Ingle v. State

Attorney for Appellant

Michael J. McDaniel
McDaniel & Betteau
New Albany, IN

Attorneys for Appellee

Jeffrey A. Modisett
Attorney General of Indiana

Andrew L. Hedges
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

JOHN INGLE,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

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) Supreme Court No.
) 22S00-9611-DP-724
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APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Richard G. Striegel, Judge
Cause No. 22D01-9607-CF-183

ON DIRECT APPEAL

May 8, 2001

SULLIVAN, Justice.

Defendant John Ingle shot his estranged wife to death in a restaurant
where she worked, then fired on a police officer as he attempted to escape.
He was convicted of murdering and attempting to kidnap his wife and
attempting to murder the police officer. We affirm the murder and
attempted murder convictions.

Defendant was sentenced to death for the murder. Indiana law permits
a death sentence only if the State proves beyond a reasonable doubt that
one or more “aggravating circumstances” specified by the legislature exist.
Here, the State charged that Defendant killed his wife while attempting to
take her hostage and while “lying in wait.” We find that the State proved
neither and so a death sentence is not permitted under Indiana law.

Background

The evidence at trial showed that Defendant John Ingle was upset that
his wife, Debbie Ingle, had left him. On the evening of July 26, 1996,
Defendant went to Debbie’s place of employment, Tommy Lancaster’s Bar, and
threw a brick through the windshield of her car. On the morning of the
27th, Defendant watched from a concealed position as the police arrived to
take a report from Debbie. After the police left, Defendant went and
purchased clothes to use as a disguise. Defendant then returned to Tommy
Lancaster’s. When he walked in, Debbie immediately recognized him and she
shouted for someone to call the police. As Debbie ran behind a counter,
Defendant shot her. Five bullets struck Debbie, killing her.
Defendant then left the bar, concealing his gun. As he fled toward
the Ohio River, he was soon confronted by Officer Russell Witt. He refused
to comply when Officer Witt ordered him to lie down. When Officer Witt
sprayed Defendant with mace to force him to comply, Defendant fired the
remaining shots in his gun. One of the bullets struck the patrol car and
four struck Officer Witt; three hit his protective vest and one went up his
right arm into his chest, seriously injuring him.

A jury found Defendant guilty of Murder,[1] Attempted Murder,[2] a
Class A felony, and Attempted Kidnapping, a Class A felony.[3] Alleging
two aggravating circumstances, Murder committed by lying in wait[4] and
Murder while Attempting Kidnapping,[5] the State sought a sentence of
death. The jury recommended death and the court sentenced Defendant to
death. Additional sentences of 50 years for attempted kidnapping and 50
years for the attempted murder were imposed.

Additional facts will be provided as necessary.

I

Defendant contends that his killing of Debbie Ingle constituted
voluntary manslaughter rather than murder. He states, “events over the
several weeks prior to the homicide merely support a factual basis which
would cause an ordinary person to lose control....” Appellant’s Br. at 44-
45. When Defendant entered the bar and approached Debbie, she identified
him and shouted for someone to call the police. Defendant contends that
this incited his passions “to the extent it prevented deliberation.” Id.
at 44.

A person commits voluntary manslaughter when the person “knowingly or
intentionally kills another human being while acting under sudden heat.”
Ind. Code § 35-42-1-3(a) (1993). Sudden heat is a mitigating factor that
reduces what otherwise would be murder. Id. § 35-42-1-3(b). Sudden heat
occurs where provocation engenders rage, resentment, or terror sufficient
to obscure the reason of an ordinary person, preventing deliberation and
premeditation, excluding malice, and rendering a person incapable of cool
reflection. See Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998), reh’g
denied; Powers v. State, 696 N.E.2d 865, 868 (Ind. 1998).

Defendant states that he “placed the issue of sudden heat in the
evidence,” and “‘the prosecution bears the ultimate burden of negating any
defense which is sufficiently raised by the defendant.’” Appellant’s Br.
at 43 (quoting Wolfe v. State, 426 N.E.2d 647, 652 (Ind. 1981)).

We agree with that proposition but find that the State’s evidence
rebutted Defendant’s sudden heat defense. As discussed under Background,
supra, Defendant vandalized Debbie’s car, waited for the police to leave,
attempted to disguise himself, walked into the bar, and then opened fire
when Debbie tried to run behind the counter. This evidence is sufficient
for a jury to conclude that Defendant was not provoked and that his actions
were deliberate. Defendant may well have been enraged that Debbie shouted
for someone to call the police, but this is not “sufficient provocation” to
establish sudden heat. It is predictable that one would call out for the
police or for some kind of help when assaulted by a person with a gun. The
prosecution sufficiently rebutted the Defendant’s claim of sudden heat.

II

Defendant contends that he was entitled to have the jury instructed
that it could convict him of attempted voluntary manslaughter, rather than
attempted murder of Officer Witt, asserting that the officer’s actions
“engendered the rage, terror and anger which factually justify a finding of
sudden heat.” Appellant’s Br. at 47.

When Defendant was intercepted by New Albany police officer Russell
Witt during his flight toward the Ohio River after killing Debbie, he
refused to comply when Officer Witt twice ordered him to lie on the ground.
Officer Witt maced Defendant, who responded by shooting Officer Witt.

Defendant was not entitled to an attempted voluntary manslaughter
instruction on these facts. We addressed the same argument in Spranger v.
State, 650 N.E.2d 1117 (Ind. 1995), reh’g denied:
Because citizens have a duty to submit to a lawful arrest by a law
enforcement officer, such an arrest will not be recognized as legally
adequate to provoke the passions of an ordinary person to sudden heat
so as to justify a conviction for the lesser offense of manslaughter.

Id. at 1122.

Defendant acknowledges that the officer’s actions were “quite lawful
and performed during an arrest.” Appellant’s Br. at 48. As such, they
cannot be the basis for a sudden heat defense. The trial court correctly
refused to instruct the jury on attempted voluntary manslaughter.

III

Defendant next contends that the trial court erred in denying his
requests for disqualification of the prosecuting attorney and for the
appointment of a special prosecutor.

The basis of Defendant’s claim stems from the relationship between
Defendant’s younger brother, Gordon Ingle, and the prosecuting attorney,
Stanley Faith. Gordon, a lawyer, worked under Faith as a deputy
prosecuting attorney between January 1, 1987, and July, 1989, and as a
volunteer deputy until January, 1991. Gordon and Faith remained friends
after Gordon stopped working at the prosecutor’s office.

Gordon, Faith, and a mutual friend, James Hancock, had lunch together
on the day before the killings, and Defendant was discussed in the
conversation. The trial court probed the nature and substance of the
conversation at a hearing on Defendant’s motion to require the State to
disclose all possible bases for the disqualification of the prosecuting
attorney. Gordon testified that he could only “recall saying something to
the effect that there was [going to] be a homicide/suicide in Floyd
County.” Hancock testified during the same hearing that the tenor of the
conversation was that Defendant was out of control and that he “was going
to do something.” Hancock further testified that he did not recall any
specific comments that Faith made during the conversation, but that Faith
“indicated … that he was aware that there was a protective order in effect
and basically that from a … law enforcement standpoint, that was probably
all that could be done at that point.”

Faith’s presence at the conversation was never disclosed to the jury.
Nevertheless, Defendant argues that the court should have granted
Defendant’s motion to disqualify Faith and appoint a special prosecutor;
that Faith failed to disclose the extent of his personal knowledge of the
conversation, resulting in prejudice to the Defendant; and that Defendant
was incorrectly barred from calling Faith as a witness, frustrating
Defendant’s right to present a defense. We find, for reasons discussed
below, that the trial court did not err in shielding Faith from testifying,
and that there was no resulting prejudice to Defendant.

A

Defendant sought to call Faith as a witness to testify regarding his
recollection of the conversation between Faith and Gordon in which Gordon
discussed Defendant’s state of mind. Defendant argues that Faith’s
recollection of the conversation would relate to the issue of Defendant’s
state of mind and would have therefore contributed to Defendant’s defense.

Ordinarily, counsel is not subject to being called as a witness. See
Chatman v. State, 263 Ind. 531, 545, 334 N.E.2d 673, 682 (1975). We stated
in Matheney v. State, 583 N.E.2d 1202 (Ind.) cert denied, 504 U.S. 962
(1992):
As a general rule, a prosecuting attorney cannot be called as a
defense witness unless the testimony sought is required by compelling
and legitimate need. The trial court in its discretion may deny the
request if the prosecutor does not have information vital to the case.
Where the evidence is easily available from other sources and absent
“extraordinary circumstances” or “compelling reasons,” an attorney who
participates in a case should not be called as a witness.

Id. at 1206 (quotations in original) (citations omitted).

We see no basis for concluding that Faith had any information that was
not easily available from other sources and, therefore, that the court
properly shielded him from testifying. Any information Faith may have had
would have stemmed from his conversation with Gordon regarding Defendant’s
mental state; there is no contention that Faith had any personal knowledge
of Defendant’s mental health. Had there been useful information discussed
during the conversation, Hancock or Gordon could have testified to it.

B

Defendant claims that “the State’s failure to disclose the personal
knowledge of Faith concerning the conversation creates the strong inference
that the information withheld was favorable to Defendant and this
constitutes a violation of the [Brady] disclosure rule.” In Brady v.
Maryland the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” 373 U.S.
83, 87 (1963). Here, however, Defendant knew of the lunchtime conversation
prior to the trial, as evidenced by the fact that, before the trial, he
filed a motion to disqualify Faith based on the conversation. In
addition, there is no evidence that the State failed to disclose any
evidence of material value regarding Faith’s conversation with Gordon.
There is no basis to find a Brady violation.

C

Defendant contends that his right to present a defense was frustrated
by the court order barring him from calling prosecutor Faith as a witness.
Defendant cites Crane v. Kentucky for the proposition that “the
Constitution guarantees criminal defendants ‘a meaningful opportunity to
present a completed defense.’” 476 U.S. 683, 690 (1986) (quoting
California v. Trombetta, 467 U.S. 469, 485 (1984)). Defendant claims that
his inability to call Faith as a witness deprived him of the opportunity to
present a defense: “[T]he presence of Faith at the luncheon conversation
would impact the jury.” Appellant’s Br. at 56.

The exclusion of Faith as a witness did not prevent Defendant from
presenting a defense. Hancock testified that the “tenor of the
conversation was that [Defendant] was out of control.” Id. Faith had no
personal knowledge of Defendant’s state of mind and there is no indication
that Faith could have bolstered Defendant’s defense. We see no basis for
concluding that the jury would have decided differently had it known of
Faith’s involvement in the conversation. Defendant had ample opportunity
to present a defense, including evidence regarding his mental state.

D

Defendant contends that his motion to disqualify Faith and appoint a
special prosecutor should have been granted by the trial court. The
appointment of a special prosecutor in Indiana is governed by Indiana Code
§ 33-14-1-6 (Supp. 1996). Indiana Code § 33-14-1-6(b)(2) provides:
A circuit or superior court judge … may appoint a special prosecutor
if:
A) a person files a verified petition requesting the appointment of a
special prosecutor; and
B) the court, after:
(i) notice is given to the prosecuting attorney; and
(ii) an evidentiary hearing is conducted at which the prosecuting
attorney is given an opportunity to be heard;
finds by clear and convincing evidence that the appointment is
necessary to avoid actual conflict of interest or there is probable
cause to believe that the prosecutor has committed a crime.

In the present case, Defendant filed a petition under Indiana Code §
33-14-1-6(b)(2) requesting a special prosecutor. The judge reviewed
motions and head oral arguments as required by that statute. The judge
also heard the testimony of Gordon Ingle and James Hancock in a motion to
compel discovery hearing. The judge then denied Defendant’s motion to
disqualify the prosecuting attorney, finding no conflict of interest or
crime committed by the prosecutor.

Defendant does not appear to contend that the trial court’s decision
not to appoint a special prosecutor violated the statute. Rather, he
argues that prosecutors should also be subject to disqualification for
violations of standards of ethical conduct, a circumstance he contends that
the statute does not embrace. Defendant maintains that it would be
anomalous if “[t]he only way a trial court may remove a prosecutor where
the appearance of impropriety exists is when the prosecutor agrees to the
appointment of a special prosecutor.” Appellant’s Br. at 58.

Defendant argues that prosecutors are more than mere advocates of the
State and are charged with maintaining fairness and justice in the judicial
system. Defendant cites the Comment to Rule 3.8 of Indiana’s Rules of
Professional Conduct which states, “A prosecutor has the responsibility of
a minister of justice and not simply that of an advocate. This
responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the
basis of sufficient evidence.” Defendant also cites Rule 8.4 which
provides in part, “it is professional misconduct for a lawyer to … engage
in conduct that is prejudicial to the administration of justice.” Ind.
Professional Conduct Rule 8.4. Defendant also cites a statement by the
United States Supreme Court that “the United States Attorney is the
representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interests, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be
done.” Berger v. United States, 295 U.S. 78, 88 (1935).

The implication of these citations appears to be that the court
should disqualify a prosecutor who does not live up to these standards even
though the prosecutorial disqualification statute does not provide a
mechanism for appointing a special prosecutor in such circumstances. Be
that as it may, we see nothing in the record suggesting that Faith violated
any ethical duties here. Nor do we see anything in the record that
suggests the trial court was incorrect in finding no disqualifying conflict
of interests or probable cause to believe the prosecutor committed any
crime. We affirm the trial court’s decision not to disqualify Faith.

IV

Defendant contends that the evidence at trial was insufficient to
sustain his conviction for the attempted kidnapping of Debbie.

The State presented evidence that Defendant went into the bar with
the intent of confining Debbie to convince her to return to him. Most
damning was Defendant’s statement that he “was going to try and kidnap
[Debbie].” State’s Exhibit No. 15.

A

“A person attempts to commit a crime when, acting with the culpability
required for commission of the crime, he engages in conduct that
constitutes a substantial step toward commission of the crime.” Ind. Code
§ 35-41-5-1(a) (1993). The legislature has set forth the elements of
kidnapping as follows:

(a) A person [commits kidnapping by] knowingly or intentionally
confin[ing] another person: (1) with intent to obtain a ransom; (2)
while hijacking a vehicle; (3) with intent to obtain the release, or
intent to aid in the escape, of any person from lawful detention; or
(4) with intent to use the person confined as a shield or hostage.

(b) A person [commits kidnapping by] knowingly or intentionally
remov[ing] another person, by fraud, enticement, force, or threat of
force, from one place to another: (1) with intent to obtain ransom;
(2) while hijacking a vehicle; (3) with intent to obtain the release,
or intent to aid in the escape, of any person from lawful detention;
or (4) with intent to use the person removed as a shield or hostage.

Id. § 35-42-3-2.

Therefore, under the law, a defendant is guilty of attempted
kidnapping if—but only if—each of the following is proven beyond a
reasonable doubt:

1. The defendant knowingly or intentionally engages in conduct
that constitutes a substantial step towards at least one
of the following:

a. Confining another person; or

b. Removing another person, by fraud, enticement, force,
or threat of force, from one place to another.

2. In engaging in that conduct, defendant intended to do at
least one of the following:

a. Obtain ransom;

b. Hijack a vehicle;

c. Obtain the release, or aid in the escape, of any person
from lawful detention; or

d. Use the person confined as a shield or hostage.

It is undisputed that Defendant intentionally engaged in conduct that
constituted a substantial step toward removing Debbie by force or threat of
force from one place to another. It is also undisputed that Defendant’s
did not engage in this conduct with intent to obtain a ransom; while
hijacking a vehicle; with intent to obtain the release or to aid the escape
of any person from lawful detention; or with intent to use Debbie has a
shield. Therefore, in order for Defendant to be guilty of attempted
kidnapping, the State was required to prove beyond a reasonable doubt that
Defendant engaged in this conduct with intent to use Debbie as a hostage.

The State’s theory was that Defendant was attempting to remove Debbie
by force from the bar to convince her to reconcile with him and that this
constituted his attempting to make her his “hostage.” Defendant contends
that a person is only a “hostage” if the person has been confined or
removed by the abductor to secure an act or forbearance from a third party.
The evidence is undisputed that Defendant was trying to secure something
from Debbie only – her promise to return to him – and not from a third
party. For this reason, Defendant argues, Debbie was not a “hostage” and
that there is a failure of proof on an essential element of the crime.

B

The success of Defendant’s claim depends, therefore, on whether the
Legislature meant the kidnapping statute to apply when the abductor’s only
goal is to get a third party to do or not do something or also to apply
when the abductor’s goal is to get the victim to do something or not do
something.

As we have noted before, the Legislature has not defined the term
“hostage.” Bartlett v. State, 711 N.E.2d 497, 501 (Ind. 1999). To
determine its meaning, we attempt to ascertain and give effect to the
intent of the Legislature. Id. Two aspects of the way in which the
Legislature has written our criminal code indicate to us that Defendant’s
reading of the statute is correct.

First, the Legislature has created another, different, crime –
criminal confinement – that covers the situation where a perpetrator
abducts a victim in order to induce some act or forbearance on the victim’s
part. The Legislature has set forth the elements of the crime of criminal
confinement as follows:

A person [commits criminal confinement] who knowingly or
intentionally:
(a) confines another person without the other person’s consent; or
(b) removes another person, by fraud, enticement, force, or threat of
force, from one place to another.

Ind. Code § 35-42-3-3 (1993). The crime of criminal confinement is clearly
a lesser included offense of kidnapping. But if the term “hostage”
encompasses a victim confined or removed by a perpetrator for no purpose
beyond inducing some act or forbearance on the part of the victim alone,
every act of criminal confinement would constitute a hostage-taking. This
is because the force or coercion exercised in a criminal confinement always
induces an act or forbearance on the part of the victim; at the very least,
the victim is induced to submit and cooperate in the confinement.

While it is conceivable that the Legislature intended to have both
the crimes of criminal confinement and kidnapping cover the same situation,
we believe it is more likely that the Legislature did not intend for
kidnapping to apply to the situation where the abductor’s only goal is to
get the victim to do or not do something. Rather, we believe the
Legislature intended for kidnapping to apply to those more aggravated
situations where the abductor intends for third persons to become involved.

A second aspect of the way in which the Legislature has written our
criminal code supports this conclusion.

The four subsections of the kidnapping statute each refer to scenarios
where a victim becomes a tool in the abductor’s plan. First, in
subsections (1) and (3) of § 35-42-3-2, the ransom or the release of a
person lawfully confined are ultimate goals, and the victim confined is
merely a pawn in the larger scheme; in a hijacking under subsection (2),
transportation is usually the ultimate objective; and it is clear that a
shield under subsection (4) is used to ward off some independent force.
These subsections all suggest situations in which a neutral captive is
taken as the means to obtain a separate primary end. Given the meaning of
the other subsections of § 35-42-3-2, a consistent definition of hostage
would refer to one who is taken to secure some separate demand from another
party.

C

The State cites our decision in Bartlett v. State, 711 N.E.2d 497
(1999), to support its view of the meaning of hostage. In Bartlett, the
defendant Bartlett took two victims, Michael and Barr, captive. Among the
crimes of which Bartlett was convicted were the kidnappings of both Michael
and Barr. On appeal, Bartlett challenged the conviction of the kidnapping
of Michael. The facts of the case showed that at various points during the
criminal episode in question, Bartlett had held a weapon on Barr while
requiring Michael to perform certain acts. We found that Bartlett’s
actions amounted to the kidnapping of Michael as well as Barr, stating, “so
long as a defendant detains a person as security for the performance of a
demand during the course of a kidnapping, the detainee is a hostage for the
purposes of our kidnapping statute.” Id. at 501.

The State argues that Defendant’s actions in this case were consistent
with those found to constitute the kidnapping of Michael in Bartlett.
Though we acknowledge that the language from Bartlett quoted above appears
to support the State’s argument, the full decision in Bartlett supports the
alternative view.

The defendant in Bartlett argued that “Barr, and not Michael, was the
hostage because Bartlett … procured the compliance of Michael by pointing
the gun at Barr.” Id. at 501. We decided that both Michael and Barr could
be hostages at the same time, stating, “In multiple hostage situations, it
is entirely possible that a threat against one or more of the hostages may
be used to obtain the compliance of others, sometimes simultaneously.” Id.
(emphasis added). Our reference to “others” was meant to indicate that in
the case of hostages, demands are made to third parties; Bartlett was a
situation where the third party with respect to each victim was the other
victim.

Other language in Bartlett supports this view. In concluding that
Michael was a hostage, we stated, “Michael was clearly held captive for the
purpose of ensuring that Barr continued to comply with Bartlett’s demands.
This explicitly occurred when Bartlett trained the gun on Michael and
ordered Barr to drive.” Id. (emphasis added). In fact, most of the
analysis in Bartlett would have been unnecessary under the State’s view of
“hostage.” We held in Bartlett that both victims were “hostages” because
each was used to obtain the compliance of the other. Id. Under the
State’s view of “hostage,” there would have been no question that Michael
and Barr were hostages because each one was held by force to secure his and
her own compliance respectively. There would have been no need to inquire
as to whether one hostage was held to secure the compliance of the other.

D

This definition of the word “hostage” is consistent with that given it
in other states that have similar kidnapping statutes. In State v. Crump,
484 P.2d 329 (N.M. 1971), New Mexico’s Supreme Court overturned a
kidnapping conviction, defining “hostage” for the purposes of their
kidnapping statute to mean: “the unlawful taking, restraining or confining
of a person with the intent that the person, or victim, be held as security
for the performance, or forbearance, of some act by a third person.” Id.
at 335. In State v. Moore, 340 S.E.2d 401 (N.C. 1986), a case with similar
facts to this one, the North Carolina Supreme Court adopted New Mexico’s
definition.[6] Id. at 406.

In State v. Stone, 594 P.2d 558 (Ariz. 1979), the Arizona Court of
Appeals confronted a similar question. The defendant in Stone was a
prisoner who escaped from a hospital by taking two people captive at
gunpoint. Like Indiana, Arizona’s kidnapping statute refers to one who
intends to “hold or detain … any individual … as a shield or hostage… .”
Id. at 562. The Arizona Court of Appeals distinguished between a person
held as security for an act or forbearance by a third party, and those held
to coerce the detainee. The court found that the captives were not
“hostages,” because there was no “evidence that appellant intended to hold
or detain either of his victims as security for the performance, or the
forbearance, of some act by a third person.” Id. at 563.[7]

E

We hold that the term "hostage" in the Indiana kidnapping statute,
Indiana Code § 35-42-3-2 (1993), refers to a person who is held as security
for the performance or forbearance of some act by a third party. To the
extent such a person is held solely to secure demands upon that person
alone, the perpetrator may be guilty of criminal confinement, Indiana Code
§ 35-42-3-3 (1993), but not kidnapping.

We further hold that there is insufficient evidence to find that
Defendant committed attempted kidnapping because there is no evidence that
he intended to take Debbie hostage. During an interview with the police,
Defendant stated that he “was going to try and kidnap her.”[8] State’s
Exhibit No. 15. Defendant also stated during the trial that he was trying
to get Debbie to return to him. A reasonable jury could infer from the
evidence that Defendant intended to confine Debbie and demand her return,
but there is no evidence that he intended to make any demands on a third
party. We conclude that Defendant never intended to take Debbie hostage
and, consequently, could not have been attempting to kidnap her.

V

In a murder case, the State may seek either a death sentence or a
sentence of life imprisonment without parole by alleging the existence of
at least one of the aggravating circumstances listed in Indiana Code § 35-
50-2-9(b). Among the constitutional and statutory requirements for
imposing a death sentence, the State must prove the existence of at least
one aggravating circumstance beyond a reasonable doubt. See Bellmore v.
State, 602 N.E.2d 111, 127 (Ind. 1992), reh’g denied; Davis v. State, 477
N.E.2d 889, 892 (Ind.), cert. denied 474 U.S. 1014 (1985).

The State charged two aggravating circumstances in this case: Murder
while attempting kidnapping and murder while lying in wait. We have upheld
the death penalty in other domestic violence murders. See Wrinkles v.
State, 690 N.E.2d 1156 (Ind. 1997) (upholding death penalty where the
defendant killed his wife and her brother and sister-in-law), cert. denied,
525 U.S. 861 (1998); Baird v. State, 604 N.E.2d 1170 (Ind. 1992) (upholding
a death sentence of a defendant who killed his wife, his mother, and his
father), cert. denied, 510 U.S. 893 (1993); Matheney v. State, 583 N.E.2d
1202 (Ind.) (affirming death penalty of a defendant who killed his former
wife), cert denied, 504 U.S. 962 (1992). But applicable constitutional and
statutory law requires proof beyond a reasonable doubt of at least one
aggravating circumstance listed in Indiana Code § 35-50-2-9(b) to support a
death sentence. Because the facts do not support either of the aggravating
circumstances charged, we cannot affirm the death penalty.

A

Indiana Code § 35-50-2-9(b)(1)(E) (Supp. 1996), provides that the
State may seek the death sentence or a sentence of life imprisonment
without parole by alleging that the “defendant committed the murder by
intentionally killing the victim while … attempting to commit …
kidnapping.” As stated in Part IV, supra, there is insufficient evidence
to find that Defendant attempted to kidnap Debbie. As such, existence of
the aggravating circumstance of intentional murder while attempting
kidnapping has not been proven beyond a reasonable doubt.

B

Defendant also contends that the State failed to prove the aggravating
circumstance of lying in wait beyond a reasonable doubt. See Appellant’s
Br. at 38.

Early on the morning of the killing, Defendant threw a brick through
the windshield of Debbie’s car, which was parked outside of Tommy
Lancaster’s. Defendant, concealed in a nearby tree, watched as Debbie
arrived and spoke to the police about the incident. After the police left
and Debbie went into the pub, Defendant hid his gun in a nearby tree and
left. Defendant walked to a nearby campsite to get a ride to Goodwill
where Defendant purchased clothing that he could use as a disguise.
Defendant’s friend then dropped him off a few blocks from Tommy Lancaster’s
and Defendant went to retrieve his gun from the tree. Soon afterward,
Defendant walked into the pub and approached Debbie. As Defendant
approached Debbie, she called out for someone to call the police, at which
point, Defendant shot Debbie.

Lying in wait involves the elements of “watching, waiting, and
concealment from the person killed with the intent to kill or inflict
bodily injury upon that person.” Davis, 477 N.E.2d at 896; Matheney, 583
N.E.2d at 1208. The concealment must be used “as a direct means to attack
or gain control of the victim,” Davis, 477 N.E.2d at 897, creating a nexus
between the watching, waiting, and concealment and the ultimate attack.

In this case, Defendant did watch, wait, and conceal himself outside
of Tommy Lancaster’s, but his concealment at that time did not constitute
any part of murder by lying in wait. The evidence does show that Defendant
waited for Debbie to arrive at her car, and he watched Debbie speak to the
police, but Defendant did not use his concealment in the tree as a means to
attack Debbie. Instead, he left the scene to walk to the nearby campsite
and then rode with his friend to Goodwill. Because Defendant did not use
his concealment as a “direct means to attack or [to] gain control of the
victim,” and a substantial amount of time passed between his concealment in
the tree and the killing, it does not contribute to the charge of lying in
wait.

In this respect, this case resembles Davis, where we found that the
defendant did not commit a murder by lying in wait. See Davis, 477 N.E.2d
at 897. The defendant in Davis watched and waited from a concealed
position, but “did not use the concealment as a direct means to attack or
gain control of the victim.” Id. Instead, the defendant went openly into
the victim’s tent and forced him to go with him by use of a deadly weapon.
The Court found that “[t]here was not a sufficient connection between the
concealment and the murder … to support a finding that [the] murder was
committed by ‘lying in wait.’” Id. (quotation in original).

Though his watching and waiting in the tree did not constitute lying
in wait, we must also determine whether Defendant’s disguise and final
assault fulfill the requirements of lying in wait.

We have characterized lying in wait as a crime in which:
[T]here is considerable time expended in planning, stealth and
anticipation of the appearance of the victim while poised and ready to
commit an act of killing. Then when the preparatory steps of the plan
have been taken and the victim arrives and is presented with a
diminished capacity to employ defenses, the final choice in the
reality of the moment is made to act and kill.

Thacker v. State, 556 N.E.2d 1315, 1324-25 (Ind. 1990). Though Defendant
was disguised, he did not watch for the victim, nor did he wait. Rather,
Defendant walked to where he thought Debbie would be and approached her
directly. Defendant’s actions could reasonably lead a jury to presume
deliberation and forethought, yet they do not fit our legal definition of
lying in wait.

Conclusion

We affirm Defendant’s convictions of murder and attempted murder. We
reverse Defendant’s conviction of attempted kidnapping. And we reverse
Defendant’s sentence of death because there was insufficient evidence of
the existence of either of the aggravating circumstances charged by the
State. We therefore remand to the trial court for resentencing to a term
of years in accordance with applicable law.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

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[1] Ind. Code § 35-42-1-1 (1993).

[2] Id. §§ 35-41-5-1 and 35-42-1-1.

[3] Id. §§ 35-41-5-1 and 35-42-3-2.

[4] Id. § 35-50-2-9(b)(3).

[5] Id. § 35-50-2-9(b)(1)(E).
[6] The defendant in Moore abducted his estranged wife after waiting
for her in the parking lot outside her job and took her back to his
trailer. When the police arrived, Defendant refused to give up or release
his wife “‘unless they could promised him he would not go to jail.’”
Moore, 340 N.E.2d at 407 (quotation in original). The Court found that the
initial abduction was not a kidnapping, stating, “[I]n determining whether
the evidence in the instant case supports a finding that the defendant
intended to hold his wife as a hostage, we do not consider evidence of his
attempts to coerce her to come back to him.” Id. at 406. According to the
Court, however, the victim became a hostage when the “defendant confined
the victim as security for prevention of his arrest by law enforcement
authorities and to extract from them a promise that he would not go to
jail.” Id. at 407.

[7] The Arizona Supreme Court, however, upheld the kidnapping
conviction because it found that the defendant intended to use the victims
as “shields against interference or interception by the police.” Stone,
594 P.2d at 564. Unlike Defendant in this case, the defendant in Stone
directed his captives to walk in front of him so that he could make it past
the police. Id. at 563.
[8] Defendant’s reference to “kidnapping” may reveal his intent based
on his understanding of the term, but it does not influence the meaning of
the statute.