INDIANAPOLIS (March 4, 2015) – An appeals court upheld the conviction of former Indianapolis Metropolitan police officer David Bisard.
In a ruling issued Wednesday, the court unanimously affirmed Bisard’s conviction and sentencing in connection with a fatal August 2010 drunken driving crash in his patrol car. Bisard was convicted on Nov. 5, 2013, by an Allen County jury on nine counts of drunken driving, reckless homicide and criminal recklessness. He was sentenced to 13 years.
Motorcyclist Eric Wells, 30, died, while two others, Mary Mills and Kurt Weekly, were severely injured.
Bisard’s defense team outlined three areas for its appeal, including disputed testimony, denying a motion for mistrial based on juror misconduct and whether the court abused its discretion in sentencing.
From court documents filed Wednesday:
1.Was Bisard denied his right to present a defense when the trial court ruled that if Bisard presented evidence from several witnesses that he was not a heavy drinker in response to expert testimony offered by the State, he would open the door to evidence of his subsequent arrest for operating a vehicle while intoxicated?
2. Did the trial court abuse its discretion in denying Bisard’s motion for mistrial based upon issues relating to juror misconduct?
3. Did the trial court abuse its discretion when for purposes of sentencing it considered as an aggravating factor that Bisard had abused police power and breached the public trust?
On point one the appeals court concluded that “difficult evidentiary and strategic decisions do not in and of themselves violate a defendant’s due process right to present a defense.”
The court also wrote:
Defendants often must make hard evidentiary choices. Here, Bisard’s choice may have been difficult, but it remains that he had a choice to make. Bisard could have chosen to present witness testimony that they had never seen him intoxicated or consume alcohol to excess, and when the State presented evidence of his subsequent OWI arrest, as the prosecutor indicated she would, Bisard could have challenged the admission of that evidence contemporaneously therewith.
Point two involved the dismissal of a juror who admitted to doing an internet search about blood evidence. The appeals court ruled that the juror was properly dismissed without tainting the rest of the jurors. The ruling said the trial court was correct in failing to call for a mistrial.
On the third point, Bisard’s lawyers argued that the court “abused its discretion” by considering Bisard’s service as a police officer and breach of the public trust as an aggravating factor. The appeals court wrote, “as appropriately noted by the trial court, Bisard violated this public trust. The trial court did not abuse its discretion in relying upon this factor as a significant aggravating circumstance.”