Darnell v. State

• Decision Date: 25 May 1982
• Docket Number: No. 581S147,581S147
• Parties: Everett Ray DARNELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 250

435 N.E.2d 250

Everett Ray DARNELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 581S147.

Supreme Court of Indiana.

May 25, 1982.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., George B. Huff, Jr., Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Everett Ray Darnell, was convicted by a jury of burglary, a class B felony, Ind.Code § 35-43-2-1 (Burns 1979 Repl.), and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was sentenced to terms of fifteen and thirty years. He presents the following six issues in this direct appeal:

1. Whether the trial court erred by admitting certain of the state's exhibits;

2. Whether the court abused its discretion by denying defendant's motion for mistrial;

3. Whether there was sufficient evidence to support the verdict of the jury on the habitual offender count;

4. Whether the court erred by denying defendant's motion for change of venue;

5. Whether defendant was denied the effective assistance of counsel; and

6. Whether the sentence on the burglary count was manifestly unreasonable.

A summary of the facts from the record most favorable to the state shows that during the morning of January 4, 1979, the defendant and his younger brother, Mark Darnell, broke into the home of Mr. and Mrs. Percy Carlton in Mt. Vernon, Indiana, and stole several items of personal property. The brothers were driving a bronze colored GMC pickup truck that morning. They quickly ransacked the home, loaded the truck with a variety of salable items, covered the loot with a sheet and blanket, and left within three or four minutes. Much of the stolen property was later recovered from defendant's apartment; however, a diamond ring had been pawned at Goldman's Pawn Shop in Evansville, Indiana, and a reel-to-reel tape recorder had been sold to Martin Goebel.

The Carltons testified that they discovered the burglary when they returned home from work later that day. Mr. Carlton said that the missing items included a TV set, a reel-to-reel tape recorder, a mantel clock, lamps, shirts, a diamond ring, other jewelry, and his daughter's piggy bank. He estimated that the total value of the missing items was around $7,000. Defendant's brother testified for the state at the trial and described the events of the burglary. He said he had been living with the defendant at that time and they were supposed to share the proceeds equally.

I.

Defendant first argues that the trial court erred by admitting into evidence state's exhibit No. 15 which was a photograph of several pieces of stereo equipment. This photograph was admitted during the testimony of Martin Goebel who stated that he had purchased some stereo equipment from defendant on January 15, 1979. He identified state's exhibit No. 9, which was in the courtroom, as "just like" the Pioneer reel-to-reel recorder that defendant sold to him. He further stated that he had purchased other equipment from the defendant at that same time and then had turned all this equipment over to the Indiana State Police when they called him on April 3, 1980. He stated that the photograph was a picture of all the equipment he had purchased from defendant and that he was present when the photograph was taken at the police station. The reel-to-reel recorder which was state's exhibit No. 9 was one of the pieces of equipment in the photograph and was clearly identified by Goebel. Defendant argues that the photograph was prejudicial since it showed several pieces of equipment not connected with the case and permitted the unfair inference that he had stolen all of the items in the photograph.

It is well settled that the admission into evidence of a photograph is within the sound discretion of the trial judge and his decision will be reversed only where it can be shown that such discretion was abused. Simpson v. State, (1978) 269 Ind. 495, 381 N.E.2d 1229; Jewell v. State, (1974) 261 Ind. 665, 309 N.E.2d 441. The relevancy of a photograph is determined by an inquiry as to whether or not a witness would be permitted to testify as to the objects depicted in the photograph. Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d 89; Pierce v. State, (1970) 253 Ind. 650, 256 N.E.2d 557. In the instant case, Goebel had testified about several items of stereo equipment he had purchased from defendant. The photograph was illustrative of this testimony and the reel-to-reel recorder taken from the Carlton house was clearly identified by the witness. Since the testimony about the purchase of the group of stereo equipment was relevant to show how Goebel acquired the tape recorder, the photograph was also relevant. We find no abuse of discretion here.

Defendant also objects to the admission of a copy of a pawn ticket into evidence. Mrs. Maxine Finke, who was the bookkeeper and secretary at Goldman's Pawn Shop in Evansville, testified that this exhibit, state's exhibit No. 18, was a true and accurate copy of the original ticket which was kept as part of the normal course of business. The ticket was evidence of a loan for a diamond ring and had defendant's name signed on it. Mrs. Finke stated that this ticket did not contain all of the information on it that was normally required as it did not show the address or the description of the person who signed the ticket. She further testified that she had no personal knowledge of the loan, but that she did maintain all the records.

Defendant contends that since some of the information was missing from the ticket and Mrs. Finke had no personal knowledge of the transaction, the ticket should not have been admitted into evidence. We do not agree. The business records' exception to the hearsay rule does not require that a sponsor of an exhibit must have personally made it, filed it, or have had firsthand knowledge of the transaction represented by it. The record keeper must only show that it is part of the records kept in the routine course of business and placed in the record by one authorized to do so, who had personal knowledge of the transaction represented at the time of the entry. Thompson v. State, (1979) Ind., 386 N.E.2d 682; Crosson v. State, (1978) 268 Ind. 511, 376 N.E.2d 1136; Jones v. State, (1977) 267 Ind. 205, 369 N.E.2d 418. There was a sufficient foundation established for the admission of the pawn ticket in this case.

Defendant further objects to the admission of state's exhibit No. 10 into evidence. This exhibit was a photograph of a note which Mrs. Carlton had written for her daughter to take to school and which had apparently been taken along with her daughter's billfold during the burglary. The police officer who inventoried the contents of defendant's bronze colored pickup truck testified that he found a note lying in the bed of the truck and that state's exhibit No. 10 was a photograph of that note. However, the officer also testified that the original note could not be located for presentation at the trial. Mrs. Carlton identified the photograph in court as depicting the note which was taken during the burglary. We find this was a sufficient factual foundation to support the admission of the photograph. The "best evidence" rule is not applicable in this case since that rule states that the original writing is required as the best evidence of its content whenever the writing itself is central to the litigation. The Law of Evidence In Indiana, Seidman (1977) p. 145; American United Life Ins. Co. v. Peffley, (1973) 158 Ind.App. 29, 301 N.E.2d 651, 306 N.E.2d 131. The writing contained in the note was not a material fact in this case.

Defendant further argues that it was error to admit state's exhibits Nos. 1-7, which were items from the Carlton home seized at defendant's apartment after the police had obtained a consent to search form signed by defendant's wife, Denise. Defendant contends that the circumstances do not show that this consent was voluntarily given. It is clear that a consent will be valid except where it was procured by fraud, duress, fear, intimidation, or where it is a mere submission to the supremacy of the law. Voluntariness is a question of fact to be determined from all of the circumstances. Brames v. State, (1980) Ind., 406 N.E.2d 252; Wollam v. State, (1978) 269 Ind. 286, 380 N.E.2d 82.

In the instant case, Denise Darnell had agreed to go to the police station for questioning and was not under arrest. She was advised that she did not have to sign a consent form and could refuse to permit any search. She testified that she was neither forced nor frightened into signing the form. The written form acknowledges her right not to have a search made and affirms her voluntary permission for the search. Defendant stated that his wife had recently been in the hospital and was still sore and weak when she was at the police station. This evidence does not outweigh the substantial evidence of voluntariness also presented. Thus, it was reasonable for the trial court to find that Denise's consent was voluntary and there was no error in admitting the items seized as a result of the search.

II.

During the cross-examination of Deputy Sheriff Larry York, defense counsel elicited testimony about the arrest of defendant's brother, Mark, on February 5, 1979. York said that Mark was seen in defendant's pickup truck and that Mark was charged with attempted murder, burglary, and conspiracy to commit burglary. Then on redirect examination, York testified that defendant was with his brother and was arrested at the same time that day. Defendant immediately moved for a mistrial, but this motion was denied. On recross examination, defense counsel brought out that defendant was tried and acquitted of these charges. It is well settled that the granting of a mistrial lies largely within the sound discretion of the trial court and the refusal to grant a...