Shepherd v. State, 43A05-9609-CR-395

• Decision Date: 29 December 1997
• Docket Number: No. 43A05-9609-CR-395,43A05-9609-CR-395
• Citation: 690 N.E.2d 318
• Parties: Woody SHEPHERD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 318

690 N.E.2d 318

Woody SHEPHERD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 43A05-9609-CR-395.

Court of Appeals of Indiana.

Dec. 29, 1997.

Transfer Denied March 4, 1998.

Christopher D. Kehler, Warsaw, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Phillip D. Hatfield, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

SHARPNACK, Chief Judge.

Woody Shepherd appeals his convictions for operating a vehicle while intoxicated resulting in death, a class C felony, and operating a vehicle with a blood alcohol concentration ("BAC") of 0.10% resulting in death, a class C felony. Shepherd raises nine issues for our review, which we consolidate and restate as:

1) whether the search performed on Shepherd's car at the wreck yard constituted an illegal search;

2) whether the trial court erroneously admitted a videotape of the accident scene;

3) whether the trial court erroneously allowed the State to recall one of its witnesses on two occasions after the witness's initial testimony;

4) whether the trial court erroneously admitted a diagram of the accident scene;

5) whether the trial court erroneously admitted the accident report prepared by the accident investigator;

6) whether the proper statutory procedures were followed in obtaining Shepherd's BAC results from the hospital;

7) whether the protocol used for collecting Shepherd's blood after the accident was prepared by a physician as required by statute; and

8) whether the computer printout containing the results of the BAC analysis was hearsay

We reverse.

The facts most favorable to the convictions follow. On the evening of February 23, 1995, Shepherd and three of his friends, Kevin Clark, Thomas Hamilton, and Keith Reffitt, met at Clark's house and drove to a bar in Fort Wayne, Indiana where they drank together. Around one o'clock in the morning on February 24, 1995, the group left the bar. Believing himself to be the most alert, Kevin Clark drove the group from the bar back to his home. From Clark's house, Shepherd left in his car with Reffitt. While driving, Shepherd hit a guard rail causing the car to flip over, killing Reffitt. After the accident, Shepherd left the car to seek assistance. Shepherd's blood alcohol level was .15% when it was measured at the hospital at 3:50 a.m.

On March 30, 1995, the State charged Shepherd with the aforementioned offenses. After a trial on April 22, 23, and 24, 1996, a jury found Shepherd guilty as charged on both counts. The trial court later sentenced him to four years, with two years suspended. Shepherd now appeals his convictions.

I.

The first issue that we must address is whether the search performed on Shepherd's car at the wreck yard a few hours after the accident constituted an illegal warrantless search. Around 7:40 a.m. on Friday, February 24, 1995, Officer Dan Vermillion of the State Police received a call from the Warsaw Police department requesting him to go to the wreck yard where Shepherd's car had been towed and collect physical evidence for the purpose of determining who had been driving the vehicle. Vermillion arrived at the wreck yard around 11:50 a.m. and collected samples of blood, tissue, and hair which he later transported to the Indiana State Police Laboratory for analysis. The police did not obtain a search warrant for the search of Shepherd's car. Shepherd argues that the State was required to obtain a warrant prior to the search. Therefore, he argues that the tissue and hair evidence generated by this search were erroneously admitted. We agree.

The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, protects persons from unreasonable government intrusions into areas of an individual's life in which he has a reasonable expectation of privacy. Norwood v. State, 670 N.E.2d 32, 35 (Ind.Ct.App.1996). The exceptions to the Fourth Amendment's requirement of a search warrant include risk of bodily harm or death, aiding a person in need of assistance, protecting private property, or actual or imminent destruction or removal of evidence before a search warrant may be obtained. Harless v. State, 577 N.E.2d 245, 248 (Ind.Ct.App.1991). The burden is upon the State to show that a warrantless search was conducted within the confines of one of the exceptions to the warrant requirement. Rabadi v. State, 541 N.E.2d 271, 274 (Ind.1989).

The State argues that the warrantless search of Shepherd's car was justified under the automobile exception to the warrant requirement because the police had probable cause to search Shepherd's car. The State cites the United States Supreme Court's decision in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1969), reh'g denied, for support of its position. However, the State clearly misinterprets the holding of Chambers. The automobile exception to the search warrant rule requires more than probable cause. "Only in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search." Id. at 51, 90 S.Ct. at 1981. The Court in Chambers noted that both probable cause and a "fleeting target" is required to justify a search. Id. Where it is practicable to obtain a search warrant, it is unreasonable to conduct a warrantless search of an automobile. Green v. State, 647 N.E.2d 694, 696 (Ind.Ct.App.1995).

In the present case, the State does not offer evidence, nor does it assert, that there were exigent circumstances which prevented the police from obtaining a warrant before searching the car and collecting the samples. At Shepherd's request, the trial court, took judicial notice that the courts were open and judges were available on the day that Officer Vermillion went to the wreck yard to collect the samples. Further, the condition of the car after the accident was such that there was very little danger of the car being moved after it had been impounded at the wreck yard. As such, we conclude that the State has failed to demonstrate that the warrantless search of Shepherd's car fell within one of the exceptions to the warrant requirement. See Rabadi, 541 N.E.2d at 274. Because the evidence collected from Shepherd's car was illegally obtained, it was erroneous for the trial court to admit it at trial. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961), reh'g denied (holding that evidence obtained through an illegal search is not directly admissible in a criminal proceeding against a person whose privacy was violated by the search).

However, the erroneous admission of evidence is not reversible unless it constitutes prejudice against the defendant. Davis v. State, 520 N.E.2d 1271, 1274 (Ind.1988), reh'g denied. In the case before us, we cannot conclude that the admission of the evidence collected from Shepherd's car was harmless. The contested issue at trial was whether Shepherd was the driver of the vehicle. Some of the blood samples collected in close proximity to the driver's seat were confirmed to be Shepherd's blood. Officer Kip Shuter, the fatal accident investigator, testified that he did not conclude that Shepherd was the driver until after he received the results of the sample analysis. Because we conclude that the erroneous admission of this evidence was not harmless, we must reverse Shepherd's convictions.

II.

Because the remaining issues raised by Shepherd are likely to recur upon a retrial, we will address each of them in turn. ¹ The first of these issues is whether the trial court erroneously admitted a videotape of the accident scene. Shepherd argues that the videotape should not have been admitted because the State did not lay a proper foundation for its admission. First, he asserts that to properly admit the videotape, the State was required to show that the tape had not been altered in any way or that portions of the tape had not been deleted. He relies on the Bergner case for support of his contentions. Bergner v. State, 397 N.E.2d 1012 (Ind.Ct.App.1979). In Bergner, we set out the foundational requirements for the admission of photographs offered as substantive evidence rather than demonstrative evidence under the "silent witness" theory. We held that when offered for such a purpose there must be a strong showing of authenticity and competency including proof that the photograph has not been altered in any way. Id. at 1017. This higher standard is applied in situations where there is no one who can testify as to its accuracy and authenticity because the photograph must "speak for itself" and because such "silent witnesses" cannot be cross-examined. Id. at 1015.

Shepherd maintains that the videotape was being used as a silent witness and thus, the higher standard for admission applies. We disagree. The videotape involved in this case was not offered as substantive evidence, but as demonstrative evidence. Photographs introduced in conjunction with testimony, are admitted, not as direct evidence of the scene depicted, but to assist the jury in visualizing the testimony of a witness. State Through Highway Dept. v. Snyder, 594 N.E.2d 783, 787 (Ind.1992). Demonstrative evidence is evidence offered for the purpose of illustration and clarification. Underly v. Advance Mach. Co., 605 N.E.2d 1186, 1195 (Ind.Ct.App.1993), reh'g denied, trans. denied.

The videotape was shown to the jury in an effort illustrate the testimony of Shuter. Based on what the videotape illustrated for the jury, Shuter testified about his personal observations of the accident scene and explained his theory of how the accident occurred. Thus, this tape was not offered as substantive evidence but as demonstrative evidence to aid the jury in depicting the accident scene as described by Shuter. As such, the standards set out in Bergner do not apply to this case and we must apply the standards for the admission of demonstrative evidence.

Admission of photographs and...