Appeal from the Lake County Superior Court, The Honorable James E. Letsinger, Judge, Cause No. 2-CR-175-882-712.
Staton, J., Ratliff, C.j., Concurs, Garrard, J., Concurs IN Result.
Richard A. Hayes was convicted by a jury of reckless homicide,[Footnote 1] a class C felony, and causing death while intoxicated,[Footnote 2] a class D felony. He was sentenced to a single term of six years.[Footnote 3]
On appeal, he raises three issues:
1. Whether the State laid a proper foundation for the introduction of his blood alcohol level into evidence, and, thus, whether the court erred in allowing such evidence to be admitted.
2. Whether the conviction for reckless homicide is supported by sufficient evidence.
3. Whether the conviction for causing death while intoxicated is supported by sufficient evidence.
On August 3, 1982, at about 1:30 p.m., Robert James Witham, his wife, Janice Witham, their two daughters, and a foster child were going south on Columbia Street near Lyon Street in Hammond, Indiana, in their Honda Civic automobile.
The two daughters were in the back seat of the car, and Janice was in the front passenger seat holding the foster child on her lap. It was a warm, dry, sunny day as Robert drove about thirty miles per hour in the curb lane of Columbia Street. As the Honda crossed Lyon Street, both Robert and Janice saw a blue and white pickup truck coming toward them going north on Columbia Street just south of the intersection with Highland Street.
Columbia Street between Lyon and Highland Streets is a four-lane city street with additional turning lanes at the intersection of Columbia and Highland. The pickup truck was in the left-turn lane, apparently getting ready to turn left onto Highland.
The Withams saw the pickup make a left turn to go west on Highland. The driver of the truck, Richard Hayes, stated that he did not know ahead of time that Highland Street was closed and that it was blocked off by barricades. He also stated that upon approaching the intersection, ". . . some kind of truck pulling out of the drug store . . ." blocked his view of the barricades and that the barricades were set back from the intersection far enough so that he did not see them until he attempted to turn.
Janice estimated that the truck was going twenty-five to thirty miles per hour before the turn while Robert estimated that the truck was going no more than fifteen to twenty miles per hour as it started to turn. Hayes stated that he had slowed his truck from fifty miles per hour to about thirty miles per hour as he neared the intersection. He estimated that his truck was traveling at about fifteen to twenty miles per hour as he made the left-hand turn.
The Withams said that Hayes almost hit the barricades on Highland, coming within inches of them. Then, Robert saw the truck, without slowing down, turn sharply to go northeasterly back out across the southbound and northbound lanes of Columbia Street. It almost hit the curb on the east side of Columbia. Before the truck got to the eastern curb of Columbia, Hayes steered his truck back toward the northwest in an attempt to correct the truck's direction of travel. Robert slowed his car's speed to about twenty to twenty-five miles per hour and stayed in the same lane near the curb. When Hayes steered his truck to avoid the eastern curb of Columbia, the truck proceeded to go back at an angle toward the lane in which the Withams' car was going south. Hayes attempted again to correct his steering; however, according to Hayes, something connected with the truck's steering prevented him from turning his steering wheel back to the right. When Hayes realized that his truck was heading back into the southbound lanes, where the Withams' car was approaching, he slammed on his brakes to try to prevent an accident from occurring. The truck hit the Withams' car at an angle on the driver's side door extending backward along the left side of the car. The impact spun the car around, causing Robert to hit his head on the steering wheel. He temporarily blacked out. The truck continued to weave down the street in the southbound lanes of Columbia for about forty to fifty feet before coming to a stop with its left front tire against the western curb of Columbia.
The Withams' seven-year-old daughter, Katrena, had been sitting in the back seat on the driver's side. She suffered a skull fracture which caused her death on the same day as the collision.
Hammond Police Department Traffic Investigator, Jay Govert, arrived at the scene shortly after the accident. He said he approached the man in the truck, who he later discovered was Richard Hayes. He said Hayes was sitting on the passenger side of the truck staring off into space as if he did not know what was going on. Govert asked Hayes if he was hurt. Hayes did not look at him, but said that he was not hurt. Hayes then asked Govert if he should get out of the truck, but Govert did not answer because Robert had come up to the truck and was yelling at Hayes. Govert took Robert back to the curb, sat him down, and had the medics look at his head injury.
When Govert returned to the truck Hayes was still sitting inside. Govert again asked Hayes if he was hurt because Hayes appeared to be dazed. Hayes said that he was not hurt, and once again asked Govert if he should get out of the truck. Govert could smell alcohol. He asked Hayes to get out of the truck. Hayes was unsteady on his feet and needed assistance to walk back to Govert's squad car.
While Hayes was in the squad car, Govert detected a very strong odor of alcohol on Hayes's breath. At Govert's request, Hayes produced his driver's license and gave it to Govert. Hayes told Govert that he did not know how the accident had happened and that he had lost control of his truck. He could not tell Govert which direction he was going before the accident. Govert described Hayes's speech as being slurred or thick-tongued. Govert felt that he had probable cause to believe that Hayes had been driving under the influence in that there was an odor of alcohol on his breath. Further, Hayes appeared to be dazed, he had been unsteady on his feet, his speech was slurred and thick-tongued, and a partially consumed bottle of Scotch whiskey was found on the floor of his truck. Govert read to Hayes the Implied Consent Law and his Miranda rights. Hayes refused to take a Breathalyzer test and, according to Govert, became very uncooperative. Govert said that Hayes became angry when he was told that he was going to be taken to the police station.
At the police station, Hayes refused to submit to a Breathalyzer test. At around 3:00 p.m., Lt. Vernon Strvjak, Govert, and another officer of the Hammond Police Department took Hayes to St. Margaret's Hospital to have blood drawn from Hayes. Hayes refused to cooperate and had to be forcibly held down so that the technician could draw his blood. Govert saw the blood drawn from Hayes, and the technician gave Govert the vials containing Hayes's blood.
Govert said that he took the vials of blood back to the police station with him and marked the vials with the date, time, and his initials. Govert first testified that he had kept the blood samples with him at the police station, unrefrigerated, on a hot and humid day, until he got off of work at 10:30 p.m. He stated that he took the vials to the Northwest Toxicology Lab in Gary the next morning. However, after a recess during which Govert discussed his testimony with the Deputy Prosecutor, Govert amended his testimony and claimed that he had gone to his own home within thirty to forty-five minutes after the blood samples were taken from Hayes, and that he had placed the blood samples in the refrigerator at his home.
Diane Quanella, a toxicologist at the Northwest Indiana Criminal and Toxicology Laboratory in Gary, tested the blood samples which had been submitted by Govert on August 4, 1982. She was unable to run the tests on the whole blood because it had clotted. She said the clotting could have been caused by leaving it unrefrigerated on a hot day and because no anti-coagulant had been placed in the container. As a result, she could only check the serum or liquid part of the blood. She testified that the decomposition of the blood itself possibly produces small amounts of ethanol. She stated that the serum ethanol level in the blood samples was 0.288 percent. She admitted on cross-examination that the Indiana statutes on blood alcohol content are framed in terms of blood ethanol levels and not serum ethanol levels. She stated that the serum ethanol level is approximately twelve percent higher than the blood ...