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Court: evidence doesn't support sentence

January 1, 2008
The Indiana Supreme Court threw out a life-without-parole sentence for felony murder because there wasn't proof the killing was "intentional," as state law requires for that penalty.

In Hobert Alan Pittman v. State of Indiana, No. 31S00-0610-CR-355, Hobert Alan Pittman appealed his convictions and sentence of two consecutive life sentences for murdering his father and stepgrandmother, as well as a 73-year sentence for convictions of attempted murder, theft, auto theft, and conspiracy to commit burglary.

Pittman's stepmother, Linda, and stepgrandmother, Myrtle, were returning home and saw Pittman and John Michael Naylor come out of the garage and start shooting at the van his stepmother and stepgrandmother were in. He then got into Linda's Ford Explorer, drove past the van, stopped, and fired more shots into the van. Myrtle died from gunshot wounds and Linda was injured. Later, police found Pittman's father under a tarp in the garage dead from a gunshot wound to the head.

Pittman was charged with two counts of felony murder because his father and stepgrandmother were killed in the course of a burglary. The jury recommended two sentences of life imprisonment without parole, and the trial court also sentenced him to 73 years on the other related convictions.

But the state couldn't support the life-without-parole sentence for the felony murder of Pittman's father, the justices determined. Because Indiana Code Section 35-50-2-9(b)(1) permits a sentence of life without parole only if the defendant has committed a murder by "intentionally" killing someone while committing another crime, the state has to prove the defendant was a major participant and the killing was intentional in order to impose a sentence of life without parole under Subsection (b)(1), Justice Theodore Boehm wrote.

Attempting to support that sentence, the state listed three aggravating factors listed in Indiana Code 35-50-2-(b): that he committed the murders by intentionally killing while committing or attempting to commit burglary; committed the murders lying in wait; and committed the murders while on probation after receiving a sentence for a commission of a felony.

There isn't any evidence Pittman killed his father, Justice Boehm wrote. Both Pittman and Naylor were on the scene, but there is no evidence as to who shot the man. While felony murder can be charged against someone who didn't intentionally or recklessly kill the victim, or may not have even been the killer at all, Pittman can't receive life without parole because that sentence requires proof he intentionally killed his father. As such, the high court set aside Pittman's life-without-parole sentence for felony murder of his father and revised his sentence for the felony murder to a 65-year term to be served consecutively with his other sentences.

The court also ruled on various other aspects of Pittman's appeal, such as the adequacy of the trial court's sentencing order, a motion for mistrial based on trial testimony, and admission of photographic evidence.
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