ATTORNEY FOR APPELLANT
Robert W. Rock
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
CHAD E. MARCUM,
Appellant (Defendant Below ), )
v. ) Indiana Supreme Court
) Cause No. 48S00-9803-CR-185
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE MADISON CIRCUIT COURT
The Honorable Fredrick R. Spencer, Judge
Cause No. 48C01-9709-CF-200
ON DIRECT APPEAL
March 29, 2000
Chad E. Marcum was convicted of murder, attempted murder, conspiracy to commit burglary,
two counts of auto theft, and theft. He was sentenced to an
aggregate term of seventy-one years imprisonment. In this direct appeal he contends
that (1) he was denied a fair trial because of the partiality of
the trial judge; (2) the prosecutor engaged in misconduct that requires reversal of
his convictions; (3) the trial court impermissibly restricted his right to cross-examine witnesses;
(4) the trial court erred in certain evidentiary rulings; (5) the trial court
erred by ruling a police officers report inadmissible under Evidence Rule 803(5); (6)
the jurys verdict on the murder and attempted murder counts is not supported
by sufficient evidence; and (7) the trial court erred in sentencing him.
We affirm the convictions, except one count of auto theft which is barred
by double jeopardy, and remand this case for imposition of concurrent sentences on
the remaining counts.
Factual and Procedural Background
In late May of 1997, Marcum, Mikkel Kendall, Jack Skinner, and James Fosnot
planned a home burglary. They first stole the keys to a van
from an auto dealership just outside of Anderson, then located a fence, and
returned to the auto dealership to steal a van. After donning gloves
and leaving their identifications in Fosnots car, they proceeded to the targeted house
in the stolen van. When they arrived they were surprised to find
the home occupied and left without entering. Kendall was driving at a
high rate of speed and eventually lost control of the van. The
vehicle rolled over several times before coming to rest in a field.
A police officer responding to the accident found Skinner on his knees beside
the van, screaming in pain and saying he was going to vomit.
Fosnot was unconscious approximately thirty yards away. Paramedics were called, but Skinner
died before they arrived. Fosnot remained in a coma for eleven days.
Based on her observation of Skinner at the scene, the coroner ruled
that Skinner had died as a result of the accident. No autopsy
was performed at that time.
After regaining consciousness, Fosnot told police that Kendall and Marcum had hit him
and knocked him out. The coroner reopened the case, and nearly two
months after the accident, Skinners body was exhumed for an autopsy. Dr.
John Pless, a forensic pathologist at the Indiana University School of Medicine, conducted
the autopsy and concluded that Skinner had died as the result of blunt
force injury to the chest and head with aspiration of gastric contents.
Dr. Pless concluded that Skinner did not die from injuries received in the
accident. This was based on several considerations. None of Skinners injuries
were severe, i.e., involving broken bones or lacerated internal organs. Rather, they
were moderate and of a blunt force nature indicating that the objects that
struck him were smooth and somewhat rounded. There were no abrasions on
Skinners body of the kind that would be expected if Skinner been thrown
from the van onto a rough surface. Moreover, although accident victims normally
sustain injuries on one side of the body or the other, Skinner had
injuries on all surfaces of his body, not just from one direction as
would be usual for an accident victim. Finally, the injuries were incurred
in places such as under Skinners arm that you dont ordinarily see injured
in automobile accidents.
Shortly after the accident, Fosnots car was reported stolen by his father.
After the car was entered into a national database of stolen vehicles, it
was located on an Air Force base in Mississippi and impounded by military
police. The following day Marcum and Kendall were arrested in Mississippi on
warrants from Madison County.
After being transported from Mississippi back to Indiana, Kendall gave a statement to
police in which he stated that Marcum had killed Skinner by beating him
with a pipe and stomping on him. According to Kendall, Marcum had
previously told him that he wanted to kill Skinner because Skinner had ridiculed
a young woman for her weight.
Marcum was charged with six counts: murder, attempted murder, conspiracy to commit burglary,
carjacking, auto theft, and theft. At trial, the State called Dr. Pless,
who testified that he believed Skinner had not died in the accident but
rather had been killed by being beaten. Marcum called an expert who
opined that the autopsy did not prove death from either a beating or
a motor vehicle accident. The jury found Marcum guilty of auto theft
as a lesser included offense of carjacking and guilty of the remaining counts
as charged. The trial court sentenced Marcum to fifty-five years for murder, thirty
years for attempted murder, and ten years for conspiracy, three years for each
auto theft conviction, and six months for theft. It ordered the murder,
conspiracy, and auto theft counts to be served consecutively for a total sentence
of seventy-one years imprisonment.
I. Alleged Partiality of the Trial Judge
Marcum first argues that he was denied his right to a fair trial
because of the partiality of the trial judge. The right to a
fair trial before an impartial judge is an essential element of due process.
See Abernathy v. State, 524 N.E.2d 12, 13 (Ind. 1988). As
this Court observed in Kennedy v. State, 258 Ind. 211, 226, 280 N.E.2d
611, 620-21 (1972):
A jury of laymen will often have an awesome respect for the institution
of the American trial judge. This can lead them to accord great
and perhaps decisive significance to the judges every word and intimation. It
is therefore essential that the judge refrain from any actions indicating any position
other than strict impartiality.
A trial court is given latitude to manage the courtroom and maintain order
See Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997).
Even where the trial courts remarks display a degree of impatience, if
in the context of a particular trial they do not impart an appearance
of partiality, they may be permissible to promote an orderly progression of events
at trial. Id. (quoting Rowe v. State, 539 N.E.2d 474, 476 (Ind.
1989)). However, reversal is required if the defendant shows that the trial
judges actions and demeanor crossed the barrier of impartiality and prejudiced his or
her case. Timberlake, 690 N.E.2d at 256.
Marcum points to several instances of alleged partiality by the trial court.
First, Marcum cites the following exchange in the course of defense counsels questioning
of the defenses medical expert:
Q. I am not asking if the person died as a result of
this accident, did a person die in this accident?
A. The autopsy would indicate that. You dont normally do autopsies on
people who are alive.
[PROSECUTOR:] Judge again this is an inappropriate way to frame that question.
There is no evidence that anybody died in an accident. There
is no evidence in this trial, there is no evidence that has been
admitted in this trial. He has asked this doctor for a professional
conclusion, whether somebody died in an accident. That is assuming facts not
JUDGE: And he is right Mr. Oliver. If that is the
end result that is okay but your question presumes that the deceased died
as a result of the accident. So far the evidence has been
that he died as a result of a homicide.
Marcum moved for a mistrial based on the trial courts comment. The
trial court overruled the motion, observing that defense counsels question presume[d] the ultimate
fact and so far the evidence has not been that. . . .
If you will just ask the question a different way it is
Marcum contends that the trial court improperly commented on a fact in controversy,
i.e., whether Skinner died as a result of the automobile accident or from
a homicide. This was occasioned by defense counsels phrasing of a question
that assumed the defenses conclusion as to the manner of death. The
trial court correctly observed that the evidence to that point did not support
See footnote This comment did not necessitate a mistrial and was invited
by defense counsel.
Marcum next points to a comment made by the trial court during his
questioning of Fosnot. Defense counsel (Mr. Oliver) asked if Mr. Cummings, the
prosecutor, had charge[d] [Fosnot] any bond money, and the trial court interposed the
following comment: Excuse me Mr. Oliver. I am pretty sure the Judge
does that, not Mr. Cummings. . . . In this Court the
Judge sets the bond sir. This comment presents no basis for reversal.
Marcum also argues that the trial court made an improper comment after the
jury returned its signed verdict forms in open court. The trial court
realized that the verdict form signed by the foreman for auto theft as
charged in count six did not include the word guilty. The not
guilty form for that count was not signed by the foreperson of the
jury. The trial court then stated:
I know the intent was he is guilty but it doesnt say guilty.
Members of the Jury I have discovered a mistake and it is
not your mistake it is ours. The verdict form for Count VI
does not contain the word guilty. It simply says, We, the jury,
find the defendant, Chad Marcum, Count VI, Auto Theft. It is my
view that you intend to find him guilty because you did not sign
the form of verdict that says not guilty. If you will retire
to the jury room, if it is your intention to find him guilty,
please add the word guilty at the top, and then I will receive
your verdict for Count VI.
Defense counsel did not object to this comment or procedure, and the jury
retained the option of writing not guilty on the form, if that was
its intention. However, the foreperson wrote the word guilty on the form
before returning it in open court. Under these circumstances this comment presents
no basis for finding a lack of impartiality on the part of the
II. Prosecutorial Misconduct
Finally, Marcum points to an instance in which he made a continuing objection
to testimony he believed to be hearsay. The trial court overruled the
objection, observing, And it very well may be Mr. Oliver, but I am
going to allow it. The State had asserted that the testimony was
not hearsay because it was not offered for the truth of the matter
asserted. Marcum makes no argument in this appeal that the trial courts
ruling on this issue was erroneous. Therefore, there is no basis for
finding a lack of impartiality on the part of the judge for making
what appears to be a proper ruling on an evidentiary issue.
In sum, Marcum has failed to demonstrate that the comments cited above demonstrate
partiality of the trial judge or that they prejudiced his case. See
Timberlake, 690 N.E.2d at 256.
Marcum next contends that Madison County Prosecutor Rodney Cummings engaged in misconduct that
warrants reversal of Marcums convictions. 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. See Cox v. State, 696
N.E.2d 853, 859 (Ind. 1998). Although we agree that many of Cummings
comments, which often belittled and ridiculed defense counsel, were inconsistent with the requirement
that lawyers demonstrate respect for the legal system and for those who serve
it, including . . . other lawyers, see Preamble, Ind. Professional Conduct Rules,
his conduct does not establish a claim of prosecutorial misconduct.
Marcum first points to comments made by Cummings during redirect examination of Fosnot.
Fosnot testified on direct that he, like Marcum and Kendall, stood charged
with conspiracy to commit burglary and auto theft, but that the State had
promised him nothing in exchange for his testimony. Marcum cross-examined Fosnot about
this at length and suggested that Cummings had told Fosnot to say that
he was promised nothing but winked his eye and nodded in agreement.
Cummings then followed up on redirect about what Fosnot believed would happen to
him in regard to the pending charges. Defense counsel objected because [t]his
is self-serving, that is speculation. Cummings responded, No, what this is, is
a response to your nonsense. Defense counsels inquiry into the possibility of
a deal between the State and Fosnot, in light of the fact that
Fosnot was released on his own recognizance after being charged with two felonies,
was hardly nonsense. Rather, it appears to be an obviously valid line
In a similar vein, Cummings made other demeaning remarks directed at defense counsel.
He stated that defense counsels continued questioning of a witness in the
face of an objection was outrageous behavior for anyone who calls themselves a
professional lawyer. In response to a hearsay objection by defense counsel, Cummings
responded, Judge the rules of evidence that I read dont even make that
a close call. . . . Judge I guess we can move
the jury out and we can do a quick evidence course here for
Mr. Oliver. At another point, Cummings stated that this is about the
third time that Mr. Oliver has said that, maybe he needs to pay
a little more attention to what is going on. Although attorneys become
frustrated in the heat of a lengthy trial, comments that demean opposing counsel,
especially in front of a jury, are inappropriate, and these fall into that
In response to defense counsels argument that a statement was admissible as a
see Ind. Evidence Rule 804(b)(2), Cummings stated, And those were not
the last words. He is trying to mislead this jury . .
. . This comment attacks the integrity of defense counsel by suggesting
that he is trying to mislead the jury. Because the reports being
shown to the witness are not in the record, we have no basis
to evaluate the prosecutors contention that the report did not contain Skinners last
words. Even if this were the case, there is no reason to
suggest that defense counsels contrary view was an attempt to mislead the jury,
as opposed to an honest mistake.
Marcum next points to a comment made by Cummings during Marcums direct examination
of his medical expert, who was licensed to practice both law and medicine.
It is my opinion after reviewing the autopsy report, these photographs and the
other documentation I have been provided that there is no way to tell
from this autopsy. There is no better than the flip of a
coin which caused these injuries.
And you say no better than the flip of a coin and a
coin has how many sides?
Is that what you mean Doctor?
Exactly what I mean. And this autopsy doesnt prove guilt to me.
MR. CUMMINGS: Judge that is unbelievable. I thought this guy was
a lawyer. I cannot believe he said that.
Although not specifically stating the basis of his objection, it appears that Cummings
was objecting on the ground that the witness was testifying to an opinion
concerning guilt or innocence, which is prohibited by Evidence Rule 704(b). Cummings
was apparently contending that because the witness was a lawyer, he should have
known that his comment was improper. Nonetheless, a simple objection to the
testimony on the ground that it violated Evidence Rule 704(b) would have sufficed.
Finally, Marcum points to the following exchange during Cummings cross-examination of him:
You are not responsible for the theft of that van, is that what
you are telling these ladies and gentlemen?
I am responsible but I . . . .
Should you be found guilty of that crime?
Then why are we having a trial on that issue? Why didnt
you just plead guilty.
MR. OLIVER: Judge this is not appropriate, Judge. Is it appropriate?
. . . .
JUDGE: Please gentlemen, please. There are many reason[s] for that decision.
It seems awkward to me that you are making that inquiry.
We are here so we will make the best of it. Go
We agree that this question is improper. Marcum admitted that he was
guilty of one of the six charges against him. He was under
no obligation to plead guilty and was entitled to a trial at which
the State was required to prove him guilty beyond a reasonable doubt.
The fact that he admitted on the stand that he was guilty of
one charge does not suggest his guilt of the remaining charges.
III. Limitations on Cross-Examination
Although many of Cummings comments were improper, and some appear to be direct
violations of the Rules of Professional Conduct, Marcum is not entitled to relief
on his claim of prosecutorial misconduct because he has not established that the
improper comments had a probable persuasive effect on the jurys decision.
Cox, 696 N.E.2d at 859. Breaches of civility and attacks on the
integrity or competence of counsel, particularly in a context where opposing counsel is
giving as well as taking, are ordinarily matters for another forum. At
least in the examples cited here, we cannot conclude that these comments would
have affected the jurys verdict in light of the evidence as a whole.
As with other breaches of professional obligations, reversal of a criminal conviction
is not the only forum in which to raise these issues. Cf.
Goodner v. State, 714 N.E.2d 638, 642-43 (Ind. 1999).
Marcum next contends that the trial court infringed upon his Sixth Amendment right
to cross-examine witnesses. Although this right is one of the fundamental rights
of our criminal justice system, Pigg v. State, 603 N.E.2d 154, 155 (Ind.
1992), it is subject to reasonable limitations placed at the discretion of the
trial judge. Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999) (quoting
McQuay v. State, 566 N.E.2d 542, 543 (Ind. 1991)). [T]rial judges retain
wide latitude . . . to impose reasonable limits . . . based
on concerns about, among other things, harassment, prejudice, confusion of issues, the witness
safety, or interrogation that is repetitive or only marginally relevant. Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). The limitations raised by Marcum
in this appeal fall within the wide latitude conferred on the trial court.
Marcum first argues that the trial court improperly limited his cross-examination of Fosnot.
Fosnot had given two statements to a detective, and defense counsel sought
to impeach Fosnots trial testimony based on these statements. Fosnot testified that,
although he remembered talking to the detective, he did not remember what they
had discussed. In response to another question from defense counsel, Fosnot responded
that he did not remember talking about the facts surrounding these crimes.
The trial court eventually asked Fosnot if he remembered anything he had told
the detective in either interview, and Fosnot responded that he did not.
After an extensive colloquy outside the presence of the jury, the trial court
observed that Fosnot cant remember anything. He said it at least six
(6) times and perhaps more. And you persist on picking nits with
him and demanding that he answers questions that he says he cant remember.
The colloquy escalated to include the following exchange, outside the presence of
the jury, between defense counsel and the trial court:
JUDGE: Mr. Oliver, I gave you clue after clue that you were
headed down a dead end and apparently you didnt pick it up.
MR. OLIVER: Judge I want the record to reflect that I feel
the Court is hampering my cross-examination.
JUDGE: That is exactly right. I have hampered it, I have
shut it off because you are wasting everybodys time and you wont do
what you are suppose to do. Get the jury. Thank you
Mr. Oliver. But I am going to allow you to play the
tape. I told you that.
We find no abuse of discretion in limiting this line of cross-examination in
light of Fosnots repeated denials of memory of the prior statements.
Marcum also makes several brief contentions about limitations on the cross-examination of other
witnesses but offers little in the way of a cogent argument that any
of these limitations were an abuse of discretion. In cross-examination, Marcum asked
Phillip Craig, the prospective fence, whether he had been in the courtroom earlier
in the day and heard other witnesses testifying. Craig responded that he
had not. Although the prosecutors objection was sustained, the testimony was not
stricken. Under these circumstances, it is difficult to see how Marcums cross-examination
was restricted. There is similarly little substance to Marcums claim with respect
to the testimony of Autumn Stewart. Kendall and Marcum had walked to
Stewarts house immediately after the accident. Although the trial court sustained the
States objection to a question regarding whether Stewart had seen Marcum or Kendall
use the telephone, defense counsel proceeded to askand Stewart answeredquestions on the subject.
She stated that Kendall called two different people; she heard both conversations;
and Kendall asked somebody to pick him up, but no one ever did.
Defense counsel then asked if Stewart had heard Kendall call the hospital,
and she responded affirmatively. However, when asked if Kendall had inquired about
the condition of Fosnot and Skinner, the State objected and the trial court
sustained the objection, reasoning that, I just dont understand the purpose of asking
about Kendalls concern about the injured gentlemen in the traffic collision. I
dont know how that is relevant to this case. The trial court
offered defense counsel a hearing on the issue, but defense counsel declined, stating
I am ready to move on. We can see the potential relevance
of this inquiry, but because it was abandoned by defense counsel it presents
no issue here.
On cross-examination Marcum asked a detective if Kendall had said anything in his
statement to police to the effect that Marcum had done nothing to harm
Stewart or Fosnot. The trial court sustained the States objection. Moments earlier
the detective had testified that Kendall had given two different stories and had
agreed with Marcums question that in one of the stories Marcum did nothing,
it was an accident and they left the scene. The limitation of
this repetitive testimony was not an abuse of discretion.
See Coates v.
State, 534 N.E.2d 1087, 1095 (Ind. 1989) (finding no abuse of discretion in
trial courts limitation of repetitive cross-examination). The same is true of Marcums
claim that he was not permitted to cross-examine his mothers boyfriend, Rick Tipton.
IV. Evidentiary Rulings
Marcum also contests a number of evidentiary rulings by the trial court.
He contends that some items should have been excluded under the relevancy requirements
of Evidence Rule 401 and the balancing of probative value against the danger
of unfair prejudice of Evidence Rule 403. We review the admissibility of
evidence pursuant to these rules for an abuse of discretion. See Ingram
v. State, 715 N.E.2d 405, 408 (Ind. 1999); Willsey v. State, 698 N.E.2d
784, 793 (Ind. 1998).
Marcum first points to the States redirect examination of Fosnot on the effect
of the pending charges against him. The State asked the following questions
and Fosnot provided the following answers:
Q. You are afraid I may not cut you any slack arent you?
. . . .
Q. In fact you are concerned what I might do arent you?
A. Yes sir.
Q. What do you think I might do?
A. I am figuring I will probably go to prison just like everybody
Defense counsel then objected, and the objection was overruled. This questioning followed
extensive cross-examination by defense counsel about whether there had been a wink-and-nod deal
between the prosecutor and witness in exchange for his testimony, and was proper
Marcum next points to the following comment by Phillip Craig, in response to
a question by the State about why he did not like Marcum and
Kendall: They were . . . acting like they were in a
gang and I just dont like that type of attitude. Defense counsel
objected, stating that Marcum is in no gang. I object, he doesnt
know that. The State responded that the information was totally irrelevant and
I dont really want to go into the merits of whether he is
or whether he isnt. Even in face of the States concession that
Craigs response was totally irrelevant, the trial court overruled Marcums objection. Although
the trial courts ruling was arguably erroneous, the suggestion that Marcum and Kendall
acted like they were in a gang is not tantamount to actual gang
membership and the State asked no further questions on the subject. Because
this testimony did not affect Marcums substantial rights, any error in its admission
See Ind. Trial Rule 61; Ind. Evidence Rule 103(a).
Finally, Marcum contends that the trial court erred in overruling his objection to
the States questioning of Marcums expert about his reason for not talking before
trial to Dr. Pless, the pathologist who had performed the autopsy and testified
for the State. Marcums expert testified, Two (2) other physicians told me
not to talk to another witness in the case. The State later asked,
And you are taking legal advice from doctors who are not lawyers?
Defense counsel objected, asserting That is not legal advice. Marcums expert then
explained that he was taking ethical advice, and not legal advice from these
physicians. Asking the witness why he had not spoken to Dr. Pless
was a relevant line of inquiry. The trial court did not abuse
its discretion by overruling Marcums objection.
V. Recorded Recollection
Marcum called Officer Tim Basey to testify at trial. Defense counsel showed
Basey an accident report and two supplemental reports that Basey had prepared.
The reports apparently contained the last words of Skinner as related to Basey
by another officer. Marcum sought the admission of these exhibits at trial,
asserting several different exceptions to the hearsay rule. He does not advance
any of those in this appeal, but rather asserts now that the reports
were admissible under the recorded recollection exception to the hearsay rule. See
Ind. Evidence Rule 803(5). However, Marcum is limited to the specific grounds
argued in the trial court and cannot assert new bases for admissibility for
the first time on appeal. See Taylor v. State, 710 N.E.2d 921,
923 (Ind. 1999). Any claim of error based on Evidence Rule 803(5)
VI. Sufficiency of the Evidence
Marcum next contends that there is insufficient evidence to support his convictions for
murder and attempted murder. He argues that these convictions rest upon the
sketchy memory of Fosnot, the dubious speculation of Dr. Pless, and the shifting
sands of Kendalls inconsistent statements. He asserts that the jury could only
have found him guilty by drawing unreasonable inferences.
Our standard of review for sufficiency claims is well settled. We do
not reweigh 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). For purposes of sufficiency
review, [o]therwise inadmissible hearsay evidence may be considered for substantive purposes and is
sufficient to establish a material fact at issue when the hearsay evidence is
admitted without a timely objection at trial. Humphrey v. State, 680 N.E.2d
836, 840 (Ind. 1997) (quoting Banks v. State, 567 N.E.2d 1126, 1129 (Ind.
Drawing reasonable inferences from the testimony at trial, there is sufficient evidence to
support both convictions. Detective Harp testified that shortly after regaining consciousness Fosnot
told him he had been hit by Kendall and Marcum and knocked out
at the scene of the accident.
Harp also testified that Kendall told
him that Marcum had beaten Skinner and Fosnot. Defense counsel did not
object to this testimony nor did he tender an instruction informing the jury
that this testimony could be considered only for impeachment purposes. Accordingly, the
testimony could be considered by the jury as substantive evidence. See Humphrey,
680 N.E.2d at 840-41. In addition, an autopsy revealed that Skinner had
died as the result of blunt force injury to the chest and head
with aspiration of gastric contents. The pathologist did not believe Skinner died
in a vehicle accident because the objects that struck him were smooth and
somewhat rounded and he has injuries on all surfaces of his body indicating
the forces are coming from several different directions, unlike a vehicle accident in
which injuries are generally on one side of the body or the other.
Although Kendall and Marcum offered a different version of events at trial, it
was the jurys prerogative to weigh the conflicting evidence. See Robinson v.
State, 699 N.E.2d 1146, 1148 (Ind. 1998). There is sufficient evidence to
support the convictions for murder and attempted murder.
Marcum argues that his seventy-one year sentence is erroneous and manifestly unreasonable because
it lacks logic, i.e., on the one hand the trial court found that
the aggravating and mitigating circumstances were balanced, but in contrast, the trial court
imposed consecutive sentences. The trial court imposed the presumptive term on three
counts (murder, attempted murder, and conspiracy to commit burglary), the minimum six-month sentence
for theft as a Class D felony, and the maximum term of three
years for each of the auto theft counts. Before imposing sentence, the
trial court identified Marcums youthful age as the sole mitigating circumstance. Although
it did not initially identify any aggravating circumstances, in response to a query
from defense counsel after imposing sentence the trial court stated, This was a
series of incidents, events or occurrences, a crime of spree. The trial
court specifically found that the aggravating and mitigating circumstances are in fact in
balance, but ordered that the murder, conspiracy, and two auto theft counts be
In order to impose consecutive sentences, the trial court must find at least
one aggravating circumstance.
See Morgan v. State, 675 N.E.2d 1067, 1073 (Ind.
1996). The same aggravating circumstance may be used to both enhance a
sentence and justify consecutive terms. See, e.g., Taylor v. State, 710 N.E.2d
921, 925 (Ind. 1999); Brown v.
, 698 N.E.2d 779, 781 (Ind. 1998). Here, however, because the trial
court found the aggravating and mitigating circumstances to be in balance, there is
no basis on which to impose consecutive terms. Accordingly, this case is
remanded to the trial court with direction to impose concurrent sentences on all
VIII. Double Jeopardy
As a final point, we note that Marcum was convicted and sentenced for
both auto theft, as charged in Count VI, and conspiracy to commit burglary.
Double jeopardy precludes both of these 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." Richardson v. State, 717 N.E.2d 32, 53
(Ind. 1999); accord Griffin v. State, 717 N.E.2d 73, 89 (Ind. 1999); Guffey
v. State, 717 N.E.2d 103, 106 (Ind. 1999).
The preliminary and final instructions told the jury that (1) Marcum was charged
with conspiracy to commit burglary; (2) the overt act in furtherance of the
agreement was the "theft of a 1990 red Pontiac Transport from Lesley McQueary;"
and (3) Marcum was charged with the theft of that same vehicle.
The jury was also instructed that in order to prove the conspiracy charge,
the State "must allege and prove that either the person or the person
with whom he agreed performed an overt act in furtherance of the agreement"
and that an overt act was an element of the conspiracy offense.
Under these instructions, there is at least a reasonable possibility, if not a
near certainty, that the jury used the same evidentiary fact--Marcum's theft of a
1990 red Pontiac Transport belonging to Lesley McQueary--to prove an essential element of
conspiracy to commit burglary and also the essential elements of the auto theft
in Count VI. Because these convictions and sentences violate the Indiana Double
Jeopardy Clause, we remand to the trial court with direction to vacate Count
The judgment of the trial court is affirmed in part. This case
is remanded to the trial court with instructions to vacate Count VI and
impose concurrent sentences on the remaining counts.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
By this point in the trial the State had presented evidence
from Dr. Pless who opined that Skinner had died as a result of
blunt force injury to the chest and head with aspiration of gastric contents,
and not as a result of a vehicle accident. The State had
also called the Madison County Coroner, who testified that she had determined that
her original finding that Skinner had died as a result of the accident
was erroneous and had instead ruled that Skinner died in a manner consistent
with Dr. Pless findings. Only after this point did the defense expert
testify that it was a coin toss what caused Skinners injuries.
Marcum also contends that the trial court improperly limited his cross-examination
of Fosnot, which further shows its partiality. However, as explained in Part
III., the limitation on cross-examination was not error. For the same reasons,
it does not evince a lack of impartiality on the part of the
Some of the other cited instances are clearly not misconduct. For
example, Marcum points to Cummings suggestion that Kendall changed his story after he
has had a chance to speak to his lawyer, after he has had
a chance to talk to any number of people in the jail.
A lot of time has passed since then. Marcum contends that this
comment improperly attacks attorneys in general and the Defendants attorney by its implication
that attorneys counsel their clients to obstruct justice or conceal the truth.
The comment pointed out that Kendalls story changed after the passage of time
during which he had spoken to several people, including his attorney. The
comment does not attack Kendalls attorney nor does it in any way attack
In addition, Marcum contends that Cummings committed misconduct in his cross-examination of Fosnots
aunt, Patricia Hittle. Hittle had testified that Fosnots father made up the
allegations against Marcum and Kendall, and Cummings then asked if Fosnots father fooled
the Judge too when the Judge issued an exhumation order. This question
did not imply, as Marcum contends, that since the Judge issued an order
the Defendant must be guilty. Rather, it merely pointed out that the alleged
lies of Fosnots father appeared to be worthy of an investigation.
Cummings did not engage in misconduct by asking Kendall, Where do you
draw the line, where do criminals draw the line on what they will
do to one another? Marcum contends that this question was improper because
it suggests that the Defendant along with the other three men were all
criminals. Furthermore, it suggested that since the Defendant is a criminal he
should be convicted. We disagree. This question was asked during redirect
to discredit Kendall by pointing out that he had admitted taking Fosnots car
and Skinners check before leaving the state, but not to physically harming them.
We see no impropriety with this question as it pursued a valid
line of inquiry Kendalls credibility without impermissibly suggesting Marcums guilt.
Marcum also contends that this ruling violated Rule of Evidence 611(a)(3)
because the witness was subjected to undue embarrassment and harassment by the State.
This ground for objection was not made at trial, and is
therefore waived. See Willsey, 698 N.E.2d at 793.
At trial, Fosnot testified that he was not ejected from the
van but rather exited the van, walked toward a light, and was struck
from behind. He claimed no further memory of the events.