Spaulding v. State, No. 47A01-8804-CR-111

• Docket Nº: No. 47A01-8804-CR-111
• Citation: 533 N.E.2d 597
• Case Date: February 02, 1989
• Court: Court of Appeals of Indiana

Page 597

533 N.E.2d 597 James L. SPAULDING, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 47A01-8804-CR-111. Court of Appeals of Indiana,
First District. Feb. 2, 1989.

Page 598

Susan K. Carpenter, Public Defender, J. Michael Sauer, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Wendy Stone Messer, Deputy Atty. Gen., Indianapolis, for appellee.

ROBERTSON, Judge.

James L. Spaulding appeals his convictions of two counts of driving while intoxicated resulting in death, Class C felonies, and one count of driving while intoxicated resulting in serious bodily injury, a Class D felony.

We affirm in part and reverse in part.

I.

Spaulding argues the evidence is insufficient to support his convictions in two respects: to show he was intoxicated and to show he was driving the vehicle at the time of the collision. ¹ He maintains the evidence is insufficient to show he was intoxicated because the State failed to offer objective evidence of his impaired condition other than the tests of his blood, which he contends produced inconsistent results and lead only to the inference that his blood

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alcohol content was below .08% at the time of the collision.

"Intoxicated" means under the influence of alcohol such that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to such an extent as to endanger any person. IND.CODE 9-11-1-5 (1983 Supp.). "Relevant evidence of intoxication" includes evidence that at the time of an alleged violation there was at least five-hundredths percent (0.05%), but less than ten-hundredths percent (0.10%), by weight of alcohol in the person's blood. I.C. 9-11-1-7.5 (1985 Supp.).

Blood samples taken approximately three hours after the collision, which was Spaulding's last opportunity to consume alcohol, showed a whole blood alcohol content of .08% and a serum alcohol level of .142%. Hospital personnel drew the samples about fifteen minutes apart, the first sample being the one ultimately tested by the Indiana State Police laboratory and producing the .08% whole blood result.

The pathologist who supervised the testing at Dunn Memorial equated the serum alcohol result they obtained with a whole blood level of about .12%. He detailed the procedures used by the hospital laboratory and the factors which might cause the variance in the two samples, clarifying for the jury that the difference was probably caused by the manner in which the samples were obtained. The testimony of the hospital's pathologist supports a reasonable inference that the first sample was drawn near or through one of Spaulding's intravenous tubes and was probably diluted by the IV solution, although there was no direct evidence as to how the sample was obtained.

The pathologist also explained that a 150 lb. man with average alcohol tolerance and an empty stomach would reach a peak absorption of alcohol into his blood at about one hour after the alcohol was consumed. Then, depending upon the individual's metabolic process in the liver, absorption would decrease. An individual with a well-developed enzyme system would show a decrease in absorption at a rate of about 26% or 25 milligrams per hour. Hence, the blood alcohol level of the ideal 150 lb. man would decrease about 50% after three hours. An inexperienced drinker would show such a decline more slowly.

To reiterate, Spaulding's contention is that the earlier sample demonstrates he was still absorbing alcohol three hours after the collision and leads only to the conclusion that his actual blood alcohol content at the time of the collision was lower than .08%. As we have pointed out in detail, the testimony of the hospital's pathologist directly refutes this assertion and constitutes relevant evidence of probative value upon which the jury could have determined that Spaulding was, in fact, under the influence of alcohol at the time of the collision.

Notwithstanding the blood tests, the jury might well have determined that Spaulding was intoxicated as that term is defined in I.C. 9-11-1-5 from the testimony of the numerous witnesses who observed Spaulding's driving before the collision or encountered him that evening. One witness described Spaulding as "too drunk to talk" and others saw him passing cars in heavy traffic on the right as well as the left, at high rates of speed, with his passenger standing upright in the convertible. Witnesses observed Spaulding go off the highway into the grass in an effort to pass on the right, lose control of the convertible and make a 90 degree cut across the highway into oncoming traffic. In our minds, this is objective evidence of an impaired condition of thought and action, and loss of normal control of one's faculties, to an endangering extent. When combined with the evidence of Spaulding's alcohol consumption, the evidence of intoxication is overwhelming.

Similarly, there is ample evidence to support the jury's determination that Spaulding was driving at the time of the collision. Witnesses observed Spaulding driving the convertible within fifteen minutes of the collision. Spaulding told police officers, medical personnel and others who stopped to help that he was driving, that he didn't intend to hurt anyone, and didn't

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want to go to jail. While there is no direct evidence as Spaulding claims, that he actually said he was driving at the time of the collision, the testimony reasonably supports the inference that such was his intent.

Also, we note the point of impact on Spaulding's vehicle was on the passenger's side. Witnesses observed a passenger standing in the vehicle immediately before it crossed the highway. All three occupants were thrown from the convertible and were found with the car over an embankment. Witnesses observed the young man who died in the collision had been thrown against a fence; they found him between Spaulding and Spaulding's brother. While the evidence of the location of the car's occupants after impact certainly is not conclusive, it is circumstantial evidence tending to show that Spaulding was in the driver's seat at the time of the collision as he told persons at the scene and later in the hospital.

II.

Spaulding contends the trial court abused its discretion when it ruled on his motion for change of venue from the county by failing to consider nineteen affidavits of persons in the community which were offered to show that Spaulding could not receive a fair trial. Spaulding cites Anderson v. State (1867), 28 Ind. 22 which stands for the proposition that, in ruling on a motion for change of venue, it is not erroneous for a trial judge to consider sworn statements of citizens to aid the court in exercising its discretion.

The record shows Spaulding offered, in addition to the affidavits, newspaper articles written after the accident. By these articles Spaulding presented an evidentiary basis for concluding that prejudice may exist in the community, since the reports misstated the evidence ultimately given at trial and contained matters which would be inadmissible. See Kappos v. State (1984), Ind., 465 N.E.2d 1092, 1095.

However, to prevail on appeal from the denial of a change of venue motion, the defense must show not only the existence of prejudicial publicity, but also that because of the adverse publicity, members of the community would be unable to set aside preconceived notions of guilt and render a verdict based upon the evidence. Timmons v. State (1986), Ind., 500 N.E.2d 1212, 1217; Moore v. State (1987), Ind., 515 N.E.2d 1099, 1102. In determining whether sentiment such as would preclude a fair trial exists in fact, we examine the record of voir dire. Kappos, supra at 1096.

The record reveals that one potential juror was excused for cause while nine were peremptorily challenged. We cannot discern to whom the challenges belonged. Therefore, we cannot ascertain from the record whether Spaulding exhausted all of the challenges made available to him in an effort to obtain a jury composed of persons not adversely affected by pretrial publicity. See I.C. 35-37-1-3. Moreover, each of the jurors ultimately selected assured the court and the defendant that he or she could put aside preconceived notions of guilt, regardless of what he or she may have read and would be able to base a verdict solely upon the evidence adduced at trial. These assurances belie Spaulding's claim that a fair and impartial jury could not be found because of widespread sentiment in the community. Hence, no abuse of discretion occurred.

III.

Spaulding also argues he was denied a fair trial because the trial court coerced and intimidated potential jurors into stating, for the record, that they could be fair and impartial. He maintains the court assumed the role of a prosecutor and imposed its own opinions on the jury.

The function of voir dire is to ascertain whether or not the prospective juror can render a fair and impartial verdict in accordance with the law and the evidence. Zachary v. State (1984), Ind., 469 N.E.2d 744, 747. While a trial judge has broad discretionary power to regulate the form and substance of voir dire, the judge must remain impartial and refrain from making unnecessary remarks or comments. Whitehead v. State (1987), Ind., 511 N.E.2d

Page 601

284, 291, cert. denied, --- U.S. ----, 108 S.Ct. 761, 98 L.Ed.2d 773.

We have reviewed the sections of voir dire cited by Spaulding and find no evidence of partiality, intimidation or coercion. In the first instance, the juror indicated that she worked with the father of one of the deceased, and in response to a series of questions by the prosecutor responded that she would not feel comfortable making the decision. At that point the court interjected that the question was one of whether the juror could be fair and impartial and not whether she would feel uncomfortable as a juror. The juror then stated...