Is Curtis Hill Using the Case of The Elkhart 4 To Expand the Felony Murder Rule in Indiana?

On Thursday September 12, 2013 Elkhart County Judge Terry Shewmaker sentenced Levi Sparks to 50 years in prison.  Blake Layman and Anthony Sharp both got 55 years in prison.  Charged under Indiana’s controversial felony murder rule these teens (Layman and Sparks were both under 18 at the time of the incident) were convicted of murdering their friend Danzele Johnson during a botched burglary after the homeowner shot at the boys killing Johnson and wounding Layman.  Another teen, 16-year-old Jose Quiroz, plead guilty in December 2012 and is serving 45 years.  This case has been controversial from the start because:

  • The teens (who we call The Elkhart 4) did not fire the deadly shots
  • The Elkhart 4 believed they were entering an unoccupied house
  • Levi Sparks never entered the house (he was across the street at the time)
  • The Elkhart 4 had no intent for their friend to die.  In fact they mourn his death
  • Three juveniles were charged and sentenced as adults

Judge Shewmaker during his sentencing felt the need to present a legal justification for the harsh charges and sentences in this case.  He possibly did this to address the active community debate about the validity of the charges and convictions.  As a legal justification the judge referenced Jesse Palmer v. State of Indiana.  This case was a result of the June 24, 1993 killing of Robert Williams.  Here is a basic description of the case based on the Indiana Supreme Court ruling published January 7, 1999.

On June 24, 1993 Robert Williams was on parole.  Knowing he was going to be arrested on a new drug charge Williams asked his friend Jesse Palmer to go with him to see his parole officer.  When they got to the meeting correctional officers tried to arrest and handcuff Williams.  Jesse Palmer pulled out a gun and held the gun to the head of Officer James Gehrich.  According to the record Palmer said, “I am going to blow you away.  Do what I tell you.”  Robert Williams told Jesse Palmer to kill Officer Gehrich.  Officer Gehrich heard Jesse Palmer cock the gun.  So Officer Gehrich grabbed the gun barrel trying to push it away from his head.  Robert Williams tried to help Jesse Palmer get control of the gun.  Jesse Palmer fired the gun wounding Officer Gehrich in the hand.  Gehrich then called over to a fellow officer “I’m already shot, you’ve got to shoot him.  We don’t have any choice.”  The fellow officer shot killing Robert Williams.  Jesse Palmer fled the scene.  Jesse Palmer was arrested and charged with the felony murder of Robert Williams and the kidnapping and attempted murder of Officer Gehrich.

The Indiana Supreme Court upheld the conviction of Jesse Palmer for felony murder stating [A] person who commits or attempts to commit one of the offenses designated in the felony-murder statute is criminally responsible for a homicide which results from the act of one who was not a participant in the original criminal activity. Where the accused reasonably should have… foreseen that the commission of or attempt to commit the contemplated felony would likely create a situation which would expose another to the danger of death”

The case of Palmer v. State comes down to the argument about the defendant being able to foresee that their actions could lead to the death of another.  The court makes the following statement about this In the present case, the defendant engaged in kidnapping, one of the felonies designated in the felony-murder statute. He pointed a loaded and cocked handgun at the head of Officer Gehrich and thereafter fired it, injuring the officer. Such conduct clearly raised the foreseeable possibility that the intended victim might resist or that law enforcement would respond, and thereby created a risk of death to persons present. This felonious conduct was clearly “the mediate or immediate cause” of Williams’s death.”

There are significant differences between the case of Jesse Palmer and the case of The Elkhart 4.  In both cases the defendants were engaged in committing a crime.  This blog has already clearly stated that The Elkhart 4 need to be held to account for the burglary.  What is different is how the defendants reacted when it the possibility of someone dying became foreseeable.  Jesse Palmer chose to hold a loaded gun to the head of an officer.   He then shot the officer in the hand.  He did this in front of other officers.  It is hard to make an argument that he did not understand that his actions were escalating this situation, making someones death a real possibility.  The Supreme Court uses Jesse Palmer’s escalation as proof of “foreseeable possibility” of death.

In the case of the Elkhart 4 there was no escalation.  These teens broke into a house they believed was empty.  Without warning the homeowner began shooting.  The teens ran away.  Some hid in a closet with their dying friend.  Compare that to Jesse Palmer who made conscious decisions to escalate this situation, which ended up, deadly.  Jesse Palmer pulled out a loaded gun.  Jesse Palmer held the gun to an officer’s head.  Jesse Palmer threatened the officer.  Jesse Palmer struggled with the officer.  Jesse Palmer shot the officer.  At each one of these points Jesse Palmer could have dropped his gun and surrendered. If he had done this Robert Williams would not have been killed. On the other side the Elkhart 4 broke into a house were shot at and ran away.    When the possibility of someone dying became clearly foreseeable The Elkhart 4 did the only thing they could do . . .they tried to deescalate the situation by leaving.

In the Palmer ruling the Supreme Court of Indiana cited five other cases.  In each case the Supreme Court upheld a conviction for felony murder.  These cases are as follows:

  •  Sheckles v. State – The perpetrator went into a bar and used force in an attempt to collect money.  A gunfight broke out between the bartender and the perpetrator.  An innocent bar patron was killed in the gun fire.
  • Reaves v. State – The victim was ill and was confined to a hospital bed in his house.  During the robbery the victim’s niece was thrown to the ground, her hip was broken, and then she was thrown onto the victim.  The niece was then sexually assaulted while lying on the victim.  She was left on the victim all night until help came the next morning.  The victim suffered clotting from having his niece thrown onto him and having her stay there all night.  The clotting caused a pulmonary embolism, which led to the victims death.
  • Pittman v. State – During a robbery the victim was stabbed three times.  The victim died two weeks later.  Doctors connected his death to the initial assault.
  • Sims v. State – The victim, a 92-year-old man, was beaten with a brick during a burglary.  The victim died a few weeks later after surgery to repair wounds suffered in the assault.
  • Thomas v. State – The victim had a history of heart problems and was recovering from surgery.  The perpetrators forced him to the floor and handcuffed him.  The victim died of a heart attack
  • Booker v. State – The victim died after being knocked to the floor and mauled by the perpetrators.

These cases are horrific examples of the damage humans can do to each other, but they also show another important thing.  In each one of these cases the convicted person did something to escalate after committing the initial felony.  If you go into a bar to use violence to collect money and then you get into a gunfight there is a “foreseeable possibility” that someone could die.  If you stab someone three times there is a “foreseeable possibility” that someone could die.  If you beat someone with a brick there is a “foreseeable possibility” that someone will die.  All the cases cited in the Palmer case have the convicted person escalating by using person to person violence after the initial felony.  This is what eventually led to death.  This did not happen in the case of The Elkhart 4.

In the Palmer v. State case there was a judge who did not agree with the decision.  This judge notes that in each of the cases listed above the defendant inflicted some sort of physical harm to the victim, which led to their death.  The dissenting judge argues that because Jesse Palmer did not injure his co-accused, Robert Williams, he was not responsible for the murder.  The descending judge noted that if the murder conviction were to be  thrown out Jesse Palmer would still serve 108 years in prison as opposed to the 118 years he was sentenced to.

The case of Jesse Palmer v. State of Indiana was used as justification for the conviction of The Elkhart 4.  We are very concerned that the clear establishment of “foreseeable possibility” as defined in the case Palmer case is not evident in the case of The Elkhart 4.  Curtis Hill is arguing that the very fact that these teenagers committed burglary is the “foreseeable possibility” in this case.  It seems clear to us that the case law that has been cited does support Mr. Hill’s claim.  What other acts did The Elkhart 4 commit to cause the escalation?

We believe that Curtis Hill is using this case to expand the definition of Felony Murder in the State of Indiana.  If the case of the Elkhart 4 stands on appeal then the court will be throwing out the very clear “foreseeable possibility” that they demanded and articulated in Palmer v. Indiana decision.

Given our belief that the felony murder rule is too broad, and gives prosecutors like Curtis Hill far to much leeway in charging already, we are concerned by this attempt to further expand the definition of this law.  Expansion of the felony murder law will place more power in the hands of the political elite making mounting a effective defence more difficult for the accused.   Expanding the definition of the felony murder rule will further reduce the requirement for the state procecutor to prove the facts of the case.

The case of The Elkhart 4 is unique because the victim of the crime was one a conspirator in the burglary.  Unlike Palmer, the rest of the Elkhart 4 did not escalate the situation after the burglary instead they tried to leave, their only option at de-escalating what was happening.  These are very different circumstances than those found in Palmer v. State.

We are very concerned with the legal precedent the case of The Elkhart 4 might set.   We encourage legal scholars, lawyers and everyday citizens to get involved to try and stop what we perceive to be a power grab by the Prosecutors Office.


Palmer v. State


Booker v. State

Thomas v. State

Sims v. State

Pittman v. State

Reeves v. State:

Sheckles v. State: