dissenting.
I respectfully dissent. The position the majority adopts today denies to Drossos the opportunity to make his defense to this case. It was reversible error for the trial court to refuse to allow him to present evidence of the presence of drugs and alcohol in Wey’s body at the time of death. Such evidence would have supported his contention the deceased driver’s negligence, rather than his own, proximately caused the collision.
It is incumbent upon the State in a homicide case to prove the defendant’s unlawful conduct is the direct and proximate cause of the death of the victim. Carter v. State, (1968) 250 Ind. 50, 284 N.E.2d 850; Reed v. State, (1979) Ind.App., 387 N.E.2d 82; State v. Kelsey, (1975) 163 Ind.App. 543, 325 N.E.2d 218. Thus, it is a complete defense to such action that the deceased driver’s own negligence was the proximate cause of the collision, as Drossos maintains it was in this case.
Evidence relating to chemical analysis of body tissues, fluids and breath in this type of case is common. The State used the results of a breathalyzer test on Drossos to establish he tested .17 percent blood alcohol and eyewitness testimony the traffic signal was red as Drossos approached the intersection to prove he ran the light. Drossos on the other hand introduced eyewitness testimony that the light was green when he entered the intersection. To further buttress his claim the deceased driver ran the red light, Drossos’s counsel attempted to introduce evidence through Dr. Forney, Director of the Indiana State Department of Toxicology, that Wey had alcohol and drugs in his bloodstream. Samples of decedent Wey’s blood and urine were submitted to that Department for analysis as part of this investigation. Thus, the only source from which Drossos could get this evidence was Dr. Forney. The State had listed Dr. For-ney as a witness along with other physicians in Indianapolis. Drossos’s counsel had adopted the State’s list of witnesses as its own along with others when the pre-trial list of witnesses was filed.
The question of who ran the red light was the key element in this case because the person who ran it caused the death of Wey and his passengers. That person could have been only Drossos or Wey. Evidence of alcohol and “speed” in Wey’s bloodstream was indeed relevant, competent, and material. Wey’s unfamiliarity with Indianapolis and its road system coupled with such evidence and expert testimony as to the resulting impairment of Wey’s comprehension and reaction time while driving a car under such conditions, if any, could have been the turning point in this trial for the defense. Under our system, after all, a defendant need only establish a reasonable doubt in the minds of the jury to be acquitted. That concept is one of the bellwethers of our judicial system, a major contributor to the freedom which we today enjoy. In my opinion we should not even slightly impair the absolute and unqualified right of a defendant in a criminal case to make a full and complete defense.
Dr. Forney’s testimony as to the chemicals and alcohol in Wey’s bloodstream was relevant, competent, and material. Its exclusion was not harmless. Where material evidence is excluded, the error is presumed to be harmful unless the contrary is made to appear from the record. Keller v. Cox, (1918) 67 Ind.App. 381, 118 N.E. 543; J.P. Smith Shoe Co. v. Curme-Feltman Shoe Co., (1918) 71 Ind.App. 401, 118 N.E. 360; Benjamin v. McElwaine-Richards Co., (1894) 10 Ind.App. 76, 37 N.E. 362. No such showing was made.
Further, such exclusion is a violation of the due process clause of the Fourteenth Amendment. Green v. Georgia, (1979) 442 *8U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738; Chambers v. Mississippi, (1973) 410 U.S. 284; Pelle v. Diners Club, (1974) Fla.App., 287 So.2d 737.
The majority points out Dr. Forney was the only expert testifying about the effects of the amphetamine and the alcohol on Wey and was Drossos’s own witness, testifying the amphetamine had an “insignificant” impact on Wey’s driving ability and the alcohol had “no measurable effect.” He was the only expert testifying because Drossos was given no opportunity to call other experts to dispute Forney’s opinions. He was the only expert testifying because he was the only witness who could establish the presence of the alcohol and “speed” in Wey’s bloodstream because his laboratory did the analysis. Had the fact of the presence of such chemicals been established by Forney’s testimony, Drossos could have called other experts to dispute Dr. Forney’s opinions. That opportunity was denied him by the trial court’s action. We weigh the evidence when we say the effect of the alcohol and drugs on Wey was de minimis. We may not do so on appeal.
The question of the proximate cause of the collision and resulting deaths is properly one for the trier of fact, the jury in this case. Kraft v. State, (1930) 202 Ind. 44, 171 N.E. 1; Coffelt v. State, (1974) 159 Ind.App. 485, 307 N.E.2d 497. The evidence of alcohol and drugs in the deceased driver’s bloodstream was competent, relevant and material on that question. Its exclusion was reversible error.
I would reverse and remand for a new trial.