Lock v. State
| Citation | 567 N.E.2d 1155 |
| Decision Date | 21 March 1991 |
| Docket Number | No. 40S00-8806-CR-00536,40S00-8806-CR-00536 |
| Parties | Kimberly LOCK, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
Gary K. Kemper, Jenner, Kemper & Auxler, Madison, for appellant.
Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Kimberly Lock was convicted by a jury of having committed the crimes of aiding murder and conspiracy to commit murder, both Class A felonies. She was sentenced to imprisonment for periods of 40 years and 30 years, respectively, to be served concurrently, and fined $10,000 for each conviction. In her direct appeal she asks us to reverse these convictions because of the following alleged errors:
1. The trial court erred in allowing an allegedly incompetent, improperly-disclosed witness to testify concerning what she overheard in a telephone conversation between the victim and a third person;
2. The trial court erred in allowing hearsay evidence of conversations between non-party witnesses and the victim;
3. Prosecutorial misconduct in failing to provide allegedly exculpatory evidence;
4. The trial court erred in allowing defendant's testimony from her first trial to be introduced into evidence at the second trial;
5. The insufficiency of the evidence to support the verdicts; and
6. The impropriety of the court's imposing the $10,000 fines.
Having considered all of the arguments, we find that the trial court did not commit reversible error and that the convictions must be affirmed.
The facts of the case are that Raymond Lee Milano savagely bludgeoned the victim, Minnie Blanton, and burglarized her home in the early morning hours of August 15, 1985. Lock, the adopted daughter of the victim, was accused of hiring Milano and giving him a key and diagram of Blanton's house and otherwise aiding and conspiring with him to kill Blanton. The first trial resulted in a mistrial because of a hung jury. At the second trial, the jury basically had to choose to believe either the testimony of Milano or of Lock. The jury chose to believe Milano.
The facts, according to Milano's testimony, were that he and Lock had been acquainted since April 1984. She had previously purchased marijuana from Milano and, in late July 1985, she asked Milano if he knew someone who would take care of killing an elderly person with whom she was having trouble. Milano answered in the affirmative, and Lock drove him past Blanton's house and pointed it out as the house of the person whom she wanted killed. Milano asked her if that was her mother's house and wondered why she wanted her mother killed. Lock replied that there were troubles between them. Milano quoted her a price of between $800 and $1,000 to do the job and stated that he needed $125 "up front" to be able to contact people. Lock gave Milano a key and told him that it would fit the door of her mother's house.
Milano next saw Lock two days later when she came to his apartment and again talked of killing her mother, drawing a floor plan of the house for him. Lock gave Milano a $50 check as part of the $125 front money, and they agreed to a total price of $500 to be paid immediately following the killing. Lock told Milano that her mother was usually home every night after 5:30 p.m. Two days later, on August 2, 1985, Lock and Milano met again for an additional payment of $75 cash. Between that meeting and the morning of the murder, August 15, 1985, Lock and Milano did not converse or correspond.
At approximately 3 a.m. on August 15, 1985, following a night of heavy drinking, Milano walked to Blanton's house, used the key that Lock had given him, letting himself into the house, closing and locking the door behind him. Milano proceeded to subdue Blanton, forced her to open the safe in the house and then, using strips cut from the bedsheets, tied Blanton to the bed and gagged her. Milano then systematically burglarized the house and loaded the loot into Blanton's automobile. He then returned to the bedroom and repeatedly stabbed Blanton, ultimately slitting her throat and killing her. Milano fled in Blanton's automobile to Carrollton, Kentucky, where he telephoned Lock, told her of the murder, and demanded the remainder of his money. He later returned to Madison, Indiana, and received $200 cash in an envelope from Lock's mailbox. He left Madison, Indiana, was apprehended in Illinois, and was charged with murder.
Lock presented evidence that she and her mother were not "having trouble." She explained the monies that she had given to Milano before the murder as being for the purchase of marijuana as well as payment to "rough up" a third person who had called her names and accused her of stealing a state park pass. She further testified that she had allowed her son to stay with Blanton throughout the period of time that Milano was supposedly hired to kill her mother, the inference being, of course, that she would not have done so had she hired Milano to kill her mother.
After hearing all of the evidence and being properly instructed, the jury deliberated and returned its verdict finding Lock guilty of aiding and conspiring to murder her mother.
The State called as a witness a customer of Blanton's beauty shop who testified that on May 6, 1985, she was in the beauty shop when Blanton received a phone call. She further testified that Blanton held the receiver away from her ear so that the customer could overhear the conversation. She testified that she heard the voice on the other end screaming, demanding $500 and threatening not to bring the baby over any more if she didn't get the money. Additionally, she testified that she heard the voice on the other end of the line say, "I could kill you for that" or "could kill you." At the conclusion of the phone call, she observed Blanton crying, dabbing at her eyes with tissue, and taking a few minutes in the back room to compose herself.
Lock contends that this witness was incompetent because she had had mental illness problems requiring anti-depressant and anti-psychotic drug therapy. Secondly, she contends that the witness should not have been allowed to testify because the prosecutor did not make a timely disclosure of the identity of the witness and, thirdly, that the trial court committed error by allowing the witness to testify as to the contents of the telephone conversation. All three of these alleged errors involve areas where the trial judge is allowed wide latitude.
First, we have examined the transcript of the witness' treating physician and agree with the trial court that there was no evidence that would render her incompetent as a matter of law. Her credibility, or lack thereof, was properly explored on cross-examination and her testimony, therefore, was evaluated by the jury.
Secondly, Lock contends that the court erred in allowing this witness to testify because her name was not revealed to Lock or her attorneys in a timely fashion. We note simply that the witness was listed on the witness list approximately six months before the trial of this action. There has been no demonstration of any prejudice to Lock as a result of the alleged late notice of the identity of this witness.
Finally, Lock contends that there was a lack of foundation to show that she, Lock, was the speaker on the other end of the telephone during the conversation related by the witness. A caller's identity must be established as part of the foundation for the admission of the contents of a telephone call. Ashley v. State (1986), Ind., 493 N.E.2d 768, 774. However, the identity of the caller may be established by circumstantial evidence. Reed v. State (1986), Ind., 491 N.E.2d 182, 186. Evidence that the caller possessed knowledge of certain facts that only a particular person would possess is sufficient identification to satisfy the foundational requirement. Reed v. State, supra. In this case, the witness heard the caller demand $500 from Blanton and threaten that she would not bring the baby over any more if she didn't get the money. Given the evidence that Blanton frequently babysat for Lock's child, the jury could reasonably infer that Lock was the caller who demanded money and threatened not to bring the child over any more if she didn't get it. The foundational requirement was satisfied and the trial court properly admitted the evidence.
The State called Blanton's brother and sister who related, over objection, telephone conversations between them and Blanton. Blanton's brother testified that he talked to her on the telephone at a time when she was upset because her daughter, Lock, had taken Blanton's housekey and had not returned it and that no one was supposed to have a key. In the same vein, Blanton's sister was allowed to testify about a telephone conversation which occurred on July 7th in which Blanton, in an excited, high-pitched voice, told her that Lock had failed to return her housekey and that she was concerned because she didn't "know what Kimberly will do next." The sister also was allowed to testify that Blanton told her of repeated instances of Lock's refusing to relate to Blanton by not answering the door and hanging up the telephone when Blanton called. Lock argues that this evidence constitutes inadmissible hearsay and violated her constitutional right to confront the witnesses against her. Lock contends that this evidence was purposefully used by the prosecutor to prove that Lock possessed the housekey which Milano testified she gave to him for entry into Blanton's house. The State answers this contention by submitting that the evidence was not offered for the truth of the matters contained within the statements, but was offered to show Blanton's state of mind prior to the crime as being one of fear of the defendant.
Our analysis is that the evidence clearly...
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