ILNews

COA reverses rape conviction in cold case

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The Indiana Court of Appeals today affirmed a man's recent conviction for a murder he committed more than 20 years ago, but it reversed his rape conviction on insufficient evidence. The state failed to file a charge in which it had evidence to support a conviction of a sexual attack against the victim.

In Jimmy Atteberry v. State of Indiana, No. 49A02-0808-CR-705, Jimmy Atteberry was arrested in St. Louis in 2006 for the 1985 sexual assault and murder of a 19-year-old Indianapolis woman. DNA testing in 2006 of semen found in the victim's underwear led to Atteberry, who lived in Indianapolis under an alias at the time of the murder.

When police went to St. Louis to question Atteberry, Sgt. Mark Albert of what is now the Indianapolis Metropolitan Police Department didn't tell Atteberry to what police department he belonged. Albert told Atteberry he wanted to question him about background information. Atteberry was read his Miranda rights and signed a form in which "St. Louis" appeared to be crossed out next to Albert's name. The conversation eventually turned to the murder of L.L. and once the police officer told Atteberry he had a warrant to get a DNA sample, Atteberry stopped talking and requested an attorney.

The state charged him with murder and Class A felony rape, but then it attempted to change the rape charge to criminal deviate conduct. It withdrew its motion believing the trial court wouldn't grant it. The trial court denied Atteberry's motion to suppress his statement to police claiming police deception because he didn't know where Albert was from and based on a Miranda form.

The Court of Appeals upheld the admittance into evidence of Atteberry's statement to police and that his DNA had been in a national DNA database without naming the specific database. Absent any coercion, the fact Albert didn't tell Atteberry he was from Indianapolis and planned to question him regarding L.L.'s rape and murder doesn't render Atteberry's decision to waive his Miranda rights involuntarily.

The state's witness's testimony that Atteberry's DNA was in a national database was relevant to show why he was a suspect in an Indianapolis murder. There wasn't any evidence that informed the jury that only convicted felons could have their DNA profiles put into this database, wrote Judge Paul Mathias.

Because the state didn't have evidence to prove Atteberry raped L.L., the appellate judges reversed his conviction and remanded for it and his sentence to be vacated. The evidence proved sexual trauma to L.L.'s anus, semen in her underwear, but no trauma to or semen in her vagina. This isn't enough evidence to support the charge of Class A felony rape at the time it was committed, wrote the judge. The state argued the fact she had been assaulted anally and semen was found in the underwear was enough to support the conviction, but the judges disagreed. Judge Mathias noted "if we were writing on a clean slate, we might be more inclined to agree with the State's position. But we are not."

Relying on caselaw, the appellate court concluded there was enough evidence to support the criminal deviate conduct charge but not the rape charge.

"The State's failure to properly charge Atteberry is no mere technicality that we may overlook. Fundamental due process and common sense both require that the State must prove the elements of the crime it charged, not the elements of some other crime the defendant may have committed," he wrote.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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