Kriner v. State

• Decision Date: 22 September 1998
• Docket Number: No. 71S00-9704-CR-253,71S00-9704-CR-253
• Parties: Harroll KRINER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 659

699 N.E.2d 659

Harroll KRINER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 71S00-9704-CR-253.

Supreme Court of Indiana.

Sept. 22, 1998.

C. Kenneth Wilber, South Bend, for Appellant.

Jeffrey A. Modisett, Attorney General, Katherine Modesitt, Deputy Attorney General, Indianapolis, for Appellee.

BOEHM, Justice.

Harroll Kriner was convicted of murder and sentenced to fifty-five years imprisonment. His direct appeal presents the following issues for our review:

I. Was the evidence sufficient to support the conviction?

II. Did the trial court err in refusing Kriner's tendered jury instruction stating that absence of motive "may be considered by the jury as a circumstance favorable to the accused"?

III. Did the trial court err in denying Kriner's request for a state-funded expert on trace evidence?

We affirm.

Factual and Procedural History

Just before 5 a.m. on Sunday, June 2, 1996, the body of security guard Larry McKinstry was discovered in the one room "guard shack" of the Sibley Foundry ("Foundry") in South Bend. Police arrived a short time later to find McKinstry dead from a single large-caliber gunshot wound to the head. There was a hole in a window near where McKinstry was sitting and a large pool of blood on the floor. McKinstry was slumped back in a chair and had a sandwich in his right hand. McKinstry's shift as night watchman began at 6 p.m. on Saturday, June 1. His girlfriend, Charnessa Johnson, testified that she spoke by telephone with McKinstry for approximately ten minutes beginning around 11:15 p.m. on Saturday. The conversation ended when McKinstry said that "some company was coming." He did not say, and Johnson did not ask, who was approaching. McKinstry told Johnson that he would call her back but he never did. When police arrived around 5:30 a.m. on Sunday, the television in the shack was on but the channel to which it was tuned had gone off the air at 1 a.m. From these factors, police inferred the time of death was likely between the 11:15 conversation between McKinstry and Johnson and 1 a.m. Concern that McKinstry might have HIV delayed the autopsy and prevented a more precise estimate of the time of death.

As explained below, the State's case rested substantially on three pieces of circumstantial evidence that pointed to Kriner as the assailant: (1) a videotape surveilling the parking lot of a nearby business placed him near the crime scene at a time when McKinstry could have been killed; (2) Kriner had access to the gun that may have been used to commit the crime and was found in bushes next to a nearby railroad track; and (3) footprints in McKinstry's blood in the guard shack were of similar size and design as prints created from a pair of shoes that were seized from Kriner.

Kriner was a laborer at the Foundry and casually knew McKinstry in that capacity. In addition to serving as a security guard, McKinstry sold crack cocaine to other employees during work hours and loaned them money at high interest rates. Kriner had both bought crack cocaine from McKinstry and occasionally borrowed money from him. Kriner was not a suspect until several days after the killing. The investigation focused on Kriner when police viewed a videotape from a private surveillance camera overlooking the parking lot of the Adult Emporium, an adult bookstore located several hundred yards from the Foundry guard shack. It captured a man that the State claimed was Kriner parking a car resembling Kriner's late-model Oldsmobile in the bookstore lot around 11:17 p.m. on Saturday. The man sat in the car for several minutes before exiting the vehicle and walking around the front of the car to the rear passenger-side door. He appeared to retrieve something from the back seat and then vanished from view, possibly by walking west towards the Foundry. At 12:16 a.m. the man reappeared wearing a different shirt. He did not appear to be carrying anything or wearing gloves. He then got in his car and drove away. Cameras that recorded activity at the cash registers inside the bookstore gave no indication that Kriner had been in the store that night. Although it was initially disputed at trial whether Kriner was the man on the videotape, Kriner conceded the point in closing arguments and does not dispute in this appeal that he was the man captured on the surveillance camera. ¹

Before obtaining the videotape, police had questioned Kriner and other Foundry employees as part of a routine effort to gather evidence and leads. Kriner was questioned again after the videotape was reviewed. In this second round of questioning at a police station, Kriner told police that he went to the Foundry guard shack around 6 p.m. on Saturday to pay McKinstry the last installment ($75) of a loan and then went home for the evening. Kriner specifically denied being at the bookstore on the night of the killing. When the interrogating officers told Kriner that the bookstore surveillance camera placed Kriner in the parking lot that evening, Kriner changed his answer to indicate that he could not remember being at the bookstore and that he had "blackouts." ² Kriner nonetheless repeatedly denied any involvement in McKinstry's death.

On June 6--the same day that the videotape was obtained--a shotgun was recovered from bushes next to railroad tracks that ran along the east side of the Foundry. No fingerprints were found on the weapon. The State's theory was that Kriner had taken the gun from his landlord, Kevin Schultz, and used it to kill McKinstry. For the five weeks prior to the killing Kriner rented a sleeping room in an apartment building in South Bend. Schultz managed the building and lived in a house next door. He owned a hunting shotgun that he kept in his bedroom leaning against a wall near a dresser. In the week before the murder, Kriner helped Schultz move some furniture and had been in the bedroom where the gun had been in plain view. Several days after the killing, Schultz noticed that the gun, which had been purchased by a family member some twenty years earlier, was missing. A sheath in which Schultz kept the gun along with several rounds was left behind. Schultz identified the gun that was recovered from the railroad tracks as the gun missing from his bedroom. He testified that he kept his house locked and did not notice any signs of forced entry around the time that the gun was apparently taken. In the second interrogation of Kriner discussed above, a police officer testified that he asked Kriner whether Kriner had access to a weapon. Kriner replied that his landlord had a shotgun and accurately described the gun as a twelve-gauge shotgun. The officer testified that Kriner did not "admit" that he had taken the gun, but it is unclear whether Kriner denied taking it or simply was not asked.

The evidence was not clear-cut that the shotgun that was found was in fact Schultz's. Although Schultz identified the gun as his, sales records for the weapon indicated a possible discrepancy. The gun had been traced through its serial number to the Trading Post, a gun dealer in Plymouth, Indiana. The Trading Post had a record of selling the same type of weapon to Robert Schultz (Kevin's father) in December 1977, but the serial number of the weapon for that transaction (AP231272) was not the same as that for the gun that was found by the railroad tracks (AN223021). The owner of the Trading Post, Bob Kepler, testified that in 1977, when he sold a hunting shotgun to Robert Schultz, it was not uncommon for guns to be test-fired in a room in the back of the Trading Post after they had been purchased; as a result a customer could depart with the same model of gun but a different weapon (and hence a different serial number) than the sales log reflected. A Trading Post sales record for December 1977 indicated that Kepler had sold both of the guns bearing these two serial numbers on or around the same day.

The State attempted to link the gun to the crime through the testimony of an FBI firearms examiner. A Remington-Peters spent shell casing was found in the gun when it was recovered, but it was unclear what type of ammunition--buckshot or rifle slug--had been fired. The examiner testified that shotgun "wadding" found at the crime scene was "consistent with having been manufactured by Remington-Peters." Several unused Remington-Peters shells that were left behind in Schultz's gun sheath were found to contain metal rifle slugs and the same kind of shotgun wadding ("plastic H wadding") as that recovered from the crime scene. A lead projectile found on the floor of the guard shack was so mutilated that the examiner was unable to draw any forensic conclusions from it, except that it was consistent in weight with a Remington-Peters rifle slug and, due to its weight, could not have been fired by a pistol or revolver. When pressed on cross-examination, the examiner testified that he could not even be sure that the lead fragment had been a piece of ammunition. An evidence technician who gathered evidence at the crime scene testified that the lead fragment was the remains of a deer slug.

With one possible exception depending on how the evidence was weighed, no fingerprints, hairs, or other trace evidence linked Kriner to the purported murder weapon or the crime scene. Several footprints were left in McKinstry's blood in the Foundry guard shack. After Kriner had been identified as a suspect, a search of Kriner's car uncovered a pair of Converse tennis shoes with the raised imprint "CONS" on the tread. An FBI shoe tread examiner created prints from Kriner's shoes and compared them with the prints in McKinstry's blood. The examiner testified that the two sets of prints "correspond in design and approximate size." Both sets had a similarly shaped imprint of "CONS" with the same typescript as Kriner's shoes. However, the examiner could not definitively match the two sets so as to conclude that the prints in...