Binkley v. State, 82S00-9308-CR-940

• Decision Date: 10 August 1995
• Docket Number: No. 82S00-9308-CR-940,82S00-9308-CR-940
• Citation: 654 N.E.2d 736
• Parties: Jerome BINKLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 736

654 N.E.2d 736

Jerome BINKLEY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82S00-9308-CR-940.

Supreme Court of Indiana.

Aug. 10, 1995.

Eugene C. Hollander, Indianapolis, for appellant.

Pamela Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for appellee.

SHEPARD, Chief Justice.

After two mistrials, appellant Jerome Binkley was tried a third time before a Vanderburgh County jury. Though the evidence was circumstantial, he was convicted of murdering his friend Wayne Kemp. The court sentenced Binkley to the maximum sixty years for murder, and added thirty years because Kemp was found an habitual offender. Binkley now challenges his conviction on two grounds. First, he asserts that the evidence was insufficient to support the jury's verdict. Second, he challenges his sentence as manifestly unreasonable. We affirm.

I. Sufficiency of the Evidence

Binkley argues that the evidence in the record "does not establish that the Defendant is the person who shot the decedent, or that the Defendant acted in a knowing manner." Brief for Appellant at 22. Thus, he says, the State proved only that Kemp died from a gunshot wound to the head, not enough to sustain the conviction.

When reviewing whether the evidence was sufficient to support the conviction, we do not substitute our judgment for that of the jury. The verdict comes before us with a presumption of legitimacy. We reverse only if, after viewing the evidence in the light most favorable to the judgment, we are convinced that as a matter of law the facts of the case and reasonable inferences drawn therefrom do not support the verdict. Gilmore v. State (1981), 275 Ind. 134, 415 N.E.2d 70. This is a high hurdle. Still, when there are no witnesses to the murder and the prosecution depends on circumstantial evidence, it is incumbent on an appellate court to ensure that the record contains adequate support for the conviction.

The evidence at trial showed that in the early morning hours of August 31, 1991, Wayne Kemp was shot in the head while sitting in the front seat of his car. After completing an autopsy, the coroner could not determine what type of gun fired the fatal bullet. Furthermore, the police could not find the fatal bullet. They did discover, however, a spent shell casing on the floor of the car. Ballistics tests confirmed that the casing had housed a bullet fired from a Taurus nine-millimeter pistol found in a trash can behind the house of the appellant's friend, Dennis Owens.

Linking the putative murder weapon to Binkley was an important element of the State's case. Though the pistol had been cleaned of fingerprints, Owens and another witness, Bill Loveland, testified that it had been in Binkley's possession the night of Kemp's murder. Police confirmed that the pistol was one of several firearms stolen a week before the murder from a Terre Haute sporting goods store. Binkley, Loveland, and Kemp were suspects in that robbery. Quite a number of the Terre Haute weapons were also recovered from Owens' trash can. According to Owens, Binkley had left a trash bag containing several guns, including the Taurus pistol, at his (Owens') house a few days before the murder. Owens took a fancy to the pistol, and at some point gave Binkley forty dollars toward its purchase.

The night before the murder, Owens and Binkley met with friends at various Terre Haute night spots. Owens had loaded the pistol before leaving home, and had it with him in his car. He still considered it to be Binkley's gun, and gave it to Binkley after he asked for it in the parking lot across the street from Nolan's Bar. At some point, Wayne Kemp's car pulled up to the group of revelers in the parking lot. Owens last saw appellant that night walking toward Wayne Kemp's car.

The next morning Binkley came to Owens' house and presented him with a cloth bundle containing the pistol, now covered with sand and dirt. Binkley left, but returned later in the day after being questioned by the police. He informed Owens that the police were looking for the guns stolen in Terre Haute in connection with Kemp's murder, and he said they needed to get rid of them. Owens, who had cleaned the Taurus pistol prior to Binkley's return, concealed it with the other weapons at the bottom of a trash can in the alley behind his house. A short while later Binkley was arrested at Owens' house for Kemp's murder. Owens subsequently led detectives to the stash of guns.

Loveland corroborated Owens' account in important ways. He testified he had been sleeping at Binkley's apartment on the night in question, and he was awakened at least twice before sunrise. On the first occasion, while Binkley was still out on the town, Wayne Kemp came by looking for him. Kemp left after smoking some cocaine, possibly heeding Loveland's suggestion to look for Binkley at Nolan's. (It was outside Nolan's where Owens observed appellant approach Kemp's car.)

Loveland was awakened again about 4 a.m. when Binkley returned to the apartment. The two took to the streets on Loveland's bicycle just as dawn was beginning to break. They first attempted to call on Owens. When no one responded to their knocking, Binkley produced a nine-millimeter pistol and hid it in the barbecue grill behind Owens' house (thus explaining the gritty coating Owens described). They next attempted to purchase cocaine at another location, without success, and finally proceeded at Binkley's direction to the alley where Kemp's car sat with his body inside.

At the car, Binkley retrieved the keys from inside and opened the trunk. Binkley told Loveland he had already taken five hundred dollars from Kemp and was searching for "the rest of the money." ¹ The trunk search proved unsuccessful, and Loveland and Binkley departed for a nearby crack house. On each of two visits Binkley acquired a gram of cocaine. The cocaine had a street value of a hundred dollars per gram. When arrested several hours later, Binkley was carrying three one-hundred dollar bills and a one-dollar bill.

The testimony by Owens and Loveland strongly suggested Binkley's guilt, of course, but there was also physical evidence linking appellant to the murder. The clothes he was seen wearing the night of the murder turned up covered in blood in a dumpster. Tests of the blood on...