McBroom v. State

• Decision Date: 22 November 1988
• Docket Number: No. 73S00-8606-CR-599,73S00-8606-CR-599
• Parties: William Robert McBROOM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 725

530 N.E.2d 725

William Robert McBROOM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 73S00-8606-CR-599.

Supreme Court of Indiana.

Nov. 22, 1988.

John B. Wilson, Jr., Christine J. Kline, Nashville, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant William Robert McBroom was convicted of murder, Ind. Code Sec. 35-42-1-1 (Burns 1985 Repl.), and criminal confinement, a class B felony, Ind. Code Sec. 35-42-3-3 (Burns 1985 Repl.). The trial court sentenced him to thirty years for murder and twenty years for confinement, the terms to run concurrently.

On direct appeal, McBroom raises three issues:

I. Whether the trial court erred when it imposed a concurrent sentence for the confinement conviction because the confinement charge was added after a successful post-conviction proceeding;

II. Whether the evidence is sufficient to support the murder conviction; and

III. Whether the prosecutor's conduct deprived the defendant of a fair trial and requires reversal.

McBroom and Sandra Cunningham married and had two children. Following a divorce from McBroom, Cunningham married David Ott, with whom she also had two children. Cunningham later divorced Ott and moved to Ohio with all four children.

In 1981, Ott obtained a court order requiring Cunningham to bring his two children to the human services office so that he could meet with them. Cunningham telephoned McBroom at his home in Florida and told him that Ott was attempting to take custody of her children. She also told McBroom that during her marriage to Ott, he had raped McBroom's daughter.

McBroom made immediate preparations to leave Florida. He borrowed a car and drove to Ohio with Jim Pitstick and Ronald Roberts. After the three men arrived at Cunningham's home, she showed McBroom photographs of Ott. She drove McBroom past the human services office where the meeting between Ott and his children was to take place. McBroom registered at a local hotel under the name "Robert Duncan" and wrote a fictitious address and license plate number on the registration card.

On the afternoon of September 21, 1981, Ott arrived at the human services office. He did not see his children because Cunningham refused to comply with the court order. As Ott left the office, McBroom and Roberts confronted him in the parking lot. McBroom told Ott that someone wanted to talk to him about his children. After driving to the hotel, the three men and Pitstick got into McBroom's car and drove away.

During several hours of traveling, Ott drank a few beers with McBroom and his companions. McBroom said Ott began to brag of his sexual exploits. After crossing the border from Ohio into Indiana, McBroom stopped the car and ordered Ott and Roberts out. McBroom, who also exited the car, instructed Pitstick to drive the car a short distance and then return. As Roberts sat on the side of the highway, McBroom and Ott walked down an embankment.

McBroom told Ott that he was the father of the girl Ott had raped. Then McBroom fatally shot Ott. McBroom returned to the side of the highway, got into the car and drove with Roberts and Pitstick to Florida. Enroute, McBroom telephoned Cunningham and informed her the "problem was taken care of."

I. Additional Charges Following Post-Conviction Relief

In April 1982, McBroom pled guilty to the murder of Ott. The trial court accepted the plea and imposed a thirty-year sentence. Following a hearing in 1985, a post-conviction court vacated the conviction because McBroom had been inadequately advised before his plea. The State refiled the murder charge and filed two additional charges: criminal confinement and robbery. The jury found McBroom not guilty of robbery but convicted him of murder and confinement.

McBroom contends his conviction and sentence for criminal confinement should be vacated because the sentence violates Rule PC 1, Sec. 10, Ind. Rules of Procedure for Post-Conviction Remedies. When McBroom filed his petition in December 1984, the rule read:

(a) If prosecution is initiated against a petitioner who has successfully sought relief under this Rule and a conviction is subsequently obtained, or

(b) If a sentence has been set aside pursuant to this Rule and the successful petitioner is to be resentenced,

then the sentencing court shall not impose a more severe penalty than that originally imposed.... ¹

McBroom argues that the confinement conviction is an additional penalty the State sought because he obtained post-conviction relief. Although the twenty-year sentence for confinement is to run concurrently with the thirty-year sentence for murder, he maintains that two sentences are greater than one sentence even if they are concurrent.

Section 10 implements fundamental notions of due process. Linthicum v. State (1987), Ind., 511 N.E.2d 1026. It assures petitioners that they will not be punished for seeking post-conviction relief. Ballard v. State (1974), 262 Ind. 482, 318 N.E.2d 798. The language of the rule prohibits a trial court from imposing "a more severe penalty than that originally imposed." The issue in this case is whether a concurrent twenty-year sentence for the additional confinement conviction is a more severe penalty.

In the double jeopardy context, this Court has held a second conviction is an additional punishment even if that conviction results in a sentence which runs concurrent with the first conviction. Hall v. State (1986), Ind., 493 N.E.2d 433. In that case, the Halls received concurrent terms of five years for reckless homicide and two years for child neglect. We held that the conviction for child neglect violated the double jeopardy clause because it punished the Halls twice for the same continuous pattern of deprivation that resulted in reckless homicide. Id. at 436.

Section 10 applies not only to the offense for which the defendant was initially charged, but also to other crimes flowing from the occurrences that gave rise to the initial charge. Bates v. State (1981), Ind., 426 N.E. 404; Ballard, 262 Ind. at 502, 318 N.E.2d at 810. ² McBroom's criminal confinement charge arose from the same circumstances that gave rise to the murder charge. The State accepted McBroom's plea to murder and did not pursue the confinement charge. The prosecutor testified that he reviewed the case before retrial and decided to file the confinement charge even though he was not aware of any new facts. Section 10 prohibits the State from adding a charge after a post-conviction action.

We hold that the concurrent twenty-year sentence for the criminal confinement conviction is a more severe penalty within the meaning of Rule PC 1, Sec. 10. The conviction and sentence for confinement must be vacated.

II. Sufficiency of the Evidence

McBroom claims the evidence is insufficient to sustain his conviction for murder. He concedes that he shot Ott, but he seeks to have the murder conviction reduced to voluntary manslaughter. He claims he killed Ott in sudden heat.

When this Court reviews the sufficiency of the evidence, it considers the evidence and all reasonable inferences most favorable to the verdict. We will neither reweigh the evidence nor judge the credibility of the witnesses to determine if there was substantial probative evidence to prove each element beyond a reasonable doubt.

The distinguishing factor between murder and manslaughter is sudden heat. Ind. Code Sec. 35-42-1-3(b) (Burns 1985 Repl.). Sudden heat is anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary man; it prevents deliberation and premeditation, excludes malice, and renders a person incapable of cool reflection. Utley v. State (1986), Ind., 491 N.E.2d 200, 202. When a defendant asserts he acted with sudden heat, the State bears the burden of negating the presence of sudden heat beyond a reasonable doubt. Smith v. State (1987), Ind., 502 N.E.2d 485.

Five days before the killing, McBroom received a telephone call from Cunningham telling him that Ott had raped McBroom's daughter. Shortly after the call, McBroom drove to Ohio, registered at a hotel under a false name, and learned Ott's destination. He armed himself and waited for Ott in the parking lot of the human services office. McBroom lured Ott into his car and drove for several hours before stopping. At some point, one of McBroom's companions tied Ott's hands together behind his back.

When McBroom stopped the car, he ordered Pitstick to drive a short distance and return. McBroom led Ott down the embankment and shot him. Although he testified he shot Ott after Ott laughed about raping McBroom's daughter, the evidence of premeditation and deliberation is sufficient to support the jury's verdict for murder.

III. Prosecutorial Misconduct

McBroom argues that the prosecutor's misconduct denied him a fair trial. This Court subjects instances of alleged prosecutorial misconduct to a two-part analysis. First, we determine whether the prosecutor engaged in misconduct. Second, we judge whether the misconduct placed the defendant in grave peril. Maldonado v. State (1976), 265 Ind. 492, 355 N.E.2d 843.

A. McBroom's Presence in Jail. McBroom claims the following passage from the prosecutor's final argument is prejudicial misconduct: "The evidence is that this man, this defendant ... he's right where he belongs and...