910 N.E.2d 826 (Ind.App. 2009), 49A02-0811-CR-999, McClendon v. State

Docket Nº:49A02-0811-CR-999.
Citation:910 N.E.2d 826
Opinion Judge:MAY, Judge.
Party Name:Emmanuel McCLENDON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney:David Pardo, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge Panel:BAKER, C.J., and BARNES, J., concur.
Case Date:August 10, 2009
Court:Court of Appeals of Indiana
 
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910 N.E.2d 826 (Ind.App. 2009)

Emmanuel McCLENDON, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0811-CR-999.

Court of Appeals of Indiana.

August 10, 2009

Transfer Denied Oct. 1, 2009.

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[Copyrighted Material Omitted]

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David Pardo, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Emmanuel McClendon appeals his conviction of and sentence for murder. 1 We hold there was no error in the admission of evidence, the evidence was sufficient, the

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bailiff's communication with the prosecutors was harmless, and his sentence is appropriate. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

McClendon was charged with the murder of eight-year-old K.H. K.H.'s parents are Christopher and Laura H., who were separated at the time of K.H.'s death. Christopher was residing in his grandmother's house on White Avenue in Indianapolis. On the evening of February 8, 2008, Laura brought eight-year-old K.H. and six-year-old A.H. to the house on White Avenue to spend the night with Christopher. K.H. and A.H. got out of Laura's car, which was parked on the street, and started playing in Christopher's truck, which was parked in the driveway. Laura remained in the car, and Christopher tried to persuade her to stay the night.

While they were talking, McClendon drove past them. White Avenue is a one-block residential street running between Burdsal Parkway on the north and 23rd Street on the south, and therefore would not generally be a convenient route to take. McClendon lived nearby on 23rd Street, and Christopher had known McClendon since they were young. They had been friends, but they had a falling out and were not in contact with each other. It was unusual for McClendon to be on White Avenue, and Christopher commented on it to Laura. Christopher said he put his hand on his waist when McClendon drove by, and Laura testified that Christopher pulled a gun out of his pocket and placed it on the ledge of her car window.

After McClendon passed by, Christopher, Laura, and the two girls drove to Red Lobster to pick up some food. On the way home, Laura and the girls were sleeping. Christopher was driving, and while he was on Burdsal Parkway, he saw McClendon turning right onto Burdsal from either White Avenue or an alley that runs behind the houses on White Avenue. McClendon then made a right turn onto the next street, taking him back south.

When they arrived back at Christopher's residence, Christopher and Laura woke up the girls, and they all went inside. K.H. immediately lay down on the couch, and the other three went into the bedroom. Before long, Christopher and Laura heard a car in the alley behind the house. Christopher suspected it was McClendon's car because he had an old car with a distinctive sound.

Christopher grabbed his gun and ran outside, but he did not see anything. He came back inside and headed back to the bedroom. After he had been inside for a few seconds, shots rang out. Christopher, Laura, and A.H. ran into the living room.

K.H. had been shot. Christopher said he saw her sitting on the floor near a bookcase, and he picked her up, fired two shots out the window, and handed K.H. to Laura. Laura recalled first seeing K.H. laying face down on the floor near the door.

K.H. was shot through the head and would have survived, if at all, for only a few minutes. The bullet passed through completely, and the specific bullet that caused the injury could not be identified. The entrance wound was irregular in shape, which is consistent with the bullet passing through another object before hitting K.H.

Three spent bullets were recovered from inside the house. Eleven spent casings were found grouped around a tree to the southwest of the residence. They were Golden Tiger brand 7.62 x 39 casings that could be fired from an AK-47.

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There were four bullet holes in the picture window on the west side of the house. Mark Ahonen of the Indiana State Police Laboratory testified two of the holes were from inward bound bullets and two were from outward bound bullets. One of the inward shots and the two outward shots were through the same pane, and Ahonen was able to determine that the inward shot was fired before the two outward shots.

Ten bullet holes were discovered in the south side of the house, and the glass had been smashed out of a door. Some bullets also hit Christopher's truck. Michael Smilko, supervisor of the Crime Scene Unit of the Indianapolis-Marion County Forensic Service Agency, used trajectory rods to determine where the shooter had been located. Although he could not pin down an exact location, Smilko was able to determine the shots had been fired from an area southwest of the residence, near the tree where the casings were found.

McClendon's car and residence were searched. Nothing was found in the car. In the residence, police found several weapons, some spent 7.62 x 39 casings, and a variety of live ammunition, including Golden Tiger brand 7.62 x 39 cartridges. The spent casings found at McClendon's residence and the spent casings found at the crime scene were fired from the same gun.

The following stipulation was entered into evidence:

1. That on February 8, 2008, Defendant owned an Egyptian Maadi AK-47 rifle;

2. That the Egyptian Maadi AK-47 rifle uses 7.62 x 39 caliber ammunition;

3. That State's Exhibit 107 is a copy of the receipt for Defendant's purchase of said rifle.

(State's Ex. 106.) McClendon's AK-47 was never located.

McClendon testified at trial, attempting to establish self-defense. He testified that around 9:00 p.m., he left home to go to Church's Chicken to get something to eat. As he was driving on Burdsal Parkway, he saw a friend trying to flag him down. He turned onto White Avenue to turn around and get back to his friend. When he passed Christopher's house, Christopher was outside and pulled out a gun. McClendon stopped and fired two shots from his AK-47 without aiming. He then drove off, continuing to fire shots. McClendon claimed the gun fell out of his car while he was driving. McClendon testified he first drove to a hotel near Southport Road and Interstate 65. He threw away some casings, then went inside to rent a room, but decided the hotel was too expensive. He ended up at a cousin's house, where he heard on the news that K.H. had been killed.

McClendon made a series of concessions on cross-examination:

Q You admit that you fired that gun, that AK-47 through the front window of the house on White Avenue, correct?

A Yes.

Q You admit that you fired that gun into the truck parked in front of White Avenue that day, correct?

A Yes.

Q And you admit that you fired repeatedly through the side of the house with that AK-47?

A Yes.

Q You killed [K.H.] with your AK-47 that ... night, didn't you?

A Yes.

( Id. at 580.)

In anticipation of McClendon's testimony regarding self-defense, the State was

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permitted to present evidence of a confrontation between McClendon and Christopher as evidence of a contrary intent. Christopher testified William Francis had grown up in the same neighborhood as he and McClendon. Early in 2007, Francis was living next door to McClendon. Christopher and Francis were working together to find and sell scrap metal. For a period of about two...

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