Aguilar v. State

416 N.E.2d 887, 1981 Ind. App. LEXIS 1267
CourtIndiana Court of Appeals
DecidedFebruary 25, 1981
DocketNo. 2-579A163
StatusPublished
Cited by3 cases

This text of 416 N.E.2d 887 (Aguilar v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aguilar v. State, 416 N.E.2d 887, 1981 Ind. App. LEXIS 1267 (Ind. Ct. App. 1981).

Opinion

SULLIVAN, Justice.

Aguilar appeals from a final judgment finding him in direct contempt.1 Two issues have been presented for review:

1. Whether the trial court erred in ordering Aguilar to answer the questions propounded; and
2. Whether the direct contempt judgment is invalid because the trial court failed to comply with I.C. 34 — 4-7-7.

We affirm.

I.

The facts most favorable to the judgment are as follows: At the time of his contempt citation Aguilar, a physician licensed to practice in the State of Indiana, was employed as a pathologist at Wishard Memorial Hospital in Indianapolis. He also served as a Deputy Coroner for Marion County. In the latter capacity, Aguilar was asked to autopsy and determine the cause or causes of death of two alleged homicide victims. When called as a witness at the subsequent multiple murder trial, Aguilar refused to answer a number of questions:

“Q. Would you have an opinion as to what caused the wounds you have described to [one of the victims]?
A. I would respectfully refuse to answer that question, because it’s beyond my capacity as a witness in this particular case.” ******
“Q. During the course of your examination, did you form an opinion, to a reasonable degree of medical certainty, as to what had caused those wounds.
A. Yes.
Q. What is that opinion?
A. I respectfully refuse to make that opinion.”
******
“Q. What was the blood alcohol of [one of the victims], what percent?
A. The blood alcohol level ... is .24 percent.
Q. What about stomach content of [this victim]?
A. 386 milligrams per deciliter.
Q. What does that mean, doctor?
A. -I refuse to answer the question, Your Honor.” ******
“Q. Have you ever autopsied anybody, where the cause of death was alcohol?
A. Yes, I have.
Q. What was that percentage of blood alcohol?
A. Oh, they range from about, four percent and, up.
Q. Four percent and, up?
A. Umhum.
Q. Do you have an opinion, as to a reasonable degree of medical certainty, as to whether or [not] four percent blood alcohol can kill somebody, in and, of itself?
A. Yes.
Q. Can it?
A. I don’t want to give any opinion regarding that question.
Q. You don’t?
A. I refuse to give an opinion regarding that question.” ******
[889]*889“Q. Do you have an opinion, to a reasonable degree of medical certainty as to whether a person’s judgment would be affected at .24 blood alcohol?
A. Yes.
Q. What is that opinion?
A. I refuse to answer the question.
Q. Why do you refuse to answer?
A. Because as I said before, I am here as just a factual witness, let an expert witness give you an opinion.
Q. Well, I didn’t call you as a witness, and, I don’t understand why you won’t answer me, you’re an expert

The next day Aguilar was recalled to the stand. When questioned by the Court he again refused to answer, even after being ordered to do so. The reason for this refusal, aside from Aguilar’s contention that he was not subpoenaed as an expert witness, was discovered when Aguilar was given an opportunity to purge himself of contempt:

“Q. What is your reason for refusing to testify?
A. My reason not to testify as an expert witness from hereon in, is this. The Prosecutor’s Office, time and, time again, refuse to give me, the courtesy that they would give an ordinary expert witness, they refuse to give that to me, I don’t understand this.
Q. What courtesy are you talking about?
A. The courtesy of having to ask me whether or not I will be available at such and, such a time, the courtesy to inform me that a case had been discontinued, or a case had been, had gone to trial, and, the person had pleaded guilty, they have refused to give me this type of courtesy.
Q. What has that got to do with your refusing to testify in Court, though?
A. Well, Your Honor, when I come to Court since 1975, I have been doing this, I have been coming to Court as a factual witness, but, as a form of courtesy I extended the Prosecutor’s Office my expertise on the subject, which was never being given credit. I didn’t have to do that, but, I did it as a favor, because I want to do, I think the citizenry of the State of Indiana deserve this sort of thing from me, but, this was never, you know, nobody give a ‘damn’ about this thing, Your Hon- or. So, now, I’m just acting on my behalf, as just a factual witness

Because of Aguilar’s refusal to obey the court and his subsequent citation for contempt, the trial court declared a mistrial in the murder case and dismissed the jury.

A.

Aguilar first contends that he properly refused to answer the questions because they were not material or relevant to the issues at trial. He did not premise his refusal at trial to answer upon grounds of irrelevancy or immateriality. It is questionable, therefore, whether he has preserved any allegation of error in this regard. In any event, however, it may be argued that by virtue of I.C. 34-1-14-12 relevance and materiality are always issuable matters concerning the compulsion upon a witness to give expert testimony. The statute provides in part:

“A witness who is an expert ... may be compelled to appear and testify ... to an opinion, as such expert, in relation to any matter, whenever such opinion is material evidence relevant to an issue on trial ....”

Nevertheless, Aguilar has failed to cite any authority, and our research has disclosed none, which precludes a contempt finding solely because the witness unilaterally determines the question to be immaterial or irrelevant. Such rulings constitute questions of law and lie within the sound discretion of the trial court. See Indiana National Corp. v. FACO, Inc. (4th Dist. 1980) Ind. App., 400 N.E.2d 202, 206; Spears v. Aylor (3d Dist. 1974) 162 Ind.App. 340, 342, 319 N.E.2d 639, 641. Furthermore, it is well [890]*890established that control of the examination of a witness lies with the trial court, not with the witness. Smith v. State (1st Dist. 1974) 160 Ind.App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

McIntyre v. State
460 N.E.2d 162 (Indiana Court of Appeals, 1984)
Schultz v. LaBine
428 N.E.2d 1284 (Indiana Court of Appeals, 1981)
In Re Contempt Findings Against Schultz
428 N.E.2d 1284 (Indiana Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
416 N.E.2d 887, 1981 Ind. App. LEXIS 1267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aguilar-v-state-indctapp-1981.