Pennebaker v. State
| Decision Date | 17 June 1971 |
| Docket Number | No. 969S203,969S203 |
| Citation | 26 Ind.Dec. 31,270 N.E.2d 756,256 Ind. 524 |
| Parties | Steven M. PENNEBAKER, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Goltra, Cline & King, Columbus, for appellant.
Theodore, L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., for appellee.
This is an appeal from a conviction of theft in the Bartholomew Circuit Court. Appellant was charged by affidavit with theft of an auto from one Godfrey Harrison. Trial by jury was waived and trial was had by court. Appellant received a sentence of one to ten years in the State Reformatory.
Appellant presents several alleged errors for review by this Court, however, we deem it necessary to deal with only one: namely, whether the trial court committed error in admitting certain evidence over objection, relating to the origin of a certain automobile transmission.
This case may be characterized as resting upon a chain of circumstantial evidence. The evidence presented showed that on about June 22, 1968, Godfrey Harrison, sole owner of the Car Mart, in Columbus, Indiana, reported that a green, 1966 Pontiac GTO, with 4-speed transmission had been stolen from his used car lot. The stolen car was found by the count sheriff, who testified that when found the car had been stripped; the engine, transmission, wheels and seats had been removed and the car burned. The sheriff recovered a transmission from one W. B. Burton, a junk dealer, which the sheriff identified as the transmission from the stolen car. The sheriff's identification was based upon the existence of certain corresponding numbers stamped on the transmission and the doorpost of the stolen car. W. B. Burton testified that he had purchased the transmission from the appellant on June 24, 1968, two days after the theft of the car, for fifty dollars.
The State's witness Furkin testified that at the request of the appellant he drove a wrecker to some remote area where he and the appellant proceeded to remove an engine from a car and dropped the engine in some weeds. This witness further stated that payment for this work was some bucket seats which he in turn sold to one Cal Burton. Two bucket seats were introduced into evidence along with a Pontiac maintenance booklet which was found wedged in the seats by the sheriff who recovered the seats from Cal Burton. The number in the booklet matched that of the stolen vehicle. Cal Burton did not testify and there was no testimony that the seats admitted in evidence were in fact the same seats which Cal Burton had received from Furkin.
Godfrey Harrison testified that the appellant had visited his used car lot a number of times two or three weeks prior to the theft, and that appellant had been accompanied by his wife and child, and that appellant had driven the car which was later stolen, and that appellant had unsuccessfully tried to buy it from him.
Central to the State's case against appellant was the testimony of the sheriff that the transmission which the appellant sold the witness W. B. Burton two days after the theft, was in fact the transmission from the stolen car. This identification of the transmission constituted a link in the only complete chain of circumstantial evidence which connected this appellant with the theft of the car. Appellant's counsel objected to this testimony of the sheriff three times, on the grounds that this testimony would be hearsay, and, therefore, inadmissible. Prior to the following excerpt from the testimony of the sheriff, the sheriff testified that the number stamped on the transmission was 149885, and the owner of the stolen car testified that the serial number of the stolen car carried a serial number of 242176P149885. The rulings of the trial court, alleged to have been error, is contained in the following excerpt from the testimony of the county sheriff upon direct examination by the State:
'Q. In the course of your investigation, did you attempt to connect this particular transmission with the Pontiac GRO stolen from Mr. Godfrey Harrison?
A. Yes, sir, I did.
Q. And what did your investigation in that regard reveal?
A. I called Indianapolis, Indiana State Police, and they sent down a specialist to check the transmission.
Q. All right, and are there--, is there anything about this particular transmission to indicate that it is one and the same transmission that came out of the 1966 Pontiac GTO that is described in State's Exhibit 1, the title of this stolen vehicle?
I'm going to object to that for the reason it's leading, for the reason it suggests an answer on this.
MR. GOLTRA: May I ask a preliminary question?
Q. Sheriff, what you would testify to here as to any marks or anything about this, you have found out by talking to a State policeman, as I understand, pointing out some things to you? As to this transmission here?
A. Well, I might say that I've been told, but to confirm-- Q. Yes, told by somebody, yes.
A. But to confirm what I was needing to know, I would call them.
OBJECTION: Mr. Goltra
Then I would object for the reason he is now going to testify on hearsay, something he's been told by somebody else about this transmission. We're entitled to have whoever that is here so we can cross examine them.
JUDGE: Objection overruled. I think that the mere fact that knowledge or some degree of expertise is acquired by communication with someone else, or study, would not make the answer to that question objectionable, so the ruling stands.
Q. All right, were there such identifying marks on this transmission?
A. Yes, sir.
Q. And what are they?
A. They are the last six numbers from the I.D. of the car, stamped on the transmission of this particular model.
Q. All right, and does this in any way distinguish this particular transmission from other transmissions?
A. Yes, this transmission would be identified with this particular 'ident.' number on this GTO, with the last six numbers of the 'ident.' number, would be on the transmission. They are embossed on, at the head of the transmission.
Q. All right, it this, then, the one and the same transmission that belonged to and was in this 1966 Pontiac GTO that was stolen from Godfrey Harrison's Car Mart?
OBJECTION: Mr. Goltra
I object to that, because there's no way he could know that, if it please the Court, no way he could know this.
JUDGE: Objection overruled. The witness may answer.
A. Yes, sir.
Q. This is the same transmission?
A. Yes, sir.'
On cross-examination, defense counsel again questioned the sheriff to determine the basis for the sheriff's testimony that the transmission sold by the appellant to W. B. Burton two days after the theft, was the transmission from the stolen car:
'Q. This transmission, again, you say that that's got the numbers on it that indicate that it came out of this specific car?
A. Yes, sir.
Q. And how did you learn about these numbers?
A. From talking with dealers and by reading about it, and from Mr. _ _, I have his name over there, from the Indiana State Police.
Q. That's where you found out about these numbers? You checked it out and everything with the Indiana State Police. Is that a fair statement?
A. Right.
Q. So what you just did, you made a telephone call, or something like that, to the Indiana State Police and
A. No, sir, he came down and examined it.
He came down and examined this? Now if it please the Court, on the basis of this, I'm going to move that this go out of the record, because, as I said before, this is not this Sheriff's testimony. This is what a state policeman came down and examined. He's basing all his testimony on what a state policeman told him.
Q. Well, now 149885 is stamped on this transmission, is that right?
A. That's right.
Q. And each transmission has the serial number on it, is that right, and it's a different serial number?
A. For this particular model, yes.
Q. For a GTO, you mean and no other kind of a car?
A. Well, some have it and some don't have it.
Q. Some GTOs have them and some don't have them?
A. Well, it's according to your years and models.
Q. Well, what I'm trying to talk about, here's number on this car, 149885. Now you're saying, under oath, as I understand it, that this transmission was in this automobile of Godfrey Harrison's when it left the factory? Is that right?
A. To the best of my knowledge, yes.
Q. Well, no, this is what you're testifying to, isn't it?
A. That's right.
Q. Do they have to, well, in other words, every car built in 19--, was this a 1966 Pontiac? All right this was a 1966 Pontiac. Every 1966 Pontiac then had a number on it, a GTO, had a number on it, is that right?
A. Four-speed probably had.
Q. Just a four-speed, but nothing other than a four-speed?
A. Well, this I don't know, but to my knowledge it should be a four-speed.'
On re-direct examination, the State offered the transmission itself into evidence, and the court admitted it over strenuous objection of defense counsel.
Over the objections of the appellant, the sheriff witness for the prosecution, was permitted to testify that the transmission, sold by appellant to the witness W. B. Burton two days after the theft, came from the stolen car. The sheriff further stated that his conclusion was based upon the existence of the corresponding numbers embossed upon the transmission and upon the stolen car. He further explained that his knowledge of the significance of these numbers was based upon (1) representations made to him by the state police specialist who was called by him to inspect the transmission, (2) conversations with car dealers, and (3) reading about it. The exact nature and extent of the witness's knowledge received from each of these three sources is not disclosed by the record, neither is the degree of reliance placed by the witness on each source disclosed. The state police specialist did not testify, neither did the dealers with whom he...
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