ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Katherine A. Cornelius Karen M. Freeman-Wilson
Marion County Public Attorney General of Indiana
Defenders Office
Indianapolis, Indiana Janet Brown Mallett
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JAMES GAMES, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 49S00-9908-CR-447
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tonya Walton Pratt, Judge
Cause No. CR83-126A
March 20, 2001
SHEPARD, Chief Justice.
Appellant James Games spent a fair amount of time on Indiana’s death
row but eventually won a new sentencing hearing. In lieu of further
litigation, Games and the State crafted a plea bargain under which Games
agreed to be sentenced for murder, robbery, and conspiracy to commit
robbery. The Marion County Prosecutor dropped his request for the death
penalty. After a sentencing hearing, the trial court imposed sentences
lasting 110 years.
Games says double jeopardy prohibits his sentence. We hold he gave up
such claims when he pled guilty.
Facts and Procedural History
On July 15, 1983, eighteen-year-old Games and fourteen-year-old Earl
Tillberry devised a robbery scheme. Games induced Thomas Ferree to take
Tillberry and himself to Ferree’s home by promising a “surprise” (i.e.
sexual favors). (R. at 438-39.) After Tillberry stabbed Ferree pursuant
to their plan, Games continued to stab and bludgeon him to death using an
assortment of knives, a meat cleaver, and a fire poker. A jury found Games
guilty of murder, robbery, conspiracy to commit battery, and conspiracy to
commit robbery. The court sentenced Games to death plus forty years. This
Court affirmed. Games v. State, 535 N.E.2d 530 (Ind. 1989) (“Games I”)
cert. denied, 493 U.S. 874 (1989).
Games petitioned for post-conviction relief. The post-conviction
court affirmed the convictions but granted re-sentencing. On appeal, we
affirmed, except for ordering the conviction for conspiracy to commit
battery vacated on double jeopardy grounds. Games v. State, 684 N.E.2d 466
(Ind. 1997) (“Games II”). As to the murder and robbery counts, we found no
double jeopardy violation, analyzing the question under Blockburger v.
United States, 284 U.S. 299 (1932). Games II, 684 N.E.2d at 477.
After remand for re-sentencing, Games negotiated a plea agreement:
c.)In consideration for the State of Indiana foregoing its request for
the death penalty, the defendant agrees that the full range of
sentences provided by statute on each count of conviction is now
available for consideration for possible sentencing purposes.
Specifically the defendant may be sentenced up to eight (8) years on
Counts I and IV (which merge into one sentence pursuant to the holding
in [Games II]; the defendant may be sentenced from thirty (30) to
sixty (60) years on Count II; and he may be sentenced from twenty (20)
to fifty (50) years on Count III pursuant to the holding in [Games
II], supra, which states that separate sentences on Counts II and III
herein do not constitute double jeopardy.
(R. at 122.) In short, Games bargained for a sentence between sixty and
118 years in order to avoid the death penalty. The trial court eventually
imposed the maximum number of years on each count finding that the
aggravating factors outweighed the mitigating circumstances. It therefore
ordered that the murder and robbery sentences be served consecutively,
concurrent with the conspiracy sentence. Games now appeals his sentence.
Waiver of Double Jeopardy
Games argues that his sentencing for both murder and robbery violates
double jeopardy under this Court’s decision in Richardson v. State, 717
N.E.2d 32 (Ind. 1999), which applied a “same offense” analysis.[1]
(Appellant’s Br. at 10.) This argument is not available to him. Games
waived his right to challenge his sentence on double jeopardy grounds when
he entered his plea agreement.
In Lutes v. State, 272 Ind. 699, 704-05, 401 N.E.2d 671, 674 (1980),
we held that a defendant with adequate counsel who enters a plea agreement
to achieve an advantageous position must keep the bargain. Once the
defendant bargains for a reduced charge, he cannot then challenge the
sentence on double jeopardy grounds. See Griffin v. State, 540 N.E.2d 1187
(Ind. 1989). Games agreed to up to 118 years in prison in exchange for his
life; clearly he bargained to his own benefit. As the Court of Appeals has
observed, retaining a benefit while relieving oneself of the burden of the
plea agreement “would operate as a fraud upon the court.” Spivey v. State,
553 N.E.2d 508, 509 (Ind. Ct. App. 1990) (citation omitted).
Defendants who plead guilty to achieve favorable outcomes in the
process of bargaining give up a plethora of substantive claims and
procedural rights. Games has waived his claim of double jeopardy.
The DOC Documents
Games contends the court wrongly permitted the prosecution to offer
his Department of Correction disciplinary record as rebuttal evidence.
(Appellant’s Br. at 32-37.)
During Games’ sentencing presentation on May 18, 1999, he called
Marie Donnelly, the attorney for his post-conviction hearing. She
portrayed Games as a model prisoner. (R. at 733-35.)
On June 11 while the sentence was still under advisement, the
prosecution filed a motion to reopen presentation of sentencing evidence in
order to tender Games’ DOC record. This was allowed over Games’ objection,
though the trial court offered Games the opportunity for additional time to
respond.
Games argues at some length that Donnelly’s testimony did not “open
the door” so as to warrant a further presentation of evidence by the State.
(Appellant’s Br. at 32-37.) A trial court has considerable latitude to
fashion the order of things in a sentencing proceeding. Games raised the
issue of his prison conduct, and the court had the discretion to afford the
State a chance to provide further evidence about that topic.
Games concedes that his prison conduct record was relevant to the
sentencing hearing,[2] (Appellant’s Br. at 32), but says the court afforded
it undue weight in light of the fact that the records were hearsay, (Id. at
41-44).
The records were brought in under the business records exception to
the hearsay rule, Ind. Evidence R. 803(6),[3] and in any event a trial
court may consider hearsay in a sentencing proceeding. Lasley v. State,
510 N.E.2d 1340 (Ind. 1987). The trial court gave Games the opportunity to
contest the accuracy of these records, but he has not demonstrated any
particular errors in them, either at trial or on appeal. Instead, Games
argues generically that they may not be reliable. This is not enough.
Weighing Aggravators and Mitigators
In sentencing Games, the trial court identified a number of relevant
aggravating factors: history of violence, the gruesome use of a variety of
implements on the victim, his use of deception to gain entrance to the
victim’s home, Games’ juvenile record, and his prison misconduct (e.g.
participation in a hostage situation on death row and stabbing an inmate).
It also took account of the statement by the victim’s family that the crime
warranted the maximum sentence.
The trial court also found several mitigating circumstances: Games’
deprived childhood, his untreated substance abuse, his remorse, and the
disparity in sentencing between Games and his accomplice.
The trial judge’s conclusion that the aggravating circumstances were
weightier and warranted enhanced and consecutive sentences was an
appropriate exercise of discretion. See Sims v. State, 585 N.E.2d 271, 272
(Ind. 1992) (weighing of aggravating and mitigating circumstances lies
within discretion of trial court).
Conclusion
We affirm the sentence of 110 years.
Sullivan, Dickson, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Games entered into his plea agreement in February 1999. (R. at 121-
25.) Richardson was decided in October 1999.
[2] When determining a sentence, a judge may consider "identifiable conduct
on the part of the defendant occurring after the time of the original
sentencing proceeding." Cherry v. State, 275 Ind. 14, 19, 414 N.E.2d 301,
305 (1981) (footnotes omitted) (quoting North Carolina v. Pearce, 395 U.S.
711 (1969)). This conduct may be a basis for a more severe sentence. Id.
[3] Records of Regularly Conducted Business Activity. A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was
the regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony or
affidavit of the custodian or other qualified witness, unless the
source of information or the method or circumstances of preparation
indicate a lack of trustworthiness. The term “business” as used in
this Rule includes business, institution, association, profession,
occupation, and calling of every kind, whether or not conducted for
profit.
Ind. Evidence R. 803(6).