In Re Paternity of KG

536 N.E.2d 1033, 1989 WL 34961
CourtIndiana Court of Appeals
DecidedApril 10, 1989
Docket02A04-8805-CV-00167
StatusPublished
Cited by2 cases

This text of 536 N.E.2d 1033 (In Re Paternity of KG) 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
In Re Paternity of KG, 536 N.E.2d 1033, 1989 WL 34961 (Ind. Ct. App. 1989).

Opinion

536 N.E.2d 1033 (1989)

In re PATERNITY OF K.G.
R.A.F., Appellant (Respondent),
v.
J.S.G., Appellee (Petitioner).

No. 02A04-8805-CV-00167.

Court of Appeals of Indiana, Fourth District.

April 10, 1989.
Rehearing Denied May 17, 1989.

Richard J. Thonert, Romero & Thonert, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

*1034 CONOVER, Presiding Judge.

Respondent-Appellant R.A.F. appeals a jury verdict and judgment finding him to be the father of a minor child.

We reverse.

R.A.F. asserts four issues. We consolidate and rephrase them as two:

1. whether the trial court erred by admitting certain testimonial evidence,[1] and

2. whether the evidence was sufficient to support a finding of paternity.[2]

On June 12, 1984, an Allen County Deputy Prosecutor filed a verified petition seeking determination of the paternity of K.G., born October 24, 1982. The petition named K.G.'s mother, J.G. as petitioner and R.A.F. as the respondent.[3] After the State rested, R.A.F. moved for a directed verdict. R.A.F. argued he had never been identified as the respondent. The court granted R.A.F.'s motion and directed the jury to return a verdict in his favor. It did. Judgment was entered accordingly. Later, the trial court granted the State's motion to correct error and R.A.F. appealed. In a memorandum decision filed April 24, 1986, the Third District of this court, by Judge Hoffman, affirmed the trial court order granting the State's motion to correct error. It remanded for a new trial.

Upon remand trial was again before a jury. The jury returned a verdict in favor of the State. R.A.F.'s motion to correct error was denied and he appeals.

Additional facts are included below.

I.

R.A.F. contends the trial court erred by admitting and later failing to strike testimony given by Dr.[4] Sanking Chen, who supervises blood testing for the American Red Cross. R.A.F. also contends the trial court erred by failing to strike deposition testimony given by Dr. David Sand, a medical doctor who delivered a child on October 24, 1982.

(a) Chen's testimony

Chen qualified, without objection, as an expert witness, then generally explained how blood testing is useful in determining paternity. Chen testified he supervised blood testing for the American Red Cross, explained the procedure used when blood is tested at his facility, and, over R.A.F.'s numerous objections, was permitted to testify someone under his supervision drew blood from R.A.F., J.G., and K.G.; guidelines were followed for chain of custody and identity of the parties' blood; and the blood samples taken were tested. Chen described the testing done in this case and rendered an opinion as to paternity. No report from the testing office was offered into evidence.

(i) R.A.F.'s arguments

R.A.F. contends the trial court erred when it allowed Chen to testify about blood testing of himself, J.G., and K.G. He argues Chen's testimony about the facts of testing was not admissible because Chen admittedly had no personal knowledge about (a) whether such blood testing actually occurred; and, if so, (b) the identities of the persons who submitted to testing; (c) the identities of persons who administered the test; (d) the procedures followed for administration of blood tests; (e) the chain of custody of blood samples taken and tested; and (f) the procedure followed to analyze any blood samples so taken. R.A.F. argues Chen's testimony assumed facts not in evidence, he could not cross-examine Chen in these circumstances and he was therefore denied due process of law and a fair trial. R.A.F. contends the State failed to establish a proper foundation for admission of blood test results and for any opinion about them. R.A.F. opines the trial *1035 court should have stricken Chen's testimony and should have advised the jury to disregard it.

(ii) the State's arguments

The State claims Chen's testimony about matters of fact not within his personal knowledge was admissible under the business records exception to the hearsay rule. It argues Chen's testimony was properly admitted as expert testimony by one who supervised the testing procedures used. The State argues Chen's testimony established a proper chain of custody for the samples taken and for admission of test results therefrom in "the same way Dr. Conneally's testimony did in Gregory." (Appellee's Brief 13). The State opines Chen was privileged to render an expert opinion on the basis of tests performed by others. The State argues R.A.F. waived, by failing to raise below, any arguments about lack of evidence of the test's reputation for reliability in the relevant scientific community.

(iii) applicable rules of evidence

An expert may give an opinion about facts of which he has no firsthand knowledge if those facts are in the record or can be assumed from the evidence and stated to the expert by a hypothetical question. Senco Products Inc. v. Riley, (1982), Ind. App., 434 N.E.2d 561, 565, 33 A.L.R.4th 1173; see also, Davis v. Schneider, (1979), 182 Ind. App. 275, 283, 395 N.E.2d 283, 289. Further, an expert may give an opinion based in part upon reports not in evidence and upon reports inadmissible under the hearsay rule provided (1) the expert has sufficient expertise to evaluate the reliability and accuracy of the report, (2) the report is a type normally found reliable, and (3) the report is of a type customarily relied upon by the expert in the practice of his profession. Duncan v. George Moser Leather Co. (1980), Ind. App., 408 N.E.2d 1332, 1343. See also, Wickliffe v. State, (1981), Ind., 424 N.E.2d 1007, 1009 and Miller, Indiana Evidence sections 703.104, 705.105 (West, 1984).

Factual evidence, on the other hand, must be given by witnesses who have personal knowledge, e.g. Buck v. State (1983), Ind., 453 N.E.2d 993, 1000; see generally, I.L.E. Witnesses Sec. 22; unless the testimony comes within some exception to the hearsay rule recognized because of its reliability and veracity, e.g. business records, Baker, supra; See generally, Miller, Indiana Evidence, sections 803.101-804.206 (West, 1984).

(iv) this case

It is important in this case to make a clear distinction between the two types of testimony given by Chen. On the one hand Chen testified about the facts of testing. In this regard Chen's status as an expert is of no import. Chen also testified about the results of testing. In this regard Chen's status as an expert is important.

Despite the State's arguments to the contrary, neither the expert opinion rules of In re Gregory (1984), Ind. App., 469 N.E.2d 480, 481, nor the business records exception to the hearsay rule, e.g. Baker v. Wagers (1984), Ind. App., 472 N.E.2d 218

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Related

Mundy v. Angelicchio
623 N.E.2d 456 (Indiana Court of Appeals, 1993)
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545 N.E.2d 564 (Indiana Supreme Court, 1989)

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Bluebook (online)
536 N.E.2d 1033, 1989 WL 34961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-paternity-of-kg-indctapp-1989.