Lowrimore v. State

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).