The state has asked the Indiana Supreme Court to reconsider its decision to throw out murder convictions against three Elkhart men whose accomplice in a burglary was shot and killed by a homeowner.
Attorney General Greg Zoeller filed petitions for rehearing Oct. 19 asking the court to find it erred when it ruled Levi Sparks, Blake Layman and Anthony Sharp should not have been convicted under the state's felony murder statute. That law allows murder charges if someone dies during the commission of another violent offense.
"The evidence is more than sufficient to show additional 'threatening' or 'dangerously violent' conduct," Zoeller wrote in his petition, The Indianapolis Star reported.
The court last month ordered the men to be re-sentenced on burglary charges that would reduce their sentences to no more than 20 years. Layman, 19, and Sharp, 21, were sentenced to 55 years in prison following jury trials, and Sparks, 20, was sentenced to 50 years. A fourth man, Jose Quiroz, 19, pleaded guilty and was sentenced to 50 years in prison.
The fifth burglar, Danzele Johnson, 21, died during the October 2012 break-in after homeowner Rodney Scott awoke from an afternoon nap, confronted the burglars with a handgun and fired a warning shot that struck Johnson in the chest and killed him.
Layman, Sharp and Sparks appealed their August 2013 convictions to the Supreme Court. Layman and Sparks' appeals were combined in Blake Layman & Levi Sparks v. State of Indiana, 20S04-1509-CR-548; the justices applied their holdings in that case to Anthony P. Sharp, Jr. v. State of Indiana, 20S04-1509-CR-549
Zoeller said in the state's petition that the court wrongly interpreted what the statute requires when perpetrators die during crimes. The court said that the perpetrators must engage in violent or threatening behavior beyond what was involved in the original felony. In this case, they kicked down doors for a burglary.
“(T)he record here shows that when the group broke and entered the residence of the homeowner intending to commit a theft – a burglary – not only were they unarmed, but also neither the Appellants nor their cohorts engaged in any ‘dangerously violent and threatening conduct,’” Justice Robert Rucker wrote in the opinion Blake Layman & Levi Sparks v. State of Indiana. “There was simply nothing about the Appellants’ conduct or the conduct of their cohorts that was ‘clearly the mediate or immediate cause’ of their friend’s death.
“Thus, while the evidence is sufficient to sustain a conviction for the underlying burglary, it is not sufficient to sustain a conviction for felony murder in the perpetration of a burglary,” the court ruled. “We thus remand this cause with instructions to enter verdicts of guilty to burglary as a Class B felony and resentence the Appellants accordingly.”
Zoeller said the violent entrance to the home was sufficiently threatening that the intruders knew that it could end violently.
"Defendants did not merely commit burglary. Defendants committed a 'home invasion,' a shattering, violent attack on Scott's home," the petition said.
Failing to apply the statute in the case minimizes Johnson's death because he was a criminal, Zoeller said.
"By limiting felony-murder liability for co-perpetrators' deaths, this court's opinion says that the culpable deaths of criminals is less worthy of the law's notice and less deserving of punishment than a 'real crime.'"