Kyle L. Doolin v. State of Indiana ( 2012 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAULA M. SAUER GREGORY F. ZOELLER
Danville, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
FILED
Jul 16 2012, 9:17 am
IN THE CLERK
of the supreme court,
court of appeals and
COURT OF APPEALS OF INDIANA tax court
KYLE L. DOOLIN, )
)
Appellant-Defendant, )
)
vs. ) No. 32A01-1111-CR-545
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENDRICKS SUPERIOR COURT
The Honorable David H. Coleman, Judge
Cause No. 32D02-1106-CM-747
July 16, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge
Following a bench trial, Kyle L. Doolin (“Doolin”) was convicted of possession of
marijuana1 as a Class A misdemeanor. He appeals and raises the following restated issue:
whether the trial court abused its discretion when it admitted into evidence the results of an
in-court field test of a substance alleged to be marijuana.
We affirm.
FACTS AND PROCEDURAL HISTORY
On June 16, 2011, Deputy Brian Petree (“Deputy Petree”) of the Hendricks County
Sheriff’s Department was on patrol on Interstate 70 in Hendricks County. He observed a car
fail to properly signal before making a lane change. Deputy Petree initiated a traffic stop of
the vehicle, which was being driven by Brandon Hersey, Doolin’s cousin. Doolin was a
front-seat passenger in the car. After issuing a warning citation for the infraction, Deputy
Petree asked for and received permission to search the vehicle. During the search, Deputy
Petree found inside the locked glove box a digital scale and a velvet drawstring bag that
contained two baggies of green leafy plant material, which Deputy Petree believed in his
experience to be marijuana based on the look and smell of it. Officer Brady McManama
(“Officer McManama”) of the Stilesville Police Department read Miranda rights to both
Hersey and Doolin at the scene and then transported the men to jail, where Doolin
approached Deputy Petree and stated that the marijuana was his and that he wanted to take
responsibility for it. The State charged Doolin with dealing in marijuana, a Class A
misdemeanor. On the day of trial, the State was granted permission to add two counts:
1
See Ind. Code § 35-48-4-11(1).
2
possession of marijuana and possession of paraphernalia, both Class A misdemeanors.
At the bench trial, after establishing the chain of custody and storage of the alleged
marijuana, the State sought to have Deputy Petree perform a field test in the courtroom on a
sample of the plant substance. Over Doolin’s objections, the trial court permitted Deputy
Petree to conduct two field tests on the material. Deputy Petree testified that the second test
indicated the presence of THC, the active ingredient in marijuana.
Following trial, Doolin was found guilty of possession of marijuana and was acquitted
of the other two counts. The trial court sentenced him to three-hundred-sixty-five days at the
Hendricks County Jail, with credit for time served, and the remainder was suspended to
probation. Doolin filed a motion to correct error, which the trial court denied. Doolin now
appeals.
DISCUSSION AND DECISION
Doolin argues that the trial court abused its discretion by admitting the results from the
in-court field test conducted by Deputy Petree. We review the trial court’s decision to admit
evidence based on a scientific process under an abuse of discretion standard. West v. State,
805 N.E.2d 909, 913 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion occurs
where the decision is clearly against the logic and effect of the circumstances. N.W. v. State,
834 N.E.2d 159, 161 (Ind. Ct. App. 2005), trans. denied. Even if the trial court’s decision
was an abuse of discretion, we will not reverse if the admission constituted harmless error.
Taylor v. State, 904 N.E.2d 259, 261-62 (Ind. Ct. App. 2009), trans. denied.
To convict Doolin of possession of marijuana, the State was required to prove beyond
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a reasonable doubt that he knowingly or intentionally possessed marijuana. Ind. Code § 35-
48-4-11. In this case, the alleged marijuana seized from the vehicle was not tested prior to
trial; rather, the only test conducted on the substance was the in-court field test conducted by
Deputy Petree. Doolin asserts it was error to admit the results of that test because its
reliability was not established.
Pursuant to Indiana Rule of Evidence 702(b) (“Rule 702”), expert scientific testimony
is admissible only if reliability is demonstrated to the trial court. Rule 702 provides:
(a) If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.
The proponent of expert testimony bears the burden of establishing the foundation and
reliability of the scientific principles. McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).
There is “no specific test” that must be considered in order to satisfy Rule 702(b). West, 805
N.E.2d at 913 (citing McGrew, 682 N.E.2d at 1292). Rather, reliability may be established
by judicial notice or, in its absence, by sufficient foundation to convince the trial court that
the relevant scientific principles are reliable. Id. In determining whether scientific evidence
is reliable, the trial court must determine whether the evidence appears sufficiently valid, or,
in other words, trustworthy, to assist the trier of fact. Id. (citing Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 590 n.9 (1993)).
In this appeal, Doolin does not challenge Deputy Petree’s qualifications. Rather, he
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argues that the State failed to present a sufficient foundation for the reliability of the field test
in question. Based on our review of the record before us, we agree that it was error to admit
the results of the in-court field test because its reliability was not established.
At trial, Doolin timely objected to the admission of the field test, asserting that a
proper foundation had not been established. He argued that the courtroom was not a
controlled environment, Deputy Petree was not a chemist, and that “there’s a little higher
burden than having an officer do a field kit test here – here in the courtroom.” Tr. at 44-45.
The trial court overruled the objection and permitted Deputy Petree to conduct the field test.
Prior to starting the test, however, Deputy Petree explained the procedures he would follow:
place a small sample of the plant material in a glass bottle, drop in a capsule, shake the bottle
and break the capsule, and “[i]f it turns blue,” then that indicates the presence of THC, the
active ingredient in marijuana. Id. at 45. Deputy Petree also stated that the procedure was
routinely used by the Hendricks County Sheriff’s Department. Doolin again objected, noting
that there were no seals, was no showing of the accuracy of the tests, and was no showing
that the kit was in proper working order. The trial court overruled the objection and
permitted Deputy Petree to conduct the field test. Before starting, Deputy Petree inquired
whether there were any gloves available to him in the courtroom; there were not. He
proceeded, but during Deputy Petree’s first test, the ampoule did not break and was stuck,
and no results were yielded. Id. at 48. The State then requested permission for Deputy
Petree to conduct a second test, which was granted over Doolin’s objection. Deputy Petree
testified that the results were blue, indicating the presence of THC, the active ingredient in
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marijuana; counsel for Doolin voiced his disagreement that the results were, in fact, blue or
otherwise conclusive.
The State urges that under the precedent of Burkett v. State, 691 N.E.2d 1241 (Ind. Ct.
App. 1998), trans. denied, we should find no error in the admission of Deputy Petree’s field
test. In Burkett, police stopped a speeding car, driven by Burkett. Burkett failed a field
sobriety test and a portable breath test, and before he was transported to jail, the officer
conducted a patdown search of Burkett for officer safety. The officer discovered a green,
leafy substance in Burkett’s pocket. At the jail, the officer conducted a field test on the
substance, and the result was positive for marijuana. Id. at 1243. He was charged and
convicted of possession of marijuana.
On appeal, Burkett claimed that the trial court erred in admitting the results of the
field test because the State failed to provide sufficient foundation for both the testifying
officer’s qualifications and the reliability of the field test. Id. at 1245. A panel of this court
upheld the trial court’s decision that the police officer was a qualified expert because he
testified that: (1) he was trained to administer the test; (2) he followed the proper procedures;
(3) the test consisted of three ampoules of acid that change color to show the presence of
marijuana; and (4) the sheriff’s department routinely used the test. Id. As for Burkett’s
claim that the State failed to present a sufficient foundation for the reliability of the field test,
which is Doolin’s claim in the present case, the Burkett court concluded that the field test
was admissible because “the results of this type of test have been admitted in other cases,”
citing Houston v. State, 553 N.E.2d 117, 119 (Ind. 1990) and Bellamy v. State, 259 Ind. 254,
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286 N.E.2d 401 (1972). Id. at 1246.
As Doolin observes, both Houston and Bellamy, upon which the Burkett court relied,
were decided prior to the adoption of Rule of Evidence 702, with which we are concerned
now. Furthermore, neither Houston nor Bellamy challenged the reliability of the field test.2
While Burkett ultimately determined that the field test on marijuana conducted by the officer
at the jail was admissible, we are not persuaded that it stands for the broad proposition that
any unnamed in-court field test for marijuana is admissible, so long as the testifying officer
states he or she has experience with the test and that the department routinely uses it. To the
extent that Burkett could be interpreted to direct that result, we respectfully decline to follow
it.
Here, although Deputy Petree provided a general overview of the several steps he
intended to follow when conducting the test and stated that his department routinely utilizes
the field test, he did not provide any specific name or otherwise identify the test, indicate its
reliability or rate of accuracy or error, note the scientific principles on which it is based, or
recognize any standards regarding its use and operation. We agree with Doolin that the
deputy’s explanation at trial essentially was nothing more than: “break an ampoule of
something over the challenged plant material and shake it up. If whatever is in the ampoule
causes the material to turn blue, it’s marijuana.” Reply Br. at 1. The State simply presented
2
In Houston, the defendant challenged the qualifications of the officer conducting the marijuana field
test. 553 N.E.2d at 119. In Bellamy, the defendant challenged the chain of custody of an envelope of heroin
that was admitted into evidence; two field tests had been conducted on the substance at the scene and there was
no objection at trial concerning those. 286 N.E.2d at 403.
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no foundational evidence of the test used. Because of this dearth of evidence regarding this
field test, we find the State failed to establish the test’s reliability under Rule 702(b), and the
trial court abused its discretion in admitting the results into evidence. See West, 805 N.E.2d
at 914 (trial court erred by considering results of Draeger field test, conducted at scene to
detect anhydrous ammonia, because of lack of evidence at trial regarding test’s scientific
reliability). We note that our holding today does not represent a conclusion that all field tests
of marijuana conducted in the courtroom are, per se, inadmissible; nor do we find that in-
court field tests on marijuana may never be used as substantive evidence of guilt, as Doolin
asks us to do. Rather, we hold that under the facts and circumstances of this case, the trial
court abused its discretion when it admitted the results of Deputy Petree’s in-court field test
because of the lack of foundation as to its reliability. Having found error, we now determine
whether the error requires reversal.
Improper admission of evidence is harmless error when the conviction is supported by
such substantial independent evidence of guilt as to satisfy the reviewing court that there is
no substantial likelihood that the questioned evidence contributed to the conviction. Spires v.
State, 670 N.E.2d 1313, 1316 (Ind. Ct. App. 1996). An error in the admission of evidence is
not prejudicial if the evidence is merely cumulative of other evidence in the record. VanPelt
v. State, 760 N.E.2d 218, 224 (Ind. Ct. App. 2001), trans. denied (2002).
Here, there was substantial other evidence, besides the result of the in-court field test,
that the plant material in question was marijuana. First and foremost, Deputy Petree testified
without objection that Doolin had admitted to him at the jail that “the marijuana was his” and
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that “he wanted to take responsibility for it.” Tr. at 40. Second, the circumstances
surrounding the location of the substance – in a baggie, inside a velvet bag along with a set of
scales hidden in a music CD case, all inside a locked glove box – suggest that it was not
intended to be discovered. See Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010)
(identity of drug can be proven by circumstantial evidence), trans. denied. Third, Deputy
Petree identified the green leafy substance as marijuana based on its odor and appearance.
Our Supreme Court has held:
Although chemical analysis is one way, and perhaps the best way, to establish
the identity of a compound, persons experienced in the area may be able to
identify cigarette smoke, marijuana, and even toluene. This is true even if
every citizen may not be up to that task.
Vasquez v. State, 741 N.E.2d 1214, 1216 (Ind. 2001).
At trial, Deputy Petree testified that he had been a law enforcement officer for six
years, graduating from the Indiana Law Enforcement Academy (“Academy”) and attending
yearly training as part of his job. At the time of Doolin’s arrest, Deputy Petree was part of
what is known as ICE, a team of eight officers chosen to conduct interstate criminal
enforcement, patrolling the interstates and looking for contraband. He testified that he had
received training regarding identifying drugs at the Academy, and he also took several
classes relating to the interdiction of narcotics. Lieutenant Larry Deckard, a crime scene
investigator and property room manager with of the Hendricks County Sheriff’s Department,
testified that Deputy Petree had “a lot” of law enforcement experience with marijuana cases
and that many bags of marijuana were currently being stored in the property room under
Deputy Petree’s name. Tr. at 25.
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We find that Deputy Petree’s experience, training, and personal observations, along
with other circumstantial evidence, sufficiently established the identity of the substance as
marijuana. See Halsema v. State, 823 N.E.2d 668, 673 n.1 (Ind. 2005) (testimony of officer
that he had received special training in production, manufacture and distribution of
methamphetamine was sufficient to establish that substance was methamphetamine, even
though substance was not scientifically determined to be methamphetamine); Boggs, 928
N.E.2d at 865-67 (Ind. Ct. App. 2010) (officer’s testimony that based on his training and
experience he had “no doubt” that green, leafy substance was marijuana was sufficient to
establish identity of drug); McConnell v. State, 540 N.E.2d 100, 103-04 (Ind. Ct. App. 1989)
(testimony of officer who was familiar with marijuana that substance at issue appeared to be
marijuana was sufficient to establish that it was marijuana). Accordingly, we conclude that
while it was error for the trial court to admit the in-court field test, the error was harmless in
light of the other independent evidence of the identity of the substance.
Affirmed.
BAKER, J., and BROWN, J., concur.
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