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Filed: August 31, 1987.


APPEAL FROM THE ALLEN CIRCUIT COURT, The Honorable Thomas L. Ryan, Judge, Cause No. CCR-85-141.

Miller, P.j., Conover, J. and Young, J. Concur.

Author: Miller


On July 14, 1985, a car driven by John M. Keel collided with a tree on West Washington street in Fort Wayne. Sherry Duff, a passenger in his automobile, was found to be dead. In connection with this collision, Keel was charged with reckless driving and driving while intoxicated resulting in the death of another. After the State rested, Keel declined to offer any evidence and moved for a directed verdict on the charge of driving while intoxicated resulting in the death of another. The trial court found the State had failed to present sufficient expert medical testimony establishing that the accident caused Duff's death, and directed a verdict in Keel's favor on this count. The jury ultimately found Keel guilty of reckless driving, and he was sentenced to one year in jail. The State now seeks a retrial, claiming the trial court erred in requiring the introduction of expert medical testimony to show cause of death. We find the trial court did err, however, we also find the Fifth Amendment (double jeopardy) prohibits the State from retrying Keel on this count.


The testimony adduced at trial relevant to the issues on appeal show that at approximately 2:50 A.M. on July 14, 1985, witness Kelly Williams, an employee of the Fort Wayne Journal Gazette, was returning to Fort Wayne after delivering papers to several towns in Indiana and Ohio. As she approached the city of Fort Wayne in the center lane of West Washington Street, she looked in her rearview mirror and saw Keel's car approaching very rapidly. She pulled into the left lane to prepare to make a left turn, and the car passed her at such a high rate of speed that she was unable to tell who was driving. Keel's car, which had partially crossed the dividing line between two lanes and was travelling in both lanes, went into a curve and out of Williams's view. When entering the curve, she saw that the car had jumped the curb and slid sideways into three trees. The car was wrapped around the trees. Williams stopped her truck, and she and her sister, who had accompanied her on the delivery run, approached the car. She saw Keel behind the steering wheel. She then called for police and medical help.

Elizabeth Wolf, a paramedic, testified she was one of the paramedics summoned to the accident. She stated there were two people in the car - John Keel, who was sitting in the driver's seat, and a female, later identified as Sherry Duff. The lower half of Duff's body was pinned in the remains of the passenger side of the automobile, and the upper half had fallen across Keel's lap. Wolf observed that Duff had extensive injuries. When Wolf attempted to take vital signs, she discovered Duff had no pulse, circulation, or respiration. Based on this information, Wolf pronounced Duff dead at the accident scene. At trial, Wolf, over Keel's objection, opined that Duff died of "extensive multiple trauma and probable fractured cervical spine."

Finally, Walter Stout, an accident reconstruction expert with the Fort Wayne Police Department, testified as to his personal observation of the accident scene as it appeared that night. The pavement was damp, but not wet. The passenger side of the car had made contact with the tree, and the car had bent around the tree. The car normally was 6 1/2 feet wide, but there was approximately only two feet of space between the farthest intrusion of the tree into the passenger side and the door of the driver's side. Stout also observed skid marks and marks on the curb which indicated where the car had gone out of control. Based on these marks and certain calculations, Stout gave his expert opinion that the car was travelling in excess of 90 miles per hour when it went out of control.

Stout also testified that he interviewed Keel several weeks after the accident. Keel told Stout that he had been drinking with Duff at a bar called Magilla's in New Haven that night. The two left the bar and were returning to Fort Wayne when the accident occurred; Keel admitted he was driving.


The State brings two issues for our review. It first argues the trial court erred in requiring medical testimony to establish the cause of Sherry Duff's death.[Footnote 1] We find the trial court did err. The State also argues the Federal Constitution double jeopardy provisions do not prohibit retrial on the count of driving while intoxicated resulting in death. We do not agree.

I. Was Medical Testimony Required to Prove Cause of Death?

A review of the cases cited by the State in its brief leads us to the Conclusion that the State, under the facts of this case, was not required to introduce expert medical testimony to establish cause of death. Wilson v. State (1982), Ind., 432 N.E.2d 30; Hicks v. State (1981), Ind., 426 N.E.2d 411. The jury may infer cause of death from the facts introduced at trial. Ray v. State (1954), 233 Ind. 495, 120 N.E.2d 176. Of course, in order for the jury to be allowed to infer cause of death the State must introduce into evidence facts sufficient to support such an inference. Reed v. State (1979), 180 Ind. App. 5, 387 N.E.2d 82. (Buchanan, C.J., Dissenting).

In Ray, the defendant had been drinking at his girlfriend's house. As he drove from her house at 12:30 A.M. he struck the curb and a parked car. Shortly thereafter, between 12:30 and 12:45, Ray was driving north in the southbound lane of Madison Avenue in Indianapolis at approximately seventy miles per hour in a thirty mile zone when he ran head on into the victim's car. Witnesses testified the victim "was slumped over the seat and the whole side of his head was bashed in . . . blood was squirting all over." Ray, supra at 497, 120 N.E.2d at 177. "[The victim] was lying in the seat with his head back over to the right side of the car, to the back, in a kind of a twisted position." Id. at 497, 120 N.E.2d at 177. "He had blood coming from his head and also from his right shoulder, bleeding badly, severe hemorrhages. I believe the blood was coming from his ears. He was so bloody I could not tell." Id. at 497, 120 N.E.2d at 177. "His head was on the back part of the car in a pool of blood." Id. at 497, 120 N.E.2d at 177. The victim ...

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