ATTORNEY FOR APPELLANT
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
JOHN D. FARRIS, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 02S00-0006-CR-386
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9903-CF-141
ON DIRECT APPEAL
August 28, 2001
John Farris was convicted of aiding the murder of Nicole Barrone and aiding
the aggravated batteries of Ronald Foreman, Janice Foreman, and Brenda Washington. He
was sentenced to an aggregate term of 155 years. On direct appeal,
Farris presents six issues for review, which we restate as five: (1) whether
the prosecution of Farris following a mistrial violated the prohibition against double jeopardy;
(2) whether the trial court erred in permitting the introduction of a prior
deposition; (3) whether the trial court erred in denying Farris motion for a
directed verdict and whether the convictions were based on sufficient evidence; (4) whether
the trial court erred in finding that aiding murder and aiding aggravated battery
are crimes of violence and therefore subject to consecutive sentencing; and (5) whether
the trial courts sentencing order constituted cruel and unusual punishment. We affirm
the trial court.
Factual and Procedural Background
In June 1997, John Farris and Richie Foreman were arrested and charged with
the robbery of Toms Super Value Store in Fort Wayne. Farris was
released on bond and Richie cooperated with police and planned to testify against
Farris in a trial set for late January 1998.
Dorothy Foreman was Farris girlfriend and Richies sister. On January 16, 1998,
Brenda Washington, Richies ex-wife, and Dorothy were at a bingo parlor when Farris
arrived with his nephew, Sonny Woods, and ordered Dorothy at gunpoint to accompany
him to Farris apartment. Later that night, Danny Littlepage arrived at the
apartment. Farris told Littlepage that he wanted him to go to the Foreman
family home, where Richie lived, and take care of Richie and Washington because
of the problems they had caused Farris. Farris handed Littlepage a
handgun and threatened to shoot Littlepage if he did not complete this assignment.
Littlepage and Woods then drove to Foremans house and parked in an
alley approximately one block away.
Around midnight, nine people were in Foremans living room: Washington and her three
children, Washingtons niece Nicole Barrone, Richies brother Ronald, Richies mother Janice, and Dorothys
two children. Richie was not home. Littlepage, cloaked in a blue
bandana but still identifiable to the victims, burst through the door and ordered
everyone to the floor. Littlepage then fired four shots, hitting Ronald in
the neck, Washington in the neck, Barrone in the stomach, and Janice in
the face. Ronald, Washington, and Janice survived, but after three painful operations,
Littlepage and Woods returned to Farris apartment and Littlepage gave the gun to
Woods to return to Farris. The next day, Farris told Dorothy that
her mother, Janice, had been shot, but refused to allow her to leave
his apartment to check on her mother or her children.
A. The Investigation and Arrest
After Farris learned that he was a suspect in the shootings, he called
the detective investigating the case to deny his involvement in the incident and
to deny forcing Dorothy to come with him on the night of the
shootings. Farris also said that he had a cap for Richie.
A week later, Farris again called the police station, this time to criticize
the detective for releasing Littlepage from custody. Farris also said that Littlepages
days were numbered. After the detective warned Farris that if anything happened
to Littlepage, he would be the prime suspect, Farris laughed and said that
he was not returning to Fort Wayne. He added that he had
friends and family who would take care of Littlepage for him.
On March 19, 1998, Farris was pulled over in a traffic stop north
of South Bend. A license check revealed a warrant for his arrest.
When he was ordered out of the car, Farris drove off and
led police on a high speed car chase into South Bend. Ultimately,
Farris crashed his car, attempted to escape on foot, and was apprehended.
After his arrest, Farris gave a videotaped statement to police in which he
admitted giving the gun to Littlepage on the night of the shootings but
claimed that Littlepage asked for the weapon and that he did not know
what Littlepage planned to do with it.
Farris First Trial
The information charged Farris with one count of aiding murder, three counts of
aiding aggravated battery, and being a habitual offender.
On the second day
of Farris trial, the State called Littlepage to the stand. The following
exchange then occurred in the presence of the jury:
The Court: Would you raise your right hand for me, sir?
Do you solemnly swear the testimony you shall give shall be the truth,
the whole truth and nothing but the truth, so help you God?
Littlepage: I dont feel like testifying. I had already told the
The Court: All Im asking you, sir, is whether or not, if
you do testify, youre going to testify truthfully.
The trial court then dismissed the jury and convened a bench hearing to
determine if Littlepage would testify.
I. Double Jeopardy
During the hearing, Littlepage said that he understood that he was under subpoena
and that his plea agreement required him to testify truthfully against Farris, but
he nonetheless was invoking his Fifth Amendment right because he was afraid of
being killed in prison for being a snitch.
Farris moved for a
mistrial, arguing that the prosecutors knew that Littlepage would not testify and still
called him to the stand. Farris argued that Littlepages declaration in front
of the jury that he would not testify placed Farris in grave peril
and was therefore reversible error. The prosecutor responded that he did not
expect Littlepage to refuse to testify. The prosecutor said he had met
with Littlepage several times before trial to review his testimony and only on
the morning of trial had Littlepage indicated that he would not implicate Farris
in the shooting. The prosecutor stated that he had believed that Littlepage
would testify to the facts of the incident but would not say that
Farris had threatened him or that the threat had caused him to commit
The trial court found that the prosecutor did not know that Littlepage would
invoke the Fifth Amendment. Nevertheless, the trial court ruled that his doing
so in front of the jury required a mistrial. Farris second trial
was scheduled to begin the next week. At no time did Farris
object that the second trial would be barred by double jeopardy.
Farris Second Trial
The day before the second trial, the trial court held a hearing to
determine whether Littlepage would testify. When Littlepage again claimed a Fifth Amendment
right, the trial court ordered him to testify, he refused, and the trial
court found him in contempt. At this hearing, Farris asked Littlepage if
his pretrial statements to police were true and Littlepage disclaimed all statements that
he had given regarding the case. The prosecutor then asked the trial
court to declare that Littlepage was an unavailable witness and asked to offer
Littlepages sworn deposition testimony into evidence pursuant to Indiana Rule of Evidence 804(a)(2).
Farris objected on the ground that he was not personally present at
the deposition, even though his counsel was present. The trial court found
that Farris was given the opportunity to examine Littlepage at the deposition and
that Littlepage was an unavailable witness. The court then ruled that Littlepages
deposition and any prior inconsistent statements would be admitted at the trial.
On the second day of Farris second trial, in the presence of the
jury, the State called Littlepage as a witness, asked that he be declared
unavailable, and asked permission to enter Littlepages deposition into evidence pursuant to Indiana
Rule of Evidence 804(a)(2). Farris renewed his objection based on his lack
of ability to confront Littlepage at the deposition. The trial court overruled
Farris objection and allowed the State to read Littlepages deposition into evidence.
The jury convicted Farris of aiding murder and three counts of aiding aggravated
battery. The jury also found that Farris was a habitual offender.
The trial court sentenced Farris to sixty-five years for aiding murder, enhanced by
thirty years for being a habitual offender, and three twenty-year sentences for each
of the aiding aggravated battery convictions. Although each of the crimes took
place in a single criminal episode, the trial court found that the crimes
of aiding murder and aiding aggravated battery are crimes of violence under Indiana
Code section 35-50-1-2, and could be imposed consecutively. An aggregate sentence of
155 years imprisonment resulted.
Farris alleges that the prosecutor knew that Littlepage would invoke his Fifth Amendment
right against self-incrimination if called to the stand but nevertheless called Littlepage to
expose the jury to the claim of privilege. From this factual premise,
Farris contends that his second trial violated the double jeopardy provision of the
United States Constitution.
The Fifth Amendment provides that no person shall be subject for the same
offense to be twice put in jeopardy of life or limb. U.S.
Const. amend. V. Although a defendants motion for a mistrial constitutes a
deliberate election on his part to forgo his valued right to have his
guilt or innocence determined before the first trier of fact,
United States v.
Scott, 437 U.S. 82, 93 (1978), the United States Supreme Court has provided
a narrow exception that bars a second trial after a mistrial where the
governmental conduct in question is intended to goad the defendant into moving for
a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676 (1982). The
subjective intent of the prosecutor is the dispositive issue. Wilson v. State,
697 N.E.2d 466, 472 (Ind. 1998). Although a trial courts determination of
prosecutorial intent is not conclusive for purposes of appellate review, its determination is
very persuasive. Id. at 473. It is a factual determination that
we review under a clearly erroneous standard. Butler v. State, 724 N.E.2d
600, 604 (Ind. 2000).
When Littlepage refused to testify, the prosecutor maintained that Littlepage had given him
no forewarning and, in several interviews, had been forthcoming with details of the
crimes and Farris involvement. Littlepage confirmed that he had repeatedly told prosecutors
that he would testify. The prosecutor further stated that on the morning
of the trial, after Littlepage had indicated that he would not implicate Farris
in the shootings, it was still necessary to call Littlepage to the stand
to establish the narrative of the crimes and the fact that Littlepage had
pleaded guilty. The trial court found that the prosecutor did not know
that Littlepage planned to plead the Fifth Amendment, and therefore did not intentionally
produce a mistrial. Farris offers nothing but speculation to challenge this view.
He does not demonstrate that the trial courts finding was clearly erroneous.
Because Farris legal theory depends on this factual premise, his contention fails.
II. Testimony from Deposition
Farris argues that the trial court erred in admitting Littlepages deposition into evidence
because: (1) the State did not lay a proper foundation to declare Littlepage
unavailable; (2) the introduction of Littlepages deposition violated his confrontation rights; and (3)
the deposition was not admissible under Indiana Rule of Evidence 804(b)(3). At
trial, Farris objected to admission of the deposition only on the basis that
it violated his right to confront witnesses. He raises improper foundation and
Rule 804(b)(3) for the first time in this appeal. It is well
settled that a party may not raise one ground before the trial court
and a different ground on appeal.
Wurster v. State, 715 N.E.2d 341,
347-48 (Ind. 1999). The changing of theories is substantially indistinguishable from having
never raised the issue in the first instance. 4A Kenneth M. Stroud,
Indiana Practice § 3.2 (2d ed. 1990). Farris has waived review of
his claims of erroneous admission based on improper foundation and Rule 804(b)(3).
Farris correctly points out that, although criminal defendants generally have no constitutional right
to attend depositions,
Jones v. State, 445 N.E.2d 98, 99 (Ind. 1983), depositions
taken in the absence of defendants may not be admissible if the deponent
is later unavailable for trial, Miller v. State, 517 N.E.2d 64, 71-73 (Ind.
1987). However, where defense counsel takes the deposition of a witness and
actively participates in it, the defendant has waived his right of confrontation at
trial. State v. Owings, 622 N.E.2d 948, 952 (Ind. 1993); Ingram v.
State, 547 N.E.2d 823, 826 (Ind. 1989). That doctrine applies here because,
although Farris was not present at Littlepages deposition, the proceeding was conducted by
Farris attorney. The trial court correctly overruled Farris objection that admission of
the deposition violated his Sixth Amendment right to confrontation.
III. Motion for Directed Verdict and Sufficiency of Evidence
Farris argues that the trial court erred when it denied Farris motion for
a directed verdict. When a defendant moves for judgment on the evidence,
the court is required to withdraw the issues from the jury if:
(1) the record is devoid of evidence on one or more elements of
the offense; or (2) the evidence presented is without conflict and subject to
only one inference, which is favorable to the defendant. Ind. Trial Rule
Cutter v. State, 725 N.E.2d 401, 407 (Ind. 2000). Farris contends
that there was no substantive evidence to support the findings by the jury
that Farris, by his threat, caused Littlepage to commit the shootings or that
Farris supplied Littlepage with the handgun used in the crime.
After the trial court denied Farris motion for a directed verdict, Farris introduced
two defense exhibits into evidence and read a portion of Littlepages testimony from
the January 31, 2000, hearing in which Littlepage stated that he was revoking
all prior statements implicating Farris. Farris then rested his case. Because
the defendant presented evidence on his own behalf following the trial courts denial
of his motion for judgment on the evidence at the close of the
States case-in-chief, we will not review that ruling but rather will treat the
issue as one of general insufficiency of the evidence.
Chubb v. State,
640 N.E.2d 44, 47 (Ind. 1994); Kuchel v. State, 570 N.E.2d 910, 915
(Ind. 1991). Our standard of review for sufficiency claims is well settled.
We will not reweigh the evidence or assess the credibility of witnesses.
Rather, we look to the evidence and reasonable inferences drawn therefrom that
support the verdict and will affirm the conviction if there is probative evidence
from which a reasonable jury could have found the defendant guilty beyond a
reasonable doubt. Taylor v. State, 681 N.E.2d 1105, 1110 (Ind. 1997).
Littlepage testified in his deposition that Farris gave him the gun and instructed
Littlepage to shoot the adults at the Foreman house. Additionally, Littlepage testified
in his deposition that Farris told him that if Littlepage did not carry
out this task, Farris would shoot Littlepage. Other evidence is consistent with
Littlepages claim that Farris supplied the gun used in the shooting. Farris
videotaped statement to the investigating detective was admitted into evidence. On that
tape, Farris admitted that he gave a handgun to Littlepage just before the
shootings occurred, but denied that he knew what Littlepage planned to do with
the gun. A firearms examiner with the Indiana State Police testified that
the bullet casings found at the scene were consistent with the ammunition that
would be fired from the handgun.
Farris points out that both Woods and Dorothy gave testimony at trial that
conflicted with their earlier statements to investigating officers. Additionally, Farris points to
Littlepages testimony at the January 31 hearing that attempted to revoke all statements
that he had previously given in the case. These inconsistencies in testimony
were before the jury. The credibility of these witnesses was for the
jury to determine. There was sufficient evidence to support Farris convictions.
IV. Crimes of Violence
Farris argues that the trial court erred when it imposed the maximum sentence
on each of the four counts and ordered that they be served consecutively.
Indiana Code section 35-50-1-2 limits a trial courts ability to impose consecutive
sentences for multiple crimes which arise out of a single episode of criminal
conduct. This limitation does not apply to a defined list of crimes
of violence. Farris notes that, although murder and aggravated battery are expressly
defined as crimes of violence, aiding murder and aiding aggravated battery are not.
Because he was charged with murder and aggravated battery as an accomplice,
Farris argues that the trial court improperly imposed consecutive sentences.
The legislature defined by name and citation the crimes that are crime[s] of
violence for the purposes of Indiana Code section 35-50-1-2. Ellis v. State,
736 N.E.2d 731, 737 (Ind. 2000). This Court recently held that, because
attempted murder is not among those listed in the statute, it is not
a crime of violence. Id. at 736-38. That reasoning does not
apply to murder committed by an accomplice. The crime of attempted murder
receives singular treatment in the Indiana Code. An attempted crime, unlike aiding
the crime, is the product of the attempt statute in concert with the
statute defining the elements of the offense. Id. at 741 (citing Ind.
Code § 35-41-5-1(a) (1998)). In contrast, Indiana Code section 35-41-2-4 provides that
[a] person who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense. There is no distinction between the
accessory and the perpetrator of the crime. Rather, both commit the offense,
and a person who aids another person to commit a crime is as
guilty of the principal offense as the actual perpetrator. Sanquenetti v. State,
727 N.E.2d 437, 439 (Ind. 2000).
Murder and aggravated battery are clearly crimes of violence and subject to consecutive
sentencing. The statute does not treat those crimes differently if a conviction
is based on a theory of accomplice liability. The trial court did
not err in ordering Farris to serve consecutive sentences.
V. Cruel and Unusual Punishment
Farris asserts that his aggregate sentence of 155 years constitutes cruel and unusual
punishment in violation of the Eighth Amendment of the United States Constitution and
Article I, Section 16 of the Indiana Constitution. Farris also claims that
his sentence was disproportionate because there was a single episode of criminal conduct,
Farris was convicted under the accomplice liability statute, and, pursuant to a plea
agreement, the triggerman received a sentence of only fifty-five years. The Indiana
Constitution requires that a sentence be proportionate to the nature of the offense.
The constitutional requirement that a sentence be proportionate to the offense does
not require us to compare, as Farris would have us do, his sentence
to the sentence of others convicted of the same crime.
State, 675 N.E.2d 668, 678 (Ind. 1996). Farris provided Littlepage with a
gun and instructed him to take care of two people, one of whom
angered Farris by cooperating with the State in a separate criminal proceeding against
Farris. At Farris behest, Littlepage opened fire on a group of people,
including five children. Three victims were seriously wounded and one person died.
Farris sentence is not disproportionate to the nature of his offense.
Farris presents no case authority or argument to support his simple assertion that
his sentence violates the constitutional prohibition against cruel and unusual punishment found in
the Eighth Amendment and Article I, Section 16. Accordingly, Farris has waived
review of this issue. Former Ind. Appellate Rule 8.3(A)(7) (now App. R.
Dunlop v. State, 724 N.E.2d 592, 596 n.6 (Ind. 2000) (failure to
cite to authority supporting constitutional claim forfeits the claim on appeal).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
At some point, Richie pleaded guilty to aiding robbery. The date
of that plea agreement is not in the record.
Footnote: Throughout Farris trials, the counts against him were referred to as aiding
murder and aiding aggravated battery. The information makes clear that Farris was
actually charged with violations of both Indiana Code sections 35-42-1-1 and 35-41-2-4 on
count one, and Indiana Code sections 35-42-2-1.5 and 35-41-2-4 on counts two, three
and four. In other words, he was charged with one count of
murder and three counts of aggravated battery based on accomplice liability.
Footnote: Prosecutor: So if I ask you any questions, what are you
going to say?
Littlepage: Plead the Fifth.
Prosecutor: Plead the Fifth? Youre already pled guilty in this case.
Littlepage: I know. I pled guilty to this case, but still,
I stand on, you know, not testifying.