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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT