Thomas v. State
| Decision Date | 01 November 1990 |
| Docket Number | No. 45A03-8907-CR-279,45A03-8907-CR-279 |
| Citation | 562 N.E.2d 43 |
| Parties | Denise THOMAS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Marce Gonzalez, Jr., Appellate Div., Crown Point, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Denise Thomas (Thomas) was found guilty by a jury of murder and felony murder. The events leading to Thomas' conviction began on May 14, 1985, when she and three friends, Paula Cooper, Karen Corder, and April Beverly devised a scheme to rob an elderly neighbor, Ruth Pelke (Pelke). Thomas and her accomplices gained entrance to the home through the ruse of obtaining information about Bible classes. Once inside the home, Pelke sustained fatal injuries when she was pushed to the floor and repeatedly stabbed and struck on her head with a vase. After the murder, the girls searched Pelke's home. They took money and a car which aided their escape.
Because Thomas was 14 years old when she participated in the robbery and murder, the juvenile court in a waiver hearing held on June 28, 1985 transferred jurisdiction of Thomas' case to Lake County Criminal Court. On July 5, 1985, the state filed an information charging Thomas on two counts: murder and felony murder. Jury trial began on September 9, 1985. However, it ended in a mistrial. The retrial commenced on November 4, 1985 and the jury returned a guilty verdict on both the murder and felony murder charges. At sentencing, the court imposed a reduced sentence of 35 years on only the felony murder charge. After the denial of Thomas' motion to correct errors, this direct appeal was initiated.
Thomas presents for our review five issues which we restate as follows:
1. Whether the pre-printed waiver order containing a stamped signature of the judge is sufficient to transfer Thomas to adult criminal court.
2. Whether the evidence produced at trial is sufficient to support the felony murder conviction.
3. Whether the trial court erred when it excluded statements of co-participants after a motion in limine.
4. Whether the trial court erred when it excluded statements of co-participants at the sentencing hearing.
5. Whether the co-participants' statements are newly discovered evidence which warrant a new trial.
The Indiana legislature and courts have examined juvenile court proceedings to ensure that procedures are established and not exercised in a procedurally arbitrary manner. Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320, 326; IC 31-6-1-1 et seq. Unlike criminal proceedings, juvenile proceedings are of a general civil nature. The burden upon the state is to establish by a preponderance of the evidence that juvenile jurisdiction should be waived. In the Matter of Tacy (1982), Ind.App., 427 N.E.2d 919, 922. Because of the critical importance of determining whether certain juveniles are beyond the rehabilitative philosophy and resources of the juvenile system, the waiver hearing requires procedural regularity sufficient to satisfy the basic requirements of due process and fair treatment. Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; Summers, supra, 230 N.E.2d at 326.
Thomas was waived to adult criminal court pursuant to IC 31-6-2-4(c). A presumption in favor of waiver to adult criminal court operates under IC 31-6-2-4(c) when the juvenile is charged with what would be murder if committed by an adult. Gerrick v. State (1983), Ind., 451 N.E.2d 327; Trotter v. State (1981), Ind., 429 N.E.2d 637. The court must find that:
(1) the child is charged with an act that would be murder if committed by an adult;
(2) there is probable cause to believe that the child has committed the act; and
(3) the child was ten (10) years of age or older when the act charged was allegedly committed;
unless it would be in the best interests of the child and of the safety and welfare of the community for the child to remain within the juvenile justice system.
Thomas challenges the waiver order because it is a "fill-in-the blank" preprinted form containing a stamped signature of the judge. We disagree with Thomas' facial attack of the waiver order and hold that the findings of fact and record support Thomas' waiver to adult criminal court.
When reviewing a claim of the sufficiency of a waiver order, we will not weigh the evidence or judge the credibility of witnesses. We look only to the evidence most favorable to the state and reasonable inferences to be drawn therefrom, considering both the waiver hearing and the findings of fact given by the court. Goad v. State (1987), Ind., 516 N.E.2d 26, 27; Smith v. State (1984), Ind., 459 N.E.2d 355, 360; McDowell v. State (1983), Ind., 456 N.E.2d 713, 715. Furthermore, the waiver order and record must allow a meaningful review which is not based on assumptions about the state of mind of the judge. Cartwright v. State (1976), 168 Ind.App. 517, 344 N.E.2d 83, 87. We recognize that conclusory statements or mere recitation of statutory requirements without further explanation will not suffice. Duvall v. State (1976), 170 Ind.App. 473, 353 N.E.2d 478, 480. We have held pro forma waiver orders which merely recite pre-defined standards derived from the statute or cases or orders supported only by a prosecutor's opinion to be insufficient. Cartwright, supra, 344 N.E.2d at 86; Atkins v. State (1972), 259 Ind. 596, 290 N.E.2d 441, 443.
However, Thomas' waiver order, although reciting statutory standards, is supported by a record which demonstrates that the court made a conscientious determination that the case should not be handled in the juvenile system. A juvenile judge may not be relieved of its duty to independently and conscientiously determine the appropriateness of waiver. Duvall, supra. In Thomas' case, the record demonstrates that her due process rights were accorded during the waiver hearing. The record shows that the juvenile court contemplated the evidence that Thomas was charged with murder and felony murder, that probable cause existed, and that she was 14 years old when the crime was committed. This is all that is required for waiver pursuant to IC 31-6-2-4(c).
Thomas next alleges that the juvenile judge failed to find facts pursuant to IC 31-6-2-4 because a stamped signature rather than the handwritten signature of the judge appears on the waiver order accompanied with the court clerk's initials underneath the signature imprint.
As we stated in Ashwell v. Miller (1913), 54 Ind.App. 381, 103 N.E. 37, "[A] signing or subscribing may legally be done by another for the party to such instrument, if done at his request, and ... it may be done with pen and ink, pencil, stamp, stencil, typewriter or type...." James v. State ex rel. Com'r. of Motor Vehicles (1985), Ind.App., 475 N.E.2d 1164, 1166. The signature, however affixed, is clothed with a presumption that the certifying officer stamped it as his signature or that it was stamped with his authority, unless the record affirmatively shows evidence to the contrary. James, supra, at 1166. We find the juvenile referee's and court reporter's similar testimony stating that they did not discuss the evidence of the waiver hearing with the juvenile judge insufficient to rebut this presumption.
Furthermore, we find the juvenile judge has authority to delegate some of the findings of fact responsibilities to a juvenile referee. This limited authority is consistent with IC 31-6-9-2, which provides:
A court juvenile referee shall perform duties assigned to him by the court. He shall submit his findings and recommendations in writing to the juvenile court, which shall enter such order as it considers proper.
IC 31-6-9-2 balances the heavy burden of juvenile court caseloads against the sole authority of the juvenile judge to find facts in juvenile proceedings which results in the delegation of court responsibilities to juvenile referees. In Thomas' case, the juvenile referee presided over the waiver hearing and proposed findings of fact which the juvenile judge subsequently adopted consistent with IC 31-6-9-2.
Thomas contends that the evidence is insufficient to support the finding that she had the intent to commit robbery, which is the underlying felony for her felony murder conviction. We do not weigh the evidence or judge the credibility of witnesses to determine whether the evidence supports the conclusion that defendant was guilty beyond a reasonable doubt. We consider only that evidence most favorable to the state and all reasonable inferences to be drawn therefrom. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, 738.
In proving felony murder, the state need show only that defendant intended to commit the underlying felony. Martinez Chavez, supra, at 738; Ford v. State (1988), Ind., 518 N.E.2d 1082, 1084. Additionally, a person may be convicted of felony murder even though it was her accomplice who killed the victim. Martinez Chavez, supra, at 735; Huspon v. State (1989), Ind., 545 N.E.2d 1078, 1081; Splunge v. State (1988), Ind., 526 N.E.2d 977, 982, cert. denied --- U.S. ----, 109 S.Ct. 3165, 104 L.Ed.2d 1028. An accomplice is a person who aids another person to commit an offense and will be treated as if she committed the same offense. IC 35-41-2-4.
Although Thomas contends that she merely witnessed the events and did not participate, we find that there is sufficient evidence to show that she participated in the robbery. At trial, the evidence revealed that Thomas was present at April Beverly's porch when the girls devised their plan to rob Pelke. Thomas heard Cooper's statement that she would "rob and beat up the old lady." The state presented testimony of a cellmate of Thomas' which revealed that she admitted going to Pelke's house to rob her. Thomas'...
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