Kelly v. State
| Decision Date | 14 September 1988 |
| Docket Number | No. 52A02-8701-CR-00012,52A02-8701-CR-00012 |
| Citation | 527 N.E.2d 1148 |
| Parties | Jerry W. KELLY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Jerry W. Kelly appeals his convictions and sentences for operating a vehicle while intoxicated, resulting in death, 1 and operating a vehicle while intoxicated resulting in serious bodily injury. 2
We affirm in part and reverse in part.
This case was tried to the court. The decision was rendered solely on the basis of a Stipulation as to Testimony [Stipulation]. 3 The Stipulation is summarized as follows:
Shortly before 7:00 p.m. on September 7, 1985, a collision occurred on U.S. Highway 31 in Miami County, Indiana. A farm tractor driven by Dale A. Wood was towing a second farm tractor driven by his daughter, Dedra L. Wood. A pick-up truck, driven by Doris I. Wood, Dale's wife, followed the tractors. A semi-tractor driven by Kelly and hauling two semi-trailers piggy-back collided with the rear of the pick-up, forcing it into the tractors. Dale Wood died as a result of the accident and Doris Wood was seriously injured.
State troopers arrived on the scene at 6:57 p.m. and removed two full 375 ml bottles and one partially-full 200 ml bottle of Jack Daniels whiskey from the semi- Upon investigation, another trooper determined that, at the time of the collision, the tractors and pick-up were traveling on the pavement in the pullover lane, to the right of, and adjacent to, the driving lanes. The only lane indicator was temporary tape marking the center line.
tractor cab. Troopers also recovered beer cans lying on the ground in the vicinity of the passenger-side door of the semi-tractor. Satisfactory fingerprints were not obtained from the cans. A trooper smelled alcohol on Kelly's breath.
According to Dedra and Doris Wood, the tractor driven by Dale Wood had two lighted headlights, two flashing rear caution lights, and one other lighted rear light. The tractor driven by Dedra Wood was without lights because the battery was dead. It did have a slow moving vehicle sign. The pick-up had two lighted headlights, lighted tail lights, and lighted flashers. A driver who was approaching the scene from the north, stated:
I didn't see any lights on the tractors. I didn't see any lights at all except for the semi lights, and the reason I didn't pay any attention to the accident before it happened was because I didn't see anything, and until the semi-tractor lights came on the two tractors I couldn't see anything in the road either. I never did see Mrs. Wood's pickup truck.
Troopers observed Kelly from the time of their arrival on the scene and at no time did they observe him consume any alcoholic beverage. At 8:45 p.m., Kelly was given an Intoxilyzer 5000 breath test for ethanol. The test revealed a BAC level of .29. A performance test was given to Kelly at 9:15 p.m. The trooper administering the test reported:
Kelly['s] balance was swaying; he swayed when he walked and was unsure in walking. In turning, he swerved and in finger to nose tests, he completely missed his nose with both his right and left hand. His ability to understand instructions was ... poor to fair; the effects of alcohol obvious, and his ability to drive unfit.
Record at 139. Kelly admitted to having consumed three beers, but denied he was under the influence of alcohol at the time of the collision.
Two persons in a vehicle following the Kelly semi-tractor for approximately one mile prior to the collision stated the semi-tractor was weaving back and forth between the center line and the far right paved portion of the highway. As a result, they did "not attempt to pass the semi-tractor ... and ... drop[ped] back and slow[ed] down prior to the collision." Record at 140. Also, the driver of this following vehicle experienced "difficulty in preventing his own car from drifting to the right hand side of the roadway because he uses the white line delineating the right side of the roadway as a guide, and this white line was not painted on the roadway at the time of the collision." Id. Another driver saw Kelly's semi-tractor in the afternoon prior to the collision and stated that on three occasions Kelly stopped alongside the road and stood in a position suggesting he was urinating. This witness did not observe any problems with Kelly's driving.
Kelly stated he did not remember seeing any lights on the pick-up. It was further stipulated that a piggy-back semi-tractor with piggy-back trailers has a greater tendency to weave back and forth than does a semi-tractor pulling a single trailer.
In final argument, Kelly's counsel maintained this court's decision in Micinski v. State (1985), Ind.App., 479 N.E.2d 632 mandated acquittal. In its closing argument, the State advised the trial court the decision had been vacated by a grant of transfer in Micinski v. State (1986), Ind., 487 N.E.2d 150. Although the supreme court's decision was handed down on January 6, 1986, it did not appear in the advance sheets of the official reporter until the February 5, 1986 issue. It is undisputed that Kelly's attorney had not received that issue as of Kelly's trial, also on February 5, 1986.
At the hearing on Kelly's belated motion to correct error, Kelly testified he agreed to the use of the Stipulation at his trial because he "was led to believe [by his Kelly's counsel testified his decision to attempt to obtain the Stipulation occurred before he was aware of the Court of Appeals decision in Micinski. He explained he felt the Stipulation was a favorable strategy because, as finalized:
attorney] that [the decision of the court of appeals in Micinski ] would have quite a lot of bearing...." He further stated "[b]oth of us talked and both of us thought that this was the best way to go on this." Record at 389. Kelly also asserted he relied on his attorney's representation that if he were convicted his case would be overturned on appeal because of Micinski
I determined that the items that Mr. Palmer did not emphasize were important enough to present such a stipulation to the trial court in that the testimony from the person following Mr. Kelly's vehicle were stated in such a way that the harm to Mr. Kelly was minimized also, some of the testimony from witnesses who were traveling in the opposite lane in the opposite direction were ommitted [sic]. The stipulation did not go into redundancy which I believe would occur at trial before a jury. Based upon that stipulation I felt comfortable in presenting that to a trial court.
BY THE COURT: You are saying there was some potentially unfavorable testimony from witnesses traveling in the opposite direction that you managed to avoid getting before the court?
A. That's correct. But overall the reason was because of the lack of there being cumulative testimony whereas in a jury trial I am certain the prosecutor would continue to bring out the bad points over and over again before a jury.
He also testified that the only evidence admitted as a result of the stipulation to which he would have objected at a trial before the court 4 was the result of the Intoxilyzer test. However, he also stated that his research revealed "there would be no way I could justify attacking the intoxilyzer" as a scientific instrument. Record at 413. Further, Kelly's attorney testified he may have told Kelly that because his factual situation was similar, the Micinski decision was significant and might be determinative of the ultimate outcome of his case.
1. Whether Kelly's consent to use of the Stipulation was involuntary because he gave it without advice as to the effect of the Stipulation upon his adversarial rights and because his consent was premised upon a misrepresentation made by his counsel.
2. Whether Kelly's counsel was ineffective in recommending and using the Stipulation because:
(a) It was without basis in statute or rule;
(b) It constituted poor strategy; and
(c) It was based upon counsel's mistaken assumption concerning the validity of an appellate decision.
3. Whether Kelly's counsel was ineffective because he relied upon a vacated appellate decision in presenting Kelly's defense.
4. Whether the trial court erred in imposing aggravated and consecutive sentences.
Kelly claims that his consent to use of the Stipulation was involuntary and he was thereby deprived of his right to an adversarial proceeding. His first contention is that his consent was involuntary because his attorney did not advise him the Stipulation effectively waived his adversarial rights.
Without addressing the obligation of the attorney to his client in this situation, we conclude there is no error because Kelly was not prejudiced by the omission. Prior to receiving the Stipulation, the trial court advised Kelly that but for the Stipulation he would have a right at trial to confront and cross-examine witnesses, to subpoena and call his own witnesses and present evidence in his own behalf. The trial court also advised Kelly the Stipulation would "satisfy the requirement of law that each element of each crime be proved beyond a reasonable doubt ..." and of "the strong likelihood ... that after reading the stipulations and comparing them to the elements of the crimes, ... you will be found guilty...." Record at 331. Kelly responded that he understood each advisement and agreed to the use of the Stipulation. Thus, the trial court could reasonably conclude Kelly was adequately advised of the ramifications of the use of the Stipulation and consequently, his counsel's failure to advise him did not render his consent involuntary.
Kelly's second contention is that his...
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