Walker v. State, 579S120

Docket NºNo. 579S120
Citation409 N.E.2d 626, 274 Ind. 197
Case DateSeptember 25, 1980
CourtSupreme Court of Indiana

Sharon Carroll Clark, Gregg & Clark, Anderson, for appellant.

Theodore L. Sendak Atty. Gen., Jeffrey K. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Kerry Walker was tried and found guilty of murder by a jury on June 3, 1978. He was sentenced to forty (40) years imprisonment. He appeals.

Appellant presents several issues for our review. They concern (1) the granting of the State's motion to amend its indictment; (2) the denial of appellant's motion to dismiss and the admission of exhibits; (3) the discovery of appellant's attorney's hand-written notes; (4) the overruling of appellant's motion in limine; (5) the sufficiency of the evidence of the victim's death from injuries inflicted rather than from physician negligence; and (6) the sufficiency of the evidence that appellant committed the acts causing the injuries.

The evidence reveals that on October 31, 1977, the appellant, Kerry Walker, was an inmate serving time at the Indiana Reformatory at Pendleton, Madison County, Indiana. At the same time and place, James L. Webster and Delbert McBaine were also inmates at the reformatory. McBaine testified that he had known the appellant for approximately nine months. They had sex together at the reformatory and McBaine was the appellant's "kid" or girl, although they swapped off on many occasions. McBaine testified that appellant Walker had a "possessing intent" and that Walker argued with other inmates to leave McBaine alone.

McBaine had only seen Webster on three occasions, the first being the Friday before Webster was killed. Webster wanted McBaine to come up to his cell to have sex. McBaine testified that Webster told him and Walker to come to his cell and that if they did not they were to bring out their "shanks," or knives. They did not go to Webster's cell. McBaine said he and Walker discussed Webster and that Walker talked about killing Webster. McBaine said Webster followed him to his cell and that he immediately went in and shut the door because he was afraid of Webster. After these incidents the appellant got a knife from Thomas Fuller. McBaine and Walker continued to discuss killing Webster. On Monday morning, October 31, 1977 McBaine and appellant got out of their cells and went up to Webster's cell to talk to him. Webster started yelling and the appellant took the knife out and stabbed Webster. Appellant and McBaine went down a back stairs to the cafeteria. They ate, returned to their cells and on the way returned the knife to Fuller.

Dr. Choi was called to treat Webster. He was conscious, alert, and his blood pressure was good. Dr. Choi testified that there was a loss of blood and ordered Webster transported to Wishard Hospital in Indianapolis. Dr. James Phillip Campbell, chief resident in surgery, treated Webster at Wishard. Dr. Campbell testified that he saw two external wounds and that Webster was in stable condition. He observed Webster over a period of one and one-half hours. Webster continued to bleed internally. Dr. Campbell determined that surgery would be necessary. Surgery was commenced. During surgery, Webster suffered cardiac arrest three times. He died about noon on October 31, 1977. Dr. Campbell testified that the cause of death was cardiac arrest caused by loss of blood. Dr. Benz, an Indianapolis pathologist, testified that the cause of death was two stab wounds to the left chest, and he agreed with Dr. Campbell that there was loss of blood and then cardiac arrest.


Appellant alleges that the trial court erred in allowing amendment of the indictment. On May 22, 1978, the State filed its motion to amend the indictment whereby the decedent's place of death was changed from Madison County to Marion County. The defendant objected to this motion on May 24, 1978. Hearing was had on the motion to amend and it was granted. Ind. Code § 35-3.1-1-5 (Burns 1979) permits the amendment of an indictment to correct any defect as long as the amendment does not prejudice the substantial rights of a defendant. Highsaw v. State, (1978) Ind., 381 N.E.2d 470. The appellant claims that because of this amendment Dr. Benz and Dr. Campbell were permitted to testify and that this limited the appellant in preparing his defense and prejudiced him. We find no merit to this claim.

Ind. Code § 35-3.1-1-5(d) (Burns 1979) provides as follows:

"Before amendment of any indictment or information other than amendment as provided in subsection (b) of this section, the court shall give all parties adequate notice of the intended amendment and an opportunity to be heard. Upon permitting such amendment, the court shall, upon motion by the defendant, order any adjournment or postponement of the proceedings which may, by reason of such amendment, be necessary to accord the defendant adequate opportunity to prepare his defense."

The record does not reveal any request for a postponement by the defendant and there is no showing that he was prejudiced by this amendment. There was no error in the allowing of this amendment.


Appellant next claims that the court erred in denying his motion to dismiss and in the admission of certain exhibits. Appellant's motion was filed in the alternative requesting that if the court refused to dismiss the cause that an order be entered prohibiting the State from using certain exhibits and evidence in the direct presentation of its case. Repeated demand had been made on the prosecutor's office for items which included photographs, laboratory reports, the alleged weapon and certain letters or notes. When, four days before trial, the defendant had not been permitted to examine the State's exhibits, the motion to dismiss was filed.

The motion to dismiss included a statement that the defendant did not wish a continuance of the matter and that a continuation would constitute a waiver of his right to a speedy trial. The court denied the motion to dismiss, and ordered that notes or letters allegedly written by the defendant would not be admitted for the purposes of direct evidence in the cause. The State claimed that it did not have these items at the time the discovery was requested. It appears from the record that on one day the items were available and defendant's counsel and the State could not agree on a time at which they would be available. It is not clear which photographs or laboratory reports defendant's motion attempted to prohibit.

At trial State's Exhibits # 1 and # 2, photographs of the victim were admitted. An autopsy report, State's Exhibit # 5, was admitted and State's Exhibits # 3, a jacket, and # 4, a knife, were admitted. Defendant also objected to the admission of State's Exhibit # 9, inmate Fuller's grand jury testimony, which was admitted. Letters allegedly written by the appellant, Walker, to Delbert McBaine, were not admitted into evidence. The judge sustained defense counsel's objection to their use.

State's Exhibit # 1, a photograph of the victim was admitted without objection by the defendant. State's Exhibit # 2, another photograph of the victim was admitted over objection that it was not an accurate portrayal of the victim because of ink marks circling the wounds and because surgical incisions were apparent on the body. The jury heard, and it was fully explained to them that the wounds were circled by Dr. Choi during his testimony. Dr. Campbell testified that he made the incisions apparent in the photograph during surgical treatment. Autopsy photographs that are illustrative of the witness' testimony and tend to prove the cause of death are admissible under general principles that allow the admission of photographs when testimony concerning that which they depict would be proper. Grooms v. State, (1978) Ind., 379 N.E.2d 458, 463; Tinsley v. State, (1977) 265 Ind. 642, 643-44, 358 N.E.2d 743, 744; Walker v. State, (1976) 265 Ind. 8, 12-13, 349 N.E.2d 161, 165.

Appellant objects to the admission of State's Exhibits # 3, a jacket, and # 4, a knife, claiming that there was a defective chain of custody for those items. Those items were seized by officers at the prison, were initialed and taken to the locked property room. There was some conflict as to the times when Officer Appleby delivered them to Officer Leedy and when Leedy returned them to Appleby. The institutional jacket and the knife were taken to the Indiana State Police Laboratory for testing for blood. These exhibits were identified by the officers who seized them and by McBaine and the officers in whose custody they were placed at trial. These exhibits were capable of eyewitness identification and it was a sufficient foundation for their introduction that a witness identified them and they had relevancy to the issues. Gee v. State, (1979) Ind., 389 N.E.2d 303, 309. Woodard v. State, (1977) 267 Ind. 19, 366 N.E.2d 1160, Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745. These were not fungible items and there was no contention that these exhibits were tampered with in any way. There was no error in their admission.

State's Exhibit # 5, a copy of an autopsy report, was objected to on the basis that it was not the original. There was some confusion on the pick-up or delivery of a copy of this report prior to trial. It was explained that the original was filed with the Marion County Coroner and that this was an authentic copy. The only objection here was that this copy was not the best evidence. A recess was taken so that counsel could examine this record and extensive cross-examination was had on it. Appellant stated that he did not want a continuance of this matter, and therefore foreclosed that alternative as a possible remedy for any alleged prejudice to him for violation of the discovery order. We see no error in the admission of this item or in the violation of the discovery order that prejudiced this...

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