*1 Justice, BOEHM, dissenting. is sufficient the evidence
I believe assisting a criminal and
convict Vitek offenses, to establish insufficient but
other According- killing.
knowing intentional or Unlike other respectfully dissent.
ly, I cases, no evidence here of I find
similar killing. action before
concerted
RUCKER, J., concurs. HOLSINGER, Appellant
Curtis
(Defendant below), Indiana, Appellee
STATE of below).
(Plaintiff 49S00-9812-CR-750.
No. Indiana. Court of
Supreme 29, 2001.
June *3 IN, D. Harper, Bloomington,
Teresa At- torney Appellant. for Modisett, Jeffrey A. Attorney General of Indiana, Whitehead, Deputy J.T. Attorney General, IN, Indianapolis, Attorneys for Appellee.
SULLIVAN, Justice. convict, Holsinger
Defendant Curtis ed of killing murder and for people and stealing money from their uphold home. We his conviction over his prosecutorial claims of misconduct and im- proper hearsay evidence, admission finding the preserved first not finding hearsay evidence not with respect the second. We also find that the trial improperly court imposed two consecutive sentences of life in prison
Background The facts most favorable to the verdict January indicate that on Defen- dant Holsinger Curtis Lopez and Jessica Jasonville, visited Frank Dennis Indiana. Defendant and Dennis decided go Indianapolis, planning to rob Chad drug Sloan who owed money. Dennis The three traveled to the residence of Sloan Shirley brought Newsom. Defendant a knife and Sloan brought gun. Defendant, Dennis, arrived at Sloan's residence and were allowed inside. II, gun drew his and aimed it at counts I and imposed Dennis then inup Defendant tied Sloan the back Sloan. two sentences of life in prison without living in the up and tied Newsom bedroom to be consecutively. served mul- room. Defendant then stabbed Sloan court imposed 20-year four sentences for pocketknife, killing times with the tiple V, VI, VII, VIII, counts all to run him. Defendant and Dennis returned to consecutively. Id. living point room at which Dennis shot Discussion Newsom, killing her. thereafter, Defendant, Dennis, Shortly argues the prosecutor Hamilton, Lopez drove Ohio. When committed closing argu- misconduct his *4 Indiana, Lopez Defendant returned to ment and that the "trial court erred when they police looking learned that the were objection it prosecu- overruled his the Lopez police for them. went to on closing argument." tor's Appellant's Br. statement, January gave 23 and them a at 19. downplaying the role that she and Defen- During defense closing argu- counsel's played day, dant in the murder. The next ment, he referred to a knife that was found police returned to the and gave body the bedroom where Sloan's In another statement. her second state- According located. to State witness De- ment, Lopez implicated herself in the rob- Pollard, tective the knife appear did not bery and Defendant in the it, have on scientifically blood but was not murder. During tested for blood. closing argu- charged Defendant was with eight ment, suggested defense counsel that the II, counts: Counts I and Murder of New- knife could weapon: have been the murder Sloan; IV, Felony som and Counts III and They going [the State] weren't to tell Sloan; Murder of Newsom and Counts V you Why? about that knife. it Because VI, Newsom, Robbery of Sloan and up. messes it If that knife's still back felonies;3 VIII, A Class Count VII and room, pocket story goes the that knife Newsom, Confinement of Sloan and Class Why out the window.... wasn't
A jury Felonies.4 A found Defendant testing Why done on that wasn't knife? guilty eight of all counts. serologist allowed to at least wash During penalty phase, jury off, a washing, take make a test on it to found proved statutory that the State if it had on it? you see blood Wouldn't beyond a rea smudgy that? . want to know It's during sonable doubt-murder the com they fingerprinted because it. Whose robbery,5 mission of a and the commission Nobody fingerprints you are on it? told However, multiple jury murders.6 they prints.... didn't find [Whose - against recommended of life in sentence prints they [De- are on that knife? Are prison fendant's]l? No. don't know. We - merged Somebody's The trial court count III with are on prints there. You I Why? count and count IV with count II. For weren't told that. Because 35-50-2-9(b)(1)(G) § (1993). 5. Id. § 1. Ind.Code 35-42-1-1 2. Id. 35-50-2-9(b)(8) § 6. Id. §
3.
Id.
35-42-5-1.
§
Id.
35-42-3-3.
infor-
gives
"truckloads" of
weap-
the murder
State
that knife
make
might
"[gets] nothing
the defense and
mation to
fin-
[Defendant's]
have
and it doesn't
on
fact,
points
In
in return."
And,
pocket
again,
it.
gerprints on
out,
County
pro-
Marion
courts have
goes
highway
out
story on the
knife
requir-
discovery
automatic
rules
mulgated
You
a doubt here?
window.
Is there
also disclose certain
ing that defendants
doubt.
bet. That's reasonable
7(8),
Rule
information to the State. See
666.)
(R. at
Procedure of
Organization
Rules of
during
closing
its
responded
The State
Court,
Divi-
Superior
Marion
Criminal
following exchange oc-
and the
sion.
curred:
result
Defendant also maintains
address
some-
got
I've
[Prosecutor]:
make
prosecutor's argument was to
of the
like me
thing
boy,
...
it sure sounded
appear
deceptive
to be
defense counsel
you
he told
folks that withheld
nothing.
hid
Defen
prosecution
while the
evidence.
states,
guy char
good guy/bad
"[this
dant
TM tell
Counsel]:
[Defense
the de
prosecution
acterization of the
And I
say
now that I did not
that.
right
been condemned."
fense functions has
*5
imply-
don't mean to
(citing
Br. at 22
Bardonner v.
Appellant's
Well,
said,
you
if we found
[Prosecutor]:
(Ind.Ct.App.1992),
ment to the first and her role in the dant and Indiana. She testified Lopez made another statement Lopez testified police she returned to to minimize Defendant's on the that she killing. that she lied in this night gave The next that Defen- Jasonville, to the a state- day, po- (R. requirement the truth Ms. determines whether or not [*] [Defense od ok 494-97.) Lopez-anybody today Counsell: of this qualify plea agreement. Who this room-who you're telling determines, satisfy examination, repair On redirect her implicated lice that both Defendant credibility, the Lopez State asked to read implicated in the De- herself portions of the second statement that she fendant the homicide Sloan. She given police. had This statement testified at trial that she "felt bad" about knife, regarding gloves, and Defen- the first statement and that lying during dant's confession were all consistent her statement was the truth. second testimony. her trial court Defendant ob- examination, Lopez On the state's direct jected that her out-of-court statement implicated Defendant with statements hearsay police was and therefore inadmis- made to her. testified that he had sible. bought gloves on she and Defendant Hearsay is an out-of-court statement of-
way
leaving
to avoid
fin-
to Sloan's house
prove
fered to
the truth of the matter
gerprints. She also testified that Defen-
801(c).
asserted. See Ind. Evidence Rule
dant
to her that he killed Sloan
admitted
Generally, hearsay is inadmissible. See
knife out the window.
and threw the
Ind. Evidence Rule
Under
Indiana
801(d)(1)(B),
Evidence Rule
a statement
is
cross-examination,
During Lopez's
De-
hearsay if
at
the declarant testifies
attempted
impeach Lopez's
fendant
to
tes-
hearing
subject to
trial or
and is
cross-
timony
lying.
by implying that she was
statement,
concerning
examination
Lopez's plea agree-
referred to
Defendant
(a)
the statement
is
consistent with the
ment,
Lopez
lying
was
to
suggesting
(b)
testimony,
offered to rebut
declarant's
by
get
prosecutor.
favorable treatment
charge against the
express
implied
an
or
also referred to
two differ-
Defendant
improper
of recent fabrication or
declarant
Lopez gave
ent
statements
(c)
motive,
influence or
made before
police, emphasizing
they
were not
the motive to fabricate arose.
consistent:
Here, Lopez's
testimony
trial
was
. After all
[Defense Counsel]:
consistent with her second
time, you haven't been sentenced?
an
police.
It was also offered to rebut
fabrication; Defendant's
[Lopez]:
implied charge of
Correct.
hearsay
if:
implied
7. A statement is not
ny,
express
offered to rebut an
or
charge against the declarant of recent fabri-
declarant
testifies at the trial or hear-
[iJhe
motive,
improper
cation or
influence or
subject
to cross-examination
con-
is
,
statement,
cerning
and the statement
made
the motive to fabricate arose.
before
801(d)(1)(B).
Ind. Evidence Rule
. consistent with the declarant's
testimo-
lied
deed,
robbery
implied
herself in the
implicated
cross-examination
she
and,
felony murder.8
Therefore,
consequence,
a
testimony.
her
during
Moreover,
regards
to the crime which
if it
admissible
properly
statement was
motive to fabricate-the
she did have a
motive to fabricate
a
made before
was
robbery-she
implicated herself.
arose.
motive to fabricate
a
Whether
III
a fact sensitive issue. See
has arisen is
argues that
State, 742 N.E.2d
Stephenson
him. He contends
improperly sentenced
(Ind.2001);
719 N.E.2d
Sturgeon v.
consider miti-
that the trial court did not
(Ind.1999).
automat
We do not
"plainly
cireumstances that were
gating
participant
a crime has
ically find that
improperly
that the court
presented," and
fabricate,
po
even where the
a motive to
fac-
non-statutory aggravating
considered
in
into the declarant's
inquiring
lice are
argues that his sen-
tors. Defendant also
Stephenson,
in the crime. See
volvement
manifestly
unreasonable. See
tence
475;
Sturgeon,
Br. at 8.
Appellant's
(finding
at 1180
no motive
fabricate
aggravating cir-
charged
The
State
tending
no evidence
where
[was]
"there
cumstances,
during
murder
intentional
murder
declarant]
[the]
implicate [the
commis-
commission of a
and the
no evidence he had motive
and therefore
Ind.Code
multiple
sion of
See
murders.
involve
defendant's]
[the
to lie about
35-50-2-9(b)(1)(G@)_
_
§§
85-50-2-
ment.").
9(b)(8). Defendant introduced evidence to
mo
Lopez might have had a
While
cir-
following mitigating
demonstrate
January
in her statement of
tive to lie
age;
cumstances: Youthful
domination
24th,
impli
have a
she did not
motive
another;
childhood;
lack of a
troubled
in the murder. There was
cate Defendant
intoxication;
history;
surrender
criminal
suggesting-and Defendant
no evidence
authorities;
cooperation
to and
Lopez herself
does not contend-that
and remorse.
the victims. The statement she read
killed
had
found that
the State
*7
at trial contradicted her statement from
proven
aggravating
the two
before, shifting
Dennis
day
blame from
doubt,9
a
but recom
beyond
reasonable
was
to Defendant. To
extent she
against
impris
a sentence of life
mended
murder,
felony
her
guilty of
Contrary to the
parole.
onment without
culpability would have been
same
recommendation, the trial court im
jury's
Defendant or Dennis had
whether either
in
posed
prison
a sentence of life
without
killed
We find no motive on Lo
Sloan.
pez's part to fabricate Defendant's role
order,
sentencing
In the
Sloan's murder. There is no contention
found,
jury
in accordance with the
find-
own;
in
that she tried to minimize her
jury
Felony
person
9. The fact that the
made affirmative find-
murder occurs when
"kills
ings
charged aggravating
circum-
being
committing
or
another human
while
beyond
atiempling
robbery."
...
Ind.
proved
had
a reasonable
to commil
stances
been
35-42-1-1(2)
(1993).
§
The State need
Code
distinguishes
from
v.
doubt
this case
Farber
prove
felony
intent to kill in a
murder
State,
(Ind.2000).
361
State,
sentencing
order violates Bivins v.
proved the existence
ings, that the State
beyond
aggravating
circumstances
(Ind.1994),
denied,
ings
particularly disgusting
ag-
was
A
...
gravating....
[Defendant]
stabbed
A sentence of life imprisonment
with a knife
and slashed Chad Sloan
parole
imposed
without
under the same
twenty-nine
[Defendant]
times....
was
standards and is subject to the same re
murder of
major participant
quirements as the
penalty.
death
See
Shirley Newsom....
had
[Defendant]
(Ind.
State,
374,
v.
Pope
382
knowing
tied her
up
[Dennis]
2000),
denied;
reh'g
Nicholson
v.
going to kill her....
Then [Defendant]
(Ind.2000),
reh'g
N.E.2d
hid his involvement in the murders
deemed;
v.
Rawley
N.E.2d
discarding
wearing
the clothes he was
(Ind.2000); Ajabu
weapon
and the murder
he used....
(Ind.1998).
N.E.2d
abhor-
action reveal such
[Defendant's]
contends that
the trial court considered
imprisonment
rent behavior
life
non-statutory aggravating cireumstances
only appropriate
is the
Bivins,
in violation of
363 reasonably give requires The statute then miti- may ported by the record gating weighed against circumstances be and they a belief were overlooked rise to any properly proven aggravating circum- v. considered. See Scheckel properly (Ind.1993); noted, 681, the trial court did not State, stances. As NE2d 686 620 (Ind. State, 681, identify any mitigating 683 cireumstances. 467 N.E.2d Jones noted, 1984). Again as claimed the cir- following mitigating existence of the youthful age; cumstances: his crime com- C mitted while under the domination of an- im We vacate the sentence other; childhood; lack of his troubled his because it relied posed by the trial court intoxication; history; criminal his his sur- non-statutory aggravating circum on - - cooperation render to and with the author- in violation of Bivins and because stances ities; his remorse. sentencing a imposed pursuant was if assign any weight We little to the requirements that did not meet the order intoxication, proffered mitigators coop- of irregulari an of Harrison. Where we find authorities, eration with and remorse. decisions, ty sentencing in trial court's The record demonstrates that Defendant option to remand to the trial we have engaged exhibiting signifi- in behavior court for a clarification or new degree physical cant of and intellectual determination; if to affirm the sentence skill, eg., purchased gloves way he on the harmless; reweigh and to the error coop- His surrender and Indianapolis. cireum- proper aggravating only came after he learned that the eration appellate at the lev independently stances police looking were for him. See Games v. Bivins, N.E.2d at 957. Here el. See (Ind.) 580, (giving 535 N.E.2d reweighing. in engage appellate we elect to weight little to the fact that defendant apprehen- surrendered where defendant's sen appropriate To determine denied, inevitable"), "nearly was cert. sion tence, will first consider the sentence of we 205, 110 S.Ct. 107 L.Ed.2d U.S. in Before a prison life without (1989). nothing of record And there is im parole life can be sentence of out suggest that his remorse was of case, requires the statute posed Evans v. ordinary. See beyond a reasonable doubt prove State to (Ind.2000) (assigning little aggravating one least light to the defendant's remorse weight (b)(15) (b)(1) through listed in subsections death). victim's the brutal nature of the of § (Supp.1996). 385-50-2-9 of Indiana Code range to the assign weight the low supported request its for We Here State of troubled childhood following ag proffered mitigators life without crime committed under the domination (1) intentional gravating circumstances: childhood, of a rob during murder the commission of another. As to Defendant's mother had there was evidence his 85-50-2-9(b)(1)(G); § Indiana Code bery, neglect with and abandoned charged been (2) mur multiple the commission 85-50-2-9(b)(8). old; ders, family years § when he was two Indiana Code suspected neglect that his father Both the found proof authorities; that the had met its burden State and that some of child welfare problems school were these cir his behavioral respect to both being undernourished. See makes no claim traced to his cumstances and Defendant contrary. Timberlake v. *10 364
(Ind.1997)
jury
unanimously
same
that
found Defen-
(acknowledging
being
brought up
dysfunctional family may
murder,
in a
guilty
dant
robbery, and con-
factor)
weighed
mitigating
be
aas
cert.
finement
prepared
accept
and was
its
denied,
1078,
808,
525
119 S.Ct.
142
U.S.
role as the "conscience of the community"
(1999).
accept
LEd.2d 668
We do not
in rejecting
request
the State's
for life
Defendant's claim that he committed the
State,
parole.
Saylor
without
See
v.
686
while
crimes
this case
under the domi-
(Ind.1997)
80,
N.E.2d
87
(quoting Peterson
Dennis;
State,
528,
(Ind.1996),
nation of
our review of the record
v.
674 N.E.2d
543
willing partici-
demonstrates that he was a
demied,
1078,
858,
cert.
522 U.S.
118 S.Ct.
time,
pant in the
At the same
crimes.
we
(1998)),
demied,
We
in the medium-range
(i)
death,
against
here
im-
proffered mitigators
of defendant's
properly
upon non-statutory
relied
aggra-
youth
history.
and his lack of criminal
(ii)
circumstances,
vating
there was no
19 at
the time of these
analysis
identification or
by the trial court
State,
crimes.
Brown
720 N.E.2d
(i)
cireumstances,
mitigating
(Ind.1999)
("
1157, 1159
independent
our
weighing has identified
youth, although not identified as a statu-
cireumstances,
mitigating
each of me-
cireumstance,
tory mitigating
is a signifi-
weight,
dium
as well as several additional
mitigating
cant
cireumstance in
cir-
some
mitigating
weight.
circumstances of lesser
cumstances.'")
(quoting Carter v.
When these three
juxta-
considerations are
(Ind.1999)).
885,
711 N.E2d
posed
rejection
by
unanimous
pre-sentence
investigation
this case in-
jury of the State's life
parole
without
re-
ju-
dicated that defendant had no adult or
quest,
rejection
with all that such
imports,
(R.
207.)
history.
venile criminal
See
we
conclude
life
parole
without
is not
529,
Widener v.
an appropriate sentence here.
(Ind.1995)
(finding
17-year-old
defen-
history
dant's lack of criminal
to be a
proceed
We
to determine the de
mitigating factory);
see also Baird v.
fendant's sentence for the two murders
(Ind.1992)
general
under the
sentencing
At
statutes.
(weighing
history
lack of criminal
as a
committed,
the time these ¢rimes were
mitigating
circumstance
the medium
presumptive
standard or
sentence for mur
demied,
range),
cert.
510 U.S.
der
Legislature
established
was 55
(1993).
S.Ct.
by a sufficient murder years of 65 for mum sentence SHEPARD, C.J., RUCKER, J., and concur,. We imposed on each count. should be on these two counts order the sentences J., BOEHM, in III parts concurs concurrently.
be served part sepa- concurs in result in II with challenges pro- Defendant also rate opinion. 20-year four consecutive sen
pricty of the
I,
DICKSON, J.,
part
concurs in
concurs
robbery and
for the two counts of
tences
II,
part
part
in
and dissents in
result
The trial court
two counts of confinement.
separate opinion.
from
III with
part
on these counts as Class
judgment
entered
for
presumptive
B felonies. The
sentence
DICKSON,
Justice,
concurring in part
Ind.
felony
years.
B
is ten
See
a Class
dissenting
part.
(1998).
§
A
85-50-2-5
Code
I,
may
up
years
aggrava
add
to ten
for
I concur in Part
concur
result with
court
II,
Part III
Part
and dissent from
to four
ting
up
or subtract
circumstances
majority opinion.
circumstances.
Id.
years
mitigating
for
court,
the trial
for the
agree with
We
I,
separately
I write
to em-
As to Part
above,
weight
reasons stated
that a defendant's failure to re-
phasize
jus
mitigating factors
alone,
admonishment, standing
quest an
years
maximum sentence of 20
tifies-the
Al-
necessarily
not
result in waiver.
does
robbery and confinement.
for each count of
454 NE.2d 406
though Dresser
on these four
order
the sentences
We
(Ind.1983)
is
advises that admonishment
concurrently.
counts to be served
employ against
procedure to
the "correct
407, it con-
argument," id. at
improper
an
aggrava
that the
Finally, we find
following important qualifi-
tinues
above war
ting circumstances discussed
obvious,
sentences on the
it
from the
ranting fully enhanced
cation:
"Where
misconduct, that no
degree
nature and
murder,
counts
robbery, and confinement
suffice, motion for
could
admonishment
outweigh
cireumstances dis
408;
Id. at
may
dispensed
be
with."
one
magnitude
aby
cussed above
sufficient
the rob
N.E.2d
that the concurrent sentences for
Leach v.
see also
("We
(Ind.1998)
be
disagree
confinement counts should
with
bery and
644 n.
that, in
the defendant
agree
State
the concurrent sen
served consecutive to
this,
not
an instruction will
cases such as
for the murder counts.
tences
error.")
recognizes
Dresser
cure the
Conclusion
argument is
objecting
improper
merely
general
enough
and advises
convictions. We
We affirm Defendant's
admonish-
request
is to
procedure
trial
correct
imposed
vacate
sentences
mistrial,
by motion for
but
im- ment followed
instructions to
and remand with
court
request
acknowledges that a
expressly
years
of 65
on
pose concurrent sentences
*12
necessary
discretion,
for
is not
in
an admonishment
court's
and the court
is not
obligated
some circumstances. Neither Robinson v.
explain why
to
finds
cireum-
State,
(Ind.1998),
698 N.BE2d 548
nor
stance not to be mitigating. Taylor v.
State,
1105,
(Ind.1997).
State,
681 N.E.2d
(Ind.1991),
1112
Brown v.
review of a timely denial of an otherwise Having determined that the sentence motion for mistrial. imposed by erroneous, the trial court was II, respect agree
With to Part I with the the majority engage appellate elects to concurring in opinion result of reweighing Justice to determine the sentences to Boehm that the of Lopez's prior admission imposed be expresses its evaluation consistent statement was harmless error. assigning general various weights to each aggravating and mitigating circumstance As to Part III of majority opinion, I found. While some members of this Court agree that the trial court's sentence of life have often chosen employ to this method imprisonment improp- was analysis, this should not be understood erly non-statutory based on aggravating as the prescribed exclusive or methodology cireumstances, and that it must be vacated. for trial or appellate sentencing evalua- unable, however, I join am majori- to tions. ty's evaluation of the trial court's consider- ation of the mitigating evidence related to Matters that may be appropriate for cireumstances, disagree and I consideration are extraordinarily diverse sentence imposed. defy quantification and often or precise analogous comparison opposing consid- Contrary majority's conclusion in erations. Determining appropriate IIIB, Part I believe that the trial court's criminal sentence is an subjective act of explanation adequate was as mitigating judgment, quintessence of a judge's cireumstances. The function. analysis The cannot be circum- advises that the gave trial court consider- scribed to single mathematical formula ation to expressions the defendant's of con- or methodology. requirement of gen- dolences, his claim that his role as an eral sentencing explain statements to accessory minor, relatively and his sentencing decision assures fairness and contention that acting he was under sub- propriety, permits judicial review. stantial domination of another. A sentenc- But reasonable permitted latitude is in the ing judge obligated is not to make an way trial appellate judges undertake finding expressly affirmative negating each to evaluate and determine the sentences potentially _ mitigating circumstance. imposed. be (Ind. Crawley 1997). The determination respect With majority's civreum- reweigh- stance is mitigating is within the trial aggravating mitigating cir- defendant had mo relationship to jury's familial and consideration cumstances fabricate); McCray v. tive to recommendation, with the conclu- agree I (1998) 598, 716 A.2d Md.App. sions accomplice's motive to fabri (noting that circumstances but outweigh the moment cate existed from the appropri- not an parole is that life without murder, however, which she was disagree, I ate sentence. involved, for that the sentences place). to order took also admittedly the decision *13 a motive to agree that whether fabricate concurrently. Notwith- be served murder Step arisen is a fact issue. circumstances has standing the sensitive 475; Sturgeon, 719 henson, fact that the N.E.2d majority, the by found killing peo- However, of compar was convicted at 1178. after defendant N.E.2d of previ the facts of this case to those judgment. For heavily my in ple weighs counts, merely imposing ous cases Court, I by this two murder considered at a different result. fully enhanced would arrive single a equivalent I require would is insufficient. sentence (1) facts that: majority stresses the murder counts be on the that sentences suggested that presented was no evidence other and consecutively to each served murders; committed the Lopez that herself twenty- the concurrent consecutively to (2) in Lopez admitted her role the other counts. year for sentences opened up herself robbery, and therefore felony robbery and murder. charges to Justice, BOEHM, in result. concurring However, undisputed Lopez that ac- it is III. I concur I in Parts I and concur seene, to the crime companied Holsinger I although II be- in Part because result murdered, two victims were stood while Lopez's to admit that it was error lieve victims, robbery of the participated statement, I that believe prior consistent Holsinger to another state. and fled with harmless. error was police that were learning after Only 801(d)(1)(B) of Evidence Indiana Rule Holsinger Lopez both searching for statement prior that a consistent provides voluntarily go police to did charge a to rebut may be admitted statement, In first her give statement. the mo- if it was made before fabrication minimize the roles that attempted to she I believe arose. Because tive to fabricate played in the Holsinger both she made police to Lopez's that statement, given In her second crimes. arose, I would her motive to fabricate after role in the day, she admitted her the next trial error for the it was conclude Holsinger in the implicated to admit that statement. court Lopez's voluntary robbery. murder and admission police included an to majority that we do not statements agree crimes, they culpability but in a of her participant find that a "automatically" the other her role vis-&-vis also minimized Stephen fabricate. has a motive to crime for her stage and set participants (Ind. 463, 742 N.E.2d son v. vol- agreement. Before she plea eventual 2001); Sturgeon v. Awon, Lopez knew untarily spoke police, (Ind.1999); v. States United cf. Cir.1998) (motive in connec- (1st questioning for was wanted she 135 F.3d reason- crimes. It seems with these tion fabricate, leniency, for namely, a desire that a negotiations); Farris she decided plea pre-dated able to conclude was her best bet approach (Ind.Ct.App. proactive 2000) (no accomplice with question that a reduced sentence. secure recently
This Court considered a differ other against evidence Holsinger, I would Stephenson. ent find the pattern fact In error harmless.
case, Funk, accomplice/witness, Dale
had a level of involvement in a triple mur
der comparable Lopez's here. Stephen
son,
However,
Funk's consistent statement was not voluntary police. admission to Id. at Rather,
472-78. part was a of a conver sation an party uninvolved third a few In the Matter of Richard Alan JONES. days after the crime. Funk received no No. 49S00-0103-DI-165. prosecutorial benefit for his testimony. Thus, Id. at although I agree with Supreme Court of Indiana. *14 Stephenson conclusion in that Funk had no motive to fabricate when he made June 2001. prior statement, his consistent I believe ORDER ACCEPTING RESIGNATION that the differences in the fact patterns AND CONCLUDING
justify a different result this case. PROCEEDING Thompson The facts of v. Comes now the respondent, Richard (Ind.1997), N.E.2d 224 analogous are Jones, Alan and tenders to this Court his this case. The accomplice/witness, Doug- resignation from the bar of this Perey, las voluntarily went police pursuant Admission Discipline Ind. made a statement implicating Jerry Rule Section 17. Thompson in a double murder and rob- Court, And being advised, duly now bery. Id. at Perey partici- admitted finds that the tendered resignation satis- pating in Thompson after un- fies the requirements of Admis.Disc.R. expectedly shot the victims. Id. Pending 28(17), that, accordingly, it should be charges against Perey for another felony accepted. were in exchange dismissed for his testi- IS, IT THEREFORE, ORDERED that mony against Thompson. Id. Given these the resignation from the bar of this state facts, we noted that admission Percy's by tendered respondent, Richard Alan statement to police consistent with his tes- Jones, hereby accepted. Accordingly, timony arguably improper because the Clerk of this Court is directed to strike "Perey every had reason culpabili- to shift his name from the Roll of Attorneys. In ty to Thompson while minimizing his own order readmitted, to be he must comply 8; involvement." Id. at 282 n. accord with the reinstatement provisions con- Bouye 625-26 28(4). tained in Admis.Disc.R. (Ind.1998) (accomplice's motive to fabricate IT IS FURTHER that, ORDERED crime). arose at the time of the virtue of respondent's resignation from state, the bar of this attorney all disciplin- would find that had a motive to ary proceedings pending against him are fabricate before she made her voluntary hereby dismissed moot. statement police. I would therefore hold that admission prior of her consistent The Clerk of this Court is directed to However, was error. given the forward notice of this Order to respon-