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FOR PUBLICATION

ATTORNEY FOR APPELLANT: RUTH JOHNSON Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JUSTIN F. ROEBEL Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHAD McKINNEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0606-CR-494

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Patricia Gifford, Judge Cause No. 49G04-0312-MR-222387

September 17, 2007 OPINION - FOR PUBLICATION

VAIDIK, Judge

Case Summary After his first trial for murder resulted in a hung jury, Chad McKinney ("McKinney") was retried, convicted, and sentenced to fifty-five years in prison. On appeal, he contends that the trial court clearly erred in denying his motion for change of judge, that the trial court abused its discretion in denying his motion for mistrial, that the prosecutor committed misconduct by failing to notify the defense of changes in the testimony of certain witness from the first trial to the second trial, that the evidence is insufficient to support his conviction, that the trial court abused its discretion in refusing to instruct the jury on the lesser included offenses of reckless homicide and criminal recklessness, that the trial court abused its discretion in sentencing him, and that his sentence is inappropriate in light of the nature of the offense and his character. Because McKinney's motion for change of judge was not filed within ten days of his plea of not guilty in accordance with Indiana Rule of Criminal Procedure 12(D), the trial court did not clearly err in denying it. We affirm the judgment of the trial court in this and all other respects. Facts and Procedural History On the night of December 19, 2003, Dominick Bruno ("Dominick") and Anthony Laurenzo ("Laurenzo"), who had been a groomsman in Dominick's wedding, procured some LSD and then went to Dancer's Show Club in Indianapolis. Both men consumed some of the LSD before entering the club. After a few minutes, Laurenzo began acting abnormally, alternating between periods of quiet with his head between his knees and periods where he had a great deal of energy, was shaking, and was yelling, "Oh, Jesus." 2

Tr. p. 222. The club's doorman saw Laurenzo crying and rubbing his chest and believed that Laurenzo was hallucinating. Laurenzo out of the club. About that time, Dominick received a call from his wife, Connie. Connie, who was eight-and-a-half months pregnant, was at the couple's trailer home with their young son, Joseph. Connie told Dominick that McKinney, who had also been a groomsman in Dominick's wedding, was at the home and needed to see him. According to Connie, McKinney had been drinking whiskey and seemed sad. Dominick and Laurenzo left the club and drove to the Brunos' home. During the drive, Laurenzo was swinging his arms and talking with God and Jesus. Twice during the drive, Dominick pulled over to calm Laurenzo. After they arrived at Dominick's home, Dominick led Laurenzo inside. McKinney was lying on the floor near the door, and Laurenzo stepped on him. Laurenzo was still swinging his arms, and he hit McKinney. McKinney pulled Laurenzo onto a couch and started hitting him before Dominick and Connie separated them. Dominick told McKinney that Laurenzo was "on a bad trip" from the LSD, that he was "not trying to hurt nobody," and that McKinney should leave him alone. Id. at 230. At that point, Laurenzo was foaming at the mouth and claiming that he was God and "the most powerful man in the world." Id. at 77-78. Connie tried to give Laurenzo a glass of milk, but Laurenzo threw it or knocked it out of her hand. Dominick left the room to check on Joseph and returned to find McKinney beating Laurenzo up again, and Dominick again separated the two. 3 Eventually, the doorman asked Dominick to take

McKinney eventually left the trailer, but he returned approximately ten minutes later with a purple Crown Royal bag and a white glove. By that point, Laurenzo had "actually started to listen" to Dominick "a little bit." Id. at 232. Nonetheless, McKinney removed a small pistol from the purple bag and pointed it at Laurenzo. McKinney then fired a shot while the gun was pointed at the ground. Dominick told McKinney, "Look, you just shot a bullet. You need to go. I got a son here, I've got a pregnant wife. You know this is not good. You need to leave now." Id. at 236-37. McKinney placed the gun on an entertainment center but did not leave. Laurenzo was still standing and claiming to be God and the most powerful man in the world. Connie told Laurenzo to sit down, and Laurenzo approached her "like he was going to hit [her] or something." Id. at 88. Connie told Laurenzo, "I'm pregnant and you're not going to hit me," and Laurenzo did not do anything to her. Id. Connie then called 911 to get help for Laurenzo. While she was on the phone, McKinney approached Laurenzo, put him in a headlock, pushed the gun against his temple, and shot him in the head. Laurenzo immediately fell to the floor. Dominick saw McKinney drop the gun, and McKinney left the trailer. Laurenzo died of "a through-andthrough contact gunshot wound to the head." Id. at 322. Dominick and Connie gave statements to the police and identified McKinney as the shooter. Police found a gun broken into several pieces on the floor of the trailer. After McKinney was arrested, he reported to a doctor at the Marion County Jail that he had a bullet lodged in his hand. He subsequently removed the bullet himself using a razor blade and gave it to a guard. Testing showed that the bullet had been fired 4

from the gun recovered by police. Furthermore, McKinney's wound was consistent with the exit wound on Laurenzo's head because the exit wound indicated that something was resting against Laurenzo's skin, possibly McKinney's hand. Finally, DNA testing

showed that Laurenzo's blood was on the barrel of the recovered gun and on McKinney's jacket. The State charged McKinney with murder, a felony. 1 A jury trial was held on August 15-17, 2005. During the noon recess on August 15, Judge Patricia Gifford ("Judge Gifford") became aware that Laurenzo's mother had worked for her in the early 1980s. Judge Gifford brought counsel into her chambers and advised them of her former relationship with Laurenzo's mother. McKinney's attorney indicated that she had known this information from the beginning and had not asked for recusal because she felt that Judge Gifford is fair. During the trial, Connie testified that she heard a "pop" then looked over and saw Laurenzo falling. Ex. p. 304. The prosecutor asked Connie whether she saw a gun at that point, and she said "no." Id. at 305. Regarding Dominick's testimony that McKinney dropped the gun to the floor after shooting Laurenzo and the fact that the gun was found in several pieces on the floor, David Brundage ("Brundage"), the State's firearms expert, was asked whether dropping the weapon would cause it to fall apart. He responded: Not in my opinion. One, the magazine has to be out of the gun. Two, the safety has to be forward or to a firing position, then the slide has to be drawn all the way back before it can be lifted up and in my opinion that couldn't be done with -- in a dropping situation. Has to be -- that would have to be done on purpose.

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Ind. Code

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