ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy R. Uliana Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Gary Damon Secrest
Jodi Kathryn Stein
Deputy Attorney Generals
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Feb 19 2009, 9:24 am
Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court
No. 71S05-0808-CR-446
ROBERT JEFFREY PELLEY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the St. Joseph Superior Court, No. 71D08-0208-MR-00016
The Honorable Roland W. Chamblee, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 71A05-0612-CR-726
_________________________________
February 19, 2009
Boehm, Justice.
Robert Jeffrey Pelley appeals his convictions for the murders of his father, stepmother,
and two stepsisters. We affirm Pelley‘s convictions. We hold that the Criminal Rule 4(C) period
does not include the time for the State‘s interlocutory appeal when trial court proceedings have
been stayed. We also hold that the evidence was sufficient to support the convictions, and the
trial court did not err in its challenged evidentiary rulings or in denying Pelley‘s motion for a
special prosecutor.
Facts and Procedural History
In 2007, a jury found Pelley1 guilty of the 1989 murders of his father, stepmother, and
two stepsisters. The convictions were based on circumstantial evidence supporting the State‘s
theory that Pelley, who had been grounded from events connected to his high school senior
prom, killed his father in order to attend those activities with his girlfriend, and killed his step-
mother and stepsisters because they were present when he killed his father. Pelley was sentenced
to consecutive forty-year sentences, for an aggregate sentence of one hundred sixty years. Pelley
appealed his convictions, raising four claimed errors:
I. Denial of his motion for discharge under Criminal Rule 4(C) because he
was not tried within one year after his arrest due to the State‘s interlocuto-
ry appeal;
II. Insufficient evidence to support the convictions;
III. Admission of certain hearsay statements and exclusion of evidence regard-
ing a third-party motive and the prosecutor‘s delay in bringing charges;
and
IV. Denial of Pelley‘s petition for a special prosecutor.
The Court of Appeals reversed Pelley‘s convictions on the first issue and therefore did not ad-
dress the remaining three. Pelley v. State, 883 N.E.2d 874, 876 (Ind. Ct. App. 2008). We
granted transfer and affirm the trial court on all four issues. We set out the facts and procedural
steps relevant to each issue in the following sections.
I. Interlocutory Appeals and Criminal Rule 4(C)
Pelley argues that Indiana Rule of Criminal Procedure 4(C) entitles him to discharge.
That Rule provides that a defendant may not be held to answer a criminal charge for greater than
one year unless the delay is caused by the defendant, emergency, or court congestion.2 In Pel-
1
The defendant‘s formal name is Robert Jeffrey Pelley, and his father‘s is Robert L. Pelley. Throughout
trial, the parties referred to the defendant as ―Jeff‖ and his father as ―Bob.‖ We will follow this conven-
tion, and also refer to Jeff as ―Pelley.‖ A number of witnesses adopted new last names between the mur-
ders and the trial. We refer to all witnesses by the names used in 1989.
2
The full text of Rule 4(C) is:
No person shall be held on recognizance or otherwise to answer a criminal charge for a
period in aggregate embracing more than one year from the date the criminal charge
against such defendant is filed, or from the date of his arrest on such charge, whichever is
later; except where a continuance was had on his motion, or the delay was caused by his
2
ley‘s case, the Rule 4(C) period was triggered by his August 10, 2002 arrest, and the period was
extended slightly by Pelley‘s agreement to a continuance.
Trial did not occur within the 4(C) period because of a discovery dispute and the result-
ing interlocutory appeal. On August 22, 2002, the State issued a subpoena duces tecum to the
Family & Children‘s Center, which provided counseling to the Pelley family in 1988 and 1989.
The subpoena directed production of the family‘s counseling records but did not provide a spe-
cific response date. The Center moved to quash the subpoena on February 26, 2003 on the
ground that the counseling records were privileged.
The State and the Center submitted memoranda and lengthy arguments at the hearing on
the motion to quash. Pelley submitted no written materials but responded orally and was subs-
tantively aligned with the Center, except that Pelley alone objected to the trial court‘s in camera
examination of the counseling records. Ultimately, the trial court reviewed the records in camera
and granted the Center‘s motion to quash. The trial court noted that none of the records con-
tained information related ―directly to the fact or immediate circumstances‖ of the murders even
under an expansive interpretation of that phrase.
At the State‘s request, the trial court certified its order for interlocutory appeal, finding
that the order involved a substantial question of law and that the State would have an inadequate
remedy without the interlocutory appeal. The Court of Appeals accepted the appeal and stayed
proceedings in the trial court pending resolution of the appeal. The issue was ultimately resolved
by this Court‘s opinion of June 14, 2005, holding in part that the trial court erred in quashing the
subpoena. State v. Pelley, 828 N.E.2d 915, 923 (Ind. 2005). Pelley did not participate in the ap-
peal.
act, or where there was not sufficient time to try him during such period because of con-
gestion of the court calendar; provided, however, that in the last-mentioned circumstance,
the prosecuting attorney shall file a timely motion for continuance as under subdivision
(A) of this rule. Provided further, that a trial court may take note of congestion or an
emergency without the necessity of a motion, and upon so finding may order a conti-
nuance. Any continuance granted due to a congested calendar or emergency shall be re-
duced to an order, which order shall also set the case for trial within a reasonable time.
Any defendant so held shall, on motion, be discharged.
3
The case was remanded to the trial court, and on October 28, 2005, trial was set for July
10, 2006. Pelley did not object to this trial date. On January 4, 2006, Pelley filed a motion to
dismiss under Rule 4(C), arguing that the July 10, 2006 trial date was beyond the one-year period
provided by Rule 4(C), and Rule 4(C) does not contain an exception for interlocutory appeals.
The State responded that the time for the interlocutory appeal should be charged to the defense or
court congestion, and the stay prevented the State from acting during the appeal. The trial court
denied Pelley‘s motion, finding that although Pelley did not cause the delays incident to the in-
terlocutory appeal, the Criminal Rule 4(C) period was tolled during the appeal. The trial court
also noted that the stay issued by the Court of Appeals ―preclud[ed] the trial court from exercis-
ing jurisdiction,‖ and assumed that ―the Appellate Court was aware that such stay would, inter-
fere with observance of the Defendant‘s C.R. 4(C) Rights.‖ Pelley requested, and the trial court
denied, an interlocutory appeal of this order. Pelley then brought an original action in this Court
for writ of prohibition and writ of mandamus. We denied his petition without an opinion.3
Pelley‘s trial began July 12, 2006. The State did not seek to introduce the counseling
records, or anything derived from the records. The jury found Pelley guilty of all four murders.
Pelley appealed his convictions and argues that he was entitled to discharge under Rule 4(C).
A majority of the Court of Appeals reversed Pelley‘s convictions, holding that discharge
was required because Rule 4(C) contains no exception for interlocutory appeals, and Pelley was
not responsible for the delay. Pelley v. State, 883 N.E.2d 874, 885 (Ind. Ct. App. 2008). Judge
Friedlander dissented, reasoning that the delay for the interlocutory appeal was excluded from
the 4(C) period as a form of emergency or court congestion. Id. at 887–88. The only question is
whether Rule 4(C) excludes the time for the State‘s interlocutory appeal from its one-year limita-
tion. This issue is one of law which we review de novo.
A defendant extends the one-year period by seeking or acquiescing in delay resulting in a
later trial date. Vermillion v. State, 719 N.E.2d 1201, 1204 (Ind. 1999). A defendant waives his
3
The State contends that our denial of Pelley‘s original action precludes Pelley from invoking Rule 4(C)
on appeal. As the Court of Appeals correctly determined, our denial of Pelley‘s petition for writ of man-
damus was not a judgment on the merits of his 4(C) claim, but a judgment that he was not entitled to re-
lief by extraordinary writ. Pelley v. State, 883 N.E.2d 874, 880 (Ind. Ct. App. 2008) (citing Vermillion v.
State, 719 N.E.2d 1201, 1204 n.5 (Ind. 1999)).
4
right to be brought to trial within the period by failing to raise a timely objection if, during the
period, the trial court schedules trial beyond the limit. Id. However, a defendant has no duty to
object to the setting of a belated trial date if the setting occurs after the year has expired. Morri-
son v. State, 555 N.E.2d 458, 463 (Ind. 1990), overruled on other grounds by Cook v. State, 810
N.E.2d 1064, 1067 (Ind. 2004). As a result of these rules, if the time for interlocutory appeal is
excluded from the Rule 4(C) period, then Pelley waived his claim by failing to object to the July
10, 2006 trial setting because the one-year limitation had not expired when that trial date was set.
On the other hand, if the time for interlocutory appeal is included, the one-year limitation had
long passed when the trial date was set, and Pelley‘s discharge was required notwithstanding his
failure to object.
This Court has previously examined the effect of the State‘s interlocutory appeal on the
period in which a defendant must be brought to trial. In Martin v. State, 245 Ind. 224, 228, 194
N.E.2d 721, 723 (1963), the State filed a mandamus proceeding following the trial court‘s denial
of the State‘s motion for a change of judge. During the course of the mandamus action, the sta-
tutory time limit—then framed in terms of court4—expired. The defendant moved for discharge,
arguing that the time for the State‘s mandamus proceeding could not be attributed to him. We
upheld the trial court‘s denial of the discharge motion, in part because the defendant was the real
party in interest in the change of judge, and his attorneys represented the respondent judge in the
original action. Id. at 229, 194 N.E.2d at 724. We also stated that the three-term statute did not
apply ―where the delay was caused by proceedings in this court.‖ We explained that neither the
prosecutor nor the trial judge could control the time required for an appeal, and most appeals
would trigger a dismissal, a result that the legislature could not have intended. Id. Following the
4
Criminal Rule 4(C)‘s predecessor was a statute providing in part that ―[n]o person shall be held by re-
cognizance to answer an indictment or affidavit, without trial, for a period embracing more than three
terms of court. . . .‖ 1905 Indiana Acts, chap. 169, § 220, at 632 (later codified at Ind. Code § 35-1-27-1).
This Court‘s 1965 adoption of Rule 1-4D, effective in 1970 as Criminal Rule 4, superseded the statutory
limitation. The original Rule 4(C) provided in part
No person shall be held by recognizance to answer an indictment or affidavit, without tri-
al, for a period embracing more than one year continuously from the date on which a re-
cognizance was first taken therein.
The three-term limit translates into the current one-year limit. Prior to 1967, Indiana courts observed
May, September, and November terms. This distinction was abolished by statute which extended the
term to the calendar year. Ind. Code § 33-23-2-1 (2004).
5
adoption of our criminal rules, we quoted Martin with approval in State ex rel. Cox v. Super. Ct.
of Madison County, 445 N.E.2d 1367, 1368 (Ind. 1983), in holding that Rule 4(B)‘s early trial
requirement was tolled pending the State‘s interlocutory appeal of the trial court‘s ruling on de-
fendant‘s motion in limine.
We believe that Martin‘s rationale controls here. When trial court proceedings have been
stayed pending resolution of the State‘s interlocutory appeal, the trial court loses jurisdiction to
try the defendant and has no ability to speed the appellate process. As a practical matter, apply-
ing the Criminal Rule 4(C) one-year requirement to interlocutory appeals would render an appeal
by the State impossible because it would in all likelihood trigger a mandatory discharge of the
defendant. Accordingly, we conclude that Rule 4(C)‘s one-year limitation does not include the
time during which trial proceedings have been stayed pending interlocutory appeal.
We note that the time for an interlocutory appeal is excluded from Rule 4(C)‘s limitation
only when trial court proceedings have been stayed. The trial court and Court of Appeals have
discretion to deny a motion to stay if it appears that the State is seeking a stay for improper pur-
poses, or if the appeal presents issues that are not critical to the case. Indeed the latter seems to
have been the case here, as the materials produced were never admitted in evidence. Additional-
ly, although Appellate Rule 21(A) provides generally for expedited consideration of interlocuto-
ry appeals, in the future the State should alert the appellate court when it pursues an interlocutory
appeal not chargeable to the defendant so the appellate court can be sensitive to the defendant‘s
interest in avoiding delay.
II. Sufficiency of the Evidence
Pelley contends that there is insufficient evidence to support his murder convictions.
When reviewing a claim of insufficient evidence, we do not reweigh evidence or judge the credi-
bility of witnesses. Rather, if there is probative evidence from which a reasonable jury could
have found the defendant guilty beyond a reasonable doubt, we affirm the conviction. O‘Connell
v. State, 742 N.E.2d 943, 949 (Ind. 2001). Circumstantial evidence is sufficient for a conviction
if inferences may reasonably be drawn that allowed the jury to find the defendant guilty beyond a
reasonable doubt. Pierce v. State, 761 N.E.2d 821, 826 (Ind. 2002).
6
The State‘s evidence against Pelley is entirely circumstantial. The State‘s evidence of
motive was inconsistent statements given by Pelley and his father leading up to the prom about
what activities Pelley could attend. The State‘s evidence identifying Pelley as the murderer con-
sisted of a timeline placing Pelley at the scene just before the murders, the appearance that the
murders were an ―inside job,‖ Pelley‘s experience with weapons, the absence of the father‘s
shotgun following the murders, inconsistent statements made by Pelley about his activities on the
night of the murders, and statements made by Pelley suggesting but not directly supporting his
guilt.
The facts supporting the convictions follow. In the spring of 1989, seventeen-year-old
Jeff Pelley lived with his father, Bob, his sister, Jacque, his stepmother, Dawn, and her children,
Jessica, Janel, and Jolene. Jeff and Jacque‘s mother had died of cancer in 1985, and Bob and
Dawn had married approximately nine months later. In 1986, Bob had become minister of the
Olive Branch Church on Osborne Road in Lakeville, approximately twelve miles from South
Bend, and the family moved into the parsonage next door. Bob and Jeff were frequently in con-
flict, often relating to Jeff‘s resentment of his stepmother and his feeling that she was replacing
his deceased mother.
In April 1989, Bob grounded Jeff and prohibited him from driving his Ford Mustang and
attending senior prom activities, which included dinner, a dance, an afterprom, and a trip to the
Great America amusement park in suburban Chicago. The insurance on Jeff‘s Mustang was sus-
pended on April 12, 1989, and the policy change noted that Jeff ―is grounded from using this car
and all vehicles in household.‖ As the prom approached, Jeff eventually received permission to
attend the dance on the condition that Bob would drive Jeff and his girlfriend, Darla Emmons.
Jeff and Darla were not pleased with this arrangement.
A few days before prom weekend, Jeff told Darla that he was working on changing Bob‘s
mind to permit him to attend the dinner before the dance. On the Friday night before the prom,
Jeff told Darla that he had received permission to attend all prom activities, but that Darla should
not mention this to anyone because it was a sore subject. However, according to five witnesses,
Bob told them in the twenty-four hours before the prom that Jeff was permitted to attend only the
7
dance, and Bob would drive Jeff and Darla. Bob also mentioned that he had removed a part from
Jeff‘s car to prevent Jeff from driving.
On the day of the prom, Saturday, April 29, 1989, Jeff worked the early morning shift at
McDonald‘s, washed his car, and watched a baseball game on television. By late afternoon,
Bob, Dawn, Jeff, Janel, and Jolene were all at the parsonage, and Jessica and Jacque were visit-
ing friends for the weekend. Around 4:30 or 4:45, Kim Oldenburg, a family friend who had
dated Jeff, stopped by with her mother and prom date to show the Pelleys her dress. Kim felt
there was tension at the house during her visit. Kim noticed that Jeff was quiet and was wearing
a pink and blue shirt and blue jeans.
Matt Miller, Jeff‘s friend from school, stopped by around 4:40 or 4:45. Matt left after a
few minutes when he realized that he had forgotten his date‘s corsage at home. Kim, her date,
and her mother left shortly before 5:00. After picking up the corsage, Matt passed back by the
Pelley residence around 5:15 and saw Jeff‘s car in the driveway.
Around 5:20, Jeff, now wearing a black shirt and jeans, arrived at a local Amoco station
driving his Mustang. He entered the station and called Darla to let her know he was running late.
He also asked the attendant for a piece of cardboard and a screwdriver to fix his car, which he
said was idling too high. After receiving some help with his car from another Amoco employee,
Jeff left the station.
Around 5:30, Jeff met Darla and another couple at a friend‘s home. Jeff quickly changed
into his tuxedo and posed for some pictures. Both couples left for dinner.
The first indication that the Pelleys had been murdered came around 5:30, when Bob and
Dawn failed to make an expected arrival at Crystal Easterday‘s home to see her prom dress. Af-
ter waiting about fifteen minutes, Crystal and her date decided to stop by the Pelleys‘ on their
way to dinner. When Crystal arrived at the Pelley home, the Pelleys‘ station wagons, but not
Jeff‘s Mustang, were in the driveway, and all the doors were locked and the curtains closed.
This surprised her because the Pelleys normally kept their doors and curtains open during the day
when their cars were in the driveway.
8
Others noticed the lack of movement at the Pelley home. Around 6:00, one of the Pel-
leys‘ neighbors was mowing his lawn and noticed that the Pelleys‘ lights were off and that none
of the girls were playing outside, which he thought was unusual. Around 6:30 or 7:00, a member
left the church and noticed that there was no movement at the Pelley house.
Jeff and Darla arrived at dinner in South Bend around 6:40. After dinner, Jeff and Darla
went to the dance. Jeff saw Crystal at the dance and asked whether his parents had stopped by
her home. She told him they had not, but that she had stopped at the Pelley home and found it
locked.
After the dance, Jeff changed out of his tuxedo at a friend‘s house and went to the after-
prom party at a local bowling alley. At the bowling alley, Jeff asked Kim Oldenburg if he could
join the slumber party at her house that night. Kim agreed, and Jeff and Darla spent the night at
Kim‘s house with several other friends.
Around 7:00 a.m. on Sunday, April 30, Jeff and Darla left Kim‘s to get Darla‘s car and
some money. While Darla was retrieving money from her house, Jeff spoke with Darla‘s moth-
er, who said she was surprised that he was going to Great America. Jeff responded that he had a
―two-day pass from Pelley prison.‖ Jeff and Darla returned to Kim‘s house, where a group pro-
ceeded to Great America. At Great America, Jeff became quiet and told Darla that he ―had a
feeling that something was wrong‖ and ―felt like something wasn‘t right inside.‖
Meanwhile, back in Lakeville, Harold Saunders, the Pelleys‘ next door neighbor, called
the Pelleys around 7:00 a.m. to ask if they would let his dog out that day. The Pelleys did not
answer their phone, and their curtains were closed. Harold and his wife had noticed that the
night before, the Pelleys‘ basement light was still on at 9:15 and around midnight. They thought
this was strange because the girls slept downstairs and normally went to bed early. They also
noticed that the Pelleys‘ dog was outside on its chain, instead of in its kennel where it normally
stayed when the Pelleys‘ curtains were closed.
Just before 9:30 a.m. on Sunday, members of Bob Pelley‘s congregation assembled for
the church service. When Bob and the family did not arrive at church, members of the church‘s
9
board of trustees went to the parsonage and found the doors locked and the curtains closed. Af-
ter finding a spare key, they entered the home.
The trustees found Bob Pelley‘s body in the upstairs hallway. He had been shot twice
with deer slugs from a 20-gauge shotgun, once in the chest and once in the neck. His feet were
pointed toward the end of the hallway leading to Jeff‘s bedroom and the master bedroom, and he
was dressed in everyday clothes rather than pajamas or church clothes. The trustees called an
ambulance. After the paramedics arrived, they found the bodies of Dawn, Janel, and Jolene hud-
dled together in the basement, also dressed in everyday clothes. Each had been shot once from a
distance of a few feet with deer slugs from a 20-gauge shotgun. Dawn had been shot in the tem-
ple, Janel in the forehead, and Jolene just below her right eye.
Police later learned that Bob owned a 20-gauge Mossberg 500 pump-action, single-barrel
shotgun with interchangeable rib and slug barrels. The shotgun held five or six rounds and was
typically stored in the master bedroom gun rack. Jessica saw the shotgun in the gun rack on Fri-
day afternoon before she left, but it was not in the home after the murders, and was never found.
After investigating the crime scene, police found no evidence of burglary or forced entry.
Inside the washing machine was a small load consisting of a pink and blue shirt, blue jeans, and
socks that had been through a wash cycle. A luminol test of the washing machine cylinder was
inconclusive, indicating either a reaction with blood or with the phosphates found in laundry de-
tergents used in 1989. An empty gun case was found in the basement behind some sleeping
bags. No shell casings were found.
Jessica told police that Jeff had gone to Great America, and Lakeville police contacted
Illinois authorities, who found Jeff and Darla, told them of the murders, and held them until
Lakeville police arrived and returned them to the Lakeville police station. On the way home
from Great America, Jeff spontaneously told Darla that he ―didn‘t do it,‖ and asked whether she
believed him.
Around 4:45 a.m. on Monday, May 1, police conducted a videotaped interview of Jeff in
the presence of his maternal grandparents who had arrived from their home in Kentucky. Jeff
said he left his home at 4:45 or 4:50 p.m. on Saturday and stopped at a Casey‘s gas station be-
10
cause his car was idling too fast. He made the repair with some cardboard from his car, using his
key as a screwdriver, and proceeded to get Darla. At 7:00 p.m. on May 1, Jeff gave a second,
unrecorded statement. Jeff again gave his version of the events, stating that he stopped at the
Casey‘s gas station because of car trouble. By this time, the police had learned from Darla that
Jeff had called her from an Amoco station. When questioned about the discrepancy, Jeff became
nervous and upset. He said that he had stopped at Casey‘s, but had also stopped at an Amoco
station because it had tools. When questioned again, he said that he stopped at Casey‘s to buy a
pop and proceeded to the Amoco. The detective told Jeff that he did not accept this story be-
cause pop was available at both stations. The detective then told Jeff that he believed Jeff was
involved in the murders, and the car trouble was part of a way to account for a time gap. Jeff
slumped down in his chair, lowered his head, covered his eyes, and asked whether he could see
Darla that night, whether he would go to jail that night, and whether he would get the electric
chair. Jeff also asked ―if there were some things that led up to what happened, would it make a
difference with what happened to him.‖
The State presented sufficient evidence from which the jury could conclude beyond a
reasonable doubt that Jeff committed the four murders: evidence of motive, access to a weapon
of the type used, and presence at the site were all established. Alternate explanations seem im-
plausible. The home was locked, suggesting a person with a key had been at the scene, and Pel-
ley‘s account of his activities at the time was inconsistent and, on the videotape, sometimes flus-
tered.
Pelley argues that his convictions cannot stand because the State‘s theory of the crimes is
―inconsistent with the laws of nature and human experience.‖ Pelley contends that a teenager,
within twenty minutes, could not kill four of his family members, put his clothes in the washing
machine, pick up the shotgun shells, take a shower, get dressed, draw the blinds, lock the doors,
fix his car, and dispose of the gun and shells. Although the time window is narrow, we do not
believe it is inconsistent with Pelley‘s guilt. Pelley was described at trial as a ―very intelligent,
young man,‖ and his statements throughout the week that he would be able to attend all prom
activities suggest that the murders were premeditated and planned. The jury could reasonably
conclude that Pelley performed these necessary actions within the available time.
11
Pelley also points to inconsistencies in the accounts given by police of the length and
content of the second police interview and who was present. He also cites inconsistencies be-
tween Jessica and Jacque regarding the presence of the shotgun in the master bedroom on Friday
evening. Pelley also points out that despite extensive police effort, no murder weapon has been
located, and he had no visible bruising from a shotgun in the days following the murder. How-
ever, none of these is conclusive of innocence. It is the jury‘s role to weigh these factors, and the
jury found Pelley guilty beyond a reasonable doubt.
III. Evidentiary Rulings
Pelley claims that the trial court made three erroneous evidentiary rulings: (1) admitting
hearsay statements regarding which prom activities he was permitted to attend, (2) excluding tes-
timony showing a third-party motive, and (3) excluding testimony explaining the State‘s delay in
bringing charges.
A. Hearsay Regarding Prom Activities
Eight witnesses testified to statements made by Bob Pelley regarding restrictions on Jeff
Pelley‘s attendance of prom activities. The State argues that these statements were admissible to
show Bob‘s intent to act in a particular way. Pelley contends that the state of mind exception to
the hearsay rule applies for victims only when the defendant has placed the victim‘s state of
mind at issue.
Hearsay is an out of court statement offered to prove the truth of the matter asserted and
is inadmissible unless it falls under an exception. Ind. Evidence Rule 801(c), 802. One excep-
tion is for a ―statement of the declarant‘s then existing state of mind . . . (such as intent, plan,
motive, design, mental feeling, pain and bodily health) . . . .‖ Ind. Evid. R. 803(3).5 Bob Pel-
ley‘s statements show his intent to act in a particular way—to restrict Jeff‘s attendance at prom
5
Although Bob was a victim in this case, the exception is not limited to victims, and it is not necessary
that the defendant raise this issue. Rather, the rule permits statements of any person to show his or her
intent, and the issue is frequently whether the person‘s state of mind is relevant. This issue often arises in
the context of deceased victims‘ statements, e.g., Pierce v. State, 705 N.E.2d 173, 176 (Ind. 1998); Ross
v. State, 676 N.E.2d 339, 344 (Ind. 1996); Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995), but is not
limited to that context. For that reason it is sometimes described in terms of ―the victim‘s‖ state of mind,
and Pelley frames his argument in those terms.
12
activities and drive Jeff and his date to the prom. These statements are relevant to Jeff‘s motive
for committing the murders and are therefore admissible under the hearsay exception for then-
existing state of mind.
B. Exclusion of Testimony Regarding Third-Party Motive
Pelley argues that the trial court erred in excluding evidence that a third party had a mo-
tive for the murders. Pelley asserts that the exclusion violated his Sixth Amendment right to
present a complete defense. Pelley also contends that the third-party motive evidence shows that
the police investigation failed to follow all possible leads, and therefore the State did not prove
his guilt beyond a reasonable doubt.
Bob had apparently worked at a bank in Florida before the Pelleys moved to Indiana. On
cross-examination of the lead detective in this case, Pelley sought to ask the detective about
statements made by Pelley and his sister, Jacque, concerning events when Bob was at the bank.
The State objected, and Pelley made an offer to prove that in April 1990, Pelley told the detec-
tive that Bob used to work for a Florida bank, and that Bob may have been killed because some-
one found out about money laundering at the bank. Pelley also offered to prove that in 2002
Jacque told an investigator that (1) before the family moved to Indiana, a million dollars in cash
was missing from the bank, and Bob was called in to work in the middle of the night; (2) Bob
was responsible for finding the missing money and was in charge of the computers at the bank;
(3) after this incident, the family suddenly moved to Indiana; and (4) the DEA closed the bank in
March 1990. Pelley also offered a report made to investigators in August 2002 that a resident on
the Pelley‘s street said that another person who also lived on the street told him he had seen a
white limousine with Florida license plates in the area of the Pelley home on the day of the prom
in 1989. The trial court determined that this evidence was ―too attenuated because it leaves utter
speculation‖ and sustained the State‘s objection. Later during the trial, Pelley called Jacque as a
witness and wanted to ask her about Florida. The State objected that Jacque‘s testimony would
be hearsay, and that she was only ten or eleven years old when she lived in Florida. Again the
trial court sustained the State‘s objection. Pelley did not make an offer of proof regarding Jac-
que‘s proposed testimony.
13
Evidence of a third-party motive tends makes it less probable that the defendant commit-
ted the crime, and is therefore relevant under Rule of Evidence 401. Joyner v. State, 678 N.E.2d
386, 389 (Ind. 1997). However, this evidence may be excluded if its probative value is out-
weighed by unfair prejudice, confusion of the issues, or the potential to mislead the jury. Ind.
Evid. R. 403. In the context of third-party motive evidence, these rules are grounded in the
widely-accepted principle that before evidence of a third party is admissible, the defendant must
show some connection between the third party and the crime. See Holmes v. South Carolina,
547 U.S. 319, 327 & n.* (2006) (listing jurisdictions and quoting 41 C.J.S., Homicide § 216, at
56–58 (1991) (―Evidence tending to show the commission by another person of the crime
charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt
of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and
lack such connection with the crime that they are excluded.‖)).
Our cases reflect this principle. In Joyner we reversed the trial court‘s exclusion of evi-
dence that a third-party committed the murder. 678 N.E.2d at 389–90. The defendant wished to
present evidence that a third party was having an affair with the victim, worked with the victim,
had engaged in sexual relations with the victim the day before her disappearance, had argued
with the victim the day of her disappearance, and had been tardy to work and falsified his time
card the day after the disappearance. Id. The defendant had already presented expert testimony
that a hair sample found inside the plastic bag covering the victim‘s head excluded the victim
and the defendant, but was a ninety-eight to ninety-nine percent probability match to the third
party. Id. Under these circumstances, we determined that the defendant had sufficiently con-
nected the third party to the crime, and the excluded evidence could have also established motive
and opportunity. Id. at 390. We remanded for a new trial. Id.
In contrast, we rejected a similar claim in Lashbrook v. State, 762 N.E.2d 756, 757 (Ind.
2002), where the defendant wished to present evidence that a third party had said the victim ―was
gonna die.‖ We held that ―[i]n stark contrast to Joyner, the defendant presents no material evi-
dence that [the third party] was connected to the crime. The phrase allegedly uttered by [the
third party] . . . does not tend to show that [he] committed the murder.‖ Id. at 758.
14
Pelley‘s case falls between Joyner and Lashbrook, but is much closer to Lashbrook. Pel-
ley suggested that someone from Bob‘s past in Florida had the motive to commit the murders.
Pelley‘s offer of proof was hearsay statements of Jeff and Jacque that Bob had worked at a Flori-
da bank connected with money laundering, and hearsay within hearsay that a limousine with
Florida license plates was seen near the Pelley home on the day of the murders. However, Pelley
did not show how he or Jacque was competent to testify regarding the Florida situation. Equally
important, he failed to present any evidence connecting the bank or the limousine to the murders.
Absent a more direct connection, the trial court did not abuse its discretion in excluding this evi-
dence as too speculative.
C. Exclusion of Testimony Regarding the State’s Delay in Charging Pelley
During rebuttal, the State called Jack Krisor, deputy prosecuting attorney at the time of
the Pelley murders, to clarify who was present during Pelley‘s second interview by police in
1989. Pelley wanted to ask about Krisor‘s previously-expressed opinion that there was ―not
enough information to charge this case.‖ The trial court limited questioning to the facts raised in
the case-in-chief and ruled that Krisor‘s ―opinion as to charge or not to charge is not at all rele-
vant.‖ Pelley argues that Krisor‘s opinion is relevant to why the State waited thirteen years to
charge Pelley, and that the trial court erred by not permitting Pelley to question Krisor about his
opinion.
The trial court did not err in excluding evidence of Krisor‘s opinion because this opinion
was inadmissible under Indiana Rule of Evidence 704(b), which prohibits a witness in a criminal
case from testifying to ―opinions concerning intent, guilt, or innocence‖ or ―legal conclusions.‖
Whether there was enough evidence to charge Pelley is an inadmissible opinion of a legal con-
clusion. Moreover, Krisor‘s opinion as to the sufficiency of evidence to charge Pelley is pro-
tected by the work-product privilege. Averhart v. State, 614 N.E.2d 924, 927 (Ind. 1993) (per
curiam) (―Delving into the inner workings of the prosecuting attorney‘s office at the time of
preparation for trial would of course be invading the work-product privilege.‖).
15
IV. Petition for Special Prosecutor
Pelley was charged on August 7, 2002 while Christopher Toth was serving as St. Joseph
County Prosecutor. In November 2002, Michael Dvorak was elected to that position. Dvorak
was sworn in on January 1, 2003 and inherited the Pelley prosecution. On January 3, Dvorak
advised the trial court that he had met with Pelley while in private practice. Dvorak disclosed
that after the murders, he was visited by Pelley and Pelley‘s grandfather. Dvorak believed that
Pelley was interviewing several attorneys before choosing counsel, and Pelley did not retain
Dvorak. Dvorak stated that he had no independent recollection of what was said in the meeting,
but believed he received no confidential information from Pelley. Dvorak had no further contact
with Pelley.
On January 7, Pelley petitioned for appointment of a special prosecutor. Pelley‘s verified
petition states that
in May, 1989, at which time he was a practicing attorney in South Bend, Indiana,
Michael A. Dvorak interviewed [Pelley] regarding the events surrounding the
murder of his family, murders which [Pelley] was then and there suspected of
having committed. By reason thereof, Michael A. Dvorak obtained knowledge of
facts that directly relate to the charges now pending against [Pelley].
Pelley asserted that a special prosecutor was necessary to avoid a conflict of interest and the ap-
pearance of impropriety.
The parties stipulated to the statements made in Dvorak‘s disclosure and Pelley‘s verified
petition. The trial court denied Pelley‘s motion, finding that Pelley failed to establish that Dvo-
rak obtained confidential information creating an actual conflict of interest, and that the applica-
ble Indiana statute does not require appointment of a special prosecutor to avoid the appearance
of impropriety, if there is no showing that confidential information was shared.
Pelley argues that the trial court erred in denying his petition for a special prosecutor.
Appointment of a special prosecutor is prescribed by statute.6 Indiana Code section 33-39-1-
6(b)(2) provides that the trial court may appoint a special prosecutor if it finds by ―clear and
convincing evidence‖ that appointment is necessary to avoid an ―actual conflict of interest.‖ Pel-
6
At the time of Pelley‘s motion, the relevant statute, Ind. Code § 33-39-1-6, was located at 33-14-1-6.
Subsection (a)(2) relevant to Pelley‘s petition has not been amended.
16
ley contends that this section is to be read in conjunction with Indiana Professional Conduct Rule
1.18, which addresses communications by prospective clients.
In effect, Pelley argues for application of a rigid rule that the appearance of impropriety is
offended without any showing as to the nature or substance of the communication between the
prospective client and the attorney. Pelley contends that a requirement of actual harm would
force him to choose between a conflict-free prosecutor and his right to attorney-client confiden-
tiality. In a similar vein, Pelley urges that permitting former defense attorneys to pursue cases
against former prospective clients compromises the integrity of the judicial process. A rigid
standard has been used by some courts as the test of an impermissible conflict. Restatement
(Third) of The Law Governing Lawyers § 121 cmt. c(iv) (1998). But even the more restrictive
standard permits a lawyer to ―represent a client with interests adverse to those of the prospective
client‖ if the lawyer has not ―received from the prospective client information that could be sig-
nificantly harmful if used in the matter.‖ Ind. Professional Conduct Rule 1.18 cmt. 6. Moreover,
more recent authority relaxes the appearance of impropriety standard, noting that ―avoiding con-
flicts of interest can impose significant costs on lawyers and clients. Prohibition of conflicts of
interest should therefore be no broader than necessary.‖ Restatement (Third) of the Law Go-
verning Lawyers § 121 cmt. b. In the context of prospective clients, a conflict occurs not be-
cause of the fact of consultation, but because of the passing of confidential information from the
prospective client to the lawyer. Id. § 15 cmt. c (―[P]ersonal disqualification of a lawyer who
deals with a prospective client occurs only when the subsequent matter presents the opportunity
to use information obtained from the former prospective client that would be ‗significantly harm-
ful.‘‖).
These general principles are further modified by the specific provision of Indiana law go-
verning the need for a special prosecutor. We have long held that appointment of a special pros-
ecutor is governed by a standard that differs from that used in the civil context. Kubsch v. State,
866 N.E.2d 726, 732 (Ind. 2007) (citing Johnson v. State, 675 N.E.2d 678, 682 (Ind. 1996)).
Specifically, for a prosecutor‘s previous involvement with the defendant to merit disqualifica-
tion, there must be some showing that the prosecutor received confidential information that could
assist the prosecution. Id. A more demanding showing is required because our elected prosecu-
tors often possess criminal defense experience. Particularly in smaller communities, the limited
17
pool of lawyers available to represent defendants faced with serious criminal charges overlaps
with the pool of candidates for county prosecutor.
Here, we have a prosecutor with no memory of the consultation who believes that he re-
ceived no confidential information. Pelley states that he discussed some of the facts with Dvorak
but provides no further explanation, and does not claim that he communicated any confidential
information. The trial court was within its discretion to deny Pelley‘s petition for a special pros-
ecutor.
Conclusion
Pelley‘s convictions are affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
18