Drossos v. State
| Decision Date | 16 November 1982 |
| Docket Number | No. 4-981A132,4-981A132 |
| Citation | 442 N.E.2d 1 |
| Parties | Peter DROSSOS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
James H. Voyles, Ober, Symmes, Cardwell, Voyles & Zahn, J.J. Paul, III, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Aimee L. Kolze, Deputy Atty. Gen., Indianapolis, for appellee.
The defendant-appellant Peter Drossos, while driving his automobile in the Indianapolis area, was involved in an accident in which the driver and three passengers of the other vehicle were killed. Drossos was charged with the death of the other driver and two of his passengers in a six count criminal information. With regard to each victim, Drossos was charged with one count of reckless homicide (Ind.Code 35-42-1-5) and one count of operating a vehicle while intoxicated resulting in the death of another person (Ind.Code 9-4-1-54), both Class C felonies. He was convicted on all six counts and sentenced to three years on each to be served concurrently. We affirm the three convictions for operating a vehicle while intoxicated resulting in the death of another person and remand with instructions to vacate the three reckless homicide sentences.
Drossos raises three issues on appeal:
1) Did the trial court erroneously exclude testimony of Dr. Robert B. Forney concerning the levels of methamphetamine and ethanol present in the victim-driver's body?
2) Did the trial court erroneously permit the State, in its final argument, to read excerpts from the dissenting opinion of Justice White in U.S. v. Wade, (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149?
3) Was there sufficient evidence to sustain verdicts of Reckless Homicide?
On October 12, 1980, Defendant Peter Drossos was involved in an accident in which four people in the other vehicle were killed. Drossos, driving a two-tone 1977 Chevrolet Blazer, was proceeding east on Michigan Street in Indianapolis when he collided at an intersection with a car driven by Myron Way, a stranger to Indianapolis and unfamiliar with its road system, who was traveling north on White River Parkway. The right front of the Blazer struck Way's vehicle just to the rear of its left front fender. Way and two of his passengers died instantly, a third passenger died shortly thereafter.
Michigan Street and the White River Parkway intersect; immediately east of that intersection Michigan Street becomes one way, heading west. Thus, had Drossos driven straight through the intersection without incident he would have been driving the wrong way on a one way street. An automatic traffic signal controls the flow of traffic at the intersection. Shortly before the accident in question, prosecution witness Dennis Wilson and two companions, Jerome Ector and Anthony Hudson, were driving on White River Parkway when they noticed Drossos' Blazer closely following them. It tailgaited them for over a mile, at times leaving only a foot of space between the two vehicles. When they arrived at their destination, Wilson and Ector got out of the car, and the Blazer drove past them. However, when Hudson got into the driver's seat and began to pull away, the Blazer appeared and again began inching up behind Hudson's car. Hudson stopped the car, got out, and pulled a jack handle from the trunk for protection. At this point, the occupants of the Blazer shouted, "see you later brother" and pulled away, heading for the Michigan Street--White River Parkway intersection.
Wilson watched the Blazer leave, describing its speed as "moving pretty fast, ... better than 45." Anthony Hudson stated the driver of the Blazer "floored it," going "maybe 40, 45, or 50." Jerome Ector testified the engine was "roaring" but did not estimate the miles per hour. Wilson and Hudson continued to watch the Blazer as it headed toward the intersection and both testified the traffic signal was red as Drossos approached the intersection. Neither one, however, saw the Blazer actually enter the intersection nor observed the color of the signal at the moment of impact.
Clarence Hoskins, an Indianapolis Police Officer and accident reconstruction expert, determined through examining the amount of damage and location of the vehicles after the collision that the Drossos Blazer had been exceeding the 30 m.p.h. posted speed limit, whereas the Oldsmobile driven by Myron Way had been traveling at or near that limit. He concluded Drossos was driving too fast to turn in either direction at the intersection (without turning the vehicle over) and was heading the wrong way straight into a one-way street. Hoskins also testified Drossos approached him immediately after the accident, saying "The light was red, I could not stop." Drossos and his passengers, conversely, testified the signal was green as they entered the intersection. Drossos claimed he said "Their light was red, I could not stop," and that due to a speech impediment he had from birth, Officer Hoskins misunderstood him.
On examining the Blazer, the police found several beer and liquor bottles on the floor. Several police officers testified Drossos and his companions were visibly intoxicated immediately following the collision. A breathalizer test administered to Drossos by Officer Hoskins registered .17%, well over the statutory prima facie limit. 1
1. Evidence of the Victim-Driver's Intoxication and Drug Use
At trial, the defense called Dr. Forney, Director of the Indiana State Department of Toxicology, to testify concerning the levels of methamphetamine and ethanol (alcohol) in Way's, the deceased driver's, bloodstream and urine. The judge sustained the prosecutor's objection to such testimony. Outside the jury's presence, Drossos made an offer to prove establishing through Dr. Forney's testimony that Way had a level of .014 milligrams per deciliter of methamphetamine and a level of 39 milligrams per deciliter of ethanol in his blood (an amount of concentration which would register .039% on the breathalizer) at the time of the accident. Dr. Forney's pertinent testimony with respect to the amphetamine and alcohol and their effects on a human being was as follows:
"Q. It's a Methamphetamine, and we call that speed, don't we?
A. Well, that's the name for it in the street. It's a ligitimate [sic] theraputic [sic] agent. Desoxyn is the one most common preparation of this that is used to help people stay awake.
Q. Like a "No-Doze" [sic]?
A. Yes. It's a prescription...
Q. It could even be an over-the-counter thing, couldn't it?
A. No, it could not have come from over-the-counter, legally. It's a controlled substance.
* * *
Q. And, the drug, itself, you previously testified I believe, that it is a controlled substance. Is that correct?
A. Yes.
Q. But, it can be obtained through the prescription of a doctor. Is that correct?
A. Yes.
Q. And, ofter [sic], it's used in fact, isn't it, for weight reduction?
A. Yes. It's possible.
Q. That's one of the very possible uses of that type of drug?
A. Yes, it is.
Q. The Desoxyn, the drug that was involved that was found in the body of Myron Way. Would you explain to the Court the level of the Desoxyn or the Methamphetamine, more accurately I guess, that was found in Myron Way's body, in the Toxicology Report?
A. Point 0, one four (.014) Milligrams per Decileter [sic].
Q. Okay. Would you describe the significance of that level of that particular drug, or chemical in Myron Way's body, as it would relate to how he would be able to drive a motor vehicle?
A. I think that it would have little or no effect. On his performance.
Q. Okay. It would have little or no effect?
A. On his performance, yes.
Q. It would be insignificant as to how he was operating his motor vehicle?
A. I think so, yes.
Q. The amount of Ethanol in the individual's body, itself, would that have had .. what type of effect would that level [.039%] have on an individual who was driving a motor vehicle?
A. I don't think that it would have had measureable effect.
Q. Okay, what do you mean by 'measureable effects," Doctor Forney? If you would describe for the Court and for the record.
A. I don't believe that in our laboratory we would be able to detect [any] performance [detriments] as a result of that amount of alcohol. We've had much experience in trying to do that. And, generally, blood-alcohol concentrations have to be in the neighborhood of five hundred percent (500%), point 0, five (.05) before we can begin to measure impairment."
Drossos contends on appeal the court erred in excluding evidence of Way's use of an amphetamine and intake of alcohol, claiming this evidence was relevant to show Way's conduct, not his, was the entire cause of the accident. He argues that only one driver could have run the red light, and whichever driver did so proximately caused the fatal crash. He contends his proffered evidence was relevant to show Way's senses were impaired by alcohol and drugs.
In response to Drossos' arguments we first note the well established rule in this jurisdiction that before we are permitted to find a trial court abused its discretion in rejecting proffered evidence supported by an offer to prove, we must first conclude such offer established the materiality, competency, and relevancy of the evidence offered. Pavone v. State, (1980) Ind., 402 N.E.2d 976; Tope v. State, (1977) 266 Ind. 239, 362 N.E.2d 137, U.S. cert. denied 434 U.S. 869, 98 S.Ct. 209, 54 L.Ed.2d 146; 28 I.L.E. Trial Sec. 45 (1960).
Drossos, of course, contends the existence of methamphetamine and alcohol in the blood of Way tended to prove that Way was under the influence of the drug and the alcohol, and their existence impaired his driving ability. But Dr. Forney, the only expert testifying about the effects of the amphetamine and alcohol and Drossos' own witness, claimed the methamphetamine had an "insignificant" impact on Way's driving...
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