Denman v. State, 4-581A9

• Decision Date: 16 March 1982
• Docket Number: No. 4-581A9,4-581A9
• Citation: 432 N.E.2d 426
• Parties: Ray E. DENMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 426

432 N.E.2d 426

Ray E. DENMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-581A9.

Court of Appeals of Indiana, Fourth District.

March 16, 1982.

Kelly Leeman, Logansport, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

After trial by jury, appellant-defendant Ray E. Denman was convicted of two counts of battery and three counts of driving while intoxicated resulting in death. All five counts arose out of the same incident. He raises these issues:

1. Whether the trial court erred in admitting the results of the breathalyzer test and opinion testimony as to defendant's intoxication.

2. Whether the trial court erred by refusing to grant a new trial because the State failed to disclose information to Denman.

3. Whether the trial court erred in giving two of the State's instructions and refusing to give four of the defendant's instructions.

4. Whether the trial court erred by failing to grant a motion to dismiss each count after the State's case-in-chief.

Defendant was involved in a chain reaction accident in which two children were injured, (the battery charges) and three people in two different vehicles were killed (the driving while intoxicated resulting in death charges). Denman was driving east on U. S. Highway 24 near the edge of Logansport, Indiana. The road was a four lane highway (divided by a cement island) narrowing to two lanes. The road had been resurfaced recently and the lanes were marked with temporary lane markings. Defendant was driving in the passing lane of the four lane road. There was testimony that Denman was driving at a high rate of speed when he swerved sharply into the passing lane and attempted to pass two vehicles before the road narrowed to two lanes. While passing the two vehicles defendant nearly ran out of room, apparently running over part of the cement island dividing the highway. When defendant noticed the end of the four lane highway, he realized he either had to accelerate and continue passing or brake and get back into traffic. He chose to accelerate, believing it would cause the fewest traffic problems. As he accelerated and passed the vehicles, a slower moving automobile (brown Oldsmobile) with two elderly passengers (William and Thelma Goodrich) was proceeding in the same direction as defendant on the two lane portion of the highway. Defendant applied his brakes to avoid the Goodrich Oldsmobile. There was a semi-trailer parked along the side of the road. There was a drop-off because of the resurfacing and the shoulder was gravel. Denman hit the right rear of the Goodrich Oldsmobile, and his car left the roadway and stopped. Defendant did not lose control of his car. The Goodrich Oldsmobile crossed the center line and hit another vehicle (Cadillac) head on in the westbound lane. The two persons in the Goodrich Oldsmobile were killed, as was the driver (Cynthia Cosgray) of the Cadillac. Two children (Alissa and Joseph Cosgray) in the Cosgray Cadillac were injured.

Denman was given a breathalyzer test at the Logansport Police Station approximately two hours after the accident. He tested .13% blood alcohol level. Defendant stated he and some co-workers had attended a meeting in Remington. On the return trip, defendant and his passengers stopped to eat. In one-half to one hour, defendant ate some "snack food" from behind the bar and had two to four "C. C. and Coke" drinks. They then resumed their return trip to Warsaw. The accident occurred on the return trip in Logansport as described above.

Defendant was sentenced to two years on each count. The driving while intoxicated resulting in death counts ran concurrently and the battery counts ran concurrently. However, the battery counts were to be served consecutively to the driving while intoxicated causing death counts.

Defendant first argues the trial court erred in admitting evidence of the breathalyzer test on several grounds and in admitting the arresting officer's opinion about defendant's intoxication. In Hartman v. State, (1980) Ind.App., 401 N.E.2d 723, three requirements of a proper foundation for admission of breathalyzer test results were discerned from Ind.Code 9-4-4.5-5.

1. The test was administered by an operator certified by the department of toxicology;

2. The equipment used in the test was inspected and approved by the department of toxicology; and

3. The operator used techniques approved by the department of toxicology.

Id. at 725. Denman contends the trial court erred by allowing into evidence the certification of the breathalyzer equipment and chemicals which denied him his right of confrontation as the certification was double hearsay. The second requirement of Hartman required certification. Ind.Code 9-4-4.5-6(b) and (c) provide in part:

(b) The certificate ... is admissible as evidence in a prosecution under IC 9-4-1-54 ....

(c) The certificate ... pertaining to chemicals and equipment constitutes prima facie evidence that the equipment and chemicals were inspected and approved in accord with the rules and regulations of the department on the dates specified in them.

The statute plainly states the certificate issued by the department is admissible as evidence and constitutes prima facie evidence of proper inspection and approval. After prima facie evidence of proper inspection and approval, the State need not do more in that regard. Defendant could introduce evidence that the equipment had not been properly inspected. The issue would then be one for resolution by the trier of fact. However, in this case, defendant did not do so. In any event, the certificate was prima facie evidence and unrebutted evidence of proper inspection and approval.

Denman argues at length that a double hearsay, denial of the right of confrontation problem is presented. It is this very problem the legislature appeared to be addressing by the statute. The history of the section indicates that the strict rules of hearsay were not applied. When the statute was amended, this exception was redrafted in terms of admissibility. Compare Ind.Code 9-4-4.5-6 before and after the 1980 amendment Acts 1980, P.L. 83 § 5. The trial court did not err in admitting the certificate.

Denman also argues the test results were inadmissible because the techniques of the test operator were not shown to be approved by the department of toxicology, the third requirement of Hartman. The test operator stated he followed the procedure in the Breathalyzer Operational Check List. Defendant contends this does not comply with the department's approved method for administering the test. The department's approved method is a detailed two page statement of the method which appellant argues requires the performance of substantially more steps than the operational checklist. The operational checklist closely resembles the department's approved method in terms of operational language. When the two are compared it appears the procedure in the checklist is an outline of the approved methods. The procedure utilized appears to be in compliance with the approved procedure. He does not indicate what step was omitted. Appellant does not state and our comparison of the two exhibits does not demonstrate what essential procedures were omitted. We cannot hold that the trial court erred in this regard.

Still challenging the admissibility of the breathalyzer results, Denman argues that there were no properly promulgated rules and regulations (Ind.Code 4-22-2-1) concerning the techniques approved for administration of the test. This particular objection does not appear at trial. He argues that his objection to the admission of the test results because of failure to use approved techniques necessarily includes objections to the method of approval of the techniques. We do not agree. Denman's objection was not sufficiently specific in that regard to apprise the trial court of the promulgation problem. Smith v. State, (1980) Ind.App., 403 N.E.2d 869. It is waived.

Denman also complains that the opinion of an investigating officer concerning defendant's intoxication should not have been permitted. He does not object to the qualifications of the officer to give an opinion, but complains only of the opinion based on inadmissible breathalyzer test results. Initially, we find the results were admissible as determined above. Also, the officer testified at length, both on direct and cross examination, about his observations of defendant. These observations provided a sufficient basis for the giving of his opinion. Defendant tried at length to refute the opinion by recounting the observation to show why and how the officer came to his conclusion. These factors were for the jury to consider in weighing the opinion testimony, and not for the court in determining whether it was admissible.

Appellant Denman's second allegation of error raises the failure by the State to disclose evidence which was in the State's possession and relevant to the credibility of a State's witness, the investigating arresting officer. The arresting officer, an Indiana State Trooper, was investigated by his police department for issuing false tickets to maintain or meet a quota of traffic tickets. He was found to have issued false tickets and was suspended from his job for sixty days. Denman did not learn of this information until after trial. Denman first contends that the information should have been given to him under the order on his motion for discovery. However, his motion for discovery only requests criminal arrests and convictions of the State's witnesses. Of course, the intra-department investigation and suspension of a trooper for misconduct did not amount to a crime. We conclude that this information was not within Denman's discovery request no matter how broadly construed.

However, we must also determine whether the evidence of misconduct was of a nature...