Clark v. State

• Decision Date: 31 January 1978
• Docket Number: No. 1-677A117,1-677A117
• Parties: Samuel David CLARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 185

372 N.E.2d 185

175 Ind.App. 391

Samuel David CLARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1-677A117.

Court of Appeals of Indiana, First District.

Jan. 31, 1978.

R. Clark Allen, White & Allen, New Castle, for appellant (defendant below).

Theodore L. Sendak, Atty. Gen., Daniel Lee Pflum, Deputy Atty. Gen., Indianapolis, for appellee (plaintiff below).

LYBROOK, Judge.

Samuel David Clark brings this appeal from his conviction of two counts of Reckless Homicide, ¹ and two counts of Causing Death While Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. ²

The evidence introduced at trial showed that on April 4, 1976, Clark and others drove to Four Points, Ohio, where they consumed large amounts of alcoholic beverages. On their return to Henry County, Indiana, the men decided to race their cars to see who had the fastest vehicle. Proceeding to a rural area outside of New Castle, Clark and another person lined up their vehicles side by side on Farmer's Pike, a public highway, with Clark's vehicle being left of center. The two vehicles raced at a speed of 85 m.p.h. for a distance of approximately 1/4 to 1/2 mile when the two cars went over a slight rise or hill and collided head-on with a car driven by Melvin Ghearing. Ghearing was injured in the collision and his wife Nancy, and infant daughter were killed.

Clark was taken by ambulance to the Henry County Hospital where Trooper George Boaz of the Indiana State Police questioned him. Boaz testified that he smelled alcohol on Clark's breath and then asked Clark to submit to the taking of a blood sample for a blood alcohol test, to which Clark agreed. Clark signed a written waiver and made no objection to the drawing of a blood sample.

Lt. Paul Assa of the Indiana State Police, a certified chemical test operator, testified that the blood sample had an alcohol content of .283%.

Clark was subsequently arrested, charged and convicted by jury of two counts of Reckless Homicide and two counts of Causing Death While Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. The trial court entered judgment for Reckless Homicide of Nancy Ghearing and for Causing the Death of Lisa Ghearing While Operating a Motor Vehicle While Under the Influence of Intoxicating Liquor. Clark filed his Motion to Correct Errors on March 6, 1977, which was overruled on March 10, 1977. Clark subsequently filed his praecipe on April 7, 1977, and brings this appeal.

In his Motion to Correct Errors, Clark raises the following issues for review:

(1) Whether the trial court erred in allowing the admission of inflammatory and irrelevant photographs into evidence.

(2) Whether the trial court erred in allowing admission of evidence concerning chemical analysis of a blood sample taken from defendant Clark.

I.

Prior to the jury being impaneled, Clark objected to the introduction of State's proposed Exhibit No. 3, which is a photograph of the accident victims, Nancy and Lisa Ghearing, in the Ghearing vehicle after the collision. Clark alleges that the photograph would not support the State's case in any way, there being no issue of fact that the two died as a result of injuries suffered in the accident, and that the photograph did not relate to the positioning of the car or the cause of the accident. Clark maintains that admission of the photograph served only to inflame and prejudice the jury.

The admission of photographs into evidence is a matter within the sound discretion of the trial court, and will not be disturbed unless an abuse of discretion is shown. Patterson v. State (1975), 263 Ind. 55, 324 N.E.2d 482.

The fact that a photograph might arouse the passion of the jury is not sufficient ground in itself to justify its exclusion from the evidence if the photograph is material and relevant. Carroll v. State (1975), 263 Ind. 696, 338 N.E.2d 264. The relevancy of a photograph is to be determined by an inquiry as to whether or not a witness would be permitted to describe the objects or scenes photographed. Pierce v. State (1970), 253 Ind. 650, 256 N.E.2d 557. So long as pictures involving a crime are relevant to the questions at issue, they are admissible. The mere fact that they may be gory, revolting or inflammatory does not make them inadmissible. Quinn v. State (1976), Ind., 356 N.E.2d 1186.

It is in the record before us that numerous witnesses testified to the deaths of Mrs. Ghearing and her daughter, the discovery of their bodies in the wreckage of their vehicle, and the condition of that vehicle. While State's Exhibit No. 3 is a more vivid portrayal of these facts, we cannot say that it is inadmissible where the photograph is an accurate portrayal of the scene witnessed and described at trial, and we find no error in its admission.

II.

Clark also objects to the admission of evidence concerning chemical analysis of a blood sample taken from him at the Henry County Hospital. From his investigation of the accident and the smell of alcohol on Clark's breath, Trooper Boaz decided to seek a chemical test for intoxication. Clark was asked if he would consent to the taking of a blood sample, which Clark agreed to do both orally and in writing. There is evidence that Clark had been advised of his Miranda rights prior to any questioning by police, that the police had sought permission of hospital authorities before they questioned Clark, and that Clark was advised that he did not have to give the police a blood sample. The record does reflect that Clark was injured and in an emotional state; however, there is also evidence to show that the nurses asked Clark if he knew what he was signing when he agreed to the blood sample. Clark was described as being "alert", "responsive", and able to recognize persons some distance away in the emergency room.

Indiana has an implied consent statute among the provisions of the Motor Vehicle Code which provides that drivers have given consent to a chemical test for intoxication when they drive, operate or are in actual physical control of a vehicle on a public highway in this state. Refusal to submit to such a test, when requested to do so by a law enforcement officer, subjects the driver to suspension of his driving privilege.

Sections of the Indiana Implied Consent Law relevant to our consideration state:

"9-4-4.5-1 (47-2003c). Implied consent to chemical test for intoxication. Any person who drives, operates, or is in actual physical control of a vehicle on the public highways of this state shall be deemed, by virtue of such driving, operation or control, to have given his implied consent to submit to a chemical test for intoxication when asked to submit to such test by any law enforcement officer pursuant to the provisions of this chapter. (9-4-4.5-1 9-4-4.5-6).

9-4-4.5-2 (47-2003d). Definitions. . . . (d) The term 'chemical test' for the purposes of this chapter means an analysis by such persons using such techniques and equipment as shall have been approved by the department of toxicology of the Indiana University school of medicine of the breath, blood, urine or other bodily substance for the determination of the presence of alcohol or drugs, or a combination of alcohol and drugs in such quantities as to constitute intoxication or 'under the influence' as that term may be defined by statute.

9-4-4.5-3 (47-2003e). Opportunity to submit to chemical test prior to arrest. Any law enforcement officer authorized to enforce the laws of this state regulating the use and operation of vehicles on public highways who has probable cause to believe that any person has committed the offense of driving or being in actual physical control of a vehicle while under the influence, in his presence or view, or who has probable cause to believe that any person who has been involved in a motor vehicle accident has committed such offense, though not in his presence or view, shall not place such person under arrest for such offense until he has first offered to such person the opportunity to submit to a chemical test for intoxication to be administered by a person certified as a valid chemical test operator by the department of toxicology of the Indiana University school of medicine. Any such person who agrees to submit to such chemical test for intoxication shall not be arrested for driving while under the influence, but shall accompany the officer to the nearest available chemical test device for the purpose of taking such test as a condition of the driving privilege, (a) If such chemical test results in prima facie evidence that such person is not under the influence, he shall not be arrested and charged with such offense and he shall be released immediately.

(b) If such...