State's Exhibit # 1. The video tape requested was of the officer's conversation with Sturma which was recorded from Kinnett's car. They also wanted to listen to the audio tape made in court of the testimony of one of the witnesses. Sturma objected to allowing the jury to review either tape on the grounds that the jury did not state that they were in disagreement about the testimony. The court agreed with the defense, finding that the jury did not express a disagreement of the content of the testimony, but decided to allow the jury to re-view the video tape due to the fact that it was labeled as an exhibit and the jury already had access to all other exhibits. 3 Once the court overruled Sturma's objection to the video tape, Sturma withdrew his objection to the replaying of the witness's testimony. The judge then brought the jury back into open court and played both the video tape and the audio tape for the jury. After the jury returned to its deliberations, Sturma moved for a mistrial due to the fact that the audio tape did not pick up pertinent parts of the witness's testimony. Sturma's motion was denied.
The correct procedure for answering questions of law raised by the jury after deliberations have begun is set forth in Ind.Code 34-1-21-6:
After the jury have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any point of law arising in the case, they may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or their attorneys.
Ind.Code 34-1-21-6. 4 The parties agree that this statute does not apply because the jury did not express a disagreement over an item of testimony. 5
Since the mandatory language of Ind.Code 34-1-21-6 does not apply in this case, the decision to replay testimony is within the discretion of the trial court. Kiner v. State, 643 N.E.2d 950, 955 (Ind.Ct.App.1994), reh'g denied; Grayson v. State, 593 N.E.2d 1200, 1206 (Ind.Ct.App.1992).
The trial judge must conduct the proceedings in a manner that facilitates ascertainment of the truth, insures fairness, and obtains economy of time and effort commensurate with the rights of both society and the criminal defendant.... Although this Court has been liberal in allowing the jury to rehear portions of the evidence, there are limitations on the trial court's discretion. For example, trial courts may not allow the jury to review the testimony of an entire trial.
James v. State, 613 N.E.2d 15, 23-24 (Ind.1993). While the trial court has considerable discretion in determining what the jury may take with it to the jury room at the beginning of deliberations, that discretion is somewhat more limited in the situation where the jury interrupts its deliberations to request material to review. Harris v. State, 659 N.E.2d 522, 526 (Ind.1995); Powell v. State, 644 N.E.2d 855, n. 6 (Ind.1994).
In the present case, the judge did not give the jury the video tape at the beginning of deliberations, but allowed them to view it in open court once deliberations had commenced. It is clear that the court could have given the jury the video tape at the beginning of deliberations. See Harris, 659 N.E.2d at 526 (). However, it is a slightly different situation when the evidence is not given to the jury at the beginning of deliberations.
In Lawson v. State, 664 N.E.2d 773 (Ind.Ct.App.1996), trans. denied, we reenforced the court's discussion in Powell, that:
it would be perfectly proper for a trial court to replay for the jury in open court either tapes of testimony or tapes that have been admitted into evidence, but that providing the jury with items after deliberation has begun, and not monitoring the use of the items, constituted error. However, the court in Powell specifically noted that its holding was limited to cases in which additional materials were provided to the jury following the onset of deliberation.
Lawson, 664 N.E.2d at 777 (citing Powell, 644 N.E.2d 855). Here we do have a situation where additional material was provided to the...
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