MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                          Apr 06 2020, 9:33 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James D. Crum                                            Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                             Attorney General of Indiana
Carmel, Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Edgar Leary,                                      April 6, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2186
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Gail Bardach,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D06-1811-F6-7974



Bradford, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020                  Page 1 of 8
                                              Case Summary
[1]   In August of 2019, Robert Edgar Leary was convicted of Level 6 felony

      operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08

      grams per 210 liters of breath or greater and sentenced to 910 days on work

      release. Leary contends that the trial court erred by (1) admitting portions of a

      911 call and (2) denying him an additional peremptory challenge. We affirm.



                                Facts and Procedural History
[2]   On November 15, 2018, a vehicle being driven by Leary crashed into a

      guardrail after coming off a bridge near the intersection of Carrigan Road and

      North Harbor Drive in Hamilton County. Moments later, Leary pulled the

      vehicle into the Harbor Mini Mart parking lot and fled on foot. Ashleigh Leary,

      Leary’s daughter, was a passenger in the vehicle and called 911 to report the

      accident. Approximately fifteen to twenty minutes later, law enforcement

      located Leary. Leary told Officer Zachary Bush that he had been driving the

      vehicle up to “the North Harbour [sic], Carrigan Road intersection, and said, ‘I

      was driving right there, and then Ashleigh got in the car and started driving.’”

      Tr. Vol. II p. 126.1 Officer Bush observed that Leary’s eyes were bloodshot and

      smelled the odor of an alcoholic beverage emanating from his breath. Leary

      admitted to Officer Bush that “he had some beers earlier.” Tr. Vol. II p. 126.




      1
          Officer Bush noted that this was approximately a quarter mile from the Harbor Mini Mart parking lot.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020                       Page 2 of 8
      Officer Bush administered the horizontal-gaze-nystagmus test (a field-sobriety

      test), which Leary failed. Officer Bush eventually transported Leary to the

      Hamilton County Jail to conduct a certified chemical breath test, which

      determined Leary’s ACE to be 0.120 g/210 L.


[3]   On November 16, 2018, the State charged Leary with Class A misdemeanor

      operating a vehicle while intoxicated (“OWI”) endangering a person, Class C

      misdemeanor operating a vehicle with an ACE of 0.08 or greater, Class B

      misdemeanor leaving the scene of an accident, Level 6 felony OWI

      endangering a person, and Level 6 felony operating a vehicle with an ACE of

      0.08 or greater. On August 19, 2019, the State dismissed the leaving-the-scene-

      of-an-accident charge. On August 20, 2019, a jury trial was held. During voir

      dire, Juror 15 was selected as a member of the jury; however, Juror 15 left the

      courtroom with the prospective jurors who had been struck and never returned.

      After Juror 15’s departure, there were two remaining seats to be filled on the

      jury. Having already used his five peremptory strikes, Leary requested an

      additional peremptory strike, which was denied by the trial court.


[4]   During the State’s case-in-chief, Leary objected to the playing of the 911 call,

      which was overruled by the trial court. The jury found Leary guilty of both

      misdemeanor offenses, which the trial court merged, and Leary admitted to

      having been convicted of a prior OWI offense within five years.2 The trial court




      2
          The State dismissed the other Level 6 felony OWI charge.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020   Page 3 of 8
      entered a judgment of conviction for Level 6 felony operating a vehicle with an

      ACE of 0.08 or greater and sentenced Leary to 910 days on work release on

      September 17, 2019.



                                 Discussion and Decision
                                                I. 911 Call
[5]   Because Ashleigh did not testify at trial, Leary contends that the trial court

      erroneously admitted certain portions of the 911 call in violation of the

      Confrontation Clause. “We review a trial court’s decision to admit or exclude

      evidence for an abuse of discretion.” Baker v. State, 997 N.E.2d 67, 70 (Ind. Ct.

      App. 2013). “An abuse of discretion occurs if a trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before the court.” Id.


              The Confrontation Clause, embodied in the Sixth Amendment to
              the United States Constitution, provides that in all criminal
              prosecutions, the accused shall enjoy the right … to be
              confronted with the witnesses against him. The Indiana
              Constitution extends a similar guarantee. See Ind. Const., Art. 1,
              § 13(a) (“In all criminal prosecutions, the accused shall have the
              right to … meet the witnesses face to face[.]”). The Confrontation
              Clause prohibits the admission of an out-of-court statement if it is
              testimonial, the declarant is unavailable, and the defendant had
              no prior opportunity to cross-examine the witness.

              […]

              To determine whether a statement is testimonial, we look at the
              primary purpose of the conversation. If the circumstances
              indicated the purpose of the interrogation is to enable police
              assistance to meet an ongoing emergency, then the statements are

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020   Page 4 of 8
        considered non-testimonial and not subject to the Confrontation
        Clause. However, if circumstances indicate the primary purpose
        of the conversation is to prove past events potentially relevant to
        later criminal prosecution, then the statements are considered
        testimonial and protected by the Confrontation Clause.


King v. State, 985 N.E.2d 755, 758 (Ind. Ct. App. 2013) (cleaned up), trans.

denied. The portions of the 911 call that Leary takes issue with are as follows:


        911 OPERATOR: 911, what’s the address of the emergency?

        [ASHLEIGH]: I’m off of Carrigan Road. I’m at Harbor Mini
        Mart. (indiscernible) Harbor Mini Mart. My father is leaving a
        scene of an accident. He smashed into a guardrail at the
        (indiscernible).

        […]

        911 OPERATOR: Okay. So, he had a crash in the parking lot. Is
        that right?

        [ASHLEIGH]: Not into the parking lot. When we were coming
        in off the bridge from where Morse Lake is, there is a guardrail,
        and he was looking to the left, not paying attention, and he
        smashed into the guardrail, and I told him to pull the car over.
        And he said no, so that’s when (indiscernible) fiancé and said I
        need to [give] 911 a call. I need to call 911.

        […]

        911 OPERATOR: And he’ll have – he’ll have – you said a few
        beers in his pocket?

        [ASHLEIGH]: Yeah. And he won’t be able to pass the
        breathalyzer either.


Tr. Vol. II pp. 118, 120, 123.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020   Page 5 of 8
[6]   At the outset we observe that given the overwhelming evidence of guilt that any

      Confrontation Clause violation in this case was harmless beyond a reasonable

      doubt. Not every error in the admission of evidence requires a reversal. Carr v.

      State, 934 N.E.2d 1096, 1107 (Ind. 2010). “And before a federal constitutional

      error can be held harmless, the court must be able to declare a belief that it was

      harmless beyond a reasonable doubt.” Id. (internal quotations and citations

      omitted). “The improper admission of evidence is harmless error when the

      reviewing court is satisfied that the conviction is supported by substantial

      independent evidence of guilt so that there is no substantial likelihood that the

      challenged evidence contributed to the conviction.” Meadows v. State, 785

      N.E.2d 1112, 1122 (Ind. Ct. App. 2003), trans. denied.


[7]   In this matter, said portions of the 911 call aside, the evidence of guilt is

      overwhelming. The record indicates that Leary admitted to law enforcement

      that he had been driving the vehicle, at minimum, approximately a quarter mile

      from where it eventually was parked at the Harbor Mini Mart. Leary also

      admitted that he had been drinking alcohol. Moreover, Officer Bush observed

      that Leary’s eyes were bloodshot and smelled the odor of an alcoholic beverage

      emanating from his breath. The chemical breath test indicated that Leary’s

      ACE was 0.120, well above the legal limit. Finally, nearly all of the information

      Leary takes issue with in the 911 call is also included in the Call for Service

      Detail Report, which was admitted into evidence without objection as State’s

      Exhibit 6. This evidence, alone, overwhelmingly supports Leary’s conviction.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020    Page 6 of 8
                                       II. Peremptory Strike
[8]   Leary contends that the trial court erred by failing to grant him an additional

      peremptory strike following Juror 15’s departure. The control of voir dire by the

      trial court is a discretionary matter. Baird v. State, 604 N.E.2d 1170, 1186 (Ind.

      1992), cert. denied. “There is no constitutional or fundamental right to exercise

      peremptory challenges.” Castro v. State, 580 N.E.2d 232, 235 (Ind. 1991). “The

      right to peremptory challenges is a matter of statutory grant which may not be

      expanded or restricted by judicial interpretation.” Id. “Upon review, we will

      look only to the statute to determine appellant’s right.” Id. In prosecutions for

      Level 6 felony and misdemeanor offenses, a defendant may peremptorily strike

      five jurors. See Ind. Code § 35-37-1-3(c) (“In prosecution for all other crimes,

      the defendant may challenge, peremptorily, five (5) jurors.”).


[9]   Here, there is no dispute that Leary received and used his five peremptory

      strikes. This is exactly what he was entitled to under Indiana law, and the trial

      court cannot have erred for following the law. The trial court noted that


              [Y]ou’re making your statement on the record that you should
              have another strike because someone you didn’t strike and
              couldn’t strike because you’ve already struck everybody else that
              you’re entitled to left.

              […]

              [A]nd I’m denying your argument. I don’t think that gives you
              the right to another strike. Either one of you.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020   Page 7 of 8
       Tr. Vol. II p. 71. Moreover, Leary has failed to demonstrate how the denial of

       an additional peremptory strike prejudiced him in any way. In fact, Leary did

       not use one of his peremptory strikes on Juror 15, as the trial court noted,

       stating, “You already used them, and you didn’t use it on him.” Tr. Vol. II p.

       70. Leary has failed to establish that the trial court erred in this regard.


[10]   The judgment of the trial court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2186| April 6, 2020   Page 8 of 8
