ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Priscilla J. Fossum
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
KENNY D. “COTTON” SANQUENETTI )
Defendant-Appellant, )
)
v. ) 83S00-9802-CR-88
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE VERMILLION CIRCUIT COURT
The Honorable Bruce V. Stengel, Judge
Cause No. 83C01-9703-CF-32
_________________________________________________
On Direct Appeal
April 14, 2000
DICKSON, Justice
The defendant-appellant, Kenny D. Sanquenetti, appeals his convictions
and sentences for the March 8, 1997, choking and stabbing murders[1] of
Brenda M. Cunningham and Christal J. Davis. In this direct appeal, he
presents two claims of error: (1) that the accomplice liability statute,
as applied in this case, violates the Privileges and Immunities Clause of
the Indiana Constitution; and (2) that the trial court erred in imposing
consecutive sentences without finding an aggravating circumstance.
I. Accomplice Liability Statute
The defendant first challenges his conviction for the murder of
Davis, contending that the accomplice liability statute, although not
facially unconstitutional per se, violates the Privileges and Immunities
Clause of the Indiana Constitution as applied in his case. The defendant
argues that this statute is unconstitutional because it allows him to be
convicted of murder for aiding in the killing of Davis, even though his
accomplice, Paul Steven Mills, who the defendant contends actually killed
Davis, was convicted of involuntary manslaughter in a separate trial.[2]
Thus, the defendant argues that, by allowing this result, the statute
allows the "accessory" to be convicted and punished for a greater offense
than the "principal" and thus that the statute impermissibly grants the
"principal" the privilege of being convicted of a lesser crime than the
accessory. The defendant does not challenge the sufficiency of the
evidence supporting the conviction.
The statutory provision, commonly referred to as the accomplice
liability statute, provides:
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even if the
other person:
(1) Has not been prosecuted for the offense;
(2) Has not been convicted of the offense; or
(3) Has been acquitted of the offense.
Ind. Code § 35-41-2-4. The present version of this statute, which became
effective October 1, 1977, departs from common law and prior statutory law
regarding principals and accessories. See Ind. Code § 35-1-29-1
(repealed); Ind. Code § 35-1-29-3 (repealed). We have noted that the
current statute supersedes the common law of criminal liability and thus
that the legal distinction between a principal and an accessory has ceased
to exist. Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997); McKnight v.
State, 658 N.E.2d 559, 560-61 (Ind. 1995). Because the common law
distinction between principal and accessory is no longer viable, the
defendant's reliance on these distinctions is ill-founded,[3] and we will
analyze the defendant's claim under the law as it presently stands and
under the terms it employs.
As a preliminary matter, we note that the defendant, in support of his
equal privileges and immunities claim, cites the common law doctrine of
mandated consistency as illustrative of the equality and consistency
required under the law. In the last three decades, this Court has
considered the application of this common law doctrine, which required that
when a principal and an accessory are tried separately, the accessory
cannot be convicted of a crime greater than that of which the principal is
convicted. See, e.g., McKnight, 658 N.E.2d at 562-63 (discussing cases and
applying the doctrine under the assisting a criminal statute); Rufer v.
State, 274 Ind. 643, 647, 413 N.E.2d 880, 882 (1980); Jewell v. State, 272
Ind. 317, 320-22, 397 N.E.2d 946, 947-48 (1979); Davis v. State, 267 Ind.
152, 158-59, 368 N.E.2d 1149, 1152 (1977); Wright v. State, 266 Ind. 327,
342-43, 363 N.E.2d 1221, 1229-30 (1977); Schmidt v. State, 261 Ind. 81, 83,
300 N.E.2d 86, 87-88 (1973); Combs v. State, 260 Ind. 294, 301, 295 N.E.2d
366, 370 (1973) ("[W]here there has been two separate judicial
determinations on the merits of the respective cases, and where they are
contradictory, the law will impose a consistency to their findings."). See
also McCarty v. State, 44 Ind. 214, 215-17 (1873).
However, with the exception of McKnight, the facts underlying these
decisions occurred prior to the date in 1977 when the accomplice liability
statute became effective, and, in these decisions, the principles of the
common law and the defendant's adjudicated designation as a principal or an
accessory governed. See Rufer, 274 Ind. at 647, 413 N.E.2d at 882
(involving a defendant convicted as an accessory before the fact); Jewell,
272 Ind. at 320-22, 397 N.E.2d at 947-48 and 261 Ind. 665, 309 N.E.2d 441
(1974) (involving a defendant convicted as an accessory before the fact);
Davis, 267 Ind. at 158-59, 368 N.E.2d at 1152 (involving a defendant
convicted as an accessory before the fact); Wright, 266 Ind. at 342-43, 363
N.E.2d at 1229-30 (involving a defendant charged as a principal and a jury
instructed on accessory liability); Schmidt, 261 Ind. at 83, 300 N.E.2d at
87-88 (involving a defendant convicted as an accessory); Combs, 260 Ind. at
301-03, 295 N.E.2d at 370-71 (involving defendant convicted as an
accessory); McCarty, 44 Ind. at 215-17 (involving defendant convicted as an
accessory before the fact). In the only exception we find, this Court in
McKnight applied the doctrine of mandated consistency in the context of the
“assisting a criminal” statute, Ind. Code § 35-44-3-2, not in the context
of the accomplice liability statute, Ind. Code § 35-41-2-4, specifically
finding that, unlike the accomplice liability statute, the “assisting a
criminal” statute had not received explicit exception from the common law
rule. See McKnight, 658 N.E.2d at 561-62.
Just as the accomplice liability statute supersedes the common law of
criminal liability, abandoning the common law terms of principal and
accessory, it also supersedes the application of the common law doctrine of
mandated consistency when defendants are convicted under this statute. See
Johnson, 687 N.E.2d at 349; McKnight, 658 N.E.2d at 561. See also Rainey
v. State, 572 N.E.2d 517, 519 (Ind. Ct. App. 1991) ("[T]his rule [of
mandated consistency], reflecting logical consistency, was modified by the
1977 legislative enunciation of a public policy change which reflects a
view that each defendant and each trial shall be considered and treated
separately and independently.") (citing Ind. Code § 35-41-2-4); Williams v.
State, 406 N.E.2d 263, 264 (Ind. Ct. App. 1980) ("[R]egardless of its
desirability, this common law rule was abrogated with the passage of
Ind.Code 35-41-2-4, effective October 1, 1977."). Because under the
accomplice liability statute, any accomplice to a crime may be tried and
convicted upon sufficient proof, regardless of whether other accomplices
were prosecuted, convicted, or acquitted, the doctrine of mandated
consistency is inapplicable. See Johnson, 687 N.E.2d at 350 (citing Ind.
Code § 35-41-2-4).
In discussing the application of our accomplice liability statute, we
have noted that there is no separate crime of being an accessory to a crime
or aiding and abetting the perpetrator of a crime; rather, a defendant may
be convicted as a principal upon evidence that he aided or abetted in the
perpetration of the charged crime. Morrison v. State, 686 N.E.2d 817, 819
(Ind. 1997); Taylor v. State, 495 N.E.2d 710, 713 (Ind. 1986); Hoskins v.
State, 441 N.E.2d 419, 425 (Ind. 1982). Under this statute, "an actor who
would have been considered an accessory under the common law now
vicariously commits the actual offense," and "individuals convicted of
felonies in Indiana are considered to have been convicted on the weight of
their own actions even if the accomplice liability statute is utilized by
the court or jury to determine guilt." Johnson, 687 N.E.2d at 349
(citations omitted). Furthermore, "[a]n accomplice may be tried and
convicted when the proof of the underlying crime is sufficient despite the
fact that the other actor is not prosecuted, not convicted, or even
acquitted." Id. at 350 (citing Ind. Code § 35-41-2-4). Under the statute,
the individual who aids another person in committing a crime is as guilty
as the actual perpetrator. Morrison, 686 N.E.2d at 819. See also Wittle
v. State, 542 N.E.2d 981, 991 (Ind. 1989) ("[T]here is no distinction
between the responsibility of a principal and an accomplice. Thus, one may
be charged as a principal yet convicted as an accomplice.") (citations
omitted), overruled on other grounds by Scisney v. State, 701 N.E.2d 847,
848 (Ind. 1998).
The defendant invokes Article I, Section 23 of the Indiana
Constitution, claiming that his conviction for the murder of Davis violates
this provision by allowing the principal, Mills, whom the defendant
contends is the actual killer, "the privilege of being convicted of a
lesser crime than his non-killing accomplice." Brief of Defendant-
Appellant at 11. The defendant urges that, "within the narrow confines of
[this] case, allowing an accessory to be punished more severely than the
actual killer is not reasonably related to the legislative distinction
between accessories and principals." Brief of Defendant-Appellant at 11.
Article I, Section 23 of the Indiana Constitution provides that "[t]he
General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities which, upon the same terms, shall not equally
belong to all citizens." In reviewing an alleged violation of the
Privileges and Immunities Clause, we apply the following test:
Article 1, Section 23 of the Indiana Constitution imposes two
requirements upon statutes that grant unequal privileges or immunities
to differing classes of persons. First, the disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes.
Second, the preferential treatment must be uniformly applicable and
equally available to all persons similarly situated. Finally, in
determining whether a statute complies with or violates Section 23,
courts must exercise substantial deference to legislative discretion.
Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).
Contrary to the defendant's assertion that the statute establishes a
"legislative distinction between accessories and principals," Brief of
Defendant-Appellant at 11, the accomplice liability statute neither
establishes separate classes nor accords disparate treatment to Indiana
citizens or classes of citizens. Rather, the effect of the statute is just
the opposite. It removes the common law distinctions between principals
and accessories, between principals in the first degree and principals in
the second degree, and between accessories before the fact and accessories
after the fact, and renders all participants in the perpetration of a crime
accomplices who are equally responsible for the criminal acts.[4]
Under the first part of the Collins test, even if we accept the
defendant's contention that, as applied in this case, the statute grants
the actual killer "the privilege of being convicted of a lesser crime than
his non-killing accomplice" and thereby accords disparate treatment to two
classes, Brief of Defendant-Appellant at 11, we disagree with the
defendant's claim that the statute's disparate treatment "is not reasonably
related" to the inherent characteristics that distinguish the unequally
treated classes, Brief of Defendant-Appellant at 11. To the contrary, a
reasonable relationship could exist between such disparate treatment and
the inherent characteristics that distinguish the unequally treated
classes. In cases tried separately, the evidence may vary, and different
juries may independently determine that participants in the perpetration of
a crime exhibited different levels of culpability. In such an instance,
each defendant’s guilt is determined based on the evidence presented at
each separate trial. The defendant's claim fails under Collins.
We hold, therefore, that the accomplice liability statute, even as
applied in this case, does not violate the Privileges and Immunities Clause
of the Indiana Constitution.
II. Consecutive Sentences
The defendant also challenges his sentence, contending that the trial
court, in ordering the sentences to run consecutively, failed to find an
aggravating circumstance. He asks that we remand his case to the trial
court to state its reasons for imposing consecutive sentences or,
alternatively, to modify the sentence.
In order to impose consecutive sentences, a trial court must find at
least one aggravating circumstance. Jones v. State, 705 N.E.2d 452, 455
(Ind. 1999); Mitchem v. State, 685 N.E.2d 671, 680 (Ind. 1997).
Aggravating circumstances may include, but are not limited to, any of
several statutorily enumerated factors. Ind. Code § 35-38-1-7.1. In its
sentencing statement, the trial court acknowledged the defendant’s claim of
mitigating circumstance, but nevertheless imposed the presumptive sentence
for each of the two murder convictions, noting as to each murder that to
suspend any part of the sentence would “lessen the seriousness” of this
offense. Record at 1025. The court then ordered that the sentences for
the two murders be served consecutively because they “are crimes of
violence.” Record at 1026. This articulation falls short of the
requirement that a trial court's sentencing statement identify, explain,
and evaluate any aggravating circumstances used to impose consecutive
sentences. Ind. Code § 35-50-1-2. See Mitchem, 685 N.E.2d at 678.
Upon determining that a trial court improperly applied a justification
for enhanced or consecutive sentences, however, this Court may exercise its
power to review and revise the sentence. See Mitchem, 685 N.E.2d at 680.
As in Mitchem, we find that consecutive sentences are warranted here
because of the multiple separate and distinct criminal acts. The defendant
and his accomplice first strangled Brenda Cunningham with a towel in her
home and then fatally beat, choked, and suffocated Christal Davis in her
home a few blocks away. We find that the violent and protracted nature and
circumstances of these separate murders constitute aggravating
circumstances. The defendant's intoxication during the commission of the
murders, his voluntary surrender and cooperation with law enforcement, and
his remorse warrant consideration as mitigating circumstances. We
conclude, however, that the mitigation is clearly outweighed by the fact of
two extremely violent murders, each separately committed. We find that it
is appropriate, under the circumstances, for the defendant's sentences to
be served consecutively.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs in result in Part I and concurs in Part II.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] The defendant has petitioned us to take judicial notice of certain
facts related to Mills’s prosecution, conviction, and sentence, and has
submitted certified copies of Mills’s chronological case summary, his
charging information, and the verdict form signed by the jury foreman.
Evidence Rule 201(a) permits courts to take judicial notice of a fact that
is "not subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court, or (2)
capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned." We grant his request.
[3] In arguing that the statute violates the Equal Privileges and
Immunities Clause, the defendant relies heavily on the superseded common
law distinction between accessories and principals and the rules that
applied to them. Furthermore, even if this body of law were still viable,
the defendant's claim that he was an accessory is problematic. Regarding
the common law designations, we have said:
Under the common law, two general classes of criminals, neither
of which relate directly to the meaning of the term "accomplice," were
used to determine the nature and measure of an individual's
culpability. A principal was one who either actually perpetrated the
crime or who aided or abetted and was actively or constructively
present at the time of the crime. An accessory was one who procured,
counseled, commanded or abetted the principal, and who was absent when
the latter committed the crime, or who received, relieved, comforted,
or assisted the perpetrator after the crime had been committed.
Johnson, 687 N.E.2d at 349. We have also stated:
The common law created two categories of criminal offenders:
principals and accessories. Principals were those perpetrators who
were found to be present at the time of the criminal act. This
category was further split into two subgroups. An offender was a
principal in the first degree if he was the absolute perpetrator of
the crime. 3 W. Blackstone, Commentaries *34. A principal in the
second degree was an offender who was either actively or
constructively "present, aiding, and abetting the act to be done."
Id. The second group of offenders, called accessories, were those who
were neither the chief actors in the offense nor present at its
performance, but were in some way concerned therein, either before or
after the offense committed. Id. at *35.
McKnight, 658 N.E.2d at 560-61. Considering these common law definitions
of principals and accessories, we note that the defendant, who at least
aided in the killing of Davis and was actively present at the time of the
crime, would be a principal, not an accessory. Thus, the defendant's
argument would not prevail even using the common law designations.
[4] See also Ind. Code § 35-44-3-2 (regarding the crime of assisting a
criminal).