Lowrimore v. State

• Decision Date: 26 May 2000
• Docket Number: No. 49S00-9806-CR-315.,49S00-9806-CR-315.
• Parties: Steven R. LOWRIMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

728 N.E.2d 860

Steven R. LOWRIMORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 49S00-9806-CR-315.

Supreme Court of Indiana.

May 26, 2000.

Ann M. Skinner, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. BOEHM, Justice.

Steven Lowrimore was convicted of murder, felony murder, robbery as a Class A felony and criminal confinement as a Class B felony. He was sentenced to life imprisonment without parole for the murder and felony murder counts, fifty years for robbery, and twenty years for criminal confinement. In this direct appeal he contends that (1) his right to a speedy trial under Criminal Rule 4 was violated; (2) the State engaged in prosecutorial misconduct and violated Brady v. Maryland when it failed to timely disclose that a witness had filed a petition for postconviction relief; (3) the trial court erred in admitting marijuana and pipes into evidence; and (4) double jeopardy precludes his convictions and sentences for both murder and felony murder. We vacate the felony murder and criminal confinement convictions, reduce the robbery conviction to a Class C felony, and otherwise affirm the judgment of the trial court.

Factual and Procedural Background

Lowrimore shared a house in Indianapolis with Rebecca Lowe and Robert Malcom. In late August of 1995, Debra Lawyer, who worked as a dancer at a topless bar, also moved into the home. Within days of moving in, Lawyer was dead.

According to Lowe, she, Malcom, and Lowrimore were conversing on the evening of August 31. Lowrimore reported that he wanted money from Lawyer. Lowe suggested that Lowrimore simply ask for the money, but the three also discussed the possibility of grabbing Lawyer from behind and taking the money by force. Because robbing Lawyer would likely lead her to report the crime to police, Lowrimore stated, "No matter how we look at it, she has to die." At approximately 6:30 a.m. the next morning, Lowe and Lowrimore spoke in the living room while Malcom slept in the bedroom and Lawyer slept beside the bed. Lowe suggested that she sit on Lawyer and hold a pillow over her face. Lowrimore and Lowe waited until Lawyer was lying on her back. Lowe then "went down on [Lawyer's] chest and held the pillow over her face," while Lowrimore sat on Lawyer's legs and held one of her arms. Lawyer's scream wakened Malcom, and Lowrimore told Malcom to instruct Lowe not to let up. Malcom testified to essentially the same facts. He said that he awoke to find Lowe sitting on top of Lawyer holding a pillow over Lawyer's face while Lowrimore held Lawyer's feet.

After several minutes Lawyer was silent but Lowrimore told Lowe that he thought she had just passed out. Lowrimore then wrapped a cord around Lawyer's neck "and brought her straight up, [making] . . . several snapping noises." Lowrimore retrieved cash from Lawyer's underwear. Later that day, Lowrimore, Lowe, and Malcom drove to McCormick's Creek State Park where they left Lawyer's body in a secluded area. Two weeks later, Lowe told police of the murder and took them to the body. Due to decomposition, the pathologist could not determine the specific cause of death.

Lowrimore, Lowe, and Malcom were charged with murder, felony murder, conspiracy to commit murder, robbery, conspiracy to commit robbery, and criminal confinement. Two months later, the State entered into a plea agreement with Malcom and filed an information seeking the death penalty against Lowrimore, alleging that Lowrimore had intentionally killed during the commission of a robbery. The State later entered into a plea agreement with Lowe. In addition to Lowe and Malcom, Lawrence Bordenkecher testified at trial that in the first half of September of 1995, Lowrimore had visited his apartment where he stated, "I killed someone. And not only that, it was a woman and not only that, it was a titty dancer." James Burke, who was housed in the same cellblock of the Marion County Jail as Lowrimore in June of 1996, testified that Lowrimore showed him a picture of Lawyer and said that he had "killed this stupid bitch." He recounted that he had held Lawyer's legs while a "fat girl" got on top of her. Finally, another inmate, James Chelf, testified that in July of 1997, Lowrimore had told him that he had killed a girl named "Cricket"—Lawyer's nickname—and had broken her neck. In February of 1998 a jury found Lowrimore guilty of murder, felony murder, robbery, and criminal confinement. He was found not guilty of the remaining charges. The jury recommended a sentence of life imprisonment without parole, and the trial court followed that recommendation.

I. Criminal Rule 4

Lowrimore first contends the trial court violated his Criminal Rule 4 right to a speedy trial. Rule 4(B)(1) provides that an incarcerated defendant who moves for a speedy trial is to be discharged if not brought to trial within seventy calendar days of the motion. It excepts from the seventy-day period any time attributable to a continuance or delay by the defense, court congestion, or an emergency. At his initial hearing on September 22, 1995, Lowrimore orally requested a speedy trial and the trial court set the case for trial by jury on November 27, sixty-six days after the speedy trial request.

On November 20, the State filed an information seeking the death penalty. Criminal Rule 24 requires appointed counsel in death penalty cases to consist of two attorneys meeting the qualifications of that Rule. The public defender who had been appointed to represent Lowrimore on September 27 was not qualified under Criminal Rule 24. The trial court vacated the November 27 trial setting, finding that "an emergency exists." Lowrimore objected to the continuance and later moved for discharge.

Lowrimore first asserts that he is entitled to choose his speedy trial right "over the rule requiring two Criminal Rule 24 attorneys." Of course Lowrimore has the right to represent himself and to retain counsel. But if he chooses to proceed with court-appointed counsel the language of Criminal Rule 24 is mandatory and requires trial courts in death penalty cases to appoint two attorneys meeting the specified educational and experience levels. The only exceptions are a defendant's retention of private counsel, Crim. R. 24(B), or a competent defendant's knowing, intelligent, and voluntary waiver of his right to counsel in a timely and unequivocal manner, see Sherwood v. State, 717 N.E.2d 131, 137 (Ind.1999)

. Neither of these exceptions applies here. Thus, the trial court was required to appoint two Criminal Rule 24 qualified attorneys. This requirement became, as of November 20, a part of the legal environment of the case in the same sense as the trial court's schedule. It is a factor to be considered in evaluating the pace at which the case can proceed. The requirement of Criminal Rule 24 counsel is, of course, principally for the defendant's benefit, but not solely. The State has a strong interest in the proper conduct of every trial and that concern is maximized in death penalty litigation. Thus, a defendant accepting appointed counsel has no right to opt out of Criminal Rule 24.

Lowrimore contends that, even if Criminal Rule 24 applies, no court emergency existed because there was no evidence that the Criminal Rule 24 qualifications could not be met by the November 27 trial date. A trial court's finding of congestion is presumed to be valid and need not be contemporaneously explained or documented. Clark v. State, 659 N.E.2d 548, 552 (Ind.1995). If a trial court makes findings in response to a Motion for Discharge, its findings are reviewed under a clearly erroneous standard. Id. Although the face of the rule refers to "congestion of the court," which is understood by most to refer to demands imposed by other cases on the court's docket, our decisional law has interpreted court congestion more broadly to include "the unavailability of essential personnel or physical facilities." Loyd v. State, 272 Ind. 404, 408, 398 N.E.2d 1260, 1265 (1980). In addition, Criminal Rule 4(B)(1) allows trial courts to order a continuance upon a finding of "an emergency." In this case the trial court made the following finding: "To comply with Crim. R. 24, the trial judge had a duty to appoint two capital-qualified counsel. . . . This obligation created the existence of an emergency making it necessary for the trial judge to order a continuance of the trial date." Whether characterized as an emergency or court congestion resulting from the unavailability of essential personnel, i.e., two Criminal Rule 24 qualified attorneys, the trial court's findings are reviewed under the clearly erroneous standard enunciated in Clark.

Lowrimore suggests that the appointment of Criminal Rule 24 qualified counsel could have been made and trial held within a week. The trial court's conclusion was to the contrary and is supported by the record. We do not believe that even the most capable attorneys could prepare a death penalty case involving forty witnesses and over 100 pieces of evidence in a week, even by use of depositions and other materials generated by predecessor counsel. Moreover, no counsel had yet prepared for the expected testimony of Malcom, which had just been secured pursuant to his plea agreement. And no mitigating evidence had been investigated because, before November 20, this was not a death penalty case.¹ It also seems impossible that the reduced caseloads required for death penalty counsel by Criminal Rule 24(B)(3) could have been met on the requested timetable. Finally, the trial court's own schedule would obviously be affected by conversion of the case to a death penalty proceeding. As the State argues on appeal, a capital case takes considerably longer to try because of the need for extended voir dire before the presentation of...