ILNews

COA reverses rape conviction in cold case

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT