MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Jun 24 2016, 8:50 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John R. Watkins Gregory F. Zoeller
Arata Law Firm Attorney General of Indiana
Fort Wayne, Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bradley Smith, June 24, 2016
Appellant-Defendant, Court of Appeals Case No.
92A04-1512-CR-2178
v. Appeal from the Whitley Superior
Court
State of Indiana, The Honorable Douglas M. Fahl,
Appellee-Plaintiff Judge
Trial Court Cause No.
92D01-1403-CM-111
Bailey, Judge.
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Case Summary
[1] Bradley Smith (“Smith”) appeals his conviction for Operating a Vehicle with an
Alcohol Concentration Equivalent to At Least Eight-Hundredths (0.08) Gram
of Alcohol but Less Than Fifteen-Hundredths (0.15) Gram of Alcohol, a Class
C misdemeanor.1 We affirm.
Issues
[2] Smith presents two issues for our review:
I. Whether the trial court abused its discretion in admitting
evidence obtained during a consensual encounter with a
police officer; and
II. Whether the trial court abused its discretion in admitting
the results of a chemical breath test.
Facts and Procedural History
[3] At around 3:00 p.m. on March 1, 2014, Whitley County Sheriff’s Department
Reserve Captain Timothy Johnson (“Officer Johnson”) was off-duty and
driving his personal car on Whitley Street in Churubusco. Ahead he saw a
woman, later identified as Joan Mourey (“Mourey”), walking rapidly on the
sidewalk while nervously looking over her shoulder at a black truck driving
1
Ind. Code § 9-30-5-1(a).
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slowly beside her. From his position a few cars behind the truck, Officer
Johnson saw the driver yelling at Mourey. The truck then turned onto a side
street and stopped. Officer Johnson drove by, but continued to watch Mourey
in his rearview mirror. After the traffic cleared, Mourey ran across the street.
The driver of the truck, later identified as Smith, got out and pursued her.
[4] Officer Johnson turned his car around. As he drove back toward the scene, he
saw Smith leading Mourey by her arm across the street toward the parked
truck. Officer Johnson stopped and parked his car some distance from the truck
and called 911 to request that dispatch send an on-duty officer. He then got out
of his car, “hollered across the street,” displayed his badge to identify himself,
and said that he needed to speak to them. (Tr. 94.) As the officer approached,
Smith started to get into the driver’s seat, but then walked around to the
passenger side.
[5] Mourey met Officer Johnson at the rear driver’s side of the truck. Officer
Johnson questioned Mourey “to make sure . . . that she wasn’t being abducted
or [subject to] some sort of domestic abuse.” (Tr. 100.) He learned that Smith
was her boyfriend and they had a verbal argument earlier that day. Officer
Johnson asked several more questions to ascertain whether Mourey felt safe
with Smith. Throughout the conversation, Smith was seated in the passenger
seat and was yelling to Mourey through the open driver’s side window “[t]hat
she didn’t have to talk to [the officer], that she needs to get back in the truck.
That they could leave.” (Tr. 100.) Mourey asked Officer Johnson if they could
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leave, and Officer Johnson told Mourey they were not free to leave until the on-
duty officer arrived.
[6] Churubusco Police Department Deputy Marshall Garry Jones (“Officer Jones”)
arrived approximately five minutes after he was dispatched. While Officer
Jones spoke to Mourey, Officer Johnson went to the passenger side to speak to
Smith and smelled an alcohol odor coming from the truck. Officer Jones then
came over to speak with Smith and smelled an alcohol odor emanating from
Smith. Officer Jones asked whether Smith had been drinking, and Smith
admitted he had consumed four twelve-ounce cans of beer since about noon.
The officers observed no other signs of intoxication or impairment.
[7] Officer Jones read Smith the Indiana implied consent law and accompanied
Smith to the Whitley County Hospital for a blood draw. Smith then was taken
to the Whitley County Jail, where Sergeant Cory Patrick (“Sergeant Patrick”)
administered a breath test using a BAC DataMaster machine. The breath test
showed a blood alcohol concentration of 0.13 percent.
[8] On March 3, 2014, the State charged Smith with Operating a Vehicle While
Intoxicated, as a Class A misdemeanor2 (“Count 1”), and Operating a Vehicle
with an Alcohol Concentration Equivalent to At Least Eight-Hundredths (0.08)
2
I.C. § 9-30-5-2(b). Operating a vehicle while intoxicated is a Class A misdemeanor if the person operates a
vehicle in a manner that endangers a person.
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Gram of Alcohol but Less Than Fifteen-Hundredths (0.15) Gram of Alcohol
(“Count 2”).
[9] On May 14, 2014, Smith filed a motion to suppress, arguing that when Officer
Johnson told Mourey they were not free to leave until Officer Jones arrived,
Officer Johnson illegally seized Smith in violation of Smith’s federal and state
constitutional rights. The State filed a response on September 12, 2014 arguing
that the encounter was consensual and Smith’s constitutional rights were not
implicated. The trial court held a hearing on August 4, 2014, and denied the
motion to dismiss on October 24, 2014. The trial court found that Officer
Johnson seized Mourey when he told her she could not leave, but as to Smith,
found “there [was] no evidence that [Smith] was told that he was not free to
leave” and thus Officer Johnson “did not prohibit [him] from leaving the
scene.” (App. 83.) Smith filed a motion to reconsider, which the trial court
denied on November 5, 2014.3
[10] A bench trial was held on October 7, 2015. At trial, Smith renewed his
constitutional objections, arguing that he was illegally seized both when Officer
Johnson originally approached Smith and Mourey and after Officer Johnson
told Mourey they were not free to leave until Officer Jones arrived. The trial
3
Smith also filed a pre-trial motion to suppress the blood test results (App. 98), and that motion was denied.
(App. 134.) However, the State ultimately did not introduce the blood test results at trial.
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court overruled the objections and, at the conclusion of trial, found Smith not
guilty of Count 1 and guilty of Count 2. Smith now appeals his conviction.
Discussion and Decision
Constitutional Claims
[11] Smith first argues that the trial court abused its discretion in denying his motion
to suppress and admitting evidence discovered as a result of a warrantless
seizure. Direct review of a motion to suppress is only proper when the
defendant files an interlocutory appeal. Clark v. State, 994 N.E.2d 252, 259 (Ind.
2013). Where, as here, a defendant’s case proceeds to trial following the denial
of a motion to suppress and the defendant renews his objection to the admission
of the evidence, the appeal is best framed as challenging the admission of
evidence at trial. Id. The admission of evidence is a matter left to the trial
court’s discretion. Id. at 259-60. We review the trial court’s determinations of
admissibility for abuse of that discretion and reverse only when admission is
clearly against the logic and effect of the facts and circumstances and the error
affects a party’s substantial rights. Id. at 260. “[W]e do not reweigh the
evidence, and we consider conflicting evidence most favorable to the trial
court’s ruling.” Reinhart v. State, 930 N.E.2d 42, 45 (Ind. Ct. App. 2010).
[12] Using nearly identical language, the Fourth Amendment to the U.S.
Constitution and Article 1, Section 11 of the Indiana Constitution guarantee a
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person’s right to be free from unreasonable searches and seizures. 4 Campbell v.
State, 841 N.E.2d 624, 627 (Ind. Ct. App. 2006). “A person is seized when, by
means of physical force or a show of authority, a police officer has in some way
restrained the liberty of a citizen.” Id. (citing U.S. v. Mendenhall, 446 U.S. 544,
553 (1980)). Whether a police officer has detained a citizen depends on
whether, under all the circumstances, a reasonable person would feel free to
disregard the police and go about his or her business. Finger v. State, 799
N.E.2d 528, 532 (Ind. 2003) (citing California v. Hodari D., 499 U.S. 621, 628
(1991)). The test for whether police action constitutes a “seizure” is objective:
we look not to whether the particular citizen actually felt free to leave, but to
whether the officer’s words and actions would have conveyed that to a
reasonable person. Clark, 994 N.E.2d at 261. We apply the same analysis to
determine whether a person is “seized” under the Fourth Amendment or
Article 1, Section 11. See Campbell, 841 N.E.2d at 630 (using the same test,
holding that defendant was not seized under the Fourth Amendment or Article
1, Section 11). Accord Clarke v. State, 868 N.E.2d 1114, 1121 (Ind. 2007)
(Rucker, J., dissenting) (observing that “there is no ‘seizure’ within the meaning
of the Indiana Constitution ‘[a]s long as the person to whom questions are put
4
The Fourth Amendment provides, in part: “The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” Article 1, Section
11 provides, in part: “The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable search or seizure, shall not be violated . . . .”
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remains free to disregard the questions and walk away.’” (quoting Mendenhall,
446 U.S. at 554)).
[13] “Not every encounter between a police officer and a citizen amounts to a
seizure requiring objective justification.” Overstreet v. State, 724 N.E.2d 661, 664
(Ind. Ct. App. 2000), trans. denied. When a law enforcement officer makes a
casual and brief inquiry of a citizen that involves neither an arrest nor a stop, no
Fourth Amendment interest is implicated. Id. at 663. As long as the person
remains free to disregard a police officer’s questions and walk away, there has
been no intrusion upon that person’s liberty. Id. Police actions that may lead a
reasonable person to conclude he or she has been seized include: use of sirens
or flashers, a command that the person halt, a display of weapons, or operation
of a police car in an aggressive manner to either block the person’s path or
control the direction or speed of his movement. Michigan v. Chesternut, 486 U.S.
567, 575 (1988). Indiana courts have also stated:
Examples of facts and circumstances that might lead a reasonable
person to believe that he or she was no longer free to leave could
include “the threatening presence of several officers, the display
of a weapon by an officer, some physical touching of the person
or the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.”
Clark, 994 N.E.2d at 261-62 (quoting Overstreet, 724 N.E.2d at 664).
[14] Here, Officer Johnson was concerned that Mourey was being abducted or
subject to domestic abuse, so he stopped and parked his personal car some
distance from Smith’s truck. The officer was dressed in plain clothes. As he
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approached the couple on foot, he “hollered,” showed his badge to identify
himself, and said that he needed to speak to them. (Tr. 94.) Smith, who was
getting into the driver’s seat when Officer Johnson approached, circled around
to the passenger side. Mourey then got out of the passenger seat and met
Officer Johnson at the rear of the truck. While Mourey spoke to the officer,
Smith sat in the passenger seat, shouting out the driver’s side window “[t]hat
she didn’t have to talk to [the officer], that she needs to get back in the truck.
That they could leave.” (Tr. 100.) Officer Johnson then did not speak to Smith
until Officer Jones arrived on scene.
[15] Officer Johnson’s actions did not constitute a show of authority that would
convey to a reasonable person that his or her movement was restricted. Indeed,
when Smith heard and saw the officer approaching, he ignored Officer Johnson
and walked to the other side of the truck. Officer Johnson did nothing to
compel Smith to engage with him, and instead met and had a conversation with
Mourey at the bed of the truck. The focus of Officer Johnson’s inquiry was on
Mourey, not Smith. Smith was not seized simply because an off-duty officer
stood near the truck talking to Mourey. During that time, Smith could have left
the scene; instead, he chose to get into the passenger seat and wait for Mourey.
[16] Smith argues, however, that he was illegally seized when Officer Johnson
initially approached the couple while holding up his badge and hollering that he
needed to speak to them. Smith relies primarily on Dowdell v. State, 747 N.E.2d
564 (Ind. Ct. App. 2001), trans. denied, in which we held that “[a] reasonable
person when faced with a police officer pulling up to him in a marked vehicle
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and calling for him to come over to the car would not assume that he can just
turn and walk away.” Id. at 567. However, unlike in Dowdell, Officer Johnson
did not directly order Smith to come over to a marked police car. And after
Smith ignored the officer’s casual inquiry, Officer Johnson did not compel
Smith’s compliance. None of the circumstances that would lead a person to
feel he was not free to leave – such as multiple officers, officer’s display of a
weapon, physical touching of the person, or a command to halt – existed here.
[17] Smith also argues that he was illegally seized when Mourey asked Officer
Johnson if they were free to leave, and Officer Johnson said they were not. An
officer’s subjective intent to detain a person, had he or she attempted to leave, is
irrelevant unless that intent was conveyed to the person. Mendenhall, 446 U.S.
at 554 n.6. See also Bentley v. State, 779 N.E.2d 70, 75 (Ind. Ct. App. 2002)
(officer’s testimony that defendant was not free to leave was subjective and not
relevant where intent was not conveyed).
[18] Officer Johnson made the statement to Mourey, not Smith, while they were
standing behind the truck. Smith was sitting in the front passenger seat, and
contends that the evidence supports the inference that he heard Officer
Johnson’s statement to Mourey. Specifically, Smith points to evidence that: (1)
the driver’s side window was rolled down; (2) Mourey and the officer were
standing four to five feet behind the truck; and (3) Officer Johnson could hear
Smith speaking from the truck. However, Smith’s argument that the trial court
could have inferred that Smith heard Officer Johnson’s command is a request to
reweigh the evidence, which we will not do. Reinhart, 930 N.E.2d at 45.
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Because Officer Johnson did not convey his intent to Smith, the officer’s
statement to Mourey is irrelevant to whether a reasonable person in Smith’s
position would have felt free to leave. None-the-wiser to the officer’s intent,
Smith was in the same position as before Officer Johnson’s statement to
Mourey: free to leave.
[19] Officers Johnson and Jones eventually spoke to Smith. However, nothing in
the record shows that Smith’s encounter with the police was anything other
than consensual. Smith was not seized for the purposes of the Fourth
Amendment or Article 1, Section 11 and therefore the trial court did not abuse
its discretion in admitting evidence obtained as a result of his conversations
with Officers Johnson and Jones.
Admission of Chemical Breath Test Results
[20] The admission of chemical breath test results is left to the sound discretion of
the trial court and reviewed for an abuse of discretion. Fields v. State, 807
N.E.2d 106, 109 (Ind. Ct. App. 2004), clarified on reh’g, 811 N.E.2d 978, trans.
denied. An abuse of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the court or if
the court has misinterpreted the law. Wolpert v. State, 47 N.E.3d 1246, 1247
(Ind. Ct. App. 2015), trans. denied. As the party offering the breath test results,
the State bears the burden of establishing the foundation for admitting the
results. Id.
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[21] Indiana Code section 9-30-6-5 governs the admissibility of chemical breath test
results in operating while intoxicated (“OWI”) proceedings. Section 9-30-6-5(a)
provides that the director of the state department of toxicology shall adopt rules
concerning (1) the standards and regulations for the selection, training, and
certification of breath test operators; (2) the standards and regulations for the
selection and certification of breath test equipment and chemicals; and (3) the
certification of the proper technique for administering a breath test. I.C. § 9-30-
6-5(a). The results of chemical breath tests are not admissible in an OWI
proceeding if “(1) the test operator; (2) the test equipment; (3) the chemicals
used in the test, if any; or (4) the techniques used in the test; have not been
approved in accordance with the rules adopted” by the state department of
toxicology. I.C. § 9-30-6-5(d).
Approved Method for Administering Test
[22] Smith first contends that the trial court erred in admitting the results of his
chemical breath test because Sergeant Patrick did not follow the approved
method for administering the test. Pursuant to Indiana Code section 9-30-6-
5(a)(3), the state department of toxicology has promulgated an approved
method for administering breath tests using the BAC DataMaster. 260 Ind.
Admin. Code 2-4-1 (2015) (effective Feb. 8, 2014).5 In relevant part, the
administrative rule contains the following steps:
5
The rule was filed on January 9, 2014 and effective thirty days after filing. See I.C. § 4-22-2-36(2).
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STEP ONE: The person to be tested must:
(A) have had nothing to eat or drink;
(B) not have put any foreign substance into his or her
mouth or respiratory tract; and
(C) not smoke;
within fifteen (15) minutes before the time a breath sample is
taken.
STEP TWO: The green LED on the instrument display must be
glowing.
STEP THREE: Depress the run button, enter the password, and
insert the evidence ticket.
STEP FOUR: Follow the displayed request for information, and
enter the information by the keyboard.
STEP FIVE: When “please blow” appears on the display, place a
new mouthpiece in the breath tube. Instruct the subject to deliver
a breath sample.
260 I.A.C. 2-4-1(a).
[23] At trial, the State introduced into evidence a one-page document titled
“Approved Method for the Administration of a Breath Test Using a BAC
DataMaster with a Keyboard Effective 01/02/2008,” which Sergeant Patrick
used when administering the breath test to Smith on March 1, 2014.6 (Exhibit
6
The instructions Sergeant Patrick used listed the process, in relevant part, as:
1. The person to be tested must:
(A) have had nothing to eat or drink;
(B) not have put any foreign substance into his or her mouth or respiratory tract; and
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A-4.) This form was a nearly-verbatim reproduction of the immediate past
version of the approved method for administering BAC DataMaster breath
tests, which was repealed and replaced with the current version in February
2014. See 260 I.A.C. 1.1-4-8 (2013).
[24] Smith points out two differences between the current version of the approved
method and Sergeant Patrick’s instructions. Specifically, under step three, the
instructions directed Sergeant Patrick to “insert the evidence ticket or verify that
the external printer is ready to use” (Exhibit A-4), whereas the current rule
instructs the user simply to “insert the evidence ticket.” 260 I.A.C. 2-4-1(a).
Also, under step five, Sergeant Patrick’s instructions stated: “The subject must
deliver a breath sample.” (Exhibit A-4.) The current rule states: “Instruct the
subject to deliver a breath sample.” 260 I.A.C. 2-4-1(a).
[25] Smith argues that the test results were inadmissible under Indiana Code section
9-30-6-5(d) because Sergeant Patrick’s instructions tracked the prior, not
current, version of the administrative rule. Smith relies on Crouch v. State, 638
N.E.2d 861 (Ind. Ct. App. 1994), in which a police officer administered a
(C) not smoke;
within twenty (20) minutes before the time a breath sample is taken.
2. The green LED on the instrument display must be glowing[.]
3. Depress the run button, enter the password, and insert the evidence ticket or verify that the
external printer is ready for use.
4. Follow the displayed request for information, and enter by the keyboard.
5. When “please blow” appears on the display, place a new mouthpiece in the breath tube. The
subject must deliver a breath sample.
(Exhibit A-4.)
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breath test to Crouch using a BAC DataMaster on August 17, 1991,
approximately three weeks before the state department of toxicology filed a rule
establishing an approved method of giving BAC DataMaster breath tests. Id. at
863. The trial court admitted the breath test results because the police officer
had followed a method that was later approved. Id. at 864. On appeal, this
Court reversed, noting that it could not “rationalize and approve the application
of rules which have not been adopted in the manner provided by law.” Id.
Absent a method approved by the department of toxicology at the time the test
was administered, the Court held that the results were inadmissible under
Indiana Code section 9-30-6-5(d). Id.
[26] We find Crouch distinguishable. Crouch concerned the retroactive application of
an administrative rule adopted after Crouch’s breath test was conducted. Here,
the state department of toxicology had adopted an approved method at the time
Smith took his breath test, and the State introduced evidence of the method
Sergeant Patrick used when administering Smith’s test. As the State notes, the
instruction sheet and the approved method are “functionally and substantively
the same” as to steps three and five. (Appellee’s Br. 27.) During step three,
Sergeant Patrick inserted the evidence ticket,7 and thus complied with the
current rule. And we see no substantive difference between the passive
statement in Sergeant Patrick’s instructions that “[t]he subject must deliver a
7
The evidence ticket was admitted as Exhibit A-5.
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breath sample” (Exhibit A-4), and the active statement under the current rule
that the user should “[i]nstruct the subject to deliver a breath sample.” 260
I.A.C. 2-4-1(a). By obtaining Smith’s breath sample during step five, Sergeant
Patrick complied with the current rule.
[27] “Our courts have consistently held that the necessary foundation for
admissibility of a breath test requires proof that the approved methods have
been followed.” Crouch, 638 N.E.2d at 864. Smith has failed to show that
Sergeant Patrick did not strictly comply with the approved method promulgated
by the state department of toxicology.
Instrument Inspection and Compliance Certificate
[28] Smith next argues that the trial court erred in admitting the breath test
instrument inspection and compliance certificate in the absence of trial
testimony of the person who inspected the instrument.
[29] As discussed above, the department of toxicology director must adopt rules
concerning the standards and regulations for the selection and certification of
breath test equipment and chemicals. I.C. § 9-30-6-5(a). When equipment and
chemicals are certified, the director shall issue and send certificates to the circuit
court clerks. I.C. § 9-30-6-5(b). The statute also provides that certified copies of
these certificates
(1) are admissible in a proceeding under this chapter, IC 9-30-5
[OWI], IC 9-30-9, or IC 9-30-15;
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(2) constitute prima facie evidence that the equipment or
chemical:
(A) was inspected and approved by the state department of
toxicology on the date specified on the certificate copy; and
(B) was in proper working condition on the date the breath
test was administered if the date of approval is not more than
one hundred eighty (180) days before the date of the breath
test[.] [. . . .]
I.C. §§ 9-30-6-5(c)(1)-(2).
[30] At trial, the State sought to introduce a certificate of inspection and compliance
(“the certificate”) stating that the instrument used in Smith’s breath test was
inspected and tested on February 10, 2014, and “in good operating condition,
satisfying the accuracy requirements set forth in 260 IAC 2-3-2.” (Exhibit A-3.)
Smith objected on the grounds that he had the right to confront and cross-
examine the certificate’s preparer, who was not present to testify. Smith’s
objection, however, was not based on the confrontation clause of the Sixth
Amendment to the U.S. Constitution.8 Rather, Smith argued the certificate was
a “laboratory report” and therefore Indiana Code chapter 35-36-11 provided
8
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to
be confronted with the witnesses against him[.]” The right to confrontation guaranteed by the Sixth
Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment.
Pointer v. Texas, 380 U.S. 400, 406 (1965). In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme
Court held that the confrontation clause bars admission of out-of-court, testimonial statements in criminal
trials unless the declarant is unavailable to testify and the defendant had a prior opportunity for cross-
examination. Id. at 68.
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him a statutory right to confront and cross-examine the person who prepared it.
The trial court admitted the certificate over Smith’s objection.
[31] Chapter 35-36-11, a simple “notice-and-demand” statute, governs the time
frame within which a defendant in criminal trials must exercise his or her
confrontation rights when the prosecuting attorney seeks to introduce a
laboratory report as evidence. Under the statute, the prosecutor must file a
notice of intent to introduce a laboratory report, and the defendant must timely
file a demand for confrontation if he or she wishes for the report’s preparer to be
present at trial for cross-examination. I.C. §§ 35-36-11-2 & -3. A prosecutor
who does not comply with the notice requirement may not introduce the
evidence unless the report’s preparer is present to testify. I.C. § 35-36-11-4. A
defendant who does not comply with the demand requirement waives the right
to confront and cross-examine the person who prepared the report. I.C. § 35-
36-11-5. The statute defines “laboratory report” as “a written report or affidavit
relating to the results of a scientific test that is prepared for use at trial or to
assist in a law enforcement investigation.” I.C. § 35-36-11-1.
[32] Following Crawford and its progeny, this Court has repeatedly held that breath
test inspection certificates are nontestimonial and therefore do not implicate the
Sixth Amendment right to confrontation. Jones v. State, 982 N.E.2d 417, 419-28
(Ind. Ct. App. 2013), trans. denied. In light of this authority, Smith argues that
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the certificate is a laboratory report9 and thus the notice-and-demand statute
“gives Hoosiers greater rights to confrontation than those afforded under the
Sixth Amendment.” (Appellant’s Br. 16.)
[33] Assuming, without deciding, that the certificate falls within the statutory
definition of laboratory report, we disagree with Smith’s conclusion that the
statute confers a confrontation right where a constitutional right does not exist.
As the U.S. Supreme Court has explained:
In their simplest form, notice-and-demand statutes require the
prosecution to provide notice to the defendant of its intent to use
an analyst’s report as evidence at trial, after which the defendant
is given a period of time in which he may object to the admission
of the evidence absent the analyst’s appearance live at trial. [. . . .]
The defendant always has the burden of raising his Confrontation
Clause objection; notice-and-demand statutes simply govern the time
within which he must do so.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326-27 (2009) (emphasis added)
(citations omitted).
[34] We find persuasive the State’s observation that because notice-and-demand
statutes simply govern the timing of a confrontation clause objection, they
properly “govern the application of the existing constitutional confrontation
right” rather than expand the bounds of that right. (Appellee’s Br. 32.) Because
9
Neither the prosecuting attorney’s notice of intent to introduce laboratory reports or Smith’s demand for
confrontation specified the laboratory reports at issue, but Smith argues the certificate falls within the
statute’s definition.
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this Court has repeatedly held that there is no confrontation right with respect
to breath test certificates of inspection, Jones, 982 N.E.2d at 419-28, we do not
believe the legislature intended the laboratory report notice-and-demand statute
to extend a confrontation right beyond the Sixth Amendment guarantee.
[35] Moreover, there is a presumption that the legislature, in enacting a piece of
legislation, is aware of existing statutes on the same subject. WorldCom Network
Servs., Inc. v. Thompson, 698 N.E.2d 1233, 1239 (Ind. Ct. App. 1998), trans.
denied. “[W]hen general and specific statutes conflict in their application to a
particular subject matter, the specific statute will prevail over the general
statute.” Id. Here, the legislature has enacted a specific statute governing the
admissibility of chemical breath test results in OWI proceedings, I.C. § 9-30-6-5,
and a more general statute governing the introduction of a “laboratory report”
as evidence in a criminal trial. I.C. § 35-36-11-1 et seq. To the extent the two
statutes may overlap, the more specific statute should apply.
[36] The trial court did not abuse its discretion in admitting the breath test
instrument certificate of inspection and compliance.
Conclusion
[37] The trial court did not abuse its discretion in admitting evidence obtained
during Smith’s consensual encounter with the police or the results of Smith’s
chemical breath test.
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[38] Affirmed.
Bradford, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 92A04-1512-CR-2178 | June 24, 2016 Page 21 of 21