35 N.E.3d 306
Ind. Ct. App.2015Background
- On July 18, 2012, Gerald Kemper (appellant) entered a BP station in Lawrenceburg, Indiana, shot employee James Lafollette in the thigh, and took money from the register; Kemper fled in a vehicle driven by Malik Abdullah.
- Abdullah drove away, attempted to evade police, crashed into woods; Kemper ran into the woods; Abdullah later pleaded guilty to conspiracy to commit robbery as part of a plea agreement.
- Police later identified Kemper via the gun and evidence recovered from Abdullah’s vehicle and phone; Kemper was charged with multiple felonies including robbery resulting in bodily injury, conspiracy to commit robbery while armed, and unlawful possession of a firearm by a serious violent felon.
- At trial, a witness (Jack Morgan) identified Kemper, but defense later discovered the State possessed videotaped interviews in which Morgan misidentified the robber; defense moved for mistrial which was denied; the jury convicted Kemper on several counts.
- The trial court vacated convictions for robbery while armed and aggravated battery on double jeopardy grounds, but sentenced Kemper to consecutive 20-year terms on the remaining class B felonies, for an aggregate of 60 years; on appeal the Court of Appeals vacated the conspiracy conviction and sentence but affirmed the other convictions and 40-year combined sentence for the two remaining counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kemper) | Held |
|---|---|---|---|
| Denial of mistrial for late disclosure of witness videotapes | State asserted nondeliberate disclosure failure and offered cure (time to review, further cross-exam, show tapes to jury) | Kemper argued prejudice because he lacked misidentification evidence during initial cross-exam | Denied: trial court remedied matter; no grave peril shown; no abuse of discretion |
| Sufficiency of evidence for conspiracy to commit robbery | Circumstantial evidence (same car, driver/escape, text messages, post-robbery instructions) supports inference of agreement | Argued no evidence of an agreement; Abdullah testified he learned of robbery only when Kemper produced the gun | Reversed conviction: evidence insufficient to infer an agreement beyond reasonable doubt |
| Admissibility/weight of co-defendant’s guilty plea (Abdullah) as proof against Kemper | State urged jury could infer conspiracy from Abdullah’s guilty plea and his testimony acknowledging it | Kemper argued plea cannot be used as substantive proof of his guilt | Court held plea is not substantive evidence of defendant’s guilt; plea did not supply missing proof of agreement |
| Appropriateness of consecutive maximum sentences | State supported sentence based on shooting of a helpless victim and aggravated criminal history (firearm-related priors) | Kemper argued sentences inappropriate and challenged consecutiveness | Affirmed 20-year terms for robbery resulting in bodily injury and unlawful possession (consecutive resulting in 40 years after vacating conspiracy): aggravators justified consecutive maximum terms |
Key Cases Cited
- Lucio v. State, 907 N.E.2d 1008 (Ind. 2009) (mistrial is extreme remedy; relief needed only when defendant placed in grave peril)
- Moore v. State, 27 N.E.3d 749 (Ind. 2015) (standard for reviewing sufficiency of evidence)
- Owens v. State, 929 N.E.2d 754 (Ind. 2010) (elements of conspiracy to commit a felony)
- Frias v. State, 547 N.E.2d 809 (Ind. 1989) (agreement may be inferred from facts)
- Porter v. State, 715 N.E.2d 868 (Ind. 1999) (no express agreement required for conspiracy; minds must meet understandably)
- Williams v. State, 409 N.E.2d 571 (Ind. 1980) (definition of conspiratorial agreement)
- Berridge v. State, 340 N.E.2d 816 (Ind. Ct. App. 1976) (co-conspirator’s guilty plea not admissible as substantive evidence against defendant)
- Wright v. State, 12 N.E.3d 314 (Ind. Ct. App. 2014) (appellate court will not reassess witness credibility)
- Estrada v. State, 969 N.E.2d 1032 (Ind. Ct. App. 2012) (burden on defendant to show sentence inappropriate)