976 N.E.2d 68
Ind. Ct. App.2012Background
- Berkman owed about $2,000 for cocaine purchases from Hawkins in Aug 2008.
- He arranged a meeting to pay Hawkins in a supermarket parking lot; he left with Timmerman’s car.
- He killed Hawkins by slitting his throat, robbed him of cash and cocaine, and transported Hawkins’ body back to Timmerman’s home.
- Berkman disposed of Hawkins’ car and body by burning it in a field after keeping the car for days.
- In the first trial Berkman was acquitted of murder and the felony murder count ended in a mistrial; in a second trial he was convicted of felony murder by reading Timmerman’s prior testimony and Barraza’s deposition, and sentenced to 60 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy in retry for felony murder | Berkman argues retrial barred by double jeopardy under Richardson | State argues not barred due to single conviction and lack of identical elements | No double jeopardy bar; upheld retrial and conviction |
| Admission of Timmerman’s prior testimony | Admission prejudicial; Timmerman unavailable | Proper under Rule 804(b)(1) and Crawford concerns addressed | Admissible; Timmerman unavailable and cross-examination adequate |
| Admissibility of Barraza’s deposition testimony | Barraza unavailable; deposition should be excluded | Good faith effort to secure Barraza; deposition admissible under Rule 804(b)(1) | Admissible; sufficient unavailability and cross-examination opportunity shown |
| Sentence appropriateness | Sixty-year sentence excessive given circumstances | Sentence within statutory range and justified by offense | Sixty-year sentence affirmed as appropriate |
Key Cases Cited
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (actual evidence test for same-offense double jeopardy)
- Ashe v. Swenson, 397 U.S. 436 (Supreme Court 1970) (collateral estoppel principles in criminal cases)
- Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App. 2009) (discussion of collateral estoppel applicability in Indiana)
- Bartruff v. State, 528 N.E.2d 110 (Ind. Ct. App. 1988) (good-faith effort to secure out-of-state witness; relevance to unavailability)
- Fowler v. State, 829 N.E.2d 459 (Ind. 2005) (confrontation rights and admissibility of prior testimony)
- Brady v. State, 575 N.E.2d 981 (Ind. 1991) (right to confront and cross-examine preserved where prior testimony is read)
- Iseton v. State, 472 N.E.2d 643 (Ind. App. 1984) (unavailability and admissibility of prior testimony)
- Johnston v. State, 517 N.E.2d 397 (Ind. 1988) (issues of identity and fair cross-examination in prior testimony)
- Moore v. State, 440 N.E.2d 1092 (Ind. 1982) (trial court discretion on admissibility of prior recorded testimony)