Holsinger v. State

Attorney for Appellant

Teresa D. Harper
Bloomington, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

J. T. Whitehead
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

CURTIS HOLSINGER,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 49S00-9812-CR-750
)
)
)
)
)
)

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9701-CF-012975

ON DIRECT APPEAL

June 29, 2001

SULLIVAN, Justice.

Defendant Curtis Holsinger was convicted of murder and robbery for
killing two people and stealing money from their home. We uphold his
conviction over his claims of prosecutorial misconduct and improper
admission of hearsay evidence, finding the first not preserved and finding
the evidence not hearsay with respect to the second. We also find that the
trial court improperly imposed two consecutive sentences of life in prison
without parole.

Background

The facts most favorable to the verdict indicate that on January 21,
1997, Defendant Curtis Holsinger and Jessica Lopez visited Frank Dennis in
Jasonville, Indiana. Defendant and Dennis decided to go to Indianapolis,
planning to rob Chad Sloan who owed Dennis drug money. The three traveled
to the residence of Sloan and Shirley Newsom. Defendant brought a knife
and Sloan brought a gun.

Defendant, Dennis, and Lopez arrived at Sloan’s residence and were
allowed inside. Dennis then drew his gun and aimed it at Sloan. Defendant
tied Sloan up in the back bedroom and tied Newsom up in the living room.
Defendant then stabbed Sloan multiple times with the pocketknife, killing
him. Defendant and Dennis returned to the living room at which point
Dennis shot Newsom, killing her.

Shortly thereafter, Defendant, Dennis, and Lopez drove to Hamilton,
Ohio. When Defendant and Lopez returned to Indiana, they learned that the
police were looking for them. Lopez went to the police on January 23 and
gave them a statement, downplaying the role that she and Defendant played
in the murder. The next day, Lopez returned to the police and gave another
statement. In her second statement, Lopez implicated herself in the
robbery and Defendant in the robbery and murder.

Defendant was charged with eight counts: Counts I and II, Murder[1]
of Newsom and Sloan; Counts III and IV, Felony Murder[2] of Newsom and
Sloan; Counts V and VI, Robbery of Sloan and Newsom, Class A felonies;[3]
Count VII and VIII, Confinement of Sloan and Newsom, Class A Felonies.[4]
A jury found Defendant guilty of all eight counts.

During the penalty phase, the jury found that the State proved two
statutory aggravating circumstances beyond a reasonable doubt—murder during
the commission of a robbery, [5] and the commission of multiple murders.
[6] However, the jury recommended against a sentence of life in prison
without parole.

The trial court merged count III with count I and count IV with count
II. For counts I and II, the trial court imposed two sentences of life in
prison without parole to be served consecutively. The court imposed four
20-year sentences for counts V, VI, VII, and VIII, all to run
consecutively. Id.

Discussion

I

Defendant argues that the prosecutor committed misconduct in his
closing argument and that the “trial court erred when it overruled his
objection to the prosecutor’s closing argument.” Appellant’s Br. at 19.

During defense counsel’s closing argument, he referred to a knife
that was found in the bedroom where Sloan’s body was located. According to
State witness Detective Pollard, the knife did not appear to have blood on
it, but was not scientifically tested for blood. During closing argument,
defense counsel suggested that the knife could have been the murder weapon:
They [the State] weren’t going to tell you about that knife. Why?
Because it messes it up. If that knife’s still back in the room, that
pocket knife story goes out the window. ... Why wasn’t any testing
done on that knife? Why wasn’t this serologist allowed to at least
wash it off, take a washing, make a test on it to see if it had blood
on it? Wouldn’t you want to know that?… It’s smudgy because they
fingerprinted it. Whose fingerprints are on it? Nobody told you they
didn’t find prints. ... [W]hose prints are on that knife? Are they
[Defendant’s]? No. We don’t know. Somebody’s prints are on there.
You weren’t told that. Why? Because that might make that knife the
murder weapon and it doesn’t have [Defendant’s] fingerprints on it.
And, again, the pocket knife story on the highway goes out the window.
Is there a doubt here? You bet. That’s reasonable doubt.

(R. at 666.)

The State responded during its closing statement and the following
exchange occurred:

[Prosecutor]: I’ve got to address something … boy, it sure sounded
like to me that he told you folks that I withheld evidence.

[Defense Counsel]: I’ll tell the jury right now that I did not say
that. And I don’t mean to imply--

[Prosecutor]: Well, you said, if we found prints we didn’t tell you.
The law requires that I provide anything that even resembles
exculpatory evidence or anything that might show that the defendant’s
innocent. I have to give that to them. I give them truckloads of
information and get nothing in return. But, part of that information,
not only witness statements, but all the scientific--

[Defense Counsel]: Your Honor, I’m going to object to this. This is
not commentary on the evidence, Your Honor. I’m going to object to
this testimony.

[Trial Court]: Well, it’s an abided response to your argument. Your
objection is overruled. Keep it within the proper boundaries though,
please.

[Prosecutor]: If there’s even a little bit of evidence in there at
all, a fingerprint that might have been found on that knife, [Defense
Counsel] has just as much right to present that evidence as I do. I
didn’t withhold from you.

(R. at 675-76.)

Defendant argued that the prosecutor misstated the law regarding
discovery in Indiana because the prosecutor implied that the State gives
“truckloads” of information to the defense and “[gets] nothing in return.”
In fact, as Defendant points out, the Marion County courts have promulgated
automatic discovery rules requiring that defendants also disclose certain
information to the State. See Rule 7(3), Rules of Organization and
Procedure of the Marion Superior Court, Criminal Division.

Defendant also maintains that the result of the prosecutor’s argument
was to make defense counsel appear to be deceptive while the prosecution
hid nothing. Defendant states, “[t]his good guy/bad guy characterization
of the prosecution and the defense functions has been condemned.”
Appellant’s Br. at 22 (citing Bardonner v. State, 587 N.E.2d 1353 (Ind. Ct.
App. 1992), transfer denied). Defendant believes that he “was placed in a
position of grave peril to which he should not have been subjected and was
denied a fair trial....” Appellant’s Br. at 22.

Defendant failed to request an admonishment or a mistrial and
therefore did not properly preserve this issue for appeal. As to the
merits, the basic thrust of the prosecutor’s statement was that the State
is required to give the Defendant any exculpatory evidence that the State
has in its possession. This was a correct account of the law and was
offered in response to defense counsel’s implication that the State was
withholding information. The prosecution did misstate the law by telling
the jury that a defendant is not required to give the State any
information. But in light of overwhelming evidence of Defendant’s guilt,
allowing this statement over objection would have constituted harmless
error.

II

Defendant contends that the trial court improperly allowed a witness’s
out-of-court statement into evidence. The state responds by arguing the
statement is not hearsay within the ambit of Indiana Evidence Rule
801(d)(1)(B).[7]

Lopez testified that she gave a statement to the police on the night
that Defendant and she returned to Jasonville, Indiana. She testified that
she lied in this first statement to minimize Defendant’s and her role in
the killing. The next day, Lopez made another statement to the police that
implicated both Defendant and herself in the robbery and implicated
Defendant in the homicide of Sloan. She testified at trial that she “felt
bad” about lying during the first statement and that her second statement
was the truth.

On the state’s direct examination, Lopez implicated Defendant with
statements that he had made to her. Lopez testified that she and
Defendant bought gloves on the way to Sloan’s house to avoid leaving
fingerprints. She also testified that Defendant admitted to her that he
killed Sloan and threw the knife out the window.

During Lopez’s cross-examination, Defendant attempted to impeach
Lopez’s testimony by implying that she was lying. Defendant referred to
Lopez’s plea agreement, suggesting that Lopez was lying to get favorable
treatment by the prosecutor. Defendant also referred to the two different
statements that Lopez gave to the police, emphasizing that they were not
consistent:
[Defense Counsel]: …After all this time, you haven’t been sentenced?

[Lopez]: Correct.

[Defense Counsel]: Because if you don’t follow the terms of the plea
agreement then it will be withdrawn…?

[Lopez]: Correct.

***

[Defense Counsel]: Who determines, Ms. Lopez—anybody in this room—who
determines whether or not you’re telling the truth today to qualify
and satisfy the requirement of this plea agreement.

(R. at 494-97.)

On redirect examination, to repair her credibility, the State asked
Lopez to read portions of the second statement that she had given to the
police. This statement regarding the gloves, the knife, and Defendant’s
confession were all consistent with her trial court testimony. Defendant
objected that her out-of-court statement to police was hearsay and
therefore inadmissible.

Hearsay is an out-of-court statement offered to prove the truth of
the matter asserted. See Ind. Evidence Rule 801(c). Generally, hearsay is
inadmissible. See Ind. Evidence Rule 802. Under Indiana Evidence Rule
801(d)(1)(B), a statement is not hearsay if the declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (a) consistent with the declarant’s
testimony, (b) offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, and (c)
made before the motive to fabricate arose.

Here, Lopez’s trial testimony was consistent with her second
statement to the police. It was also offered to rebut an implied charge of
fabrication; Defendant’s cross-examination implied that Lopez lied during
her testimony. Therefore, the statement was properly admissible if it was
made before a motive to fabricate arose.

Whether a motive to fabricate has arisen is a fact sensitive issue.
See Stephenson v. State, 742 N.E.2d 463, 475 (Ind. 2001); Sturgeon v.
State, 719 N.E.2d 1173, 1178 (Ind. 1999). We do not automatically find
that a participant in a crime has a motive to fabricate, even where the
police are inquiring into the declarant’s involvement in the crime. See
Stephenson, 742 N.E.2d at 475; Sturgeon, 719 N.E.2d at 1180 (finding no
motive to fabricate where “there [was] no evidence tending to implicate
[the declarant] in [the] murder and therefore no evidence he had a motive
to lie about [the defendant’s] involvement.”).

While Lopez might have had a motive to lie in her statement of
January 24th, she did not have a motive to implicate Defendant in the
murder. There was no evidence suggesting—and Defendant does not
contend—that Lopez herself killed the victims. The statement she read at
trial contradicted her statement from the day before, shifting blame from
Dennis to Defendant. To the extent she was guilty of robbery and felony
murder, her culpability would have been the same whether either Defendant
or Dennis had killed Sloan. We find no motive on Lopez’s part to fabricate
Defendant’s role in Sloan’s murder. There is no contention that she tried
to minimize her own; indeed, she implicated herself in the robbery and, as
a consequence, felony murder. [8] Moreover, in regards to the crime in
which she did have a motive to fabricate—the robbery—she implicated
herself.

III

Defendant argues that the trial court improperly sentenced him. He
contends that the trial court did not consider mitigating circumstances
that were “plainly presented,” and that the court improperly considered non-
statutory aggravating factors. Defendant also argues that his sentence was
manifestly unreasonable. See Appellant’s Br. at 8.

The State charged two aggravating circumstances, intentional murder
during the commission of a robbery and the commission of multiple murders.
See Ind. Code §§ 35-50-2-9(b)(1)(G) and 35-50-2-9(b)(8). Defendant
introduced evidence to demonstrate the following mitigating circumstances:
Youthful age; domination by another; troubled childhood; lack of a criminal
history; intoxication; surrender to and cooperation with the authorities;
and remorse.

The jury found that the State had proven the two aggravating
circumstances beyond a reasonable doubt,[9] but recommended against a
sentence of life imprisonment without parole. Contrary to the jury’s
recommendation, the trial court imposed a sentence of life in prison
without parole.

In the sentencing order, the trial court found, in accordance with the
jury findings, that the State proved the existence of the two aggravating
circumstances beyond a reasonable doubt. The trial court listed other
aggravating factors before concluding that life in prison was appropriate:
The [c]ourt finds that the factual circumstances of the murders are
particularly heinous and aggravating. A great deal of discussion and
planning took place.... The vicious nature of the killings was
particularly disgusting and aggravating. … [Defendant] … stabbed and
slashed Chad Sloan with a knife twenty-nine times. ... [Defendant]
was a major participant in the murder of Shirley Newsom. ...
[Defendant] had tied her up knowing that [Dennis] was going to kill
her. ... Then [Defendant] hid his involvement in the murders by
discarding the clothes he was wearing and the murder weapon he used.
... [Defendant’s] action reveal such abhorrent behavior that life
imprisonment without parole is the only appropriate sentence.

(R. at 229-30.)

The trial court was not as thorough in its treatment of the mitigating
circumstances. It only briefly stated the mitigating factors it
considered:
The [trial court] considers all the evidence presented to the jury at
the trial and sentencing proceeding, and any mitigating circumstance
inherent in those proceedings. The [trial court] also considers the
defendant’s statement expressing his condolences to the victims’
family members and the arguments of his attorney that the defendant
was an accessory, that his role was minor compared to that of his
accomplice, Frank Dennis, and that he was acting under substantial
domination of Frank Dennis.

(R. at 230.)

Defendant challenges the judge’s findings in two respects. He argues
that the sentencing order violates Bivins v. State, 642 N.E.2d 928 (Ind.
1994), cert denied, 516 U.S. 1077 (1996), because it relies on non-
statutory aggravating circumstances. And he also contends that the order
violates Harrison v. State, 644 N.E.2d 1243 (Ind. 1995), in its failure to
give specific consideration to mitigating circumstances.

A

A sentence of life imprisonment without parole is imposed under the
same standards and is subject to the same requirements as the death
penalty. See Pope v. State, 737 N.E.2d 374, 382 (Ind. 2000), reh’g denied;
Nicholson v. State, 734 N.E.2d 1047, 1048 (Ind. 2000), reh’g denied; Rawley
v. State, 724 N.E.2d 1087, 1091 (Ind. 2000); Ajabu v. State, 693 N.E.2d
921, 936 (Ind. 1998). Defendant contends that the trial court considered
non-statutory aggravating circumstances in violation of Bivins, 642 N.E.2d
at 955. In Bivins, this Court held that the aggravating circumstances in a
capital case are narrowed to those charged by the State and found beyond a
reasonable doubt. Id. “When the death sentence is sought, courts must
henceforth limit the aggravating circumstances eligible for consideration
to those specified in the death penalty statute, Indiana Code Section 35-50-
2-9.” Id.

The trial court’s analysis of the aggravating factors of Defendant’s
crime was not limited to statutory factors. The trial court listed non-
statutory factors that it found “particularly heinous and aggravating”
including the planning of the crime by Defendant, that Defendant hid his
involvement, the number of times Defendant stabbed the victim, and that
Defendant was a major participant. The trial court concluded the list of
non-statutory aggravators by stating that Defendant’s actions were so
“abhorrent” that “life imprisonment without parole is the only appropriate
sentence.” While we may agree with the trial court that Defendant’s
behavior was abhorrent, a trial court may not consider non-statutory
aggravating circumstances when imposing life in prison without parole.

B

We held in Harrison v. State that the trial court must offer a
detailed explanation of the factors and the weighing process that lead to a
death sentence. 644 N.E.2d 1243, 1262 (Ind. 1995). Because a sentence of
life in prison without parole is imposed under the same standards as the
death penalty, see supra Part III-A, we require the same specificity from a
trial court sentencing a defendant to life in prison without parole as we
would a court sentencing a person to death. Pope, 737 N.E.2d at 382;
Nicholson, 734 N.E.2d at 1048; Rawley, 724 N.E.2d at 1091; Ajabu, 693
N.E.2d at 936. In Harrison, we set out the following steps:
The trial court’s statement of reasons (i) must identify each
mitigating and aggravating circumstance found, (ii) must include the
specific facts and reasons which lead the court to find the existence
of each such circumstance, (iii) must articulate that the mitigating
and aggravating circumstances have been evaluated and balanced in
determination of the sentence, and (iv) must set forth the trial
court’s personal conclusion that the sentence is appropriate
punishment for this offender and this crime.

644 N.E.2d at 1262 (citations omitted). See also Ajabu, 693 N.E.2d at 940.

During the sentencing phase, the trial court only touched on some of
the many mitigating circumstances Defendant introduced. In this respect,
the trial court failed to fulfill the requirements of Harrison’s first and
second steps; the sentencing order does not explicitly indicate which
mitigating circumstances the trial court found, nor does it explain the
specific facts and reasons that led the court to find the existence of
whatever mitigating circumstances it did find. This is a violation of the
specificity requirement of Harrison.

The sentencing order in Harrison was also found inadequate because it
was not specific enough. The trial court in Harrison identified what the
court found to be mitigating circumstances, but “[did] not set forth
specific facts and reasons which lead the court to find the existence of
each aggravating and mitigating circumstance.” 644 N.E.2d at 1263.

In some respects, the sentencing order taken as a whole was more
specific than the one in Harrison,[10] but it is much less specific about
the mitigating circumstances. Indeed, it is impossible to tell whether the
trial court found any mitigating circumstances to exist or, if so, the
extent to which it assigned any weight to them. “We require such
specificity in a sentencing order … to insure the trial court considered
only proper matters when imposing sentence, thus safeguarding against the
imposition of sentences [that] are arbitrary or capricious, and to enable
the appellate court to determine the reasonableness of the sentence
imposed.” Id. at 1262 (citing Daniels v. State, 561 N.E.2d 487, 491
(1990)). Furthermore, failure to find mitigating circumstances where
supported by the record may reasonably give rise to a belief they were
overlooked and not properly considered. See Scheckel v. State, 620 N.E.2d
681, 686 (Ind. 1993); Jones v. State, 467 N.E.2d 681, 683 (Ind. 1984).

C

We vacate the sentence imposed by the trial court because it relied
on non-statutory aggravating circumstances in violation of Bivins and
because it was imposed pursuant to a sentencing order that did not meet the
requirements of Harrison. Where we find an irregularity in a trial court’s
sentencing decisions, we have the option to remand to the trial court for a
clarification or new sentencing determination; to affirm the sentence if
the error is harmless; and to reweigh the proper aggravating and mitigating
circumstances independently at the appellate level. See Bivins, 642 N.E.2d
at 957. Here we elect to engage in appellate reweighing.

To determine the appropriate sentence, we will first consider the
sentence of life in prison without parole. Before a sentence of life
without parole can be imposed in this case, the statute requires the State
to prove beyond a reasonable doubt at least one aggravating circumstances
listed in subsections (b)(1) through (b)(15) of Indiana Code § 35-50-2-9
(Supp. 1996). Here the State supported its request for life without parole
with the following aggravating circumstances: (1) intentional murder during
the commission of a robbery, Indiana Code § 35-50-2-9 (b)(1)(G); and (2)
the commission of multiple murders, Indiana Code § 35-50-2-9 (b)(8). Both
the jury and the trial court found that the State had met its burden of
proof with respect to both these aggravating circumstances and Defendant
makes no claim to the contrary.

The statute then requires that any mitigating circumstances be
weighed against any properly proven aggravating circumstances. As noted,
the trial court did not identify any mitigating circumstances. Again as
noted, Defendant claimed the existence of the following mitigating
circumstances: his youthful age; crime committed while under the domination
of another; his troubled childhood; his lack of criminal history; his
intoxication; his surrender to and cooperation with the authorities; and
his remorse.

We assign little if any weight to the proffered mitigators of
intoxication, cooperation with authorities, and remorse. The record
demonstrates that Defendant engaged in behavior exhibiting a significant
degree of physical and intellectual skill, e. g., he purchased gloves on
the way to Indianapolis. His surrender and cooperation came only after he
learned that the police were looking for him. See Games v. State, 535
N.E.2d 530, 545 (Ind.) (giving little weight to the fact that defendant
surrendered where defendant’s apprehension was “nearly inevitable”), cert
denied, 493 U.S. 874 (1989). And there is nothing of record to suggest
that his remorse was out of the ordinary. See Evans v. State, 727 N.E.2d
1072, 1083 (Ind. 2000) (assigning little weight to the defendant’s remorse
in light of the brutal nature of the victim’s death).

We assign weight in the low range to the proffered mitigators of
troubled childhood and crime committed under the domination of another. As
to Defendant’s childhood, there was evidence that his mother had been
charged with neglect and abandoned the family when he was two years old;
that his father was suspected of neglect by child welfare authorities; and
that some of his behavioral problems in school were traced to his being
undernourished. See Timberlake v. State, 690 N.E.2d 243, 264 (Ind. 1997)
(acknowledging that being brought up in a dysfunctional family may be
weighed as a mitigating factor) cert denied, 525 U.S. 1073 (1999). We do
not accept Defendant’s claim that he committed the crimes in this case
while under the domination of Dennis; our review of the record demonstrates
that he was a willing participant in the crimes. At the same time, we
accept Defendant’s argument that Dennis was the instigator and leader of
this criminal episode.

We assign weight in the medium-range to the proffered mitigators of
defendant’s youth and his lack of criminal history. Defendant was 19 at
the time of these crimes. Brown v. State, 720 N.E.2d 1157, 1159 (Ind.
1999) (“‘defendant’s youth, although not identified as a statutory
mitigating circumstance, is a significant mitigating circumstance in some
circumstances.’”) (quoting Carter v. State, 711 N.E.2d 835, 842 (Ind.
1999)). The pre-sentence investigation in this case indicated that
defendant had no adult or juvenile criminal history. (R. at 207.) See
Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (finding 17-year-old
defendant’s lack of criminal history to be a mitigating factory); see also
Baird v. State, 604 N.E.2d 1170, 1182 (Ind. 1992) (weighing lack of
criminal history as a mitigating circumstance in the medium range), cert.
denied, 510 U.S. 893 (1993).

In weighing the aggravating and mitigating circumstances here, we
find the aggravating circumstances to outweigh the mitigating
circumstances.

Next, the statute requires that the jury’s recommendation be
considered. Ind. Code § 35-50-2-9(e)(2). Here, as noted, the jury
unanimously recommended against a sentence of life without parole. This is
particularly significant because this is the same jury that unanimously
found Defendant guilty of murder, robbery, and confinement and was prepared
to accept its role as the “conscience of the community” in rejecting the
State’s request for life without parole. See Saylor v. State, 686 N.E.2d
80, 87 (Ind. 1997) (quoting Peterson v. State, 674 N.E.2d 528, 543 (Ind.
1996), cert denied, 522 U.S. 1078 (1998)), cert denied, 525 U.S. 831
(1998). Unlike the Saylor and Peterson cases where we affirmed death
sentences notwithstanding jury recommendations against death, here (i) the
trial court improperly relied upon non-statutory aggravating circumstances,
(ii) there was no identification or analysis by the trial court of any
mitigating circumstances, and (iii) our independent weighing has identified
two mitigating circumstances, each of medium weight, as well as several
additional mitigating circumstances of lesser weight. When these three
considerations are juxtaposed with the unanimous rejection by the jury of
the State’s life without parole request, with all that such rejection
imports, we conclude that life without parole is not an appropriate
sentence here.

We proceed to determine the defendant’s sentence for the two murders
under the general sentencing statutes. At the time these crimes were
committed, the standard or presumptive sentence for murder established by
the Legislature was 55 years to which the court has the authority to add
not more than 10 years for aggravating circumstances and from which the
court has the authority to subtract not more than 10 years for mitigating
circumstances. Unlike sentencing under the death penalty and that life
without parole statute, the trial court is not limited to considering
aggravating circumstances specified in the statute. As such, we here
consider the additional aggravating circumstances identified by the trial
court and described above as well as the aggravating circumstances and the
mitigating circumstances discussed during our analysis of the propriety of
the life without parole sentence. We find the aggravating circumstances
outweighed the mitigating circumstances by a sufficient magnitude that the
maximum sentence of 65 years for murder should be imposed on each count.
We order the sentences on these two counts to be served concurrently.

Defendant also challenges the propriety of the four consecutive 20-
year sentences for the two counts of robbery and two counts of confinement.
The trial court entered judgment on these counts as Class B felonies. The
presumptive sentence for a Class B felony is ten years. See Ind. Code § 35-
50-2-5 (1993). A sentencing court may add up to ten years for aggravating
circumstances or subtract up to four years for mitigating circumstances.
Id. We agree with the trial court, for the reasons stated above, that the
weight of the aggravating and mitigating factors justifies the maximum
sentence of 20 years for each count of robbery and confinement. We order
the sentences on these four counts to be served concurrently.

Finally, we find that the aggravating circumstances discussed above
warranting fully enhanced sentences on the murder, robbery, and confinement
counts outweigh the mitigating circumstances discussed above by a
sufficient magnitude that the concurrent sentences for the robbery and
confinement counts should be served consecutive to the concurrent sentences
for the murder counts.

Conclusion

We affirm Defendant’s convictions. We vacate the sentences imposed
by the trial court and remand with instructions to impose concurrent
sentences of 65 years on each of Counts I and II and concurrent sentences
of 20 years for each of Counts V, VI, VII, and VIII. The concurrent 20-
year sentences for Counts V, VI, VII, and VIII are to be served
consecutively to the concurrent 65-year sentences for Counts I and II.

SHEPARD, C.J., and RUCKER, J., concur.

BOEHM, J., concurs in parts I and III and concurs in result in part
II with separate opinion.

DICKSON, J., concurs in part I, concurs in result in part II, and
dissents in part from part III with separate opinion.

In The
INDIANA SUPREME COURT

)
CURTIS HOLSINGER, )
Defendant-Appellant, )
)
v. ) 49S00-9812-CR-750
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9701-CF-012975
________________________________________________

On Direct Appeal

June 29, 2001

DICKSON, Justice, concurring in part and dissenting in part.

I concur in Part I, concur in result with Part II, and dissent from
Part III of the majority opinion.
As to Part I, I write separately to emphasize that a defendant's
failure to request an admonishment, standing alone, does not necessarily
result in waiver. Although Dresser v. State, 454 N.E.2d 406 (Ind. 1983)
advises that admonishment is the "correct procedure to employ against an
improper argument," id. at 407, it continues with the following important
qualification: "Where it is obvious, from the nature and degree of
misconduct, that no admonishment could suffice, the motion for one may be
dispensed with." Id. at 408; see also Leach v. State, 699 N.E.2d 641, 644
n.4 (Ind. 1998)("We disagree with the State and agree with the defendant
that, in cases such as this, an instruction will not cure the error.")
Dresser recognizes that merely objecting to improper argument is not enough
and advises in general that the correct procedure is to request
admonishment followed by a motion for mistrial, but it expressly
acknowledges that a request for an admonishment is not necessary in some
circumstances. Neither Robinson v. State, 693 N.E.2d 548 (Ind. 1998), nor
Brown v. State, 572 N.E.2d 496 (Ind. 1991), hold to the contrary. Although
the language in both is "the failure to request an admonishment or move for
a mistrial results in waiver of the issue,” Robinson, 693 N.E.2d at 552;
Brown, 572 N.E.2d at 498, in both cases, the defendants not only failed to
seek an admonishment but also failed to move for mistrial. When an
admonishment would be futile, the failure to request one does not preclude
appellate review of a denial of an otherwise timely motion for mistrial.
With respect to Part II, I agree with the concurring in result
opinion of Justice Boehm that the admission of Lopez's prior consistent
statement was harmless error.
As to Part III of the majority opinion, I agree that the trial
court's sentence of life imprisonment without parole was improperly based
on non-statutory aggravating circumstances, and that it must be vacated. I
am unable, however, to join the majority's evaluation of the trial court's
consideration of the evidence related to mitigating circumstances, and I
disagree with the sentence imposed.
Contrary to the majority's conclusion in Part IIIB, I believe that
the trial court's explanation was adequate as to mitigating circumstances.
The sentencing statement advises that the trial court gave consideration to
the defendant's expressions of condolences, his claim that his role as an
accessory was relatively minor, and his contention that he was acting under
substantial domination of another. A sentencing judge is not obligated to
make an affirmative finding expressly negating each potentially mitigating
circumstance. Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997). The
determination that a circumstance is mitigating is within the trial court's
discretion, and the court is not obligated to explain why it finds a
circumstance not to be mitigating. Taylor v. State, 681 N.E.2d 1105, 1112
(Ind. 1997). The trial court is not required to give the same weight to
proffered mitigating circumstances as the defendant does. Thacker v.
State, 709 N.E.2d 3, 10 (Ind. 1999). I cannot fault the trial court's
consideration of mitigating circumstances. Its sentencing statement here
is easily equivalent to or much more detailed than many other sentencing
statements that we have affirmed.
Having determined that the sentence imposed by the trial court was
erroneous, the majority elects to engage in appellate reweighing to
determine the sentences to be imposed and expresses its evaluation by
assigning various general weights to each aggravating and mitigating
circumstance found. While some members of this Court have often chosen to
employ this method of analysis, this should not be understood as the
exclusive or prescribed methodology for trial or appellate sentencing
evaluations.
Matters that may be appropriate for consideration are extraordinarily
diverse and often defy quantification or precise analogous comparison to
opposing considerations. Determining the appropriate criminal sentence is
an act of subjective judgment, the quintessence of a judge's function. The
analysis cannot be circumscribed to any single mathematical formula or
methodology. The requirement of general sentencing statements to explain
the sentencing decision assures fairness and propriety, and permits
judicial review. But reasonable latitude is permitted in the way trial and
appellate judges undertake to evaluate and determine the sentences to be
imposed.
With respect to the majority's reweighing of the aggravating and
mitigating circumstances and consideration of the jury's recommendation, I
agree with the conclusions that the aggravating circumstances outweigh the
mitigating circumstances but that life without parole is not an appropriate
sentence. I disagree, however, with the decision to order that the
sentences for murder be served concurrently. Notwithstanding the
mitigating circumstances found by the majority, the fact that the defendant
was convicted of killing two people weighs heavily in my judgment. For the
two murder counts, merely imposing the equivalent of a single fully
enhanced sentence is insufficient. I would require that sentences on the
murder counts be served consecutively to each other and consecutively to
the concurrent twenty-year sentences for the other counts.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Teresa D. Harper Jeffrey A. Modisett
Bloomington, Indiana Attorney General of Indiana

J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

CURTIS HOLSINGER, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9812-CR-750
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9701-CF-012975
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

June 29, 2001

BOEHM, Justice, concurring in result.
I concur in Parts I and III. I concur in result in Part II because
although I believe that it was error to admit Lopez’s prior consistent
statement, I believe that error was harmless.
Indiana Rule of Evidence 801(d)(1)(B) provides that a prior consistent
statement may be admitted to rebut a charge of fabrication if it was made
before the motive to fabricate arose. Because I believe that Lopez’s
statement to police was made after her motive to fabricate arose, I would
conclude that it was error for the trial court to admit that statement.
I agree with the majority that we do not “automatically” find that a
participant in a crime has a motive to fabricate. Stephenson v. State, 742
N.E.2d 463, 475 (Ind. 2001); Sturgeon v. State, 719 N.E.2d 1173, 1180 (Ind.
1999); cf. United States v. Awon, 135 F.3d 96, 100 (1st Cir. 1998) (motive
to fabricate, namely, a desire for leniency, pre-dated plea negotiations);
Farris v. State, 732 N.E.2d 230, 233 (Ind. Ct. App. 2000) (no question that
accomplice with familial relationship to defendant had motive to
fabricate); McCray v. State, 716 A.2d 302, 308 (Md. Ct. App. 1998) (noting
that accomplice’s motive to fabricate existed from the moment that the
robbery and murder, in which she was admittedly involved, took place). I
also agree that whether a motive to fabricate has arisen is a fact
sensitive issue. Stephenson, 742 N.E.2d at 475; Sturgeon, 719 N.E.2d at
1178. However, after comparing the facts of this case to those of previous
cases considered by this Court, I would arrive at a different result.
The majority stresses the facts that: (1) no evidence was presented
that suggested that Lopez herself committed the murders; and (2) Lopez
admitted her role in the robbery, and therefore opened herself up to
charges of robbery and felony murder. However, it is undisputed that Lopez
accompanied Holsinger to the crime scene, stood by while two victims were
murdered, participated in the robbery of the victims, and fled with
Holsinger to another state. Only after learning that police were searching
for both Lopez and Holsinger did Lopez voluntarily go to the police to give
a statement. In her first statement, she attempted to minimize the roles
that both she and Holsinger played in the crimes. In her second statement,
given the next day, she admitted her role in the robbery and implicated
Holsinger in the murder and robbery. Lopez’s voluntary statements to
police included an admission of her culpability in the crimes, but they
also minimized her role vis-á-vis the other participants and set the stage
for her eventual plea agreement. Before she voluntarily spoke to police,
Lopez knew that she was wanted for questioning in connection with these
crimes. It seems reasonable to conclude that she decided that a proactive
approach was her best bet to secure a reduced sentence.
This Court recently considered a different fact pattern in Stephenson.
In that case, the accomplice/witness, Dale Funk, had a level of
involvement in a triple murder comparable to Lopez’s here. Stephenson, 742
N.E.2d at 470-72. However, Funk’s prior consistent statement was not a
voluntary admission to police. Id. at 472-73. Rather, it was a part of a
conversation with an uninvolved third party a few days after the crime.
Funk received no prosecutorial benefit for his testimony. Id. at 475.
Thus, although I agree with the conclusion in Stephenson that Funk had no
motive to fabricate when he made his prior consistent statement, I believe
that the differences in the fact patterns justify a different result in
this case.
The facts of Thompson v. State, 690 N.E.2d 224 (Ind. 1997), are
analogous to this case. The accomplice/witness, Douglas Percy, voluntarily
went to police and made a statement implicating Jerry Thompson in a double
murder and robbery. Id. at 228. Percy admitted participating in the
robbery after Thompson unexpectedly shot the victims. Id. Pending charges
against Percy for another felony were dismissed in exchange for his
testimony against Thompson. Id. Given these facts, we noted that
admission of Percy’s statement to police consistent with his testimony was
arguably improper because “Percy had every reason to shift culpability to
Thompson while minimizing his own involvement.” Id. at 232 n.8; accord
Bouye v. State, 699 N.E.2d 620, 625-26 (Ind. 1999) (accomplice’s motive to
fabricate arose at the time of the crime).
I would find that Lopez had a motive to fabricate before she made her
voluntary statement to police. I would therefore hold that admission of
her prior consistent statement was error. However, given the other
evidence against Holsinger, I would find the error harmless.

-----------------------
[1] Ind. Code § 35-42-1-1 (1993).

[2] Id.

[3] Id. § 35-42-5-1.

[4] Id. § 35-42-3-3.

[5] Id. § 35-50-2-9(b)(1)(G)

[6] Id. § 35-50-2-9(b)(8)
[7] A statement is not hearsay if:
[t]he declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is …
consistent with the declarant’s testimony, offered to rebut an express
or implied charge against the declarant of recent fabrication or
improper influence or motive, and made before the motive to fabricate
arose. Ind. Evidence Rule 801(d)(1)(B).
[8] Felony murder occurs when a person “kills another human being
while committing or attempting to commit … robbery.” Ind. Code § 35-42-1-
1(2) (1993). The State need not prove intent to kill in a felony murder
charge, only the intent to commit the underlying felony. See Palmer v.
State, 704 N.E.2d 124, 127 (Ind. 1999).

[9] The fact that the jury made affirmative findings that the charged
aggravating circumstances had been proved beyond a reasonable doubt
distinguishes this case from Farber v. State, 729 N.E.2d 139 (Ind. 2000).

[10] The trial court’s sentencing order stated that it considered the
jury’s recommendation; established that the trial court found that the
State proved the aggravating circumstances beyond a reasonable doubt; and
contained the personal conclusion of the trial court that life imprisonment
without parole is the appropriate sentence.