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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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  1. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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