Matthew v. State, 172A49

• Decision Date: 21 November 1972
• Docket Number: No. 172A49,172A49
• Citation: 33 Ind.Dec. 571,154 Ind.App. 182,289 N.E.2d 336
• Parties: Charles MATTHEW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 336

289 N.E.2d 336

154 Ind.App. 182

Charles MATTHEW, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 172A49.

Court of Appeals of Indiana, Third District.

Nov. 21, 1972.

John M. Lyons, Lyons, Aungst & Guastella, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., William D. Bucher, Deputy Atty. Gen., for appellee.

SHARP, Judge.

The Defendant-Appellant, Charles Matthews, was charged by way of Grand Jury indictment in two counts. Count I alleged the offense of homicide while driving under the influence of intoxicating liquor within the meaning of I.C.1971, 9--4--1--54, Ind.Ann.Stat. § 47--2001(b)(1) (Burns 1965), which, in pertinent part, provides:

'Any person who while under the influence of intoxicating liquor . . . drives a vehicle and when so driving causes the death of another person, is guilty of a felony. . . .'

Count II of the indictment alleged the offense of reckless homicide as defined in I.C.1971, 9--4--1--54, Ind.Ann.Stat. § 47--2001(a) (Burns 1965), which, in pertinent part provides:

'Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide. . . .'

There are three issues presented for review as follows:

1. Whether there was sufficient evidence to sustain the conviction of reckless homicide and homicide while driving under the influence of intoxicating liquor and specifically, whether there was any evidence to show a corpus delicti for the offense charged in Count I.

2. Whether the trial court properly admitted certain pretrial statements made by the Defendant-Appellant.

3. Whether the trial court properly admitted certain portions of the Defendant's testimony before the Grand Jury admitted into evidence by a transcript.

This case was tried by a jury resulting in a verdict of guilty on both counts. As to Count I, the Defendant was fined $250,00 and as to Count II, the Defendant was fined $250.00 and sentenced to the Indiana State Prison for a term of not less than one nor more than two years.

A statement of the evidence most favorable to the State is as follows:

Donald Risner, bartender at the Bass Lake Country Club testified that he was working that day 'sometime after noon' and that Matthew had two or three vodka martinis. This testimony was substantially corroborated by Roy Wagner, owner of Bass Lake Golf Course who believed Matthew had two or three martinis within a period of about an hour and a half. He also testified that Defendant-Appellant's wife worked as a waitress and was working on Wednesday afternoon, July 29, 1970, and she worked from 11:30 o'clock A.M. to 2:30 o'clock P.M. He further testified that Defendant-Appellant was there 'that afternoon' and left with his wife. Wagner testified categorically that Defendant-Appellant was not intoxicated when he left. Each drink contained approximately 1 and 1/4 ounces of gin or vodka with vermouth.

Orville Brody, bartender of the Shore Room, testified that Matthew arrived there around 5:30 or 6:00 P.M. that same afternoon with his wife and that they drank one or two highballs, each containing one ounce of whiskey. They stayed for about one-half hour. Thus, the evidence most favorable to the State is that during the period from 11:30 A.M. to 6:30 P.M. on July 29, 1970 that the Defendant-Appellant had consumed a maximum of five drinks having one to one and one-fourth ounces of whiskey, gin or vodka.

Alberta Olson, daughter of the deceased Bertha Olson testified that on July 29, 1970 she and her mother went for a drive in the early evening. At around 8:00 P.M. they were involved in an accident at the junction of County Highway 25 North and 700 East. They were proceeding west on Road 25 North and there was no traffic signal controlling that lane of traffic. The Matthew car was traveling north on County Road 700 East and there is a stop sign regulating the flow of traffic across Road 25 North. Alberta Olson testified that she saw the other car approaching but she thought it would stop. The impact of the collision caused the Olson automobile to spin around two and one-half times before coming to a stop. The accident occurred while there was still daylight.

Stephen Fry, an ambulance attendant called to the scene, testified that he could smell alcohol on Matthew's breath but that he was not intoxicated at that time. This in the only direct evidence of the condition of the Defendant-Appellant at the scene.

Several officers of the Indiana State Police testified that Matthew's car contained beer cans and bottles in the rear seat and that the cans were still cool. Under the front seat was a drinking glass and a styrofoam cup. The cup was wet and smelled strongly of alcohol. In the trunk of the car was a half case of beer, an empty wine bottle and an empty champagne bottle.

About three hours later, at the hospital, Matthew had a conversation with several police officers, including one Officer Bashore.

As will be indicated in this opinion, the Defendant-Appellant voluntarily chose to testify before the Grand Jury proceedings, where he was represented by by counsel. We will deal specifically with the admissibility questions in regard to this testimony later in this opinion.

I.

Appellant contends that there was insufficient evidence of probative value to establish beyond a reasonable doubt all of the necessary elements of the crimes charged in the indictment. In Jackson v. State, Ind., 275 N.E.2d 538 (1971), Justice Hunter repeated the often stated and cited rule:

'In considering the first contention that the evidence was insufficient to sustain the verdict, this Court, upon review will not weigh the evidence nor determine the credibility of witnesses. Only the evidence most favorable to the State and the reasonable inferences to be drawn therefrom will be considered. As long as there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt the verdict will not be disturbed.'

See also, Maynard v. State, Ind., 274 N.E.2d 396 (1971), and Johnson v. State, Ind.App., 281 N.E.2d 922 (decided May 8, 1972).

As to Count I of the indictment, the only issue in regard to the sufficiency of the evidence concerns the element of whether Appellant was under the influence of intoxicating liquor at the time of the accident. The test as to whether a person is under the influence of intoxicating liquor while driving a vehicle is set out in Shorter v. State, 234 Ind. 1, 7, 122 N.E.2d 847, 849 (1954), as follows:

"Under the influence of intoxicating liquor' are words in common use--they are not words of technical nature--and are well understood by the laity, who know they refer to the impaired condition of thought and action, and the loss of the normal control of one's faculties to a marked degree, caused by drinking intoxicating liquors.'

Although there was evidence that the Appellant had been drinking on the day of the accident, the only evidence which even remotely tends to establish that he was under the influence of intoxicating liquor at the time of the accident is the opinion testimony of Officer Bashore, who neither observed nor talked to Appellant at the scene. When Officer Bashore arrived at the scene no one was there. Those involved in the accident had left or been taken to the hospital. Upon arrival, Officer Bashore initiated his investigation but the record is not clear as to how long a time he actually spent at the scene. Later he went to the hospital to continue the investigation. Officer Bashore spent two hours at the hospital before he made a phone call to the residence of the Appellant requesting he return to the hospital. After this phone call, Officer Bashore waited another hour before he was finally able to interview Appellant. Officer Bashore's testimony is based upon his observation of Appellant at this time, some four hours after the accident and, in part, is as follows:

'Q What was, will you describe Mr. Matthew and his actions to the jury when you were there with him in the police car?

A If I understand the question properly, you want his physical description?

Q Yes, actions, the way he spoke and so forth.

A His speech was fair, it was somewhat slurred to a point, but not, it was understandable, completely understandable. I have talked to Mr. Matthew prior to that time and his speech was different. His eyes were very bloodshot, his clothes were disarranged. Outside of the car, he walked fairly good; however, at the back of my vehicle, he leaned against my automobile at all times. He supported himself.

Q Could you smell alcoholic beverages on his breath?

A Yes, sir, it was very strong.'

No evidence is found in the record which would tend to establish that Appellant had nothing to drink from the time of the accident until the time of his meeting with Officer Bashore four hours later. Without first establishing this necessary prerequisite or attempting to qualify Officer Bashore as an expert on the subject, the following testimony occurred:

'Q Assuming that Mr. Matthew had had nothing to drink between the time of the accident and the time that you interrogated him at the hospital, do you have an opinion as to whether or not he was under the influence of intoxicating liquor at the time of the accident?

A Yes, sir.

MR. LYONS: I object to that as calling for a conclusion on the part of a non-expert witness.

THE COURT: Over-ruled.

Q (sic) Yes, I do.

Q And what is your opinion?

A That is (sic) ability definitely was impaired.

MR. LYONS: I now move, for purposes of the record, that the answer be stricken.

THE COURT: Over-ruled

Q His driving ability was impaired as a result of alcoholic beverages?

A Yes, sir.

Q I think the question, Your Honor, Trooper Bashore, was, in your opinion was he under the influence of intoxicating liquor at the time of the collision?

A Yes, sir.

Q That's your opinion?

A...