David P. Freund
Deputy Public Defender
Attorneys for Appellee
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below ).
) Supreme Court No.
June 28, 2002
Defendant and Brummett rethought their plan, and bought another gun so that they
could kill Thompson and anyone who was with him. After acquiring the
second gun, Brummett called Thompson and told him that they were prepared to
make the drug sale. When Thompson arrived at the house, Brummetts girlfriend
directed Thompson to the back door where Defendant was waiting. When Thompson
turned the corner to the back of the house, Defendant shot him.
Defendant was charged with Murder,
See footnote Conspiracy to Commit Murder, a Class A fe
and Robbery by Means of a Deadly Weapon, a Class B felony.See footnote
Defendant was co
nvicted of Murder and Robbery and the trial court imposed a
sentence totaling 85 years.
During direct examination by the State, Brummett referred to Defendant as Smack.
The prosecutor then asked Brummett, Whos Smack? Brummett responded that Smack was
Defendants nickname. As the trial continued, the prosecutor referred to Defendant as
Smack on multiple occasions. Defendant failed to object at trial, but contends
that the prosecutors use of Defendants nickname amounted to fundamental error.
The use of a Defendants nickname may be relevant to an issue of
identity. The use of a nickname is questionable, however, where there is
no apparent reason not to use a d
efendants proper name and, even more
so, where the nickname itself carries at least the implication of wrongdoing.
In such situations, it is likely that the prosecutor uses a nickname to
express to the jury a defendants unsavory or lawless character or reputation.
Indiana Evidence Rule 404(b) generally forbids the use of [e]vidence of a persons
character ... for the purpose of proving action in conformity therewith...
Defendant failed to object, but he argues that the prosecutor committed fundamental error.
The prosecutors reference to Defendant as Smack most likely violated Evidence Rule
404(b). We do not find, however, that the use of the nickname
in this case amounts to fundamental error.
A person is guilty of robbery as a Class C felony if he
or she knowingly or intentio
nally takes property from another person or from the
presence of another person: (1) by using or threatening the use of
force on any person; or (2) by putting any person in fear...
Ind. Code § 35-42-5-1. Robbery is elevated to a Class B
felony if it is committed while armed with a deadly weapon or results
in bodily injury to any person other than a defendant. Id.
It is elevated to a Class A felony if it results in serious
bodily injury to any person other than a defendant. Id. A
person who knowingly or intentionally kills another human being commits murder. Ind.
Code § 35-42-1-1.
Indianas Double Jeopardy Clause was intended to prevent the State from being able
to proceed against a person twice for the same criminal transgression.
v. State, 717 N.E.2d 32, 49 (Ind. 1999). Here, Defendant was convicted
of murder and robbery as a Class B felony. Defendant argues that
the same evidence that was used to convict Defendant of the murder was
also used to elevate defendants robbery conviction from a Class C to a
Class B felony.
It is true that double jeopardy principles apply to enhancements.
State, 761 N.E.2d 826, 829-30 (Ind. 2002). Here, however, the murder conviction
and the enhancement for robbery were supported on separate grounds. The robbery
conviction was elevated to a Class B felony because it was committed while
armed with a deadly weapon. The use of a deadly weapon is
not an element or a basis for a murder conviction and so such
an enhancement does not violate the constitutional test set forth in Richardson.
Nor does it violate any of the rules of statutory construction and common
law that sometimes apply in this regard. See Pierce, 761 N.E.2d at
830 (citing Richardson, 717 N.E.2d at 55 (Sullivan, J., concurring); at 57 (Boehm,
In general, the legislature has prescribed standard sentences for each crime, allowing the
sentencing court limited discretion to enhance sentences to reflect aggravating circumstances or reduce
it to reflect mitigating circumstances. The legislature also permits sentences to be
imposed consecutively if aggravating circumstances warrant. See Morgan v. State, 675 N.E.2d
1067, 1073 (Ind.1996) (citing Reaves v. State, 586 N.E.2d 847 (Ind. 1992)).
See Ind. Code § 35-38-1-7.1(b) (a court may consider aggravating circumstances in determining
whether to impose consecutive sentences).
The presumptive sentence for murder is 55 years. Id. § 35-50-2-3.
Up to ten years may be added for aggravating circumstances. Id. The
presumptive sentence for robbery, a Class B felony is a term of ten
years. § 35-50-2-5. Up to ten years may be added for
aggravating circumstances. Id. The trial court gave defendant the maximum sentences
of 65 years and 20 years for both murder and robbery respectively, and
ordered the sentences to run consecutively.
The trial court found the following aggravating circumstances: (a) Defendants prior criminal
record; (b) Defendants lack of remorse; and (c) Defendants failure to recognize the
seriousness of his participation in the crime. In its sentencing order the
trial court noted Defendants involvement with the juvenile court, then turned to Defendants
crimes as an adult, stating:
In 1990 [Defendant] pled guilty to burglary a C felony, he was also charged with theft and the theft was dismissed pursuant to a plea agreement. In 1990 conversion, was dismissed as a part of the plea agreement in the other case, in 1994 battery resulting in bodily injury, a Class A misdemeanor, 1997 possession of marijuana, a Class A misdemeanor. Thats a substantial amount of contact with the court system.
The trial court found Defendants family support as the sole mitigating circumstance.
The trial court also identified the circumstances of the murder itself: that
the murder was deliberate and methodical, ([The murder was] not just something that
happened on the spur of the moment. It was planned. ...
Thats cold blooded murder. and that the murder was committed by
lying in wait, a circumstance that the trial court observed is a statutory
aggravating circumstance under the death penalty statute. (Id.)
The trial court properly weighed the aggravating and mitigating circumstances and found that
the aggravators far outweighed the mitigating circumstances. In light of the circumstances
of the case, we do not find that the sentence is manifestly unreasonable.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.