James v. State
| Decision Date | 29 November 1994 |
| Docket Number | No. 64S00-9404-CR-310,64S00-9404-CR-310 |
| Citation | 643 N.E.2d 321 |
| Parties | Vincent JAMES, a/k/a, Victor James, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Donald W. Pagos, William Janes, Sweeney, Dabagia, Donoghue, Thorne, Janes & Pagos, Michigan City, for appellant.
Pamela Carter, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., for appellee.
A jury trial resulted in the conviction of appellant of Felony Murder. He originally received the death sentence. However, on appeal, this Court found error in the bifurcated sentencing hearing and remanded the cause to the trial court for new sentencing. James v. State (1993), Ind., 613 N.E.2d 15.
Upon remand, the State dismissed its request for the death penalty and the trial court proceeded to sentence appellant to the presumptive forty (40) years, enhanced by thirty (30) years by reason of a finding that he was a habitual offender. The sentence was further enhanced by twenty (20) years by reason of: "1) commission of the murder was in perpetration of an armed robbery, 2) criminal history of said defendant." The facts of the crime are set forth in our original opinion cited above and will not be repeated here except as necessary to render this decision.
Appellant claims it was error for the trial court to use an element of the offense as an aggravating circumstance. Appellant was charged with felony murder by reason of the fact he had killed the victim in the perpetration of a robbery. Appellant takes the position that the commission of the robbery was an element of the felony murder charge; therefore, it cannot be used for enhancement. Appellant cites Adkins v. State (1990), Ind., 561 N.E.2d 787, and concedes that in that case this Court stated that although the basic elements of the crime cannot be used as aggravating circumstances, the trial judge did not use the fact of the shooting alone as an aggravating circumstance, but relied on the nature of the shooting rather than the mere fact that it had occurred.
The State takes the position that the robbery need not be an armed robbery to support the felony murder charge. Therefore, the fact that appellant was armed was an additional element that could be used as an aggravator. It is true as alleged by appellant, that the trial judge was not specific in setting forth his reasons for using the armed robbery as an aggravator. The record in this case indicates he might well have done so inasmuch as appellant had claimed in his statement to police that during the robbery his gun was accidentally discharged, causing the death of the victim.
However, a State Police blood-splatter expert testified that at the time the victim received the fatal shot to her head her head was within a few inches of the floor. Thus, the State's theory was that the shot was not accidental but that the victim had been methodically executed after the robbery. Notwithstanding the fact this evidence was in the record, the trial judge did not choose to recite it as his reason for the enhancement. If we assume for the sake of argument that the trial court's stated enhancement that the robbery was an armed robbery is not sufficient, we still have the statement that he was enhancing because of appellant's criminal record, which is a valid enhancement.
Appellant alleges that the trial judge's enhancement by reason of his prior criminal record was again an already-used factor in the establishment of his habitual offender status. It is true that the State alleged and proved two prior separate felony convictions of appellant in order to establish the habitual offender status. However, the record reflects a much more extensive criminal record than the two felonies relied on for the habitual offender status. After appellant was released from prison in 1988, "he went on to continue criminal conversions, carry a pistol without a permit, his probation was revoked in November of 1989, committed a battery in November of 1989." The court also had before it an extensive juvenile record plus offenses that were committed many years after the offenses relied upon by the State for the habitual charge. There is obviously plenty of evidence in this record to support the trial...
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