Indiana Asks the State Supreme Court to Reverse its Elkhart 4 Decision

Late last week Indiana Attorney General Greg Zoeller and Elkhart Country Prosecutor Curtis Hill announced that they had asked the Indiana Supreme Court to have a new hearing in the case of the Elkhart Four.  Mr. Zoeller and Mr. Hill want the Indiana Supreme Court’s September 2015 ruling reversed.  Needless to say those who support Blake Layman, Levi Sparks, Anthony Sharp and Jose Quiroz have met this development with frustration, concern and anger.

Mr. Hill and Mr. Zoeller explained their reasoning in a 13-page petition for rehearing (read the brief here — State Asks for Re-hearing). One of the main arguments Mr. Zoeller and Mr. Hill put forward is that “the jury’s verdict here is consistent with the rationale and the language of the statute as applied by the case law.” In their brief Mr. Hill and Mr. Zoeller argue:

“the Legislature clearly has stipulated Indiana’s policy to be that any person causing death while committing certain inherently violent felonies that have the proven potential to cause death can be guilty of murder even though that person may not have acted with the specific intent to kill.”

You will notice that we placed the last statement in quotations – because Mr. Hill and Mr. Zoeller got the quote from the 1982 Indiana Supreme Court ruling in the case of Curtis Lee Head vs. State.  There are two important things about this quote that must be mentioned. First the State of Indiana lost the felony murder section of the Head vs. State case, and secondly Justice Pivarnik, who wrote the above quote, used it while arguing against the decision of the majority.  So this quote which Mr. Zoeller and Mr. Hill are relying on to support their argument does not reflect the opinion of the majority of the judges in the Head vs. State case.

The claim, Mr. Hill and Mr. Zoeller put forward, that the minority opinion in the Head vs. State case reflects the intent of the Indiana Legislature is very concerning. To understand the reason of that concern all one needs to do is read the text of the Indiana felony murder law.  The law states,

A person who kills another human being while committing or attempting to commit arson, burglary, child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape, robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor or carjacking . . . commits murder, a felony.

Levi Sparks did not kill Danzele Johnson . . . Blake Layman did not kill Danzele Johnson . . . Jose Quiroz did not kill Danzele Johnson . . . Anthony Sharp did not kill Danzele Johnson . . . the homeowner killed Danzele Johnson in self defence. These are the facts of the case and it is these facts that have made this case so controversial.

In the Head vs. State ruling the members of the Indiana Supreme Court spent much of their time looking at the felony murder laws in other states. This website has also spent much time looking at other state felony murder laws and we now find ourselves at a place where this becomes very important.

Four states do not have felony murder laws, leaving 46 states with felony murder laws. The most recent relevant examination of state felony murder laws comes from the 2012 West Virginia case of Davis vs. Fox and Sands ( see our story on this case here ). In that case the West Virginia court noted that the majority of states with felony murder laws do not allow those laws to be applied when a co-felon is the one killed (as happened in the Elkhart 4 case).

There are some states that do allow the law to be applied when a co-felon is killed. Take for example Oklahoma’s felony murder law which states,

Felony Murder

Taking the life of a human during the commission (or attempted commission) of one of the following crimes: murder, shooting a firearm with the intent to kill, intentionally discharging a firearm into a building, forcible rape, robbery with a dangerous weapon, kidnapping, escape from lawful custody, first-degree burglary, first-degree arson, unlawful distribution of a controlled dangerous substance, or trafficking in illegal drugs.

An offender commits first-degree murder if he, or any other person kills a human as a result of the commission (or attempted commission) of the crimes listed above.

Notice how Oklahoma clearly defines their felony murder law to ensure that all who read it understand that it applies if “any other person” kills. Compare this to the Indiana law, which states, “A person who kills”. The Oklahoma law provides for responsibility if anyone kills while the Indiana law seems to suggest only a felon can kill for felony murder responsibility to apply.  If the Elkhart 4 case happened in Oklahoma it would be very clear the law as written would apply in this case.  In Indiana that clarity is not evident given the way the law is written.  It is this lack of clarity that has caused this case to become so controversial.

In fact that lack of clarity played a central role in the hearing before the Indiana Supreme Court. In minute 26:58 of the hearing the state lawyer argued that the “language of the statute is clear”.  Justice Massa interrupted the lawyer and challenged him saying,

“ Well it’s clear when read in conjunction with our holding in Palmer. I think Counsel for the Appellant {Elkhart 4} is arguing that we ought to construe the statute according to its plain meaning, ‘kills’ means ‘kills’ and if the legislature wanted it to be broader then they should use language like ‘contributes to the death’”.

Justice Massa’s challenge highlights the failure of the new argument put forward by Mr. Hill and Mr. Zoeller. Hill and Zoeller know they can’t rely on the text of the felony murder law as written in Indiana. The text is not clear like the Oklahoma text. In fact the text of the Indiana law is more similar to how the law in West Virginia is written, and West Virginia is a state that would not have charged the Elkhart 4 with felony murder.  So instead Mr. Zoeller and Mr. Hill are relying on how the courts have applied the Indiana felony murder law.  This is why in the brief Mr. Hill and Mr. Zoeller keep referring to the “intent of the legislature as applied in case law.”  Since how the law was written and the fact of the Elkhart 4 case do not jive Mr. Zoeller and Mr. Hill are relying on the past and how court in Indiana interpreted (and as we have argued expanded) the felony murder law.

The most important case for this is State vs. Palmer ( see our article here ). The Palmer case is an example of the extreme harm and evil that humans can inflict on each other. The actions of Mr. Palmer were so horrendous and dangerous that the court felt that it constituted felony murder, even though Mr. Palmer did not kill. The Palmer decision was a split decision with two judges dissenting stating “Palmer here did not kill another human being; his co-perpetrator was killed by a law enforcement official. Under the terms of the felony murder statute, Palmer is not guilty of felony murder”. But Justice Dickson and the majority disagreed stating,

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.”

It was Justice Dickson who wrote for the majority in Palmer.  The same Justice Dickson was one of the current judges on the Indiana Supreme Court who supported the unanimous Elkhart 4 decisions.  In the Layman/Sparks decision the court wrote,

“ we affirm the continued validity of Palmer and its progeny, the facts in those cases are significantly different from the facts here. In Palmer, for example, although the defendant engaged in kidnapping—one of the felonies designated in the felony murder statute—he did so while pointing “a loaded and cocked handgun at the head of [an officer] and thereafter fired it, injuring the officer.” Palmer, 704 N.E.2d at 126. We explained that “[s]uch 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 [his accomplice’s] death.” . . .

Aside from the fact that in each case a co-perpetrator was fatally injured by someone other than the defendant, the common thread uniting Palmer, Jenkins, and Forney was that an armed defendant engaged in violent and threatening conduct, either as a principle or an accessory, that resulted in the “mediate or immediate cause” of a co-perpetrator’s death. By contrast the record here shows that when the group broke and entered the residence of the homeowner intending to commit a theft—a burglary—not only were they unarmed, but also neither the Appellants nor their cohorts engaged in any “dangerously violent and threatening conduct.” Jenkins, 726 N.E.2d at 271. There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was “clearly the mediate or immediate cause” of their friend’s death. Palmer, 704 N.E.2d at 126. Thus, while the evidence is sufficient to sustain a conviction for the underlying burglary, it is not sufficient to sustain a conviction for felony murder in the perpetration of a burglary. Accordingly, we reverse Layman’s and Sparks’ convictions for felony murder.

Read the full Elkhart 4 decisions — Layman and Sparks ISC Decision and Sharp ISC Decision

So the Indiana Supreme Court used Palmer to expand the definition of felony murder.  It was not the Legislature that expanded the definition.  The Indiana Supreme Court did this because of the horrific details of the Palmer case.  They found similar horrific details in other rulings such as Jenkins and Forney . . .but they did not find those details in the Elkhart 4.  Instead they found,

There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was “clearly the mediate or immediate cause” of their friend’s death.

Now the Indiana Supreme Court is using the case of the Elkhart Four to place some limits on their expansion of the felony murder law. The Indiana Supreme Court is saying that cases with similar facts to Palmer are considered felony murder, cases with similar facts to the Elkhart 4 do not constitute felony murder.

Perhaps if Mr. Zoeller wishes to have an expanded felony murder law he should go to the legislature and propose a new felony murder law, constructed like the Oklahoma law.  After all it was Mr. Zoeller who in an interview with the Indianapolis Star on September 18, 2015 stated “Legislature — and not the courts — is the proper forum for changing our statutes.”  If Mr. Zoeller truly believed his words he would approve of the Elkhart 4 Indiana Supreme Court decision.  He would approve because the spirit of the Elkhart 4 ruling aligns more with the way the Legislature wrote the felony murder law than the way the Indiana Supreme Court interpreted the law in the Palmer ruling.

Mr. Zoeller and Mr. Hill relied on the dissenting opinion in Head vs. State to support them in their Elkhart 4 brief. The majority in that case wrote,

The prevailing American attitude toward the felony-murder doctrine was accurately summarized by the Supreme Court of Pennsylvania: [W]e do want to make clear how shaky are the basic premises on which [the felony murder rule] rests. With so weak a foundation, it behooves us not to extend it further and indeed, to restrain it within the bounds it has always known.”

Perhaps ‘restrain(ing)’ the felony murder rule is just what the Indiana Supreme Court did in September 2015 when they ruled that Blake Layman, Levi Sparks and Anthony Sharp are not convicted murderers.

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