Spaulding v. State

reasons, judg- the trial court’s For these SPAULDING, Appellant

ment affirmed. L. James (Defendant Below), NEAL, J., concurs. Indiana, Appellee STATE J., SULLIVAN, concurs result (Plaintiff Below). separate opinion. No. 47A01-8804-CR-111.

SULLIVAN, Judge, concurring in result. Indiana, Appeals Court of presented by Virginia I the issue First District. view erroneously the court Bickel to be Feb. military retirement failed to consider the asset. I do not be- benefits as a marital exclusively upon she focuses failure

lieve por- or a directly award those benefits thereof to her.

tion

Clearly, if the were includable benefits asset, re-

as a marital the court would be effecting

quired them in to consider court,

equitable property distribution. The

however, necessarily have to portion the benefits or a thereof

award might very well

directly to her. The court prop- equity by awarding her other

achieve

erty. event, any I do not subscribe to the majority generality

test stated as a whether not benefits military than retirement

other benefits pursuant

have become vested to IC 31—1—

11.5-2(d)(2) (Burns Repl.1987). Ed. Code (1988) Porter v. Porter 1st Dist. Ind. pending. trans.

App., Be Imay,

that as it concur in result because pension

appellant concedes that the bene- petition time the

fits were not vested at the (Appellant’s filed brief

for dissolution was 12) Virgi- and for the further reason that establishing

nia’s evidence is deficient pension benefits were vested

whether made, any, if contributions

or whether

might recovered. Defender, Carpenter, J. K. Public

Susan Defender, Sauer, In- Deputy Public Michael appellant. dianapolis, for Pearson, Gen., Atty. Wendy Linley E. Messer, Gen., Indianap- Deputy Atty. Stone olis, appellee.

ROBERTSON, Judge. Spaulding appeals his convic- L. James driving intoxi- counts of while tions of two felonies, death, resulting in Class C cated intoxicated while and one count D resulting bodily injury, a Class serious felony. part. part and reverse

We affirm I. argues is insuffi- the evidence re- support his convictions two

cient to intoxicated and to spects: to show he was the time the vehicle at show he was the evi- He maintains of the collision.1 intoxi- to show he was is insufficient dence to offer ob- the State failed cated because impaired condition evidence of his jective blood, tests of other than the results and produced inconsistent contends that his blood only the inference lead doubt, therefrom, beyond reasonable be found Upon this court review for sufficient Staggers v. infer- disturbed. and reasonable will not be looks to the evidence the verdict If the exist- favorable to the State. ences most may charged element of the crime ence of each milligrams alcohol content was at the time per below hour. .08% of the collision. blood alcohol level of the ideal 150 lb. man would decrease about after three 50% “Intoxicated” means under the influence inexperienced hours. An drinker would impaired of alcohol such that there is an such slowly. show a decline more thought condition of and action and the loss reiterate, of normal control of a faculties To contention is endanger any person. such an sample extent as to the earlier demonstrates he (1983 Supp.). absorbing IND.CODE 9-11-1-5 “Rele- was still alcohol three hours af- vant evidence of intoxication” includes evi- ter the collision and leads to the con- alleged dence that at the time of an viola- clusion that his actual blood alcohol content per- tion there was at least five-hundredths at the time of the collision was lower (0.05%), cent but less than ten-hundredths pointed than As we have .08%. out in (0.10%), percent by weight detail, of alcohol in the testimony hospital’s the pa- the (1985 thologist blood. I.C. 9-11-1-7.5 directly refutes this assertion and Supp.). constitutes probative relevant evidence of upon value jury which the could have deter- samples approximately Blood taken was, fact, mined Spaulding under collision, three hours after the which was the influence of alcohol at the time of the Spaulding’s opportunity last to consume al collision. cohol, showed a whole blood alcohol con tests, Notwithstanding the blood tent of and a serum alcohol level .08% might Spaulding well have determined that Hospital personnel drew the .142%. was intoxicated as that term is defined in samples apart, about fifteen minutes 9-11-1-5 from the sample being first ultimately the one tested numerous witnesses by Spauld- who observed laboratory Indiana State Police ing’s driving producing before the collision or whole blood result. encoun- .08% evening. tered him that One witness de- pathologist supervised The who the test- Spaulding scribed as “too drunk to talk” ing equated at Dunn Memorial the serum passing and others heavy saw him cars in they alcohol result obtained a whole left, right traffic on the as well as the at blood level of about He detailed the .12%. high speed, passenger rates of with his procedures hospital laboratory used convertible; standing upright in the Wit- might and the factors which cause the vari- Spaulding go nesses high- observed off the samples, clarifying ance in the two way grass pass into the in an effort to jury that probably difference was right, lose control of the convertible caused samples manner which the degree high- make a 90 cut across the hospi- were The obtained. minds, way oncoming into traffic. our pathologist supports tal’s a reasonable in- objective impaired this is evidence of an sample ference that the first was drawn action, thought condition of and loss of through Spaulding’s near one of intra- faculties, normal control of one’s to an probably venous tubes and was diluted endangering extent. When combined with solution, although the IV there was no the evidence of alcohol con- sample direct evidence as to how was sumption, the evidence of intoxication is obtained. overwhelming. pathologist explained also that a 150 Similarly, ample there is evidence to average lb. man with alcohol tolerance and support jury’s determination that empty peak stomach would reach a ab- Spaulding driving was at the time of the sorption of alcohol into his at blood about Spaulding one hour after the alcohol collision. Witnesses observed was consumed. Then, depending upon the the convertible within fifteen min individual’s met- liver, process absorption police abolic utes of the collision. told would officers, An personnel decrease. individual with a well-devel- medical and others who oped enzyme system driving, stopped help would show a de- that he was that he absorption anyone, crease at a rate of about didn’t intend to hurt and didn’t 26% that be prejudicial publicity, no direct but also go jail. While there is want claims, publicity, he actu- members cause adverse evidence at time set community be unable to ally said was collision, sup- guilt testimony reasonably preconceived ren notions aside his in- upon that such ports the inference a verdict the evidence. der based (1986),Ind., Timmons State tent. 1212, 1217; Moore v. State Also, impact on point of we note the wheth passenger’s Spaulding’s vehicle was preclude fair such as would er sentiment passenger observed a side. Witnesses fact, examine record trial exists we standing immediately before the vehicle supra Kappos, of voir dire. highway. All three occu- it crossed the pants from the convertible were thrown ju- one potential The record reveals that an em- the car over and were found with excused for cause while nine were ror was young bankment. observed Witnesses challenged. peremptorily We cannot dis- in the had been man who died collision challenges belonged. cern to whom the fence; against they found him a thrown Therefore, we ascertain from the cannot Spaulding broth- between and of Spaulding record whether exhausted all of of er. the the location While evidence challenges him in an the made available to impact certainly is after occupants the car’s composed persons to obtain a of effort conclusive, not it is circumstantial evidence adversely by pretrial publicity. not affected in the tending Spaulding that was show Moreover, the See I.C. 35-37-1-3. each of time of collision as driver’s seat at the the ultimately selected assured the court jurors in the persons he told at the scene and later put he or and the defendant that she could hospital. guilt, regard- of preconceived notions aside may of or she have read and less what he II. upon solely able a verdict would be to base Spaulding trial court contends the at trial. These assur- the evidence adduced its discretion when it ruled on abused Spaulding’s claim that a fair ances belie change for of venue from the coun motion not impartial jury could be found be- and failing ty by to consider nineteen affidavits widespread of in the com- cause sentiment persons community were of oc- munity. no abuse discretion Spaulding not to show that could offered curred. Spaulding cites

receive a fair trial. III. (1867),28 Anderson Ind. which that, ruling on proposition for in stands the argues he Spaulding also was denied a venue, not change for it is a motion trial because the trial court coerced fair judge for a trial to consider erroneous jurors stat- potential intimidated into and the of citizens to aid sworn statements record, they fair ing, for the that could be exercising its discretion. court as- impartial. He maintains the court and imposed prosecutor the role a and sumed offered, in The record shows jury. opinions on the its own affidavits, newspaper arti- to the addition By the accident. these cles written after The of voir is to ascer function dire evidentiary Spaulding presented an articles juror prospective not the tain whether or concluding may prejudice basis impartial verdict can render fair and reports community, the exist in the since with the law the evidence. accordance given at ultimately misstated the evidence Ind., Zachary v. State 469 N.E.2d matters and contained which would trial judge 747. While a trial has broad Kappos inadmissible. v. State discretionary regulate form power to 465 N.E.2d dire, must judge and substance of voir making impartial refrain from However, remain prevail appeal motion, unnecessary or comments. remarks change of a denial venue (1987),Ind,, 511 N.E.2d only Whitehead not the existence must show defense — denied, U.S.-, amining estimated, cert. He vehicles. based upon measurements, Spauld- 98 L.Ed.2d 773. various S.Ct. ing’s traveling convertible was at about We the sections of have reviewed per 75.8 miles at the impact. hour time of by Spaulding dire cited and find no voir dispute intimidation partiality, evidence or coer does not that the sub instance, ject juror cion. the first matter of indi Hawkins’ sci was entific in beyond knowledge cated she worked with the father of nature and deceased, response average lay person one or that Hawkins’ questions prosecutor series was aid to re an in as sponded sessing that she not feel circumstances of the comforta collision. making (1987), Ind., point ble At that See Fox decision. Rather, interjected question court that the was one makes juror assertion whether could be fair and that a two-week course does qualify impartial expert. and not she one as whether would feel an We re have juror peatedly juror. precise uncomfortable as a then held however that no unequivocally, quantum stated asked of knowledge when court, required, that she make if could not a decision the witness acquain shows an guilt solely subject or innocence tance with such qualify based as to courtroom, give see, Fox, him to opinion, id.; evidence adduced City proper upon Indianapolis motion excused for cause. v. Robinson Ind. nothing inappropriate App., 904-906, We observe this de trans. dialogue. nied; Reid v. Ind. 1149, 1152, require because the Similarly, the other two instances cited qualified ment that a witness be before by Spaulding involved who were ulti- being permitted testify to is expert as an mately excused and efforts the trial predicated upon the witness’s an offer of judge questioning to focus respons- the and opinion upon that is based facts the aver explained es. In the one instance the court age juror incapable interpreting of for proof the State’s burden of and “reason- himself. Id. 372 at 1152. General began juror able” doubt after the to think ly, police within the officers fall classifica doubt”; in terms of “a shadow of in the experts competent tion of to an render other, the juror early indicated on that she opinion on of speed the an in automobile fair, equivocated could be and then later City accident Indianapolis cases. of she because felt it would be difficult to Robinson, supra 906. at being a decision sympa- render without to thetic the victims. In neither instance detail, Hawkins in in- described without any expression opinion by do find of we defense, terruption by the how he recon- any trial court or indication whatsoever structed the and accident estimated the opinion, the court an that had formed and speed Spaulding’s of vehicle. He showed unnecessary no remarks or comments. marks, pictures explained of the skid how Hence, concluding we find no for basis certain of the were marks created Spaulding was denied a fair trial because steering convertible’s column gave and judge improperly the trial influenced voir through measurements. Hawkins went dire. speed calculations in of Spaulding’s step by vehicle on a blackboard

IV. step. The officer’s reconstruction of the Spaulding argues next that the trial accident was consistent with the reversibly permitting highway court erred in of witnesses and who were Trooper testify speed Hawkins to Police as an observed firsthand and path short, view, in' expert Spaulding’s accident reconstruction. our vehicle. Hawkins path Trooper competency Hawkins traced showed field of accident reconstruction; lacking Spaulding’s jury vehicle extent he was scene in physical jury evidence at the and ex- was for the to assess at 9-11-1-5 to mean “under the influ- demonstrated in I.C. weigh, as Hawkins competency, from his of ... ... such that there is derived ence alcohol least minimal police thought experience impaired officer condition of and action years’ as an I5V2 training in reconstruction as of a accident and loss normal control State, Reid v. jury. endanger to to an aid to faculties such an extent as 1152; City supra India- Hence, person.” Spaulding N.E.2d at find any Robinson, napolis supra at underlying guilty of the offense not its trial did abuse intoxicated, court jury only need find while testify. by allowing Hawkins to discretion Spaulding condition de- was oper- 9-11-1-5 he was scribed when argument Spaulding’s The remainder of vehicle, ating the as the trial court instruct- challenges opin- in this Hawkins’ section ed; precise a determination level upon facts he relies. ions and the which Spaulding’s unnecessary. alcohol blood trial, However, objected misleading jury To so instruct would be qualification expert. as an He Hawkins' an of the incorrect statement law. object did not when the witness assumed Spaulding’s was there- tendered instruction facts were relied which not properly fore refused. opinion on upon hearsay, expressed ultimately he ar- an issue gues Spaulding’s claim that his brief. VI. permitted not Hawkins should have been Finally, Spaulding contends the cu state that driver cannot court’s com mulative effect trial error before

therefore constitute reversible (considered in during ments dire Issue voir objections he did raise his this court as III) during Spaulding’s testimony con See, Hughes Ind. at trial. Spaulding re stituted fundamental error. App., 481 N.E.2d following exchange, fers us to the argues judge’s the trial disbelief in reflects V. brother Next, Spaulding argues trial the car. one decedents was by refusing his ins court erred tendered Q. your Shannon ever driven Had truction2 which read: before? automobile set intoxi- Indiana has a standard for going object I’m Mrs. Hall: at by weight cation a determination time, Honor, totally that’s irrele- Your in a of alcohol whole blood. proceedings at hand. vant jury dis- Spaulding maintains the needed to I Mr. Mr. Herthel: know blood cern between serum whole doesn’t remember the time of the in order test results to be able determine accident, think, I as for the infer- but while intoxicated whether he ence, important I think it’s resulting bodily injury in death and or not Shannon know whether charged. acknowledges that a State He Rainey driven had his automobile. must correct tendered instruction be a Honor, doesn’t sup- Mrs. Hall: Your it matter statement law must be addition, driven his automobile before. ported by the evidence. who had who his automo- a cannot It matters drove substance of tendered instruction See, e.g., night. by other instructions. bile that be covered 476, Davis v. State (1976), 265 Ind. 355 I that. The ob- The Court: understand Smith v. State 836, 838; (1987), N.E.2d You can answer jection overruled. is Ind., 31, 506 N.E.2d 32-33. record, evidence into that. There’s worth, it’s whatever operation some- prohibits the of a I.C. 9-11-2-2 car. Please body “Intoxi- motor while “intoxicated." else was vehicle legislature defined answer. cated” has been is an incorrect statement of the ten- now concedes trial court also refused one which law. dered instruction number judge Our courts have held that a trial mark is objec- deemed waived no because may, demeanor, improperly timely conduct and tion was made.

impose himself or herself into a trial and VII. thereby deny a defendant a fair trial. case, judge’s personal Normally,

such a this where court will refrain considering perva in favor of the issue which has not intervention State been raised the motion to throughout sive the entire correct errors trial or rea appeal However, or on to this court. when sonably impeach calculated to or discredit a appears clearly error on the face of the testimony, witness or his and the issue is type record and is of the which if not close, such or intervention abandonment of deny rectified would funda defendant impartiality constitutes fundamental error process, mental due this court will act sua granting and necessitates the of a new Haggard sponte remedy v. State it. See, e.g. Kennedy (1972), v. State trial. also, (1983), Ind., 969, 971; see 445 N.E.2d 211, 611; Brannum v. 258 Ind. 280 N.E.2d (1985), Ind., Carman State 473 N.E.2d (1977), 51, 1180; 267 Ind. 366 N.E.2d 618, 620. A sentence which exceeds the Decker v. State (1987), Ind.App., 515 N.E. penalty legislature authorized con hand, 2d theOn other isolated Car- magnitude. stitutes an error of this remarks, exchanges or innocuous unaccom man, id.; Kleinrichert v. State (1973), panied by specific contemporaneous Ind. 297 N.E.2d 822. objection, request for admonishment and subjected motion for mistrial are to the In Kelly (1988), Ind.App., appellate procedure usual rules of are pending, trans. 527 N.E.2d the sec See, e.g. Lawson v. State deemed waived. ond district this court examined the stat 759, 769, here, 274 Ind. utory provisions N.E.2d at issue i.e. I.C. 9- 11-2-2, 9-11-2-4, cert. denied 452 U.S. 9-11-2-5, 101 S.Ct. and I.C. 424; legislature and determined that Home v. State 69 L.Ed.2d of this 976, 982; punishment state intended one for a Brackens v. viola (1985), Ind., tion I.C. 9-11-2-2 which results in multi 540; ple bodily occurrences of injury serious or Lahrman v. State Ind.App., agree death. We with this result for 1162, 1168, three trans. denied. reasons. already We have held that the court trial First, regardless solely of whether a mat- improperly did not conduct voir dire statutory ter of construction or also of impartiality during jury abandon its role of dimension, legisla- constitutional we believe Thus, proceedings. selection we are not expressed statutory tive intent as confronted with a situation similar to that provision proper starting at issue is the in Kennedy or Brannum. Neither does it point analyzing problem multiple appear the trial court’s remark was inten punishments, punishable for no act is as a tionally designed discredit; rather, to it legisla- crime unless it is made so part explanation of the court’s of its See, (1963), Knotts v. State ture. 243 Ind. Horne, ruling on the objection. State’s Cf. 501, 504,187 N.E.2d 571. while the supra. Moreover, as in other cases where defining in common law useful and con- judge’s it held a has been remarks did not statutes, struing general criminal rules error, rise to the level fundamental applicable of common to other law crimes they were instructed that were the particular do not dictate a result here. judges exclusive of the the credi view, bility weight Second, in the decision Clem of the witnesses and the to be in our See, Horne, supra. given (1873), binding testimony. 42 Ind. 420 remains circumstances, decision, precedent. Under these we cannot con In that the Indiana comment, killing per Supreme clude the trial court’s Court held the of two or while haps unnecessary, egregious persons by was so as to more the same act constitutes trial; crime; deny hence, any consequently, the defendant a fair but one the double Constitution, allegation respect jeopardy of error to re- of the Indiana clause 604 1137, (1981), 333, and States prosecution 450 U.S. 101 S.Ct. I., precludes 14

Art. § of a second victim 67 L.Ed.2d 275. conviction death acquittal of the following the conviction reasons, adopt we the reason For these Clem, 426-427, See, 42 Ind. at first. Kelly, supra, ing in of the second district Clem is therefore not affect- vitality contrary notwithstanding. authority to the (1978), 532, v. 269 Ind. Elmore State ed (1988), Ind.App., Dupin v. 524 Cf. it, following 893 or decisions 382 N.E.2d that mul N.E.2d 329. We hold in case stems the result tiple convictions of while intoxicat Fifth Amend- jeopardy double clause resulting bodily injury in ed serious Constitution, appli- made ment to the U.S. death cannot stand. We remand to by the Fourteenth cable the state trial court with instructions to vacate Elmore, See, id. Amendment. 9-11-2-4 and one of the conviction I.C. at 894. 9-11-2-5, to enter a convictions Kelly, Third, in to the extent the decision opinion. sentence consistent with this supra is an application of federal constitu- AFFIRMED IN PART JUDGMENT law, tional we find it be consistent with AND REVERSED IN PART. precedent. Supreme United States Court Supreme

None Court’s decisions are GARRARD, P.J., in concurs result. Blockburger v. including point,3 directly on RATLIFF, C.J., concurs with (1932), 299, 284 52 United States U.S. S.Ct. GARRARD, separate opinion in which 180, Brown v. Ohio 76 L.Ed. 306 P.J., concurs. 161, 2221, 97 S.Ct. 53 L.Ed. 432 U.S. 187, jeopardy 2d the double which address RATLIFF, Judge, concurring. Chief problem created a violation of two dis- majority opinion To the extent Brown, id. statutory provisions. See tinct perpetuates expert archaic rule that 2226 6 166, 6, n. 97 S.Ct. at n. {Blockbur- testimony to be admissible it must concern ger test not standard for beyond knowledge of the av- subject prosecutions impermis- whether successive erage disagree. lay person, I this While offense; applica- sibly strict involve same v. rule, Summers has been Ashe, supra Blockburger tion of test n. 799, (1986), Ind.App., reject- we permitted imposition of would have con- ed rule in favor of a more modern charges sentences had been con- secutive Summers, approach. we said: single proceeding). Under solidated “The trend of recent cases seems circumstances, Supreme Court’s these knowledge more focus attention interpretation legislation federal cases expert skill of the and whether the (1955), 349 v. United Bell States like U.S. opinion helpful will expert’s 81, 75 Ladner L.Ed. 905 and S.Ct. question trier of fact than on the States United 358 U.S. Cleary, See jury. E.W. provides guidance, 3 L.Ed.2d 199 S.Ct. Evidence, at 33 (3d ed. McCormick jeopardy since a claim under double 1984). incorporated This standard separated entirely from a clause cannot be pro- of Evidence Fed.Rule statutory question resolution of the con- vides: v. United States Whalen struction. scientific, 1432, 1435, technical, spe- ‘If or other 100 S.Ct. U.S. also, knowledge will the trier

L.Ed.2d 715. Albemaz United cialized assist ing advantage gained by Among applying jeopardy be- cases the double 3. trial, clause, (1970), 436, that the Fifth v. U.S. 90 cause of earlier reasoned Ashe Swenson 397 1189, 469, against guarantee jeopardy double involved the Amendment S.Ct. 25 L.Ed.2d which closely estop- poker ap- incorporated rule robbery players, the federal of collateral of six most pel. opinion the issue proximates here. The makes clear before the circumstances at issue decision, relitigation following ac- Supreme the court was one of quittal, Court held ac- punishments poker play- six be quittal robbery one not whether could of of the robbing prosecution imposed 397 precluded subsequent for of six victims. ers a court, 446, robbery 90 S.Ct. at 1195. of a different victim. The focus- U.S.

605 of fact to understand the evidence or Johnson v. Commonwealth Edison Co. issue, a fact in a (1985), 472, to determine witness Ill.App.3d 449, 133 88 Ill.Dec. qualified expert by knowledge, as an 478 N.E.2d 1057. order to be admit skill, experience, education, or training, ted into expert testimony may testify thereto in the form of an must trier assist the of fact under opinion or otherwise.’ standing deciding or evidence a fac 702, commenting upon “In Fed.R.Evid. issue, tual quali and the witness must authority one has said: by knowledge, skill, experience, fied expert a court training,

‘Must exclude testi- give education to such testi mony subject if the mony. is within the com- v. Material Service Ruffiner prehension juror? of average Such (1985), 747, Corp. 134 Ill.App.3d 89 Ill. incompatible is test the stan- Dec. 480 N.E.2d 1157.” helpfulness expressed dard of Rule 495 N.E.2d at 802-03. First, wrongly 702. it assumes The majority correctly Trooper holds bright separating

there is line issues Hawkins’ accident testimony reconstruction comprehension jurors within of decision, I admissible. concur in that Secondly, those that are not. but I do so on basis of the rule an- jurors equipped even when are well to nounced in Summers. judgments make on basis of their respects, In all other I concur. knowledge experience, common ex- perts may specialized have knowledge P.J., GARRARD, bring concurs. to bear on the same issue be helpful.’ Berger,

3 J. Weinstein and M. Wein- Evidence, 702(02) (1985).

stein’s § quoted

“We believe the above com- Weinstein, although

ment from directed appropriate Fed.R. Evid. is

our consideration of this issue. The mod- away application

ern trend is from strict GOODHART, excluding expert testimony of the rule Donna subjects Plaintiff-Appellant, knowledge within the common jurors. Carlson v. Hudson v. 19; Ill.App.3d Stanley BOARD OF COMMISSIONERS OF Ill.App.3d Board Education PARKE, Young, COUNTY OF Michael Rennick, George Myers and Donald as ‘Traditionally, expert testimony has duly County acting elected and Com- permitted subject not been when its County; missioners of Parke beyond knowledge matter County Board of Commissioners of average experience juror Putnam, Beck, Jean John Carson omitted], recently, more but [citation Walton, duly County Don elected permit if expert the trend it County, Commissioners Putnam De- special knowledge has some and his fendants-Appellees. is of aid to the even though average juror would also No. 61A01-8802-CV-54. subject have some Indiana, Appeals Court of matter. [Citations omitted.]’ First District. “Binge J.J. Borders Construction Co. Ill.App.3d 238, 50 Ill.Dec. 2, 1989. Feb. modern admissibility expert standard testi

mony is will aid whether understanding the facts.

Case Details

Case Name: Spaulding v. State

Court Name: Indiana Court of Appeals

Date Published: Feb 2, 1989

Citation: 533 N.E.2d 597

Docket Number: 47A01-8804-CR-111

Court Abbreviation: Ind. Ct. App.