Zimmerman v. State

• Decision Date: 02 October 1984
• Docket Number: No. 4-184A17,4-184A17
• Citation: 469 N.E.2d 11
• Parties: Troy ZIMMERMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 11

469 N.E.2d 11

Troy ZIMMERMAN, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-184A17.

Court of Appeals of Indiana,

Fourth District.

Oct. 2, 1984.

Jerrald A. Crowell, Bowman, Crowell & Teeters, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

In the Adams County Circuit Court, a jury convicted Troy Zimmerman of driving while intoxicated, his second such conviction after June 30, 1978, making the offense a class D felony under IND.CODE section 9-4-1-54(b)(1) (1982). ¹ Combined and restated, the issues raised by Zimmerman's appeal are as follows:

I. Whether the trial court erred in admitting evidence of a test performed on a sample of Zimmerman's blood?

II. Whether the trial court erred in refusing to instruct the jury in accordance with Zimmerman's tendered instruction number 17, which related to the State's failure to inspect and certify the equipment on which Zimmerman's blood was tested, as required by Department of Toxicology regulations?

III. Whether the evidence was sufficient to support the verdict of the jury and the judgment of the trial court?

Finding no error requiring reversal, we affirm the judgment of the trial court.

FACTS

The evidence most favorable to the verdict shows that at about noon on Saturday, June 19, 1982, Troy Zimmerman and his uncle, Rick Zimmerman, met at a service station in Decatur, Indiana. They got into Troy's car, a black Chevrolet Camaro Z-28, and Troy drove them to a liquor store, where they purchased two quarts of beer and a pint of peppermint schnapps. After driving around and drinking for over an hour, they decided to visit some friends and relatives at Crooked Lake, about two hours north of Decatur. On the way, having drunk the alcohol they had purchased, they stopped and bought two more quarts of beer. At the lake, Rick did not see Troy drink any alcohol, but they were separated for about 45 minutes while Rick went skiing, and Rick testified their friends at the lake were drinking.

Rick drove himself and Troy back to Decatur, stopping on the way to buy two more quarts of beer. At about 8:30 P.M., they arrived at the service station where they had met. The station owner saw Troy stumble when he got out of the car and Troy merely mumbled a response when warned not to use one of the restrooms at the station. After purchasing some gasoline, Troy drove Rick home.

Three witnesses testified that between 9:00 and 9:30 P.M., they each observed a black Camaro Z-28 driving around Decatur in an erratic manner, such as speeding, passing on the right shoulder of a two lane road, swerving between lanes, and making Officer Tobin Ray, of the Decatur Police Department, was the first policeman on the scene. He found Troy lying in the front seat of another car, to which Troy had been removed by another person at the scene. Officer Ray noticed that Troy was bleeding from the mouth and smelled strongly of alcohol. Officer Richard Noack arrived at the scene and told Officer Ray to stay with Troy and accompany him to the hospital because a blood sample would need to be taken to test Troy for intoxication. Officer Noack checked the red Ford automobile and found its driver was already dead. In Troy's car, he found a half-full quart bottle of beer and an empty wrapper for a twelve-pack of beer, but no other beer cans or bottles.

a right turn from a through lane. One of the witnesses identified Troy as the driver of the Camaro and another reported his observations to the Decatur police. Orville Steinman, not a resident of Decatur, testified that he was driving slowly east on state road 224, looking at street signs for the road that would take him to a friend's house. As he prepared to make a right turn on Stadium Drive, he heard a motor rev and saw a car pass him on the left in a no-passing zone. At the same instant, a red Ford exited Stadium Drive to turn west on 224. Steinman saw the car passing him, a black Camaro, smash with tremendous impact squarely into the driver's side of the Ford.

Officer Ray rode with Troy in the ambulance to the Adams County Memorial Hospital emergency room. Troy was conscious and coherent, although nervous and emotionally upset because of the seriousness of the automobile accident. Some of his teeth had been shoved back into the gums, and he had some lacerations about the face and on his left arm. He was never diagnosed as having a concussion or other injury to the brain. At the hospital, Officer Dallard Tackett, of the Indiana State Police, read Troy the blood alcohol test consent form, which Troy signed while lying on his back as a hospital employee held the clipboard. Three witnesses testified that Troy appeared coherent and able to understand what he was doing when he signed the consent form.

One of the hospital employees drew a blood sample from Troy's arm and inserted it into a blood alcohol sample kit provided by the Indiana State Police. Officer Ray took the completed sample kit, placed it in his locker at the police station, and mailed it to the state laboratory in Indianapolis on Monday, June 21. Robert Reed, chemist for the state laboratory, received the blood sample on Wednesday. Reed testified about the makeup of the sample kit, the procedures involved in testing the blood, and the result of the test of Troy's blood, which revealed a blood alcohol content of .19%. He also testified that the equipment on which Troy's blood sample was tested had been last certified by the Indiana Department of Toxicology on June 23, 1981, one year and one day before the analysis of Troy's blood sample was performed.

On September 3, 1982, an information was filed against Troy Zimmerman, which, after amendments, charged him with reckless homicide, IC 35-42-1-5, and driving while under the influence, IC 9-4-1-54. Part two of the second count also alleged that Troy had a previous conviction for driving while under the influence after June 30, 1978, elevating the charge from a Class A misdemeanor to a Class D felony under IC 9-4-1-54(b)(1). Troy filed a motion to suppress all evidence of the blood test on the grounds that he was not under arrest at the time the blood sample was taken, he did not knowingly consent to the test, and the sample was taken at the direction of a law enforcement official, but the results were not requested by a prosecutor as part of a criminal investigation (see IC 9-4-4.5-7; repealed; for current version, see IND.CODE Sec. 9-11-4-6 (Supp.1983)). After hearing evidence on the motion to suppress, most of which went to the issue of voluntary consent, the trial court denied the motion.

On February 1, 1983, the trial court held a hearing on a proposed plea agreement. "Number one I believe there is a reluctance on the part of Mr. Zimmerman in regard to this plea as I have indicated previously. Number two Mr. Zimmerman has not been able to establish the facts in the case--the charges. He says he is guilty. He says he does all these things and yet he tells the court he cannot remember [the events of June 19, 1982]. And I am sure he is being sincere. But I don't think there has been any basis established in fact that he has committed the charges of which he is charged with. I feel that for that reason it is not freely and voluntarily entered. And I cannot accept the plea of guilty."

The court refused to accept Troy's guilty plea, stating:

(R. 284). On the basis of this statement by the trial court, Troy filed a motion to have the court reconsider the motion to suppress, reasoning that if the court believed Troy was sincere when he said he could not recall the events of June 19, 1982, then the court must also believe Troy could not have consented freely and voluntarily to the blood test. The trial court refused to reconsider the motion to suppress.

After the trial on April 12-13, 1983, the jury returned a verdict acquitting Troy of reckless homicide and convicting him of operating a vehicle while intoxicated. A second phase of the trial was held in which the jury found that Troy had a previous conviction for driving while under the influence after June 30, 1978, increasing the classification of the present offense to a Class D felony. Troy brings this appeal, raising the issues enumerated above. We affirm.

DECISION

I.

Troy alleges the trial court erred in admitting evidence of the blood test and the results thereof. In support of this allegation of error, Troy argues: (1) he did not freely and voluntarily consent to the taking of a sample of his blood; (2) he was not in custody at the time the blood sample was taken and there was no probable cause for his arrest at that time; (3) the blood sample was not taken pursuant to a lawful arrest, because he was not arrested until two and a half months after the blood test was taken; (4) the taking and testing of his blood sample were in violation of IND.CODE section 9-4-4.5-7 (1982) (repealed; for current version, see IND.CODE Sec. 9-11-4-6 (Supp.1983)); (5) the state failed to lay a proper foundation for the testimony of Robert Reed, concerning the results of the analysis of Troy's blood because (a) the State's evidence of the chain of custody of the container into which the blood sample was placed was insufficient to prove the container was sterile, and (b) the State failed to prove the equipment on which the blood sample was analyzed had been inspected and certified by the Indiana Department of Toxicology, as required by department regulation 260 IAC 1-5-2(1979).

Troy's first three arguments may be addressed together, inasmuch as they are all directed at the reasonableness of the seizure of evidence of his intoxication (the blood sample) without a warrant. Article 1, section 11 of the Indiana Constitution, and the fourth and fourteenth amendments to the United States Constitution guarantee residents of Indiana protection against unreasonable searches and...