Baker v. State

• Decision Date: 21 June 1983
• Docket Number: No. 981S244,981S244
• Citation: 449 N.E.2d 1085
• Parties: Rodney E. BAKER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1085

449 N.E.2d 1085

Rodney E. BAKER, Appellant, v. STATE of Indiana, Appellee.

No. 981S244.

Supreme Court of Indiana.

June 21, 1983.

William G. Smock, Terre Haute, for appellant.

Linley E. Pearson, Atty. Gen., Linda M. Collins, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant was convicted of rape and robbery. He was sentenced to a thirty (30) year term of imprisonment, enhanced by twenty (20) years for the rape conviction. He was sentenced to a ten (10) year term of imprisonment, enhanced by ten (10) years for the robbery conviction. The sentences were ordered to be served concurrently.

The record reveals that on August 10, 1980, the victim, L.C., heard glass breaking as she prepared for bed at approximately 4:00 A.M. When she walked into the living room, she was met by a man who had broken a window and gained entry through a front door. The man, later identified as appellant, ordered her to disrobe at knife point. After raping L.C., he threatened to kill her if she telephoned anyone. Appellant took a watch and old coins as he left. However, he returned a few minutes later demanding money for gasoline or that L.C. provide transportation. The victim convinced him that she had called for help and that he should leave.

Appellant claims the trial court erred in admitting State's Exhibit 7. The exhibit consists of the hospital record of the examination and laboratory reports of L.C. The exhibit stated that sperm was present. Appellant first contends the exhibit was inadmissible because it contained hearsay and an adequate foundation had not been established.

Appellant also claims the State failed to establish a proper chain of custody regarding the specimens taken from the victim and tested by the laboratory. Under many circumstances records kept in the routine course of business may be introduced into evidence merely by the identification of one authorized to keep such records. See, Pitts v. State, (1982) Ind., 439 N.E.2d 1140. However, such records may not be used to establish the questioned authenticity of conclusions stated in the record. Although the specimens taken from L.C. and tested in the laboratory were not offered in evidence, the State cannot be permitted to present the conclusory fact that sperm was present in the specimens merely by presenting a hospital record stating that conclusion.

It was incumbent upon the State to present evidence of the doctor or someone in authority present at the taking of the specimens from L.C., and to further demonstrate a chain of custody of the specimens to the laboratory where the testing was made and the conclusions drawn. See, Rinard v. State, (1976) 265 Ind. 56, 351 N.E.2d 20. See also, 21 A.L.R.2d 1238, wherein it is stated:

"Accordingly, a hospital record containing an expert's analysis of a part removed in the operating room is not admissible where the only evidence of the identity of the person from whom it was taken was the testimony of the analyst that he received said part from a nurse, that it was then wrapped in gauze and labeled with the plaintiff's name, that this was the regular hospital routine and that all tissue removed in the operating room was thus examined and the result made a part of the hospital records, since no foundation was laid for the receipt of such evidence by showing the reason for the absence from the witness stand of said nurse, who had received the part from the operating surgeon, labeled it and delivered it to the expert. Clayton v. Metropolitan Life Ins. Co. (1938) 96 Utah 331, 85 P.2d 819, 120 A.L.R. 1117 ...."

In Arnold v. State, (1982) Ind., 436 N.E.2d 288, this Court recited the need for a continuous chain of custody of fungible evidence. In that case the State moved to admit a "rape kit" assembled by a physician and other medical personnel in the emergency room of the hospital. The physician testified that in the course of his examination the rape kit was put together in the emergency room. A serologist testified that she subjected the contents of the kit to testing. Thus, a chain of custody was clearly established in Arnold, supra.

In Arnold this Court did make a statement, citing cases, by way of dictum that "[t]he rule operates, however, only for the period after the evidence comes into possession of law enforcement personnel." However, the cases cited had to do with, in one instance, a knife thrown into a ditch by a defendant and, in another instance, a gun thrown into a trash container by a defendant. In each instance the claim was made that there was a break in the chain of custody from the time the defendant threw the weapon away until the police picked it up. Of course, the statement that the chain of custody does not begin to run until police take custody of the object is clearly correct under such circumstances. However, the statement is not applicable to the chain of custody of medical exhibits or the result thereof, such as are in the case at bar or in the Arnold case. We point this out in order that the dictum in Arnold not be misleading.

It was error for the trial court to allow State's Exhibit 7 in evidence with a total absence of proof of the chain of custody of the exhibits referred to therein. However, in view of the overwhelming amount of evidence in this case, totally independent of State's Exhibit 7, we hold the erroneous admission of that exhibit was harmless error.

In the first place the presence of sperm in a rape victim is totally unnecessary for a conviction of rape. Penetration of the victim is all that is necessary. Tillman v. State, (1980) Ind., 408 N.E.2d 1250.

Further, in addition to the positive identification of appellant by the victim, a neighbor testified that a person fitting the description of the defendant was seen parking his car across the street from the victim's home and walking across the street. Shortly thereafter the witness heard glass breaking, heard the victim screaming and called police. It was in response to this call that police arrived a short time later and took the victim to the hospital. In view of all the evidence in this record, it is highly improbable that the erroneous admission of State's Exhibit 7 had any effect whatever on the conviction of appellant.

Appellant claims the trial court erred in admitting the testimony of two witnesses who identified appellant as the man who raped them on separate occasions. "Although not admissible to show a defendant's propensity to commit crimes in general, evidence of prior crimes is admissible, if it is relevant to some issue in the case, most commonly intent, motive, knowledge, plan, identity or credibility." Brewer v. State, (1981) Ind., 417 N.E.2d 889, 893, citing Lawrence v. State, (1972) 259 Ind. 306, 286 N.E.2d 830.

L.C., the victim in the case at bar, and D.O. and D.M. unequivocally identified appellant as the man who raped them. While dissimilarities exist in the facts surrounding all three rapes, we conclude by comparing the offenses involving D.O. and D.M. to L.C., the facts are sufficiently similar to permit admission of the testimony of the victims of the uncharged offenses.

All three victims gave similar descriptions of their assailant. The rapes of D.O. and L.C. occurred at 3:30 A.M. and 4:00 A.M. respectively. In both cases, appellant fled by using a vehicle. He used a knife in both instances after robbing the victims. Appellant spoke similar endearments to L.C. and D.O. Appellant gained entry through an open door in the rape of D.M. and broke the glass in the locked door in the rape of L.C. He threatened both women with death. He stated to D.M. that his name was Edward G. Smith. He gave the name of Randall C. Smith to L.C. All three rapes occurred within eighteen days. The trial court did not err in admitting the testimony of D.O. and D.M. in that they tended to show a common scheme or plan and identity of appellant.

Appellant alternatively argues the testimony of D.O. and D.M. should have been suppressed as "fruit of the poisonous tree," Wong Sun v. United States, (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, because the testimony was the result of an allegedly illegal arrest warrant and subsequent detention.

Following her rape, D.O. viewed photographs of possible suspects. She tentatively identified appellant from a photograph of poor quality. She believed she could make a positive identification if a more clear photograph could be displayed. Acting upon this information, Detective Selinger presented an affidavit of probable cause requesting an arrest warrant be issued for appellant "pursuant to Davis v. Mississippi," (1969) 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. The affidavit recited the facts surrounding the rape of D.O., her description of her assailant and that she had chosen appellant's photograph stating "it was a good likeness but she wasn't sure due to poor quality." The affidavit further recited that the victim's car, taken by her assailant and reported stolen, was found burning. Upon viewing the photograph, a witness to the fire stated "he thought the man in the photo was the same man he saw walking away from the victim's auto." Due to the poor quality of the photograph, the witness was unsure.

The affidavit requested a warrant be issued for the purpose of obtaining a photograph of appellant to present to the victim and the witness for identification. The court issued an arrest warrant, finding there was "sufficient and probable cause under Davis v. Mississippi [citation omitted] to arrest [appellant] for the sole and only purpose of fingerprinting and photographing [appellant] and for the purpose of placing that photograph with an array of other photographs for the purpose of identification by the witness(es)." The warrant directed that appellant was to be released immediately following fingerprinting and photographing. The law enforcement officials complied with the language...