Meisberger v. State, No. 53A01-9307-CR-243

Docket NºNo. 53A01-9307-CR-243
Citation640 N.E.2d 716
Case DateSeptember 26, 1994
CourtCourt of Appeals of Indiana

Page 716

640 N.E.2d 716
Wade MEISBERGER, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 53A01-9307-CR-243.
Court of Appeals of Indiana,
First District.
Sept. 26, 1994.
Transfer Denied Dec. 21, 1994.

Page 718

Michael J. Spencer, Bloomington, for appellant.

Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

Page 719

ROBERTSON, Judge.

Wade Meisberger appeals his convictions of murder and theft, for which he received concurrent sentences of forty-eight and three years' imprisonment, respectively. We affirm.

Meisberger argues in this appeal:

(1) that the trial court committed reversible error when it permitted Dr. Robin Roberts to identify a decomposed body as that of Michael Sawyer by comparing the teeth of the body with dental x-rays which were never properly authenticated;

(2) that the trial court erred in denying Meisberger's motion for mistrial which was made after a police officer carried into the courtroom, in the view of the jury, a "2 X 4," an exhibit which had not been listed as evidence by the State during discovery or admitted into evidence;

(3) that the trial court erroneously refused Meisberger's proposed instructions on voluntary intoxication, despite evidence of marijuana and alcohol consumption;

(4) that the trial court erred in admitting into evidence the videotape of the autopsy; and,

(5) that the trial court erred in refusing to discharge the venire when it had been established that twenty-five of fifty prospective jurors had some knowledge of the case.

I.

Deputy Coroner Robin Roberts, a dentist, testified over Meisberger's objection that the body he examined in the morgue on August 6, 1991, was that of Michael Sawyer. Dr. Roberts reached this conclusion by comparing his findings on the oral cavity of the body in the morgue, in particular, the absence of permanent tooth # 20 by the universal marking system and in its place a deciduous tooth, i.e. the victim's last baby molar, and a root canal in tooth # 10, with dental records he received from Dr. Berger the following day. Dr. Roberts testified that Dr. Berger's dental records, consisting in part of diagnostic radiographs taken as recently as 1990, were brought to him by messenger from Dr. Berger's office in Broad Ripple, Indianapolis. Dr. Roberts also testified that he had sufficient expertise to evaluate the reliability and accuracy of the records, and that the records were normally found to be reliable and were customarily used by and relied upon by persons in his profession.

At trial, Meisberger objected to Dr. Roberts' opinion on the ground that an adequate foundation had not been offered for it. In this appeal, he argues that the trial court erred in permitting Dr. Roberts to offer the opinion that the body he examined in the morgue was that of Michael Sawyer because no foundational evidence had been offered to permit the admission of the radiographs and they were in fact never admitted into evidence. Meisberger maintains that error in admitting the opinion of Dr. Roberts renders the State's proof of the victim's identity fatally defective.

We observe that Meisberger has not raised any question as to the accuracy of the doctor's identification. Dr. Roberts compared the x-rays purporting to be those of Michael Sawyer and the teeth of the decedent and determined that the decedent's teeth were those captured in the radiographs. In the absence of some question as to the accuracy of his identification, it was competent for the doctor to rely upon hearsay information as to identity and to offer an opinion as to identity. See Teague v. State (1978), 269 Ind. 103, 127, 379 N.E.2d 418, 430.

Ordinarily, it is proper for an expert to rely upon the reports and results obtained by another expert and to offer an opinion based upon those reports. The documents relied upon need not be admitted. Lockhart v. State (1993), Ind., 609 N.E.2d 1093 (reliance upon autopsy report prepared by another); Wickliffe v. State (1981), Ind., 424 N.E.2d 1007 (autopsy report prepared by another pathologist not put into evidence), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310; Morris v. State (1977), 266 Ind. 473, 481-2, 364 N.E.2d 132, 138, cert. denied, 434 U.S. 972, 98 S.Ct. 526, 54 L.Ed.2d 462; Davis v. State (1983), Ind.App., 456 N.E.2d 731, 733. Hearsay evidence customarily relied upon by an expert in the

Page 720

practice of his profession may be admitted and relied upon as the legitimate accumulation of that expert's knowledge. Bixler v. State (1984), Ind., 471 N.E.2d 1093, 1099, cert. denied, 474 U.S. 834, 106 S.Ct. 106, 88 L.Ed.2d 86. When the factual content of a medical report is admitted in conjunction with the detailed findings of a witness who has performed an autopsy as the basis for his own medical conclusions, the testimony reflecting that content is not hearsay. Wilber v. State (1984), Ind., 460 N.E.2d 142, 143.

Moreover, the x-rays need not be admitted into evidence to ensure that a defendant is not deprived of a meaningful opportunity to cross-examine the expert witness. The best evidence available to the trier of fact is not the x-rays themselves but the testimony of the expert skilled in interpretation. Pinkerton v. State (1972), 258 Ind. 610, 621-2, 283 N.E.2d 376, 382. The defendant is entitled to examine the films for purposes of cross-examination or to enable his own expert witness to offer his opinion, if different from that of the State's witness. Id., 258 Ind. at 622, 283 N.E.2d 376.

The identity of a person examined by a physician and about whom the doctor testified at trial as an expert witness may be established by circumstantial evidence. Maxwell v. State (1970), 254 Ind. 490, 260 N.E.2d 787, cert. denied, 402 U.S. 930, 91 S.Ct. 1525, 28 L.Ed.2d 863; Scott v. State (1980), Ind.App., 409 N.E.2d 1184, 1189. See also Graham v. State (1989), Ind., 535 N.E.2d 1152; Phillips v. State (1982), Ind., 436 N.E.2d 1123; Eiffe v. State (1948), 226 Ind. 57, 77 N.E.2d 750. Any lack of certainty as to identity goes to weight, not admissibility. Teague, 379 N.E.2d at 430; Scott, 409 N.E.2d at 1189.

The record in this case contains ample circumstantial evidence, in addition to the testimony of Dr. Roberts, from which the jury could have determined that the body found along the tracks in Bloomington was that of Michael Sawyer. Meisberger himself testified that he had gone to the tracks with Sawyer, killed him while there, and then left the body. Meisberger told his former fiancee that he had killed Michael Sawyer and left his body at the tracks. Police discovered the body along the tracks as Meisberger's fiancee had recounted and acquired the information necessary to obtain the dental records from Sawyer's parents contemporaneously. Sawyer had come to Bloomington to visit with Meisberger and had never returned home. Meisberger's neighbor and later, Meisberger's fiancee, each saw Meisberger with Sawyer's car shortly after Sawyer's death.

The trial court did not commit any error in permitting Dr. Roberts to testify that, using dental records he believed to be those of Michael Sawyer, he had determined that the decedent was in fact Michael Sawyer.

II.

Meisberger contends that he was denied a fair trial and should have been granted a mistrial when, during the opening minutes of the testimony of Dr. Ellis, the pathologist who performed the autopsy on the body of Michael Sawyer, a police officer entered the courtroom carrying a "2 X 4," which, upon objection by Meisberger, the prosecutor stated he intended to use as illustrative evidence during Dr. Ellis' testimony. Meisberger objected to the exhibit's "being brought in in full view of the jury," when it had not yet been offered into evidence, and moved for a mistrial without stating any additional grounds.

The thrust of Meisberger's argument on appeal is that, in the absence of real physical evidence, the State exhibited inadmissible "nonevidence" without obtaining the trial judge's approval beforehand or disclosing its intent to do so during discovery, in a deliberate effort to bolster its own case at the expense of the defense. Meisberger argues that he was prejudiced by the displaying of the "2 X 4" because "it contradicted [his] direct testimony. [Meisberger] testified that he hit Sawyer with a tree limb in a desperate act of self defense and that his actions were not pre-meditated."

Meisberger's objection at trial was limited solely to his contention that the exhibit could not be viewed by the jury before it had been admitted into evidence. He voiced no concern about the State's failure to comply with

Page 721

the rules of discovery and offered no argument whatsoever on the exhibit's admissibility. As it turns out, the prosecutor reconsidered the object's benefit to the State as an illustrative exhibit and withdrew it from the courtroom. The exhibit was never shown to a witness or offered into evidence. Accordingly, we perceive the allegation of error properly preserved for review to be Meisberger's contention that he was entitled to a mistrial because the State permitted the jury to view an exhibit which had not yet been introduced into evidence.

The standard for determining the significance of prosecutorial misconduct was set out in Maldonado v. State (1976), 265 Ind. 492, 498, 355 N.E.2d 843, 848. Murray v. State (1982), Ind., 442 N.E.2d 1012, 1018. First, the court must determine whether the prosecutor did, in fact, engage in misconduct as defined by the case law of the jurisdiction, the disciplinary rules, and the rules of professional conduct. Id. Second, the court must determine if, when viewed from the totality of the circumstances of the case, misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Id. (citing White v. State (1971), 257 Ind. 64, 272 N.E.2d 312). In determining whether or not the defendant was subjected...

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8 practice notes
  • Baxter v. State, No. 22A01–1210–CR–447.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 2013
    ...(Ind .Ct.App.2011)), trans. denied. Substantially similar duplicates may be admissible as demonstrative evidence. Meisberger v. State, 640 N.E.2d 716 (Ind.Ct.App.1994). On appeal, Baxter does not dispute that the replica was substantially similar to the original bar. Instead, Baxter argues ......
  • Meisberger v. Bishop, No. 39A01–1402–DR–76.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2014
    ...in the Department of Correction (“DOC”) for convictions of murder and theft occurring in Bloomington, Indiana.2 See Meisberger v. State, 640 N.E.2d 716, 719 (Ind.Ct.App.1994), trans. denied. He was placed on probation on September 7, 2007, and shortly thereafter fathered E.M., born on July ......
  • Ross v. State, No. 49A04-9506-CR-211
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1996
    ...explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Meisberger v. State, 640 N.E.2d 716, 721 (Ind.Ct.App.1994), trans. Page 602 The tape was made by Life Codes Corporation, a private New York laboratory that performs DNA analysis. The ......
  • Timberlake v. State, No. 49A02-9603-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1997
    ...offender charge. II. Videotape The standard applicable to the admissibility of photographs applies to videotapes. Meisberger v. State, 640 N.E.2d 716, 724 (Ind.Ct.App.1994), trans. denied. The admission of photographic evidence is within the discretion of the trial court, and we will revers......
  • Request a trial to view additional results
8 cases
  • Baxter v. State, No. 22A01–1210–CR–447.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 19, 2013
    ...(Ind .Ct.App.2011)), trans. denied. Substantially similar duplicates may be admissible as demonstrative evidence. Meisberger v. State, 640 N.E.2d 716 (Ind.Ct.App.1994). On appeal, Baxter does not dispute that the replica was substantially similar to the original bar. Instead, Baxter argues ......
  • Meisberger v. Bishop, No. 39A01–1402–DR–76.
    • United States
    • Indiana Court of Appeals of Indiana
    • August 26, 2014
    ...in the Department of Correction (“DOC”) for convictions of murder and theft occurring in Bloomington, Indiana.2 See Meisberger v. State, 640 N.E.2d 716, 719 (Ind.Ct.App.1994), trans. denied. He was placed on probation on September 7, 2007, and shortly thereafter fathered E.M., born on July ......
  • Ross v. State, No. 49A04-9506-CR-211
    • United States
    • Indiana Court of Appeals of Indiana
    • May 13, 1996
    ...explanatory or illustrative of relevant testimony in the case to be of potential help to the trier of fact. Meisberger v. State, 640 N.E.2d 716, 721 (Ind.Ct.App.1994), trans. Page 602 The tape was made by Life Codes Corporation, a private New York laboratory that performs DNA analysis. The ......
  • Timberlake v. State, No. 49A02-9603-CR-179
    • United States
    • Indiana Court of Appeals of Indiana
    • May 15, 1997
    ...offender charge. II. Videotape The standard applicable to the admissibility of photographs applies to videotapes. Meisberger v. State, 640 N.E.2d 716, 724 (Ind.Ct.App.1994), trans. denied. The admission of photographic evidence is within the discretion of the trial court, and we will revers......
  • Request a trial to view additional results

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