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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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