ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael C. Keating Jeffrey A. Modisett
Evansville, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
TIMOTHY R. FARBER, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 82S00-9801-CR-34 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable William J. Brune, Judge Cause No. 82D02-9504-CF-139
SHEPARD, Chief Justice.
A jury found appellant Timothy Farber guilty of murder and
robbery. The trial court sentenced him to life imprisonment
without parole for the murder and thirty years for the robbery, the
sentences to be served concurrently. Farber now raises two issues on direct appeal:
II. Whether the court's sentencing order properly found the
aggravating circumstance necessary to impose life
On March 28, 1995, Guy Minnis, lead investigator in the Russell homicide, received a call from Farber's wife Shannon explaining that Farber had implicated himself in the murder. At the instruction of the police, Shannon obtained an admission of
murder from Farber while wearing a body microphone hooked into the
police station. In a later interrogation at the police station,
Farber learned that the police had overheard his conversation with
Shannon and he confessed to the murder. Farber also aided police
in recovering various items of evidence, like the murder weapon and
the articles he had stolen from Russell.
Thus, the question Farber seeks to litigate has already been adjudicated. An appellate court's determination of a legal issue is binding in subsequent appeals concerning the same case and substantially similar facts. Cass County v. Gotshall, 681 N.E.2d
227 (Ind. Ct. App. 1997). This direct appeal grows out of the same
case as the earlier interlocutory appeal, and we will not
II. Was the Sentencing Order Adequate?
The trial court did not find that Farber "committed the murder
by intentionally killing the victim while committing or attempting
to commit . . . [r]obbery." Ind. Code Ann. § 35-50-2-9(b)(1) (West
Supp. 1998). Instead, the trial court found that "the [defendant]
did intentionally commit the offense of robbery beyond [a]
reasonable doubt in the commission of [a] murder." (R. at 2.)
Thus, we remand to the trial court to determine if the defendant
intentionally killed in the course of a robbery. If the trial
court so finds, the sentence of life imprisonment without parole
may be imposed.
Finally, Farber urges that the trial court improperly considered as an aggravator that the offense was committed while he "had been" on probation. (Appellant's Br. at 20.) That the crime was committed while the defendant was on probation for a felony is a proper aggravator listed in Indiana Code § 35-50-2-9(b)(9)(C). However, the sentencing transcript does not clearly reveal whether the judge found that Farber was on probation at the time of the murder or whether the judge meant that Farber had previously been on probation. The timing of Farber's probation and its relationship to the sentence imposed also needs attention on remand.See footnote 1
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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