Jones v. State

• Decision Date: 11 February 2013
• Docket Number: No. 49A02–1204–CR–292.,49A02–1204–CR–292.
• Parties: Edwin JONES, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 417

Edwin JONES, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1204–CR–292.

Court of Appeals of Indiana.

Feb. 11, 2013.

Joel M. Schumm, Brian A. Karle, Certified Legal Intern, Appellate Clinic, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BROWN, Judge.

Edwin Jones appeals his conviction and sentence for operating a vehicle while intoxicated as a class A misdemeanor.¹Jones raises three issues which we revise and restate as:

I. Whether the trial court abused its discretion and violated Jones's confrontation rights by admitting a certificate of inspection asserting the accuracy of police testing equipment;

II. Whether the court abused its discretion in ruling on certain evidentiary matters; and

III. Whether the court erred in sentencing him.

We affirm.

FACTS

On May 29, 2010, at approximately 8:26 p.m., Indiana State Police Trooper Dan Madison was traveling northbound on Emerson Avenue and was stopped at a traffic light at Southeastern Avenue in Marion County, Indiana. After the light turned green, Trooper Madison began to proceed through the intersection, noticed a car driven by Jones approaching from his right side on Southeastern, and had to brake and let Jones pass because Jones did not stop at the red light. Jones passed “right in front” of Trooper Madison's police car and turned right to head northbound on Emerson, and Trooper Madison began to follow him. Transcript at 38. Trooper Madison observed Jones weaving in and out of his lane, crossing the center line twice. He also observed Jones attempt to pass in a no-passing zone and drift onto the shoulder of the road, almost hitting parked vehicles. When Jones attempted to pass in the no-passing zone, Trooper Madison was forced to swerve into oncoming traffic with Jones to alert the drivers to avoid Jones's vehicle, and he then initiated a traffic stop of Jones.

As Trooper Madison approached the driver's side of the vehicle he noticed a strong odor of alcoholic beverages and that Jones's eyes were bloodshot and red. He asked Jones for his license and registration, and Jones slurred his speech when responding and “fumbled through to get his driver's license out.” Id. at 42. Jones also could not locate his registration. Trooper Madison asked Jones to step out of the vehicle and Jones “swung himself out” turning both feet and “tumbled on the ground first and then stood up.” Id. at 43. Trooper Madison led Jones to the rear of the vehicle and noticed Jones stagger and lean against the vehicle to steady his balance. Trooper Madison then administered three field sobriety tests including the One Leg Stand, the Nine Step Walk, and the Horizontal Gaze Nystagmus (“HGN”) test, each of which Jones failed.

Based upon Jones's driving behaviors, Trooper Madison's observations of Jones, and Jones's failure of the field sobriety tests, Trooper Madison determined that he had probable cause to believe that Jones was intoxicated and he read Jones the Indiana Implied Consent Law and asked Jones to take a chemical breath test on a “BAC DataMaster” machine. State's Exhibit 4. Jones agreed, and Trooper Madison transported him to the Arresting Processing Center (“APC”) where the closest certified breath testing device was located. While en route to the APC, Jones stated that “he should have listened to his friends” who did not want him to drive and asked Jones to stay at their place. Transcript at 69. Trooper Madison administered the breath test to Jones resulting in a “subject sample” reading of .18. Id. at 65. Jones was placed under arrest.

COURSE OF PROCEEDINGS

On May 30, 2010, the State charged Jones with Count I, operating a vehicle while intoxicated as a class A misdemeanor; and Count II, operating a vehicle above .15 as a class A misdemeanor. On March 26, 2012, the court held a jury trial and evidence consistent with the foregoing was presented. At trial, Trooper Madison testified that he was certified as a chemical test operator by the Indiana Department of Toxicology at the time Jones's chemical test was administered, and the State admitted State's Exhibit 2 without objection which was a list of police officers who were certified to administer chemical breath tests and contained Trooper Madison's name. The State then introduced as State's Exhibit 3 a certificate of inspection (the “Certification”) stating that “[t]he instrument is in good operating condition, satisfying the accuracy requirements set out by State Department of Toxicology Regulations” as of May 3, 2010. State's Exhibit 3. Jones objected to the exhibit and asked preliminary questions of Trooper Madison demonstrating that he was not Michael F. Neerman, Ph.D., the Acting Director of the State Department of Toxicology, who was the signatory on the Certification, and Jones argued that the Certification was a violation of Jones's rights under the Confrontation Clause. The court overruled Jones's objection and admitted the Certification.

The State proceeded to question Trooper Madison regarding the procedures he used in administering the chemical test, in which at the outset the State requested that the court take judicial notice of the chemical test procedures enacted by Ind. Administrative Rule 260 and the court did so. The State proceeded to ask Trooper Madison a series of questions to determine whether he followed the procedures in administering Jones's test, and at one point Jones objected to the State's questions as leading. The court overruled the objection, the State proceeded, and Jones entered a continuing objection to the State's questioning which the court noted and overruled.

Near the end of the State's direct examination of Trooper Madison, it introduced as State's Exhibit 5 the probable cause affidavit Trooper Madison completed “while [he] was waiting for the twenty (20) minutes at APC.” Id. at 72. Jones objected to the exhibit as hearsay, the State responded that Trooper Madison “authenticated” the exhibit, and the court overruled Jones's objection. Id. at 74. The State did not question Trooper Madison regarding the contents of the probable cause affidavit, and it rested soon after the probable cause affidavit was admitted.

At the conclusion of the trial, the jury found Jones guilty as charged. The court entered its judgment of conviction and merged Count II into Count I. On April 18, 2012, the court held a sentencing hearing and sentenced Jones to 365 days with forty days executed to be served on home detention and 325 days suspended to probation.

ISSUES/ANALYSIS

I.

The first issue is whether the court abused its discretion and violated Jones's confrontation rights by admitting the Certification. Generally, we review the trial court's ruling on the admission of evidence for an abuse of discretion. Noojin v. State, 730 N.E.2d 672, 676 (Ind.2000). We reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind.1997), reh'g denied. Even if the trial court's decision was an abuse of discretion, we will not reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966 (Ind.Ct.App.1999), reh'g denied, trans. denied. However, here because the issue is one of constitutional law, we review Jones's claim de novo. See King v. State, 877 N.E.2d 518, 521 (Ind.Ct.App.2007)(constitutional challenges are reviewed de novo ); see also U.S. v. Aguila–Urbay, 480 Fed.Appx. 564, 566 (11th Cir.2012) (“We review evidentiary rulings for an abuse of discretion.... However, we review ‘ de novo the question of whether hearsay statements are testimonial for purposes of the Confrontation Clause.’ ”) (quoting United States v. Caraballo, 595 F.3d 1214, 1226 (11th Cir.2010)); United States v. Nettles, 476 F.3d 508, 517 (7th Cir.2007) (“We review de novo a district court ruling that affects a defendant's Sixth Amendment rights.”).

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. “A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Pendergrass v. State, 913 N.E.2d 703, 705 (Ind.2009) (citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)), cert. denied,––– U.S. ––––, 130 S.Ct. 3409, 177 L.Ed.2d 323 (2010); see also Davis v. Washington, 547 U.S. 813, 821–822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68–69, 124 S.Ct. at 1374.

Jones argues that the Certification is a testimonial statement implicating his rights under the Confrontation Clause and that this court's previous statements that such certifications are nontestimonial are incorrect, noting in particular that our holding in Ramirez v. State, 928 N.E.2d 214 (Ind.Ct.App.2010), trans. denied, is the only decision which has considered the issue since the United States Supreme Court's opinion in Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and that at this stage “it is appropriate to reconsider this line of cases in light of” Bullcoming v. New Mexico, ––– U.S. ––––, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). Appellant's Brief at 4. Jones argues that the Certification is testimonial because it “represents ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a...