Glasscock v. State, No. 11A01-9011-CR-465

Docket NºNo. 11A01-9011-CR-465
Citation576 N.E.2d 600
Case DateAugust 12, 1991
CourtCourt of Appeals of Indiana

Page 600

576 N.E.2d 600
Ronald E. GLASSCOCK, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 11A01-9011-CR-465.
Court of Appeals of Indiana,
First District.
Aug. 12, 1991.
Opinion on Denial of Rehearing Oct. 16, 1991.

Page 601

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Ronald E. Glasscock appeals his conviction of Operating a Motor Vehicle While Intoxicated Causing Death 1, a Class C felony. We affirm.

ISSUES

1. Was the evidence of Glasscock's blood alcohol content (BAC) admitted erroneously because the blood samples were

Page 602

destroyed depriving him of an independent blood analysis and denying his rights to due process?

2. Was the admission into evidence of the lab report error because it was not the "best evidence" of the BAC results?

3. Did the court err in admitting the opinion evidence of Mike Beatty?

4. Did the court err in instructing the jury on the permissive presumption of intoxication established in IND.CODE Sec. 9-11-4-15(b)?

5. Did the blood samples taken from Glasscock violate IND.CODE Sec. 9-11-4-6(g) and the Fourth Amendment rendering the evidence of Glasscock's BAC inadmissible?

FACTS

On November 29, 1989, at approximately 5:30 p.m., Glasscock's car collided with another vehicle on U.S. 40. Herschel and Marjory Lybarger, the occupants of the other vehicle, died. After Glasscock's car passed Dennis Stewart, Stewart saw Glasscock's car cross the driving lane and strike the Lybarger vehicle. Stewart helped Glasscock out of his station wagon. Stewart and other witnesses detected an odor of alcohol on Glasscock's breath. Dr. Stanley Froderman treated Glasscock in the emergency room at the Clay County Hospital. After he noticed that Glasscock had been drinking, he ordered a blood test. The lab technician tested the blood and found that Glasscock's BAC was .196%.

Glasscock was charged with operating a vehicle while intoxicated resulting in death, reckless homicide, and operating a vehicle with .10% or more BAC resulting in death. On February 9, 1990, Glasscock filed a motion for independent blood analyzation. After discovering that the hospital had destroyed the blood samples seven days after they were taken, Glasscock filed a motion to suppress evidence of his BAC. The court denied the motion.

At a jury trial, several witnesses testified that they observed Glasscock's car driving recklessly just prior to the accident. Glasscock admitted to drinking two martinis, but presented evidence that the alcohol would not have raised his BAC to the level reported by the lab technician. Glasscock objected to the BAC evidence, including the BAC lab report. The jury found Glasscock guilty on all three counts. The court only sentenced Glasscock for operating a vehicle while intoxicated causing death. Glasscock received an eight year sentence.

DISCUSSION AND DECISION

Issue One

Glasscock contends the evidence of his BAC was admitted erroneously because the blood samples were destroyed before an independent blood analysis could be performed. Glasscock seeks reversal of his conviction, claiming the state negligently destroyed material evidence. Negligent destruction or withholding of material evidence by the police or prosecution may present grounds for reversal. Johnson v. State (1987), Ind., 507 N.E.2d 980, 982, cert. denied, 484 U.S. 946, 108 S.Ct. 335, 98 L.Ed.2d 362. Here, the police and the prosecution never possessed the blood samples. Upon Dr. Froderman's own initiative, blood samples were taken and tested. Afterwards, the samples were destroyed in accordance with the hospital's procedure. Where the police and the prosecution did not possess evidence, the rule requiring reversal of a conviction based upon evidence which was negligently destroyed does not apply. Everroad v. State (1991), Ind.App., 570 N.E.2d 38, 47, trans. pending.

Furthermore, Glasscock fails to establish bad faith of the police officers. Failure to preserve potentially useful evidence is not a denial of due process unless the defendant shows bad faith. Id. In Nettles v. State (1991), Ind., 565 N.E.2d 1064, the state possessed blood samples which Nettles sought for independent testing. The court did not order the state to turn over the samples until reasonable security could be provided for the state's evidence. Due to the state's failure to refrigerate the samples in the interim, the samples deteriorated and were not able to be tested again. Nettles sought to exclude the results from the testing which previously had been done by the police. The court found that the report was admissible because the inability to have independent analysis did not affect or invalidate the results of the prior tests and that there was no showing of bad faith in the failure to preserve the blood samples. Id. at 1067. Likewise, we do not find the trial court erred in admitting the BAC evidence on this ground.

Page 603

Issue Two

Glasscock further complains that the court erred in allowing the BAC lab report into evidence because it was not the best evidence of the BAC results. Glasscock argues that the lab report should have been excluded because the machine printout from the TDX analyzer was neither produced nor accounted for which displays the results of the analysis. Glasscock disputed the accuracy of the lab report. Glasscock contends the best evidence rule required production of the machine printout.

Indiana has not addressed this specific question. Pursuant to the best evidence rule, the North Carolina Supreme Court held inadmissible witness testimony as to the contents of a printout which was not offered into evidence. State v. Springer (1973), 283 N.C. 627, 636, 197 S.E.2d 530, 536. Finding prejudicial error by the admission of the testimony, the court ordered a new trial. Id. at 636, 197 S.E.2d at 537. We are impelled to conclude that the admission into evidence of the...

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7 practice notes
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...lost and then found during trial did not result in reversible error where no bad faith shown on the part of police); Glasscock v. State, 576 N.E.2d 600 (Ind.Ct.App.1991), reh'g denied, trans. denied (hospital's destruction of blood samples did not present grounds for reversal where State di......
  • Borchert v. State, No. 49A02-9210-CR-481
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 1993
    ...could be heard by employees inside a closed building 150 feet from where Borchert was standing. See Glasscock v. State (1991), Ind.App., 576 N.E.2d 600, 604, trans. denied (admission of improper evidence is harmless when facts adduced from admission were also separately established by indep......
  • Popp v. State, No. 82A01–1205–CR–197.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 20, 2013
    ...holding the State responsible for destroyed evidence where the State was not in possession of the evidence. See Glasscock v. State, 576 N.E.2d 600, 602 (Ind.Ct.App.1991) (“Where the police and the prosecution did not possess evidence, the rule requiring reversal of a conviction based upon e......
  • Mileusnich v. Novogroder Co., Inc., No. 45A03-9404-CV-144
    • United States
    • Indiana Court of Appeals of Indiana
    • December 6, 1994
    ...to the appellee's brief; a party may not assert new issues therein. Ind.Appellate Rule 8.3(C); Glasscock v. State (1991), Ind.App., 576 N.E.2d 600, 604, trans. denied. Mileusnich has therefore waived this 4 In making this determination, we are not concluding that the reletting of the premis......
  • Request a trial to view additional results
7 cases
  • Rita v. State, No. 71A03-9506-CR-185
    • United States
    • Indiana Court of Appeals of Indiana
    • April 18, 1996
    ...lost and then found during trial did not result in reversible error where no bad faith shown on the part of police); Glasscock v. State, 576 N.E.2d 600 (Ind.Ct.App.1991), reh'g denied, trans. denied (hospital's destruction of blood samples did not present grounds for reversal where State di......
  • Borchert v. State, No. 49A02-9210-CR-481
    • United States
    • Indiana Court of Appeals of Indiana
    • October 13, 1993
    ...could be heard by employees inside a closed building 150 feet from where Borchert was standing. See Glasscock v. State (1991), Ind.App., 576 N.E.2d 600, 604, trans. denied (admission of improper evidence is harmless when facts adduced from admission were also separately established by indep......
  • Popp v. State, No. 82A01–1205–CR–197.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 20, 2013
    ...holding the State responsible for destroyed evidence where the State was not in possession of the evidence. See Glasscock v. State, 576 N.E.2d 600, 602 (Ind.Ct.App.1991) (“Where the police and the prosecution did not possess evidence, the rule requiring reversal of a conviction based upon e......
  • Mileusnich v. Novogroder Co., Inc., No. 45A03-9404-CV-144
    • United States
    • Indiana Court of Appeals of Indiana
    • December 6, 1994
    ...to the appellee's brief; a party may not assert new issues therein. Ind.Appellate Rule 8.3(C); Glasscock v. State (1991), Ind.App., 576 N.E.2d 600, 604, trans. denied. Mileusnich has therefore waived this 4 In making this determination, we are not concluding that the reletting of the premis......
  • Request a trial to view additional results

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