FOR PUBLICATION
    


ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MONICA FOSTER    STEVE CARTER
Foster & Long-Sharp    Attorney General of Indiana
Indianapolis, Indiana
             ELLEN H. MEILAENDER
             Deputy Attorney General
            Indianapolis, Indiana
                    

NANCY PREWITT,                       )

This case illustrates what happens when the State engages in a pattern of withholding exculpatory and material evidence from a defendant prior to trial. Appellant-defendant Nancy Prewitt raises a number of alleged errors following her conviction for the Murder See footnote of her husband, William Davies. In particular, Prewitt claims that the following errors occurred: (1) the State improperly withheld certain exculpatory evidence from Prewitt in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) statistical evidence regarding the probability that Davies committed suicide was improperly admitted into evidence; (3) blood spatter evidence was erroneously admitted; (4) a statement from a purported expert witness indicating that Prewitt’s claim that she never heard a gunshot appeared suspicious was improperly admitted; (5) Davies’s father’s testimony that his son would never have committed suicide was improperly admitted; (6) an autopsy photograph depicting Davies’s cracked skull was erroneously admitted into evidence because it was prejudicial and prevented Prewitt from receiving a fair trial; (7) that the evidence was insufficient; and, finally, (8) that she was improperly sentenced.
Concluding that the State improperly withheld material information from Prewitt prior to trial in violation of Brady, we reverse the judgment of the trial court on that basis. However, while we find that the evidence presented by the State was sufficient to support Prewitt’s conviction, we also observe that other issues raised by Prewitt in this appeal cause us great concern in the event of a retrial. Specifically, we note that the admission of certain statistics into evidence amounted to harmless error in these circumstances, that Prewitt has waived her argument with respect to the blood spatter evidence, and that Dr. Kohr’s testimony as to his difficulty in believing that Prewitt would not have heard the gunshot was not improperly admitted. We further observe that Davies’s father’s testimony was properly admitted and that the autopsy photograph was properly admitted. Finally, we conclude that the State’s evidence was sufficient to support Prewitt’s conviction so as not to bar a retrial under double jeopardy principles. See footnote

Witnesses testified to seeing Banks and Whitehead together on April 11 in Whitehead’s green Mustang and to hearing gunshots in Pocket Park at 4 a.m. on April 12. See footnote Charles Cook testified that Banks arrived in Dallas in a green Mustang at about 8:15 a.m. on April 12, and stayed with Cook until April 14. Cook gave the following account of Banks’s visit. On the morning of his arrival, Banks had blood on his leg and told Cook ‘he [had] got into it on the highway with a white boy.’ That night, Banks confessed to having ‘kill[ed] the white boy for the hell of it and take[n] his car and come to Dallas.’ During their ensuing conversation, Cook first noticed that ‘[Banks] had a pistol.’ Two days later, Banks left Dallas by bus. The next day, Cook abandoned the Mustang in West Dallas and sold Banks’s gun to a neighbor. Cook further testified that, shortly before the police arrived at his residence to question him, Banks had revisited him and requested the gun.

On cross-examination, Cook three times represented that he had not talked to anyone about his testimony. In fact, however, Cook had at least one ‘pretrial practice sessio[n]’, at which Huff [the Deputy Sheriff] and prosecutors intensively coached Cook for his appearance on the stand at Banks’s trial. The prosecution allowed Cook’s misstatements to stand uncorrected. In its guilt-phase summation, the prosecution told the jury ‘Cook brought you absolute truth.’

Corroborating parts of Cook’s account, Farr testified to traveling to Dallas with Banks to retrieve Banks’s gun. On cross-examination, defense counsel asked Farr whether he had ‘ever taken any money from some police officers,’ or give[n] any police officers a statement.’ Farr answered no to both questions; he asserted emphatically that police officers had not promised him anything and that he had ‘talked to no one about this [case]’ until a few days before trial. These answers were untrue, but the State did not correct them. Farr was the paid informant who told Deputy Sheriff Huff that Banks would travel to Dallas in search of a gun. In a 1999 affidavit, Farr explained: ‘I assumed that if I did not help [Huff] with his investigation of Delma [Banks] that he would have me arrested for drug charges. That’s why I agreed to help [Huff]. I was afraid that if I didn’t help him, I would be arrested . . . .
‘Willie Huff asked me to help him find Delma’s gun. I told [Huff] that he would have to pay me money right away for my help on the case. I think altogether he gave me about $200.00 for helping him. He paid me some of the money before I set Delma up. He paid me the rest after Delma was arrested and charged with murder . . . .
‘In order to help Willie Huff, I had to set Delma up. I told Delma that I wanted to rob a pharmacy to get drugs and that I needed his gun to do it. I did not really plan to commit a robbery but I told Delma this so that he would give me his gun . . . . I convinced Delma to drive to Dallas with me to get the gun.’

Banks, 124 S.Ct. at 1264-65. At the penalty phase of Banks’s trial:

On cross-examination, defense counsel twice asked whether Farr had told Deputy Sheriff Huff of the Dallas trip. The State remained silent as Farr twice perjuriously testified: ‘No, I did not.’ Banks’s counsel also inquired whether Farr had previously attempted to obtain prescription drugs by fraud, and, ‘up tight over that,’ would ‘testify to anything anybody want[ed] to hear.’ Farr first responded: ‘Can you prove it?’ Instructed by the court to answer defense counsel’s questions, Farr again said: ‘No, I did not. . . .’

Former Arkansas police officer Gary Owen testified that Farr as a police informant in Arkansas, had given false information; the prosecution impeached Owen by bringing out his pending application for employment by defense counsel’s private investigator.

Banks admitted striking Vetran Jefferson in April 1980, and traveling to Dallas to obtain a gun in late April 1980. He denied, however, any intent to participate in robberies, asserting that Farr alone had planned to commit them. The prosecution suggested on cross-examination that Banks had been willing ‘to supply [Farr] the means and possible death weapon in an armed robbery case.’

Urging Farr’s credibility, the prosecution called the jury’s attention to Farr’s admission, at trial, that he used narcotics. Just as Farr had been truthful about his drug use, the prosecution suggested, he was also ‘open and honest with [the jury] in every way’ in his penalty-phase testimony. Farr’s testimony, the prosecution emphasized, was ‘of the utmost significance’ because it showed ‘Banks is a danger to friends and strangers, alike.’ Banks’s effort to impeach Farr was ineffective, the prosecution further urged, because defense witness ‘Kelley kn[ew] nothing about the murder,’ and defense witness Owen ‘wish[ed] to please his future employers.’

Id. at 1266-67.

In response to Banks’s petition for postconviction relief where he claimed the Brady violation, the State responded that “nothing was kept secret from the defense.” Id. at 1267. Although the State specifically asserted that the State had made “no deal with Cook,” the State said nothing about Farr. Id.
    During the course of post-trial discovery, one of the items that was turned over to Banks, pursuant to the court’s order, was a seventy-four page transcript of an interrogation of Cook. The transcript revealed that the State’s representatives had closely rehearsed Cooks’ testimony. Additionally, testifying at the evidentiary hearing, Deputy Sheriff Huff acknowledged, for the first time, that Farr was an informant and that he had been paid $200 for his involvement in the case.
    In ultimately determining that Banks was entitled to present evidence in support of his Brady claims, and further deciding that Banks was entitled to a certificate of appealability as to the question of whether he adequately raised one of his other Brady claims, the United States Supreme Court observed:
First, the State knew of, but kept back, Farr’s arrangement with Deputy Sheriff Huff. Second, the State asserted, on the eve of trial, that it would disclose all Brady material. Third, . . . Banks asserted that Farr was a police informant and Banks’ arrest, a ‘set-up.’ In its answer, the State denied Banks’s assertion. The State thereby ‘confirmed’ Banks’s reliance on the prosecution’s representation that it had fully disclosed all relevant information its file contained. . . . If it was reasonable for Banks to rely on the prosecution’s full disclosure representation, it was also appropriate for Banks to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction.

Id. at 1273-74 (citing Berger v. United States, 295 U.S. 78, 88 (1935)). The court

went on to note that:

Our decisions lend no support to the notion that defendants must scavenge for hints of undisclosed Brady material when the prosecution represents that all such material has been disclosed. The State here nevertheless urges, in effect, that ‘the prosecution can lie and conceal and the prisoner still has the burden to . . . discover the evidence, so long as the ‘potential existence’ of a prosecutorial misconduct claim might have been detected. A rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system constitutionally bound to accord defendants due process. ‘Ordinarily, we presume that public officials have properly discharged their official duties.’

Id. at 1275 (quoting Bracy v. Gramley, 520 U.S. 899, 909 (1997) (emphasis added)).

Additionally, it was pointed out that

Id. at 1276-77 (quoting Kyles, 514 U.S. at 434).
In considering the disposition and rationale espoused in Banks, together with the facts and circumstances of this case, it is apparent that what Prewitt’s defense counsel actually knew before trial was dramatically different—and far less exculpatory—than what the witnesses had, in fact, shared with the State prior to trial. When Prewitt’s counsel heard rumors of Hunter’s late night visit, her investigator made an immediate effort to contact the witnesses. And, as the circumstances indicate, the police misrepresented whether they had spoken to these witnesses, and the prosecutor did nothing to correct those misrepresentations.
Here, the State argues that the evidence regarding Hunter was not credible because (1) Chastity and Crystal rendered accounts that were inconsistent with each other; (2) Jennifer, who apparently had the conversation with Hunter, consistently denied it; and (3) none of the three girls could say with certainty that Hunter’s visit to the window happened the night that Davies was killed. Appellee’s Br. p. 30. Contrary to this position, Detective Hoskins believed that Crystal and Chastity’s statements were consistent. To be sure, he testified that he viewed Crystal’s statement to Trooper Eslinger as “corroborat[ing]” the statement he had taken from Chastity. Appellant’s App. p. 501. Detective Hoskins also acknowledged that Crystal told Officer Eslinger “basically the same thing Chastity had told me.” Appellant’s App. p. 501.
Evidence was also presented at trial establishing that Hunter went to the girls’ window the night that Davies was shot. For instance, Chastity testified that she heard Hunter come to the window and say he “had to get out of town.” Appellant’s App. p. 558. On direct examination, she expressly stated that this was the evening that Davies was shot. Appellant’s App. p. 559. Chastity also believed that the conversation at the window was with regard to Davies’s death. Appellant’s App. p. 496. She contacted the police because “it was on [her] conscience” and she “couldn’t deal with it anymore.” Appellant’s App. p. 683. Jennifer testified that one night in January when they had a sleepover with Crystal, the following day her niece came over and said that Davies had been shot the preceding evening. Appellant’s App. p. 536.
    In our view, the State’s suppression of the evidence detailed above presented questions of the utmost importance at the trial about the manner, quality, and thoroughness of the investigation that led to Prewitt’s arrest five years after Davies had been shot. And Prewitt could at least have used the suppressed evidence to show shortcomings in the investigation. Without the exculpatory evidence, Prewitt was locked in to a defense at trial that Davies had committed suicide. Had the Brady information described above been disclosed to Prewitt, she certainly could have made a claim that Hunter—or someone else—had been the shooter. That said, we cannot agree with the State’s proposition that it should pay no penalty for suppressing the above evidence.
We must similarly reject the State’s contention that Prewitt should or could have discovered the suppressed evidence through the exercise of due diligence because Prewitt may have been aware of Hunter’s visit to the girls’ residence. It is quite apparent to us that the State misled Prewitt under oath in the early stages of the investigation, and that misfeasance was never corrected. Detective Hoskins testified about the witnesses he had interviewed, and that list did not include Chastity Swiger or Crystal Ladsen. While Detective Hoskins acknowledged that he typically took notes regarding unhelpful information and that he had no such notes in the case, the post-trial evidence demonstrated otherwise. Moreover, Detective Hoskins erroneously testified that he was not aware of any exculpatory evidence. Defendant’s Brady Ex. A, p. 33-34. And Prewitt justifiably relied upon these affirmative misrepresentations.
     Additionally, even if Detective Hoskins forgot about the interview and the notes—as he in fact claimed—the prosecutor was aware of the interviews, but similarly “forgot” that such evidence existed, and sat idly by without correcting the false testimony. Appellant’s App. p. 498-99, 501; Defendant’s Brady Ex. A, p. 16-17. In light of these circumstances, the State is in no position to fault the defense, inasmuch as it was the State that created the conditions that occurred here. See Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (reversing a murder conviction where the government disclosed Brady material three days prior to trial after misleading the defendant about this evidence during plea negotiations).
Therefore, we can only conclude that the State’s suppression of this evidence amounted to a Brady violation.

Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

In interpreting the above rule, this court recently reaffirmed the notion that an expert must be qualified by knowledge, skill, experience, training or education. Messer v. Cerestar USA, Inc., 803 N.E.2d 1240, 1247 (Ind. Ct. App. 2004), trans. denied. Additionally, an expert must have sufficient skill in his particular area of expertise before an opinion may be rendered in that area. Armstrong v. Cerestar USA., Inc., 775 N.E.2d 360, 365 (Ind. Ct. App. 2002), trans. denied. Moreover, an expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other area. Wallace v. State, 553 N.E.2d 456, 463 (Ind. 1990).
We also note that the proponent of expert testimony bears the burden of establishing the foundation and reliability of the scientific principles and tests upon which the expert’s testimony is based. Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied (citing McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997)). And reliability may be established by judicial notice or, in its absence, by the one who seeks to offer the scientific testimony. The proponent of the evidence must provide a sufficient foundation that will convince the trial court that the relevant scientific principles are reliable. Steward v. State, 652 N.E.2d 490, 498 (Ind. 1995).
    Here, Prewitt claims that the trial court erred in admitting Dr. Kohr’s testimony because the statistical calculations were outside the scope of his expertise and because he relied upon invalid mathematical calculations that produced unreliable results. She makes the point that there was no evidence regarding Dr. Kohr’s expertise or specialized knowledge in statistics or their interpretation. To illustrate, Prewitt points to the “product rule” method that Dr. Kohr used at trial in producing the “4 in 10,000 figure.” Appellant’s Br. p. 16. This rule “states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur.” People v. Collins, 68 Cal.2d 319, 325 (Cal. 1968). That is, the product rule predicts the probability of two variables occurring simultaneously by multiplying the known probability of one variable by the known probability of the other. See id.
     Prewitt directs us to Wilson v. Maryland, 803 A.2d 1034 (2002), where the trial court committed reversible error in admitting expert probability testimony concerning the likelihood of two separate infant deaths being related to SIDS, as opposed to homicide. The expert who testified in Wilson stated that the chances of two children in the same family dying of SIDS was 1 in 100,000,000. Id. at 1047. It was determined that this calculation—based upon the product rule—was erroneous because “a condition necessary to the proper application of the product rule was lacking: there was inadequate proof of the independence of [each of the children’s] deaths.” Id. at 210.
Moreover, the court was not able to rule out the possibility that there was a genetic component to SIDS. Finally, the appellate court commented that because “lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials,” the defendant was granted a new trial. Id. at 212. Citing Wilson, Prewitt maintains that the State presented no evidence tending to show that the suicide variables it considered dispositive are independent of each other, and she further maintains that the use of the product rule in this case grossly under-inflated the statistical probability that Davies’s death was a suicide. Put another way, Prewitt argues that the testimony that only 4 in 10,000 suicides are forehead wounds of intermediate range constitutes a grotesque exaggeration when the actual numbers are reviewed.
    Prewitt also urges that Dr. Kohr’s testimony should not have been admitted because there was no showing that the source of the statistics had been subjected to scientific testing, that the statistics and the methodology used to secure them had been subjected to peer review, or that there is general acceptance of them in the scientific community. Inasmuch as there was no foundational basis for Dr. Kohr’s opinions with regard to this issue, Prewitt argues that the admission of this evidence amounted to reversible error.
    Finally, Prewitt maintains that the evidence offered by Dr. Kohr was “so lacking in probative value” that it was irrelevant. Appellant’s Br. p. 22. Again, Prewitt asserts that Dr. Kohr’s opinions were based on the presence of statistical probabilities of certain variables for which no foundation was offered and which were demonstrably false. Moreover, Prewitt posits that this evidence suggesting guilt was unfairly prejudicial. She notes that when unsubstantiated estimates are used in probability calculations, speculation is presented to the jury that is clothed in scientific accuracy. Thus, the prejudicial impact clearly outweighs any probative value of the evidence. See Davis v. State, 476 N.E.2d 127, 134 (Ind. Ct. App. 1985), trans. denied.
    At the outset, we note that the State argues that Prewitt has waived this issue because she failed to raise these objections at trial. However, contrary to the State’s contentions, Prewitt’s counsel not only objected to the form of the question regarding Dr. Kohr’s testimony, but the remainder of the objection was “I don’t think this witness can say there’s a 99% probability.” Tr. p. 425. Inasmuch as Prewitt’s argument focused on whether Dr. Kohr could state that there was a 99% probability that Davies’s shooting was a homicide rather than a suicide, we find that Prewitt’s objection was adequate and that she did not waive the issue.
Proceeding to the merits of Prewitt’s argument, it is apparent that her challenges to the validity of Dr. Kohr’s statistical methodology, and specifically the use of the product rule, goes to the weight of the evidence, not its admissibility. See Smith v. State, 702 N.E.2d 668, 673-74 (Ind. 1998) (stating that a defendant’s claim that the product rule was improperly applied because the genes were in linkage disequilibrium, and thus not independent, went to the weight and not the admissibility of the evidence). Additionally, Prewitt has not made a sufficient showing that Dr. Kohr’s testimony was not outside the scope of his expertise. Specifically, it was established at trial that Dr. Kohr is a forensic pathologist and a professor of criminology. Tr. p. 412-13. Part of the pathologist’s task is to determine whether a particular death was a suicide or a homicide. Tr. p. 415. Moreover, the State asserts—and we agree—that Dr. Kohr was not required to explain the source of his statistics in order to make his testimony admissible. To be sure, an expert is permitted to testify to his opinion and the reasons therefore “without first testifying to the underlying facts or data.” See Ind. Evidence Rule 705.
Finally, we note that even if it can be said that the admission of Dr. Kohr’s testimony was error, it was harmless at best. This court will not reverse a conviction based on the improper admission of evidence when harmless error results. Edmond v. State, 790 N.E.2d 141, 144 (Ind. Ct. App. 2003), trans. denied. An error will be deemed harmless if the probable impact of the evidence upon the jury is sufficiently minor so as not to affect a party’s substantial rights. Id. at 144-45.

Here, the location of the shot to the forehead was not the only factor that Dr. Kohr relied upon to conclude that Davies’s death was a homicide. The evidence showed that Dr. Kohr relied upon several other factors, including the non-contact nature of the wound—which occurs in only 2-4% of suicides—Davies’s high level of intoxication that would have made it difficult for him to have the motor control needed to inflict this injury, and the fact that Prewitt had claimed not to have heard any gunshot even though she was approximately five feet away. In light of these factors, we cannot say that there was a reasonable likelihood that the opinion to which Dr. Kohr testified would have been different had it been based on data indicating that the percentage of gunshot suicides to the forehead was only a few percentage points higher.
     Moreover, the State presented the trial testimony of a second forensic pathologist, Dr. Pless, who independently reviewed the evidence and also concluded that Davies’s death was a homicide. Tr. p. 451-55. Dr. Pless did not rely on the location of the entry wound to the forehead either alone, or in conjunction with, the distance of the weapon. Tr. p. 454-55. Because this second forensic pathologist testified that Davies’s death was a homicide wholly apart from, and without relying on, the statistical evidence that Prewitt now challenges, any error in the admission of Dr. Kohl’s testimony was at most, harmless error.