Thursday, September 06, 2012
Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP)
For publication opinions today (2):
In Troy Wilson v. State of Indiana , a 9-page opinion, the issue as rephrased by Judge Bailey is: "whether the trial court abused its discretion when it did not permit Wilson to elicit testimony concerning the reliability of toxicology test results from the Indiana Department of Toxicology (“the Department”), as reflected in an audit of testing performed by the Department from 2007 to 2009." J. Bailey writes:
Wilson’s appeal challenges the trial court’s rulings that precluded him from eliciting testimony from Dr. Kriger concerning the results of audits conducted at the Indiana State Department of Toxicology Laboratory. * * *In Patrick Nichols v. State of Indiana, an 11-page opinion, Judge Crone writes:
Wilson’s contention on appeal is that the trial court violated his confrontation rights under the Constitutions of the United States and the State of Indiana when it precluded him from eliciting Dr. Kriger’s testimony concerning results of the audit of the Department’s laboratory. * * *
Here, Wilson’s blood sample was taken on December 6, 2009 and analyzed by Dawn
Golden (“Golden”), an analyst with the Department’s laboratory, in May and June 2011. Wilson cross-examined Golden concerning her work in the analysis of his blood sample. Wilson also cross-examined Dr. Kriger, who was the Director of the Department at the time Golden performed the analysis on Wilson’s blood sample in May and June 2011. * * * From this, we conclude that Wilson was afforded the opportunity to cross-examine the analyst responsible for the test results showing the alcohol content of his blood, and thus there was no denial of his right to confrontation. * * *
The discontinuation of the audit on blood-alcohol samples and the period of time covered by the audits generally may bear upon the credibility of the Department’s testing results from 2007 to 2009. But it is not clear that these questions bear upon the credibility of the Department’s analysis here, where different procedures were executed by different analysts serving under a different Director more than 1½ years beyond the chronological scope of the audits. Thus, we cannot conclude that the trial court abused its discretion when it determined that the testimony Wilson sought to introduce was not relevant to the question of the reliability of Golden’s testing and excluded that testimony from evidence.
Conclusion. Because Wilson’s confrontation rights were not violated and the exclusion of irrelevant testimony by Dr. Kriger regarding the Department’s audit results was not error, we affirm Wilson’s convictions.
Patrick Nichols appeals his convictions for class C felony burglary, class D felony theft, and class A misdemeanor criminal mischief, contending that in closing argument, the prosecutor violated his Fifth Amendment privilege against self-incrimination by improperly commenting upon his decision not to testify and that the resulting error is fundamental. We agree and therefore reverse his convictions and remand for a new trial. * * *NFP civil opinions today (1):
The State appears to concede that the prosecutor's remarks were improper but argues that the impropriety does not result in fundamental error, citing Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010), trans. denied (2011). * * *
Based on the forgoing, we conclude that the prosecutor‟s improper comments violated Nichols‟s Fifth Amendment rights and resulted in fundamental error. We therefore reverse Nichols‟s convictions and remand for a new trial.
NFP criminal opinions today (5):
Posted by Marcia Oddi on September 6, 2012 01:29 PM
Posted to Ind. App.Ct. Decisions