Hastings v. State

• Decision Date: 21 June 2016
• Docket Number: No. 29A02–1507–CR–982.,29A02–1507–CR–982.
• Parties: Richard Vance HASTINGS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

58 N.E.3d 919

Richard Vance HASTINGS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 29A02–1507–CR–982.

Court of Appeals of Indiana.

June 21, 2016.

Ordered Published Aug. 12, 2016.

John L. Tompkins, Brown Tompkins Lory & Mastrian, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MATHIAS

, Judge.

[1] Following a jury trial, Richard Hastings (“Hastings”) was convicted in Hamilton Superior Court of Level 6 felony for operating a motor vehicle while intoxicated with a blood alcohol equivalent of 0.08 or more with a prior conviction within five years. On appeal, Hastings presents two issues, one of which we find dispositive: whether the trial court erred in excluding the testimony of Hasting's proffered expert witness. Concluding that the trial court abused its discretion in excluding the testimony of this witness and that this exclusion was not harmless, we reverse and remand.

Facts and Procedural History

[2] On the evening of September 12, 2014, Officer Charles Nichols (“Officer Nichols”) of the Westfield Police Department was on patrol when he saw a black Jeep Wrangler traveling at 65 miles per hour in a 40–mile–per–hour construction zone on U.S. Highway 31. Officer Nichols initiated a traffic stop and spoke with Hastings, who was driving the Jeep. Although Hastings claimed to have had only one drink earlier in the evening, Officer Nichols noticed that Hastings had red, bloodshot eyes and also observed two unopened cases of beer in the back of the Jeep.

[3] Believing that Hastings might be intoxicated, Officer Nichols instructed Hastings to undergo three field sobriety tests: the horizontal gaze nystagmus test

, the nine-step walk-and-turn test, and the one-leg stand test. Hastings failed all three tests. Officer Nichols then transported Hastings to the police station, where he tested Hastings with a chemical breath test. This test indicated that Hasting's blood alcohol equivalent (“BAE”) was 1.08 grams per 210 liters of breath.

[4] On September 17, 2014, the State charged Hastings with Class C misdemeanor operating a motor vehicle while intoxicated, Class C misdemeanor operating a motor vehicle with a BAE of 0.08 or greater, Level 6 felony operating a motor vehicle while intoxicated and having a prior conviction within five years, and Level 6 felony operating a motor vehicle with a BAE of 0.08 or greater and having a prior conviction within five years.

[5] On the day prior to trial, the State filed a motion in limine seeking to prevent Hasting's expert witness, Dr. Robert Belloto, Jr. (“Dr. Belloto”), from testifying regarding the specific chemical breath test device used on Hastings, the Intoxylizer EC/IR II. The trial court held a hearing on this motion immediately before the jury trial began. The State orally moved to expand its motion in limine to include other areas of Dr. Belloto's testimony. The trial court ruled from the bench as follows:

I'm going to grant the State's motion with respect to [Dr. Belloto's] testimony. I'm granting the motion with respect to everything in both written motions. I'm also granting the motion that the State is now making orally. That doesn't exclude him from testifying. It does exclude him from testifying before the jury until such time as we have a hearing out of the presence of the jury to determine what he will, whether he is qualified as an expert on anything having to do with this trial, anything relevant in this trial. I'm not forever excluding his testimony, that's not what a motion in limine does. What it does is exclude his testimony until such time as I make a determination with him on the stand as to what his testimony would be, outside the presence of the jury, that it is, that he does qualify as an expert and that his testimony would be relevant.

Tr. pp. 17–18 (emphasis added).

[6] At the conclusion of the State's case-in-chief, Hastings called Dr. Belloto as a witness. Dr. Belloto was then questioned by both parties outside the presence of the jury to determine his qualifications as an expert. The trial court ruled:

I don't find that Dr. Belloto satisfies the requirement for the Court to accept him as an expert to testify in this area. I just have a really difficult time believing that any pharmacist in any drug store could walk into a courtroom and testify in an operating while intoxicated case as an expert on this issue, and that is the position that he has taken. He has been, he has testified approximately 20 times, he said. He hasn't been trained with respect to anything except the various machines. He's studied pharmacy, he's studied pharmo, pharmokinetics. So have a lot of other people. I don't find him to be an expert.

Tr. pp. 171–72.

[7] At the conclusion of the first stage of the trial, the jury found Hastings guilty of both misdemeanor counts. Hastings then pleaded guilty to the Level 6 felony enhancements, i.e., he admitted that he had a prior conviction for operating while intoxicated within the past five years. At sentencing, the trial court merged the other convictions into the one count of Level 6 felony operating a motor vehicle with a BAE of 0.08 or greater while having a prior conviction within the last five years. The court sentenced Hastings to 910 days, with 360 days executed and 550 days suspended to probation. Hastings now appeals.

Discussion and Decision

A. Standard of Review

[8] Hastings first argues that the trial court erred in excluding the testimony of Dr. Belloto. Decisions regarding the admission of evidence are entrusted to the sound discretion of the trial court, and we review the court's decision only for an abuse of that discretion. Wells v. State, 904 N.E.2d 265, 269 (Ind.Ct.App.2009)

, trans. denied. The trial court's ruling on the admission of evidence constitutes an abuse of discretion only if its decision is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id.

B. Procedural Claims

[9] Hastings first argues that the procedure used by the trial court to address the State's objection to Dr. Belloto's testimony was so unfair as to constitute fundamental error. Because he made no objection to the trial court's procedure below, Hastings must argue that the trial court's procedure was fundamental error. See Sampson v. State, 38 N.E.3d 985, 992 (Ind.2015)

(noting that the failure to object at trial waives the issue for review unless fundamental error occurred). The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default or “waiver” precluding consideration of the issue on appeal. Id. However, the fundamental error exception applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Id. Also, harm is not shown by the fact that the defendant was ultimately convicted. Id. Instead, harm is found when error is so prejudicial as to make a fair trial impossible. Id. [10] Hastings complains that the trial court erred by permitting the State to file its motion in limine the day before trial. However, the trial court had issued a pre-trial order, applicable to both parties, that set the day before trial as the deadline for such motions. We fail to see how this constitutes error. Moreover, Hastings refers us to no authority (and we are aware of no such authority) that would require the State to file a pre-trial motion in order to object to Dr. Belloto's testimony. The State would have been within its rights to simply object to Dr. Belloto's testimony during the trial. As noted by the State on appeal, it was not the prosecutor's burden to disqualify Dr. Belloto's testimony; it was Hasting's burden to establish Dr. Belloto as an expert. See Prewitt v. State, 819 N.E.2d 393, 410 (Ind.Ct.App.2004)

(“the proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles and tests upon which the expert's testimony is based.”); Ollis v. Knecht, 751 N.E.2d 825, 829–30 (Ind.Ct.App.2001) (“[T]he party wishing to admit the expert's testimony has the burden of proving that the evidence is admissible.”).¹

[11] Furthermore, the cases to which Hastings cites are readily distinguishable. In fact, the cases he cites involve the exclusion of witnesses who were not timely disclosed. See, e.g., Williams v. State, 714 N.E.2d 644, 651 (Ind.1999)

; Cook v. State, 675 N.E.2d 687, 691 (Ind.1996) ; Wiseheart v. State, 491 N.E.2d 985, 991 (Ind.1986). None of these cases involves a determination that a witness was not qualified to testify as an expert.

[12] Hastings also complains that the exclusion of his expert witness denied him his right to present a defense and witnesses in his favor. Our supreme court has explained:

Every defendant has the fundamental right to present witnesses in their own defense. Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)

; Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019(1967) ; Kellems v. State, 651 N.E.2d 326, 328 (Ind.Ct.App.1995). This right “is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies.” Washington, 388 U.S. at 19, 87 S.Ct. 1920. At the same time, while the right to present witnesses is of the utmost importance, it is not absolute. See

Chambers, 410 U.S. at 302, 93 S.Ct. 1038 ; Kellems, 651 N.E.2d at 328. “In the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. ” Chambers, 410 U.S. at 302, 93 S.Ct. 1038.

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