Farris v. State
| Citation | 753 N.E.2d 641 |
| Decision Date | 28 August 2001 |
| Docket Number | No. 02S00-0006-CR-386.,02S00-0006-CR-386. |
| Parties | John D. FARRIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Mark Olivero, Fort Wayne, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
John Farris was convicted of aiding the murder of Nicole Barrone and aiding the aggravated batteries of Ronald Foreman, Janice Foreman, and Brenda Washington. He was sentenced to an aggregate term of 155 years. On direct appeal, Farris presents six issues for review, which we restate as five: (1) whether the prosecution of Farris following a mistrial violated the prohibition against double jeopardy; (2) whether the trial court erred in permitting the introduction of a prior deposition; (3) whether the trial court erred in denying Farris' motion for a directed verdict and whether the convictions were based on sufficient evidence; (4) whether the trial court erred in finding that aiding murder and aiding aggravated battery are "crimes of violence" and therefore subject to consecutive sentencing; and (5) whether the trial court's sentencing order constituted cruel and unusual punishment. We affirm the trial court.
In June 1997, John Farris and Richie Foreman were arrested and charged with the robbery of Tom's Super Value Store in Fort Wayne. Farris was released on bond and Richie cooperated with police and planned to testify against Farris in a trial set for late January 1998.1
Dorothy Foreman was Farris' girlfriend and Richie's sister. On January 16, 1998, Brenda Washington, Richie's ex-wife, and Dorothy were at a bingo parlor when Farris arrived with his nephew, Sonny Woods, and ordered Dorothy at gunpoint to accompany him to Farris' apartment. Later that night, Danny Littlepage arrived at the apartment. Farris told Littlepage that he wanted him to go to the Foreman family home, where Richie lived, and "take care of" Richie and Washington because of the problems they had caused Farris. Farris handed Littlepage a handgun and threatened to shoot Littlepage if he did not complete this assignment. Littlepage and Woods then drove to Foreman's house and parked in an alley approximately one block away.
Around midnight, nine people were in Foreman's living room: Washington and her three children, Washington's niece Nicole Barrone, Richie's brother Ronald, Richie's mother Janice, and Dorothy's two children. Richie was not home. Littlepage, cloaked in a blue bandana but still identifiable to the victims, burst through the door and ordered everyone to the floor. Littlepage then fired four shots, hitting Ronald in the neck, Washington in the neck, Barrone in the stomach, and Janice in the face. Ronald, Washington, and Janice survived, but after three painful operations, Barrone died.
Littlepage and Woods returned to Farris' apartment and Littlepage gave the gun to Woods to return to Farris. The next day, Farris told Dorothy that her mother, Janice, had been shot, but refused to allow her to leave his apartment to check on her mother or her children.
After Farris learned that he was a suspect in the shootings, he called the detective investigating the case to deny his involvement in the incident and to deny forcing Dorothy to come with him on the night of the shootings. Farris also said that he had "a cap" for Richie. A week later, Farris again called the police station, this time to criticize the detective for releasing Littlepage from custody. Farris also said that Littlepage's days were "numbered." After the detective warned Farris that if anything happened to Littlepage, he would be the prime suspect, Farris laughed and said that he was not returning to Fort Wayne. He added that he had friends and family who would take care of Littlepage for him.
On March 19, 1998, Farris was pulled over in a traffic stop north of South Bend. A license check revealed a warrant for his arrest. When he was ordered out of the car, Farris drove off and led police on a high speed car chase into South Bend. Ultimately, Farris crashed his car, attempted to escape on foot, and was apprehended. After his arrest, Farris gave a videotaped statement to police in which he admitted giving the gun to Littlepage on the night of the shootings but claimed that Littlepage asked for the weapon and that he did not know what Littlepage planned to do with it.
The information charged Farris with one count of "aiding murder," three counts of "aiding aggravated battery," and being a habitual offender.2 On the second day of Farris' trial, the State called Littlepage to the stand. The following exchange then occurred in the presence of the jury:
The Court: Would you raise your right hand for me, sir? Do you solemnly swear the testimony you shall give shall be the truth, the whole truth and nothing but the truth, so help you God?
Littlepage: I don't feel like testifying. I had already told the prosecutor.
The trial court then dismissed the jury and convened a bench hearing to determine if Littlepage would testify.
During the hearing, Littlepage said that he understood that he was under subpoena and that his plea agreement required him to testify truthfully against Farris, but he nonetheless was invoking his Fifth Amendment right because he was afraid of being killed in prison for being a snitch.3 Farris moved for a mistrial, arguing that the prosecutors knew that Littlepage would not testify and still called him to the stand. Farris argued that Littlepage's declaration in front of the jury that he would not testify placed Farris in "grave peril" and was therefore reversible error. The prosecutor responded that he did not expect Littlepage to refuse to testify. The prosecutor said he had met with Littlepage several times before trial to review his testimony and only on the morning of trial had Littlepage indicated that he would not implicate Farris in the shooting. The prosecutor stated that he had believed that Littlepage would testify to the facts of the incident but would not say that Farris had threatened him or that the threat had caused him to commit these crimes.
The trial court found that the prosecutor did not know that Littlepage would invoke the Fifth Amendment. Nevertheless, the trial court ruled that his doing so in front of the jury required a mistrial. Farris' second trial was scheduled to begin the next week. At no time did Farris object that the second trial would be barred by double jeopardy.
The day before the second trial, the trial court held a hearing to determine whether Littlepage would testify. When Littlepage again claimed a Fifth Amendment right, the trial court ordered him to testify, he refused, and the trial court found him in contempt. At this hearing, Farris asked Littlepage if his pretrial statements to police were true and Littlepage disclaimed all statements that he had given regarding the case. The prosecutor then asked the trial court to declare that Littlepage was an unavailable witness and asked to offer Littlepage's sworn deposition testimony into evidence pursuant to Indiana Rule of Evidence 804(a)(2). Farris objected on the ground that he was not personally present at the deposition, even though his counsel was present. The trial court found that Farris was given the opportunity to examine Littlepage at the deposition and that Littlepage was an "unavailable" witness. The court then ruled that Littlepage's deposition and any prior inconsistent statements would be admitted at the trial.
On the second day of Farris' second trial, in the presence of the jury, the State called Littlepage as a witness, asked that he be declared unavailable, and asked permission to enter Littlepage's deposition into evidence pursuant to Indiana Rule of Evidence 804(a)(2). Farris renewed his objection based on his lack of ability to confront Littlepage at the deposition. The trial court overruled Farris' objection and allowed the State to read Littlepage's deposition into evidence.
The jury convicted Farris of aiding murder and three counts of aiding aggravated battery. The jury also found that Farris was a habitual offender. The trial court sentenced Farris to sixty-five years for aiding murder, enhanced by thirty years for being a habitual offender, and three twenty-year sentences for each of the aiding aggravated battery convictions. Although each of the crimes took place in a single criminal episode, the trial court found that the crimes of aiding murder and aiding aggravated battery are "crimes of violence" under Indiana Code section 35-50-1-2, and could be imposed consecutively. An aggregate sentence of 155 years imprisonment resulted.
Farris alleges that the prosecutor knew that Littlepage would invoke his Fifth Amendment right against self-incrimination if called to the stand but nevertheless called Littlepage to expose the jury to the claim of privilege. From this factual premise, Farris contends that his second trial violated the double jeopardy provision of the United States Constitution.
The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. Although a defendant's motion for a mistrial constitutes "a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact," United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the United States Supreme Court has provided a narrow exception that bars a second trial after a mistrial "where the governmental conduct in question is intended to `goad' the...
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