Watkins v. State, s. 978S198

Citation446 N.E.2d 949
Decision Date17 March 1983
Docket Number878S171 and 479S104,Nos. 978S198,s. 978S198
PartiesDarnell WATKINS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Kendall David WARNER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Ray SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtSupreme Court of Indiana

Daniel L. Toomey, Toomey & Woloshansky, Merrillville, for appellant Darnell Watkins.

George Glendening, Hammond, for appellant Kendall David Warner.

Saul I. Ruman, Hammond, for appellant Ray Smith.

Theodore L. Sendak, Atty. Gen., Elmer Lloyd Whitmer, Deputy Atty. Gen., Indianapolis, for appellee.

PRENTICE, Justice.

Defendants (Appellants) were each convicted, after a joint trial by jury, of Murder, Ind.Code Sec. 35-42-1-1 (Burns 1979) and sentenced to sixty (60) years imprisonment. An additional defendant, Levi Williams, was acquitted upon a motion for a directed verdict at the close of all the evidence. These three appeals were filed separately but have been consolidated for the convenience of the court. The issues assigned by each appellant, however, will be separately addressed.


The evidence most favorable to the State was as hereinafter related.

Undisputed evidence discloses that at approximately 6:30 p.m. on October 8, 1977, three young men, Cornell Aaron, Ronnie Boone and Kenneth Hope were ambushed as they sat in a Chevrolet automobile parked at the curb alongside the Cunningham home which fronted on Columbia Avenue, in the City of Gary. Hope and Boone were in the front seat and Aaron was in the back seat. As many as three armed men, and possibly four, surrounded the vehicle and fired numerous shots into it. Aaron was killed, and Boone was seriously injured. Their companion, Fred Turner, was in the Cunningham residence visiting with his seventeen year old girlfriend, Debra Cunningham, who was also the mother of the three year old child of the defendant, Kendall Warner.

The police investigation produced no material evidence, except for statements of Boone, Hope, Turner and Debra. They subsequently gave depositions and ultimately testified at trial. Their testimony was partially consistent and partially inconsistent and contradictory, both with respect to each other's testimony and prior statements and with regard to their own prior statements and depositional testimony. Hope and Debra were impeached at trial and Turner was severely discredited, although not technically impeached.

Boone, who was the driver of the ambushed vehicle, testified that he and his companions drove to the Cunningham home and when they arrived, Turner went inside, and he and the other two were waiting in the car. While they were waiting, he heard someone yell from the rear of the car, "Hey, get out!" He looked back and saw someone whom he could not identify aiming a small pistol. Immediately after hearing the order, shots were fired, but he did not remember how many. He saw Hope, who was seated beside him in the front passenger's seat, slump to the floor and heard Aaron, who was in the back seat, say, "I'm hit! I'm hit!" Boone, himself, was wounded in the knee and in the back.

Although Boone was driving the automobile, it was a rental car that had been leased to Turner. Boone and the others had accompanied Turner to the Cunningham home on prior occasions, and although they had not gone previously in this vehicle, Boone had always been the driver.

Hope testified in substantial accordance with Boone's testimony. He, Boone and Aaron had been waiting in the automobile, drinking juice and listening to the radio while Turner was inside with Debra. He heard someone say "Here come some dudes with guns." and observed two men approach, the defendant Ray Smith and the defendant, Kendall Warner. He observed Warner, for from five to ten seconds and Smith for a longer period. Smith had a shotgun and aimed it at him point blank through the window but appeared to hesitate to fire it and then walked to the front of the vehicle. Shots came from behind, and Smith fired the shotgun through the top of the windshield. Boone slid to the floor. Many shots were then fired over a span of ten to fifteen seconds. When he saw Warner, he saw no gun, but during the firing, he saw flashes come from Warner's position at the rear right side of the automobile.

Turner testified that at the time of the shooting, he was sitting in the Cunningham den, ten to twenty feet from where his companions waited in the automobile. He jumped up when he heard the shots and looked out the window. Debra was behind him and also looking out the window. She "yelled out, Darnell and Levi" (Watkins and Williams). Outside, he saw Warner at the right rear side of the car firing a pistol into it. He observed him for from four to five seconds. Another man was at the left rear of the car and a third was at its front. They had sawed off shotguns.

Aaron often wore Turner's clothes, and when he was shot, he was wearing Turner's blue jacket and blue hat.

On October 5, 1977, three days prior to the murder, he and Debra had been visiting in the den of the Cunningham home at about 11:30 p.m. Warner appeared outside and knocked on the window. He and Debra went outside and Turner asked him what he wanted. He replied that he was looking for Debra's sister, Danette. Turner called him a "punk" and told him not to come around anymore; whereupon Warner said "Punk, huh," and drew a pistol. He fired one shot in the air and ordered Turner up against a fence. Debra began hollering, and her parents came and yelled for him not to shoot. He fired two more shots and ran down the street.

Debra Cunningham, called as a witness for the State, testified that she "ducked" when she heard the gunfire and that her mind went blank. She acknowledged that she knew all of the defendants and that she had looked out the window, but she denied that she remembered seeing anybody. This testimony was contrary to statements that she had previously given to the police, and the State was then permitted to examine her as a hostile witness.

Debra acknowledged that Warner was the father of her child and that he had come to her home on the evening of October 5th, three days prior to the killing of Aaron, while Turner and she were visiting in the den, as related by Turner. Her version of the incident was substantially the same as Turner's except that she denied knowing who fired the shots. In this respect, she also acknowledged that in her statement to the police on October 8th she had said that Warner "pulled his pistol its a 38 with a long barrell, Kendall said to Fred Punk Uh Punk Uh, and fired one shot at Fred and Kendall ran off."

She had dated Turner for about two and one half years, and he called upon her almost daily. Occasionally he would come alone, but would not stay by himself. Usually his friends, Aaron, Boone and Hope would come with him and wait in the car. Sometimes they would wait for hours, "as long as he said." From time to time, she and Turner would go to a motel and have sexual relations. It was not uncommon for Aaron and Hope to drive them to the motel on these occasions and wait for them in the car.

Debra Cunningham's Patterson Statements

On October 8, 1977 Debra gave a signed statement to the police (State's Ex. 7) in which she said, inter alia, that when they heard a shot, she and Turner jumped up, looked out the window and saw Kendall Warner standing at the back of the car with a pistol in his hand. She saw flashes from the gun and heard Warner say "Let's get the hell out of here man!" Then he and another boy in blue jeans ran towards the alleyway.

On October 14, 1977, Debra gave a second signed statement to the police (State's Ex. 6). According to this statement, she had seen Warner, Watkins, Smith and Williams when she looked out the window. Warner was at the right rear of the car, Watkins at the left rear, Smith at the right front and Williams "in the street, by the front of the car." Warner was dancing up and down and shooting a pistol. Smith was shooting a shotgun, and Watkins had a shotgun. She did not see a gun in Williams' hands. After the shooting, Smith and Williams ran across Columbia Avenue, and Warner and Watkins ran to the alley.

Her reason for then identifying the boys that she had not identified in her previous statement was that Turner had called her that morning and asked her to tell the police who the others were.

On January 12, 1978, Debra gave a deposition by which she again related the events of October 8th. Only a portion of the deposition came into evidence, but it was admitted without objection from Warner, Watkins or Smith. It disclosed that Debra had then testified that she saw three people on October 8th but could identify only two of them, Warner and Watkins, both of whom were firing weapons.

Danette Cunningham testified that she is Debra's sister and was present on October 5th when the shooting incident between Warner and Turner occurred. She heard Warner say "Punk". She could not identify the gun except to say that the barrel was "long, kind of long." Warner shot it two or three times. He telephoned later that night and apologized for the incident. Her boy friend was with her and hung up the phone at that point, so they did not finish talking.

After having had her memory refreshed by reference to a written statement that she had given to the police on October 8, 1977, Danette also testified that during that telephone conversation, Warner had also said that he was going to "get" Turner. She also testified that, in her opinion, Aaron and Turner looked alike.

As to the Defendant Watkins

In their challenges to the sufficiency of the evidence, each defendant has placed great reliance upon the inconsistencies and contradictions between the testimony of Debra Cunningham and her out of court statements and further inconsistencies and contradictions in her three out of court...

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