DeVaney v. State, 671S192

Citation259 Ind. 483,288 N.E.2d 732
Decision Date10 November 1972
Docket NumberNo. 671S192,671S192
PartiesRobert Dean DeVANEY, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

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 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 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 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.

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. 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.

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 where he was going and he said he was going to Tipton. That's about the basis of the conversation.'

The portion of the conversation concerning the appellant's permission to take the blood sample was amissible for it was pertinent to the search and seizure, was not interrogation, and involved no incriminating statement. The other two questions should properly have been excluded. However, this testimony was unimportant and in no way could it have had any effect on the outcome of the trial. The evidence showed, and appellant conceded, that he was involved in the accident; and where he was going was immaterial. There can be no doubt that admitting this testimony was, in this instance, harmless error. See, Schneble v. Florida (1972), 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

Appellant next contends that it was error to grant the State a continuance. On October 21, 1970, the cause was set to be tried on November 30, 1970. On November 27, 1970, the State moved for a continuance due to the absence of an important witness. However, the motion was not accompanied by an affidavit as required by TR. 53.4, IC 1971, 34--5--1--1 (which was at that time TR. 53.3). Appellant objected to the continuance. The trial court granted the continuance on the condition that the State supply him with a proper affidavit and reset the trial date for December 14, 1970. The affidavit was supplied as requested. At the time the continuance was granted appellant was unable to indicate in what was this continuance would prejudice him, and on appeal this inability has continued. There was substantial compliance with the trial rule and no error arose from granting the continuance.

Appellant next asserts that it was error to permit certain testimony of the State's expert witness on accident reconstruction. The portion objected to was the expression of his opinion that the point of impact was near the outside edge of the decedent's lane of traffic, thus indicating that the appellant crossed the center...

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