Smith v. State

• Decision Date: 17 November 1983
• Docket Number: No. 882S319,882S319
• Parties: James SMITH, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 606

455 N.E.2d 606

James SMITH, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 882S319.

Supreme Court of Indiana.

Nov. 17, 1983.

Hugh G. Baker, Jr., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

James Smith, Jr., was convicted in a jury trial of confinement and rape, in violation of Ind.Code Sec. 35-42-3-3 and Ind.Code Sec. 35-42-4-1. Alibi evidence was presented by the defendant who testified that at the time of the alleged offense he was attending a business seminar for hair stylists at a motel. Rebuttal evidence was provided by the sales and catering manager for the motel who on behalf of the prosecution identified State's Exhibit # 13 as a page from the function reservation book of the motel which reflected business reservations for the day in question. A hearsay objection was made and overruled. Appellant Smith challenges that ruling on appeal.

I.

A summary of facts relating to Exhibit # 13 are as follows: In rebuttal to the alibi evidence, the prosecution called the sales and catering manager for the motel as a witness. This witness had been the personnel director and not the sales and catering manager at the motel on July 21, 1980, the date of the alleged crime, but took over the latter position on August 1, 1980. She described her present duties as making and arranging for reservations with business groups coming into the motel, and that keeping records of the bookings was part of her job. She stated that handwritten entries were made in the function reservation book by the manager or by the secretary or assistant manager who worked in the office. The witness produced the function reservation book for the last six months of 1980. The witness testified that the previous manager from whom she had taken over was no longer employed at the Holiday Inn. She testified further, in a rather awkward fashion, that Exhibit # 13 was "July 21st, 1980" and continued on that the reservations recorded for that day were for a manufacturing concern and a hamburger chain, and that the exhibit was a record kept in the normal course of business and reflected those reservations for July 21, 1980.

The page of the reservation book is divided by vertical lines into three columns headed: morning, afternoon, and evening. Each of these columns is divided by horizontal lines into boxes calling for entries of "group", "Tel.", "address", "function", "etc." Two groups are identified in handwritten entries on the page as McDonald and Hurco.

The State's Exhibit # 13 was admitted on the basis that it fell within the business records exception to the hearsay rule. Appellant contends that the foundation for it failed to qualify the document for this treatment in most respects. In Wells v. State, (1970) 254 Ind. 608, 261 N.E.2d 865, the Court stated the following in describing the history and character of the business records exception,

"The heart of the rule then is the requirement that the observation, reporting, and the recording of the facts all be made by someone in the regular course of the business. Without this there is no assurance of the accuracy and reliability of the fact which justifies the admission of the record as evidence of the facts asserted therein." 254 Ind. at 616, 261 N.E.2d 865.

The Court went on to state the requirements of the common law rule:

"1) The records offered must have been the original entries;

2) They must have been made in the regular course of business at or near the time of the event recorded;

3) The facts must have been within the first hand knowledge of someone whose business duty it was to observe and report the facts;

4) The witness who had knowledge of the facts must be unavailable." 254 Ind. at 615, 261 N.E.2d 865.

See also American United Life Ins. Co. v. Peffley, (1973) 158 Ind.App. 29, 301 N.E.2d 651. The fact sought to be proved by the reservation book was that no seminar for hair stylists was held at the motel on July 21, 1980. While the reservation book would not necessarily persuade one of this fact beyond doubt, it would certainly be relevant to a demonstration of that fact. The testimony in support of the exhibit could have been more direct, however, the testimony and reasonable inferences from it were adequate. The testimony may be summed up as follows.

The exhibit offered is the actual page from the reservation book with handwritten entries. It is not a summary or report. It constitutes the original entries. A reservation is an agreement between the hotel or guest to rent space at a time certain. From a written record of it, motel personnel would know in advance how to prepare the space for the particular use contemplated. It is therefore reasonably inferable that the originals of such entries are made in the regular course of hotel business at or near the time the reservation is made.

The witness testified that the entries were written by one of the three employees in the office, either the manager or one of the other two acting under her supervision, but she did not know which of the three actually did so. It was reasonably deducible from this testimony that the office employee who inserted the handwritten matter in the reservation book did so while having first hand knowledge of the obligation assumed to reserve space for business seminars. Appellant contends that the foundation is inadequate unless the identity of the individual making the entry be shown. Such proof is not required. It is sufficient if that individual is identified as being one of three comprising this small office operation. Jones v. State, (1977) 267 Ind. 205, 369 N.E.2d 418.

Appellant also contends that the foundation is insufficient in that it does not show the unavailability of the prior office manager since the witness testified that she was employed across town at the motel of another chain. It is sufficient if the person having a duty to make and maintain the record has left the employ, and has been replaced by another. The foundation here provides the...