Schmidt v. State

SULLIVAN, Judge,

dissenting.

Although I concur with respect to the majority opinion's treatment of Issues One, Three, Four, and Five, I respectfully dissent with respect to Issue Two and would reverse the judgment and remand for a new trial.

The admissibility of Dr. McCoy's proffered testimony as to whether an ear condition suffered by Schmidt would have explained Schmidt's failure of the sobriety balance tests was not dependent upon what Schmidt may or may not have told Dr. McCoy. It was therefore not dependent upon whether Schmidt himself testified. Rather, a McCoy opinion in this regard might appropriately have been premised upon Defendant's Exhibit C, a medical record establishing that, as of December 2001, Schmidt had "a history of acute unilateral deafness and vertigo," rather than any statement from Schmidt as to his ear condition. 6

In actuality, in making its preliminary exclusionary ruling, the trial court stated that opinion evidence with regard to a proffered opinion by Dr. McCoy would be permitted only if a hearing problem was a fact in evidence. The court stated that if Dr. McCoy "had access to the Defendant's medical records and reviewed the medical records, he may rely on those." Tr. at 18. Thus, although the trial court granted the State's motion to exclude "any medical diagnosis [Schmidt] may have received from a doctor," Tr. at 19, the court indicated that Dr. McCoy could rely upon that medical record in forming his own opinion as to what effect, if any, that ear condition would have upon Schmidt's failure of the sobriety tests.

From this I would conclude that had Dr. McCoy been called to testify he would have been permitted to testify with respect to an opinion based upon Dr. Pascuzzi's report, if in turn a proper foundation had been established for admission of that report. 7 That conclusion, however, would appear to be misplaced in that the trial court later during the actual trial seemed to make its exclusionary ruling as to Dr. McCoy absolute.

Although the defense did include Dr. Pascuzzi's report in its offer to prove what Dr. McCoy's testimony would have been, Dr. McCoy was not called as a witness because as the following colloquy reflects the trial court was not going to permit Dr. McCoy's testimony:

"THE COURT: So this offer to prove is based on evidence that you feel Dr. McCoy would testify to but he was not called as a witness because of the Court's ruling on the Motion in Limine *948 would prevent his testimony. Is that right?

MR. COOK: That's correct, and he's available now. He lives in Carmel, he's got his cell phone on. He's indicated to me he would be available to testify if we needed him, but based upon the Court's ruling I indicated it probably wasn't likely, but I have an obligation to make a record which I'm doing as to what he relies on to testify he would do. He's been supplied the facts necessary to render an opinion and such.

THE COURT: After considering the offers to prove, the Court does not wish to change its previous rulings. If there is simply some evidence that the Defendant wishes to present, the defendant will have to testify, but the Defendant can't get in through other evidences and avoid testifying. It's just that's the way the rule is. Do you have any additional witnesses, Mr. Cook, or have you completed?

MR. COOK: We don't, Judge...." Tr. at 802 (emphasis supplied).

In my view, the trial court's exclusionary ruling as to Dr. McCoy was extended beyond what the trial court had actually said in its ruling upon the State's Motion in Limine. The in-trial exclusionary ruling clearly indicated that it would have been futile for defense counsel to attempt to lay a foundation for admission of Dr. Paseuz-zi's report and to call Dr. McCoy as a witness.

Had Dr. McCoy been permitted to testify, it is quite possible that the jury would have virtually discredited the validity of the field sobriety balancing tests and perhaps reached a different result in its verdict. 8 For this reason I would reverse the judgment and remand for a new trial.

. Schmidt made an offer to prove Defendant's Exhibit C which consisted of one page of a report by Dr. Robert M. Pascuzzi of Wishard Hospital dated December 28, 2001, five months prior to Schmidt's arrest for the offense in question.

. I respectfully disagree with the majority's determination that Dr. McCoy had insufficient expertise to evaluate the information in Dr. Pascuzzi's medical report and apply that information to the accuracy of the field sobriety tests. In this regard, I respectfully disagree with a portion of Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798 (Ind.Ct.App.1996) as quoted by the majority opinion here. As can be deduced from my separate opinion in that case, I took issue with the conclusion of the majority which stated that a doctor of chiropractic is unqualified to render an expert opinion based upon medical reports issued by physicians. See id. at 802 (Sullivan, J., concurring). Similarly, I disagree with my colleagues in this case that Dr. McCoy was per se unqualified to render an expert opinion based upon Dr. Pascuzzi's report.

. My dissent does not include a conclusion that exclusion of any opinion from Mr. Bennett with respect to Schmidt's ear condition would be cause for reversal. Although during direct examination of Mr. Bennett the possibility of an ear condition was obliquely mentioned, it was not pursued at the time. Subsequently, the offer to prove Exhibit C was made and appeared to be made with regard to Mr. Bennett's testimony. This can be explained, however, because Mr. Bennett was the only defense witness who was actually called to testify and it was logical chronologically to make the offer to prove in connection with his testimony. Nevertheless, it is clear that the thrust of the defense's position as to Schmidt's ear condition was with regard to Dr. McCoy's proffered opinion, not that of Mr. Bennett.