Reid v. State

Decision Date06 February 1978
Docket NumberNo. 1076S345,1076S345
Citation372 N.E.2d 1149,267 Ind. 555
PartiesHarry Edward REID, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

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) 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 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.

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 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 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.

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 crime was committed. On cross examination of this witness, the State inquired as to whether or not she was personally acquainted with Sgt. Borkowski of the South Bend Police Department, and she replied that she was. The State further inquired if she had called Borkowski on the night of the crime, advised him that the defendant was at her house and requested that the police not come for him until morning. She responded that she had not. Borkowski was called subsequently by the State, as a rebuttal witness, and he testified that the sister-in-law had telephoned him on the night of the crime and had told him that the defendant had just shot someone and that he was at her apartment. He further testified that because of the family relationship and because the sister-in-law was afraid, he told her that he would not involve her but that, upon a subsequent occasion, he advised her that if she testified as a witness for the defendant, he would be required to reveal the information.

The defendant moved to strike Borkowski's testimony upon the ground that the State had failed to reveal this information to him in compliance with the discovery order. The court denied the motion, and the defendant's claim of error is predicated thereon. The portion of the discovery order relied upon by the defendant is as follows:

"8. All evidence or information in the possession or under the control of the State of Indiana when such evidence or information may be favorable to the accused and material to the issue of guilt or punishment or could reasonable (sic) weaken or affect any evidence proposed to be introduced against the accused or is relevant to the subject matter of the charge or in any manner may aid the accused in the ascertainment of the truth, the disclosure and production to be made without regard to whether the evidence or information to be disclosed and produced is deemed admissible at the trial herein." (Emphasis added)

It is assumed that the defendant relies upon the emphasized portion of the above paragraph, inasmuch as the information contained in Borkowski's testimony can hardly be considered as being favorable to the accused.

The discovery order was overly broad and there is a serious question as to whether or not it was sufficiently specific to require the disclosure of rebuttal evidence. It should be remembered that we have previously said that "we do not require the State to lay bare its case in advance of trial nor that the criminal defendant be allowed a fishing expedition." Bernard v. State, (1967) 248 Ind. 688, 692, 230 N.E.2d 536, 540. Discovery orders so general as the one issued herein open the door to subsequent problems by making it very difficult to determine whether or not there has been a good faith compliance.

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