Kimble v. State, 278S31

• Citation: 387 N.E.2d 64,270 Ind. 539
• Decision Date: 04 April 1979
• Docket Number: No. 278S31,278S31
• Parties: Bruce Allen KIMBLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 64

387 N.E.2d 64

270 Ind. 539

Bruce Allen KIMBLE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 278S31.

Supreme Court of Indiana.

April 4, 1979.

Noble R. Pearcy, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Alembert W. Brayton, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

Bruce Allen Kimble, defendant, was tried by jury. A verdict was entered in which he was found guilty of first-degree murder and first-degree burglary. He was sentenced to life imprisonment on the murder charge and ten to twenty years' imprisonment on the burglary charge. His appeal to this Court focuses upon one issue: Did the trial court err in allowing into evidence a redacted transcript of witness Donna Summers's testimony from a former trial?

The facts most favorable to the state show that two elderly women (87 years of age and 85 years of age) were burglarized, beaten, and murdered in their home at 2937 Washington Boulevard, Indianapolis, Indiana, on or about midnight of October 3, 1975. One of the victims was blind and lame, and the other victim had suffered a stroke and had impaired vision.

The defendant and two other men broke into the women's home, took three radios and a jewelry box, and brutally attacked the women. One victim, who was stabbed, died the night of the burglary; the other victim, blind and helpless, was left for dead, having suffered a senseless, savage, and sadistic beating resulting in multiple cerebral injuries, a fractured rib, and a broken jaw. The second victim died two weeks after the attack without ever regaining coherency.

The evidence shows that very shortly after the three men left the burglarized premises they visited the nearby home of Donna Summers. Although they attempted to leave the jewelry box with Summers, she would not take it; instead, she put it outside and told the men to leave.

Christopher Petty, Summers's boyfriend, was at Summers's home when the jewelry box incident occurred. He testified in court regarding the events but was unable to identify the defendant as one of those present. A statement, which he had given to the police on October 6, 1975, was also introduced in which he stated that one of the participants was named Bruce.

An accomplice in the murders, James Coleman, testified at trial as part of a plea bargain agreement. Coleman related the events of the crime. He stated that the third co-perpetrator had taken a jewelry box from the house and told Coleman and Kimble that he had killed one of the ladies. "Then Bruce Kimble came outside the house . . . and Bruce said since you killed one of the ladies, I'll go back and kill the other one." He stated that Kimble went back inside and more noise and screaming was heard. The three men then left the scene of the murders and went to Donna Summers's house. Coleman substantiated Summers's and Petty's statements regarding the fact that the men stayed at Summers's only a short time and were told to leave.

The defendant's argument is that Donna Summers's testimony, admitted via a transcript redacted from the defendant's earlier mistrial, was improperly before the jury. We disagree. The trial court conducted an extensive hearing before it ruled that the state had used due diligence in attempting to locate Summers. Some of the facts elicited at that hearing were the following: (1) Summers had been...