M. E. Tuke Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
TONY BERRY, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 49S00-9707-CR-411 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )The Honorable Craig O. Wellnitz, Judge Pro Tempore Cause No. 49G03-9601-CF-1369
APPEAL FROM THE MARION SUPERIOR COURT
For reasons that follow, we affirm.
Earlier that evening, Berry, Damon McGinty, Carlton Holcomb, and Gregory Ellis went to a strip club. The group remained at the
bar until 3 a.m., when they went together to McGinty's house.
about 3:30 a.m., Davis approached the group in front of Berry's
house and expressed an interest in buying drugs. Although he had
no drugs, McGinty exchanged a bag of substitute "dummy" drugs for
a $30 book of food stamps. Davis then left with the substance.
Once he discovered that he had been tricked, Davis returned to
Berry's house. Davis began to argue with McGinty, and Berry became
involved in the quarrel. McGinty testified that he could tell
Berry "was ready to fight." (R. at 260.) McGinty pushed Davis and
took a swing at him. As the fight moved across the street, McGinty
took another swing and knocked Davis to the ground. At that point,
Davis was no longer moving and appeared to be unconscious.
As Davis lay on the ground defenseless, Berry and Ellis kicked
and stomped on him. McGinty then hit Davis in the head with a
metal chair. The men returned to the porch and told Holcomb that
they had beaten Davis. McGinty then left and did not return until
According to Holcomb and Berry's taped confession, Berry expressed his desire to burn Davis in order to conceal the crime. Berry and Ellis dragged Davis into a plastic dumpster behind the house. The two men then set fire to Davis' pants legs and to the trash around him. Davis attempted to save himself by climbing out
of the dumpster, but Ellis hit him with a stick and a brick, and
Berry pushed Davis back. The men watched the dumpster burn to the
ground. When they returned to the porch, Berry and Ellis admitted
to Holcomb that they had set Davis on fire.
Berry told McGinty to take a look at the dumpster
returned the next day.
McGinty recognized the shape of Davis' head
on his badly burned body. Berry admitted to McGinty that he had
killed Davis by burning him. Berry then made a similar admission
to Holcomb, but threatened him so he would not tell the police.
The police found Davis' body in the dumpster. A forensic
odontologist identified the body as Davis by comparing dental
records. Because of the body's condition, a forensic pathologist
could only determine that Davis had died from undetermined
homicidal violence. The body showed no evidence of smoke
inhalation in the lungs, which suggests that Davis was not alive
when he was burned. The pathologist added, however, that there was
an equal chance that Davis was alive when his body was burned. A
police expert testified that the fire had been started
Several months later, in December 1995, Berry was arrested and incarcerated in the Marion County Jail on charges unrelated to this case . Detective Leslie VanBuskirk questioned him with the intention of discovering information about the instant crime.
VanBuskirk warned Berry that she would stop him if he began to
speak about anything other than the instant case. The detective
read Berry his Miranda rights once before she started interviewing
him and a second time on the tape. Berry signed a waiver form
verifying that he had agreed to waive his rights. He proceeded to
offer his version of events surrounding Davis' death. At no point
on the tape did VanBuskirk promise Berry immunity or any other
incentive in exchange for his statement. Berry's statement was
admitted at trial.
The voluntariness of a confession is to be determined from a totality of the circumstances. Johnson v. State, 380 N.E.2d 1236 (Ind. 1978). The State bears the burden of proving beyond a reasonable doubt that the defendant voluntarily and intelligently waived his rights, and that the defendant's confession was voluntarily given. Owens v. State, 427 N.E.2d 880 (Ind. 1981). We review the record for evidence of inducement by way of violence, threats, promises, or other improper influence. Id. We do not re-
weigh the evidence, but rather determine whether there is
substantial evidence to support the trial court's findings. Baker
v. State, 400 N.E.2d 137 (Ind. 1980);
Sotelo v. State, 342 N.E.2d
844 (Ind. 1976)
In the case at bar, the trial court determined that Berry
voluntarily and intelligently waived his right against self-
incrimination when he provided a tape-recorded statement to
Detective VanBuskirk. Berry acknowledged that the detective read
him his rights twice.
Moreover, Berry reassured the detective a
number of times during the conversation that he understood
everything she was saying to him. (Supp. R. at 34-35.)
We find no evidence to support Berry's claims of an offer of immunity or any other improper promises. While under oath, Detective VanBuskirk testified that she did not promise immunity and never promised not to prosecute Berry for his crimes. Berry also answered in the affirmative when asked if he had given his statement free of force, threats, or promises. Finally, Berry never requested to speak with an attorney regarding the instant charges. At no point during the taking of his statement did Berry
say that he wished to speak with one of his attorneys, though he
did have representation for the unrelated offense.
There is sufficient evidence to support the trial court's decision to admit Berry's confession.
Sentencing is conducted within the "discretion of the trial court and will be reversed only upon a showing of manifest abuse of that discretion." Sims v. State, 585 N.E.2d 271, 272 (Ind. 1992). When a court engages in a balancing process between aggravating and mitigating circumstances, it is obligated to include a statement of its reasons for selecting the sentence imposed. Ind. Code Ann. § 35-38-1-3 (West 1998) ; Hammons v. State, 493 N.E.2d 1250 (Ind. 1986). The court's statement must identify all significant aggravating and mitigating circumstances, include a specific reason why each circumstance is aggravating or mitigating, and weigh mitigating circumstances against the aggravating factors. Boyd v. State, 564 N.E.2d 519 (Ind. 1991).
in a penal facility." There was, of course, no question
but that defendant would be incarcerated in a penal
facility; the issue here is whether the defendant should
be incarcerated for more than the presumptive term.
Thus, for this aggravating circumstance to justify in
part an enhanced sentence, it must be understood to mean
that the defendant is in need of correctional and
rehabilitative treatment that can best be provided by a
period of incarceration in a penal facility in excess of
the presumptive sentence term. The trial court gave no
specific or individualized statement of the reason why
this defendant was in need of correctional and
rehabilitative treatment that could best be provided by
a period of incarceration in a penal facility in excess
of the presumptive sentence term.
Cf. Robey v. State,
555 N.E.2d 145, 150-51 (Ind. 1990) (discussing
requirement of a specific and individualized statement of
the reasons supporting an enhanced sentence).
670 N.E.2d 1262, 1270-71 (Ind. 1996); see also Newhart v. State, 669 N.E.2d 953, 955 (Ind. 1996).
Because the aggravating circumstances identified by the trial
judge were insufficient to support an enhanced sentence, we remand
with instructions to impose the presumptive fifty-five-year murder
sentence and twenty-five years for arson, each to run concurrently.
Maryland, 395 U.S. 784, 794 (1969). Specifically, Berry contends
that if Davis' death was a result of the fire, the arson charge
would be a lesser included offense to the murder; if the death was
from some other cause, then there would not be sufficient evidence
to support arson as a class A felony.
For support, Berry relies on
the proposition espoused in Baker v. State that courts can compare
the factual bases of crimes for the purpose of making double
jeopardy determinations. 569 N.E.2d 369, 372 (Ind. Ct. App. 1991).
Contrary to Berry's claims, review of multiple punishments under the Double Jeopardy Clause of the Fifth Amendment of the Federal Constitution is limited to the relevant statutes. Grinstead v. State, 684 N.E.2d 482 (Ind. 1997). The factual elements in the charging instrument and jury instructions are not part of this inquiry. Id.
The test for defining the "same offense" for Fifth Amendment
purposes was outlined in Blockburger v. United States: "[W]here the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of an additional fact which the other does not."
284 U.S. 299, 304 (1932).
Our murder and arson statutes do not constitute the same offense under Blockburger because each provision requires proof of
an additional fact which the other does not. Murder requires a
knowing or intentional killing, while class A arson requires that
a person intentionally or knowingly damage property.
Code Ann. § 35-42-1-1 (West 1998) with Ind. Code Ann. § 35-43-1-1
(West 1998). Berry's convictions do not violate his federal double
The trial court sentenced Berry to sixty years for murder and
twenty-five years for arson. The judge added that the sentences would "merge." (R. at 663-64.) A more proper way to describe the trial court's final determination would have been to say that Berry would serve the terms "concurrently." Nonetheless, the court was within its discretion in determining that Berry would serve his sentences for two separate crimes at the same time.
The standard for reviewing sufficiency of evidence claims was
well described by Justice DeBruler in Brooks v. State, as follows:
[T]his Court does not reweigh the evidence nor judge the credibility of the witnesses, but instead looks to the evidence most favorable to the verdict and to all the reasonable inferences to be drawn therefrom. If, from that viewpoint, there is evidence of probative value from which a reasonable trier of fact could infer guilt beyond a reasonable doubt, the conviction will be affirmed.
560 N.E.2d 49, 53 (Ind. 1990).
Contrary to Berry's claims, the State produced evidence
consistent with the proposition that Berry was a willing
participant in Davis' beating and the events that led to his death.
McGinty and Holcomb testified that Berry participated in Davis'
beating. McGinty stated that he saw Berry "stomping" on Davis. (R.
at 264.) Berry admitted that he helped Ellis set fire to Davis
when he was still alive. Berry pushed Davis back into the dumpster
after Davis had regained consciousness and attempted to save his
own life. By any measure, the State introduced sufficient evidence
to convict Berry of each crime.
As for Berry's second argument, application of the "incredible dubiosity rule" is limited to cases "where a sole witness presents inherently contradictory testimony which is equivocal or the result of coercion and there is a complete lack of circumstantial evidence of the appellant's guilt." Tillman v. State, 642 N.E.2d 221 (Ind.
1994). Berry charges that the testimony of the State's witnesses
contains inconsistencies among their statements, not that any one
individual contradicted himself. Therefore, this rule is not
Berry's trial counsel objected to the State's instruction on
accomplices on the basis that it was "prejudicial to his case."
On appeal, Berry argues that the instruction was improper, that it
was incomplete, and that it did not allow him to present an
adequate defense. These arguments are forfeited by Berry's failure
to make them at trial.
Berry proposed his instruction #9 as an alternative to the
State's tendered instruction on aiding and abetting. It read: "In
order to be guilty as an accessory, one must intend by his own
actions to cause or facilitate the commission of the crime by the
principal offenders." (R. at 70.)
The substance of Berry's tendered instruction was covered in
final instruction #9A. (R. at 103.) The pertinent portions of this
instruction are as follows:
A person is responsible for the actions of another person when . . . he knowingly aids, induces or causes the other person to commit a crime . . . .
To aid is to knowingly support, help, or assist in the
commission of a crime. . . .
In order to be held responsible for the actions of
another, he need only have knowledge that he is helping
in the commission of a crime.
Id. While instruction #9A informs the jury that a defendant must
"knowingly" participate, it also states accurately that a defendant
is not required to participate in every element of a crime to be an
accomplice. Thus, the court's instruction covered the topic of the
instruction Berry tendered and did so more completely and more
accurately. The court was correct to reject Berry's instruction
under our case law governing such decisions. Cf. Davis v. State,
355 N.E.2d 836 (Ind. 1976).
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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