ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Priscilla J. Fossum
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
April 14, 2000
The defendant-appellant, Kenny D. Sanquenetti, appeals his convictions and sentences for the March
8, 1997, choking and stabbing murders
See footnote of Brenda M. Cunningham and Christal J.
Davis. In this direct appeal, he presents two claims of error:
(1) that the accomplice liability statute, as applied in this case, violates the
Privileges and Immunities Clause of the Indiana Constitution; and (2) that the trial
court erred in imposing consecutive sentences without finding an aggravating circumstance.
Ind. Code § 35-41-2-4. The present version of this statute, which became
effective October 1, 1977, departs from common law and prior statutory law regarding
principals and accessories. See Ind. Code § 35-1-29-1 (repealed); Ind. Code §
35-1-29-3 (repealed). We have noted that the current statute supersedes the common
law of criminal liability and thus that the legal distinction between a principal
and an accessory has ceased to exist. Johnson v. State, 687 N.E.2d
345, 349 (Ind. 1997); McKnight v. State, 658 N.E.2d 559, 560-61 (Ind. 1995).
Because the common law distinction between principal and accessory is no longer
viable, the defendant's reliance on these distinctions is ill-founded,
See footnote and we will analyze
the defendant's claim under the law as it presently stands and under the
terms it employs.
As a preliminary matter, we note that the defendant, in support of his equal privileges and immunities claim, cites the common law doctrine of mandated consistency as illustrative of the equality and consistency required under the law. In the last three decades, this Court has considered the application of this common law doctrine, which required that when a principal and an accessory are tried separately, the accessory cannot be convicted of a crime greater than that of which the principal is convicted. See, e.g., McKnight, 658 N.E.2d at 562-63 (discussing cases and applying the doctrine under the assisting a criminal statute); Rufer v. State, 274 Ind. 643, 647, 413 N.E.2d 880, 882 (1980); Jewell v. State, 272 Ind. 317, 320-22, 397 N.E.2d 946, 947-48 (1979); Davis v. State, 267 Ind. 152, 158-59, 368 N.E.2d 1149, 1152 (1977); Wright v. State, 266 Ind. 327, 342-43, 363 N.E.2d 1221, 1229-30 (1977); Schmidt v. State, 261 Ind. 81, 83, 300 N.E.2d 86, 87-88 (1973); Combs v. State, 260 Ind. 294, 301, 295 N.E.2d 366, 370 (1973) ("[W]here there has been two separate judicial determinations on the merits of the respective cases, and where they are contradictory, the law will impose a consistency to their findings."). See also McCarty v. State, 44 Ind. 214, 215-17 (1873).
However, with the exception of McKnight, the facts underlying these decisions occurred prior to the date in 1977 when the accomplice liability statute became effective, and, in these decisions, the principles of the common law and the defendant's adjudicated designation as a principal or an accessory governed. See Rufer, 274 Ind. at 647, 413 N.E.2d at 882 (involving a defendant convicted as an accessory before the fact); Jewell, 272 Ind. at 320-22, 397 N.E.2d at 947-48 and 261 Ind. 665, 309 N.E.2d 441 (1974) (involving a defendant convicted as an accessory before the fact); Davis, 267 Ind. at 158-59, 368 N.E.2d at 1152 (involving a defendant convicted as an accessory before the fact); Wright, 266 Ind. at 342-43, 363 N.E.2d at 1229-30 (involving a defendant charged as a principal and a jury instructed on accessory liability); Schmidt, 261 Ind. at 83, 300 N.E.2d at 87-88 (involving a defendant convicted as an accessory); Combs, 260 Ind. at 301-03, 295 N.E.2d at 370-71 (involving defendant convicted as an accessory); McCarty, 44 Ind. at 215-17 (involving defendant convicted as an accessory before the fact). In the only exception we find, this Court in McKnight applied the doctrine of mandated consistency in the context of the assisting a criminal statute, Ind. Code § 35-44-3-2, not in the context of the accomplice liability statute, Ind. Code § 35-41-2-4, specifically finding that, unlike the accomplice liability statute, the assisting a criminal statute had not received explicit exception from the common law rule. See McKnight, 658 N.E.2d at 561-62.
Just as the accomplice liability statute supersedes the common law of criminal liability, abandoning the common law terms of principal and accessory, it also supersedes the application of the common law doctrine of mandated consistency when defendants are convicted under this statute. See Johnson, 687 N.E.2d at 349; McKnight, 658 N.E.2d at 561. See also Rainey v. State, 572 N.E.2d 517, 519 (Ind. Ct. App. 1991) ("[T]his rule [of mandated consistency], reflecting logical consistency, was modified by the 1977 legislative enunciation of a public policy change which reflects a view that each defendant and each trial shall be considered and treated separately and independently.") (citing Ind. Code § 35-41-2-4); Williams v. State, 406 N.E.2d 263, 264 (Ind. Ct. App. 1980) ("[R]egardless of its desirability, this common law rule was abrogated with the passage of Ind.Code 35-41-2-4, effective October 1, 1977."). Because under the accomplice liability statute, any accomplice to a crime may be tried and convicted upon sufficient proof, regardless of whether other accomplices were prosecuted, convicted, or acquitted, the doctrine of mandated consistency is inapplicable. See Johnson, 687 N.E.2d at 350 (citing Ind. Code § 35-41-2-4).
In discussing the application of our accomplice liability statute, we have noted that there is no separate crime of being an accessory to a crime or aiding and abetting the perpetrator of a crime; rather, a defendant may be convicted as a principal upon evidence that he aided or abetted in the perpetration of the charged crime. Morrison v. State, 686 N.E.2d 817, 819 (Ind. 1997); Taylor v. State, 495 N.E.2d 710, 713 (Ind. 1986); Hoskins v. State, 441 N.E.2d 419, 425 (Ind. 1982). Under this statute, "an actor who would have been considered an accessory under the common law now vicariously commits the actual offense," and "individuals convicted of felonies in Indiana are considered to have been convicted on the weight of their own actions even if the accomplice liability statute is utilized by the court or jury to determine guilt." Johnson, 687 N.E.2d at 349 (citations omitted). Furthermore, "[a]n accomplice may be tried and convicted when the proof of the underlying crime is sufficient despite the fact that the other actor is not prosecuted, not convicted, or even acquitted." Id. at 350 (citing Ind. Code § 35-41-2-4). Under the statute, the individual who aids another person in committing a crime is as guilty as the actual perpetrator. Morrison, 686 N.E.2d at 819. See also Wittle v. State, 542 N.E.2d 981, 991 (Ind. 1989) ("[T]here is no distinction between the responsibility of a principal and an accomplice. Thus, one may be charged as a principal yet convicted as an accomplice.") (citations omitted), overruled on other grounds by Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998).
The defendant invokes Article I, Section 23 of the Indiana Constitution, claiming that his conviction for the murder of Davis violates this provision by allowing the principal, Mills, whom the defendant contends is the actual killer, "the privilege of being convicted of a lesser crime than his non-killing accomplice." Brief of Defendant-Appellant at 11. The defendant urges that, "within the narrow confines of [this] case, allowing an accessory to be punished more severely than the actual killer is not reasonably related to the legislative distinction between accessories and principals." Brief of Defendant-Appellant at 11.
Article I, Section 23 of the Indiana Constitution provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." In reviewing an alleged violation of the Privileges and Immunities Clause, we apply the following test:
Article 1, Section 23 of the Indiana Constitution imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of persons. First, the disparate treatment accorded by the legislation must be reasonably related to inherent characteristics which distinguish the unequally treated classes. Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Finally, in determining whether a statute complies with or violates Section 23, courts must exercise substantial deference to legislative discretion.
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
Contrary to the defendant's assertion that the statute establishes a "legislative distinction between accessories and principals," Brief of Defendant-Appellant at 11, the accomplice liability statute neither establishes separate classes nor accords disparate treatment to Indiana citizens or classes of citizens. Rather, the effect of the statute is just the opposite. It removes the common law distinctions between principals and accessories, between principals in the first degree and principals in the second degree, and between accessories before the fact and accessories after the fact, and renders all participants in the perpetration of a crime accomplices who are equally responsible for the criminal acts. See footnote
Under the first part of the Collins test, even if we accept the defendant's contention that, as applied in this case, the statute grants the actual killer "the privilege of being convicted of a lesser crime than his non-killing accomplice" and thereby accords disparate treatment to two classes, Brief of Defendant-Appellant at 11, we disagree with the defendant's claim that the statute's disparate treatment "is not reasonably related" to the inherent characteristics that distinguish the unequally treated classes, Brief of Defendant-Appellant at 11. To the contrary, a reasonable relationship could exist between such disparate treatment and the inherent characteristics that distinguish the unequally treated classes. In cases tried separately, the evidence may vary, and different juries may independently determine that participants in the perpetration of a crime exhibited different levels of culpability. In such an instance, each defendants guilt is determined based on the evidence presented at each separate trial. The defendant's claim fails under Collins.
We hold, therefore, that the accomplice liability statute, even as applied in this case, does not violate the Privileges and Immunities Clause of the Indiana Constitution.