concurring in part and dissenting in part.
The murder took place during and in the course of the robbery. Thompson was armed with a pistol and clearly participated in the robbery even though he was not the shooter. He is, therefore, guilty of felony murder even if credit be given to Burris's pre-execution statement. Jenkins v. State, 726 N.E.2d 268 (Ind.2000); Jackson v. State, 597 N.E.2d 950 (Ind.1992), cert. denied, 507 U.S. 976, 113 S.Ct. 1424, 122 L.Ed.2d 793 (1993); Seeley v. State, 544 N.E.2d 153 (Ind.1989). The statement that "James Thompson did not know what was going on" does not imply that Thompson was not present or that he did not participate in the robbery. See slip op. at 3. It is susceptible only to the inference that Thompson was not aware that Burris intended to assassinate Chambers.
With regard to Burris's statement, I agree that the substance of the Burris statement was not newly discovered and that therefore it would not have been error to have excluded it during post-conviction proceedings. The statement was, however, admitted, and in discussing it the majority here concludes that it was not a dying declaration because it "did not concern what he believed to be the cause or cireumstances of his impending death ... [and that the statement] did not address what he believed to be the cause of his imminent execution." respectfully disagree. Slip op. p 7-8. I
I believe it to be without question that the cause of his imminent execution was that he murdered Mr. Chambers. The Burris statement in that regard, that Thompson did not know "what was going on," clearly concerned the murder of Chambers, ie. "the cause or circumstances of [Burris's] impending death." It therefore fell within the hearsay exception of Ind. Rules of Evidence 804(b)(2).
Nevertheless, I concur in the conclusion of the majority that admission of Burris's declaration at a retrial for Thompson would merely serve to impeach the testimony of Merriweather concerning Thompson's participation in the eriminal activities leading up to and following the death of Chambers. For this reason I agree that the Burris statement would not likely produce a different result.
Notwithstanding my disagreement as to whether the Burris statement was a dying declaration, I fully concur that the post-conviction court did not err in refusing to grant relief.