ATTORNEY FOR APPELLANT
Ann M. Skinner
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
STEVEN R. LOWRIMORE, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9806-CR-315
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton-Pratt, Judge
Cause No. 49G01-9509-CF-132515
ON DIRECT APPEAL
May 26, 2000
Steven Lowrimore was convicted of murder, felony murder, robbery as a Class A
felony and criminal confinement as a Class B felony. He was sentenced
to life imprisonment without parole for the murder and felony murder counts, fifty
years for robbery, and twenty years for criminal confinement. In this direct
appeal he contends that (1) his right to a speedy trial under Criminal
Rule 4 was violated; (2) the State engaged in prosecutorial misconduct and violated
Brady v. Maryland when it failed to timely disclose that a witness had
filed a petition for postconviction relief; (3) the trial court erred in admitting
marijuana and pipes into evidence; and (4) double jeopardy precludes his convictions and
sentences for both murder and felony murder. We vacate the felony murder
and criminal confinement convictions, reduce the robbery conviction to a Class C felony,
and otherwise affirm the judgment of the trial court.
Factual and Procedural Background
Lowrimore shared a house in Indianapolis with Rebecca Lowe and Robert Malcom.
In late August of 1995, Debra Lawyer, who worked as a dancer at
a topless bar, also moved into the home. Within days of moving
in, Lawyer was dead.
According to Lowe, she, Malcom, and Lowrimore were conversing on the evening of
August 31. Lowrimore reported that he wanted money from Lawyer. Lowe
suggested that Lowrimore simply ask for the money, but the three also discussed
the possibility of grabbing Lawyer from behind and taking the money by force.
Because robbing Lawyer would likely lead her to report the crime to
police, Lowrimore stated, No matter how we look at it, she has to
die. At approximately 6:30 a.m. the next morning, Lowe and Lowrimore spoke
in the living room while Malcom slept in the bedroom and Lawyer slept
beside the bed. Lowe suggested that she sit on Lawyer and hold
a pillow over her face. Lowrimore and Lowe waited until Lawyer was
lying on her back. Lowe then went down on [Lawyers] chest and
held the pillow over her face, while Lowrimore sat on Lawyers legs and
held one of her arms. Lawyers scream wakened Malcom, and Lowrimore told
Malcom to instruct Lowe not to let up. Malcom testified to essentially
the same facts. He said that he awoke to find Lowe sitting
on top of Lawyer holding a pillow over Lawyers face while Lowrimore held
After several minutes Lawyer was silent but Lowrimore told Lowe that he thought
she had just passed out. Lowrimore then wrapped a cord around Lawyers
neck and brought her straight up, [making] . . . several snapping noises.
Lowrimore retrieved cash from Lawyers underwear. Later that day, Lowrimore, Lowe, and
Malcom drove to McCormicks Creek State Park where they left Lawyers body in
a secluded area. Two weeks later, Lowe told police of the murder
and took them to the body. Due to decomposition, the pathologist could
not determine the specific cause of death.
Lowrimore, Lowe, and Malcom were charged with murder, felony murder, conspiracy to commit
murder, robbery, conspiracy to commit robbery, and criminal confinement. Two months later,
the State entered into a plea agreement with Malcom and filed an information
seeking the death penalty against Lowrimore, alleging that Lowrimore had intentionally killed during
the commission of a robbery. The State later entered into a plea
agreement with Lowe.
In addition to Lowe and Malcom, Lawrence Bordenkecher testified at trial that in
the first half of September of 1995, Lowrimore had visited his apartment where
he stated, I killed someone. And not only that, it was a
woman and not only that, it was a titty dancer. James Burke,
who was housed in the same cellblock of the Marion County Jail as
Lowrimore in June of 1996, testified that Lowrimore showed him a picture of
Lawyer and said that he had killed this stupid bitch. He recounted
that he had held Lawyers legs while a fat girl got on top
of her. Finally, another inmate, James Chelf, testified that in July of
1997, Lowrimore had told him that he had killed a girl named CricketLawyers
nicknameand had broken her neck. In February of 1998 a jury found
Lowrimore guilty of murder, felony murder, robbery, and criminal confinement. He was
found not guilty of the remaining charges. The jury recommended a sentence
of life imprisonment without parole, and the trial court followed that recommendation.
I. Criminal Rule 4
Lowrimore first contends the trial court violated his Criminal Rule 4 right to
a speedy trial. Rule 4(B)(1) provides that an incarcerated defendant who moves
for a speedy trial is to be discharged if not brought to trial
within seventy calendar days of the motion. It excepts from the seventy-day
period any time attributable to a continuance or delay by the defense, court
congestion, or an emergency. At his initial hearing on September 22, 1995,
Lowrimore orally requested a speedy trial and the trial court set the case
for trial by jury on November 27, sixty-six days after the speedy trial
On November 20, the State filed an information seeking the death penalty.
Criminal Rule 24 requires appointed counsel in death penalty cases to consist of
two attorneys meeting the qualifications of that Rule. The public defender who
had been appointed to represent Lowrimore on September 27 was not qualified under
Criminal Rule 24. The trial court vacated the November 27 trial setting,
finding that an emergency exists. Lowrimore objected to the continuance and later
moved for discharge.
Lowrimore first asserts that he is entitled to choose his speedy trial right
over the rule requiring two Criminal Rule 24 attorneys. Of course Lowrimore
has the right to represent himself and to retain counsel. But if
he chooses to proceed with court-appointed counsel the language of Criminal Rule 24
is mandatory and requires trial courts in death penalty cases to appoint two
attorneys meeting the specified educational and experience levels. The only exceptions are
a defendants retention of private counsel, Crim. R. 24(B), or a competent defendants
knowing, intelligent, and voluntary waiver of his right to counsel in a timely
and unequivocal manner,
see Sherwood v. State, 717 N.E.2d 131, 137 (Ind. 1999).
Neither of these exceptions applies here. Thus, the trial court was
required to appoint two Criminal Rule 24 qualified attorneys. This requirement became,
as of November 20, a part of the legal environment of the case
in the same sense as the trial courts schedule. It is a
factor to be considered in evaluating the pace at which the case can
proceed. The requirement of Criminal Rule 24 counsel is, of course, principally
for the defendants benefit, but not solely. The State has a strong
interest in the proper conduct of every trial and that concern is maximized
in death penalty litigation. Thus, a defendant accepting appointed counsel has no
right to opt out of Criminal Rule 24.
Lowrimore contends that, even if Criminal Rule 24 applies, no court emergency existed
because there was no evidence that the Criminal Rule 24 qualifications could not
be met by the November 27 trial date. A trial courts finding
of congestion is presumed to be valid and need not be contemporaneously explained
Clark v. State, 659 N.E.2d 548, 552 (Ind. 1995).
If a trial court makes findings in response to a Motion for Discharge,
its findings are reviewed under a clearly erroneous standard. Id. Although
the face of the rule refers to congestion of the court, which is
understood by most to refer to demands imposed by other cases on the
courts docket, our decisional law has interpreted court congestion more broadly to include
the unavailability of essential personnel or physical facilities. Loyd v. State, 272
Ind. 404, 408, 398 N.E.2d 1260, 1265 (1980). In addition, Criminal Rule
4(B)(1) allows trial courts to order a continuance upon a finding of an
emergency. In this case the trial court made the following finding:
To comply with Crim. R. 24, the trial judge had a duty to
appoint two capital-qualified counsel . . . . This obligation created the
existence of an emergency making it necessary for the trial judge to order
a continuance of the trial date. Whether characterized as an emergency or
court congestion resulting from the unavailability of essential personnel, i.e., two Criminal Rule
24 qualified attorneys, the trial courts findings are reviewed under the clearly erroneous
standard enunciated in Clark.
Lowrimore suggests that the appointment of Criminal Rule 24 qualified counsel could have
been made and trial held within a week. The trial courts conclusion
was to the contrary and is supported by the record. We do
not believe that even the most capable attorneys could prepare a death penalty
case involving forty witnesses and over 100 pieces of evidence in a week,
even by use of depositions and other materials generated by predecessor counsel.
Moreover, no counsel had yet prepared for the expected testimony of Malcom, which
had just been secured pursuant to his plea agreement. And no mitigating
evidence had been investigated because, before November 20, this was not a death
It also seems impossible that the reduced caseloads required for
death penalty counsel by Criminal Rule 24(B)(3) could have been met on the
requested timetable. Finally, the trial courts own schedule would obviously be affected
by conversion of the case to a death penalty proceeding. As the
State argues on appeal, a capital case takes considerably longer to try because
of the need for extended voir dire before the presentation of evidence and
the additional requirement of a penalty phase. Additional jurors would have been
needed and a more detailed juror questionnaire would likely have been required.
All of this could not have been done in a week. The
trial courts revised timetable was within the constitutional requirements for a speedy trial.
Under these circumstances the tighter Criminal Rule 4 schedules must yield to
the exigencies created by the injection of the death penalty. The trial
courts findingwhether styled emergency or congestionappears correct, and is certainly not clearly erroneous.
Finally, Lowrimore argues that in the face of his speedy trial request the
State should not have been permitted to wait two months to file the
death penalty. According to a newspaper article included in the record, the
State was considering seeking the death penalty in this case as early as
September. According to the State, however, the decision was postponed until it
reached a plea agreement with Malcom, an eyewitness who can testify to how
the defendant killed the victim and effectuated a robbery contributing to evidence of
the necessary aggravating factor for the death penalty. The delay in filing
the death penalty appears to be a considered decision and certainly was a
reasonable response to the uncertain state of the evidence against Lowrimore before the
plea agreement with Malcom was finalized. Lowrimore does not contest
the timeliness of the filing of the death penalty count as a free-standing
matter, and its filing three days after the omnibus date and a week
before the scheduled trial was timely.
See Games v. State, 535 N.E.2d
530, 534-36 (Ind. 1989). Rather, Lowrimore implies that prosecutors must file the
death penalty within days of a speedy trial request, or never, so that
the requirements of both Criminal Rule 4 and Criminal Rule 24 can be
satisfied. We do not believe this is a basis for discharging Lowrimore.
If it were, the effect of such a doctrine would be
to force premature decisions seeking the death penalty to avoid risking discharge.
This in turn could cause delayed charging instruments to avoid starting the Criminal
Rule 4 clock. None of these tactical considerations should become dominant in
the serious business of death penalty litigation. The values of Criminal Rule
4 are important, but so long as constitutional speedy trial standards are met,
these values must yield to the exigencies created by the death penalty charge
if the two cannot be reconciled.
In sum, although it is conceivable that a death penalty case might be
tried within the seventy-day period of Criminal Rule 4, it would almost certainly
require the diligent work of two Criminal Rule 24 attorneys throughout the time
period. Here, counsel would have been given a single week. The
trial courts finding of an emergency under these circumstances was not clearly erroneous.
II. Prosecutorial Misconduct
On the morning of January 30, 1998, Malcom testified against Lowrimore pursuant to
a plea agreement. His testimony spanned several hours and encompassed some 250
pages of the record. Near the end of cross-examination, defense counsel discovered
that Malcom had filed a petition for postconviction relief three and a half
months earlier. The petition alleged, in part, that his guilty plea was
not voluntary and was induced by fraud, fear, force and ignorance. Although
a copy of the petition had been mailed to Deputy Prosecutor Barb Trathen
on October 8, 1997, she stated late in the day on January 30,
1998, that she had not discovered the sealed envelope containing the petition until
the previous evening.
Nevertheless, she did not provide a copy of the
petition to defense counsel the next morning, but rather allowed counsels extended cross-examination
of Malcom to proceed without the potential impeaching value of the postconviction petition.
Upon its discovery, Lowrimore moved for a mistrial. The trial court
accepted Trathens explanation that she had not discovered the sealed envelope containing Malcoms
petition until the evening of January 29, but found that the failure to
disclose it to the defense the following morning was a violation of the
courts discovery order. Although the trial court found the States actions to
be highly improper, it found that the failure to timely disclose the petition
did not place Lowrimore in a position of grave peril, and thus denied
the motion for a mistrial. The trial court allowed the defense another
opportunity to cross-examine Malcom on the content of his petition for postconviction relief.
Lowrimore contends that the States actions violated Brady v. Maryland, 373 U.S. 83
(1963), and its progeny, which require the State to disclose evidence that is
favorable to the accused and material to the accuseds guilt or punishment.
See Williams v. State, 714 N.E.2d 644, 648-49 (Ind. 1999), cert. denied, 120
S. Ct. 1195 (2000). Evidence favorable to the accused includes impeaching evidence.
Id. at 649. In this case, however, we note that Malcoms
postconviction petition was disclosed during trial; Lowrimore was given an opportunity to question
Malcom about it; and the jury was able to weigh its impeaching value
in its verdict. Brady, which applies to the discovery of favorable evidence
after trial, see United States v. Agurs, 427 U.S. 97, 103 (1976), does
not apply here. See Williams, 714 N.E.2d at 648-49; accord Dye v.
State, 717 N.E.2d 5, 12 (Ind. 1999).
State Law Claim of Prosecutorial Misconduct
Lowrimore also contends that the belated disclosure constitutes prosecutorial misconduct. A
claim of prosecutorial misconduct requires a determination that there was misconduct by the
prosecutor and that it had a probable persuasive effect on the jurys decision.
Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998). The trial
court found the States belated disclosure of the postconviction petition to be misconduct,
but found that the misconduct did not have a probable persuasive effect on
the jurys decision and denied the motion for mistrial. A mistrial is
an extreme remedy granted only when no other method can rectify the situation.
Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind. 1996) (quoting Underwood v.
State, 644 N.E.2d 108, 111 (Ind. 1994)). Here, the trial court allowed
Lowrimore another opportunity to question Malcom about the postconviction petition and Lowrimore points
to no reason why this was not an adequate remedy.
Goodner v. State, after the eyewitness to a murder concluded his testimony,
the prosecutor revealed to defense counsel that he had previously offered to recommend
a bond reduction for the witness on an unrelated charge. 714 N.E.2d
638, 640 (Ind. 1999). The witness was recalled the next day and
the arrangement was revealed to the jury. We found that the [c]omplete
failure to disclose this deal would constitute prosecutorial misconduct and require a new
trial, but that [u]nder current doctrine reversal under these circumstances is not required.
Id. at 642. Here, as in Goodner, disclosure occurred at trial
and defense counsel was able to question the witness about the belatedly disclosed
material. The trial court did not abuse its discretion in denying Lowrimores
motion for a mistrial.
We reiterate the importance of the States timely disclosure of evidence to the
defense. This Court noted in
Goodner that a prophylactic rule requiring reversal
may be required if recurring abuses occur. See id. In the
months since Goodner, several other cases have presented issues of belated disclosure, see
Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000); Dye, 717 N.E.2d at
11-12; Gardner v. State, 724 N.E.2d 624, 628 (Ind. Ct. App. 2000).
Disturbingly, each of these cases, like Goodner and Williams, arises in Marion County.
Lowrimores trial, like each of the others, occurred before our opinion in
Goodner. Accordingly, we will not consider abandoning the requirement of a showing
of prejudice from belated disclosure until the issue is presented in a trial
occurring after Goodner was issued.
III. Marijuana Evidence
Lowrimore argues that the trial court erred in admitting a bag of marijuana
and two pipes found in his house. Lowrimore objected to the evidence
at trial on relevancy grounds, noting this was a murder case, not a
drug case. The State responded that there had been previous testimony as
to the usage of marijuana around the time of the crime, and the
admission of the evidence merely corroborated testimony of other witnesses. The trial
court overruled the objection and admitted the evidence.
Relevant evidence means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence. Ind.
Evidence Rule 401. Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of issues, or
misleading the jury, or by considerations of undue delay, or needless presentation of
cumulative evidence. Ind. Evidence Rule 403. The only issue of any
consequence in Lowrimores trial was the identity of Lawyers killer. Whether Lowrimore
had smoked marijuana or had possession of marijuana near the time of the
offense had no relevance. Accordingly, the marijuana and pipes should not have
Nevertheless, as this Court explained in
Fleener v. State, 656 N.E.2d 1140, 1142
(Ind. 1995), an error will be found harmless if its probable impact on
the jury, in light of all of the evidence in the case, is
sufficiently minor so as not to affect the substantial rights of the parties.
See Ind. Trial Rule 61. Here, the State presented strong evidence
of Lowrimores guilt. Both Malcom and Lowe provided eyewitness accounts of the
killing. In addition, Bordenkecher, Chelf, and Burke all testified about Lowrimores post-crime
confessions of guilt to them. The erroneous admission of this evidence was
IV. Double Jeopardy
Lowrimore was convicted of murder, felony murder, robbery as a Class A felony
and criminal confinement as a Class B felony. The State concedes that
a defendant may not be convicted of both murder and felony murder for
the killing of the same person. See, e.g., Garrett v. State, 714
N.E.2d 618, 621 (Ind. 1999). Accordingly, the felony murder conviction must be
vacated. The jurys verdicts also raise other issues under the Indiana Double
Jeopardy Clause. As explained in Richardson v. State, 717 N.E.2d 32, 53
(Ind. 1999), the actual evidence test prohibits dual convictions if there is a
reasonable possibility that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.
A person who knowingly or intentionally confines another person without the other persons
consent commits criminal confinement, a Class D felony. Ind. Code § 35-42-3-3
(1998). The offense becomes a Class B felony if it results in
serious bodily injury to the other person. Id. Here, the jury
was instructed that to convict Lowrimore of criminal confinement the State must have
proven that he confined Lawyer without her consent by holding her on the
ground and pushing a pillow against her face and choking her with a
cord, which resulted in serious bodily injury to Lawyer, that is, a broken
neck. To convict Lowrimore of murder, the jury was instructed that the
State must have proven beyond a reasonable doubt that Lowrimore knowingly killed Lawyer
by means of asphyxiation. Based on these instructions and the absence of
any additional basis for a criminal confinement conviction in the States closing argument,
we believe there is a reasonable possibilityindeed a high probabilitythat the jury used
the same evidentiary factsthe suffocation and choking of Lawyerto prove both the murder
charge and the criminal confinement charge. Accordingly, the criminal confinement conviction must
Robbery as a Class C felony is defined by statute as knowingly or
intentionally taking property from another person by using or threatening the use of
force or putting any person in fear. Ind. Code § 35-42-5-1 (1998).
It becomes a Class B felony if committed while armed with a
deadly weapon or if it results in bodily injury to any person other
than the defendant, and a Class A felony if it results in serious
bodily injury to any person other than the defendant.
jury was instructed that to convict Lowrimore of robbery the State must have
proven beyond a reasonable doubt that Lowrimore took United States currency from Lawyer
by putting her in fear or using or threatening the use of force
on Lawyer, which resulted in serious bodily injury, that is, a broken neck.
Because of the decomposition of Lawyers body, the cause of death was undetermined.
The murder instruction merely mentions killing by asphyxiation, which presumably could be
either suffocation with the pillow or Lowrimores tying the cord around Lawyers neck.
Because there is a reasonable possibility that the same evidence used by
the jury to establish the essential elements of murder was also included among
the evidence establishing the essential elements of robbery as a Class A felony,
the two cannot stand. The robbery conviction was elevated based on the
same serious bodily injury that formed the basis of the murder conviction.
Accordingly, we remand to the trial court to reduce the robbery conviction to
a Class C felony and to impose a sentence of eight years.
Cf. Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999) (reducing a Class
A felony conviction for robbery while armed with a handgun to a Class
B felony based on Richardson).
Steven Lowrimores conviction for murder and sentence of life imprisonment without parole is
affirmed. This case is remanded to the trial court with instructions to
vacate the convictions for felony murder and criminal confinement, and to reduce the
robbery conviction to a Class C felony and impose a sentence of eight
years on that count.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
The United States Supreme Court recently emphasized the importance of mitigating evidence
in capital cases.
See Williams v. Taylor, 120 S. Ct. 1495, 1515-16
(2000) (remanding for a new penalty phase while observing that mitigating evidence may
influence the jury's appraisal of the defendant's moral culpability and alter its selection
of a penalty).
Trathen explained to the trial court that the sealed envelope containing the
petition was "buried in the Robert Malcom file." When asked if she
knew how it got there, Trathen responded, "Interns who have been working-- There's
been a turnover of folks working on the file. Apparently, it had
just gotten stuffed in there by mistake."
Footnote: Lowrimore was sentenced to the maximum sentence of fifty years for robbery
as a Class A felony, and does not challenge the enhancement of that
sentence on appeal. There is no need to remand for a new
sentencing where, as here, it is sufficiently clear that the trial court would
impose the maximum sentence for the Class C felony.
See Cutter v.
State, 725 N.E.2d 401, 410 n.4 (Ind. 2000).