[Copyrighted Material Omitted]
Appeal from the Marion Superior Court, No. 49G02-1004-MR-029733. The Honorable Robert Altice, Judge.
ATTORNEYS FOR APPELLANT: Matthew D. Anglemeyer, Ruth Ann Johnson, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana.
David, Justice. Dickson, C.J., Rucker, and Rush, J.J., concur. Massa, J., concurring in result.
On Direct Appeal from a Sentence of Life Imprisonment Without Parole
Michael Inman was convicted of murder, murder while committing or attempting to commit the offense of robbery (" felony murder" ), robbery, and unlawful possession of a firearm by a serious violent felon (" SVF" ) and sentenced to life imprisonment without the possibility of parole (" LWOP" ). On direct appeal, he claims that Indiana Code Section 35-50-2-9(l) (2008) is unconstitutional because it does not require that the weighing of aggravators and mitigators be done beyond a reasonable doubt, and he raises issues related to the admission of evidence, the use of an exhibit, an instruction on felony murder, the provision of a definition, the denial of surrebuttal, and the sentence. We affirm Inman's conviction and sentence.
Facts and Procedural History
On April 9, 2010, Inman went to the Fountain Square jewelry store of Dave Pedigo. When Inman arrived at the store, Pedigo showed him a $2000 ring from a case near the front of the store. A customer placed Inman at the store at 4:45 p.m. Besides this customer and Inman, there were no other customers in the store at that time. Shortly before 5:00 p.m., a friend of Pedigo's entered the store and found Pedigo dead near a safe in the store's back room.
Pedigo had been shot in the head above his left ear from less than a foot away. The bullet was later determined to have been fired from Pedigo's own Rossi .38 revolver. Additionally, there was evidence of blows to Pedigo's chest and the back of his head. Investigators observed no signs of a struggle in the back room, although in the front of the store a counter was disturbed and a vase had been knocked to the floor.
Later the same day, Inman gave his girlfriend Katie Sowders a ring taken from Pedigo's store. He explained his broken nose to her as the result of getting hit playing basketball.
The following day, police arrived at Inman's apartment. Not yet a suspect in Pedigo's killing, Inman was a suspect in an investigation into an April 3, 2010, robbery of a Circilla lingerie store. Inman instructed Sowders not to open the door. When the police walked away, Inman and Sowders exited the apartment. A neighbor observed Inman toss a gun into a bush. Still nearby, police apprehended Inman, located the gun, and discovered nine rings from Pedigo's store in his pocket. The gun was determined to be Pedigo's Rossi revolver.
When asked by the lead homicide detective assigned to Pedigo's case about his whereabouts the day of the murder, Inman failed to mention his presence at Pedigo's store. Further, he claimed that he bought the nine rings and the gun for twenty-five dollars on April 9, 2010, from " a guy named Wayne Head." Efforts to locate Head were unsuccessful.
The State charged Inman with murder,
felony murder, robbery, and unlawful possession of a firearm by an SVF; filed an information alleging Inman to be a habitual offender; and filed a request for life sentence without parole. In its request, the State alleged as aggravating circumstances that Inman (1) intentionally killed Pedigo while committing or attempting to commit robbery; and (2) killed Pedigo while on parole.
On May 17, 2012, a jury found Inman guilty of murder, felony murder, and robbery. Inman waived jury trial on the remaining charges, and the trial court found Inman guilty of unlawful possession of a firearm by an SVF and to be a habitual offender. Additionally, the trial court found that pursuant to Ind. Code § 35-50-2-9(l), the State had proven the charged aggravating circumstances beyond a reasonable doubt, and that the aggravating circumstances outweighed the mitigating circumstances. The trial court sentenced Inman to LWOP for murder.
On June 13, 2012, the trial court conducted a sentencing hearing on the remaining counts. Finding that Inman's conviction for felony murder merged with his murder conviction, the trial court vacated Inman's conviction for the former. The trial court then sentenced Inman to four years for robbery as a class C felony and to ten years for unlawful possession of a firearm by an SVF as a class B felony, ordered both sentences to run concurrently with Inman's LWOP sentence, and enhanced Inman's LWOP sentence by thirty years after determining him to be a habitual offender.
Pursuant to Ind. Appellate Rule 4(A)(1)(a), Inman appeals directly to this Court. First, he argues that Ind. Code § 35-50-2-9(l) is unconstitutional because it does not require that the weighing of aggravating circumstances and mitigating circumstances be done beyond a reasonable doubt. Second, he claims the trial court erred under Ind. Evidence Rule 404(b) by admitting evidence that Inman was a suspect in another case. Third, he asserts that the trial court also erred under Ind. Evidence Rule 404(b) by allowing the jury to hear Inman refer to a " criminal spree." Fourth, he contends that he was improperly denied a change of judge and a grant of a mistrial after he so moved following the State's provision of an ordered list of exhibits and sponsoring witnesses to the trial court and not the defense.
Fifth, he posits that the trial court erred by giving a jury instruction about the robbery and murder being a " continuous transaction." Sixth, he maintains that the trial court erred in providing the jury with a definition of the word " asportation." Seventh, he insists that the trial court erred in denying him surrebuttal in closing argument to address the State's contention that Pedigo was on his knees when he was shot. Eighth, he reasons that he is entitled to a new trial on account of cumulative error. Ninth and finally, he propounds that his LWOP sentence should be reduced to a term of years pursuant to Ind. Appellate Rule 7(B). We will take each in turn.
Standard of Review
" A sentence of life without parole is subject to the same statutory standards and requirements as the death penalty." Krempetz v. State, 872 N.E.2d 605, 613 (Ind. 2007). Following a finding of guilty by the jury, before life imprisonment without parole for murder can be imposed, the
State is required to prove beyond a reasonable doubt at least one aggravating circumstance listed in subsection (b) of the LWOP statute. Ind. Code § 35-50-2-9(a);
Krempetz, 872 N.E.2d at 613. In making its sentencing determination, the trial court must find not only that the State has proven the existence of an alleged aggravator beyond a reasonable doubt, but also that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. Ind. Code § 35-50-2-9(l);
Krempetz, 872 N.E.2d at 613.
We have mandatory and exclusive jurisdiction over a criminal appeal where the sentence is life without parole. App. R. 4(A)(1)(a); Cain v. State, 955 N.E.2d 714, 718 (Ind. 2011). However, our standard rules of appellate review apply just as they do in death penalty cases. Cain, 955 N.E.2d at 718.
I. Indiana Code Section 35-50-2-9(l)
Ind. Code § 35-50-2-9(l) provides:
Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
(2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.
Inman contends that Ind. Code § 35-50-2-9(l) is unconstitutional because it does not require that the weighing of aggravating circumstances and mitigating circumstances be done beyond a reasonable doubt.
However, this Court has held otherwise. As we discussed in Ritchie v. State,
[t]he Supreme Court has now made clear that statutory aggravators in Indiana's Death Penalty law are the functional equivalent of elements of a crime, and must be found by a jury beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Ring applied to death penalty jurisprudence the doctrine first developed in Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435, that the Sixth Amendment right to jury trial requires that the jury make any finding that " exposes the defendant to a greater punishment." We believe the pivotal inquiry under Ring and Apprendi is whether exposure to punishment is increased, not whether the punishment should or should not be imposed in a given case . As Ring explained: " If a State makes an increase in a ...