ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael E. Caudill Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Yvonne M. Carter
Deputy Attorney General
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9904-CF-056997
April 22, 2002
Id. at 1290; see also Steward v. State, 652 N.E.2d 490, 498 (Ind.
The defendant also urges that Steward and McGrew were both decided before Kumho Tire Co. v. Carmichael, 576 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), and that Kuhmo Tire applied Daubert to all types of expert testimony. He argues that state standards cannot drop below the minimum standards set by the federal Constitution. We reject this argument because Kuhmo Tire represented only an interpretation of federal evidence law, specifically the construction and application of Rule 702 of the Federal Rules of Evidence. The United States Supreme Court did not hold that Rule 702 was a requirement of the Federal Constitution. Rule 702 of the Federal Rules of Evidence is not a minimum constitutional requirement applicable to the states. We acknowledge that the United States Supreme Court unanimously held in Kumho Tire that a federal trial judge's gate keeping obligation under Daubert applies not only to scientific evidence but also to technical and other specialized knowledge. The issue before us, however, is not whether to modify Indiana's procedural jurisprudence or to replace the language of our Evidence Rule 702 with the different language of its federal counterpart to embrace the rationale of the United States Supreme Court in Kumho Tire. The defendant does not seek such relief here, arguing instead without elaboration that Kumho Tire is binding on Indiana state court practice. It is not.
We found no error in McGrew, which involved hair comparison analysis, and noted:
Inherent in any reliability analysis is the understanding that, as the scientific principles become more advanced and complex, the foundation required to establish reliability will necessarily become more advanced and complex as well. The converse is just as applicable . . . .
Id. at 1292. Like McGrew, which involved hair comparison analysis, the bite
mark method of identification in Niehaus "[was] simply a matter of comparison of
items of physical evidence to determine if they are reciprocal." Niehaus, 265
Ind. at 661, 359 N.E.2d at 516; cf. Jervis v. State, 679 N.E.2d
875, 881 (Ind. 1997)(observations of a witness with specialized knowledge, and the physical
evidence related to it, are not "scientific principles" governed by Ind. Evid. Rule
We find that the trial court did not abuse its discretion in finding the bite mark evidence to be sufficiently reliable to allow its admission.
The defendant also argues that the probative value of the bite mark evidence was outweighed by its danger of unfair prejudicial effect under Indiana Rule of Evidence 403. The evidence of the bite mark was highly probative to rebut the defendant's contention that he was not a participant in the beating or murder of the victim but was merely present. While the evidence is prejudicial toward the defendant in that it supports a finding that he was an active participant, the evidence does not present a danger of unfair prejudice. As we noted in Richmond v. State, 685 N.E.2d 54 (Ind. 1997), "all relevant evidence is 'inherently prejudicial' in a criminal prosecution, so the inquiry boils down to a balance of probative value against the likely unfair prejudicial impact the evidence may have on the jury." Id. at 55-56. When determining likely unfair prejudicial impact, "courts will look for the dangers that the jury will substantially overestimate the value of the evidence or that the evidence will arouse or inflame the passions or sympathies of the jury." Evans v. State, 643 N.E.2d 877, 880 (Ind. 1994). The defendant seems to claim that the jury substantially overestimated the value of the bite mark evidence basing its finding of guilt on the bite mark evidence alone. As seen by our discussion above of the sufficiency of the evidence, the risk that the jury overly relied on the bite mark evidence is miniscule. Such matters are within the sound discretion of the trial court. The trial court clearly did not err in finding the bite mark evidence admissible.
[Prosecutor]: Okay, and had you actually seen Cain that day?
[Witness]: I had seen him earlier.
Record at 453.
Although uttered as a question, the grammatical form of the utterance does not govern whether it fits the definition of hearsay. Powell v. State, 714 N.E.2d 624, 627-28 (Ind. 1999). "An utterance that is in the form of a question can in substance contain an assertion of a fact." Id. "If a report of a question or command in effect transmits the questioner's claimed observations, the need for cross-examination is as great as if the witness reported a direct statement." Id. Hearsay is defined by Ind.Evid. R. 801(c) as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
The declarant's response contained no assertion of fact offered to prove the truth of the matter asserted. There were no claimed observations or other facts asserted. The statement does not meet the definition of hearsay. It was not error for the trial court to admit the testimony.
Record at 182. Even though this instruction states that the defendant must
have "knowledge that he is helping in the commission of a crime," the
defendant contends that this instruction "improperly focus[ed] the jury's attention upon [the defendant's]
perceived acquiescence to the crimes being committed by others." Br. for Appellant
at 23. The jury must be instructed that accomplice liability requires proof
that the defendant engaged in voluntary conduct in concert with his accomplice.
Small v. State, 531 N.E.2d 498, 499 (Ind. 1988). Final Instruction 15D
made this explicit:
The mere presence of a Defendant where a crime is being committed, even coupled with knowledge by the Defendant that a crime is being committed, or the mere acquiescence by a Defendant in the criminal conduct of others, even with guilty knowledge, is not sufficient to establish aiding, inducing, or causing a crime.
You must not convict the Defendant of aiding, inducing, or causing an offense unless you find beyond a reasonable doubt that the Defendant knowingly or intentionally participated in some conduct of an affirmative nature.
Record at 183. These two instructions were a correct statement of law
and did not mislead the jury. The trial court did not err
in the instructions it gave to the jury.
The defendant's convictions are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
(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.