DeVaney v. State, No. 671S192

Docket NºNo. 671S192
Citation259 Ind. 483, 288 N.E.2d 732
Case DateNovember 10, 1972
CourtSupreme Court of Indiana

Page 732

288 N.E.2d 732
259 Ind. 483
Robert Dean DeVANEY, Appellant,
v.
STATE of Indiana, Appellee.
No. 671S192.
Supreme Court of Indiana.
Nov. 10, 1972.

[259 Ind. 484]

Page 734

Melvin A. Richards, Jr., Caster, Richards & Adams, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Paul H. Frazier, Deputy Atty. Gen., for appellee.

HUNTER, Justice.

This is an appeal by Robert Dean DeVaney, appellant (defendant below), from a conviction for reckless homicide and causing the death of another while driving under the influence of intoxicating liquor. Appellant was charged by indictment and trial was to a jury which found appellant guilty on both counts. He was sentenced to not less than one (1) year nor more than five (5) years on the conviction of reckless homicide, and was sentenced to not less than one (1) year nor more than two (2) years and fined two hundred [259 Ind. 485] and fifty dollars ($250.00) on the conviction for causing the death of another while driving under the influence of intoxicating liquor. Appellant's Motion to Correct Errors was overruled and this appeal followed.

On January 29, 1969, appellant was driving north in his automobile on Indiana 37A north of Noblesville. On a curve, he had a collision with decedent's automobile which was headed south, causing decedent's death. It was alleged that appellant was intoxicated at the time and that he crossed the center line and struck decedent's car near the outside edge of the southbound lane.

Appellant has alleged eight main contentions of error:

(1) The trial court erred in not permitting the reporter of the grand jury to testify at the hearing on the Motion to Quash.

(2) The trial court erred in failing to suppress evidence concerning a blood sample taken from appellant.

(3) The trial court erred in admitting testimony of certain conversations between the police and appellant.

(4) The trial court erred in granting the State a continuance.

(5) The trial court erred in permitting certain testimony of the State's expert witness.

(6) The trial court erred in excluding certain testimony by appellant's expert witness.

(7) The trial court erred in failing to grant appellant's Motion for Directed Verdict.

(8) The trial court erred in overruling appellant's objection to the form of the verdict.

The basis of appellant's first contention is the allegation that he had reason to believe that less than five members of the grand jury were present when the indictment was returned, thus invalidating the indictment. He wished to have the opportunity to question the reporter for the grand jury [259 Ind. 486] on this point at the hearing on the Motion to Quash. Appellant cites IC 1971, 35--1--16--1 (Ind.Ann.Stat. § 9--901 (1956 Repl.)) for the proposition that at least five grand jurors must be present when the indictment is returned. The statute reads in part:

'At least five (5) of the grand jurors must concur in the finding of an indictment . . .'

There is nothing in this statute to indicate that five grand jurors need be present when the indictment is returned, only that at least five concur. Appellant does not contend that less than five members concurred in the finding of the indictment.

Even if five were required to be present when the indictment was returned, the appellant was able to question the prosecutor

Page 735

who presented the case to the grand jury and he testified that at least five members were present. Appellant has presented no valid reason for doubting the prosecutor, and this alone seems sufficient to close the issue.

The basic policy of this State is to keep the proceedings of the grand jury secret; see, IC 1971, 35--1--15--16 through 35--1--15--18 (Ind.Ann.Stat. §§ 9--816 through 9--818 (1956 Repl.)); Dinning v. State (1971), Ind., 269 N.E.2d 371. However, this does not preclude the defendant from calling a grand juror as a witness; see Dinning v. State, supra; Mahoney v. State (1964), 245 Ind. 581, 201 N.E.2d 271. It is also true that a grand jury indictment returned in open court and duly endorsed by the foreman is evidence that a sufficient number of jurors concurred in the finding. State v. Comer (1902), 157 Ind. 611, 62 N.E. 452; Stewart v. State (1865), 24 Ind. 142; Creek v. State (1865), 24 Ind. 151. Although, a defendant would not be precluded from calling a grand juror as a witness on this issue if he could show the need, it was not error to deny appellant that right in this case since a sufficient showing of need was not made.

[259 Ind. 487] Appellant's second contention is that the trial court erred in failing to suppress evidence concerning a blood sample taken from the appellant. Appellant claims the taking violated his constitutional rights. He relies on Article I, Section 11 of the Indiana Constitution, and the Fourth and Fourteenth Amendments of the Constitution of the United States. The pertinent portion of Art. I, § 11 reads:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure, shall not be violated . . .' (our emphasis)

It is clear that the taking of a blood sample is an intrusion meant to be limited by these constitutional protections. See, Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Schmerber concerned the validity of a blood test administered by the police after the defendant had been involved in an auto accident. At the scene of the accident the police noted that the defendant had liquor on his breath and that his eyes were bloodshot. They noticed these same characteristics when they saw appellant in the hospital two hours later. The Supreme Court held that probable cause was present for the test, and, due to the fact that the evidence might soon disappear, exigent circumstances were present making the acquisition of a search warrant unnecessary.

Schmerber is practically on all fours with the case at bar. In apellant's case, he was involved in an auto accident and the police noticed liquor on his breath both at the scene of the accident and at the hospital. Probable cause was clearly present. If the police were required to obtain a search warrant, the alcohol in the blood stream might dissipate. It seems essential that in order to obtain accurate results from the test, the blood sample be taken as close to the time of the accident as possible. Thus, exigent circumstances were also present since the evidence might soon disappear during the time necessary to obtain the warrant. Appellant has unsuccessfully attempted to distinguish this case from Schmerber. [259 Ind. 488] Appellant notes that the defendant in Schmerber has been arrested and given his Miranda warnings. However, we are not here concerned with the Fifth Amendment right against self-incrimination nor with the Sixth Amendment right to counsel. Schmerber specifically noted that the taking of a blood sample did not violate a defendant's right against self-incrimination. There is no requirement that a defendant must voluntarily waive any rights in order to validate a warrantless search based on probable cause where exigent circumstances are present. No error was committed in refusing to suppress the evidence concerning the taking of the blood sample and the results of the subsequent test.

Page 736

Appellant's next claim is that the trial court erred in admitting the conversation between appellant and a police officer in violation of his Fifth Amendment rights established in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant was read his rights and refused to waive them. All conversations between appellant and the police were excluded except one. The testimony in that instance was by Officer Crose of the Indiana State Police and went:

'I asked him if he had been involved in an accident and he said, 'Yes.' I asked him if I could take a blood sample and he said, 'yes', I asked him...

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66 practice notes
  • State v. Grant, No. 18005.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2008
    ...562, 564, 333 N.E.2d 725 (1975) (search warrant for blood sample must be based on probable cause under Schmerber); DeVaney v. State, 259 Ind. 483, 488, 288 N.E.2d 732 (1972) (warrantless seizure of blood sample must be based on probable cause under Schmerber); In the Matter of Lavigne, 418 ......
  • State v. Blank, No. S-9721.
    • United States
    • Supreme Court of Alaska (US)
    • April 30, 2004
    ...person causes the death of another person."). 41. Numerous cases from other jurisdictions support this conclusion. See DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732, 735 (1972) (holding that involvement in serious auto accident and odor of liquor on breath sufficient to establish probable ......
  • State v. Cormier, Docket: Cum-05-354.
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 14, 2007
    ...272 N.W.2d 355 (Minn.1978); State v. Oevering, 268 N.W.2d 68 (Minn.1978); State v. Graham, 278 So.2d 78 (La.1973); De Vaney v. State, 259 Ind. 483, 288 N.E.2d 732 (1972); People v. Fidler, 175 Colo. 90, 485 P.2d 725 (1971); State v. Kuljis, 70 Wash.2d 168, 422 P.2d 480 (1967); People v. Luk......
  • Breese v. State, No. 2-880A283
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1983
    ...an ultimate fact in issue is not objectionable for the reason that it invades the province of the trier of fact. DeVaney v. State (1972) 259 Ind. 483, 288 N.E.2d 732; Matter of Adoption of Lockmondy (3d Dist.1976) 168 Ind.App. 563; 343 N.E .2d The theory of liability in this regard does not......
  • Request a trial to view additional results
66 cases
  • State v. Grant, No. 18005.
    • United States
    • Supreme Court of Connecticut
    • April 22, 2008
    ...562, 564, 333 N.E.2d 725 (1975) (search warrant for blood sample must be based on probable cause under Schmerber); DeVaney v. State, 259 Ind. 483, 488, 288 N.E.2d 732 (1972) (warrantless seizure of blood sample must be based on probable cause under Schmerber); In the Matter of Lavigne, 418 ......
  • State v. Blank, No. S-9721.
    • United States
    • Supreme Court of Alaska (US)
    • April 30, 2004
    ...person causes the death of another person."). 41. Numerous cases from other jurisdictions support this conclusion. See DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732, 735 (1972) (holding that involvement in serious auto accident and odor of liquor on breath sufficient to establish probable ......
  • State v. Cormier, Docket: Cum-05-354.
    • United States
    • Supreme Judicial Court of Maine (US)
    • August 14, 2007
    ...272 N.W.2d 355 (Minn.1978); State v. Oevering, 268 N.W.2d 68 (Minn.1978); State v. Graham, 278 So.2d 78 (La.1973); De Vaney v. State, 259 Ind. 483, 288 N.E.2d 732 (1972); People v. Fidler, 175 Colo. 90, 485 P.2d 725 (1971); State v. Kuljis, 70 Wash.2d 168, 422 P.2d 480 (1967); People v. Luk......
  • Breese v. State, No. 2-880A283
    • United States
    • Indiana Court of Appeals of Indiana
    • May 31, 1983
    ...an ultimate fact in issue is not objectionable for the reason that it invades the province of the trier of fact. DeVaney v. State (1972) 259 Ind. 483, 288 N.E.2d 732; Matter of Adoption of Lockmondy (3d Dist.1976) 168 Ind.App. 563; 343 N.E .2d The theory of liability in this regard does not......
  • Request a trial to view additional results

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