Reid v. State, No. 1076S345

Docket NºNo. 1076S345
Citation372 N.E.2d 1149, 267 Ind. 555
Case DateFebruary 06, 1978
CourtSupreme Court of Indiana

Page 1149

372 N.E.2d 1149
267 Ind. 555
Harry Edward REID, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 1076S345.
Supreme Court of Indiana.
Feb. 6, 1978.

[267 Ind. 557]

Page 1151

Harriette Bailey Conn, Public Defender, Lawrence D. Giddings, David P. Freund, Bobby Jay Small, Deputy Public Defenders, Jerrilee P. Sutherlin, Research Assistant, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendant (Appellant) was charged with First Degree Murder, Ind. Code (Burns 1975) 35-13-4-1, accomplished with a handgun. Over an alibi defense, he was convicted of Second Degree Murder, Ind. Code (Burns 1975) [267 Ind. 558] 35-1-54-1, and was sentenced to life imprisonment. His appeal presents the following issues:

(1) Whether the trial court erred by admitting testimony concerning the results of a chemical test used to detect metal traces.

(2) Whether the court erred by permitting a State's witness to testify as an expert, over a defense objection that he was not qualified as such.

(3) Whether the court erred by overruling a motion to strike the testimony of a rebuttal witness for the State, which motion was predicated upon the State's having failed to reveal the substance of such testimony in response to a discovery order.

ISSUE I

The State introduced evidence concerning the results of a trace metal detection technique which had been applied to the defendant's hands. This test, referred to as TMDT, is used to reveal the minute traces of metal that remain upon flesh or clothing which has come into contact with metal objects.

State's witness, Sgt. Chlebek, testified that upon the day of the shooting, he administered the TMDT by spraying the defendant's hands with a commercially prepared chemical solution and by then viewing his hands under an ultraviolet lamp. Chlebek stated that when this procedure is followed, areas which have recently been in contact with metal will glow in distinctive colors. Chlebek described the areas of the defendant's hands that glowed following the aforementioned procedure, as a band around the left ring finger and an area on the left palm. The witness stated that the fluorescence on the left ring finger indicated that the defendant had recently [267 Ind. 559] worn a ring upon that finger, which Chlebek stated that the defendant had confirmed. Chlebek was instructed by the court to confine his testimony to the observations and to omit his conclusions. Chlebek further stated that the defendant's right hand glowed the appropriate color on the tip of the index finger, on the inside of the middle finger between the second and third joints, between the second and third joints of the little finger, and in a half-inch strip upon the palm.

Page 1152

The defendant objected to this evidence upon the grounds that the State had failed to establish the reliability of the TMDT and further that Chlebek did not qualify as an expert witness. Chlebek stated that his knowledge concerning the TMDT came from a seminar presented by the manufacturer of the chemical solution, written instructions that accompanied the chemical and his personal experience in conducting such tests upon approximately fifteen occasions. He admitted that he had no understanding of the reason for the reaction that occurred when such test was administered.

The defendant likens the TMDT to a lie detector test and asserts that the results should be rejected, as being similarly unreliable, citing Vacendak v. State, (1976) Ind., 340 N.E.2d 352, Zupp v. State, (1972) Ind., 283 N.E.2d 540 and Robinson v. State, (1974) Ind.App., 309 N.E.2d 833, 855. However, as we said of teeth marks, in Niehaus v. State, (1977) Ind., 359 N.E.2d 513, we see a marked distinction. It is acknowledged that in any given case, unreliable results may be produced in a polygraph test by influences that cannot be controlled or compensated for by a competent examiner. The TMDT, we believe, is generally recognized as reliable, and the defendant has cited us to no case wherein it has been rejected. We see no reason for rejecting evidence adduced by any scientific testing simply because it is subject to error if not [267 Ind. 560] properly conducted. The persuasiveness of evidence produced by such a test is, in a large measure, dependent upon the expertise of the witness who conducted it, which in the final analysis is to be determined by the jury, only after an opportunity of careful cross examination.

ISSUE II

The opinion given by the witness, Chlebek, and drawn from the aforementioned test was that the defendant had recently handled some metal object. He offered no opinion as to what that metal object was. The defendant's argument that the trace might as well have been produced by a cigarette lighter as by the handgun that produced the mortal wound is valid in determining the weight to be accorded to the evidence, but it is misplaced in a consideration of its admissibility. There can be no hard and fast rule as to the quantum of knowledge required to qualify a witness as an expert in a given field. It has been said that he must be shown to be competent upon the subject concerning which he is to testify. Pittsburgh, etc. R. Co. v. Nicholas, (1906) 165 Ind. 679, 76 N.E. 522; City of Bloomington et al. v. Holt, Admr., (1977) Ind.App., 361 N.E.2d 1211, 1220. The determination of whether a witness is qualified to give an opinion is within the trial court's discretion. No precise knowledge is required, if the witness shows an acquaintance with the subject such as to qualify him to give an opinion. "The witness must have sufficient skill, knowledge or experience in that area to make it likely that his informed inference will aid the jury properly to determine such matters." Seidman, The Law of Evidence in Indiana, p. 21 and cases there cited. The extent of the witness' knowledge, however, affects the weight of his testimony, which is a matter for the jury to determine. City of Bloomington, etc., supra.

The qualification of an expert witness is generally left to the trial court's sound discretion, and the trial court's [267 Ind. 561] determination will not be set aside unless there is clear error, often termed an abuse of discretion. Niehaus, supra., Tyler v. State, (1968) 250 Ind. 419, 236 N.E.2d 815; Dougherty v. State, (1934) 206 Ind. 678, 191 N.E.2d 84. The requirement that a witness be qualified before being permitted to testify as such is predicated upon the witness' offer of an opinion that is based upon facts that the average juror is incapable of interpreting for himself. Stroud v. State, (1971) 257 Ind. 204, 273 N.E.2d 842, vacated on other grounds 413 U.S. 911, 93 S.Ct. 3038, 37 L.Ed.2d 1025; Keifer v. State, (1927) 199 Ind. 10, 154 N.E. 870.

We find no error in the trial court's determination that the witness was qualified to give an opinion based upon the test that he had made.

Page 1153

ISSUE III

Prior to trial, the defendant filed a discovery motion which was granted without objection from the State. The defendant presented an alibi defense which was substantiated by the testimony of his sister-in-law, who stated that the defendant and his girl friend were at the witness' apartment at the time the...

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89 practice notes
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Norton had, was a question for the trial court's discretion. Page v. State, (1979) Ind., 395 N.E.2d 235, 238; Reid v. State, (1978) 267 Ind. 555, 560, 372 N.E.2d 1149, 1152. The extent of the witness' knowledge of such matters affects the weight of the witness' testimony. Id. The weight to ......
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...Ind., 439 N.E.2d 615; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433; Reid v. State (1978), 267 Ind. 555, 372 N.E.2d 1149. Where there has been a failure to comply with discovery Page 287 procedures, the trial judge is usually in the best positi......
  • Williams v. State, No. 95-2476
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1998
    ...The innate possibility of error in a test, does not provide a sound basis for rejecting the test results as evidence. See Reid v. State, 267 Ind. 555, 372 N.E.2d 1149 (1978). Any discrepancies in the precise method used goes to the weight, rather than to the admissibility of such evidence. ......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...to then see that the jury was properly admonished, if that motion was deemed appropriate as a trial tactic. Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d Burke was also asked to describe Dixon's reputation for "truthfulness" and whether, in Burke's opinion, Dixon "tells the truth." Burke d......
  • Request a trial to view additional results
89 cases
  • Norton v. State, No. 377S185
    • United States
    • Indiana Supreme Court of Indiana
    • August 4, 1980
    ...Norton had, was a question for the trial court's discretion. Page v. State, (1979) Ind., 395 N.E.2d 235, 238; Reid v. State, (1978) 267 Ind. 555, 560, 372 N.E.2d 1149, 1152. The extent of the witness' knowledge of such matters affects the weight of the witness' testimony. Id. The weight to ......
  • Kindred v. State, No. 285S67
    • United States
    • Indiana Supreme Court of Indiana
    • June 8, 1988
    ...Ind., 439 N.E.2d 615; State ex rel. Keller v. Criminal Court of Marion County (1974), 262 Ind. 420, 317 N.E.2d 433; Reid v. State (1978), 267 Ind. 555, 372 N.E.2d 1149. Where there has been a failure to comply with discovery Page 287 procedures, the trial judge is usually in the best positi......
  • Williams v. State, No. 95-2476
    • United States
    • Court of Appeal of Florida (US)
    • March 18, 1998
    ...The innate possibility of error in a test, does not provide a sound basis for rejecting the test results as evidence. See Reid v. State, 267 Ind. 555, 372 N.E.2d 1149 (1978). Any discrepancies in the precise method used goes to the weight, rather than to the admissibility of such evidence. ......
  • Head v. State, No. 780S209
    • United States
    • Indiana Supreme Court of Indiana
    • December 14, 1982
    ...to then see that the jury was properly admonished, if that motion was deemed appropriate as a trial tactic. Reid v. State, (1978) 267 Ind. 555, 372 N.E.2d Burke was also asked to describe Dixon's reputation for "truthfulness" and whether, in Burke's opinion, Dixon "tells the truth." Burke d......
  • Request a trial to view additional results

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