ATTORNEY FOR APPELLANT
Ann M. Skinner
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
STEVEN R. LOWRIMORE, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9806-CR-315
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton-Pratt, Judge
Cause No. 49G01-9509-CF-132515
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
May 26, 2000
BOEHM, Justice.
Steven Lowrimore was convicted of murder, felony murder, robbery as a
Class A felony and criminal confinement as a Class B felony. He was
sentenced to life imprisonment without parole for the murder and felony
murder counts, fifty years for robbery, and twenty years for criminal
confinement. In this direct appeal he contends that (1) his right to a
speedy trial under Criminal Rule 4 was violated; (2) the State engaged in
prosecutorial misconduct and violated Brady v. Maryland when it failed to
timely disclose that a witness had filed a petition for postconviction
relief; (3) the trial court erred in admitting marijuana and pipes into
evidence; and (4) double jeopardy precludes his convictions and sentences
for both murder and felony murder. We vacate the felony murder and
criminal confinement convictions, reduce the robbery conviction to a Class
C felony, and otherwise affirm the judgment of the trial court.
Factual and Procedural Background
Lowrimore shared a house in Indianapolis with Rebecca Lowe and Robert
Malcom. In late August of 1995, Debra Lawyer, who worked as a dancer at a
topless bar, also moved into the home. Within days of moving in, Lawyer
was dead.
According to Lowe, she, Malcom, and Lowrimore were conversing on the
evening of August 31. Lowrimore reported that he wanted money from Lawyer.
Lowe suggested that Lowrimore simply ask for the money, but the three also
discussed the possibility of grabbing Lawyer from behind and taking the
money by force. Because robbing Lawyer would likely lead her to report the
crime to police, Lowrimore stated, “No matter how we look at it, she has to
die.” At approximately 6:30 a.m. the next morning, Lowe and Lowrimore
spoke in the living room while Malcom slept in the bedroom and Lawyer slept
beside the bed. Lowe suggested that she sit on Lawyer and hold a pillow
over her face. Lowrimore and Lowe waited until Lawyer was lying on her
back. Lowe then “went down on [Lawyer’s] chest and held the pillow over
her face,” while Lowrimore sat on Lawyer’s legs and held one of her arms.
Lawyer’s scream wakened Malcom, and Lowrimore told Malcom to instruct Lowe
not to let up. Malcom testified to essentially the same facts. He said
that he awoke to find Lowe sitting on top of Lawyer holding a pillow over
Lawyer’s face while Lowrimore held Lawyer’s feet.
After several minutes Lawyer was silent but Lowrimore told Lowe that
he thought she had just passed out. Lowrimore then wrapped a cord around
Lawyer’s neck “and brought her straight up, [making] . . . several snapping
noises.” Lowrimore retrieved cash from Lawyer’s underwear. Later that day,
Lowrimore, Lowe, and Malcom drove to McCormick’s Creek State Park where
they left Lawyer’s body in a secluded area. Two weeks later, Lowe told
police of the murder and took them to the body. Due to decomposition, the
pathologist could not determine the specific cause of death.
Lowrimore, Lowe, and Malcom were charged with murder, felony murder,
conspiracy to commit murder, robbery, conspiracy to commit robbery, and
criminal confinement. Two months later, the State entered into a plea
agreement with Malcom and filed an information seeking the death penalty
against Lowrimore, alleging that Lowrimore had intentionally killed during
the commission of a robbery. The State later entered into a plea agreement
with Lowe.
In addition to Lowe and Malcom, Lawrence Bordenkecher testified at
trial that in the first half of September of 1995, Lowrimore had visited
his apartment where he stated, “I killed someone. And not only that, it
was a woman and not only that, it was a titty dancer.” James Burke, who
was housed in the same cellblock of the Marion County Jail as Lowrimore in
June of 1996, testified that Lowrimore showed him a picture of Lawyer and
said that he had “killed this stupid bitch.” He recounted that he had held
Lawyer’s legs while a “fat girl” got on top of her. Finally, another
inmate, James Chelf, testified that in July of 1997, Lowrimore had told him
that he had killed a girl named “Cricket”—Lawyer’s nickname—and had broken
her neck. In February of 1998 a jury found Lowrimore guilty of murder,
felony murder, robbery, and criminal confinement. He was found not guilty
of the remaining charges. The jury recommended a sentence of life
imprisonment without parole, and the trial court followed that
recommendation.
I. Criminal Rule 4
Lowrimore first contends the trial court violated his Criminal Rule 4
right to a speedy trial. Rule 4(B)(1) provides that an incarcerated
defendant who moves for a speedy trial is to be discharged if not brought
to trial within seventy calendar days of the motion. It excepts from the
seventy-day period any time attributable to a continuance or delay by the
defense, court congestion, or an emergency. At his initial hearing on
September 22, 1995, Lowrimore orally requested a speedy trial and the trial
court set the case for trial by jury on November 27, sixty-six days after
the speedy trial request.
On November 20, the State filed an information seeking the death
penalty. Criminal Rule 24 requires appointed counsel in death penalty
cases to consist of two attorneys meeting the qualifications of that Rule.
The public defender who had been appointed to represent Lowrimore on
September 27 was not qualified under Criminal Rule 24. The trial court
vacated the November 27 trial setting, finding that “an emergency exists.”
Lowrimore objected to the continuance and later moved for discharge.
Lowrimore first asserts that he is entitled to choose his speedy
trial right “over the rule requiring two Criminal Rule 24 attorneys.” Of
course Lowrimore has the right to represent himself and to retain counsel.
But if he chooses to proceed with court-appointed counsel the language of
Criminal Rule 24 is mandatory and requires trial courts in death penalty
cases to appoint two attorneys meeting the specified educational and
experience levels. The only exceptions are a defendant’s retention of
private counsel, Crim. R. 24(B), or a competent defendant’s knowing,
intelligent, and voluntary waiver of his right to counsel in a timely and
unequivocal manner, see Sherwood v. State, 717 N.E.2d 131, 137 (Ind. 1999).
Neither of these exceptions applies here. Thus, the trial court was
required to appoint two Criminal Rule 24 qualified attorneys. This
requirement became, as of November 20, a part of the legal environment of
the case in the same sense as the trial court’s schedule. It is a factor
to be considered in evaluating the pace at which the case can proceed. The
requirement of Criminal Rule 24 counsel is, of course, principally for the
defendant’s benefit, but not solely. The State has a strong interest in
the proper conduct of every trial and that concern is maximized in death
penalty litigation. Thus, a defendant accepting appointed counsel has no
right to opt out of Criminal Rule 24.
Lowrimore contends that, even if Criminal Rule 24 applies, no court
emergency existed because there was no evidence that the Criminal Rule 24
qualifications could not be met by the November 27 trial date. A trial
court’s finding of congestion is presumed to be valid and need not be
contemporaneously explained or documented. Clark v. State, 659 N.E.2d 548,
552 (Ind. 1995). If a trial court makes findings in response to a Motion
for Discharge, its findings are reviewed under a clearly erroneous
standard. Id. Although the face of the rule refers to “congestion of the
court,” which is understood by most to refer to demands imposed by other
cases on the court’s docket, our decisional law has interpreted court
congestion more broadly to include “the unavailability of essential
personnel or physical facilities.” Loyd v. State, 272 Ind. 404, 408, 398
N.E.2d 1260, 1265 (1980). In addition, Criminal Rule 4(B)(1) allows trial
courts to order a continuance upon a finding of “an emergency.” In this
case the trial court made the following finding: “To comply with Crim. R.
24, the trial judge had a duty to appoint two capital-qualified counsel . .
. . This obligation created the existence of an emergency making it
necessary for the trial judge to order a continuance of the trial date.”
Whether characterized as an emergency or court congestion resulting from
the unavailability of essential personnel, i.e., two Criminal Rule 24
qualified attorneys, the trial court’s findings are reviewed under the
clearly erroneous standard enunciated in Clark.
Lowrimore suggests that the appointment of Criminal Rule 24 qualified
counsel could have been made and trial held within a week. The trial
court’s conclusion was to the contrary and is supported by the record. We
do not believe that even the most capable attorneys could prepare a death
penalty case involving forty witnesses and over 100 pieces of evidence in a
week, even by use of depositions and other materials generated by
predecessor counsel. Moreover, no counsel had yet prepared for the
expected testimony of Malcom, which had just been secured pursuant to his
plea agreement. And no mitigating evidence had been investigated because,
before November 20, this was not a death penalty case.[1] It also seems
impossible that the reduced caseloads required for death penalty counsel by
Criminal Rule 24(B)(3) could have been met on the requested timetable.
Finally, the trial court’s own schedule would obviously be affected by
conversion of the case to a death penalty proceeding. As the State argues
on appeal, a capital case takes considerably longer to try because of the
need for extended voir dire before the presentation of evidence and the
additional requirement of a penalty phase. Additional jurors would have
been needed and a more detailed juror questionnaire would likely have been
required. All of this could not have been done in a week. The trial
court’s revised timetable was within the constitutional requirements for a
speedy trial. Under these circumstances the tighter Criminal Rule 4
schedules must yield to the exigencies created by the injection of the
death penalty. The trial court’s finding—whether styled emergency or
congestion—appears correct, and is certainly not clearly erroneous.
Finally, Lowrimore argues that in the face of his speedy trial request
the State should not have been permitted to wait two months to file the
death penalty. According to a newspaper article included in the record,
the State was considering seeking the death penalty in this case as early
as September. According to the State, however, the decision was postponed
until it reached a plea agreement with Malcom, “an eyewitness who can
testify to how the defendant killed the victim and effectuated a robbery
contributing to evidence of the necessary aggravating factor for the death
penalty.” The delay in filing the death penalty appears to be a considered
decision and certainly was a reasonable response to the uncertain state of
the evidence against Lowrimore before the plea agreement with Malcom was
finalized. Lowrimore does not contest the timeliness of the filing of
the death penalty count as a free-standing matter, and its filing three
days after the omnibus date and a week before the scheduled trial was
timely. See Games v. State, 535 N.E.2d 530, 534-36 (Ind. 1989). Rather,
Lowrimore implies that prosecutors must file the death penalty within days
of a speedy trial request, or never, so that the requirements of both
Criminal Rule 4 and Criminal Rule 24 can be satisfied. We do not believe
this is a basis for discharging Lowrimore. If it were, the effect of such
a doctrine would be to force premature decisions seeking the death penalty
to avoid risking discharge. This in turn could cause delayed charging
instruments to avoid starting the Criminal Rule 4 clock. None of these
tactical considerations should become dominant in the serious business of
death penalty litigation. The values of Criminal Rule 4 are important, but
so long as constitutional speedy trial standards are met, these values must
yield to the exigencies created by the death penalty charge if the two
cannot be reconciled.
In sum, although it is conceivable that a death penalty case might be
tried within the seventy-day period of Criminal Rule 4, it would almost
certainly require the diligent work of two Criminal Rule 24 attorneys
throughout the time period. Here, counsel would have been given a single
week. The trial court’s finding of an emergency under these circumstances
was not clearly erroneous.
II. Prosecutorial Misconduct
On the morning of January 30, 1998, Malcom testified against
Lowrimore pursuant to a plea agreement. His testimony spanned several
hours and encompassed some 250 pages of the record. Near the end of cross-
examination, defense counsel discovered that Malcom had filed a petition
for postconviction relief three and a half months earlier. The petition
alleged, in part, that his guilty plea was not voluntary and “was induced
by fraud, fear, force and ignorance.” Although a copy of the petition had
been mailed to Deputy Prosecutor Barb Trathen on October 8, 1997, she
stated late in the day on January 30, 1998, that she had not discovered the
sealed envelope containing the petition until the previous evening.[2]
Nevertheless, she did not provide a copy of the petition to defense counsel
the next morning, but rather allowed counsel’s extended cross-examination
of Malcom to proceed without the potential impeaching value of the
postconviction petition. Upon its discovery, Lowrimore moved for a
mistrial. The trial court accepted Trathen’s explanation that she had not
discovered the sealed envelope containing Malcom’s petition until the
evening of January 29, but found that the failure to disclose it to the
defense the following morning was a violation of the court’s discovery
order. Although the trial court found the State’s actions to be “highly
improper,” it found that the failure to timely disclose the petition did
not place Lowrimore in a position of grave peril, and thus denied the
motion for a mistrial. The trial court allowed the defense another
opportunity to cross-examine Malcom on the content of his petition for
postconviction relief.
A. Brady Claim
Lowrimore contends that the State’s actions violated Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny, which require the State to
disclose evidence that is favorable to the accused and material to the
accused’s guilt or punishment. See Williams v. State, 714 N.E.2d 644, 648-
49 (Ind. 1999), cert. denied, 120 S. Ct. 1195 (2000). Evidence favorable
to the accused includes impeaching evidence. Id. at 649. In this case,
however, we note that Malcom’s postconviction petition was disclosed during
trial; Lowrimore was given an opportunity to question Malcom about it; and
the jury was able to weigh its impeaching value in its verdict. Brady,
which applies to the discovery of favorable evidence “after trial,” see
United States v. Agurs, 427 U.S. 97, 103 (1976), does not apply here. See
Williams, 714 N.E.2d at 648-49; accord Dye v. State, 717 N.E.2d 5, 12 (Ind.
1999).
B. State Law Claim of Prosecutorial Misconduct
Lowrimore also contends that the belated disclosure constitutes
prosecutorial misconduct. A claim of prosecutorial misconduct requires a
determination that there was misconduct by the prosecutor and that it had a
probable persuasive effect on the jury’s decision. Cox v. State, 696
N.E.2d 853, 859 (Ind. 1998). The trial court found the State’s belated
disclosure of the postconviction petition to be misconduct, but found that
the misconduct did not have a probable persuasive effect on the jury’s
decision and denied the motion for mistrial. A mistrial is “an extreme
remedy granted only when no other method can rectify the situation.”
Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind. 1996) (quoting Underwood v.
State, 644 N.E.2d 108, 111 (Ind. 1994)). Here, the trial court allowed
Lowrimore another opportunity to question Malcom about the postconviction
petition and Lowrimore points to no reason why this was not an adequate
remedy.
In Goodner v. State, after the eyewitness to a murder concluded his
testimony, the prosecutor revealed to defense counsel that he had
previously offered to recommend a bond reduction for the witness on an
unrelated charge. 714 N.E.2d 638, 640 (Ind. 1999). The witness was
recalled the next day and the arrangement was revealed to the jury. We
found that the “[c]omplete failure to disclose this deal would constitute
prosecutorial misconduct and require a new trial,” but that “[u]nder
current doctrine reversal under these circumstances is not required.” Id.
at 642. Here, as in Goodner, disclosure occurred at trial and defense
counsel was able to question the witness about the belatedly disclosed
material. The trial court did not abuse its discretion in denying
Lowrimore’s motion for a mistrial.
We reiterate the importance of the State’s timely disclosure of
evidence to the defense. This Court noted in Goodner that a prophylactic
rule requiring reversal may be required if recurring abuses occur. See id.
In the months since Goodner, several other cases have presented issues of
belated disclosure, see Warren v. State, 725 N.E.2d 828, 832 (Ind. 2000);
Dye, 717 N.E.2d at 11-12; Gardner v. State, 724 N.E.2d 624, 628 (Ind. Ct.
App. 2000). Disturbingly, each of these cases, like Goodner and Williams,
arises in Marion County. Lowrimore’s trial, like each of the others,
occurred before our opinion in Goodner. Accordingly, we will not consider
abandoning the requirement of a showing of prejudice from belated
disclosure until the issue is presented in a trial occurring after Goodner
was issued.
III. Marijuana Evidence
Lowrimore argues that the trial court erred in admitting a bag of
marijuana and two pipes found in his house. Lowrimore objected to the
evidence at trial on relevancy grounds, noting this was a murder case, not
a drug case. The State responded that there had been previous testimony as
to the usage of marijuana around the time of the crime, and the admission
of the evidence merely corroborated testimony of other witnesses. The
trial court overruled the objection and admitted the evidence.
“‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” Ind. Evidence Rule 401. Relevant evidence “may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, or misleading the jury, or by
considerations of undue delay, or needless presentation of cumulative
evidence.” Ind. Evidence Rule 403. The only issue of any consequence in
Lowrimore’s trial was the identity of Lawyer’s killer. Whether Lowrimore
had smoked marijuana or had possession of marijuana near the time of the
offense had no relevance. Accordingly, the marijuana and pipes should not
have been admitted.
Nevertheless, as this Court explained in Fleener v. State, 656 N.E.2d
1140, 1142 (Ind. 1995), “an error will be found harmless if its probable
impact on the jury, in light of all of the evidence in the case, is
sufficiently minor so as not to affect the substantial rights of the
parties.” See Ind. Trial Rule 61. Here, the State presented strong
evidence of Lowrimore’s guilt. Both Malcom and Lowe provided eyewitness
accounts of the killing. In addition, Bordenkecher, Chelf, and Burke all
testified about Lowrimore’s post-crime confessions of guilt to them. The
erroneous admission of this evidence was harmless.
IV. Double Jeopardy
Lowrimore was convicted of murder, felony murder, robbery as a Class
A felony and criminal confinement as a Class B felony. The State concedes
that a defendant may not be convicted of both murder and felony murder for
the killing of the same person. See, e.g., Garrett v. State, 714 N.E.2d
618, 621 (Ind. 1999). Accordingly, the felony murder conviction must be
vacated. The jury’s verdicts also raise other issues under the Indiana
Double Jeopardy Clause. As explained in Richardson v. State, 717 N.E.2d
32, 53 (Ind. 1999), the actual evidence test prohibits dual convictions if
there is “a reasonable possibility that the evidentiary facts used by the
fact-finder to establish the essential elements of one offense may also
have been used to establish the essential elements of a second challenged
offense.”
A person who knowingly or intentionally confines another person
without the other person’s consent commits criminal confinement, a Class D
felony. Ind. Code § 35-42-3-3 (1998). The offense becomes a Class B
felony if it results in serious bodily injury to the other person. Id.
Here, the jury was instructed that to convict Lowrimore of criminal
confinement the State must have proven that he confined Lawyer without her
consent by holding her on the ground and pushing a pillow against her face
and choking her with a cord, which resulted in serious bodily injury to
Lawyer, that is, a broken neck. To convict Lowrimore of murder, the jury
was instructed that the State must have proven beyond a reasonable doubt
that Lowrimore knowingly killed Lawyer by means of asphyxiation. Based on
these instructions and the absence of any additional basis for a criminal
confinement conviction in the State’s closing argument, we believe there is
a reasonable possibility—indeed a high probability—that the jury used the
same evidentiary facts—the suffocation and choking of Lawyer—to prove both
the murder charge and the criminal confinement charge. Accordingly, the
criminal confinement conviction must be vacated.
Robbery as a Class C felony is defined by statute as knowingly or
intentionally taking property from another person by using or threatening
the use of force or putting any person in fear. Ind. Code § 35-42-5-1
(1998). It becomes a Class B felony if committed while armed with a deadly
weapon or if it results in bodily injury to any person other than the
defendant, and a Class A felony if it results in serious bodily injury to
any person other than the defendant. Id. The jury was instructed that to
convict Lowrimore of robbery the State must have proven beyond a reasonable
doubt that Lowrimore took United States currency from Lawyer by putting her
in fear or using or threatening the use of force on Lawyer, which resulted
in serious bodily injury, that is, a broken neck. Because of the
decomposition of Lawyer’s body, the cause of death was undetermined. The
murder instruction merely mentions killing by “asphyxiation,” which
presumably could be either suffocation with the pillow or Lowrimore’s tying
the cord around Lawyer’s neck. Because there is a reasonable possibility
that the same evidence used by the jury to establish the essential elements
of murder was also included among the evidence establishing the essential
elements of robbery as a Class A felony, the two cannot stand. The robbery
conviction was elevated based on the same serious bodily injury that formed
the basis of the murder conviction. Accordingly, we remand to the trial
court to reduce the robbery conviction to a Class C felony and to impose a
sentence of eight years.[3] Cf. Chapman v. State, 719 N.E.2d 1232, 1234
(Ind. 1999) (reducing a Class A felony conviction for robbery while armed
with a handgun to a Class B felony based on Richardson).
Conclusion
Steven Lowrimore’s conviction for murder and sentence of life
imprisonment without parole is affirmed. This case is remanded to the
trial court with instructions to vacate the convictions for felony murder
and criminal confinement, and to reduce the robbery conviction to a Class C
felony and impose a sentence of eight years on that count.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] The United States Supreme Court recently emphasized the importance of
mitigating evidence in capital cases. See Williams v. Taylor, 120 S. Ct.
1495, 1515-16 (2000) (remanding for a new penalty phase while observing
that mitigating evidence may influence the jury's appraisal of the
defendant's moral culpability and alter its selection of a penalty).
[2] Trathen explained to the trial court that the sealed envelope
containing the petition was "buried in the Robert Malcom file." When asked
if she knew how it got there, Trathen responded, "Interns who have been
working-- There's been a turnover of folks working on the file.
Apparently, it had just gotten stuffed in there by mistake."
[3] Lowrimore was sentenced to the maximum sentence of fifty years for
robbery as a Class A felony, and does not challenge the enhancement of that
sentence on appeal. There is no need to remand for a new sentencing where,
as here, it is sufficiently clear that the trial court would impose the
maximum sentence for the Class C felony. See Cutter v. State, 725 N.E.2d
401, 410 n.4 (Ind. 2000).