Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Andrew L. Hedges
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
May 8, 2001
Defendant was sentenced to death for the murder. Indiana law permits a
ntence only if the State proves beyond a reasonable doubt that one
or more aggravating circumstances specified by the legislature exist. Here, the State
charged that Defendant killed his wife while attempting to take her hostage and
while lying in wait. We find that the State proved neither and
so a death sentence is not permitted under Indiana law.
A jury found Defendant guilty of Murder,
a Class A felony,
and Attempted Kidnapping, a Class A felony.
Alleging two aggravating circumstances, Murder
committed by lying in wait
and Murder while Attempting Kidnapping,
the State sought
a sentence of death. The jury recommended death and the court sentenced
Defendant to death. Additional sentences of 50 years for attempted kidnapping and 50
years for the attempted murder were imposed.
Additional facts will be provided as necessary.
A person commits voluntary manslaughter when the person knowingly or intentio
nally kills another
human being while acting under sudden heat. Ind. Code § 35-42-1-3(a) (1993).
Sudden heat is a mitigating factor that reduces what otherwise would be
murder. Id. § 35-42-1-3(b). Sudden heat occurs where provocation engenders rage,
resentment, or terror sufficient to obscure the reason of an ordinary person, preventing
deliberation and premeditation, excluding malice, and rendering a person incapable of cool reflection.
See Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998), rehg denied;
Powers v. State, 696 N.E.2d 865, 868 (Ind. 1998).
Defendant states that he placed the issue of sudden heat in the evidence,
and the prosecution bears the ultimate burden of negating any defense which is
iciently raised by the defendant. Appellants Br. at 43 (quoting Wolfe v.
State, 426 N.E.2d 647, 652 (Ind. 1981)).
We agree with that proposition but find that the States evidence rebutted Defendants
sudden heat defense. As discussed under
Background, supra, Defendant vandalized Debbies car,
waited for the police to leave, attempted to disguise himself, walked into the
bar, and then opened fire when Debbie tried to run behind the counter.
This evidence is sufficient for a jury to conclude that Defendant was
not provoked and that his actions were deliberate. Defendant may well have
been enraged that Debbie shouted for someone to call the police, but this
is not sufficient provocation to establish sudden heat. It is predictable that
one would call out for the police or for some kind of help
when assaulted by a person with a gun. The prosecution sufficiently rebutted
the Defendants claim of sudden heat.
Defendant was not entitled to an attempted voluntary manslaughter instruction on these facts.
We addressed the same argument in
Spranger v. State, 650 N.E.2d 1117
(Ind. 1995), rehg denied:
Because citizens have a duty to submit to a lawful arrest by a law enforcement officer, such an arrest will not be recognized as legally adequate to provoke the passions of an ordinary person to sudden heat so as to justify a conviction for the lesser offense of manslaughter.
Id. at 1122.
Defendant acknowledges that the officers actions were quite lawful and performed during an
arrest. Appellants Br. at 48. As such, they cannot be the
basis for a sudden heat defense. The trial court correctly refused to
instruct the jury on attempted voluntary ma
The basis of Defendants claim stems from the relationship between Defendants younger brother,
Gordon Ingle, and the prosecuting attorney, Stanley Faith. Gordon, a la
under Faith as a deputy prosecuting attorney between January 1, 1987, and July,
1989, and as a volunteer deputy until January, 1991. Gordon and Faith
remained friends after Gordon stopped working at the prosecutors office.
Gordon, Faith, and a mutual friend, James Hancock, had lunch together on the day b efore the killings, and Defendant was discussed in the conversation. The trial court probed the nature and substance of the conversation at a hearing on Defendants motion to require the State to disclose all possible bases for the disqualification of the prosecuting attorney. Gordon testified that he could only recall saying something to the effect that there was [going to] be a homicide/suicide in Floyd County. Hancock testified during the same hearing that the tenor of the conversation was that Defendant was out of control and that he was going to do something. Hancock further testified that he did not recall any specific comments that Faith made during the conversation, but that Faith indicated that he was aware that there was a protective order in effect and basically that from a law enforcement standpoint, that was probably all that could be done at that point.
Faiths presence at the conversation was never disclosed to the jury. Nevertheless,
Defendant argues that the court should have granted Defendants motion to disqualify Faith
and appoint a special prosecutor; that Faith failed to disclose the extent of
his personal knowledge of the conversation, resulting in prejudice to the Defendant; and
that Defendant was incorrectly barred from calling Faith as a witness, frustrating Defendants
right to pr
esent a defense. We find, for reasons discussed below, that
the trial court did not err in shielding Faith from testifying, and that
there was no resulting prejudice to Defendant.
Id. at 1206 (quotations in original) (citations omitted).
We see no basis for concluding that Faith had any information that was not easily available from other sources and, therefore, that the court properly shielded him from testifying. Any information Faith may have had would have stemmed from his conversation with Gordon regarding Defendants mental state; there is no contention that Faith had any personal knowledge of Defendants mental health. Had there been useful information discussed during the conversation, Hancock or Gordon could have testified to it.
Defendant argues that prosecutors are more than mere advocates of the State and
are charged with maintaining fairness and justice in the judicial system. Defendant
cites the Comment to Rule 3.8 of Indianas Rules of Professional Conduct which
states, A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate. This r
esponsibility carries with it specific obligations
to see that the defendant is accorded procedural justice and that guilt is
decided upon the basis of sufficient evidence. Defendant also cites Rule 8.4
which provides in part, it is professional misconduct for a lawyer to
engage in conduct that is prejudicial to the administration of justice. Ind.
Professional Conduct Rule 8.4. Defendant also cites a statement by the United
States Supreme Court that the United States Attorney is the representative not of
an ordinary party to a controversy, but of a sovereignty whose obligation to
govern impartially is as compelling as its obligation to govern at all; and
whose interests, therefore, in a criminal prosecution is not that it shall win
a case, but that justice shall be done. Berger v. United States,
295 U.S. 78, 88 (1935).
The implication of these citations appears to be that the court should disqualify a prosecutor who does not live up to these standards even though the prosecutorial disqualification statute does not provide a mechanism for appointing a special prosecutor in such circumstances. Be that as it may, we see nothing in the record suggesting that Faith violated any ethical duties here. Nor do we see anything in the record that suggests the trial court was incorrect in finding no disqualifying conflict of interests or probable cause to believe the prosecutor committed any crime. We affirm the trial courts decision not to disqualify Faith.
(a) A person [commits kidnapping by] knowingly or intentionally co
nfin[ing] another person: (1)
with intent to obtain a ransom; (2) while hijacking a vehicle; (3) with
intent to obtain the release, or intent to aid in the escape, of
any person from lawful detention; or (4) with intent to use the person
confined as a shield or hostage.
(b) A person [commits kidnapping by] knowingly or intentionally r
emov[ing] another person, by
fraud, enticement, force, or threat of force, from one place to another: (1)
with intent to obtain ransom; (2) while hijacking a vehicle; (3) with intent
to obtain the release, or intent to aid in the escape, of any
person from lawful detention; or (4) with intent to use the person removed
as a shield or hostage.
Id. § 35-42-3-2.
Therefore, under the law, a defendant is guilty of attempted kidnapping ifbut only ifeach of the following is proven beyond a reasonable doubt:
1. The defendant knowingly or intentionally engages in conduct that constitutes a substantial step towards at least one of the following:
a. Confining another person; or
b. Removing another person, by fraud, enticement, force, or
threat of force, from one
place to another.
2. In engaging in that conduct, defendant intended to do at least
one of the following:
a. Obtain ransom;
b. Hijack a vehicle;
c. Obtain the release, or aid in the escape, of any person
from lawful detention; or
d. Use the person confined as a shield or hostage.
It is undisputed that Defendant intentionally engaged in conduct that constituted a substantial
step toward removing Debbie by force or threat of force from one place
nother. It is also undisputed that Defendants did not engage in
this conduct with intent to obtain a ransom; while hijacking a vehicle; with
intent to obtain the release or to aid the escape of any person
from lawful detention; or with intent to use Debbie has a shield.
Therefore, in order for Defendant to be guilty of attempted kidnapping, the State
was required to prove beyond a reasonable doubt that Defendant engaged in this
conduct with intent to use Debbie as a hostage.
The States theory was that Defendant was attempting to remove Debbie by force
from the bar to convince her to reconcile with him and that this
constituted his attempting to make her his hostage. Defendant contends that a
person is only a hostage if the person has been confined or removed
by the abductor to secure an act or forbearance from a third party.
The evidence is undisputed that Defendant was trying to secure something from
bbie only her promise to return to him and not from
a third party. For this reason, Defendant argues, Debbie was not a
hostage and that there is a failure of proof on an essential element
of the crime.
As we have noted before, the Legislature has not defined the term hostage.
Bartlett v. State, 711 N.E.2d 497, 501 (Ind. 1999). To determine
its meaning, we attempt to ascertain and give effect to the intent of
the Legislature. Id. Two aspects of the way in which the
Legislature has written our criminal code indicate to us that Defendants reading of
the statute is correct.
First, the Legislature has created another, different, crime criminal confinement that
covers the situation where a perpetrator abducts a victim in order to induce
some act or forbearance on the victims part. The Legislature has set
forth the elements of the crime of criminal confinement as follows:
A person [commits criminal confinement] who knowingly or intentionally:
(a) confines another person without the other persons consent; or
(b) removes another person, by fraud, enticement, force, or threat of force, from one place to another.
Ind. Code § 35-42-3-3 (1993). The crime of criminal confinement is clearly a lesser included offense of kidnapping. But if the term hostage encompasses a victim confined or removed by a perpetrator for no purpose beyond inducing some act or forbearance on the part of the victim alone, every act of criminal confinement would constitute a hostage-taking. This is because the force or coercion exercised in a criminal confinement always induces an act or forbearance on the part of the victim; at the very least, the victim is induced to submit and cooperate in the confinement.
While it is conceivable that the Legislature intended to have both the crimes of criminal confinement and kidnapping cover the same situation, we believe it is more likely that the Legislature did not intend for kidnapping to apply to the situation where the abductors only goal is to get the victim to do or not do something. Rather, we believe the Legislature intended for kidnapping to apply to those more aggravated situations where the abductor intends for third persons to become involved.
A second aspect of the way in which the Legislature has written our
criminal code supports this conclusion.
The four subsections of the kidnapping statute each refer to scenarios where a victim becomes a tool in the abductors plan. First, in subsections (1) and (3) of § 35-42-3-2, the ransom or the release of a person lawfully confined are ultimate goals, and the victim confined is merely a pawn in the larger scheme; in a hijacking under subsection (2), transportation is usually the ultimate objective; and it is clear that a shield under subsection (4) is used to ward off some independent force. These subsections all suggest situations in which a neutral captive is taken as the means to obtain a separate primary end. Given the meaning of the other subsections of § 35-42-3-2, a consistent definition of hostage would refer to one who is taken to secure some separate demand from another party.
The State argues that Defendants actions in this case were consistent with those
found to constitute the kidnapping of Michael in
Bartlett. Though we acknowledge
that the language from Bartlett quoted above appears to support the States argument,
the full decision in Bartlett supports the alternative view.
The defendant in
Bartlett argued that Barr, and not Michael, was the hostage
procured the compliance of Michael by pointing the gun at
Barr. Id. at 501. We decided that both Michael and Barr
could be hostages at the same time, stating, In multiple hostage situations, it
is entirely possible that a threat against one or more of the hostages
may be used to obtain the compliance of others, sometimes simultaneously. Id.
(emphasis added). Our reference to others was meant to indicate that in
the case of hostages, demands are made to third parties; Bartlett was
a situation where the third party with respect to each victim was the
Other language in
Bartlett supports this view. In concluding that Michael was
a hostage, we stated, Michael was clearly held captive for the purpose of
ensuring that Barr continued to comply with Bartletts demands. This explicitly occurred
when Bartlett trained the gun on Michael and ordered Barr to drive.
Id. (emphasis added). In fact, most of the analysis in Bartlett would
have been unnecessary under the States view of hostage. We held in
Bartlett that both victims were hostages because each was used to obtain the
compliance of the other. Id. Under the States view of hostage,
there would have been no question that Michael and Barr were hostages because
each one was held by force to secure his and her own compliance
respectively. There would have been no need to inquire as to whether
one hostage was held to secure the compliance of the other.
State v. Stone, 594 P.2d 558 (Ariz. 1979), the Arizona Court of
Appeals confronted a similar question. The defendant in Stone was a prisoner
who escaped from a hospital by taking two people captive at gunpoint.
Like Indiana, Arizonas kidnapping statute refers to one who intends to hold or
as a shield or hostage
at 562. The Arizona Court of Appeals distinguished between a person held
as security for an act or forbearance by a third party, and those
held to coerce the detainee. The court found that the captives were
not hostages, because there was no evidence that appellant intended to hold or
detain either of his victims as security for the performance, or the forbearance,
of some act by a third person. Id. at 563.
The State charged two aggravating circumstances in this case: Murder while attemp
kidnapping and murder while lying in wait. We have upheld the death
penalty in other domestic violence murders. See Wrinkles v. State, 690 N.E.2d
1156 (Ind. 1997) (upholding death penalty where the defendant killed his wife and
her brother and sister-in-law), cert. denied, 525 U.S. 861 (1998); Baird v. State,
604 N.E.2d 1170 (Ind. 1992) (upholding a death sentence of a defendant who
killed his wife, his mother, and his father), cert. denied, 510 U.S. 893
(1993); Matheney v. State, 583 N.E.2d 1202 (Ind.) (affirming death penalty of a
defendant who killed his former wife), cert denied, 504 U.S. 962 (1992).
But applicable constitutional and statutory law requires proof beyond a reasonable doubt of
at least one aggravating circumstance listed in Indiana Code § 35-50-2-9(b) to support
a death sentence. Because the facts do not support either of the
aggravating circumstances charged, we cannot affirm the death penalty.
Early on the morning of the killing, Defendant threw a brick through the
windshield of Debbies car, which was parked outside of Tommy Lancasters. Defendant,
concealed in a nearby tree, watched as Debbie arrived and spoke to the
police about the incident. After the police left and Debbie went into
the pub, Defendant hid his gun in a nearby tree and left.
Defendant walked to a nearby campsite to get a ride to Goodwill where
Defendant purchased clothing that he could use as a disguise. Defendants friend
then dropped him off a few blocks from Tommy Lancasters and Defendant went
to retrieve his gun from the tree. Soon afterward, Defendant walked into
the pub and approached Debbie. As Defendant a
pproached Debbie, she called out
for someone to call the police, at which point, Defendant shot Debbie.
Lying in wait involves the elements of watching, waiting, and concealment from the person killed with the intent to kill or inflict bodily injury upon that person. Davis, 477 N.E.2d at 896; Matheney, 583 N.E.2d at 1208. The concealment must be used as a direct means to attack or gain control of the victim, Davis, 477 N.E.2d at 897, creating a nexus between the watching, waiting, and concealment and the ultimate attack.
In this case, Defendant did watch, wait, and conceal himself outside of Tommy
ncasters, but his concealment at that time did not constitute any part of
murder by lying in wait. The evidence does show that Defendant waited
for Debbie to arrive at her car, and he watched Debbie speak to
the police, but Defendant did not use his concealment in the tree as
a means to attack Debbie. Instead, he left the scene to walk
to the nearby campsite and then rode with his friend to Goodwill.
Because Defendant did not use his concealment as a direct means to attack
or [to] gain control of the victim, and a substantial amount of time
passed between his concealment in the tree and the killing, it does not
contribute to the charge of lying in wait.
In this respect, this case resembles
Davis, where we found that the defendant
did not commit a murder by lying in wait. See Davis, 477
N.E.2d at 897. The defendant in Davis watched and waited from a
concealed position, but did not use the concealment as a direct means to
attack or gain control of the victim. Id. Instead, the defendant
went openly into the victims tent and forced him to go with him
by use of a deadly weapon. The Court found that [t]here was
not a sufficient connection between the concealment and the murder
a finding that [the] murder was committed by lying in wait. Id.
(quotation in original).
Though his watching and waiting in the tree did not constitute lying in
wait, we must also determine whether Defendants disguise and final assault fulfill the
requirements of lying in wait.
We have characterized lying in wait as a crime in which:
[T]here is considerable time expended in planning, stealth and anticipation of the appearance of the victim while poised and ready to commit an act of killing. Then when the preparatory steps of the plan have been taken and the victim arrives and is presented with a diminished capacity to employ defenses, the final choice in the reality of the moment is made to act and kill.
Thacker v. State, 556 N.E.2d 1315, 1324-25 (Ind. 1990). Though Defendant was disguised, he did not watch for the victim, nor did he wait. Rather, Defendant walked to where he thought Debbie would be and approached her directly. Defendants actions could reasonably lead a jury to presume deliberation and forethought, yet they do not fit our legal definition of lying in wait.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.