Ex-IMPD officer’s convictions upheld in 2010 fatal accident

Jennifer Nelson for www.theindianalawyer.com

Former Indianapolis Metropolitan Police Department officer David Bisard, convicted of drunken-driving offenses after he struck three motorcyclists while responding to a non-emergency call, was not entitled to a mistrial based on juror misconduct issues, the Indiana Court of Appeals ruled Wednesday.

Bisard challenged his convictions and aggregate 16-year sentence for Class B felony operating a vehicle with a BAC of 0.15 or higher causing death and two counts of Class D felony operating a vehicle with a BAC of more than 0.08 percent causing serious bodily injury. While in uniform and in his marked vehicle, he drove nearly 75 mph to respond to a police call when he struck Eric Wells, Mary Mills and Kurt Weekly while they were stopped at an intersection. Wells died and Mills and Weekly were seriously injured. A standard procedure blood draw found Bisard’s blood alcohol content after the accident was 0.19.

Publicity surrounding the trial led it to be moved to Allen County, where Bisard was convicted in 2013.

In David Bisard v. State of Indiana, 02A03-1312-CR-492, Bisard claimed he was entitled to a mistrial based on independent Internet research Juror 8-2 admitted to doing despite instructions not to. That juror looked up instruments used to analyze blood samples and whether someone could “beat a blood alcohol test.” After removing that juror from the jury and questioning the other jurors, the judge decided to proceed with trial.

“Given the trial court’s assessment that the dismissal of Juror 8-2 removed any taint on the jury, the State was not put in the position to have to present additional evidence demonstrating that Juror 8-2’s conduct was harmless. The trial court is in the best position to gauge the surrounding circumstances of an event and its impact on the jury, we will not second-guess the trial court in this regard. Having reviewed the record, we conclude that the trial court’s finding that a mistrial was not warranted was supported thereby,” Judge Ezra Friedlander wrote.

Bisard also claimed his right to present a defense was denied when the trial court ruled if he presented evidence from witnesses that he was not a heavy drinker in response to expert testimony offered by the state that generically testified about tolerant drinkers, he would open the door to evidence of his 2013 OWI arrest.

“[T]he trial court merely foreshadowed what its ruling regarding the admissibility of his 2013 OWI arrest would be if in fact Bisard chose to present witnesses to testify as to his drinking habits. It remains, however, that Bisard did not put forth his proposed witnesses, and the State did not offer evidence of his prior OWI arrest. The trial court, therefore, was never asked to make a ruling,” Friedlander wrote. “Difficult evidentiary and strategic decisions do not in and of themselves violate a defendant’s due process right to present a defense.”

The judges also found no abuse of discretion when the court sentenced Bisard and considered as an aggravating factor that he had abused police power and breached the public trust.