West v. State

ATTORNEY FOR APPELLANT

Katherine A. Cornelius
Marion County Public Defenders Office
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Karen M. Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

MICHAEL WEST, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0001-CR-38
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt, Judge
Cause No. 49G01-9809-CF-143703
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

September 24, 2001

BOEHM, Justice.
Michael West was convicted of felony murder and robbery. He was
sentenced to life imprisonment without parole for felony murder and a
twenty-year consecutive sentence for robbery. In this direct appeal, West
raises five issues for review: (1) whether the Fourth Amendment requires
the suppression of blood evidence and a knife obtained from his vehicle, or
the suppression of West’s hair and blood samples; (2) whether the trial
court abused its discretion in the admission of certain evidence; (3)
whether the trial court abused its discretion by improperly restricting
West’s cross-examination of three witnesses; (4) whether the evidence was
sufficient to convict West of felony murder; and (5) whether West’s
sentence was proper. We affirm the trial court.

Factual and Procedural Background

In the early morning hours of April 29, 1998, police were dispatched
to a Clark service station in Indianapolis which customers had found
unattended. In the back room, police discovered the body of Carla Hollen.
She had been stabbed over fifty times. The cash register tape showed that
the register had been opened at 2:14 a.m. and $274.50 was missing.
West was Hollen’s co-worker. On April 28, Hollen was scheduled to
work from 10:00 or 10:30 p.m. until 6:00 a.m. West had worked a shift
starting at 3:30 p.m. Pizza was delivered to the station between 11:30 and
11:45 p.m. and West’s fingerprint was found on a pizza box in the station.
Hollen’s blood was found on the horn of West’s Blazer, and shoeprints
matching Caterpillar boots--the type West was known to wear--were found
imprinted in Hollen’s blood near her body. According to Jimmy Collins,
whom West owed money, earlier that day West gave him $10 and two cartons of
cigarettes, saying that was all he had. Shortly after the robbery, West
bought crack cocaine from Roy Rogers for $275.
West was arrested in September 1998. While incarcerated in Marion
County Jail, West bragged to inmate James Warren that he and his cousin had
robbed the Clark station and that he had tried to “stab [Hollen’s] breasts
off.” A deputy sheriff assigned to transport prisoners, Brett Larkins,
reported that West said, “I’m going to kill him, too,” while referring to a
picture of Warren among a pile of legal papers West was carrying.
A jury convicted West of murder, felony murder, and robbery as a Class
A felony in September 1999. The trial court vacated the murder conviction
and reduced the robbery conviction to a Class B felony.
I. Search and Seizure Issues
A. Search and Seizure of West’s Blazer
West challenges the search of his Blazer that revealed Hollen’s blood
on the horn and a knife in the back seat. Two days after the crime, on May
1, 1998, police officers arrived at his home between 4:00 and 5:00 a.m.
The Blazer was hauled away by a tow truck before West accompanied officers
downtown to sign a consent form and answer questions. West was questioned
by two officers in a small room with no windows and “handcuffs were within
eyesight and readily available.”
The State contends that West orally consented at his house to the
search and processing by the crime lab of his vehicle. Later, at the
police station, he signed a form entitled “Permission to Search (Not in
Custody),” which also authorized seizure of items the police “deem[ed] as
evidence or pertinent to their investigation.” The form stated in capital
letters at the bottom: “This permission is given knowingly and voluntarily
upon full knowledge of my right to refuse such permission.” The State also
notes that West’s statement was a witness statement (i.e., West was
interviewed only as an employee of the Clark station), that West was not
read his rights or handcuffed, and that at the conclusion of the interview
he was driven home. One of the detectives testified that, if West had
asked to leave, he would have been free to do so. The interview did not
last longer than an hour, and West was not arrested until four months
later.
West argues that he was entitled to the advice of counsel before
consenting to the search. West cites Pirtle v. State, 263 Ind. 16, 323
N.E.2d 634 (1975), where this Court, citing both the Sixth Amendment of the
United States Constitution and Article I, Section 13 of the Indiana
Constitution, held:
[A] person who is asked to give consent to search while in police
custody is entitled to the presence and advice of counsel prior to
making the decision whether to give such consent. This right, of
course, may be waived, but the burden will be upon the State to show
that such waiver was explicit . . . .

Id. at 29, 323 N.E.2d at 640. Pirtle emphasized “the importance of the
right to counsel in protecting other constitutional rights.” Id. at 28,
323 N.E.2d at 640. In Pirtle, the defendant consented to a search of his
apartment after having been Mirandized and after his request for an
attorney. Pirtle noted that the defendant had consented to a search at a
time police no longer possessed any authority to speak with him. Id. at 24-
25, 323 N.E.2d at 638.
The State contends that West was not “in custody” for purposes of the
Fourth Amendment or Article I, Section 13 such that the right to the advice
of counsel had attached. Whether a defendant is in custody for purposes of
the Fourth Amendment and Article I, Section 13 is governed by an objective
test. Ultimately, the question is whether a reasonable person under the
same circumstances would have believed that he was under arrest or not free
to resist the entreaties of the police. Joyner v. State, 736 N.E.2d 232,
241 (Ind. 2000); Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995) (citing
Florida v. Bostick, 501 U.S. 429, 433-34 (1991)). Several circumstances
have been held relevant to this issue: whether the defendant is read his
Miranda rights or handcuffed or restrained in any way, and the manner in
which the defendant is interrogated, Torres v. State, 673 N.E.2d 472, 474
(Ind. 1996), whether a person freely and voluntarily accompanies police
officers, Williams v. State, 611 N.E.2d 649, 651-52 (Ind. Ct. App. 1993)
trans. denied, at what point the defendant is arrested for the crime under
investigation, id. at 652, the length of the detention, Cooley v. State,
682 N.E.2d 1277, 1279 (Ind. 1997), and the police officer’s perception as
to the defendant’s freedom to leave at any time, Joyner, 736 N.E.2d at 241.

We have no findings from the trial court on this issue. Although no
single circumstance is dispositive, we agree with the State that the record
supports the trial court’s admission of the evidence on the ground that
West was not in custody when he consented to the search. Detective Timothy
Knight testified at trial that West agreed to speak with the police on May
1. However, according to Knight, West had been difficult to reach. When
he learned West was at home in the early morning hours of May 1, the
decision was made to call on him. Unlike the defendant in Torres, West was
never handcuffed or otherwise restrained. Although the police went to
West’s home at a very early hour, there is nothing in the record
controverting the State’s evidence that West consented initially at his
home and then voluntarily accompanied police to the station to sign the
consent form. Thus, West had already orally consented to the search of his
vehicle when the vehicle was impounded, and West followed up by giving his
written consent on a form reciting that he was not “in custody.” At police
headquarters, West was questioned for about an hour and was either
transported back to his home by police or picked up by his girlfriend. His
arrest did not come until four months later.
West urges that, even if he was not in custody, his consent was
involuntary, a product of mere acquiescence to the authority of the police.
In Darnell v. State, this Court held that consent to a warrantless search
is valid unless “procured by fraud, duress, fear, intimidation, or where it
is a mere submission to the supremacy of the law.” 435 N.E.2d 250, 254
(Ind. 1982). “Voluntariness is a question of fact to be determined from
all of the circumstances.” Id. As discussed above, there is nothing in
the record to indicate that West’s consent to the search was involuntary.
After orally consenting to the search of the vehicle, West agreed to
accompany officers to the police station where he signed a written waiver
and made a witness statement. Thus, West’s claim of involuntariness of his
consent also fails.[1]
B. Blood and Hair Samples
West also objects to the admission of blood and hair samples. West
gave his consent to the taking of the samples during a second interview on
June 25, 1998, over a month before he was arrested. West argues that he
should have been given Miranda warnings prior to giving his consent and
advised of his right to an attorney. The State counters that West again
signed a “Permission to Search (Not in Custody)” form, which stated that
West was aware of his right to refuse permission for the search. West
alleges nothing that would indicate that he was in custody or otherwise
entitled to be given the advice of counsel before consenting.[2] The
admission of the blood and hair samples was proper.
II. Evidentiary Challenges
A. The Pizza Box
West first challenges the admission into evidence of his fingerprint
from the pizza box found at the scene. Pizza was delivered to the Clark
station at 11:30 p.m. the evening of the murder. West concedes the
relevancy of the pizza box, but argues that “the fingerprint does not prove
he was present at the time of the murder.” Even if there were merit to
this contention, West raised no objection to the admission of this evidence
at trial. Thus, West has waived this argument for purposes of appellate
review.[3] Cutter v. State, 725 N.E.2d 401, 405-06 (Ind. 2000).
B. Expert Testimony
West argues that, given his sentence of life without parole, a less
deferential appellate standard of review of the admission of expert
evidence is appropriate. He cites no authority for this proposition, and
we see no reason to adopt such a rule. This Court applies the same
standard of review of evidentiary issues in death penalty cases that it
does in reviewing any other criminal appeal. See Thompson v. State, 492
N.E.2d 264, 278 (Ind. 1986). A fortiori, the same standard applies in life
without parole cases.
1. Caterpillar Brand Boots
At trial, West objected to the expert testimony of witness David
Brundage, who conducted a comparison of the shoeprints found at the crime
scene with Caterpillar boots. Brundage is employed as a firearms and
toolmark examiner by the Indianapolis-Marion County Forensic Services
Agency (“Crime Lab”). West argues that expert testimony as to the
shoeprint is inappropriate.
The Indiana Rules of Evidence provide: “If scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the
evidence or determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify thereto
in the form of an opinion or otherwise.” Ind. Evidence Rule 702(a).
“Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are
reliable.” Evid. R. 702(b). “The decision of the trial court as to
reliability under Indiana Rule of Evidence 702(b) will be reviewed for an
abuse of discretion.” McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).

In McGrew, the defendant made an analogous claim, challenging the
reliability of hair comparison analysis under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). This Court concluded that the
trial court had not abused its discretion in allowing the admission of this
evidence, pointing out that Indiana Rule of Evidence 702(b), unlike its
federal counterpart, explicitly requires that the trial court be satisfied
that the testimony be based upon reliable scientific principles. McGrew,
682 N.E.2d at 1290 (citing Steward v. State, 652 N.E.2d 490, 498-99 (Ind.
1995)). Reliability may be established by judicial notice or by the
proponent of the scientific testimony providing sufficient foundation to
convince the trial court that the scientific principles are reliable. Id.
(citing Steward v. State, 652 N.E.2d 490, 498-99 (Ind. 1995)). This Court
further noted that, although Daubert is instructive, federal case law is
not binding on the determination of state evidentiary law on this issue.
Id.
The trial court conducted a hearing on West’s motion in limine
seeking to exclude this testimony. Brundage described his duties at the
Crime Lab, the process of lifting and comparing prints, and testified that
footwear examination is an area of study “generally accepted within the
scientific community.” Brundage testified that he had participated in an
international symposium on the recovery of shoeprints, enhancement
techniques, and comparison of footwear evidence. Brundage then went on to
describe the procedure he had employed in comparing the shoeprint found at
the crime scene with Caterpillar brand boots. The trial court denied
West’s motion in limine, concluding that Brundage was an expert in foot and
bootwear impressions and that the State had satisfied Rule 702. At trial,
West again objected, and the trial court again took testimony before ruling
that Rule 702 had been satisfied by the State. As in Vasquez v. State, 741
N.E.2d 1214, 1216 (Ind. 2001) (citing Jervis v. State, 679 N.E.2d 875, 881
(Ind. 1997)), this testimony is on the margins of testimony governed by
Rule of Evidence 702(b) as expert scientific testimony. To a great extent,
it is simply a matter of observations of persons with specialized
knowledge. The trial court did not abuse its discretion in admitting
Brundage’s testimony with regard to the footwear.
West also appears to argue that, because the shoeprint was determined
to be a size nine and one half and his foot was found by a shoe salesman to
be a ten-C, Brundage’s testimony should not have been admitted. We believe
that this issue bears on the weight to be given Brundage’s testimony and
not its admissibility.[4] See Williams v. State, 714 N.E.2d 644, 650 n.4
(Ind. 1999).
2. Pry Marks
West raises a similar argument concerning the admission of Brundage’s
testimony as to pry marks on the door to the room in which Hollen’s body
was found. Brundage testified that the pry marks resulted when someone
attempted to get out of the office, and not into the office. Angela
McKnight, the owner of the station, testified that the pry marks were there
when she bought the station. West objected to Brundage’s testimony at
trial on the ground that it was not a proper subject for expert testimony.
In addition to being an expert on footwear, Brundage testified that he
had examined toolmark evidence, including prymark evidence, for twenty-
seven years. Without citation to authority, West now argues that no
special expertise was shown by the witness and that he therefore should not
have been qualified as an expert on this subject. Given that Brundage
testified to over twenty-seven years of examining precisely this type of
evidence, we cannot conclude that the trial court abused its discretion in
allowing Brundage’s testimony as to pry marks.
C. Deputy Brett Larkin’s Testimony
At trial, Deputy Larkin testified that he stood behind West when West,
pointing at a picture of jailhouse informant James Warren, exclaimed, “You
see him, I’m going to kill him, too.” West objected to the admission of
Larkin’s testimony under Indiana Rules of Evidence 403 and 404(b), and on
appeal argues that the evidence was of limited relevancy and should have
therefore been excluded. Specifically, West argues that if the statement
had been taken seriously and were unambiguous, Larkin would have taken
steps to protect Warren. Because Larkin did nothing to protect Warren, the
argument goes, Larkin’s testimony should not have been admitted. We agree
with the State that this argument goes to the weight to be given the
evidence rather than its admissibility. As West concedes, threats against
potential witnesses as attempts to conceal or suppress evidence are
admissible as bearing upon knowledge of guilt. Neal v. State, 659 N.E.2d
122, 124 (Ind. 1995), abrogated on other grounds by Richardson v. State,
717 N.E.2d 32, 33 (Ind. 1999). Moreover, as in Barajas v. State, 627
N.E.2d 437, 439 (Ind. 1994), a statement by a defendant that he would kill
another “too,” is direct evidence of guilt. West’s statement, like the
defendant’s in Barajas, suggested not just that he would like to kill
someone, but that he had already killed one person. For this reason, the
statement is relevant and admissible.
D. James Warren’s Testimony
West argues that the trial court erred in allowing Warren to testify
regarding West’s statements to him while residing in the same cellblock in
the Marion County Jail. West raises several objections to this testimony,
including that Warren received a deal for his testimony, that Warren had
access to documents discussing the case and from which he could have
concocted West’s confession to the crime, and that Warren gradually added
specifics to his recitation of West’s story. These credibility issues were
investigated by defense counsel on cross-examination. More importantly,
West did not object to Warren’s testimony at trial and has therefore waived
this claim for purposes of review.[5]
E. Testimony Regarding the Knives
At trial, Daniel Rutledge, the younger brother of West’s girlfriend,
testified that shortly before Hollen’s death two knives were missing from
his collection. A crime scene specialist later testified that one of
Rutledge’s knives had turned up in the backseat of West’s Blazer in the
search. West did not object to Rutledge’s or the crime scene specialist’s
testimony, but did later object to the admission of the knife on both
relevancy grounds and on Pirtle grounds. The State argued that the knife
was relevant because the victim was killed with a knife and this knife was
found in West’s car within two days of Hollen’s stabbing.
On appeal, West argues that the trial court abused its discretion in
admitting the testimony of Rutledge and the specialist because the knife
was never identified as being the murder weapon. Because he did not object
at trial, West has waived any objection to the testimony of both witnesses.
West also argues that the relevance of the knife itself was substantially
outweighed by its prejudicial effect on the jury under Indiana Rule of
Evidence 403. West could hardly have been greatly prejudiced by the
admission of the knife when two witnesses had already testified to the
knife’s existence, and the specialist had reported it was found in West’s
Blazer. Neither its relevance nor any prejudice was significant. The
trial court did not abuse its discretion in balancing the two.
III. Limitation on Cross-Examination of Witnesses
West argues that he was denied “his right to present his defense”
when the trial court limited or excluded (1) evidence that Hollen’s husband
was abusive towards her; (2) examination of Hollen’s fear of John Phillips,
from whom Hollen allegedly purchased drugs; and (3) West’s cross-
examination of Jimmy Collins, whom West owed money and who visited West at
work the evening of Hollen’s murder. West asserts that this testimony was
relevant under Indiana Rule of Evidence 401, and that his right to
confrontation was therefore impermissibly restricted in contravention of
the Sixth Amendment of United States Constitution and Article I, Section 13
of the Indiana Constitution. West asserts that the excluded testimony
would have demonstrated that there were others who “had problems” with
Hollen, and that the jury would have found reasonable doubt if it had heard
this testimony.
The right to cross-examine is “one of the fundamental rights of our
criminal justice system.” Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999)
(quoting Pigg v. State, 603 N.E.2d 154, 155 (Ind. 1992)). However, “trial
judges retain wide latitude . . . to impose reasonable limits . . . based
on concerns about, among other things, harassment, prejudice, confusion of
the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” Thornton v. State, 712 N.E.2d 960, 963 (Ind.
1999) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
A. Cross-examination of Mr. Hollen as to Domestic Abuse
On cross-examination of Hollen’s husband at trial, defense counsel
asked Mr. Hollen, “Didn’t you put a bruise on her back the size of a
softball.” The State objected and reminded the court that the trial court
had granted the State’s motion in limine to exclude evidence of prior
domestic abuse in the Hollens’ marriage. Defense counsel apologized, and
the court instructed the jury to disregard the statement. West argues that
evidence of domestic abuse was highly relevant in view of the brutal nature
of Hollen’s death and that the trial court abused its discretion in
refusing to allow Mr. Hollen to be cross-examined on this point. Although
it is difficult to see how this evidence could lead to anything beyond
speculation, we need not consider that issue because we agree with the
State that West has waived this argument by failing to make an offer to
prove. In order to preserve an issue for appellate review, a defendant
must make an offer to prove, setting forth the grounds for admission of the
evidence and the relevance of the testimony. Ind. Evidence Rule 103(a);
accord Noble v. State, 725 N.E.2d 842, 846 (Ind. 2000). West made no
offer to prove after the State objected to defense counsel’s line of
questioning. Thus, the trial court had no opportunity to reconsider its
ruling on the motion in limine and West has waived this claim.
B. Cross-Examination of John Phillips
The trial court granted the State’s motion in limine seeking to
suppress any evidence relating to Hollen’s drug use, and, consequently,
evidence relating to Hollen’s relationship to John Phillips, who allegedly
regularly supplied Hollen with cocaine. At trial, defense counsel
attempted to suggest that Phillips could have killed Hollen by establishing
that Phillips had been at the Clark station the day of Hollen’s murder.
West argues that the trial court abused its discretion in refusing to admit
evidence of Hollen’s drug purchases from Phillips. West also notes that
“[Phillips’] testimony regarding where he was at the time of the murders
was also inconsistent and incredible.”
Defense counsel questioned Phillips about his whereabouts on the day
of Hollen’s murder, as well as the fact that police had taken blood and
hair samples from him. West has not established how the evidence of
Hollen’s drug use raises anything more than speculation that a third party
may have committed the crime. See Cook v. State, 734 N.E.2d 563, 567-68
(Ind. 2000) (evidence of motive of third party to commit a crime is
relevant, but was properly excluded because of absence of evidence linking
crime to a third party). The trial court was within its discretion to
restrict exploration of collateral issues by excluding speculation as to
the possibility that Phillips was the killer.
As this Court recently noted, evidence of a victim’s prior drug use is
often irrelevant, and, if relevant at all to a collateral issue, outweighed
by the danger of unfair prejudice under Indiana Rule of Evidence 403. See
Jenkins v. State, 729 N.E.2d 147, 149 (Ind. 2000). The trial court did not
abuse its discretion in limiting examination of Phillips on this issue.
C. Cross-examination of Jimmy Collins
Lastly, West argues that Collins should have been allowed to testify
that he knew Roy Rogers to be a drug dealer, that he once lived with
Rogers, and that Lori Rogers, a witness for the State, frequently purchased
drugs from Rogers. Evidence of a witness’ prior drug use is ordinarily
irrelevant, although it may be relevant as to (1) the witness’ ability to
recall the events on the date in question, (2) the witness’ inability to
relate the facts at trial, or (3) the witness’ mental capacity. Williams
v. State, 681 N.E.2d 195, 199 (Ind. 1997). West does not assert that this
testimony would have been relevant for any of these reasons. The trial
court did not abuse its discretion in failing to permit testimony as to
Collins’ association with Rogers or his knowledge concerning a State
witness’ drug use.
IV. Sufficiency of the Evidence
West argues that there was insufficient evidence to find him guilty of
killing Hollen. This contention relies on the premise that the blood smear
seized from his Blazer should have been excluded under the Fourth
Amendment, and that Warren’s testimony should have been suppressed under
the “incredible dubiosity rule.” We rejected these arguments in Part I and
Part II.D n.5.
Our standard for review of sufficiency claims is well settled. We do
not reweigh the evidence or assess the credibility of witnesses. Rather,
we look to the evidence and reasonable inferences drawn therefrom that
support the verdict and “will affirm the conviction if there is probative
evidence from which a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” Taylor v. State, 681 N.E.2d 1105, 1110 (Ind.
1997). Felony murder consists of the killing of “another being while
committing or attempting to commit” one of the listed felonies in Indiana
Code section 35-42-1-1, including robbery.
On the day of the murder, West offered Collins a carton of cigarettes
and $10 to repay a debt and asked Collins to try to convince Rogers to
front him $30 so he could buy crack. Early the next morning, West had
managed to assemble $275 to purchase an eight-ball of crack. This evidence
of West’s motive and acquisition of cash, along with the blood smear, the
fingerprint on the pizza box, the footprint, and Warren’s and Larkin’s
testimony, was more than sufficient for a reasonable jury to find West
guilty beyond a reasonable doubt of felony murder.
V. Sentencing
A. Aggravating Circumstances
West argues that the trial court abused its discretion in sentencing
him to life without parole in that it relied on questionable evidence and
West’s “insignificant” criminal history.
Trial courts may impose life without parole only after finding
aggravating circumstances specified in the death penalty statute. Ind.
Code § 35-50-2-9(b) (1998); Warlick v. State, 722 N.E.2d 809, 811 (Ind.
2000). The trial court expressly concluded that the State had proved
beyond a reasonable doubt that West intentionally killed Hollen while
committing or attempting to commit robbery. This is a valid eligibility
requirement under Indiana Code section 35-50-2-9(b)(1)(G) and the trial
court did not abuse its discretion in relying on this factor in imposing
life without parole on West.
This does not violate the well-established rule that a material
element of the underlying offense may not serve as an aggravating
circumstance to enhance a defendant’s sentence. That rule apparently
derives from Green v. State, 424 N.E.2d 1014, 1015 (Ind. 1981), and is a
judicial rule of construction. It is based on the sound logic that a
presumptive sentence already assumes the underlying elements and that it is
therefore improper to enhance a sentence based on an act for which the
defendant is already presumed to be punished. Sentencing pursuant to the
death penalty or life without parole statute is a qualitatively different
matter. The legislature has determined that some crimes, based on the
circumstances in which they are committed, warrant the death penalty or
life without parole. Some of these circumstances may include elements of
the crimes themselves. Although the statute refers to these circumstances
as “aggravating,” they serve the narrowing function required by the Eighth
Amendment. A defendant either meets or does not meet the eligibility
requirements for death or life imprisonment. Under Indiana Code section
35-50-2-9(b)(1), the death penalty may be imposed for an intentional
killing in the course of a felony. Proof that the defendant intentionally
killed in the course of a felony is also among the ways in which felony
murder may be proven, but not the only way. An accomplice to a felony
resulting in death may also be convicted of felony murder. The (b)(1)
aggravating circumstance thus serves to narrow the eligibility and is not
identical to the elements of the crime. For this reason, it was proper for
the trial court to sentence West to life without parole even though the
trial court entered sentence on the felony murder conviction.[6]
B. Manifestly Unreasonable Sentence
West argues that his sentence was manifestly unreasonable in view of
the nature of the offense, the character of the offender, and the “level of
proof”[7] of the crime. Although this Court has the constitutional
authority to revise and review sentences, Ind. Const. art. VII, § 4, it
will do so only when the sentence is “manifestly unreasonable in light of
the nature of the offense and the character of the offender.” Former Ind.
Appellate Rule 17(B) (now App. R. 7(B)). The nature of the offense
consists of robbing the Clark service station of $275 to purchase crack
cocaine, and killing Hollen by stabbing her over fifty-one times because
she was an eyewitness to the robbery. The character of the offender is
that West, who had a long history of arrests for various offenses,[8]
subsequently attempted to cover up the murder, and then, after being
arrested for Hollen’s murder, bragged about it to fellow inmates. There is
nothing in the record to suggest that this sentence is manifestly
unreasonable.
C. Sentencing for Felony Murder and Robbery as a Class B Felony
West was convicted of murder, felony murder, and robbery as a Class A
felony. The trial court concluded that double jeopardy precluded
sentencing on both the murder and felony murder convictions, and imposed
its sentence only for the felony murder conviction. This, in turn, created
the problem that double jeopardy precludes sentencing on felony murder and
robbery, where the felony murder conviction is predicated on the robbery.
See Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999) (It is a “violation
of Article I, Section 14 of the Indiana Constitution, if, with respect to
either the statutory elements of the challenged crimes or the actual
evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.”)
(emphasis in original).
If sentence had been imposed for murder instead of felony murder,
this would present no issue, and West has not raised any double jeopardy
issue on appeal. Because life without parole was proper based on the
felony murder conviction, however, any double jeopardy issue raised by the
trial court’s imposing sentence for felony murder and robbery as a Class B
felony is of no practical consequence and we will not attempt to untangle
this knot. Cf. Roop v. State, 730 N.E.2d 1267, 1270 n.2 (Ind. 2000).
Conclusion
The judgment of the trial court is affirmed.

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

-----------------------
[1] On these same grounds, West also urges that his May 1 statement to
police should be suppressed. Having determined that West was not in
custody for purposes of the Fourth Amendment, however, he was not entitled
to Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
[2] West fails to allege how the admission of this evidence helped the
State’s case against him. At trial, West objected to its admission on the
basis of relevancy, in addition to Miranda grounds. However, he made no
argument at trial why this evidence was irrelevant and we do not address
this argument here.
[3] West also argues that the admission of the blood smear retrieved from
his horn was error. This issue was discussed substantially in Part I, and
West’s objection to the admission of this evidence at trial was based on
Pirtle. Conceding relevancy, West argues only that, given the lack of
other blood evidence found in the Blazer, the blood smear is
“inconclusive.” Evidence need not be conclusive to be relevant. In any
event, “[ii]t is well settled that a party may not object on one ground at
trial and rely on a different ground on appeal.” Ajabu v. State, 693
N.E.2d 921, 941 n.26 (Ind. 1998). Thus, any argument not based on the
Pirtle issue is waived for purposes of review.
[4] West also argues, “Finding someone to be an expert should not relieve
the court from its obligation to find the evidence’s relevance outweighs
its prejudicial value under IRE 401/403.” [Br. App. 33] That may be true,
but West neither discusses this evidence’s relevance nor weighs its
probative value against the prejudice of its admission. The contention is
therefore waived for failure to make a cogent argument. See Ind. Appellate
Rule 8.3(A)(7) (now App. R. 46(A)(8)); Ford v. State, 718 N.E.2d 1104, 1107
n.1 (Ind. 1999).
[5] West makes a number of other claims with respect to Warren’s
testimony, none of which have merit. West argues for the application of
the “incredible dubiosity” doctrine. Even if West had objected to Warren’s
testimony, the “incredible dubiosity” rule is limited to a sole witness who
presents inherently contradictory testimony that is equivocal or the result
of coercion, combined with a complete lack of circumstantial evidence of
the appellant’s guilt. Lee v. State, 735 N.E.2d 1169, 1173 (Ind. 2000).

West also argues that the standard for probable cause to issue a
search or arrest warrant should be applied to the decision whether to allow
testimony from a witness such as Warren. West cites no authority for this
proposition, which is contrary to the basic proposition that the trier of
fact evaluates credibility.
Finally, West argues for application of the corpus delicti rule,
which provides that a crime cannot be proven solely on the basis of a
confession. Workman v. State, 716 N.E.2d 445, 447-48 (Ind. 1999). In
order for a confession to be introduced into evidence in Indiana, this rule
provides that independent evidence must establish (1) the occurrence of the
specific kind of injury, and (2) someone’s criminal act as the cause of the
injury. Stevens v. State, 691 N.E.2d 412, 424-25 (Ind. 1997). It is
obvious that the corpus delicti doctrine does not apply here. There is no
doubt that a crime occurred or that a criminal act was the cause of
Hollen’s death.
[6] West does not contend that these convictions violate double jeopardy,
and we do not address this issue.
[7] West cites no authority for the proposition that a sentence might be
manifestly unreasonable in view of the “level of proof” of a defendant’s
guilt.
[8] The offenses for which West was arrested included, among other things,
burglary, theft, possession of cocaine, battery, and criminal confinement.
[R. 322-23]