*1 passed he upon principles they technical of scientific meas- them but did not see his left, head as his car veered to implying testing, accuracy the of which
urement and by is controlled the manner in which the that he had fallen over on the seat. In- Carey's tes- measurement is taken. Naomi deed, entrapped Orr found was the floor
timony as to the blood-alcohol content of car, body of his his stretched cross-wise sample not a Orr's blood was statement passenger and his head on the side. Final- opinion her as to the level of alcohol con- ly, drinking Orr admitted that he had been contrary, testimony tent. To the it was Indianapolis just two westside taverns reason, any scientific For that defect fact. prior to the accident. procedures in the used ascertain These facts alone have been suffi fact, accuracy which affect the of the fact satisfy cient to that Orr was intox necessarily must render the or the fact, icated, support and thus the verdict. How result, prejudicial test inadmissible and ever, I am unable to conclude that disagree I majori- the defendant. with the jury's significantly decision was not influ ty conclusion that we are confronted mere- by improperly enced admitted blood-al- ly conflicting expert opinion. with remaining eohol test results or that conflicting case before us we do not have overwhelming evidence is so as to expert opinions regarding propriety of Mulry verdict as a matter of law. See did, procedure. If I1 the test we would (2d Dist.1980) Ind.App., v. State agree might that the test results be admit- 413. I would reverse and remand for a ted and the trier of fact be advised that new trial. they may weigh conflicting opinions according to that assessment lend such
weight, any, might appropriate. if
Here, however, only opinion we have expert admittedly one that an omitted procedure necessary
test was to assure the
accuracy of the test result. We do not conflicting opinion
have a the omitted
procedure necessary was either be- ISETON, Appellant Todd accuracy cause result could not be adverse- (Defendant Below), thereby, ly accuracy affected or that was procedures other used instead
assured procedure. of the omitted Indiana, Appellee STATE analysis The blood-alcohol was not Below). (Plaintiff only evidence of Orr's intoxication. Officer No. 2-883 A295. and Officer Madison testified that Goff
they smelled alcohol on Orr's breath at the Indiana, Appeals Court of scene of the accident. Officer Carrico tes- District. Second that he smelled alcohol on Orr's tified Dec. hospital; at the that Orr exhibited
breath behavior; and that and boisterous loud speech slurred. Goff Orr's Officers both testified that in their
and Carrico years experience
many of law enforcement
they each had numerous occasions to ob- persons intoxicated and
serve who were opinion, upon
that in their based their ob- behavior, he intoxi-
servation of Orr's passed passengers in the car cated. Orr, just before he struck the decedents'
car, they testified that saw Orr's head as *3 Marion, appellant. Frey,
Bruce M. Pearson, Gen., Linley Atty. Kathleen E. Radford, Gen., Deputy Atty. Indi- Ransom annapolis, appellee.
SHIELDS, Judge. appeals Iseton his con
Defendant Todd theft, in a trial of two counts of viction 35-48-4-2(a) § D class felonies under Ind.Code (19 82).1 following He raises the issues appeal: 35-43-4-2(a) provides follows: Ind.Code 1) presented 21, 1982; tri- The Whether the evidence case was tried October Ise- support al sufficient to the con- voluntarily was ton waived his to be
~- viction, present at trial. sup Iseton's motions press deposition of Miss Haines were 2) whether it error to admit into overruled, and the case was tried to a six- victim, deposition evidence the person jury objection over Iseton's that a Haines, Miss Geneva required. twelve-person jury constitutionally
3) whether it was error overrule Ise- I. Sufficiency of the Evidence objection ton's to trial before a six- I. Sufficiency the Evidence
person jury. argues Iseton the evidence was insuffi- Facts cient his convictions. As to July Miss Geneva Haines II, argues Counts I and he that after he lived alone a house owned her niece voluntarily absented himself from the and close Velma Thresher. Be- companion, (Iseton) identify State failed to him *4 Haines, cause Miss then her mid-seven- person who committed the crimes. He ties, financially person, was a conservative argues also the State failed to estab- Mrs. Thresher was shocked when Miss proper lish venue. As to II Count Iseton money. Haines asked her Miss argues the prove any State failed to erimi- records, Haines's checked bank its at Mrs. nal conduct him. request, Thresher's and then contacted the reviewing sufficiency County department. Grant Sheriff's evidence, weigh we neither the evi Upon investigation, Lieutenant Brown judge dence nor credibility: of witness money concluded sums of had been taken es. If there is pro substantial evidence of repairs from Miss Haines for to her home support bative value to the conclusion of person that were not made. Because the guilt beyond doubt, a reasonable the ver purportedly repairs
who
made the
would
State,
dict will not be set aside. Coburn v.
arrange
payments
call to
cash
for the un-
(Ind.App.1984);
ton's in marked July bills on the trial continue his Tay absence. July On Iseton was arrested in Miss States, lor v. United home; arrest, Haines's at the time of the $1,800.00 carrying Iseton was in marked July payment
bills from the 2 and $280.00 Even present when a defendant is given day. Miss Haines had him that point witnesses need not 28, 1980, July charged by On Iseton was defendant requisite to establish the identifi
information with counts of theft in- Schroeppel, two cation. 240 State Ind.
volving
July
July
payments.
(1959) (witness
2 and
Ind.Code § performed." knows will not be vide as follows: chapter, person's "Under this a control over property person of another is 'unauthorized' if it is exerted: "Sehroeppel" and "defendant" and A
both present in the
said that the defendant was
n
o
courtroom);
State,
O'Brien
t
(Ind.
(testimony showed de
h
fendant had identified himself
name to
-
officer);
arresting
Preston
The evidence on the
is sufficient
record
(1972) (three
Ind.
Broecker v.
prove
Iseton claims the State failed to
he
N.E.2d
See also Martin v.
July
involved with the
2nd theft. He
(Ind.1984) (suffi
State,
sitting at the defendant's table voir sufficient his conviction of II Count under the information.2 The evi jury); dire" of the Bullock v. July his son dence shows received 2nd (identification (Ind.1983) pri payment from Geneva Haines.
marily by photographs, defendant's ab
sence). (1982), Under Ind.Code 85-41-2-4 *5 pointed no witness to Iseton person knowingly intentionally
While in- who expressly
and identified him as the trans person duces or causes another to commit
gressor, known Miss Haines as Mr. Dor- an offense commits that same offense.
man, present effectively there was sufficient This section codifies the com- evidence ed at trial from which the fact finder could person that a who causes mon law doctrine agent identity beyond a rea a crime to be committed is
determine Iseton's sonable doubt. responsible agent. for the acts done Ind.Code Ann. 85-41-2-4 commenta- See deposition The of Miss Haines included (West 1978). Thompson ry by C. following testimony: "Q. Did they arrest Todd Iseton? A. Yes, 'cause I told who he was. I identified him.
"Q. they Did arrest Todd Iseton? July The record shows that before the payment Miss Haines received tele- 2nd Yes, I I
A. 'cause told who he was. arranging pay- that phone call from Iseton identified him. July payment After the 2nd Miss ment. "those phone Haines received a call from Q. And that was the same man (the police] investigating" were [whom t h identified "Mr. Dorman" Miss Haines later t a Iseton) indicating amount looking him They'd A. Yes. been picked up enough not and that another was good for a while." necessary. The addi- payment would be Brown, Record at 388-89. Lieutenant 21; July Iseton payment set for tional was present the man at the officer who arrested arrested in Miss Haines's house when was incident, person July 21 referred to the payment to take on that date. he arrived defendant"; noted as "the Brown arrested at 342. Record arrested, person was that when "hle presented at trial was The evidence on him to state that he had identification finding Iseton at Record at 842. sufficient Todd Iseton."
was G charged with hav II,
2. Under Count Iseton day July, ing, of A.D. 1980 "on or about the 2nd e e n State of Grant, and in the of County Indiana, knowingly unlawfully [exert ... - property over of unauthorized control ed] payment his son to take the of least caused v i d en c ,
money prearranged Iseton's earlier e phone conversation with Miss Haines. Ac-
cordingly, criminally is Iseton responsible Deposition II. Admission of July for the theft of 2nd. argues in denying Iseton the court erred suppress deposition his motion to County
C. Grant Venue Haines. He claims the Geneva State failed argues Iseton the State failed to intro to establish the witness was unavailable charged duce evidence that the crimes were right and he was therefore denied the County, committed Grant where the trial against confront the witnesses him.3 disagree. following held. The We exchange deposition. occurred at Miss Haines's purposes The of the confrontation
"Q. You don't recall the address. Where did you live from Marion,
requirement
reliability by
are to insure
"Q. You
don't
recall
address.
oath,
expose
means of the
the witness to
Marion,
you
did
from
Where
live
probe
cross-examination,
per
and to
-
you
your
can
describe where
home
weigh
mit the trier of fact to
the demeanor
relationship
city
was in
Green,
of the witness.
California
Marion?
149, 158,
(7)
A. Seven
miles east of Marion on
While the
of confrontation is
Road
State
$18.
absolute,
difficulty
lies
determin
Q. Okay,
you.
why
you
thank
And
did
ing
policy
when
public
considerations
Marion,
your
County
leave
Grant
justify
and the necessities of the case
dis
address?
pensing with confrontation at trial. Unit
health. Q. And do you know, recall when approximately you left that Grant County address? A. Two (2) or three (8) months ago.
My
A.
(7th
Wolff,
ed States v.
Q. know, United you ap- And do recall when 237, 243, 337, 339, proximately you left that Grant (1895)). L.Ed. 409
County address? ago. A. Two or three months two-step approach used in de Q. you go your And where did from *6 termining previously when recorded testi home? A. First I went to my niece's in Mun-cie and then I came here. I been here two (2) or three (8) months." County Grant mony may in in be used a trial lieu of my A. First I went to niece's Mun- testimony by in-court was described the I cie and then came here. I been Appeals Seventh Circuit of Court its here two or three months." opinion in United States v. See Wolff.
Record at 368.
State,
Gallagher
also
v.
mony regarding the July, events of or unavailability demonstrate the of the
including investigation, the surveillance declarant whose statement it wishes to use County person and arrest Grant Sheriff
nel,
against the
testimony
the
defendant."
cient for a reasonable fact finder to con-
(quoting
Roberts,
56, 65,
Ohio v.
448 U.S.
elude, by preponderance
2531, 2538,
of the
S
McIntire,
Ind.App.
v.
then determine
The court must
Schoeff
(1972),
statement
to be used bears sufficient "indi-
cia of established a doe- testimony testifying tor's he felt would af opportunity
the defendant had an to cross- deponent. fect the health of the In Wells
examine
witness.
Company,
Ind.App.
v. Gibson Coal
deposition
to use a
at trial
"[T]he
(1976),
sickness, infirmity, imprisonment; added.) (Emphasis ..." case, In the instant Velma Thresher testi- deposition fied before was offered into depositions The admission of under Haines, seventy-nine evidence that Miss 32(A)(3)
T.R.
is within a trial court's discre
years
surgery
old at the time of
had
tion,
ruling
request
and its
on such a
can
on her hands two months after the arrests
except upon
showing
not be reversed
and that her health had deteriorated in the
of its
abuse
Jarvis v.
discretion.
years preceding
two
the trial. She was
(Ind.1982);
Thomas v.
living
nursing
in a
home at the recommen-
(Ind.App.1981).
implicit in the trial court's admission of the
hospital in
November
deposition,
appel
and the
is
burden
blood,
this was for low
anemic con-
prove
judgment
lant to
that the error of
dition. And then
we-the
when
clearly against
logic and
natural
spring
trial was held last
she
[civil]
inferences to be drawn from the record.
ill,
very
improved,
and has
but
Company,
170 Ind.
Wells Gibson Coal
point
being
able to
(1976);
App.
McIntire,
289,
Ind.App.
153
(1972). higher determining unavailability
4. At the time the crimes were committed in
should be
for
1980,
regarding
depositions
the law
the use of
in
Annot.,
criminal
trials
than for civil
trials.
See
governed by
a criminal case was
T.R. 32 and the
(1955);
McCormick,
A. has deterioration of the She felonies, D class wherever tried.6 We re arthritis, and then this nervous application the issue of whether the view
condition in her hands. provision the latter violated the constitu protections against post ex facto tional then, your opinion In it would be laws.7 appear health detrimental to her to testify? to primary purpose The the Yes,
A. I think it would be. Record at 304-305. prohibition against post ex constitutional legislative facto laws is the assurance that at 304-305.
Record give warning acts will fair of their effect find the trial court could rea We permit rely to on their individuals sonably have concluded that Miss Haines meaning explicitly changed. "[Ojur decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. until testify or because of was "unable attend "[Ojur prescribe decisions two crit- sickness," infirmity; age, therefore it present ical elements must be for a crimi- admitting did not its the abuse discretion penal post nal or law to be ex it deposition. facto: is, retrospective, must it must attempts in Iseton further his brief apply occurring to events its en- before regarding argument
to make Miss actment, disadvantage and it must testimony incidents other Haines's about offender affected it. However, charged. than the crimes he has by failing any argument such waived post We have also held that no ex include it in his motion to correct error. change violation occurs if the ef generally, Thomas v.
See facto merely procedural, fected is and does (Ind.1981). punishment change 'not increase the nor ingredients of the offense or the ulti Constitutionality
III. guilt.' Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form." necessary mate facts to establish Jury Six Person right, Alteration of a substantial how- years During the two between the time ever, merely procedural, is not even if offenses, 1980, July Iseton committed seemingly procedural the statute takes a 1982,
and the time of his October form." controlling in Indiana laws number
persons required jury to constitute a Graham, 24, 29-80 and Weaver 12, 960, 12, changed. provided for a n. 964 and n. 1980 the law S.Ct. Utah,
twelve-person jury (quoting Hopt superior court criminal L.Ed.2d 574, 590, 202, 210, 28 L.Ed. ials,5 1, 1981, September
tr as of but (Burns 1979) pro- repealed by version was Acts § 5. Ind.Code Ann. 35-1-30-1 amended 1, September vided as follows: P.L. effective § 1982. jury used civil cases shall act also "The trial 35-1-30-1, If amendment to I.C. savings cases, clause, in criminal but must in criminal cases which did not contain a does not jurors qualified [except consist of twelve prohibition again post legis- ex facto violate inapplicable provision concerning jury for an savings lation, clause in Acts P.L. 298 courts, county Ind.Code Ann. trials in the Sep- repealed 'which LC. 35-1-30-1 effective § 1, 1982, effect, § 33-1-.5-7-6]." practical had because tember no composition jury the numerical of a in class D Ind.Code 35-1~30-1 was amended Acts § unchanged. felonies remained 1, 1981, September § P.L. 281 effective provide as follows: that, provides Const. art. 1 cl. 1 7. U.S. civil cases shall act also "The trial used in *8 attainer, pass any state shall ... bill of ex "[nlo criminal cases, cases, in criminal but must in law, obligation post impairing facto or law the consist of: of contracts...." (1) (12) jurors felony qualified in a twelve case; felony that, "Injo a D case than Class provides other Ind. Const. art. 1 24 ex § (2) (6) felony, qualified jurors D six in a Class law, obligation post impairing or law the facto misdemeanor, infraction or ordinance violation contracts, shall ever be of passed." case."
651 (1884) (footnotes 262 and held, citations omit fore the second trial was Utah was ted). See United States ex rel. Massarel admitted the to union. In the second Elrod, (7th Cir.1982); la v. 682 F.2d Thompson 688 a jury eight, faced of as re- quired by the State, new state constitution. The 262, Warner 265 Ind. 354 N.E.2d (1976).
178 application Thompson The trial court's of Court held that the defendant acquired right
the 1981 amendment to had the Ind.Code 35-1- to be tried jury a
80-1 of twelve and (providing six-person for a that the jury) was conviction must be reversed
unquestionably post because of the ex retrospective facto effect. clause violation.
However, we conclude that no violation of post guarantees occurred,
the ex facto be opinion, "In provision our the in the providing constitution of Utah for the right cause no substantial affected.
Though trial in holding general jurisdiction our courts of rests on the determina of cases, criminal capital, by
tion right affected, jury that no substantial a com-
we also
application
posed
eight persons,
find that
the
post
of the
is ex
facto in
application
its
to felonies committed be-
amendment did not disadvantage Iseton.8
territory
state,
fore the
became a
be-
Right
A. Substantial
cause,
respect
crimes,
of such
the con-
decisions, Thompson
Utah,
Two
stitution of the
gave
United States
the
343,
620,
disadvantaged by
However,
change.
in law that occurred when Utah became a jury "the fact that the of common law was
state. The territorial statutes force composed precisely 12 is a historical Thompson
when committed the accident, offense unnecessary pur to effect provided twelve-person for a jury, and in poses jury system wholly and with prosecution
the initial
jury
was com-
significance 'except
mysties.'"
out
posed of twelve
Thompson
members.
sue-
(citations
S.Ct. at 1907
omit
cessfully appealed
conviction,
ted).
his
but be-
The
Thompson
Court described the
determining
persons
City
Boyland,
number of
State ex rel.
Columbus v.
comprising
jury
right,
is not a substantial
we
(foot-
Ohio St.2d
N.E.2d 324, 326
question
do not reach the
of whether
that nu-
omitted).
notes and citations
procedural.
merical concern is substantive or
retrospec-
And Professor Tribe referred to a
(Ind.1984)
See Austin v.
+ concern. procedures knowledge new did so with that, previously "This court has stated they adversely whom would affect how." terms, general substantive law is that which Tribe, Law, L. American Constitutional 483-84 duties, rights, obligations, creates while procedural prescribes law the methods of the rights. enforcement of those determining post 9. So far as whether a law is ex procedure rule of which reduced [The facto, the time of enactment and the time of the size for trials of certain offenses] commission of the offense are relevant con- way attempts no to alter a defendant's sub- cerns. Warner Ind. stantive constitutional to a trial jury.... properly pro- It is characterized as cedural in nature." *9 opinion unsupported as based on assump- The that, McSears court stated "while
tions, and held Congress that and the vari- may Williams Florida have indicated legislators ous state should determine the that trial jury of 12 was not a 'sub
number that jury can constitute a unre- right,' stantial the more recent Ballew v. interpretation
strained
of the sixth Georgia suggests that it is." 273 S.E.2d at
Further,
amendment.
the Court went on
disagree.
850. We
The Ballew decision
clearly
express the view that neither
any
principles
did not alter
applica
theory
experience supports
nor
position
juries
persons
ble
of six or more
that an
any advantage
accused has
with a
opinion.
described
the Williams
twelve-person jury.
102-103,
899 U.S. at
holding
The
pre-
Ballew
was narrow and
juries applicable when the offenses were
tioning of
jury
in a criminal trial is
reviewing
committed. The
courts were in
seriously impaired, and to a constitution-
agreement
post
violations of the ex
degree,
al
by a
reduction
size to below
facto restrictions had not occurred.
siz members."
Supreme
The
Court of Connecticut sum-
240,
435 U.S. at
(emphasis
contrary
result
McSears
we find its unconvincing it because B. Disadvantage misconstrues the United Supreme States Court decision in Ballew v. Georgia, 435 It is axiomatic that to if determine a new fairly law characterized as more onerous, compare we must the two statuto- *10 Florida,
ry procedures. Dobbert v. 432 affect the elements of that crime or the 344 punishment
U.S. 53 L.Ed.2d attributable to the crime. The
(1977); Crowell v. United States Parole amendment prior took effect to the com (3rd
Commission,
Cir.1984).
While Iseton that a prospec the amendment it was entitled to jury likely to application son is return a result commencing tive to all trials more six-person favorable to a defendant than a regard, thereafter. In this our case differs
jury, the courts of Indiana and the Federal
(1976)
from
v.
Warner
State
265 Ind.
system
expressly rejected
hy
have
jury gives greater a defendant a advan- 29-30, Graham 24 at U.S. tage since he has more chances of find- S.Ct. 960 at 964. ing juror acquittal who on will insist light In overruling Thompson prevent thus conviction. But Utah advantage might just easily belong 1061, I L.Ed. do not believe that there are only jur- which also needs one any post ex connotations this case facto insisting guilt or out of twelve whatever. short, prevent acquittal.... neither
currently theory available evidence nor
suggests that the 12-man neces- is
sarily advantageous more to the defend- jury composed
ant than a of fewer mem-
bers." (footnotes
omitted). Because the 1981 amendment to Ind. CREASY, Appellant Herman J. Code 35-1-80-1 did not affect a substan- (Defendant Below), right, application
tial of that amend- post ment was not violation of the ex appli- Indiana, Appellee
facto clauses. We also find that STATE of disadvantage Below). cation did not Iseton. (Respondent
Judgment affirmed. No. 2-1083 A 388. Indiana, Appeals Court
BUCHANAN, C.J., concurs. District. Second
SULLIVAN, J., separate concurs with
opinion. Dec.
SULLIVAN, Judge, concurring. convic-
I concur the affirmance of this however, disagree, majori- I with the
tion. Defender, Carpenter, Public Susan K. ty's application conclusion that of the six- Touchette, Deputy L. Public De- William person jury amendment to 1.0. 35-1-80-1 fender, Indianapolis, appellant. in ef- unquestionably retrospective
"was 15) (Slip Opinion, page
fect." Pearson, Gen., Joseph Linley Atty. E. N. Gen., Stevenson, Indianapo- Deputy Atty. The amendment took effect after com- lis, appellee. charged
mission of the crime but did not