Atteberry v. State

• Citation: 911 N.E.2d 601
• Decision Date: 07 July 2009
• Docket Number: No. 49A02-0808-CR-705.,49A02-0808-CR-705.
• Parties: Jimmy ATTEBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

911 N.E.2d 601

Jimmy ATTEBERRY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0808-CR-705.

Court of Appeals of Indiana.

July 7, 2009.

Michael R. Fisher, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Jimmy Atteberry ("Atteberry") was convicted in Marion Superior Court of murder and Class A felony rape. Atteberry appeals and presents three issues, which we reorder and restate as follows:

I. Whether the trial court erred in admitting Atteberry's statement to the police into evidence;

II. Whether the trial court erred in admitting testimony that Atteberry's DNA was included in a national DNA database; and

III. Whether the evidence is sufficient to support his conviction for rape.

Concluding that no evidentiary error occurred, but that the State did not present sufficient evidence to prove the charged crime of rape, we affirm in part, reverse in part, and remand with instructions to vacate Atteberry's rape conviction.

Facts and Procedural History

In 1985, nineteen-year-old L.L. lived with her boyfriend in an apartment on Prospect Street in Indianapolis. At approximately 10:30 p.m. on Saturday, September 21, 1985, L.L. told her boyfriend that she was going to a nearby store to get some snacks. L.L.'s boyfriend gave her some money and the keys to their car. L.L. left, and her boyfriend went to bed. When he awoke Sunday morning, he noticed that L.L. had not returned home. L.L.'s boyfriend then telephoned L.L.'s friends and family to see if they knew where she was, but no one had seen her. L.L.'s father telephoned the police and reported that his daughter was missing.

Later that day, a boy found L.L.'s bank book near railroad tracks and took the book to the police. The police told L.L.'s family about the book, and L.L.'s family and her boyfriend began to look for her near the railroad tracks where the bank book was found. They found L.L.'s personal papers, including old paystubs, and other items with L.L.'s name strewn along the railroad embankment for almost a quarter of a mile. L.L.'s brother eventually spotted the car L.L. had been driving. The car was parked in an alley next to a building near the tracks. When he went to investigate, he saw his sister's body lying near the car. Without disturbing the scene, he returned to tell his parents not to go near the car and then telephoned the police.

The police arrived at the scene and confirmed that L.L. was indeed dead. Further investigation revealed that L.L. had been stabbed twice in the chest, once on each breast, which caused her to bleed into her lungs. L.L. had also been strangled with such force that her larynx had been crushed and the muscles behind her esophagus had been crushed against her spine. L.L.'s fingernails were torn in an apparent attempt to stop her attacker. L.L.'s fatal injury was the result of repeated blows to her head from a concrete block which the police found broken into pieces in the alley. The blows from the block crushed L.L.'s skull and eye socket. Blood and hair found in L.L.'s fingers indicated that she had put her hands over her head in an attempt to defend herself. But the blows from the block were so forceful that a ring on her finger was flattened.

L.L.'s body was fully clothed, but further examination revealed that she had been sexually assaulted. Specifically, L.L.'s anus had been injured, and semen stains were found in her underwear. However, her vagina did not show any signs of injury. Semen was not found in L.L.'s anus or vagina.

After L.L.'s body was discovered, Indianapolis Police Department detectives Louis Christ ("Detective Christ") and Tom Minor ("Detective Minor") went to the apartment building where L.L. had lived to interview tenants. They eventually spoke with Michael Bender ("Bender"), who worked for the Salvation Army. Bender told the detectives that a man named Jerry Darnell ("Darnell") had lived in his apartment for the past few months. Darnell also worked for the Salvation Army and had been living at the Salvation Army mission until he moved in with Bender. After L.L.'s body had been found, Darnell had taken his belongings and moved out of Bender's apartment without notice.

Because of this coincidence, Detective Christ was interested in speaking with Darnell, but was unable to locate him. When Detective Christ changed positions at the police department, the case lay dormant without further leads. As the years passed, technology advanced, and DNA identification became possible. In October 2006, the police collected DNA from the semen stains found in L.L.'s underwear. This DNA was then placed into CODIS, a national computer database that compares DNA samples taken from crime scenes with DNA samples taken from convicted felons.¹ The CODIS comparison indicated that the DNA taken from the stains in L.L.'s underwear likely matched that of defendant Atteberry, who lived in St. Louis, Missouri. Sergeant Mark Albert ("Sergeant Albert"), who worked for the Indianapolis Police Department's "cold case" unit, was assigned to investigate the case.

Sergeant Albert went to St. Louis and obtained a warrant from a local judge authorizing him to take a DNA sample from Atteberry. Sergeant Albert, accompanied by Detective Tom Carroll of the St. Louis Metropolitan Police Department, went to a welding shop in St. Louis where Atteberry worked. When they met Atteberry, Sergeant Albert stated, "This is Detective Tom Carroll of the St. Louis Metropolitan Police[,] and I am Sergeant Albert." Tr. p. 683. Atteberry agreed to leave the "loud, very dark, and very hot" welding shop and go to a police station to speak with the detectives. Tr. p. 684. At the station, Atteberry was taken to a room, and the police explained his Miranda rights to him, both verbally and in writing. Sergeant Albert read part of the Miranda waiver form to Atteberry as follows: "I've been informed by Sergeant Mark Albert, that's me, of the Metro Police Department that ... wants to question me about ... background information okay." Ex. Vol. III, State's Ex. 2A, p. 254. The waiver form was produced by the St. Louis Metropolitan Police Department, and contained the heading "Metropolitan Police Department—City of St. Louis." Ex. Vol. III, State's Ex. 1. The form had a blank line for the officer's name, followed by "of the St. Louis Metropolitan Police Department." Id. Sergeant Albert testified that he drew a line through the words "St. Louis."

After his Miranda rights were explained to him, Atteberry agreed to speak with the police. The police asked Atteberry about the prior rape and sex crime convictions which he had committed in Arkansas, Illinois, and Missouri. They also talked about Atteberry's use of aliases. When asked about Indiana, Atteberry admitted that he had worked at the Salvation Army in Indianapolis during the warm weather months of 1985. Atteberry also admitted that he had lived in Indianapolis with a man named "Mike" and used the alias "Jerry Darnell." Ex. Vol. III, State's Ex. 2A, pp. 276, 278. Toward the end of the interrogation, Sergeant Albert told Atteberry that he was investigating L.L.'s murder and that he had a warrant to obtain a DNA sample from Atteberry. Shortly thereafter, Atteberry requested an attorney and stopped answering questions. Subsequent DNA testing confirmed by an overwhelming probability that the DNA collected from the semen stains in L.L.'s underwear belonged to Atteberry.

On August 3, 2007, the State charged Atteberry with murder and Class A felony rape. Prior to trial, Atteberry filed a motion to suppress his statement to the police, claiming that police deception rendered the waiver of his Miranda rights involuntary. This motion was denied. A jury trial was held on June 16, 17, and 18, 2008. Immediately before the trial began, the State moved to amend the charging information to allege that Atteberry had committed criminal deviate conduct instead of rape. Atteberry objected, and the State withdrew its motion when the trial court indicated that it was not inclined to grant the State's request. At trial, Atteberry again objected to the admission of his statement to the police, but his objection was overruled. At trial, Atteberry also argued that any testimony indicating that his DNA was contained in the CODIS database was inadmissible evidence of prior misconduct. The trial court ultimately permitted the State's DNA witness to testify that Atteberry's DNA was profile was in a DNA database at the "national level." Tr. pp. 459-60, 466.

The jury found Atteberry guilty as charged, and at a sentencing hearing held on July 9, 2008, the trial court sentenced Atteberry to sixty years for his conviction for murder and to fifty years for his conviction for rape. The court ordered the sentences to be served consecutively. Atteberry now appeals.

I. Statement to Police

Atteberry claims that police deception rendered the waiver of his Miranda rights involuntary and that the trial court therefore erred in admitting his statement into evidence. When a defendant challenges the admissibility of his confession, the State must prove that the defendant's statement was voluntary. Pruitt v. State, 834 N.E.2d 90, 114 (Ind. 2005).² In evaluating a claim that a statement was not given voluntarily, the trial court is to consider the totality of the circumstances, including the crucial element of police coercion, the length of the interrogation, its location, its continuity, and the defendant's maturity, education, physical condition, and mental health. Id. at 115. On appeal, we look to the totality of the circumstances surrounding the waiver or confession, and our focus is whether the waiver or confession was free and voluntary and not induced by any violence, threats, promises, or other improper influences. Jackson v....