ATTORNEY FOR APPELLANT
Katherine A. Cornelius
Marion County Public Defenders Office
ATTORNEYS FOR APPELLEE
Karen M. Freeman-Wilson
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL WEST, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0001-CR-38
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9809-CF-143703
ON DIRECT APPEAL
September 24, 2001
Michael West was convicted of felony murder and robbery. He was sentenced
to life imprisonment without parole for felony murder and a twenty-year consecutive sentence
for robbery. In this direct appeal, West raises five issues for review:
(1) whether the Fourth Amendment requires the suppression of blood evidence and
a knife obtained from his vehicle, or the suppression of Wests hair and
blood samples; (2) whether the trial court abused its discretion in the admission
of certain evidence; (3) whether the trial court abused its discretion by improperly
restricting Wests cross-examination of three witnesses; (4) whether the evidence was sufficient to
convict West of felony murder; and (5) whether Wests sentence was proper.
We affirm the trial court.
Factual and Procedural Background
In the early morning hours of April 29, 1998, police were dispatched to
a Clark service station in Indianapolis which customers had found unattended. In
the back room, police discovered the body of Carla Hollen. She had
been stabbed over fifty times. The cash register tape showed that the
register had been opened at 2:14 a.m. and $274.50 was missing.
West was Hollens co-worker. On April 28, Hollen was scheduled to work
from 10:00 or 10:30 p.m. until 6:00 a.m. West had worked a
shift starting at 3:30 p.m. Pizza was delivered to the station between
11:30 and 11:45 p.m. and Wests fingerprint was found on a pizza box
in the station. Hollens blood was found on the horn of Wests
Blazer, and shoeprints matching Caterpillar boots--the type West was known to wear--were found
imprinted in Hollens blood near her body. According to Jimmy Collins, whom
West owed money, earlier that day West gave him $10 and two cartons
of cigarettes, saying that was all he had. Shortly after the robbery,
West bought crack cocaine from Roy Rogers for $275.
West was arrested in September 1998. While incarcerated in Marion County Jail,
West bragged to inmate James Warren that he and his cousin had robbed
the Clark station and that he had tried to stab [Hollens] breasts off.
A deputy sheriff assigned to transport prisoners, Brett Larkins, reported that West
said, Im going to kill him, too, while referring to a picture of
Warren among a pile of legal papers West was carrying.
A jury convicted West of murder, felony murder, and robbery as a Class
A felony in September 1999. The trial court vacated the murder conviction
and reduced the robbery conviction to a Class B felony.
I. Search and Seizure Issues
A. Search and Seizure of Wests Blazer
West challenges the search of his Blazer that revealed Hollens blood on the
horn and a knife in the back seat. Two days after the
crime, on May 1, 1998, police officers arrived at his home between 4:00
and 5:00 a.m. The Blazer was hauled away by a tow truck
before West accompanied officers downtown to sign a consent form and answer questions.
West was questioned by two officers in a small room with no
windows and handcuffs were within eyesight and readily available.
The State contends that West orally consented at his house to the search
and processing by the crime lab of his vehicle. Later, at the
police station, he signed a form entitled Permission to Search (Not in Custody),
which also authorized seizure of items the police deem[ed] as evidence or
pertinent to their investigation. The form stated in capital letters at
the bottom: This permission is given knowingly and voluntarily upon full knowledge of
my right to refuse such permission. The State also notes that Wests
statement was a witness statement (i.e., West was interviewed only as an employee
of the Clark station), that West was not read his rights or handcuffed,
and that at the conclusion of the interview he was driven home.
One of the detectives testified that, if West had asked to leave, he
would have been free to do so. The interview did not last
longer than an hour, and West was not arrested until four months later.
West argues that he was entitled to the advice of counsel before consenting
to the search. West cites Pirtle v. State, 263 Ind. 16, 323
N.E.2d 634 (1975), where this Court, citing both the Sixth Amendment of the
United States Constitution and Article I, Section 13 of the Indiana Constitution, held:
[A] person who is asked to give consent to search while in police
custody is entitled to the presence and advice of counsel prior to making
the decision whether to give such consent. This right, of course, may
be waived, but the burden will be upon the State to show that
such waiver was explicit . . . .
Id. at 29, 323 N.E.2d at 640. Pirtle emphasized the importance of
the right to counsel in protecting other constitutional rights. Id. at 28,
323 N.E.2d at 640. In Pirtle, the defendant consented to a search
of his apartment after having been Mirandized and after his request for an
attorney. Pirtle noted that the defendant had consented to a search at
a time police no longer possessed any authority to speak with him.
Id. at 24-25, 323 N.E.2d at 638.
II. Evidentiary Challenges
The State contends that West was not in custody for purposes of the
Fourth Amendment or Article I, Section 13 such that the right to the
advice of counsel had attached. Whether a defendant is in custody for
purposes of the Fourth Amendment and Article I, Section 13 is governed by
an objective test. Ultimately, the question is whether a reasonable person under
the same circumstances would have believed that he was under arrest or not
free to resist the entreaties of the police. Joyner v. State, 736
N.E.2d 232, 241 (Ind. 2000); Jones v. State, 655 N.E.2d 49, 55 (Ind.
1995) (citing Florida v. Bostick, 501 U.S. 429, 433-34 (1991)). Several circumstances
have been held relevant to this issue: whether the defendant is read
his Miranda rights or handcuffed or restrained in any way, and the manner
in which the defendant is interrogated, Torres v. State, 673 N.E.2d 472, 474
(Ind. 1996), whether a person freely and voluntarily accompanies police officers, Williams v.
State, 611 N.E.2d 649, 651-52 (Ind. Ct. App. 1993) trans. denied, at what
point the defendant is arrested for the crime under investigation, id. at 652,
the length of the detention, Cooley v. State, 682 N.E.2d 1277, 1279 (Ind.
1997), and the police officers perception as to the defendants freedom to leave
at any time, Joyner, 736 N.E.2d at 241.
We have no findings from the trial court on this issue. Although
no single circumstance is dispositive, we agree with the State that the record
supports the trial courts admission of the evidence on the ground that West
was not in custody when he consented to the search. Detective Timothy
Knight testified at trial that West agreed to speak with the police on
May 1. However, according to Knight, West had been difficult to reach.
When he learned West was at home in the early morning hours
of May 1, the decision was made to call on him. Unlike
the defendant in Torres, West was never handcuffed or otherwise restrained. Although
the police went to Wests home at a very early hour, there is
nothing in the record controverting the States evidence that West consented initially at
his home and then voluntarily accompanied police to the station to sign the
consent form. Thus, West had already orally consented to the search of
his vehicle when the vehicle was impounded, and West followed up by giving
his written consent on a form reciting that he was not in custody.
At police headquarters, West was questioned for about an hour and was
either transported back to his home by police or picked up by his
girlfriend. His arrest did not come until four months later.
West urges that, even if he was not in custody, his consent was
involuntary, a product of mere acquiescence to the authority of the police.
In Darnell v. State, this Court held that consent to a warrantless search
is valid unless procured by fraud, duress, fear, intimidation, or where it is
a mere submission to the supremacy of the law. 435 N.E.2d 250,
254 (Ind. 1982). Voluntariness is a question of fact to be determined
from all of the circumstances. Id. As discussed above, there is
nothing in the record to indicate that Wests consent to the search was
involuntary. After orally consenting to the search of the vehicle, West agreed
to accompany officers to the police station where he signed a written waiver
and made a witness statement. Thus, Wests claim of involuntariness of his
consent also fails.
Blood and Hair Samples
West also objects to the admission of blood and hair samples. West
gave his consent to the taking of the samples during a second interview
on June 25, 1998, over a month before he was arrested. West
argues that he should have been given Miranda warnings prior to giving his
consent and advised of his right to an attorney. The State counters
that West again signed a Permission to Search (Not in Custody) form, which
stated that West was aware of his right to refuse permission for the
search. West alleges nothing that would indicate that he was in custody
or otherwise entitled to be given the advice of counsel before consenting.
The admission of the blood and hair samples was proper.
A. The Pizza Box
West first challenges the admission into evidence of his fingerprint from the pizza
box found at the scene. Pizza was delivered to the Clark station
at 11:30 p.m. the evening of the murder. West concedes the relevancy
of the pizza box, but argues that the fingerprint does not prove he
was present at the time of the murder. Even if there were
merit to this contention, West raised no objection to the admission of this
evidence at trial. Thus, West has waived this argument for purposes of
Cutter v. State, 725 N.E.2d 401, 405-06 (Ind. 2000).
B. Expert Testimony
West argues that, given his sentence of life without parole, a less deferential
appellate standard of review of the admission of expert evidence is appropriate.
He cites no authority for this proposition, and we see no reason to
adopt such a rule. This Court applies the same standard of review
of evidentiary issues in death penalty cases that it does in reviewing any
other criminal appeal. See Thompson v. State, 492 N.E.2d 264, 278 (Ind.
1986). A fortiori, the same standard applies in life without parole cases.
1. Caterpillar Brand Boots
At trial, West objected to the expert testimony of witness David Brundage, who
conducted a comparison of the shoeprints found at the crime scene with Caterpillar
boots. Brundage is employed as a firearms and toolmark examiner by the
Indianapolis-Marion County Forensic Services Agency (Crime Lab). West argues that expert testimony
as to the shoeprint is inappropriate.
The Indiana Rules of Evidence provide: If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or determine a
fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise. Ind. Evidence Rule 702(a). Expert scientific testimony is admissible only
if the court is satisfied that the scientific principles upon which the expert
testimony rests are reliable. Evid. R. 702(b). The decision of the
trial court as to reliability under Indiana Rule of Evidence 702(b) will be
reviewed for an abuse of discretion. McGrew v. State, 682 N.E.2d 1289,
1292 (Ind. 1997).
In McGrew, the defendant made an analogous claim, challenging the reliability of hair
comparison analysis under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
This Court concluded that the trial court had not abused its discretion
in allowing the admission of this evidence, pointing out that Indiana Rule of
Evidence 702(b), unlike its federal counterpart, explicitly requires that the trial court be
satisfied that the testimony be based upon reliable scientific principles. McGrew, 682
N.E.2d at 1290 (citing Steward v. State, 652 N.E.2d 490, 498-99 (Ind. 1995)).
Reliability may be established by judicial notice or by the proponent of
the scientific testimony providing sufficient foundation to convince the trial court that the
scientific principles are reliable. Id. (citing Steward v. State, 652 N.E.2d 490,
498-99 (Ind. 1995)). This Court further noted that, although Daubert is instructive,
federal case law is not binding on the determination of state evidentiary law
on this issue. Id.
The trial court conducted a hearing on Wests motion in limine seeking to
exclude this testimony. Brundage described his duties at the Crime Lab, the
process of lifting and comparing prints, and testified that footwear examination is an
area of study generally accepted within the scientific community. Brundage testified that
he had participated in an international symposium on the recovery of shoeprints, enhancement
techniques, and comparison of footwear evidence. Brundage then went on to describe
the procedure he had employed in comparing the shoeprint found at the crime
scene with Caterpillar brand boots. The trial court denied Wests motion in
limine, concluding that Brundage was an expert in foot and bootwear impressions and
that the State had satisfied Rule 702. At trial, West again objected,
and the trial court again took testimony before ruling that Rule 702 had
been satisfied by the State. As in Vasquez v. State, 741 N.E.2d
1214, 1216 (Ind. 2001) (citing Jervis v. State, 679 N.E.2d 875, 881 (Ind.
1997)), this testimony is on the margins of testimony governed by Rule of
Evidence 702(b) as expert scientific testimony. To a great extent, it is
simply a matter of observations of persons with specialized knowledge. The trial
court did not abuse its discretion in admitting Brundages testimony with regard to
West also appears to argue that, because the shoeprint was determined to be
a size nine and one half and his foot was found by a
shoe salesman to be a ten-C, Brundages testimony should not have been admitted.
We believe that this issue bears on the weight to be given
Brundages testimony and not its admissibility.
See Williams v. State, 714 N.E.2d
644, 650 n.4 (Ind. 1999).
2. Pry Marks
West raises a similar argument concerning the admission of Brundages testimony as to
pry marks on the door to the room in which Hollens body was
found. Brundage testified that the pry marks resulted when someone attempted to
get out of the office, and not into the office. Angela McKnight,
the owner of the station, testified that the pry marks were there when
she bought the station. West objected to Brundages testimony at trial on
the ground that it was not a proper subject for expert testimony.
In addition to being an expert on footwear, Brundage testified that he had
examined toolmark evidence, including prymark evidence, for twenty-seven years. Without citation to
authority, West now argues that no special expertise was shown by the witness
and that he therefore should not have been qualified as an expert on
this subject. Given that Brundage testified to over twenty-seven years of examining
precisely this type of evidence, we cannot conclude that the trial court abused
its discretion in allowing Brundages testimony as to pry marks.
C. Deputy Brett Larkins Testimony
At trial, Deputy Larkin testified that he stood behind West when West, pointing
at a picture of jailhouse informant James Warren, exclaimed, You see him, Im
going to kill him, too. West objected to the admission of Larkins
testimony under Indiana Rules of Evidence 403 and 404(b), and on appeal
argues that the evidence was of limited relevancy and should have therefore been
excluded. Specifically, West argues that if the statement had been taken seriously
and were unambiguous, Larkin would have taken steps to protect Warren. Because
Larkin did nothing to protect Warren, the argument goes, Larkins testimony should not
have been admitted. We agree with the State that this argument goes
to the weight to be given the evidence rather than its admissibility.
As West concedes, threats against potential witnesses as attempts to conceal or suppress
evidence are admissible as bearing upon knowledge of guilt. Neal v. State,
659 N.E.2d 122, 124 (Ind. 1995), abrogated on other grounds by Richardson v.
State, 717 N.E.2d 32, 33 (Ind. 1999). Moreover, as in Barajas v.
State, 627 N.E.2d 437, 439 (Ind. 1994), a statement by a defendant that
he would kill another too, is direct evidence of guilt. Wests statement,
like the defendants in Barajas, suggested not just that he would like to
kill someone, but that he had already killed one person. For this
reason, the statement is relevant and admissible.
D. James Warrens Testimony
West argues that the trial court erred in allowing Warren to testify regarding
Wests statements to him while residing in the same cellblock in the Marion
County Jail. West raises several objections to this testimony, including that Warren
received a deal for his testimony, that Warren had access to documents discussing
the case and from which he could have concocted Wests confession to the
crime, and that Warren gradually added specifics to his recitation of Wests story.
These credibility issues were investigated by defense counsel on cross-examination. More
importantly, West did not object to Warrens testimony at trial and has therefore
waived this claim for purposes of review.
Testimony Regarding the Knives
At trial, Daniel Rutledge, the younger brother of Wests girlfriend, testified that shortly
before Hollens death two knives were missing from his collection. A crime
scene specialist later testified that one of Rutledges knives had turned up in
the backseat of Wests Blazer in the search. West did not object
to Rutledges or the crime scene specialists testimony, but did later object to
the admission of the knife on both relevancy grounds and on Pirtle grounds.
The State argued that the knife was relevant because the victim was
killed with a knife and this knife was found in Wests car within
two days of Hollens stabbing.
On appeal, West argues that the trial court abused its discretion in admitting
the testimony of Rutledge and the specialist because the knife was never identified
as being the murder weapon. Because he did not object at trial,
West has waived any objection to the testimony of both witnesses. West
also argues that the relevance of the knife itself was substantially outweighed by
its prejudicial effect on the jury under Indiana Rule of Evidence 403.
West could hardly have been greatly prejudiced by the admission of the knife
when two witnesses had already testified to the knifes existence, and the specialist
had reported it was found in Wests Blazer. Neither its relevance nor
any prejudice was significant. The trial court did not abuse its discretion
in balancing the two.
III. Limitation on Cross-Examination of Witnesses
West argues that he was denied his right to present his defense when
the trial court limited or excluded (1) evidence that Hollens husband was abusive
towards her; (2) examination of Hollens fear of John Phillips, from whom Hollen
allegedly purchased drugs; and (3) Wests cross-examination of Jimmy Collins, whom West owed
money and who visited West at work the evening of Hollens murder.
West asserts that this testimony was relevant under Indiana Rule of Evidence 401,
and that his right to confrontation was therefore impermissibly restricted in contravention of
the Sixth Amendment of United States Constitution and Article I, Section 13 of
the Indiana Constitution. West asserts that the excluded testimony would have demonstrated
that there were others who had problems with Hollen, and that the jury
would have found reasonable doubt if it had heard this testimony.
The right to cross-examine is one of the fundamental rights of our criminal
justice system. Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999) (quoting
Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992)). However, trial judges
retain wide latitude . . . to impose reasonable limits . . .
based on concerns about, among other things, harassment, prejudice, confusion of the issues,
the witness safety, or interrogation that is repetitive or only marginally relevant.
Thornton v. State, 712 N.E.2d 960, 963 (Ind. 1999) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986)).
A. Cross-examination of Mr. Hollen as to Domestic Abuse
On cross-examination of Hollens husband at trial, defense counsel asked Mr. Hollen, Didnt
you put a bruise on her back the size of a softball.
The State objected and reminded the court that the trial court had granted
the States motion in limine to exclude evidence of prior domestic abuse in
the Hollens marriage. Defense counsel apologized, and the court instructed the jury
to disregard the statement. West argues that evidence of domestic abuse was
highly relevant in view of the brutal nature of Hollens death and that
the trial court abused its discretion in refusing to allow Mr. Hollen to
be cross-examined on this point. Although it is difficult to see how
this evidence could lead to anything beyond speculation, we need not consider that
issue because we agree with the State that West has waived this argument
by failing to make an offer to prove. In order to preserve
an issue for appellate review, a defendant must make an offer to prove,
setting forth the grounds for admission of the evidence and the relevance of
the testimony. Ind. Evidence Rule 103(a); accord Noble v. State, 725
N.E.2d 842, 846 (Ind. 2000). West made no offer to prove after
the State objected to defense counsels line of questioning. Thus, the trial
court had no opportunity to reconsider its ruling on the motion in limine
and West has waived this claim.
B. Cross-Examination of John Phillips
The trial court granted the States motion in limine seeking to suppress any
evidence relating to Hollens drug use, and, consequently, evidence relating to Hollens relationship
to John Phillips, who allegedly regularly supplied Hollen with cocaine. At trial,
defense counsel attempted to suggest that Phillips could have killed Hollen by establishing
that Phillips had been at the Clark station the day of Hollens murder.
West argues that the trial court abused its discretion in refusing to
admit evidence of Hollens drug purchases from Phillips. West also notes that
[Phillips] testimony regarding where he was at the time of the murders was
also inconsistent and incredible.
Defense counsel questioned Phillips about his whereabouts on the day of Hollens murder,
as well as the fact that police had taken blood and hair samples
from him. West has not established how the evidence of Hollens drug
use raises anything more than speculation that a third party may have committed
the crime. See Cook v. State, 734 N.E.2d 563, 567-68 (Ind. 2000)
(evidence of motive of third party to commit a crime is relevant, but
was properly excluded because of absence of evidence linking crime to a third
party). The trial court was within its discretion to restrict exploration of
collateral issues by excluding speculation as to the possibility that Phillips was the
As this Court recently noted, evidence of a victims prior drug use is
often irrelevant, and, if relevant at all to a collateral issue, outweighed by
the danger of unfair prejudice under Indiana Rule of Evidence 403. See
Jenkins v. State, 729 N.E.2d 147, 149 (Ind. 2000). The trial court
did not abuse its discretion in limiting examination of Phillips on this issue.
C. Cross-examination of Jimmy Collins
Lastly, West argues that Collins should have been allowed to testify that he
knew Roy Rogers to be a drug dealer, that he once lived with
Rogers, and that Lori Rogers, a witness for the State, frequently purchased drugs
from Rogers. Evidence of a witness prior drug use is ordinarily irrelevant,
although it may be relevant as to (1) the witness ability to recall
the events on the date in question, (2) the witness inability to relate
the facts at trial, or (3) the witness mental capacity. Williams v.
State, 681 N.E.2d 195, 199 (Ind. 1997). West does not assert that
this testimony would have been relevant for any of these reasons. The
trial court did not abuse its discretion in failing to permit testimony as
to Collins association with Rogers or his knowledge concerning a State witness drug
IV. Sufficiency of the Evidence
West argues that there was insufficient evidence to find him guilty of killing
Hollen. This contention relies on the premise that the blood smear seized
from his Blazer should have been excluded under the Fourth Amendment, and that
Warrens testimony should have been suppressed under the incredible dubiosity rule. We
rejected these arguments in Part I and Part II.D n.5.
Our standard for review of sufficiency claims is well settled. We do
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 find the defendant guilty beyond a reasonable doubt. Taylor
v. State, 681 N.E.2d 1105, 1110 (Ind. 1997). Felony murder consists of
the killing of another being while committing or attempting to commit one of
the listed felonies in Indiana Code section 35-42-1-1, including robbery.
On the day of the murder, West offered Collins a carton of cigarettes
and $10 to repay a debt and asked Collins to try to convince
Rogers to front him $30 so he could buy crack. Early the
next morning, West had managed to assemble $275 to purchase an eight-ball of
crack. This evidence of Wests motive and acquisition of cash, along with
the blood smear, the fingerprint on the pizza box, the footprint, and Warrens
and Larkins testimony, was more than sufficient for a reasonable jury to find
West guilty beyond a reasonable doubt of felony murder.
A. Aggravating Circumstances
West argues that the trial court abused its discretion in sentencing him to
life without parole in that it relied on questionable evidence and Wests insignificant
Trial courts may impose life without parole only after finding aggravating circumstances specified
in the death penalty statute. Ind. Code § 35-50-2-9(b) (1998); Warlick
v. State, 722 N.E.2d 809, 811 (Ind. 2000). The trial court expressly
concluded that the State had proved beyond a reasonable doubt that West intentionally
killed Hollen while committing or attempting to commit robbery. This is a
valid eligibility requirement under Indiana Code section 35-50-2-9(b)(1)(G) and the trial court did
not abuse its discretion in relying on this factor in imposing life without
parole on West.
This does not violate the well-established rule that a material element of the
underlying offense may not serve as an aggravating circumstance to enhance a defendants
sentence. That rule apparently derives from Green v. State, 424 N.E.2d 1014,
1015 (Ind. 1981), and is a judicial rule of construction. It is
based on the sound logic that a presumptive sentence already assumes the underlying
elements and that it is therefore improper to enhance a sentence based on
an act for which the defendant is already presumed to be punished.
Sentencing pursuant to the death penalty or life without parole statute is a
qualitatively different matter. The legislature has determined that some crimes, based on
the circumstances in which they are committed, warrant the death penalty or life
without parole. Some of these circumstances may include elements of the crimes
themselves. Although the statute refers to these circumstances as aggravating, they serve
the narrowing function required by the Eighth Amendment. A defendant either meets
or does not meet the eligibility requirements for death or life imprisonment.
Under Indiana Code section 35-50-2-9(b)(1), the death penalty may be imposed for
an intentional killing in the course of a felony. Proof that the
defendant intentionally killed in the course of a felony is also among the
ways in which felony murder may be proven, but not the only way.
An accomplice to a felony resulting in death may also be convicted
of felony murder. The (b)(1) aggravating circumstance thus serves to narrow the
eligibility and is not identical to the elements of the crime. For
this reason, it was proper for the trial court to sentence West to
life without parole even though the trial court entered sentence on the felony
Manifestly Unreasonable Sentence
West argues that his sentence was manifestly unreasonable in view of the nature
of the offense, the character of the offender, and the level of proof
of the crime. Although this Court has the constitutional authority to revise
and review sentences, Ind. Const. art. VII, § 4, it will do so
only when the sentence is manifestly unreasonable in light of the nature of
the offense and the character of the offender. Former Ind. Appellate Rule
17(B) (now App. R. 7(B)). The nature of the offense consists of
robbing the Clark service station of $275 to purchase crack cocaine, and killing
Hollen by stabbing her over fifty-one times because she was an eyewitness to
the robbery. The character of the offender is that West, who had
a long history of arrests for various offenses,See footnote subsequently attempted to cover up
the murder, and then, after being arrested for Hollens murder, bragged about it
to fellow inmates. There is nothing in the record to suggest that
this sentence is manifestly unreasonable.
Sentencing for Felony Murder and Robbery as a Class B Felony
West was convicted of murder, felony murder, and robbery as a Class A
felony. The trial court concluded that double jeopardy precluded sentencing on both
the murder and felony murder convictions, and imposed its sentence only for the
felony murder conviction. This, in turn, created the problem that double jeopardy
precludes sentencing on felony murder and robbery, where the felony murder conviction is
predicated on the robbery. See Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999) (It is a violation of Article I, Section 14 of the
Indiana Constitution, if, with respect to either the statutory elements of the challenged
crimes or the actual evidence used to convict, the essential elements of one
challenged offense also establish the essential elements of another challenged offense.) (emphasis in
If sentence had been imposed for murder instead of felony murder, this would
present no issue, and West has not raised any double jeopardy issue on
appeal. Because life without parole was proper based on the felony murder
conviction, however, any double jeopardy issue raised by the trial courts imposing sentence
for felony murder and robbery as a Class B felony is of no
practical consequence and we will not attempt to untangle this knot. Cf.
Roop v. State, 730 N.E.2d 1267, 1270 n.2 (Ind. 2000).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
On these same grounds, West also urges that his May 1 statement
to police should be suppressed. Having determined that West was not in
custody for purposes of the Fourth Amendment, however, he was not entitled to
Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
West fails to allege how the admission of this evidence helped the
States case against him. At trial, West objected to its admission on the
basis of relevancy, in addition to Miranda grounds. However, he made no
argument at trial why this evidence was irrelevant and we do not address
this argument here.
West also argues that the admission of the blood smear retrieved from
his horn was error. This issue was discussed substantially in Part I,
and Wests objection to the admission of this evidence at trial was based
on Pirtle. Conceding relevancy, West argues only that, given the lack of
other blood evidence found in the Blazer, the blood smear is inconclusive.
Evidence need not be conclusive to be relevant. In any event, [ii]t
is well settled that a party may not object on one ground at
trial and rely on a different ground on appeal. Ajabu v. State,
693 N.E.2d 921, 941 n.26 (Ind. 1998). Thus, any argument not based
on the Pirtle issue is waived for purposes of review.
West also argues, Finding someone to be an expert should not relieve
the court from its obligation to find the evidences relevance outweighs its prejudicial
value under IRE 401/403. [Br. App. 33] That may be true, but
West neither discusses this evidences relevance nor weighs its probative value against the
prejudice of its admission. The contention is therefore waived for failure to
make a cogent argument. See Ind. Appellate Rule 8.3(A)(7) (now App. R.
46(A)(8)); Ford v. State, 718 N.E.2d 1104, 1107 n.1 (Ind. 1999).
West makes a number of other claims with respect to Warrens testimony,
none of which have merit. West argues for the application of the
incredible dubiosity doctrine. Even if West had objected to Warrens testimony, the
incredible dubiosity rule is limited to a sole witness who presents inherently contradictory
testimony that is equivocal or the result of coercion, combined with a complete
lack of circumstantial evidence of the appellants guilt. Lee v. State, 735
N.E.2d 1169, 1173 (Ind. 2000).
West also argues that the standard for probable cause to issue a search
or arrest warrant should be applied to the decision whether to allow testimony
from a witness such as Warren. West cites no authority for this
proposition, which is contrary to the basic proposition that the trier of fact
Finally, West argues for application of the corpus delicti rule, which provides that
a crime cannot be proven solely on the basis of a confession.
Workman v. State, 716 N.E.2d 445, 447-48 (Ind. 1999). In order for
a confession to be introduced into evidence in Indiana, this rule provides that
independent evidence must establish (1) the occurrence of the specific kind of injury,
and (2) someones criminal act as the cause of the injury. Stevens
v. State, 691 N.E.2d 412, 424-25 (Ind. 1997). It is obvious that
the corpus delicti doctrine does not apply here. There is no doubt
that a crime occurred or that a criminal act was the cause of
West does not contend that these convictions violate double jeopardy, and we
do not address this issue.
West cites no authority for the proposition that a sentence might
be manifestly unreasonable in view of the level of proof of a defendants
The offenses for which West was arrested included, among other things,
burglary, theft, possession of cocaine, battery, and criminal confinement. [R. 322-23]