Kinnel v. State, 1083S376

• Decision Date: 19 April 1985
• Docket Number: No. 1083S376,1083S376
• Citation: 476 N.E.2d 825
• Parties: Charles KINNEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 825

476 N.E.2d 825

Charles KINNEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1083S376.

Supreme Court of Indiana.

April 19, 1985.

Charles A. Beck, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., John D. Shuman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

PIVARNIK, Justice.

Defendant-Appellant Charles Kinnel was found guilty by a jury in the Marion Superior Court of murder, class A felony robbery and class A felony conspiracy to commit robbery. The trial court accordingly sentenced Defendant to sixty years imprisonment for the murder conviction, fifty years imprisonment for the robbery conviction and fifty years imprisonment for the conspiracy to commit robbery conviction. The conspiracy sentence was made consecutive to the murder sentence which was made concurrent to the robbery sentence. Appellant now directly appeals and raises the following four issues for review:

1. admission of certain exhibits into evidence;

2. alleged error in the interrogation of witness Pinkton;

3. alleged error in sentencing; and

4. sufficiency of the evidence.

On August 12, 1982, Howard Hall, manager of the Wakeup gasoline station located near the intersection of 38th Street and Post Road in Indianapolis was shot and killed as he was attempting to leave his place of business and drive to the bank to make a deposit. A patron of the service station, Bobby Weaver, was at a gas pump at the time of the shooting and observed the victim struggle with Appellant over possession of a money bag. Weaver subsequently identified Appellant in a photographic array, in a lineup, and in court at the time of trial. Appellant also was implicated as the perpetrator of these crimes by Darnell Burse, an accomplice. Burse had watched the station and knew the time when the victim took the money to a bank for deposit. Burse testified that he parked the car nearby the station and Appellant hid around the corner of a building. When the victim emerged from the gasoline station, Burse gave Appellant a hand signal whereupon Appellant came around the building, approached the victim and drew a pistol. When the victim refused to give Appellant the money he was carrying, Appellant shot him in the head and killed him. Appellant then fled with the victim's money bag containing seventeen-hundred dollars.

I

Appellant Kinnel first claims that the trial court committed reversible error by admitting State's Exhibit No. 11 into evidence. State's Exhibit 11 was a photograph of the victim lying where he had fallen after he was shot by Appellant with his head and upper body covered by a cloth. Appellant's only objection is that Exhibit 11 is repetitious of Exhibits 9 and 10, which were photographs that also depicted the victim's body. In Exhibits 9 and 10, the photographs were taken from different angles and showed the victim's body fully draped with a cloth. None of the three photographs show any gory details. State's Exhibit 11, along with the two other photos, were depictions of the crime scene and of the victim where he was found by police shortly after the crime. They clearly were admissible. Akins v. State, (1981) Ind., 429 N.E.2d 232, reh. denied [autopsy photographs]; Drollinger v. State, (1980) 274 Ind. 5, 408 N.E.2d 1228; Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d 89.

Appellant also alleges that the trial court erred by admitting State's Exhibit 17 into evidence since no proper foundation was laid for its admission. State's Exhibit 17 was a photographic copy of page 2 of a three page, monthly banking account statement for Merchants National Bank Checking Account No. 07003880. It was introduced into evidence during the direct examination of Ms. Theresa Melvin, a teller at the Bank. Although the briefs are void of details about Exhibit 17, it is apparent that the Exhibit provided information tending to establish the amount of money in the victim's possession at the time of the robbery. Witness Melvin testified that the document was prepared in the regular course of business and reflected a transaction in early August, 1982, in connection with the Wakeup gasoline station. Witness Melvin further testified that the Exhibit was made from information prepared by herself and other tellers in the regular course of the Bank's business. In regard to business records, this Court has found:

"With relation to the question of the business records exception to the hearsay rule, this exception does not mean that the sponsor of an exhibit must have personally made it, filed it, or have had first-hand knowledge of the transaction represented by it. He need 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 entry."

Crosson v. State, (1978) 268 Ind. 511, 518, 376 N.E.2d 1136, 1141. Witness Melvin's testimony showed that the State had carried its burden pursuant to Crosson and no error was committed by the admission of Exhibit 17 into evidence.

II

Appellant next claims that the trial court erred by permitting the State to use certain extra-judicial statements made by witness Pinkton during his...