*1 recklessness, Kovats has also violated her criminal intoxication. and Class D felony It probation multiple apparent times.3 is OWI constituted jeopardy double because possess that Kovats does not a stellar on, all three convictions were based character. by, elevated bodily the same serious inju- ry. Merging these convictions for pur-
Nevertheless, say we are unable to poses sentencing was insufficient to cure she among is the “worst offenders.” Most the double jeopardy problems because the of Kovats’s offenses are related to her trial already court had entered judgments obvious addiction to Although narcotics. remand, of conviction on all counts. On factor, necessarily mitigating this is not the trial court is instructed to vacate Ko- it does her behavior in place perspective. vats’s felony convictions for Class D Too, crimi- there is no indication that Kovats has OWI, nal recklessness and D felony Class long-term ever served a executed sen Instead, judgment and to enter a of conviction consistently given tence. she was suspended in the concurrent sentence on the past. sentences See lesser-included (Ind. Powell v. offense of A Class misdemeanor OWI. Ct.App.2001) (concluding Lastly, that where de Kovats’s maximum executed sen- previously fendant had not been incarcer tence twenty years for her conviction ated, nothing and where in the record B felony inappropriate, Class and we otherwise, indicated the presumptive sen remand with instructions that the trial tence give should be sufficient to defen court enter a sentencing order reflecting dant adequate correctional and rehabilita our revision of Kovats’s sentence to fifteen treatment). Also, tive since her arrest in years executed on that conviction. case, the present sought she out treatment Reversed and remanded with instruc- jail.
for her addiction in See Tr. p. 828. tions. children, Kovats also has four one of whom cystic suffers from fibrosis. BAKER, J., BAILEY, J., concur. giving After due consideration to the decision, trial sentencing court’s and con-
sidering the nature of Kovats’s offense and character, Kovats’s disagree we with Ko- vats that she should receive the advisory years.
sentence of ten The horrific nature JONES, Appellant-Defendant, Edwin of her offense alone supports imposi- tion of a greater sentence than the adviso- time, ry. At the same we are unable to Indiana, Appellee-Plaintiff. STATE of conclude among that Kovats is the worst offenders. We therefore exercise our con- No. 49A02-1204-CR-292. authority stitutional to revise Kovats’s sen- of Appeals of Indiana. years. tence to an executed term of fifteen
Conclusion Feb. Kovats’s convictions for B felony Class neglect of a D dependent, felony Class 13, 2011,
3. On October after her sentencing, arrest date of Kovats had not been con- case, present charged charges. the State Kovats with pp. victed of these See Tr. 856-57 felony forgery six counts of (noting charges "pending” Class C and two that these were But, felony counts of D sentencing). Class theft. as of the the time of *3 Schumm, Karle,
Joel M. Brian A. Certi- Intern, Clinic, Legal fied Appellate India- IN, napolis, Attorneys Appellant. for Zoeller, Gregory Attorney F. General of Indiana, Meilaender, H. Deputy Ellen At- General, IN, torney Indianapolis, Attor- neys Appellee.
OPINION
BROWN, Judge. Edwin appeals his conviction sentence for operating vehicle while in- toxicated as a class A misdemeanor.1 9-30-5-2(b) (2004). Ind.Code registra- license and asked Jones for his we revise issues which three Jones raises tion, speech his when and Jones slurred restate as: get through “fumbled responding and abused its trial court I. Whether Id. at 42. Jones his driver’s license out.” Jones’s con- and violated discretion registration. his could not locate also a cer- by admitting rights frontation step Jones to out Trooper Madison asked asserting the inspection tificate of “swung himself and Jones of the vehicle testing equipment; accuracy police on the feet and “tumbled turning out” both its dis- court abused II. Whether Id. at 43. up.” and then stood ground first certain eviden- ruling cretion *4 rear of led Jones to the Trooper Madison matters; tiary and and stagger noticed Jones the vehicle and erred in sen- the court III. Whether steady his bal- the vehicle to against lean tencing him. Trooper Madison then administered ance. We affirm. sobriety including the One three field tests Walk, Stand, and the Step the Nine Leg FACTS (“HGN”) test, Nystagmus Horizontal Gaze 29, 2010, approximately 8:26 May at On each of which Jones failed. Dan Trooper Police Indiana State p.m., behaviors, driving upon Based Jones’s on Em- traveling northbound Madison was Jones, Trooper Madison’s observations at a traffic stopped and was erson Avenue sobriety failure of the field and Jones’s Avenue Marion light at Southeastern tests, he determined that Trooper turned Madison light After the County, Indiana. cause to believe that Jones proceed probable to had began Madison green, Trooper Jones the intersection, intoxicated and he read noticed a car was through the and asked Implied Indiana Consent Law from his approaching Jones driven on a Southeastern, to take a chemical breath test had to Jones right side on Ex- machine. State’s Jones “BAC DataMaster” pass let Jones because brake and Trooper Madi- passed agreed, hibit 4. Jones light. the red Jones stop did not at Arresting Pro- po- transported him to the Trooper Madison’s son “right in front” (“APC”) cessing where the closest to head north- Center right turned lice car and was located. Emerson, testing certified breath device Trooper Madison bound on APC, Jones stated While en route to Transcript him. at 38. began to follow have listened to his that “he should weaving Jones Trooper Madison observed lane, not want him to drive and crossing the center friends” who did in and out of his their Tran- attempt stay place. asked Jones to at He also observed Jones line twice. adminis- Trooper at 69. Madison script zone and drift onto pass no-passing in a resulting in road, tered the breath test to Jones hitting almost the shoulder of the “subject sample” reading of .18. Id. attempted parked Jones vehicles. When zone, placed was under arrest. Trooper 65. Jones no-passing in the pass into oncom- was forced to swerve Madison the drivers Jones to alert
ing traffic with OF PROCEEDINGS COURSE vehicle, and he then initi- Jones’s avoid 30, 2010, charged the State May On of Jones. stop ated a traffic I, operating a vehicle Jones with Count A intoxicated as a class misdemean- approached the while Trooper As Madison II, or; operating a vehicle he noticed a and Count driver’s of the vehicle side A misdemeanor. On and that above .15 as a class strong beverages odor of alcoholic 26, 2012, jury held a trial He March the court eyes were bloodshot and red. Jones’s foregoing consistent with the Near the end of the State’s direct and evidence exami- Madison, nation of trial, Trooper it Trooper At Madison introduced presented. was as State’s Exhibit 5 the probable cause as a chemical testified that he was certified Trooper affidavit Madison completed operator by Department the Indiana waiting “while was for the twenty [he] chemical Toxicology at the time Jones’s minutes at Id. at 72. object- APC.” administered, the State ad- test was hearsay, ed to the exhibit as the State objection mitted State’s Exhibit without responded Trooper Madison “authen- which a list of officers who were police exhibit, ticated” the and the court over- certified to administer chemical breath objection. ruled Jones’s Id. at 74. The tests and contained Madison’s question State did not Trooper Madison The then name. State introduced as regarding probable contents of the a certificate of inspection State’s Exhibit 3 affidavit, cause and it rested soon after the “Certification”) (the stating that in- “[t]he probable cause affidavit was admitted. condition, in good operating strument trial, At the conclusion of the the jury *5 accuracy satisfying requirements the set guilty found Jones charged. as The court by Department out State of Toxicology judgment entered its of conviction and 3, Regulations” May as of 2010. State’s merged II Count into Count I. On April objected Exhibit 3. Jones to the exhibit 18, 2012, the court held a sentencing hear- preliminary questions Troop- and asked ing days and sentenced Jones to 365 demonstrating er Madison that he was not forty days executed to be served on home Neerman, Ph.D., Michael F. Acting the detention and 325 days suspended pro- to Director of the Department State of Toxi- bation. cology, signatory who was the on the Cer- tification, argued and Jones that the Certi- ISSUES/ANALYSIS rights fication was a violation of Jones’s I. under the Confrontation Clause. The The first issue is whether objection court overruled Jones’s and ad- court abused its discretion and violated mitted the Certification. rights by Jones’s confrontation admitting The proceeded question Troop- State Generally, Certification. we review the er regarding procedures Madison he trial ruling court’s on the admission of test, in administering used the chemical in evidence for an abuse of discretion. Noo which at the requested outset the State State, (Ind. jin 672, v. 730 N.E.2d 676 judicial the court take notice of the 2000). only We reverse where the decision procedures chemical test enacted Ind. clearly against the logic and effect of the Administrative Rule 260 and the court did State, facts and circumstances. Joyner v. so. The State proceeded to ask 386, (Ind.1997), 678 N.E.2d reh’g 390 de Madison a questions series of to determine nied. Even if the trial court’s decision was whether he followed the procedures in ad- discretion, an abuse of we will not reverse ministering Jones’s point at one if the admission constituted harmless er objected questions the State’s 957, ror. Fox v. 966 The leading. objec- court overruled the denied, (Ind.Ct.App.1999), reh’g trans. de tion, the State proceeded, and Jones en- However, nied. here because the issue is continuing objection tered a to the law, State’s one of constitutional we review questioning which the court noted King Jones’s claim de novo. See v. 518, overruled. 877 (Ind.Ct.App.2007) N.E.2d 521 422 denied, is the (Ind.Ct.App.2010), 214 tra/ns. reviewed de
(constitutional challenges are
which has considered the is
only
480
decision
novo);
Aguila-Urbay,
v.
see also U.S.
Cir.2012) (“We
(11th
564,
Supreme
States
sue since
United
566
Fed.Appx.
v. Mas
opinion
an abuse of
Melendez-Diaz
evidentiary rulings for
Court’s
review
2527,
However,
sachusetts,
305,
review ‘de
129 S.Ct.
we
557 U.S.
discretion....
hearsay
(2009),
whether
at this
314
and that
question
174 L.Ed.2d
novo
purposes
testimonial
to reconsider this
stage
appropriate
are
“it is
statements
”)
(quoting
Clause.’
light
Bullcoming
of’
the Confrontation
line of cases
—
1214,
Caraballo,
—,
F.3d
Mexico,
States v.
United
New
U.S.
(11th Cir.2010));
(2011).
States v. 2705,
United
Appellant’s
Nettles,
476 F.3d
argues that the
Brief at 4. Jones
Certifica
(“We
ruling
court
novo district
review de
“represents
testimonial because it
tion is
Amend
Sixth
affects a defendant’s
under circum
‘statements that were made
rights.”).
ment
objective
which would lead an
wit
stances
that the state
reasonably
ness
to believe
Amendment to the Unit
The Sixth
ment would be available for use at a later
Constitution,
applicable
made
States
ed
”
trial,’
Crawford,
Id. at 10
(quoting
Amendment,
Fourteenth
the States via the
1364),
he
124 S.Ct. at
prosecutions,
“In all criminal
provides:
9-30-6-5,
directs us to Ind.Code
...
to be
enjoy
right
accused shall
certification,
requires
statute which
against
the witnesses
confronted with
(c)
subsection
which
particular
*6
Const,
“A witness’s
amend. VI.
him.” U.S.
...
copies
states: “Certified
of certificates
thus inad
a defendant is
testimony against
proceeding
in a
under this
are admissible
appears
witness
at trial
unless the
missible
”
9-30-5....
Id. at 9-10.
chapter,
IC
unavailable,
or,
is
the defen
if the witness
argues
“[proceedings
that
under
Jones
for cross-
opportunity
prior
dant had a
prosecutions
9-30-5’ are criminal
TC
Pendergrass v.
913
examination.”
OVWI,
charged
very
individuals
(Ind.2009)
703,
(citing Craw
N.E.2d
subjected,”
to which
was
proceedings
[he]
36, 124
541 U.S.
S.Ct.
Washington,
v.
ford
analyst
signs
that thus “the
who
(2004)),
1354,
cert. de
L.Ed.2d 177
that the
Certification is on notice
Certifica
—
—,
nied,
130 S.Ct.
in
prima
tion constitutes
evidence
(2010);
v.
facie
also Davis
L.Ed.2d 323
see
that the
proceeding
criminal
for OVWI and
813, 821-822, 126
Washington, 547 U.S.
...
of a chemical test
cannot be
results
(2006).
165 L.Ed.2d
S.Ct.
analyst
...
certifies
admitted
unless the
are at is-
testimonial statements
“Where
working
order.”
that the instrument
is
sue,
reliability
suffi-
only
indicium
argues
Id. Jones also
that the Certification
demands is
satisfy
cient to
constitutional
according
that
is a “formal document” and
actually pre-
the one the Constitution
ly,
Bullcoming, it is testimonial.
Id.
under
Crawford, 541
scribes:
confrontation.”
at 11.
68-69,124
at 1374.
U.S. at
“[tjhis
has
argues
The State
that
that the Certification
argues
are
held that such certifications
implicating
repeatedly
his
is a testimonial statement
in Bull-
nothing
not testimonial” and that
rights
Clause and
under the Confrontation
analysis. Appellee’s
coming
that
alters this
previous
that this court’s
statements
argues
Brief at 6. The State
certifica
nontestimonial are
such certifications are
quali
here “are
incorrect,
that our
tions like the one
issue
particular
noting
types
hearsay
tatively different from
holding
Ramirez
Supreme
partment
that the
Court has described as
of Toxicology indicating that
they
pre
because
“are not
testimonial”
breath test
equipment
good operating
any
with reference to
pared
particular case
condition are admissible at trial and consti-
defendant; rather,
any particular
they
prima
tute
facie evidence that the equip-
serve a ministerial or administrative func
(1)
ment
was inspected
approved by
prepared
tion and are
a routine matter
Department
of Toxicology and
regard
they
without
to whether
are ever
in proper working condition on the date
case,
any
any particular
used in
much less
the breath test was administered if the
Id. at 7. The State argues
case.”
that the
date of approval was not more than 180
States
Supreme
United
Court Bullcom
days before the date of the test.”
ing
holding
reiterated the
of Melendez-
30—6—5(c)).
(citing
§
Ind.Code
We also
9—
laboratory
Diaz and underscored that
9-30-6-5(b)
observed that
Ind.Code
nature,
are testimonial in
results
and it did mandates that such certificates “shall be
not alter the definition of what is testimo
sent to the clerk of the circuit court in
previous
nial or cast doubt on this court’s
county
each
where the
opera-
breath test
any
decisions. The State also
tor, equipment, or chemicals are used to
error is harmless because the State did not
administer breath tests.” Id. at 216-217
prove
particular
need to
blood alcohol
omitted).
(quotations
presented overwhelming
level and it
evi
In addressing whether such certificates
dence
intoxication.
testimonial,
are
we observed that Craw-
Ramirez,
In
this court addressed wheth
“provide
did not
a comprehensive def-
ford
inspection
er certificates of
are testimonial
”
‘testimonial,’
inition of
and in the years
implicating
thus
the Confrontation Clause.
following
this court has ad-
Crawford
began by observing
We
Indiana
dressed this issue and “routinely concluded
statute chemical breath test results are
that the certificates are nontestimonial.”2
inadmissible “unless the test operator, test
Id. at 217. We summarized three ratio-
equipment, chemicals
in the
used
*7
nales behind those decisions and articulat-
techniques have
in
approved
been
ac
ed them as follows:
promulgated by
cordance with the rules
(1)
prepared
the certificates are not
at a
University
the Indiana
School of Medicine
judicial proceeding
during police
or
in-
Department
Pharmacology
of
and Toxicol
(2)
terrogation!;]
the certificates are not
ogy.”
(citing
426 Also, based arguments to Jones’s rather similar unsworn but sworn or
analysis was
document,
the
not
the second rationale
Bullcoming
nature of
the
examined
created
Ramirez,
formal document
was a
scrutinizes the third
ing that it
from
establishing
proving
of
purpose
for the
the U.S. Su
rationale and
To that
proceeding.
in a criminal
a fact
this rationale in
rejected
has
preme Court
—
in Ramirez we were
end,
we observe
—,
Illinois,
132
v.
Williams
document’s
with the
similarly concerned
(2012),
2221,
specifi
427 lishing “past potentially particular events relevant case or respect impli- with prosecution” cating any criminal other specific later defendant. —in words, providing for the of evi purpose omitted). 928 N.E.2d at (quotations 218 Davis, U.S., 822, dence. 547 at 126 To the extent wording the of this 2266; Bullcoming, see also S.Ct. rationale “accusatory” resembles the —, 131 U.S., S.Ct., 2716-2717; at at set forth by plurality opinion in U.S., [Michigan Bryant, 562 v.] at Williams, we are inclined to agree that —, —, [1143], at S.Ct. 1165 any rationale which relies upon the fact (2011)]; L.Ed.2d 93 Melendez- [179 piece that a of evidence target does not a Diaz, U.S., 310-311, at 129 S.Ct. particular defendant as a basis for deter- 2527; U.S., 51-52, Crawford, 541 at 124 mining that such evidence is nontestimoni- S.Ct. 1354. None of our cases has ever al appears by to be disapproved a ma- that, addition, suggested the state jority of the Justices of the Supreme U.S. ment be previ must meant to accuse a Court. individual; indeed, ously identified However, we any find that confusion
Melendez-Diaz, rejected we a related wording with the of the third Ramirez argument laboratory “analysts are rationale indicating it contains an “ac subject not to confrontation because cusatory” element can by be rectified ex they ‘accusatory’ are not witnesses.” amining other statements the Court U.S., regarding a statement’s “primary pur above, pose.” As noted the Court held in J., Id. at 2273-2274 (Kagan, dissenting). Davis that statements are “testimonial” that the third Ramirez ratio- where “the primary purpose of the interro nale substantially similar to the “accusa- gation is to establish or prove past events tory” test expressed by plurality, potentially relevant to later criminal prose justices fact that three agreed with the 822, 126 cution.” 547 U.S. at S.Ct. at 2274. expressed Kagan’s views in Justice dis- Also, Bryant the Court stated: sent, plus the fact that Justice Thomas did informal, Whether formal or out-of-court join plurality’s reasoning re- statements can objective evade the basic garding “accusatory” indicates Clause, of the Confrontation which is to majority that a of the Supreme prevent the being deprived accused from disagree with this rationale as valid Con- opportunity to cross-examine the frontation jurisprudence. Clause declarant about statements taken for above, As noted pro- third rationale When, Davis, use at trial. as in vided Ramirez as to why certificates of primary purpose of an interrogation is inspection including the Certification at is- to respond “ongoing to an emergency,” sue this case are nontestimonial was purpose its is not to create record for as: stated trial and thus is not scope within the although inspection pre- certificates are may the Clause. But there be other pared circumstances, for purposes litigation, of criminal aside ongoing from emer- certification of gencies, breath-test machines is when a statement is not pro- investigation removed from the direct primary cured with a purpose of creat- proof direct any particular whether ing an out-of-court substitute for trial defendant has operated testimony. a vehicle while making primary In pur- intoxicated; determination, pre- pose certificates are not standard rules of pared in anticipation litigation hearsay, designed identify some state- *11 that the Certification reliable, edents and conclude will be relevant.
ments that the court did exists, nontestimonial and was primary purpose no such Where admitting in it. not err is the admissibility of a statement federal rules of and concern of state Moreover, the State agree we with evidence, Clause. not the Confrontation the admis regarding that such error at 1155. 131 S.Ct. and the attendant sion of the Certification harmless. As noted analysis breath relevance is Here, the Certification’s prove have to a by the it did not aimed at es- of statute merely a creature level to sustain certain blood alcohol breath reliability of chemical tablishing the conviction, from and it elicited Jones’s re- as a foundational analysis results test explicit Madison extensive Trooper submitting test re- breath quirement demonstrating oper that Jones testimony note, sults, which, safeguard is a we Trooper while intoxicated. ated a vehicle for the benefit of place in legislature put instances in multiple identified Madison end, we note that To that the defendant.4 driving unsafe be displayed which Jones can- testing equipment the status of breath in person being consistent with a havior past a event relevant not be termed including nearly hitting Trooper toxicated if way, Put another prosecution. Jones’s car, weaving and twice police Madison’s exist, the § did not 9-30-6-5 Ind.Code line, in a no- crossing passing the center have a need submit State would not zone, nearly hitting parked passing simply introduce and could Certification parked on the shoulder vehicles subject, the breath the results of noted that he road. Madison course, defendant’s Confrontation to the he encountered smelled alcohol when that We also note protections. Clause Jones, eyes that Jones’s were red relevant hearsay exceptions are not even bloodshot, li Jones fumbled with his that § because Ind.Code 9-30-6- this matter registration, locate his cense and could not 5(c) certifi- provides such specifically his vehicle he dis that when Jones exited are admissible to estab- inspection cates balance, stag a lack of that Jones played is equipment breath test lish that certain against and leaned his gered as he walked good operating condition. himself, steady and that Jones vehicle to Thus, and other upon based Williams sobriety tests. See Tim failed three field Supreme (Ind. recent statements from 243, 255 berlake v. Court, the third rationale ar- we reframe 1997) (holding that if trial court “[e]ven al- provide ticulated Ramirez admissibility on the ruling errs in a kept inspection are though certificates evidence, if error only reverse we will may be by on file the court clerk and justice” with substantial is inconsistent court, primary harmless), their duplicated reh’g for use that the error was denied. that certain breath purpose to ensure II. equipment good operating is in condi- is whether the court 9-30- The second issue compliance tion Ind.Code certain However, ruling its discretion prior prec- reaffirm our abused 6-5. we matter, that, may admit- before breath test results be policy as a were trial 4. We observe ted, legislature respond remov- could agree we to with Jones and find that certifi- statutory requirements currently in ing inspection the Certification at cates of such as accuracy of such place which ensure the evidence and re- issue here were testimonial judging undue burden on inspected equipment, it as an quire person who equipment testify every OWI law enforcement. breath test *12 above, Affidavit; matters. As noted this able evidentiary Cause and we do feel evidentiary rulings for an that this is admissible. court reviews discretion, rulings and such are abuse of 73-74; Transcript Appellant’s Brief at subject analysis. harmless error Noo argues 16-17. Jones that a review of the Fox, 676; N.E.2d at 717 N.E.2d at jin, 730 transcript probable reveals that the cause argues Jones that the court abused prove affidavit was offered to the truth of (A) when it: admitted the its discretion the facts contained therein and “Authenti- (B) affidavit; and allowed probable cause hearsay exception. cation” is not a Appel- leading questions. the State to use We lant’s Brief at 17 (citing Ind. Evidence arguments sepa address each of Jones’s 803). Rule
rately. The argues although agrees State that it that “authentication” is not a valid re- A. Probable Cause Affidavit sponse hearsay objection, to a this court may affirm argues evidentiary ruling Jones that the court erred an any allowing probable apparent the State to admit the basis in the record and here the probable cause affidavit because it constitutes inad cause properly affidavit was ad- hearsay. present missible Jones notes that the mitted as a impression sense un- 803(1). responded objection by stating State to his der Ind. Evidence Rule The State Trooper argues hearsay that Madison “authenticated” the that this exception applies specifically points Trooper document and to the because Madison “testified that he following colloquy: probable filled out the cause affidavit while waiting he was the prescribed twenty-min- Honor, Your at this time
[The State]: ute period performing before the chemical Ex- the State moves to admit State’s breath test on at the [Jones] APC and hibit 5 into evidence. part finished the last pertaining to the test THE Any Objection? COURT: results before he left the Appellee’s APC.” Yes, Judge, the De- [Jones’s Counsel]: argues Brief at 18. The State objects; hearsay. fense this is harmless, error was at most noting that Honor, trooper [The Your State]: “probable merely cause affidavit was compiled the individual who this docu- cumulative of the testimony officer’s de- ment; testimony he filled it out. His scribing stop, his observations during you’ve prior heard that he filled it out it, tests, sobriety failed the results of while he waiting at the APC wait- the breath and [Jones’s] admissions” [Jones], ing with So we do feel that and that the State presented overwhelm- he has it. authenticated ing independent evidence oper- that Jones hearsay.... [Jones’s It’s still Counsel]: ated a vehicle while intoxicated “such that It doesn’t matter whether present he’s possibility there is no probable cause no, today; here there’s no foundation affidavit contributed to the verdict.” Id. at any exception has been laid for to the 18-19. general rule.... brief, In his reply that the [A]ny
THE ... response COURT: to State cites no case law for admitting a that? probable present cause affidavit under the [The Your Honor we do feel that impression hearsay exception State]: sense witness, his appears individual documents it to be an issue of first
it’s all testimony impression, authenticated. His Madison indicat- does mirror what is noted in the testimony Prob- ed his he did not fill out the *13 State, v. 536 N.E.2d about an harmless. Cornett affidavit cause probable until (Ind.1989). initial interactions to his subsequent hour time to ample had and thus with Jones events, and that Ind. Evi- Questions on the Leading
reflect B. 808(8), hear- public records Rule dence 611(c) Rule Indiana Evidence prob- states that specifically say exception, “Leading questions should not provides: qualify under affidavits do able cause a examination of be used on direct Rule accordingly “[r]eading the rule necessary to except may witness be whole, make little sense a it would 803 as testimony.” A lead develop the witness’s cause af- affirmatively probable exclude to the de ing question suggests is one that only to allow exception, one fidavits from the witness. sired answer to Williams under another.”5 them to be admitted (Ind.2000). The 14-15 n.8. Reply Brief at Appellant’s in leading questions is limited order use Here, direct end of the State’s at the the substitution of the attor prevent Madison, it intro- Trooper examination of ney’s language thoughts for the objec- over the court admitted duced and dispute. material facts in witness as to affidavit. Even probable cause tion the The trial court is afforded wide discretion affidavit probable that the cause assuming allowing leading questions, and the the truth and the State’s for was offered only will be reversed for court’s decision au- Trooper trial that Madison reply at Bussey v. an abuse of discretion. not a viable the document was thenticated (Ind.1989). 1027, 1029 N.E.2d any error its admission reply, we find argues Jones that the court erred when above, Trooper As noted was harmless. leading ques- it the State to use allowed alone demonstrated testimony Madison’s during its direct examination of tions a vehicle while intoxi- operated that Jones objected to Trooper Madison which were specific instances of cated. He identified in- by highlights examples Jones. Jones by driving displayed behavior unsafe “(1) cluding you ‘Did observe [Jones] Jones, alcohol and noted that he smelled (20) prior administering minutes to the of intoxication displayed signs (2) test?’; you began the chemi- ‘When eyes and a including red and bloodshot green light cal was the Led on the balance, that Jones failed three lack of lit?’; displayed instrument ‘When [sic] sobriety tests. field please message appeared blow trial was presented The evidence display, you place piece did a new mouth indeed, and, Jones does not overwhelming the breath tube and instruct the defendant that the State admit- identify single a fact ” Brief at 17- Appellant’s to blow into it?’ probable via cause ted into evidence argues following objec- his 18. Jones not cumulative of evi- affidavit which was why explain leading tion the court did not law- Trooper dence admitted via Madison’s and the State questions appropriate were extent testimony. ful To the question Trooper attempt made no admitting probable court erred in non-leading fashion. Madison affidavit, “only to disclose a cause it tends The that the court did not proven by properly fact other admitted State evidence,” allowing the State’s any error abuse its discretion accordingly 803(8) by gative reports police and other law en- provides in rele- Ind. Evidence Rule except when offered following personnel, part are not within forcement .vant that "[t]he ” (a) hearsay in a criminal case.... exception rule: investi- an accused this to the line because Madi- questioning you [The Did then press Prosecutor]: switch, already son “had testified that he was the “run” password, enter the breath perform certified to tests and had and enter the evidence tape? procedures followed the established for a A: Yes. the court judi-
breath had taken [Jones’s The Defense is going Counsel]: procedures cial notice of what those were.” object point. at this It sounds like *14 Appellee’s Brief at 21. The State just we’re going to hear a string of regardless, Jones “has not and cannot leading questions about what he did. any injury’ any show ‘substantial and thus They need to be in proper format. harmless,” error noting specifically THE COURT: Overruled. Proceed. closing Jones’s counsel in his argument you [The Did Prosecutor]: then follow argued “never that the test per- had been the display request for information improperly.” formed Id. at 21-22. The and enter requested information arguing State also notes in harmless error keyboard? into the that “the breath test evidence was unnec- A: Yes. essary to sustain a conviction for operating intoxicated_” [The When the please Prosecutor]: blow while at 22. Id. message appeared in the display, did trial, At the State testimony elicited you place a new mouth piece Madison, Trooper from objected breath tube and instruct [Jones] as follows: blow into it? Madison, Trooper [The Prosecutor]: Judge, objection. [Jones’s Counsel]: At you what time did administer this time the Defense would enter a chemical test to the defendant? continuing objection to each of these (20) twenty A: It was after the minutes questions. transported once I him to the APC. THE COURT: Noted for the record. My twenty minutes started once Overruled.... we walked into the blood test room Transcript at 61-68. The State asked and sat down. I used the clock on the Trooper Madison a few yes/no ques- more instrument. tions related to administering the chemical Prior [The Prosecutor]: to administer- breath test to Jones. ing you did inspect [Jones’s] above, As noted policy behind Ind. objects? mouth for foreign 611(c) Evidence Rule is to an prevent at A: Yes. torney from substituting his or her own you [The Did find anything Prosecutor]: language “for the thoughts of the witness mouth? [Jones’s] as to material dispute.” facts A: No. Williams, 733 N.E.2d (emphasis at 922 you Did [The Prosecutor]: observe added). The Indiana Supreme Court has eat, smoke, drink, or place [Jones] emphasized likewise that a leading ques anything his mouth during this “which, tion is one embodying a material time? fact, admits of a conclusive answer in the ” A: No. simple ‘yes’ form of a or ‘no.’ Doerner v. you When began [The Prosecutor]: the State, (Ind.1986). green chemical test was the light Led Also, where a testimony witness’s is not on the displayed instrument lit? possibilities distorted to conform to the A: Yes. suggested by question, any error re- of the sentence defendant portion executed is harmless. question
suiting from days for 825 placed probation to be at 1183. order of set forth special conditions ques- line of Here, the State’s prior date,” in- on this which probation issued issue, Madison testified tioning at alcohol and cluded that Jones not consume a chemical breath he was certified abuse evaluation and undergo a substance Department Indiana by the operator and follow the a mental health evaluation then asked: The State Toxicology. recommendations, impaired attend an driv- Madison, procedures did what “Trooper eighty impact panel, perform ers victim the chemical test?” administer you use to service, incur a community hours of to follow the got replied: “[Y]ou and he day suspension. Appellant’s license ninety right above ev- They’re posted guidelines. Thus, the court ordered Appendix at 25. it, instrument, you right up look ery *15 con- probation to serve his term of Jones Tran- you go.” line as and follow each portion of his suspended current with the exchange, the Following this script at 61. sentence. judicial the court take requested that State that the court erred be- so, Jones the court did procedures, the notice of him “to a combined cause it sentenced Trooper asked State thereafter and the imprisonment probation period questions recited yes/no the Madison year, contrary than one to Indiana greater that he followed the establishing above Brief at 18. Jones ar- Appellant’s law.” Jones’s test. regarding procedures A that he convicted of a class gues was record, of the we upon our review Based sentenced him misdemeanor and the court chal- questioning State’s find that executed, forty days days suspend- material by Jones did not concern lenged ed, days of for a total of probation and 325 Indeed, dispute. were in facts which argues that days. “[i]n Collins argue that Madi- Jones does recognized Appeals the Court of administered the chemical improperly son imprisonment’ that a ‘term of under otherwise demonstrate that breath test or 35-50-3-1(b) in- Indiana Section Code by the State’s deci- prejudiced Jones was suspended both the executed and cludes establishing yes/no questions sion to ask of a sentence. 835 N.E.2d portions complied procedures. that the (Ind.Ct.App.2005), trans. denied.” recognize that as holding, again In so we Id. at 19. above, to the pertaining evidence noted § provides 35-50-3-2 rele- Ind.Code superfluous chemical breath test person vant that who commits part “[a] sustaining Jones’s conviction as State imprisoned be Class A misdemeanor shall other evidence presented a multitude of (1) not more than one for a fixed term of a vehicle establishing operated that he addition, year....” In 35-50- Ind.Code Accordingly, we con- while intoxicated. 1(b)provides part that: ruling regarding that the court’s clude 3— require does not questioning State’s line of the court in whole suspends [W]henever A, reversal. a sentence for a Class part misdemeanor, B, it Class or Class C III. un- may person probation place of not period 35-38-2 for a fixed is whether der IC The third issue notwithstanding year, one court was invalid. more than imposed by sentence for imprisonment maximum term of the court judgment, In Jones’s abstract of forth in sections the misdemeanor set “following completion stated that However, the through chapter. long 4 of this as the combination of the executed imprisonment term combined sentence the probationary period do may not probation a misdemeanor not exceed the maximum statutory sen- (1) year. exceed one tence for that (quotations offense.” Id. omitted) added). added). (emphases We conclude (Emphasis the court did not err in sentencing Here, language contained in the ab Jones.7 judgment plainly states stract forty days
Jones was ordered to serve reasons, foregoing For the we affirm by a probationary executed followed term Jones’s operat- conviction sentence for days, of 325 which is a combined term ing while intoxicated as a class A misde- encompassing year. one To the extent meanor. suggests
that Jones
the court’s sen
Affirmed.
days suspended
tence of 325
should be
days
probation
added to the 325
for a
BAILEY, J., concurs.
days,
total sentence of 690
we observe that
(Ind.
in Smith v.
pose [of equipment breath test that certain ensure compli- condition in good operating is in Op. p. § 9-30-6-5.” ance with Ind.Code I disagree with this. respectfully I certificates of in- these still believe that GRAY, Appellant-Defendant, Michael “prepared pur- generally are spection Therefore, in litigation.” criminal poses of Court’s decision light Supreme Indiana, Appellee-Plaintiff. STATE Williams, simply eliminate I would articulated Ramirez. third rationale No. 49A02-1205-CR-352. difference, I agree still Despite this Appeals of Indiana. is non- majority that the Certification subject to therefore not testimonial and 11, 2013. Feb. v. Washing under confrontation Crawford 68-69, 124
ton,
541 U.S.
*17
(2004). Following the
first
L.Ed.2d
Ramirez,
forth in
two rationales set
inspection
prepared
was “not
certificate of
during police
or
judicial proceeding
at a
and was not a “sworn affi
interrogation,”
contain formalized
]
do[es]
davit
Ramirez,
materials.”
testimonial
Instead,
217-18.
the certificate
N.E.2d at
the direction of the
prepared
of Medicine De
University
Indiana
School
Toxicology
partment
Pharmacology
approved proce
its
and in accordance with
was not a
dures. The certificate also
only
re
affidavit and
contained the
sworn
test.
sults of a machine-calibration
Unlike
substance,
an unknown
analysis
forensic
like that at
issue Melendez-Diaz
305, 308, 129
Massachusetts,
557 U.S.
(2009),
2527,