ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Valerie K. Boots Attorney General of Indiana
Marion County Public Defender Agency
Eric P. Babbs
Appellate Division
Deputy Attorney General
Indianapolis, Indiana
Indianapolis, Indiana Feb 17 2015, 9:58 am
IN THE
COURT OF APPEALS OF INDIANA
Lori Ann Barcroft, February 17, 2015
Appellant-Defendant, Court of Appeals Case No.
49A05-1405-CR-215
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Judge
Appellee-Plaintiff
Cause No. 49G01-1205-MR-33537
Kirsch, Judge.
[1] Lori Ann Barcroft was found guilty but mentally ill of murder 1 after a bench
trial. She appeals and raises two issues, of which we find the following
dispositive: whether the trial court committed fundamental error when it used
Barcroft’s request for an attorney, which she asserted before she made a
1
See Ind. Code § 35-42-1-1(1).
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statement to police, in its determination of whether Barcroft established that she
was insane at the time she committed the crime of murder.
[2] We reverse and remand.
Facts and Procedural History
[3] In approximately 2008 and thereafter, Jaman Iseminger (“Pastor Jaman”) was
a pastor at Bethel Memorial Church, which later changed its name to Bethel
Community Church. The church was located on Southport Road in Marion
County, Indiana. One of Barcroft’s adult sons, Jordan Asbury (“Jordan”), was
a member of the church. Barcroft and Barcroft’s father also became members
of the church, and Barcroft’s mother and other adult sons attended the church
periodically. Barcroft met Pastor Jaman in 2008.
[4] By around 2010, Jordan became concerned about Barcroft’s deteriorating
mental state, which he believed was caused by demonic possession. Jordan
asked Pastor Jaman to help Barcroft, and Pastor Jaman told Jordan that
Barcroft needed to be prayed over and hospitalized. After the death of her
father, Barcroft deteriorated further, and Jordan attempted to hospitalize her,
but she refused. On one occasion, Barcroft physically attacked a member of the
church who was larger than she. Jordan and his wife, Tamia, told Barcroft that
she could no longer live with them, as Tamia was fearful for her life. Barcroft
then moved in with her mother, Roberta Pettigrew (“Pettigrew”). In May 2012,
an incident occurred where Barcroft and Pettigrew were in the car with
Barcroft’s grandsons. Barcroft began yelling about Pastor Jaman and saying,
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“you’re all in it.” Def.’s Ex. B at 114. When Pettigrew pulled over, Barcroft
screamed to get out of the parking lot because it was near Ivy Tech, which
Barcroft said was “Mexican Mafia.” Id. Barcroft also screamed at Pettigrew
and told her that she was “yellow” and against her. Id. Pettigrew learned that
Barcroft had acquired a gun in May 2012. An officer with the Hendricks
County Sheriff’s Department told the family that Barcroft’s gun was legal.
[5] On the morning of May 19, 2012, Pastor Jaman arrived at the church at about
6:45 a.m. in order to open the church kitchen for volunteers who were working
on a restoration project in the cemetery located adjacent to the church and its
parking lot. One of the volunteers, Jeff Harris, was in the kitchen when he
noticed a woman, later identified as Barcroft, walking around the outside of the
church. Barcroft wore a black hooded sweatshirt with its hood up and dark
jeans and was carrying a backpack. Harris went outside, where Barcroft was
standing in the exterior stairwell that led to the church’s basement and Pastor
Jaman’s office and looking in through a basement window. Harris asked
Barcroft if he could help her, and Barcroft asked if Pastor Jaman was there.
[6] Harris entered the church and went down the interior stairs to the basement,
where he found Pastor Jaman in his office and told him a woman was there to
see him. Although Harris was not aware of it, Barcroft had entered the church
behind him and was waiting near the top of the interior stairs. Pastor Jaman
followed Harris back up the stairs, and after Harris passed Barcroft, she fired a
shot at Pastor Jaman. Barcroft turned, pointed the gun at Harris, and said “go,
go.” Tr. at 91. As Harris ran outside and called 911, he heard two more
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gunshots. Barcroft then ran out of the church and crossed Southport Road.
Pastor Jaman came up the exterior stairs, yelled for help, and collapsed on the
ground. Lisa Walden, another volunteer, had been sleeping in her car in the
church parking lot and heard the gunshots. Walden rushed to help Pastor
Jaman while Harris talked to the 911 operator.
[7] Officers from the Southport and Indianapolis Metropolitan Police Departments,
along with paramedics, responded to the church at approximately 7:00 a.m.
After obtaining a description of the shooter and learning the direction of her
flight, Officers John Czankusch and Daniel Ryan used a police dog in their
search. The dog alerted to an area covered with waist-high weeds beneath a
couple of trees that was located about a block from the church. Barcroft was
found hiding under a blanket of vegetation in such a manner that the officers
could only see some red fabric from her clothing or backpack. Officer
Czankusch later testified that Barcroft was so well-hidden that the officers
probably would not have found her without the police dog or unless they had
actually stepped on her. Id. at 129. Officer Ryan ordered Barcroft twice to
come out. Barcroft did not respond to the first command. When making the
second command, Officer Ryan told Barcroft that he would shoot her if she did
not come out or if she did not show her hands. Id. at 134. Barcroft then
crawled out of the vegetation and was placed in handcuffs by Officer
Czankusch. Officer Ryan asked Barcroft if she had a gun, and Barcroft said yes
and informed him that the gun was in her jacket pocket. At the time of her
apprehension, the officers noted Barcroft’s calm demeanor.
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[8] The gun that Barcroft had in her possession was determined to be a
semiautomatic .22 caliber pistol. Officers searched Barcroft’s backpack and
found an ammunition container with ninety-two live .22 caliber rounds. Inside
the backpack, they also found binoculars, personal items, and letters Barcroft
had written to her mother and her sons with a theme of saying goodbye. A
crime scene investigation discovered three fired casings inside the church -- one
on the landing of the main floor near the interior stairs, one on the interior
stairs, and one on the hallway of the main floor near the chapel entrance.
There were also three live rounds on the floor inside the church, which may
have resulted from Barcroft’s gun jamming. Detective Michael Mitchell arrived
at the scene, and Barcroft volunteered to him, “I’m the one you’re looking for.”
Id. at 171. Officers soon learned that Pastor Jaman had been pronounced dead
at Wishard Hospital from a gunshot wound to his chest.
[9] Barcroft was taken into custody and placed in an interview room, where she
initially stood with her face in the corner, raking her fingers through her hair or
across her face. Detective Mitchell entered the room, told Barcroft to have a
seat, and informed her that he was conducting an investigation. Detective
Mitchell read Barcroft her Miranda rights, and when asked if she understood her
rights, Barcroft nodded in the affirmative. Barcroft initially said it was
“probably best” for her to remain silent and get a court-appointed attorney.
Appellant’s Addendum at 3. Barcroft asked if it would be “derogatory against”
her or if it would harm her in any way if she spoke “ahead of time” to Detective
Mitchell, to which he responded no. Id. at 3-4. Barcroft then volunteered that
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she would “like to tell [Detective Mitchell] what happened” and, “I don’t want
a lawyer now, I want to give a statement.” Id. at 4. Without Detective
Mitchell asking any questions, Barcroft gave a lengthy narrative in which she
admitted to having shot Pastor Jaman. Id. at 6, 9. Near the end of this
statement, Detective Mitchell told Barcroft, “you understand that you have to
be arrested for this . . . for at least some time period.” Id. at 13. Barcroft
replied, “I do understand that. . . . I actually planned on not getting caught, but
I did.” Id. Barcroft continued, “And like I said, I’m not some sort of murderer
or anything.” Id.
[10] During her statement to Detective Mitchell, Barcroft disclosed a complex and
extensive system of beliefs and delusions that the experts later categorized as
paranoid and grandiose delusions associated with schizophrenia. Tr. at. 309-
10, 314. These began around 1999 or 2000, when Barcroft and her husband
lived in Florida and took in a pregnant woman from Colombia. When the
woman’s baby was one year old, Barcroft traveled to Colombia for the baby’s
baptism, where she met the baby’s father. Around this time, Barcroft and her
husband divorced, and Barcroft claimed to have had an affair with the baby’s
father, whom she said was named “Rafael Medina” and she called “R” or
“Rafa.” Appellant’s Addendum at 5. Barcroft believed that this man was the
wealthiest man in the world and controlled most of the world’s cocaine.
Barcroft said that in 2007, R asked her to marry him, which made her a top
queen in the Colombian mafia and also pitted Barcroft against R’s enemies,
including the Bush family. According to Barcroft, the Bush family was allied
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with the Mexican Mafia and was involved in cocaine and human trafficking.
Barcroft thought the Bush family had asked Osama Bin Laden to commit the
September 11, 2001 terrorist attacks and had tried to kill President Obama in
order to regain control of the White House. Barcroft stated she had twice
intervened to save President Obama’s life. Barcroft also said that R had a
network of satellites and that they were being watched at that moment.
Barcroft told Detective Mitchell, “I really love people and I hate what they’re
doin’ to people . . . they’re pissed off as well, ‘cause I’ve stopped the human
trafficking,” and “[t]hey want me dead.” Appellant’s Addendum at 9.
[11] Pastor Jaman was an integral part of Barcroft’s delusional scheme in that she
thought him to be in cahoots with the Bush family and the Mexican mafia. She
told Detective Mitchell that Pastor Jaman was responsible for the death of her
father in 2010; although his official cause of death was congestive heart failure,
Barcroft claimed to have received a message that Pastor Jaman had caused her
father to be smothered to death. Barcroft also believed that Jeb Bush had killed
her grandmother and that they, meaning the Bush family and Pastor Jaman,
had caused her grandson to be infected with Kawasaki disease. Barcroft further
said that Pastor Jaman had been lying about her, to make people hate her and
have her appear to be of a lower “Class” than she was “to get me killed.” Id. at
5, 11-12. During her statement to Detective Mitchell, Barcroft also made the
following statements regarding why she shot Pastor Jaman:
[12] 1. Jaman, who I shot . . . basically is the cause of all of this.” Id. at 6.
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[13] 2. “Nobody else can do this but me.” Id.
[14] 3. “I’m not a killer, by the way, but I’m the only one that can do it.”
Id.
[15] 4. [U]ntil this time, I have committed nothing. I should be a free
human being.” Id.
[16] 5. “I’m the only one that could take care of Jaman.” Id. at 9.
[17] 6. “[It] wasn’t even vengeance for mys [sic] . . . he was gonna try to
pick off my family one by one. Not himself, the people that act for
him.” Id.
[18] 7. “There are a lot of people with me that want Jaman dead, but the
problem is if they say, because he, what he keeps doing is getting
people killed. He lies and tells them I’m less than what I am. They
come to kill me. In their little groups, their teams . . . He keeps doing
this over and over and over and over again. And people keep getting
killed . . . . Jaman’s responsible for this.” Id. at 11.
[19] 8. “I was told to do this.” Id. at 12.
[20] Barcroft’s mental health records showed that she had been seen intermittently at
Midtown Mental Health in Indianapolis between 2004 and 2006 and again
between 2008 and 2010. At that time she was diagnosed with ADHD and
prescribed Adderall, although the experts who evaluated her in her current case
regarded her symptoms then as more suggestive of psychosis. Tr. at 258. Her
records also reflected that, in 2007, Barcroft presented at Halifax Medical
Center in Florida and was seen at the psychiatric ward where she claimed to
have hitchhiked from Indiana, was dehydrated, and was afraid federal agents
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were pursuing her. Tr. at 257-58. Despite these paranoid and possibly
psychotic symptoms, Barcroft was not found to meet the criteria for involuntary
commitment and only stayed at the psychiatric ward for three days. After
Barcroft’s arrest in the present case, she refused anti-psychotic medications and
claimed that she did not suffer from a mental illness. Tr. at 321.
[21] On May 21, 2012, the State charged Barcroft with murder and sought a
sentencing enhancement for the use of a firearm. On December 14, 2012, the
trial court conducted a hearing on Barcroft’s competence to stand trial and
found her not competent to stand trial. The trial court ordered a mental health
commitment, which resulted in a finding on March 10, 2013 that Barcroft had
gained competence to stand trial. On January 27, 2014, Barcroft filed a notice
of insanity defense. A bench trial was held on January 27, 2014 and March 5,
2014.
[22] Barcroft consistently maintained her delusional beliefs during interviews with
court-appointed psychiatrist Dr. George Parker, court-appointed psychologist
Dr. Don Olive, and defense psychologist Dr. Stephanie Callaway. Dr. Parker
diagnosed Barcroft with delusional disorder, while Dr. Olive and Dr. Callaway
diagnosed schizophrenia, paranoid type. Tr. at 25, 41; Court’s Ex. 1 at 85. After
evaluating Barcroft, all three of the doctors concluded that, based on her mental
disease, she was unable to appreciate the wrongfulness of her conduct at the
time she committed her offense. Tr. at 216, 278, 305. On March 14, 2014, the
trial court issued its order finding Barcroft guilty but mentally ill of murder. In
reaching its verdict, the trial court noted that expert testimony is merely
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advisory and not conclusive on the issue of sanity and stated that it relied on
demeanor evidence, Barcroft’s statement to police, and advisory opinions of the
doctors to arrive at its conclusion. Appellant’s App. at 111. On April 17, 2014,
the trial court sentenced Barcroft to fifty-five years, with forty-four years
executed in the Department of Correction, six years executed in community
corrections, and five years suspended with a two-year term of probation.
Barcroft now appeals.
Discussion and Decision
[23] Barcroft argues that the trial court erred in using her post-Miranda request for an
attorney in its determination that she was sane at the time she committed her
offense. At Barcroft’s bench trial, she did not object to the use of her statement
requesting an attorney. Errors not properly preserved during trial must
constitute fundamental error to overcome waiver. Barton v. State, 936 N.E.2d
842, 852 (Ind. Ct. App. 2010), trans. denied. Fundamental error occurs only
when the error constitutes a substantial, blatant violation of basic principles of
due process rendering the trial unfair to the defendant. Id.
[24] In Doyle v. Ohio, the United States Supreme Court held that using a defendant’s
post-arrest, post-Miranda silence to impeach an exculpatory story told for the
first time at trial violated the defendant’s due process rights. 426 U.S. 610, 619
(1976). Our Supreme Court acknowledged the Doyle rule the same year in Jones
v. State, 265 Ind. 447, 355 N.E.2d 402 (1976). Doyle rests on the fundamental
unfairness of implicitly assuring a suspect that his silence will not be used
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against him and then using his silence to impeach an explanation subsequently
offered at trial. Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008). In
Wainwright v. Greenfield, the United States Supreme Court extended the rule in
Doyle to apply to the use of a defendant’s post-arrest silence as evidence of
sanity. 474 U.S. 284, 295 (1986). The Court concluded that there was no
viable distinction between the use of the defendant’s post-arrest silence for
impeachment purposes and its use as evidence of the defendant’s sanity. Id. at
292. Rather, “[i]n both situations, the State gives warnings to protect
constitutional rights and implicitly promises that any exercise of those rights
will not be penalized.” Id.
[25] Our Supreme Court had the opportunity to address Doyle and Wainwright in
Lynch v. State, 632 N.E.2d 341 (Ind. 1994), and Wilson v. State, 514 N.E.2d 282
(Ind. 1987). In Lynch, the defendant had asserted his right not to be questioned
without an attorney present at the beginning of his interrogation. Lynch, 632
N.E.2d at 343. A tape of the interrogation was admitted for the purpose of
establishing the defendant’s state of mind shortly after he shot his father, and
the defendant’s sanity was an issue in the trial. 632 N.E.2d at 341. In Wilson,
the State elicited testimony as to the defendant’s exercise of his right to remain
silent and his right to consult with an attorney as evidence of the defendant’s
sanity. 514 N.E.2d at 283. Relying on Doyle and Wainwright, our Supreme
Court reversed both of these convictions and remanded for new trials. Lynch,
632 N.E.2d at 343; Wilson, 514 N.E.2d at 283-84. We conclude that the same
result is required here.
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[26] At trial, the State admitted the recording of Barcroft’s statement to the police.
The recording showed that, after Detective Mitchell read Barcroft her Miranda
warnings, she said it was “probably best” for her to remain silent and get a
court-appointed attorney. Appellant’s Addendum at 3. In its verdict finding
Barcroft guilty but mentally ill of murder, the trial court stated, “Initially,
Defendant requested an attorney. This suggests some comprehension of her
legal jeopardy.” Appellant’s App. at 112. Pursuant to Doyle and Wainwright and
the Indiana cases applying those cases, any use of Barcroft’s statements about
requesting an attorney as evidence of her sanity is a violation of her Due
Process rights. The trial court’s verdict explicitly found Barcroft’s request for an
attorney as evidence supporting an inference of sanity. Because such evidence
was clearly used to support the trial court’s verdict that Barcroft was guilty but
mentally ill, we find that such error constituted a substantial, blatant violation
of basic principles of due process rendering the trial unfair to Barcroft. The trial
court, therefore, committed fundamental error. We reverse Barcroft’s
conviction and remand for a new trial.
[27] Although not raised on appeal, we wish to note our concern about the
voluntariness of Barcroft’s statement to the police. After she stated that she
thought it would be best to obtain an attorney before making a statement,
Barcroft asked if it would be “derogatory against” her or if it would harm her in
any way if she spoke “ahead of time” to Detective Mitchell, to which the
detective responded no. Appellant’s Addendum at 3-4. Barcroft then volunteered
that she would “like to tell [Detective Mitchell] what happened” and, “I don’t
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want a lawyer now, I want to give a statement.” Id. at 4. Without Detective
Mitchell asking any questions, Barcroft proceeded to give a lengthy narrative in
which she admitted to having shot Pastor Jaman. Id. at 6, 9. We cannot make
a determination here as to whether or not Barcroft’s statement was voluntary,
but on re-trial, we remand to the trial court to make such a determination.
[28] Reversed and remanded.
Crone, J., concurs.
Friedlander, J., concurs with separate opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Lori Ann Barcroft, [Add Hand-down date]
Appellant-Defendant, Court of Appeals Case No.
49A05-1405-CR-215
v. Appeal from the Marion Superior
Court
The Honorable Kurt M. Eisgruber,
State of Indiana, Judge
Appellee-Plaintiff Cause No. 49G01-1205-MR-33537
Friedlander, Judge, concurring.
[29] I concur with my colleagues’ conclusion that the trial court’s consideration of
Barcroft’s post-Miranda request for counsel as evidence of her sanity amounts to
fundamental error. I write separately to address an issue that I believe this
conclusion compels us to address: did Barcroft prove by a preponderance of the
evidence that she was insane?
[30] Barcroft has raised two issues on appeal. First, Barcroft argues that the trial
court erred in rejecting her claim of insanity. Second, Barcroft argues that the
trial court’s reliance on her post-Miranda request for counsel as evidence of her
sanity was fundamental error. Finding the second issue dispositive, the
Majority declines to address the first. I disagree that the second issue is fully
dispositive of the case before us. Regardless of what we decide about her post-
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Miranda request for counsel, if Barcroft prevails on her argument that she
successfully established that she was insane at the time of the offense, she is
entitled to the entry of a verdict of not responsible by reason of insanity and not
subject to retrial. See Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010)
(explaining that “[a] successful insanity defense results in the defendant being
found not responsible by reason of insanity”). See also Ind. Code Ann. § 35-36-
2-3 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General
Assembly).
[31] Because I write separately, I will not delve into the full analysis of Barcroft’s
claim that she proved her insanity by a preponderance of the evidence. It
suffices to say that the trial court’s conclusion that Barcroft had not proved by a
preponderance of the evidence that she was unable to appreciate the
wrongfulness of her actions was not clear error. See Thompson v. State, 804
N.E.2d 1146, 1149 (Ind. 2004) (explaining that “[a] convicted defendant who
claims his insanity defense should have prevailed at trial is in the position of
one appealing from a negative judgment, and we will reverse only when the
evidence is without conflict and leads only to the conclusion that the defendant
was insane when the crime was committed”). Although the three expert
witnesses testified unanimously that Barcroft was insane, our Supreme Court
has held that expert testimony is merely advisory and the fact-finder is free to
disregard it. See Galloway v. State, 938 N.E.2d 699. In this case, the trial court,
acting as the finder of fact, relied on Barcroft’s demeanor before and after the
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offense as well as her statement to Detective Mitchell to determine that she was
able to appreciate the wrongfulness of her conduct. Id. at 712 (explaining that
“[e]ven where there is no conflict among the experts and the lay witnesses, a
finding that a defendant was sane at the time of the crime still may be sustained
by probative demeanor evidence from which a conflicting inference of sanity
may be drawn”). Barcroft’s arguments with respect to the import of her
demeanor and statement amount to requests to reweigh the evidence and draw
inferences that she deems more reasonable than those drawn by the trial court.
See Fernbach v. State, 954 N.E.2d 1080, 1085 (Ind. Ct. App. 2011) (explaining
that “[o]n appeal, we will not reweigh evidence, reassess witness credibility, or
disturb reasonable inferences made by the trier of fact, even though ‘more
reasonable’ inferences might have been made” (citation omitted)). Based on the
evidence presented, I cannot conclude that the trial court’s inferences were
unreasonable or that its ultimate finding that Barcroft, although mentally ill,
was able to appreciate the wrongfulness of her conduct was clearly erroneous.
Subject to my view that we should address the issue concerning the
preponderance of the evidence of Barcroft’s insanity, I concur with the majority
that the use of her post-Miranda request for counsel was fundamental error.
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Lori Ann Barcroft v. State of Indiana
Combined Opinion