*1 925 willful, act of propensities malicious and criminal aware the assailants' an party a third intervenes between commit the criminal act that was involved of Thus, and the occur alleged negligence act of I cannot agree plain here. that the injury an that could not reason rence of proved by preponderance tiffs of the ably by allegedly foreseen the been any duty evidence that the Club breached chain negligent party, the causal between of care that was owed to them. injury negligence and the is broken. Taking yet another I step, would also Hotels, Inc., Luxbury v. See Ellis note that nothing suggests the record (Ind.Ct.App.1996). Put N.E.2d duty that an of alleged part breach way, "liability may imposed another be proximate of the Club was the cause of the original negligent an actor who sets in essence, In plaintiffs' injuries. and Cox motion a chain of events the ultimate Spencer suggesting are the assault reasonably injury was not foreseeable as was based on the that a foreseeable notion probable consequence the natural and physical simply altercation could oceur be- Paragon, act or omission." patron permitted cause a to enter the N.E.2d at 1054. me, Club in violation of the dress code. To case, majority this observes unfounded, such an assertion patrons Spencer who attacked Cox imposed insurmountable burden would be hats, shoes, wearing jeans,
were "tennis on the business owner if such were the suits," and sweat in violation of the Club's case. me, Op. dress code. at 922. To even said, That I must conclude-for all these entry assuming patrons granted were the evidence reasons-that was insufficient facility's in violation of the Club to establish a causal relationship between code, logical dress there is no nexus be- alleged duty breach of and the Club's patrons tween the admission of into the injuries that were sustained in the alterca- in that premises dressed fashion and Hence, I judg- tion. vote to reverse the duty provide breach of the Club's ment of trial court. plaintiffs adequate security. Additionally, manager of the Club approximately pa
testified that 700-800 night
trons entered the Club on the of the
incident, twenty-two eighteen secu Christopher SCHMIDT, Appellant-
rity guards working particular were on that ening.2 simply ev There was no show Defendant, ing plaintiffs made that this number security personnel insufficient Indiana, Appellee-Plaintiff. STATE of protect safety of those who entered the No. 29A05-0312-CR-666. premises. Spencer pre Neither nor Cox establishing sented evidence that the Club Appeals of Indiana. Court any prior had been aware of actions on the Oct. 2004. patrons who had at female words, tacked Cox. In other Cox and
Spencer failed to show the Club was p. Spencer twenty- Appellant's App. 12. testified that she observed security guards evening. four at the Club that *4 Cook, IN,
Bryan L. Attor- Indianapolis, ney for Appellant. Carter, Attorney
Steve General of Indiana, Fisher, D. Deputy Matthew At- General, IN, torney Indianapolis, Attor- neys Appellee. for OPINION
Judge. NAJAM, THE STATEMENT OF CASE In May charged the State Christo- pher Operating Schmidt with one count of ("OWI"), a Vehicle While Intoxicated as a misdemeanor, A Class and one count of OWI, By sep- as a Class C misdemeanor. information, arate charged the State OWI, Schmidt with two counts of both as felonies, D prior Class based on a OWI conviction. the first of Schmidt's trial, jury guilty him bifurcated found OWI, misdemeanor, A as a Class OWI, as a Class C misdemeanor. Schmidt right waived his to a trial phase, enhancement and the trial court guilty felony found him D both Class trial OWI enhancements. The court en- judgment tered of conviction on one count OWI, felony, as a D Class and sen- years, with all but 102. The to three tenced Schmidt officer also observed im- "eyes court also were kind of red and thirty days suspended. The probation and ordered Pitman posed years' two bloodshot." Officer asked suspended license be registration. that Schmidt's Schmidt for his license and pres- year. appeals now Initially, provided one Schmidt Schmidt the officer with for review: following ents the issues his license and his vehicle insurance card. provided registration. He later his vehicle the trial court abused its 1. Whether The officer told Schmidt that he smelled when it instructed discretion jury that car, it found aleohol Schmidt stated previous night, to a chemical he drank alcohol the but had refused to submit stopped drinking approxi- that he had test, that refusal as it could consider mately p.m. intoxication. 11:00 evidence of Schmidt's court abused its the trial Whether Next, Pitman asked Schmidt to Officer certain discretion when excluded car, complied. exit his and Schmidt testimony. expert witness two field officer administered tests, namely, the trial court abused its the walk-and-turn test and 3. Whether *5 test, one-leg-stand when it admitted evidence both of which discretion to that Schmidt had refused submit failed. Officer Pitman then ar- Schmidt to a chemical test. him in placed po- breath rested his Schmidt En lice vehicle. route to the Hamilton prose- 4. the State committed Whether Jail, County Officer Pitman read to during closing cutorial misconduct law, implied Schmidt Indiana's consent argument. printed which the officer had on a card. 5. the trial court abused its Whether Specifically, the officer stated to Schmidt: allowed the discretion when it State probable you "I have cause to believe that expert a witness question defense a vehicle while intoxicated. operated contained in a Na- about statistics you opportunity I must now offer Safety Ad- Highway tional Traffic you a chemical test. take a submit to Will ("NTHSA") manual. ministration officer chemical test?" Id. at 115. The affirm. We explained also to Schmidt that his refusal to a test would result submit AND FACTS PROCEDURAL being suspended year. for one license HISTORY refused to take a chemical test. Schmidt 24, May approximately At 6:45 a.m. on charged with two The State Schmidt Michael Pit- Carmel Police Officer OWI, and then two counts of counts of man observed Schmidt drive his black day as an enhancement. On the first OWI through light a traffic that had been Lexus trial, granted portions of the trial court seconds. Offi- approximately red for three regarding in Limine the State's Motion lights Pitman activated his overhead cer testimony from Dr. Daniel particular for more than one pursued Schmidt McCoy, expert witnesses. one Schmidt's mile, during which both vehicles reached ex- proof, his offer of Schmidt During seventy per miles hour speeds approaching McCoy, toxicologist, plained that Dr. After the fifty per in a mile hour zone. part have testified relevant ap- Pitman stopped, vehicles Officer height, factors like Schmidt's given various and noticed "a proached Schmidt's vehicle amount of aleohol he had weight, and the beverage coming strong odor of alcoholic arrest, night at consumed on the before Transcript the vehicle." from inside testimony" testimony was the "sole have man's aleohol content would Schmidt's blood regarding also to consider jury limit. The court had legal been below the morning May motion driving of the State's portion Schmidt's granted certain witnesses counsel to exclude at 316. Schmidt's sought statement, medical testifying and the object from about did not history. charged. guilty found as jury Schmidt appeals. now Schmidt testimony from Of- presented
The State IInicki, sergeant and Fred ficer Pitman AND DECISION DISCUSSION Department Police Indianapolis videotape of Schmidt had watched who Jury Instructions Issue One: tests, performing First, trial asserts that the Schmidt intoxicated on the that Schmidt was prove in court abused its discretion when question. presented morning fol in relevant structed the Bennett, trial, one William witness lows: and former law en- private investigator is certified officer who forcement COURTS FINAL INSTRUCTION sobriety tests. to conduct field NTHSA 9NO. IInicki, had also Sergeant Bennett Like you If find that the Defendant refused videotape perform- of Schmidt watched test, being to a chemical after to submit sobriety tests. Bennett's ing the field consequences, you may advised of the not fail those tests. opinion, Schmidt did of intox- consider the refusal as evidence testimony, frequently Bennett During his ication. procedures guidelines referred *6 at 40.1 contends Appellant's App. cross-examina- an NTHSA manual. On improper because it that that instruction Bennett, tion, over the State asked evidence, namely, emphasizes particular objection, particular about sta- to submit to a chemical breath his refusal manual in that NTHSA published tistics sobriety tests. The trial regarding field test. not allow Bennett about court did jury is left to Instruction of the give conditions or Schmidt's medical of the trial court and judgment the sound whether those conditions affect- opinion on an abuse of will not be disturbed absent during the field sobri- performance ed his State, v. 793 discretion. Stoltmann of Bennett's ety tests. At the conclusion 275, (quota (Ind.Ct.App.2003) N.E.2d 279 proof offer of
testimony, Schmidt made his
omitted),
Jury in
tions
trans.
denied.
McCoy's testimony.
regarding
in
considered
iso
structions are not to be
lation,
and in reference to
com-
but as a whole
During closing argument, the State
at 279-80. The instruc-
that
Pit-
each other.
Id.
in relevant
Officer
mented
test
person must submit to each chemical
to the Court's Final
A
1. Schmidt also directs us
8,
a
enforcement officer in or-
offered
law
provides:
No. which
Instruction
implied provisions
comply with the
der to
operates
impliedly
person who
a vehicle
A
of this statute.
test as a
to submit
chemical
consents
9,
operating a
in Indiana.
vehicle
condition
independent
from Instruction No.
But
proba-
officer who has
A law enforcement
why
explain
Schmidt does not
instruction
person
to believe that a
has com-
ble cause
only
Accordingly, we
erroneous.
address
Operating
Intox-
an offense of
While
mitted
argument
9 is im-
that Instruction No.
person
opportunity
shall offer the
the
icated
proper.
test.
to submit to a chemical
931
case,
Luckhart,
accurate state-
complete,
must be a
tions
In that
as in
Stoltmann.
will not confuse or
of the law which
ment
jury
that "[a]
the trial court instructed the
jury.
(quotations
Id. at 280
mislead the
refusal to submit to a chemical
defendant's
omitted).
test
be considered as evidence of the
guilt"
defendant's
In this
court's
analogous
the use of an
instruction.
repeatedly referenced
instructions
1231-32
expressly
guilt,
[Dill
issue of Luckhart's
had to be
(Ind.2001) ],
set forth the elements that
court
found that
guilt.
It
proved
instructing
jury
to establish Luckhart's
trial court erred
more accurate
might have been
flight of a
that "it could consider the
to have instructed the
trial court
commission of a crime"
person after the
*7
a chemi-
that Luckhart's
to take
guilt.
refusal
omitted].
of
[citation
as evidence
was evidence
his intos-
cal breath test
that the in
The Dill court determined
of
guilt
ication rather than evidence
confusing
misleading
of
struction was
driving while intoxicat-
unduly emphasized specific
of
offense of
evi
ed, as there is no conmection between his
at 1233. For similar rea
dence.
Id.
operation
to take the test and his
refusal
sons,
that
the trial court
we conclude
Nevertheless,
no
a vehicle.
there was
of
instructing
in
discretion
abused its
driving
dispute that Luckhart had been
jury regarding
refusal
Stoltmann's
test, and it
he
to take the
when
refused
breath test.
submit to the chemical
likely
jury
that the
was confused
is not
280-81.
proper element of the offense
about the
Ac-
pertained.
to which the evidence
majority
recently,
opinion
another
More
the trial court did not abuse
cordingly,
with the outcome
agreed
of this court
by giving
its discretion
the instruction. Stoltmann,
reasoning
applied
Tout
added).
(emphasis
Id. at 1168-69
almost iden-
jury
that case to a
instruction
at issue here. See
tical to the instruction
after Luck-
Approximately ten months
(Ind.
1150, 1152
hart,
N.E.2d
court decided Ham v.
panel
another
of this
granted.
Ct.App.2004),
potential
trans.
The defen
jury[,]"
majori-
mislead the
argued
dant in Ham
that
ty
the trial court
in Hom stated further:
jury
erred
instructed
"a
emphasizes
The instruction ...
Ham's
defendant's refusal to submit to a chemical
decision to decline a chemical test and
may
test
in
be considered as evidence of
jury
assign
tells the
that same deci-
majority agreed
toxication." The
and ex
sion as evidence of
To
intoxication.
be
plained in
part:
relevant
sure, intoxication
necessary
is a
element
panels
While at least two
of this court
proven
that must
by
be
the State be-
tacitly approved
giving
yond
charge
a reasonable doubt
of
instruction that the trial court tendered
operating a vehicle while intoxicated.
case,
in this
decline to
we
follow the trail
Permitting an instruction that leads the
that has been blazed
those several
jury to believe the
has been met
burden
is,
colleagues. That
disagree
we
[by evidence of a
simply
refusal]
cannot
the notion that it
to instruct
permitted.
be
that the refusal to take the test is evi-
(citation omitted);
Id. at 1154-55
but see
denee of either
guilt.
intoxication or
It
J.,
(Bailey,
dissenting
id. at 1158-59
is our
view
the instruction has the
part) (concluding instruction
place
does not
high potential misleading
confusing
or
evidence).
emphasis
undue
on certain
jury.
8, 2004,
September
On
supreme
our
acknowledge
We
Indiana Code
granted
and, thus,
court
transfer
Ham
9-30-6-8(b) does permit
[Slection
a de-
has been vacated. Neverthe
fendant's refusal to submit to a chemical
less, we hold that an instruction which
test to be admitted into evidence. How-
informs the
that it
consider evi
ever,
apparent
it is
that such evidence is
dence that the defendant refused to submit
probative only
explain
jury why
to a chemical breath test as evidence of
there were no chemical test results. We
intoxication
improper. Regardless
again emphasize that the defendant's re-
whether it is
guilt
reasonable to infer
or
fusal to submit to the test is
simply
intoxication from a defendant's refusal to
probative
intoxication,
guilt
test,
submit to a chemical breath
in
we fail to see
nexus
between
de-
unnecessarily
struction
emphasizes one
right
fendant's
to refuse a chemical test
particular
fact,
evidentiary
namely,
for intoxication and the fact
that he
Schmidt's refusal
to submit to a breath
might
inbe
such a condition. Put an-
Dill,
("[A]l-
test. See
has held that
registra-
license and
asked for Schmidt's
solely
be based
that
conviction
"[a]
initially provided the officer
tion. Schmidt
testimony of the al-
uncorroborated
license and his insurance
with his driver's
testimony
establishes
leged victim such
Pitman,
again,
asked
card.
Officer
beyond
erime
a rea-
each element
pro-
registration,
for his
which he
Schmidt
State,
Ludy v.
784 N.E.2d
doubt."
sonable
strong
Pitman smelled a
vided. Officer
(Ind.2003).
to the deci-
Similar
beverage
an aleoholic
from inside
odor of
Dill,
Ludy
the court in
concluded
sion
that
the vehicle. He also observed
improper
that
instruction was
eyes were red and bloodshot.
at-
unfairly
jury's
it
focused the
because
Next,
the officer informed Schmidt
evidence and was
particular
tention on
and asked if he had
he smelled alcohol
jury.
See
misleading
confusing
and
drinking.
told Officer Pit-
been
Schmidt
in this
at 461. The instruction
issue
id.
drinking,
that he had been
but he
man
Thus,
from the same defects.
case suffers
stopped drinking
that he had
claimed
that the trial court
agree
we
with Schmidt
pm.
night
11:00
before.
around
gave
Instruction No. 9.
erred when
administered,
Thereafter,
Pitman
Officer
Still,
or re
giving
errors
failed,
two field
and Schmidt
a
are harmless where
fusing of instructions
particular,
performing
In
while
tests.
clearly
by the evi
conviction is
sustained
test,
stopped after
walk-and-turn
Schmidt
jury
properly
dence and the
could
steps,
for nine
he walked heel-to-toe
Dill,
videotape performing of Schmidt the field 6) Counsel pre- the Defendant has sobriety tests and corroborated Officer page sented the State with one from the testimony Pitman's that Schmidt had failed Defendant's indicating medical record both tests. had, that he at some point, prob- an ear
In light of lem. driving, Schmidt's erratic Counsel for the Defendant has admission that he had consumed alcohol in informed the State that he does not past, the recent intend treating physician failure of two field to call the who diagnosed tests, the condition. The State be- and Officer Pitman's obser lieves that the scene, Defendant's medical con- at vations we are confident a reasonable would have dition will lack proper rendered a foundation and guilty verdict relevancy even the trial court to be had admitted into evidence. given erroneous instruction. Therefore, See requests the State Stoltmann, Court order that there be no mention of 793 N.E.2d at (concluding improper instruction was harmless supposed problem error defendant's ear where defendant until admitted to officer that such is entered into Al- evidence. intoxicated). she had been driving lowing and was it to be addressed beforehand And that, Indiana Trial Rule 61 provides prejudice would result undue every stage proceeding, State. the court disregard any must error or defect in the Appellant's App. at 23. The trial court proceeding which does not affect the sub granted the request State's regarding rights Therefore, stantial of the parties. paragraph granted two and the request while the trial court gave erred when it regarding paragraph six "as to medical Instruction No. that error did not affect diagnosis." Id. rights substantial and was trial, On the day during first a bench harmless. conference regarding paragraph two Issue Two: Exclusion motion, State's following transpired: Expert Testimony [paragraph] [State]: All seeking is trial,
Prior to the State filed a motion in prevent do is MeCoy testify- from limine, provided which relevant ing as to what the Defendant or follows: may not have him told outside of court opinion to form an as to what his BAC
2) The Defendant has indicated that he level If those was. facts come be- going is to call Dr. as a witness testifies, fore Dr. McCoy then the in this case. Dr. should be State any problem doesn't have barred from testifying about the level of that. intoxication of the Defendant any or
hypotheticals unless and until Well, Judge, Dr. McCoy [Defense]: is facts are evidence that would allow entitled gain information from a him opinion to form an as to such. Dr. Defendant. He's entitled for a Defen- McCoy should be barred from testifying dant say, hey, my this weight, as to the amount of alcohol my the Defen- this height, other source consumed, dant had when he consumed and render an on that. *10 say have to He doesn't even it is." opinion based that not an Is The Court: facts unless State underlying facts not evidence? on cross-exami- get [it] wants to into reason- Well, long as it's [Defense]: interesting. nation, I which think in the by experts ably relied Well, I 703 cov- don't think The Court: A Defen- field, goes to 703. and that relying on facts expert tell Dr. witness testify and can ers an cannot dant if the eriminal and "Look, ..." from a 1 drank McCoy, defendant going to tes- criminal defendant is ex- cover other Doesn't 708 The Court: that's to have tify, I don't think testimony? fair perts' testify on expert an really behalf of may testify-708- Experts [Defense]: weighs, he as to the Defendant opinions based what may testify experts drank, ate, whether he what he what Now, I evidence. on inadmissible unless hearing problem{[,] he has ahead of I'm a little bit guess getting going I'm are in evidence. those facts videotape shows myself because I it's a 2. think grant paragraph Defendant, asked the officer that the and I don't think objection defendant, much have "Hey, how testimony to cover is intended you did When you drink[?] had to cover I think it's intended party. going to be drinking?" And it's stop reports by or other expert witnesses height that I know don't apparent, rely on. may experts expert an other much of an to be weight going are and if Dr. had access example, For to the Defen- regard here with issue records Defendant's medical that be I don't know how dant. could records, he the medical and reviewed know, the De- Hey, you inadmissible. that's, wheth- rely on those. But may tall, pounds. is six feet fendant not he did that- er or Honor, going if that's Your [State]: added). (emphasis at 16-18 Transeript then, videotape through come had it further clarified The court what's ad- That's not that's fine. mo- the State's six of granted paragraph 2. ad- paragraph What's dressed diagnosis [Schmidt] medical tion "as to not Dr. is whether or dressed Id. at a doctor." received from may have Honor, I would testify to it. Your can ' to[,] explanation in the point the Court Evidence, it specifical- trial, the Rules of called Schmidt during Later admission Rule 703 authorizes ly says and wanted expert as an witness Bennett evidence on inadmissible one-page of otherwise an based on give him to has relied. testifying expert which a record, which medical . established evidence otherwise inadmissible deaf- from unilateral has suffered Schmidt evaluating only objected, be considered vertigo. The State ness and not as sub- expert's opinion objection. trial court sustained try- I think that's evidence. coun- stantive proof, During his offer evidence as in substantive ing get have tes- Bennett would explained sel drank, he drank much he to how not have Pitman should that Officer tified was, what level it, kind of wine while what tests the field administered was in the wine. of aleohol conditions. from those suffered that Bennett further Well, an ex- He stated says 705 even [Defense]: hearing loss that Schmidt's say, testified stand and get can pert problems explain the balance vertigo could what opinion. Here's "Hey, I have *11 performing he had the field while Honor, Your using [State]: he's an offer prove to try hearsay to to-it's evi- tests. dence. then made a similar counsel proof regarding McCoy. offer of Dr. Spe- cifically, proffered two exhibits as And I [Defense]: would also mark De- proof, namely, of his offer of Dr. fendant's Exhibit ...C as an offer to McCoy's curriculum vitae and Schmidt's prove as a upon medical record relied one-page point- medical record. The State the, it would have upon been relied previous ed out that the trial court's ruling by Dr. McCoy to establish that Chris prevent its motion limine did not Dr. get did treatment for or diag- was testifying entirely. from Thereaf- nosed hearing with a substantial loss
ter, following transpired: this, vertigo, and that he still had There's no use to call him
[Defense]: suffering still from the effects of this testify if testify he can't as to the area during the incident. And that would in question. The order in spe- limine be explanation admissible show an cifically says that testify- he can't for balance issues.... And Chris is let's see here-number 2. We have making a choice to right] exercise [his number and number 6. Number 2 testify not to and he's forced to choose deals with the level of intoxication. evidence, presenting between right his Now, unless and until facts present evidence and have a fair are evidence to him allow to form trial right testify. and his not to Well, an opinion. an expert such as The Court: So this prove offer to Dr. McCoy if called say would it's based on evidence that you feel Dr. reasonably upon relied in his area of testify would to but he was not expertise, I proffer and would Defen- called as a witness because of the dant's B . Exhibit show Court's ruling on the in Li- Motion McCoy's expertise, that he listens to a mine prevent testimony. Is Defendant, but most of the time the right? Defendant doesn't gives and correct.... [Defense]: That's upon [an] based what the De- The Court: considering After the offers fendant tells him weight, about his prove, the Court does not wish to height, what time drinking, he started change previous its rulings. If there p.m. completed 6:00 p.m. at 11:00 simply some evidence that the De- incident, before this night present, fendant wishes to the Defen- BAC, based on that the actual dant will testify, have to but the De- anywhere BAC would be [between] fendant can't get through other 00 to .04. And that would be- testifying. evidence[ ] avoid It's depending [State]: About on how much just way that's the the rule is. Do he had to drink. you witnesses, additional counsel], you [defense or have com- Well, yeah, he [Defense]: would know pleted? because the Defendant would tell him Transeript at 300-02. something and it's under 703 would be appropriate type because it's the appeal, On Schmidt maintains that the reasonably evidence that's relied trial court abused its discretion when it by experts, by experts in his field. expert testimony exeluded the of both Dr. explained Miller has Judge Robert Evi- under Indiana Bennett McCoy and *12 as follows: rule relevant he asserts Specifically, Rule 708. dence allowed McCoy have been testimony Dr. should opinion that requires Rule 701 lev- regarding give opinion personal per- an on the witness's be based expert witnesses because intoxication that re- el of Rule 703 eliminates ception. testimony on information may offering expert base their for witnesses quirement by the upon experts reasonably relied of Rule meaning the testimony within further that argues He question. expert field an witness 702. Rule 703 allows MeCoy's (i) Dr. ruling on trial court's perceived on facts opinion to base an between him to choose testimony forced (H) witness, facts made known to by the right silent and his right to remain hearing in which the witness at the (ii) claims that He also offered, or, a defense. lim- present within testimony is Bennett should McCoy Dr. and both its, to the or data made known facts about wheth- give opinions allowed to rule hearing. been expert before administered should have the officer among er these preference establishes no on on Schmidt based sobriety tests methods, may, consistent expert and an one-page in the contained information rely on a combination with Rule medical record. the methods. Minusr, Jr, INDIANA 13 Romert Lowen accorded discretion A trial court is EvipEncE Inpiana Practice, 708.101, § admissibility relevancy and ruling omitted). (2d ed.1995) (footnotes 411-12 testimony. Carnahan expert based on facts or data Regarding opinions (Ind.Ct.App.1997). hear- expert to the before the made known a trial court's decision not reverse
We will writes: ing, Judge Miller discretion, is, an abuse of absent 1960s, the common law limited clearly against Until the decision where which was based opinion to that expert and cireum- of the facts logic and effect knowledge hypothetical or personal it. Id. stances before expert opimion and excluded question, A. Dr. upon based testimony that was informa- This parties. received third tion presented question The first from with the rule is consistent traditional pro trial court erred when whether admission of ex- theory underlying the giving opinion an from hibited of fact finds testimony: if the trier pert from he had received on information based expert witness as the the facts be had to trial when Schmidt prior be, expert them to or assumes testifies into those facts placed not testified may those facts assist based on opinion Rule of Evidence Indiana evidence. jury that never of fact. A the trier provides: opin- supporting the facts learns of case particular in the The facts or data way to determine have no ion will an expert bases upon which to be true are facts it finds whether the by may perceived be those inference expert and hence by the presumed those at or be- expert or made known expert's to evaluate will be unable may testify Experts hearing. fore the opinion. evi- on inadmissible opinions based affairs, howev- regular In the conduct type dence, it is of provided expert in the by experts er, who reasonably many persons relied upon infor- customarily rely witnesses field. testifying facts, mation received from others. For ex- first underlying unless ample, seeking otherwise, one treatment from a requires court provides ex physician hardly demand pert required nevertheless be to dis physician exclude from consideration ra- close underlying facts on cross-examinati diologists' reports concerning X-rays, on).2 past hospital records of admissions Again, Schmidt McCoy's asserts that Dr. physicians, treatment other or nurs- opinions are admissible under the rule be *13 reports concerning es' pressure blood expert cause his testimony would have Instead, and vital physi- statistics. the been based on inadmissible facts that are cian expected to assimilate and evalu- "of type reasonably the relied upon by every ate available source of information experts in the field." See Evid. R. 703.3 arriving diagnosis in at a prescription or In ruling its initial in State's motion for treatment. limine, the trial court determined that recognition reality of this of life be- by statements a defendant did not fall yond pale evidence, the of the law of purview within the of types the of informa
Rule 708 allows am expert witness to tion or contemplated by data Rule 708. an opimion base on re- imformation agree. Again, We Judge we find Miller's trial, ceived others from before if commentary instructive: a sort that other ex- information perts in the reasonably [rely] upon. [Ejarlier cases, Indiana and other courts governed by generally Rule (footnotes 708.106, omitted, § Id. at 422-28 found the following sorts of information added). emphases Thus, under some cir- to be reasonably upon by relied experts cumstances, Rule an expert 708 allows wit- records, hospital various fields: labo- testify ness to opinions to based on facts ratory reports, X-rays, and doctors' jury. 708.109, § not before the See id. at ("While medical records by relied on medical 484-35 Rule expert 708 allows an professionals; testify reports by to opinions to subordinates based material not upon by relied jury, expressly superiors; before the it does not pro- discussions by experts field; vide a vehicle which with other expert's can learn of the underlying hospital material and mental reports by so decide records clini- weight how much or psychologists workers, little to afford the cal and social police (allows reports relied upon by psychia- opinion"); Ind. Evid. Rule 705 ex- pert opinion witness to without trists or psychologists; forensic a report limine, McCoy's opinion intended to elicit regard- Dr. In its sought motion in the State ing McCoy, part, bar answering any Dr. from through hypotheti- his level of intoxication hypothetical questions unless and until the questions, agree cal we with the State that the underlying questions facts those were in evi- hypothetical facts included questions in the expert dence. express An witness would have had to have been admitted into opinion regarding hypothetical question a evidence. following prerequisites foundational are (1) expert's ability give satisfied: such 3. Schmidt'sstatements to Dr. are in through an must be established testi- hearsay admissible because such statements mony showing requisite he has the knowl- are not statements under by party-opponent skill, education, edge, experience on which 801(d)(2). Specifical Indiana Evidence Rule (2) opinion; to base the there must be a ly, the against statements were not offered proper evidentiary supporting foundation Rather, sought Schmidt. to offer hypothetical facts that are included in the statements he had made to Dr. question. Johnson v. through McCoy's testimony. Thus, (Ind.Ct.App.1998). had Schmidt testimony" at "foundational defendant's upon by firm relied engineering an
from
testimony
trial,
witness's
expert
relied
autopsy report
an
engineer;
an
records
business
defen-
pathologist;
[the
as a conduit
upon by
"would serve
the State
affording
'story'
the business
without
expert
dant's]
relied
veracity
relied
records
field;
agency
challenge
opportunity
and state
officer.
story by
a law enforcement
cross-exam-
upon by
accuracy of that
defendant]."
therefore
Id. We
ining [the
reluc-
considerable
have shown
Courts
pre-
the trial court's decision
on in-
affirmed
reliance
reasonable
tance to find
regarding the
testimony
by persons
expert
prepared
clude
formation
lay witness
the de-
training, such as
received from
he had
specialized
information
had testified.
until the defendant
state-
statements,
anonymous
reports,
fendant
prepared
and data
by party,
ments
trial
defendant's criminal
Although the
litigation.
anticipation
our Rules
occurred before
in Weaver
Miuusr, Jr,
INDIANA
*14
Lowsint
13 RosErtr
effect,
in
the decision
into
Evidence went
Inpian&a
708.107,
Practics,
§
types of
with the
is consistent
that case
omitted,
add-
(footnotes
emphases
427-30
have found to
generally
courts
information
allowing an
ed).
rule
Additionally, "the
experts in
upon by
reasonably relied
be
hearsay
be em-
cannot
reliance on
expert's
708. See 18
under Rule
various fields
...
placing
a conduit for
simply as
ployed
INnDpIana
Minug®,JR.,
Prac-
Lowent
Rosert
before
statement
person's
another
Inpiana
TicE,
708.107,
§
429-30
Evinencr
708.109,
§
487.
jury." Id. at
to find
reluctant
(stating courts have been
an evi-
Indeed,
court has addressed
this
in-
Rule 708 on
reliance under
reasonable
the issue that
similar to
dentiary dispute
by persons
prepared
formation
Specifically,
here.
raises
Schmidt
by
as statements
training, such
specialized
627 N.E.2d
Weaver
(footnotes omitted, emphases add-
party)
a
in rel
summarily
(Ind.Ct.App.1994),
aff'd
Weaver,
ed).
McCoy's opinion
Dr.
inAs
on other
part
and vacated
evant
of intoxication
level
regarding Schmidt's
(Ind.1994), we
pert opinion testimony not opinions con- expert witness, an for the truth of the tained prepared documents out of they matters contain if the materials by court medical doctors. [Evidence are otherwise Here, inadmissible. Rule] 708 allows a the testifying expert to rely materials, on materials were including otherwise inadmissible inadmissible hearsay, in forming Dr. opin- Sprinkle, the basis of his a doctor of chiro- because practic, Moreover, does not have the same edu- ion. this court has held that an expert may opinion cation, his based in training experience or as the offer (1) part upon hearsay, provided physicians the ex- who prepared reports. the suggests 4. Schmidt McCoy that Dr. could opinion. based his exan’iple, For if Schmidt opinion also based his regarding made videotape statements on regarding the Schmidt's level of intoxication on the state- how much he had had to drink and when he ments Schmidt made to Officer Pitman stopped drinking, dur- had he could have called ing stop, the traffic which the physician heard his or testify some other witness to played when the videotape State the regarding height his weight. current and stop. But the State evidence, conceded at trial that it With those McCoy facts in Dr. could objection would McCoy's have no opin- to Dr. opinion, have based his hypo- or answered testimony ion all of the relevant questions, information thetical already on facts in evi- on which he opinion would base his was circumstances, light dence. In of those we through admitted into evidence videotape. the disagree with Schmidt's assertion that the tri- Schmidt did not choose McCoy to call Dr. ruling and al court's him to choose between forced give opinion have him only an based on that right his constitutional to remain silent and appeared information which videotape. in the right present short, to a defense. attempt Nor did Schmidt to call some other testimony only not way for might witness who have been able to him to submit into evidence the facts on regarding McCoy the facts on which Dr. which Dr. opinion. based his has the same McCoy nor Bennett ther Dr. on expert's reliance an allow cannot We as the education, expertise or training, for a conduit employed as hearsay to be one-page med prepared who physician be- statements physicians' placing Yet, of wanted both must witness ical record. expert jury. fore the the medical give opinions them reaching expertise his own rely on one-page medi in the diagnoses contained repeat simply may not and opinion ability perform affected his cal record others. of opinions doing, In so both sobriety tests. concluded Furthermore, court has this preface their have had witnesses generally are chiropractors that Schmidt some statement opinions with in cases experts as to serve qualified unilat past in the diagnosed had been not have They do involving physicians. precise which is vertigo, and deafness eral education, training experi- the same chiropractor determined ly what we neces- generally are ence, all of which do, "testify namely, could not Faulkner to a of benefit an sary to render made statements out-of-court regarding jury. Faulkner, reports." in medical physicians omitted). (citations and footnote Id. at 801 Indeed, our following at 800. has noted: Judge Miller And as Faulkner, diagnoses con reasoning rule, Rule law common Like Indiana's re medical record one-page in the tained assumption on 703 is based of unilateral garding Schmidt's history capable experts are truly qualified "otherwise vertigo constitute deafness normal- sort evaluating information we cannot allow hearsay," and inadmissible in their field. by others on ly relied "reliance McCoy's and Bennett's ample provide seem Rule 702 would a conduit hearsay employed to be ex- between an distinguish discretion be statements [physician's] placing reports to evaluate qualified pert Put another at 801. jury." fore expert others and opinions Foullkner, if Dr. way, as in *16 based testimony would assist whose if testify based allowed to had been Bennett calculations, own observations on his record, neither one-page medical knowledge specialized the but who lacks being cross-examined capable to evaluate required from information in contained diagnoses the medical respect others. record, and Schmidt one-page MimuB®R,Jr., INDIANA RomErt Lowernt 13 medical place his permitted to have been Inptana Evinencr, Practices, 708.108, § having his without history into evidence (footnotes omitted, add- emphasis 438-34 cross-examination. challenged on diagnoses ed). did not trial court conclude We opin it excluded when its discretion abuse Bennett
Here, McCoy Dr. nor neither regarding witnesses Ph.D., those ions from McCoy Dr. has a medical doctor. and whether diagnoses medical in minor toxicology and a major in awith affected conditions medical diagnosed in his expert is an and Bennett pharmacology, sobriety tests.5 on field words, performance his nei In other sobriety tests. field supported the rec- sobriety is not tests[ ]" ruling on in suggestion that dissent's 5. The on During pre-trial conference ord. limine, court the trial in State's motion limine, had trial court rely could motion in Dr. State's "indicated evidentiary re- issues distinct it two opin- before forming own in record that medical (1) testimony: McCoy's whether garding Dr. effect, any condition that ear as to what ion testify facts based McCoy could failure upon Schmidt's Pr. would have 942 Admissibility
Issue Three:
State,
In
970,
Ackerman v.
774 N.E.2d
of Schmidt's Refusal
(Ind.Ct.App.2002),
denied,
trans.
we
police
held that
required
are not
to advise
Schmidt contends that
the trial
a person in custody
that he
consult
court abused its discretion
when
admit
with an attorney before administering field
ted evidence that Schmidt had refused to
and, thus,
sobriety tests
submit to a chemical breath
Specifi
test.
governed by
tests are not
Pirtle:
In that
cally, he asserts that because he
inwas
case,
explained
we
relevant
as fol
custody when Officer Pitman asked him to lows:
consent to a breath
the officer was
test,
Pirtle,
police already suspected Pir-
required to advise him of
right
tle's involvement
they
a murder when
State,
consult with counsel under Pirtle v.
arrested him on an
charge,
unrelated
16,
(1975),
Ind.
"Pirtle and Sims stand for Pirtle's proposi- apartment, that, police found inculpatory tion Constitution, under the Indiana evidence that led to his arrest person 'a and con- custody must be informed of viction for murder. right to consult with counsel about the possibility consenting to a search before The Pirtle court noted that the "decision > 3 given. to consent to an unlimited search is a valid consent can be Torres v. (Ind.1996). Ev- vital stage the prosecutorial process." idence obtained violation of the Pirtle The Pirtle court also noted many doctrine is not at admissible trial. See protections id. right against one's unrea- (holding evidence seized following invalid sonable searches and seizures that are consent to search was improperly admitted waived when one consents to a search trial). requiring probable causel[.] trial; (2) six, Schmidt had told him before paragraph stated, simply and the court whether could regarding granted "Six as to diagnosis medical he *17 diagnoses medical one-page contained in a may have received from a doctor." Id. at 19. medical record. Those two issues were con- contention, Contrary to the dissent's when six, paragraphs tained in respective- two and ruling specific on the issue of whether Dr. ly, of the already State's motion. As we have McCoy testify could diagnoses, about medical noted, two, ie., ruling in paragraph on gave the trial court never impres- McCoy whether Dr. testify could based on sion McCoy that "had Dr. been called to testi- Schmidt, statements made the trial court fy permitted he would have been concluded that Rule 703 was not intended to respect to an based Dr. testimony "cover party." of a Transcript at report, Pascuzzi's if in turn a founda- 18. The court example, then stated: "For tion had been established for admission of Dr. had access to the Defendant's (Footnote report." omitted). Therefore, that medical records and reviewed the medical agree we cannot with the dissent's ultimate records, may rely he on those." Id. But the conclusion that "the exclusionary trial court's clearly court qualification made that ruling as to beyond was extended ruling paragraph on two of the State's mo- what the actually trial court had said in its
tion, Indeed, paragraph six. there was no ruling upon the State's Motion in Limine." regarding discussion ruling the court's field Id. at 981. While
the Pirtle court." suspect's general sobriety tests reveal concerns, we court's the Pirile Given impairment, chemical breath degree of Pirtle of the purpose that conclude has suspect only reveal whether tests in person no is to ensure doctrine Thus, chemical system. in his alcohol search an unlimited custody consents scope in are narrower tests breath of the con- informed fully unless she sobriety tests. than field specific more waiving. The rights she stitutional tests are more inva- although breath And by the is served the doctrine purpose tests, tests, sobriety breath than field sive custody be person that a requirement tests, little time to sobriety take like field may consult with that she advised differ- only significant administer. consenting to the unlim- attorney before sobriety tests between ence ited search. sobriety unlike field tests is that breath opin- only four Indiana that the noteWe tests, require probable cause tests breath court has supreme in which our ions agree with the But we to administer. have all ad- doctrine the Pirtle applied court's concerns with State the Pirfle of either dwell- searches police dressed consenting unlimited to an suspect way, Put another ings or automobiles. require proba- otherwise search Pir- only applied court has supreme our not an issue here. ble cause are consent, where, suspect's without the tle general, was a question Pirtle, the search the court 323 N.E.2d at only have and would unlimited search stated: probable cause. reasonable with
been only upon issue A search warrant application whether now determine We by an supported affidavit probable cause instant case the Pirtle doctrine describing place particularly doctrine. of the purpose serves Only a neutral to be searched. property qualitatively sobriety are tests] [Field It may issue the warrant. magistrate unlimited general, from the different to al- enough information must include the Pirtle court. that concerned searches to determine magistrate himself low the are non-invasive sobriety tests] [Field cause for a probable there is whether administer, More little time to and take must be based The information search. view, [field our importantly, knowledge personal officer's un- scope and are a reliable inform- are narrow tip from tests] on a credible any incriminating evi- likely to reveal to a search who consents person er. A impairment. Because other than dence sub- protections and up all these gives required to admin- cause is not probable search without general to a jects himself tests], con- the constitutional cause. [such ister probable court sim- by the Pirile expressed cerns added). (Citations omitted, Un- emphasis conclude not relevant. We ply are Statute, a Consent Implied Indiana's der purpose it would not serve probable has officer who law enforcement *18 to apply it to to extend Pirtle doctrine commit- person a has to believe that cause sobriety testing. driving offenses applicable of the ted one (citations omit- and footnote at 980-82 opportunity the person offer the shall Ackerman). ted, original emphasis Ind.Code a chemical test. See submit tests, 9-30-6-2(a). an officer Accordingly, chemical breath Like field § suspect, to a a breath test cannot offer from the "qualitatively different tests are or refuse the consent to suspect cannot that concerned unlimited searches general, 944
test,
the officer has
In
probable
reviewing
properly
until
a
pre
after
misconduct,
prosecutorial
that a
served claim of
cause to believe
crime has occurred.
(1)
we determine
prosecutor
whether the
Therefore,
Pirtle,
suspect
unlike the
(2)
misconduct,
to a
suspect who is asked to submit
engaged
so,
chemi-
and if
misconduct,
whether the
under all of the
subject
cal breath test does not
himself to
circumstances, placed the defendant
in a
general
probable
search without
cause.
position
grave peril
to which he would
Ackerman,
sum,
In
we
conclude
subjected.
not have been
v.
Coleman
purpose
of the Pirile doctrine
(Ind.2001).
State,
370,
750 N.E.2d
374
by extending
would not be served
gravity
peril
turns on
probable
apply
doctrine to
to chemical breath test-
persuasive effect of the misconduct on the
Thus,
ing.
Pitman was
Officer
not re-
decision,
jury's
not on
degree
impro
quired
right
to advise Schmidt of his
State,
priety of the conduct. Ellison v.
717
him
counsel before he asked
to submit to a
211,
N.E.2d
213 (Ind.Ct.App.1999), trans.
test,
chemical breath
and the trial court
prosecutorial
denied. For
misconduct to
did not abuse its discretion when it admit-
error,
constitute fundamental
"
it must
ted evidence of Schmidt's refusal at trial.
a fair
impossible
'make
trial
or constitute
Issue Four: Prosecutorial Misconduct
clearly blatant violations of basic and ele
mentary principles
process
of due
[and]
prosecu
Schmidt asserts that the
present an
po
undeniable and substantial
committed misconduct during closing
tor
Booher,
tential for harm.""
773 N.E.2d at
argument.
particular, as he summa
State,
(quoting
817
Benson v.
762 N.E.2d
rized Officer Pitman's observations of
(Ind.2002)).
748, 756
driving
morning
ques
tion,
commented,
prosecutor
"That's
It is misconduct
prosecu
for a
testimony you
the sole
have as to his driv
request
tor to
to convict a defen
ing
Transeript
behavior."
dant for
reason other than
guilt.
that that
claims
statement was an
State,
23,
(Ind.
Wisehart v.
693 N.E.2d
59
improper reference to his Fifth Amend
1998), cert. denied. And although direct
right
ment
to remain silent and warrants
and indirect
inferences from the defen
reversal of his conviction.
cannot
We
dant's failure to
necessarily
are not
agree.
improper, a
privilege against
defendant's
compulsory self-inerimination is violated
supreme
Our
court has held "that an
prosecutor
when a
makes a statement that
appellate
prosecutorial
claim of
misconduct
jury may reasonably interpret
as an
presented
appeal
in the absence of con
invitation
draw an adverse inference
temporaneous
objection
trial
will not suc
from a
Ben-Yisrayl
defendant's silence.
ceed unless the defendant establishes not
State,
1141,
(Ind.1997),
v.
1149
only
grounds
prosecutorial
for
miseon-
cert. denied. The defendant bears the
duct but also the additional grounds for
proving
burden of
that a remark
State,
fundamental
error." Booher v.
773
prosecutor penalized his exercise of the
(Ind.2002).
814,
Here,
N.E.2d
right
to remain silent. Moore v.
object
Schmidt failed to
alleged
733,
(Ind.1996)
N.E.2d
(citing Griffin
misconduct at trial. Accordingly, he must
California,
380 U.S.
85 S.Ct.
meet the difficult
proving
burden of
(1965)).
945
implicates
alleged
that an
error
mere fact
evi
of the State's
nature
uncontradicted
does not establish
Fifth
issues
constitutional
a defendant's
do not violate
dence
occurred. Wilson
error has
State,
fundamental
v.
Martinez
rights.
Amendment
(Ind.1987).
(Ind.1990).
282,
State,
1026,
It
284
1028
v.
514 N.E.2d
549 N.E.2d
State,
the
to comment on
762 N.E.2d
In Benson v.
for the State
long
(Ind.2002),
as
emphasized
"as
court
supreme
the defense
our
of evidence
lack
any
of
the absence
"extremely
applicability
focuses on
narrow"
State
the
the
the State's evidence
to contradict
fundamental error doctrine:
evidence
to testi
failure
on the defendant's
and not
error, an er-
fundamental
qualify
To
as
made no
Here,
prosecutor
the
fy,"
rights
prejudicial
ror must be so
reference to Schmidt's
indirect
direct or
make a fair trial
of the defendant as
Rather, his state
testify.
decision
error,
To
fundamental
be
impossible.
testimony regarding
the officer's
ment that
must constitute a blatant viola-
the error
the "sole
driving
was
behavior
Schmidt's
the harm or
basic principles,
tion of
on the
is a comment
testimony" presented
substantial,
for harm must be
potential
contradictory
present
evidence
of
lack
deny
must
resulting error
and the
words,
other
by the defense.
ed
process.
fundamental due
defendant
that a
is not one
statement
prosecutor's
omitted);
(Citations
see
quotations
invita
interpret as an
may reasonably
State,
457, 461
704 N.E.2d
also Ford
from a
inference
an adverse
tion to draw
(Ind.1998)
court
funda-
(stating that
views
Ben-Yisrayl, 690
See
defendant's silence.
rule as
exception to waiver
mental error
Thus,
cannot
Schmidt
N.E.2d at
narrow,
only
ree-
extremely
available
that the
proving
of
meet his initial burden
of
clearly
violations
reveals
blatant
ord
improper.
was
comment
prosecutor
elementary
and harm
principles
basic
remark
prosecutor's
denied).
if the
Even
cannot be
Un-
harm
potential
cannot show
improper, Schmidt
were
cireumstances, this case does
der all of
misconduct,
circum
all
"extremely narrow" fun-
under
not fall within
First,
stances,
grave peril.
him in
placed
because the
exception
error
damental
constituted
isolated and
comment was
clos-
during
comment
isolated
prosecutor's
argument.
closing
of the entire
only
one
a clear
not constitute
argument does
ing
ennycuff v.
Cf.
process.
due
violation of
and blatant
P
fun
(holding no
(Ind.Ct.App.2000)
improper,
remark were
Again, even
repeated
despite
occurred
damental error
any alleged misconduct
we conclude
si
post-Miranda
to defendant's
references
grave peril,
place
did not
Schmidt
trial),
other
rev'd on
throughout
lence
fair trial
make a
as to
not so blatant
(Ind.2001). And
such,
and,
did not constitute
sive
Ellison, 717
charged.
See
guilty
him
argument on
final
peril
turns
(gravity
N.E.2d
abused its
trial court
is that
appeal
of misconduct
effect
probable persuasive
to ask
the State
when it allowed
discretion
decision,
degree
impro
not on
jury's
certain statistics
about
questions
Bennett
conduct).
priety
published
test
regarding field
Again, the admission
manual.
an NTHSA
cannot demonstrate
Finally, Schmidt
is a determination
of evidence
or exclusion
occurred.
fundamental
error
*20
entrusted to the discretion of the trial
trier of fact with a
misleading
false or
Faulkner,
impression of the facts related.
court.
v.
During direct following tained within the opened NTHSA manual colloquy occurred: the door questions to the State's about the Q: training you What had with percentages actual published in the manu regard to NTHSA as to whether or Thus, al. we conclude that the trial court portions not certain popula- did not abuse its discretion admit tion pass would be able to the one- ted that testimony. legged stand when sober? It's in each my one of manuals. CONCLUSION
What training regard Although the trial court erred when it that? instructed the that it could consider That 35 percent persons of sober Schmidt's refusal to submit to a chemical probably pass that test. breath intoxication, test as evidence of we Okay. And with regard to the-and that that error was harmless. conclude leg that's the one stand? We further conclude that the Pirtle doe- stand, That leg yes, is the one siv. trine does not apply to chemical breath regard And with to the walk and tests. prosecutor's during statement turn? closing argument was not improper, and A: Thirty-two percent. the trial court did not abuse its discretion regarding any of the evidentiary rulings at Transeript eross-examination, 261. On issue on appeal. the State clarified that the NHSTA manu- al Bennett referenced direct did not Affirmed. actually report the figures. 35% 32% BARNES, J., separate concurs with Instead, the manual reported percent- opinion. ages people who are intoxicated who fail SULLIVAN, J., dissents with separate tests. The State then opinion. sought to clarify further that the manual
did not use the terms "sober" or "intoxi- BARNES, Judge, concurring. cated," stated, but rather example, 65% of people who fail the one-leg stand I coneur in majority full, opinion in will have a blood aleohol content of .10 or and write to acknowledge that I voted to objected more. Schmidt to the State's concur the Luckhart decision and its question, and the trial court overruled the approval of an instruction similar to the objection as follows: "I think it's disapproved one inof this case. At the cross-examination based on his previous issued, time Luckhart our supreme testimony[.]" at 289. yet court had not Ludy. decided Whatever
A party may "open the door" to sequence, I am convinced that Dill and otherwise inadmissible by pre Ludy evidence compel the result reached here and senting similar evidence that my leaves the vote in Luekhart would not be the *21 and the medical medical records reviewed majority logic of the today, given same records, Tr. at 18. may rely he on those." of the effect the combined opinion and Thus, although granted the trial court and Dill decisions. Ludy "any di- motion to exclude medical
State's
SULLIVAN,
dissenting.
Judge,
from
may have received
agnosis [Schmidt]
doctor,"
indicated
Tr. at
the court
a
respect
I concur with
Although
medi-
rely upon
could
McCoy
that Dr.
of Issues
treatment
majority opinion's
opinion
as to
forming
cal record in
own
Four,
Five,
respectfully
I
One, Three,
and
effect,
condition
any,
if
that ear
what
to Issue Two
respect
dissent with
of the
Schmidt's failure
upon
would have
and remand
judgment
reverse
would
sobriety tests.
a
trial.
for new
that had Dr.
From this I would conclude
McCoy's prof
Dr.
admissibility of
testify
to
he would
McCoy been called
ear con
to
an
testimony as whether
fered
respect
permitted to
with
have been
have ex
by Schmidt would
dition suffered
upon Dr. Pascuzzi's
opinion
to an
based
sobriety
failure of the
plained
a
foundation had
report,
if
turn
upon
dependent
not
tests was
balance
rep
admission of that
been established
have told
may may
not
Schmidt
what
conclusion, however, would
That
ort.7
depen
not
McCoy.
It was therefore
Dr.
trial
misplaced in that
appear to be
himself testi
upon whether
dent
during the actual trial seemed
court later
Rather,
in this
McCoy opinion
a
fied.
exclusionary ruling as to Dr.
to make its
have been
might appropriately
regard
McCoy absolute.
C, a
Exhibit
upon Defendant's
premised
that,
establishing
as of De
medical record
include Dr.
Although the defense did
history
"a
Schmidt had
cember
prove
what
report
its offer
Pascuzzi's
vertigo,"
unilateral deafness
acute
been,
testimony would have
McCoy's
Dr.
any statement from Schmidt
rather than
McCoy
not called as a witness
Dr.
was
to his ear condition.6
as
following colloquy reflects
as the
because
Dr.
going
permit
trial court was
making
preliminary
actuality,
In
its
McCoy's testimony:
trial court stated
exclusionary ruling, the
prove
"THE
So this offer
COURT:
regard to
evidence with
opinion
you feel Dr.
is based on evidence
McCoy
Dr.
would be
opinion by
proffered
he was not
testify to but
McCoy
would
hearing problem was
only if a
permitted
of the
because
called as a witness
stated that
The court
fact
evidence.
in Limine
the Motion
ruling on
Defendant's
Court's
"had access to the
McCoy
Dr.
Indiana, Inc.,
(Ind.Ct.App.
likely, I an obligation but have to make a which I'm doing
record as to what he testify
relies on to he would do. He's supplied necessary
been the facts to ren-
der an and such.
THE considering COURT: After HOWARD, Jr., Appellant- Ronald C. prove, offers to the Court does not wish Defendant, to change previous rulings. its If there is simply some evidence that the Defen- present, dant wishes the defendant Indiana, Appellee-Plaintiff. STATE of testify, will have to but the Defendant get through can't other evidences and No. 29A05-0402-CR-101. testifying. just avoid way It's that's the Court of Appeals of Indiana. you the rule is. Do have additional witnesses, Cook, 28,Oct. 2004. Mr. you com- pleted? don't,
MR. Judge...." COOK: We
Tr. (emphasis at 802 supplied). view, my the trial exclusionary court's
ruling to Dr. McCoy was extended be-
yond what the trial actually court had said ruling upon its the State's Motion
Limine. The in-trial exclusionary ruling
clearly indicated that it would have been
futile for defense counsel to attempt lay
a foundation for admission of Dr. Paseuz- report
zi's to call Dr. as a
witness. My dissent does not include a conclusion however, plained, because Mr. Bennett was any opinion that exclusion of from Mr. Ben- only actually defense witness who was respect nett with to Schmidt's ear condition logical called to chronologi- it was Although would be cause for during reversal. cally prove to make the offer to in connection direct examination of possi- Mr. Bennett the Nevertheless, testimony. with his it is clear bility obliquely of an ear condition was men- position that the thrust of the defense's as to tioned, pursued it was not at the time. Sub- regard ear condition was with sequently, prove the offer to Exhibit C was McCoy's proffered opinion, not that of appeared regard made and to be made with Mr. Bennett. testimony. to Mr. Bennett's This can be ex-