Black v. State

• Decision Date: 29 August 2003
• Docket Number: No. 41A04-0204-CR-180.,41A04-0204-CR-180.
• Citation: 794 N.E.2d 561
• Parties: George BLACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

794 N.E.2d 561

George BLACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 41A04-0204-CR-180.

Court of Appeals of Indiana.

August 29, 2003.

Michael K. Sutherlin, Joseph H. Merrick, Michael Sutherlin & Associates, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

The Johnson County Superior Court found that George Black ("Black") violated the conditions of his probation and stayed the execution of his sentence pending this appeal. The parties present the following restated issues for review:

I. Whether the trial court erroneously excluded a court-ordered urinalysis from evidence; and,

II. Whether the trial court's exclusion amounted to harmless error.

Concluding that the trial court relied on vacated and superseded case law in excluding the urinalysis and that the State failed to meet its burden of establishing harmless error, we reverse.

Facts and Procedural History

On September 22, 1999, Black was ordered to serve 547 days probation pursuant to his Class D felony conviction of operating a motor vehicle while intoxicated. A condition of Black's probation required him to abstain from the use of illegal drugs.

On July 10, 2001, Black met with his probation officer, Jason Phillips ("Phillips"), who asked Black to provide a urine sample to be tested for illegal narcotics. Upon receiving the sample, Phillips conducted a "Rapid Drug Screen" field test ("RDS"), which revealed the presence of cocaine metabolites.

In a RDS, the probationer's urine is collected in a sample container that has a temperature strip that acts as a gauge to determine whether the urine sample is within a proper temperature range.¹ A test strip is then inserted through the container lid, and the end of the strip is submerged in the sample, whereupon it indicates whether the sample contains cocaine metabolites. The RDS test kits must be maintained at room temperature, and the results of the RDS should not be interpreted after the sample is more than ten minutes old.

According to his testimony, Phillips was unaware of any storage requirements and failed to check the temperature gauge while conducting Black's test. Tr. pp. 20-21. Furthermore, Phillips could not recall whether the time period in which the results were interpreted was less than ten minutes or whether he had any difficulty submersing the test strip in the sample. Tr. pp. 20-21, 25, 27. Black testified that the test procedure took over ten minutes, that Phillips had difficulty getting the test strip into the sample, and that Phillips set the test strip on the bathroom window ledge. Tr. pp. 202, 204.

After Black's sample tested positive, it was sealed and put into a refrigerator in the Johnson County Probation Department ("JCPD"). On the following day, it was delivered to the Witham Toxicology Laboratory ("Witham"), the State's testing laboratory, for the purpose of conducting confirmatory tests. Witham performed two tests on this sample. The first test indicated the presence of cocaine metabolites, and the second indicated the cocaine metabolite level to be 430 milligrams per milliliter.

The day the RDS revealed the presence of cocaine metabolites, Black went to AIT Laboratories ("AIT") for the purpose of having a second chemical analysis performed on a sample he provided at that time. AIT conducted a test that would reveal the presence of cocaine metabolites in Black's urine—if the metabolites were of a concentration greater than 300 milligrams per milliliter. This test proved negative, indicating that, at worst, Black's cocaine metabolite concentration was 300 milligrams per milliliter or less.²

After learning that his sample had tested positive in Witham's confirmatory tests, Black requested the trial court to order the Witham sample retested in a different laboratory. Consequently, this sample was sent to Med-Tox Laboratories in Minneapolis, Minnesota—an independent laboratory that provides toxicology services for the State. In stark contrast to the Witham test results, the Med-Tox test indicated that Black's sample contained 528 milligrams of cocaine metabolites per milliliter—98 milligrams higher than Witham's initial test conducted on the same sample.³

Based upon this evidence, the State moved to revoke Black's probation. Prior to the revocation hearing, Black filed a motion for the State to produce evidence it planned to use at his hearing. The State responded by stating that it did not possess the items requested and informed Black that this information could be obtained by contacting the JCPD. The revocation hearing took place on March 7, 2002. During the hearing, Black moved to strike all evidence due to the State's failure to provide the information requested in his Motion to Produce. The trial court denied this request, finding that no orders on discovery had been requested or violated.

Black then elicited testimony from Jeff Retz ("Retz"), the State's toxicology technician, regarding the court-ordered Med-Tox test. The trial court, pursuant to State's objection, found Retz's testimony insufficient to provide a foundation for the Med-Tox test and excluded the test results from evidence. Tr. pp. 62-65.

The trial court found that Black had violated the terms of his probation by testing positive for cocaine but stayed Black's sentence pending this appeal.

I. Admission of the Med-Tox Test

Indiana Rule of Evidence 101(c)(2) states that, "[t]he rules, other than those with respect to privileges, do not apply in ... [p]roceedings relating to... probation." Ind. Evidence Rule 101(c)(2). A probation revocation hearing is not to be equated with an adversarial criminal proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind.1999) (citing Isaac v. State, 605 N.E.2d 144, 149 (Ind.1992)). Rather, a revocation hearing is a narrow inquiry, and its procedures are more flexible than those of a criminal proceeding. Id.

In revocation hearings, judges may consider any relevant evidence bearing some substantial indicia of reliability, including expert testimony and scientific evidence. Carter v. State, 706 N.E.2d 552, 554 (Ind.1999) (noting that it is beyond doubt that urinalysis has achieved a sufficient level of scientific reliability to be accepted into evidence); see also Cox, 706 N.E.2d at 550

(holding hearsay admissible in revocation hearings); cf. Pitman v. State, 749 N.E.2d 557, 559 (Ind.Ct.App. 2001),

trans. denied (holding that certified charging informations and police reports are deemed admissible in revocation hearings). Contra Baxter v. State, 774 N.E.2d 1037, 1043 (Ind.Ct.App.2002),

trans. denied (holding uncertified investigation reports of law enforcement personnel inherently unreliable and inadmissible in revocation hearings). However, judges are not required to admit all evidence presented in such hearings. Cox, 706 N.E.2d at 551.

This absence of strict evidentiary rules places particular importance on the fact-finding role of judges in assessing the weight, sufficiency, and reliability of proffered evidence. Id. This assessment, then, carries with it a special level of judicial responsibility and is subject to appellate review. Id.

When Black attempted to admit the Med-Tox results the deputy prosecutor objected stating, "[y]our Honor, I object to hearsay. [No] testimony here [regarding] the chain of custody of Med-Tox, there [was] no testimony [regarding] the test that [was] done from Med-Tox." Tr. p. 63. The trial court responded to this objection by noting, "I think under 101(c), we don't have the rules of evidence ... overruled." Tr. p. 63. However, shortly thereafter, the deputy prosecutor renewed his objection, stating:

Once again, [I] object, there is no foundation for the result at Med-Tox. There may not be uh, the rules of evidence do not apply, but you still need a foundation to admit the results of the test. Even in a probation fact-finding hearing. I would not[e] .... for support of this argument, I will show the court Carter v. State, 685 N.E.2d 1112. An Indiana Appellate Court case in 1997 that requires a foundation for [urinalysis and] revocation hearings.

Tr. p. 64. On the basis of this case, the trial court reversed itself and excluded the Med-Tox test results. Tr. p. 65.

Carter v. State, 685 N.E.2d 1112 (Ind.Ct. App.1997), cited by the deputy prosecutor, was vacated and superceded roughly two years later by Carter, 706 N.E.2d 552. Under the relaxed procedures of a revocation hearing, announced by our supreme court in Carter, 706 N.E.2d at 552-54, Retz's testimony, which indicated that Med-Tox laboratories are trustworthy, reliable, and nationally certified, was a sufficient foundation for the admission of the results of the Med-Tox test. Tr. pp. 62, 97. Consequently, the trial court's initial statement of the law was correct, and it should not have reversed itself on the basis of Carter, 685 N.E.2d 1112.

II. Harmless Error

The State asserts, "[Black's probation revocation] will not be reversed if the State can demonstrate `beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Br. of Appellee at 6 (citing Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.1999)) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Black, prudently, accepted the State's "proffered" harmless error standard. Reply Br. of Appellant at 5.

There are two types of harmless error tests. When reviewing errors in the application of state evidentiary or procedural law, as distinguished from errors that affect federal constitutional rights, Indiana appellate courts apply their own harmless error rule—determining if the probable impact of the error, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties. Fleener v. State, 656 N.E.2d 1140, 1141 ...