Kimbrough v. State
| Decision Date | 13 August 2009 |
| Docket Number | No. 20A03-0901-CR-29.,20A03-0901-CR-29. |
| Citation | 911 N.E.2d 621 |
| Parties | Jeffrey L. KIMBROUGH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Nancy A. McCaslin, McCaslin & McCaslin, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Jeffrey L. Kimbrough appeals his conviction for Battery with a Deadly Weapon,1 a class C felony, claiming that 1) the jury selection process was improper; 2) the trial court erred in admitting certain evidence at trial; 3) the jury was improperly instructed; 4) the State did not adequately rebut his claim of self-defense; 5) the restitution order was excessive; 6) he was improperly ordered to pay fines, court costs, and public defender fees because no indigency hearing was held; and 7) his trial counsel was ineffective.
Although we find no reversible error, we remand this cause with instructions that the trial court clarify its restitution order.
On December 28, 2006, James Peoples was working as a contractor for the Elkhart Housing Partnership at the Fleming Arms apartment complex. Part of the job involved the repair of kitchen cabinets in some of the units. Peoples's supervisor specifically instructed him not to replace the cabinets but to sand them down and put them back together.
Peoples hired Kimbrough, a childhood friend, to assist him with the project. After the men went to Menards and purchased some supplies, they went to Curtis Powell's apartment at Fleming Arms to begin work. At some point, Kimbrough and Peoples began to argue about how the kitchen cabinets should be fixed. When Peoples told Kimbrough that the cabinets were not going to be replaced, Kimbrough became "agitated" and "pi* *ed off." Tr. p. 559-60. Kimbrough then grabbed Peoples by the shirt collar, punched him in the face several times, and broke his glasses. As the argument escalated, Peoples picked up a hammer to defend himself. In response, Kimbrough grabbed a wooden table leg and hit Peoples in the head with it. After Peoples fell, Kimbrough stood over him, yelling "you mother-fu* * *ing ni* *er, I'll kill you." Id. at 573. Curtis entered the room, pushed Kimbrough away from Peoples, and called 911. Kimbrough then left the residence.
When the police and paramedics arrived, Peoples was bleeding profusely from his mouth and the side of his head. Peoples also had a bump on his head, and the officers noticed Peoples's torn shirt and broken glasses. Peoples told the police officers that he and Kimbrough had gotten into an argument and that Kimbrough grabbed him and punched him in the face several times. Peoples also told the officers that after he picked up a hammer to defend himself, Kimbrough grabbed the table leg and hit him in the head with it several times.
Peoples's wife drove him to Elkhart General Hospital, where he received stitches and was given Vicodin for his pain. The pain in Peoples's head lasted for nearly one week and Peoples still has a "floater" in his eye and a scar on his face. Id. at 592-95.
Detective Scott Weaver of the Elkhart Police Department interviewed Kimbrough about the incident. Kimbrough told Detective Weaver that he and Peoples argued about the job at the apartment complex and started shoving each other. Kimbrough told Detective Weaver that he picked up a table leg and hit Peoples twice in the head with it after Peoples swung a hammer toward him.
On April 3, 2007, the State charged Kimbrough with committing battery with a deadly weapon, a class C felony. Prior to trial, Kimbrough filed a motion in limine to exclude the tape of the 911 telephone call on the grounds that it violated his right of confrontation. Kimbrough also claimed that this evidence was hearsay, unduly prejudicial, and cumulative.
Following a hearing, the trial court determined that the tape was not testimonial and did not violate Kimbrough's right to confront witnesses against him. The trial court also ruled that the tape was admissible under an exception to the hearsay rule and that it was not inflammatory or unduly prejudicial. Finally, the trial court reserved any ruling on the tape's cumulative nature until the other evidence was heard at trial.
During the jury selection process, the parties exhausted the entire juror panel the first day, but one of the seats remained unfilled. As a result, the trial court decided to summon prospective jurors who had failed to appear with the intention of filling the panel the following day. However, only three additional jurors appeared and all of them were struck from the panel.
Kimbrough desired to proceed with only thirteen jurors by moving one of the alternate jurors into the empty slot. However, the State objected because it had not used its peremptory challenges with regard to the jurors in the alternate slots in the same way it would have had those persons been in a "regular" juror seat. Tr. p. 420. Over Kimbrough's objection, the trial court decided to continue the trial for approximately one month until it could have additional jurors present to complete the selection process.
During the second round of juror selection that was conducted on September 23, 2008, the trial court granted the State's motion to excuse prospective juror Karner for cause after he informed the trial court that he would be distracted and unable to focus on the evidence because of job-related issues. The trial court determined that juror Karner "clearly and unequivocally" indicated that he was too distracted to pay attention to the proceedings. Id. at 235-36.
When Peoples was called to testify at trial, juror Josephine Donaldson immediately notified the bailiff that she was acquainted with Peoples. Donaldson informed the trial court that she had worked with Peoples "back in the late 1970s," and she had not seen Peoples "in at least fifteen years." Id. at 510-14. Donaldson also testified that she and Peoples never socialized together and nothing about their prior relationship would render it difficult for her to be fair and impartial. Moreover, Donaldson stated that she would not give Peoples's testimony any more or less weight or credibility in light of her acquaintance with Peoples. The trial court rejected Kimbrough's request to dismiss Donaldson and the trial resumed.
Over Kimbrough's objection, Peoples was permitted to testify that Curtis, the tenant of the apartment, was in a position to observe the incident. Peoples testified that Curtis entered the room to see what was happening. Kimbrough also objected to the admission of the 911 tape on the sole ground that it was cumulative evidence. The trial court overruled the objection and the tape was admitted into evidence.
Kimbrough then objected to Elkhart Police Officer Stuart Herbert's testimony as to what Peoples told him when he and the paramedics arrived at the apartment. The trial court concluded that the State laid a proper foundation for admission of the statement and determined that Officer Herbert's testimony was admissible under the excited utterance exception to the hearsay rule.
Following the presentation of the evidence, the trial court read a final instruction to the jury, which defined serious bodily injury as "bodily injury that creates a substantial risk of death or that causes serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment of the function of a bodily member or organ." Appellant's App. p. 38. Kimbrough did not object to this instruction.
Kimbrough was found guilty as charged, and on January 5, 2009, the trial court sentenced him to eight years of incarceration with one year suspended to probation. Kimbrough was also ordered to pay a $5,000 fine, which was suspended, and court costs, which did not have to be paid until January 16, 2017. Kimbrough was also ordered to make restitution to Peoples in the amount of $1,084 and to reimburse the Elkhart Public Defender Supplemental Fund (Public Defender Fund) as conditions of probation in the amount of $500. Kimbrough now appeals.
Kimbrough claims that his conviction must be reversed because the trial court erred in granting the State's motion to exclude juror Karner and in refusing to dismiss juror Donaldson. Kimbrough also contends that the trial court abused its discretion when it continued the trial for one month until a second alternate juror could be selected. As a result of these alleged errors, Kimbrough claims that he is entitled to a new trial because his due process rights were violated.
The decision to grant or deny a challenge for cause to a prospective juror is a matter within the trial court's discretion. Fox v. State, 717 N.E.2d 957, 961 (Ind.Ct.App.1999). We will reverse the trial court's decision only if it is illogical or arbitrary. Id. Moreover, we afford substantial deference to trial judges regarding this decision because they see jurors firsthand and are in a better position to assess a juror's ability to serve without bias and reach a decision based on the law. Id. at 961-62. Finally, we note that the purpose of voir dire is to determine whether the potential juror can render a fair and impartial verdict in accordance with the law and evidence. Bradley v. State, 649 N.E.2d 100, 106 (Ind.1995).
In this case, juror Karner informed the trial court that he could not focus on the proceedings and the evidence because he would be distracted by the problems that his absence would cause at his place of employment. Tr. p. 212-13. Juror Karner also explained that his company was "behind in production" and he was responsible for training two new employees. Id. at 213-14.
In light of these circumstances, the trial court could have reasonably concluded that juror Karner would not be in a...
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