Sanquenetti v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Jeffrey A. Modisett

Public Defender of Indiana Attorney General of Indiana

Gregory L. Lewis Priscilla J. Fossum

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

In The

INDIANA SUPREME COURT

)

KENNY D. “COTTON” SANQUENETTI )

Defendant-Appellant, )

)

v. ) 83S00-9802-CR-88

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE VERMILLION CIRCUIT COURT

The Honorable Bruce V. Stengel, Judge

Cause No. 83C01-9703-CF-32

_________________________________________________

On Direct Appeal

April 14, 2000

DICKSON, Justice

The defendant-appellant, Kenny D. Sanquenetti, appeals his convictions

and sentences for the March 8, 1997, choking and stabbing murders[1] of

Brenda M. Cunningham and Christal J. Davis. In this direct appeal, he

presents two claims of error: (1) that the accomplice liability statute,

as applied in this case, violates the Privileges and Immunities Clause of

the Indiana Constitution; and (2) that the trial court erred in imposing

consecutive sentences without finding an aggravating circumstance.

I. Accomplice Liability Statute

The defendant first challenges his conviction for the murder of

Davis, contending that the accomplice liability statute, although not

facially unconstitutional per se, violates the Privileges and Immunities

Clause of the Indiana Constitution as applied in his case. The defendant

argues that this statute is unconstitutional because it allows him to be

convicted of murder for aiding in the killing of Davis, even though his

accomplice, Paul Steven Mills, who the defendant contends actually killed

Davis, was convicted of involuntary manslaughter in a separate trial.[2]

Thus, the defendant argues that, by allowing this result, the statute

allows the "accessory" to be convicted and punished for a greater offense

than the "principal" and thus that the statute impermissibly grants the

"principal" the privilege of being convicted of a lesser crime than the

accessory. The defendant does not challenge the sufficiency of the

evidence supporting the conviction.

The statutory provision, commonly referred to as the accomplice

liability statute, provides:

A person who knowingly or intentionally aids, induces, or causes

another person to commit an offense commits that offense, even if the

other person:

(1) Has not been prosecuted for the offense;

(2) Has not been convicted of the offense; or

(3) Has been acquitted of the offense.

Ind. Code § 35-41-2-4. The present version of this statute, which became

effective October 1, 1977, departs from common law and prior statutory law

regarding principals and accessories. See Ind. Code § 35-1-29-1

(repealed); Ind. Code § 35-1-29-3 (repealed). We have noted that the

current statute supersedes the common law of criminal liability and thus

that the legal distinction between a principal and an accessory has ceased

to exist. Johnson v. State, 687 N.E.2d 345, 349 (Ind. 1997); McKnight v.

State, 658 N.E.2d 559, 560-61 (Ind. 1995). Because the common law

distinction between principal and accessory is no longer viable, the

defendant's reliance on these distinctions is ill-founded,[3] and we will

analyze the defendant's claim under the law as it presently stands and

under the terms it employs.

As a preliminary matter, we note that the defendant, in support of his

equal privileges and immunities claim, cites the common law doctrine of

mandated consistency as illustrative of the equality and consistency

required under the law. In the last three decades, this Court has

considered the application of this common law doctrine, which required that

when a principal and an accessory are tried separately, the accessory

cannot be convicted of a crime greater than that of which the principal is

convicted. See, e.g., McKnight, 658 N.E.2d at 562-63 (discussing cases and

applying the doctrine under the assisting a criminal statute); Rufer v.

State, 274 Ind. 643, 647, 413 N.E.2d 880, 882 (1980); Jewell v. State, 272

Ind. 317, 320-22, 397 N.E.2d 946, 947-48 (1979); Davis v. State, 267 Ind.

152, 158-59, 368 N.E.2d 1149, 1152 (1977); Wright v. State, 266 Ind. 327,

342-43, 363 N.E.2d 1221, 1229-30 (1977); Schmidt v. State, 261 Ind. 81, 83,

300 N.E.2d 86, 87-88 (1973); Combs v. State, 260 Ind. 294, 301, 295 N.E.2d

366, 370 (1973) ("[W]here there has been two separate judicial

determinations on the merits of the respective cases, and where they are

contradictory, the law will impose a consistency to their findings."). See

also McCarty v. State, 44 Ind. 214, 215-17 (1873).

However, with the exception of McKnight, the facts underlying these

decisions occurred prior to the date in 1977 when the accomplice liability

statute became effective, and, in these decisions, the principles of the

common law and the defendant's adjudicated designation as a principal or an

accessory governed. See Rufer, 274 Ind. at 647, 413 N.E.2d at 882

(involving a defendant convicted as an accessory before the fact); Jewell,

272 Ind. at 320-22, 397 N.E.2d at 947-48 and 261 Ind. 665, 309 N.E.2d 441

(1974) (involving a defendant convicted as an accessory before the fact);

Davis, 267 Ind. at 158-59, 368 N.E.2d at 1152 (involving a defendant

convicted as an accessory before the fact); Wright, 266 Ind. at 342-43, 363

N.E.2d at 1229-30 (involving a defendant charged as a principal and a jury

instructed on accessory liability); Schmidt, 261 Ind. at 83, 300 N.E.2d at

87-88 (involving a defendant convicted as an accessory); Combs, 260 Ind. at

301-03, 295 N.E.2d at 370-71 (involving defendant convicted as an

accessory); McCarty, 44 Ind. at 215-17 (involving defendant convicted as an

accessory before the fact). In the only exception we find, this Court in

McKnight applied the doctrine of mandated consistency in the context of the

“assisting a criminal” statute, Ind. Code § 35-44-3-2, not in the context

of the accomplice liability statute, Ind. Code § 35-41-2-4, specifically

finding that, unlike the accomplice liability statute, the “assisting a

criminal” statute had not received explicit exception from the common law

rule. See McKnight, 658 N.E.2d at 561-62.

Just as the accomplice liability statute supersedes the common law of

criminal liability, abandoning the common law terms of principal and

accessory, it also supersedes the application of the common law doctrine of

mandated consistency when defendants are convicted under this statute. See

Johnson, 687 N.E.2d at 349; McKnight, 658 N.E.2d at 561. See also Rainey

v. State, 572 N.E.2d 517, 519 (Ind. Ct. App. 1991) ("[T]his rule [of

mandated consistency], reflecting logical consistency, was modified by the

1977 legislative enunciation of a public policy change which reflects a

view that each defendant and each trial shall be considered and treated

separately and independently.") (citing Ind. Code § 35-41-2-4); Williams v.

State, 406 N.E.2d 263, 264 (Ind. Ct. App. 1980) ("[R]egardless of its

desirability, this common law rule was abrogated with the passage of

Ind.Code 35-41-2-4, effective October 1, 1977."). Because under the

accomplice liability statute, any accomplice to a crime may be tried and

convicted upon sufficient proof, regardless of whether other accomplices

were prosecuted, convicted, or acquitted, the doctrine of mandated

consistency is inapplicable. See Johnson, 687 N.E.2d at 350 (citing Ind.

Code § 35-41-2-4).

In discussing the application of our accomplice liability statute, we

have noted that there is no separate crime of being an accessory to a crime

or aiding and abetting the perpetrator of a crime; rather, a defendant may

be convicted as a principal upon evidence that he aided or abetted in the

perpetration of the charged crime. Morrison v. State, 686 N.E.2d 817, 819

(Ind. 1997); Taylor v. State, 495 N.E.2d 710, 713 (Ind. 1986); Hoskins v.

State, 441 N.E.2d 419, 425 (Ind. 1982). Under this statute, "an actor who

would have been considered an accessory under the common law now

vicariously commits the actual offense," and "individuals convicted of

felonies in Indiana are considered to have been convicted on the weight of

their own actions even if the accomplice liability statute is utilized by

the court or jury to determine guilt." Johnson, 687 N.E.2d at 349

(citations omitted). Furthermore, "[a]n accomplice may be tried and

convicted when the proof of the underlying crime is sufficient despite the

fact that the other actor is not prosecuted, not convicted, or even

acquitted." Id. at 350 (citing Ind. Code § 35-41-2-4). Under the statute,

the individual who aids another person in committing a crime is as guilty

as the actual perpetrator. Morrison, 686 N.E.2d at 819. See also Wittle

v. State, 542 N.E.2d 981, 991 (Ind. 1989) ("[T]here is no distinction

between the responsibility of a principal and an accomplice. Thus, one may

be charged as a principal yet convicted as an accomplice.") (citations

omitted), overruled on other grounds by Scisney v. State, 701 N.E.2d 847,

848 (Ind. 1998).

The defendant invokes Article I, Section 23 of the Indiana

Constitution, claiming that his conviction for the murder of Davis violates

this provision by allowing the principal, Mills, whom the defendant

contends is the actual killer, "the privilege of being convicted of a

lesser crime than his non-killing accomplice." Brief of Defendant-

Appellant at 11. The defendant urges that, "within the narrow confines of

[this] case, allowing an accessory to be punished more severely than the

actual killer is not reasonably related to the legislative distinction

between accessories and principals." Brief of Defendant-Appellant at 11.

Article I, Section 23 of the Indiana Constitution provides that "[t]he

General Assembly shall not grant to any citizen, or class of citizens,

privileges or immunities which, upon the same terms, shall not equally

belong to all citizens." In reviewing an alleged violation of the

Privileges and Immunities Clause, we apply the following test:

Article 1, Section 23 of the Indiana Constitution imposes two

requirements upon statutes that grant unequal privileges or immunities

to differing classes of persons. First, the disparate treatment

accorded by the legislation must be reasonably related to inherent

characteristics which distinguish the unequally treated classes.

Second, the preferential treatment must be uniformly applicable and

equally available to all persons similarly situated. Finally, in

determining whether a statute complies with or violates Section 23,

courts must exercise substantial deference to legislative discretion.

Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994).

Contrary to the defendant's assertion that the statute establishes a

"legislative distinction between accessories and principals," Brief of

Defendant-Appellant at 11, the accomplice liability statute neither

establishes separate classes nor accords disparate treatment to Indiana

citizens or classes of citizens. Rather, the effect of the statute is just

the opposite. It removes the common law distinctions between principals

and accessories, between principals in the first degree and principals in

the second degree, and between accessories before the fact and accessories

after the fact, and renders all participants in the perpetration of a crime

accomplices who are equally responsible for the criminal acts.[4]

Under the first part of the Collins test, even if we accept the

defendant's contention that, as applied in this case, the statute grants

the actual killer "the privilege of being convicted of a lesser crime than

his non-killing accomplice" and thereby accords disparate treatment to two

classes, Brief of Defendant-Appellant at 11, we disagree with the

defendant's claim that the statute's disparate treatment "is not reasonably

related" to the inherent characteristics that distinguish the unequally

treated classes, Brief of Defendant-Appellant at 11. To the contrary, a

reasonable relationship could exist between such disparate treatment and

the inherent characteristics that distinguish the unequally treated

classes. In cases tried separately, the evidence may vary, and different

juries may independently determine that participants in the perpetration of

a crime exhibited different levels of culpability. In such an instance,

each defendant’s guilt is determined based on the evidence presented at

each separate trial. The defendant's claim fails under Collins.

We hold, therefore, that the accomplice liability statute, even as

applied in this case, does not violate the Privileges and Immunities Clause

of the Indiana Constitution.

II. Consecutive Sentences

The defendant also challenges his sentence, contending that the trial

court, in ordering the sentences to run consecutively, failed to find an

aggravating circumstance. He asks that we remand his case to the trial

court to state its reasons for imposing consecutive sentences or,

alternatively, to modify the sentence.

In order to impose consecutive sentences, a trial court must find at

least one aggravating circumstance. Jones v. State, 705 N.E.2d 452, 455

(Ind. 1999); Mitchem v. State, 685 N.E.2d 671, 680 (Ind. 1997).

Aggravating circumstances may include, but are not limited to, any of

several statutorily enumerated factors. Ind. Code § 35-38-1-7.1. In its

sentencing statement, the trial court acknowledged the defendant’s claim of

mitigating circumstance, but nevertheless imposed the presumptive sentence

for each of the two murder convictions, noting as to each murder that to

suspend any part of the sentence would “lessen the seriousness” of this

offense. Record at 1025. The court then ordered that the sentences for

the two murders be served consecutively because they “are crimes of

violence.” Record at 1026. This articulation falls short of the

requirement that a trial court's sentencing statement identify, explain,

and evaluate any aggravating circumstances used to impose consecutive

sentences. Ind. Code § 35-50-1-2. See Mitchem, 685 N.E.2d at 678.

Upon determining that a trial court improperly applied a justification

for enhanced or consecutive sentences, however, this Court may exercise its

power to review and revise the sentence. See Mitchem, 685 N.E.2d at 680.

As in Mitchem, we find that consecutive sentences are warranted here

because of the multiple separate and distinct criminal acts. The defendant

and his accomplice first strangled Brenda Cunningham with a towel in her

home and then fatally beat, choked, and suffocated Christal Davis in her

home a few blocks away. We find that the violent and protracted nature and

circumstances of these separate murders constitute aggravating

circumstances. The defendant's intoxication during the commission of the

murders, his voluntary surrender and cooperation with law enforcement, and

his remorse warrant consideration as mitigating circumstances. We

conclude, however, that the mitigation is clearly outweighed by the fact of

two extremely violent murders, each separately committed. We find that it

is appropriate, under the circumstances, for the defendant's sentences to

be served consecutively.

Conclusion

We affirm the judgment of the trial court.

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

concurs in result in Part I and concurs in Part II.

-----------------------

[1] Ind. Code § 35-42-1-1.

[2] The defendant has petitioned us to take judicial notice of certain

facts related to Mills’s prosecution, conviction, and sentence, and has

submitted certified copies of Mills’s chronological case summary, his

charging information, and the verdict form signed by the jury foreman.

Evidence Rule 201(a) permits courts to take judicial notice of a fact that

is "not subject to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court, or (2)

capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned." We grant his request.

[3] In arguing that the statute violates the Equal Privileges and

Immunities Clause, the defendant relies heavily on the superseded common

law distinction between accessories and principals and the rules that

applied to them. Furthermore, even if this body of law were still viable,

the defendant's claim that he was an accessory is problematic. Regarding

the common law designations, we have said:

Under the common law, two general classes of criminals, neither

of which relate directly to the meaning of the term "accomplice," were

used to determine the nature and measure of an individual's

culpability. A principal was one who either actually perpetrated the

crime or who aided or abetted and was actively or constructively

present at the time of the crime. An accessory was one who procured,

counseled, commanded or abetted the principal, and who was absent when

the latter committed the crime, or who received, relieved, comforted,

or assisted the perpetrator after the crime had been committed.

Johnson, 687 N.E.2d at 349. We have also stated:

The common law created two categories of criminal offenders:

principals and accessories. Principals were those perpetrators who

were found to be present at the time of the criminal act. This

category was further split into two subgroups. An offender was a

principal in the first degree if he was the absolute perpetrator of

the crime. 3 W. Blackstone, Commentaries *34. A principal in the

second degree was an offender who was either actively or

constructively "present, aiding, and abetting the act to be done."

Id. The second group of offenders, called accessories, were those who

were neither the chief actors in the offense nor present at its

performance, but were in some way concerned therein, either before or

after the offense committed. Id. at *35.

McKnight, 658 N.E.2d at 560-61. Considering these common law definitions

of principals and accessories, we note that the defendant, who at least

aided in the killing of Davis and was actively present at the time of the

crime, would be a principal, not an accessory. Thus, the defendant's

argument would not prevail even using the common law designations.

[4] See also Ind. Code § 35-44-3-2 (regarding the crime of assisting a

criminal).