MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 21 2017, 8:05 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chris M. Teagle Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana
George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles R. Whittington, February 21, 2017 Appellant-Defendant, Court of Appeals Case No. 05A02-1512-CR-2359 v. Appeal from the Blackford Circuit Court State of Indiana, The Honorable Dean A. Young, Appellee-Plaintiff Judge Trial Court Cause No. 05C01-1502-MR-41
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 1 of 18 [1] Following a jury trial, Charles R. Whittington was convicted of two counts of
murder and sentenced to an aggregate term of 170 years in the Department of
Correction. Whittington raises the following issues on appeal:
1. Did the trial court abuse its discretion in admitting Whittington’s statements to police?
2. Was the jury’s verdict of guilty—rather than guilty but mentally ill (GBMI)—contrary to law?
3. Is Whittington’s 170-year sentence inappropriate?
[2] We affirm.
Facts & Procedural History
[3] In January of 2015, Whittington was a regular visitor at Shane Williamson’s
Hartford City apartment. Whittington had recently split up with his girlfriend,
Heather Lennartz, and Lennartz had blocked him on Facebook and her cell
phone. Lennartz had also been childhood friends with Shane, and they had
reconnected on Facebook around the end of 2014 or the beginning of 2015.
When Whittington visited Shane’s home, he would often use Shane’s Facebook
profile and cell phone to contact Lennartz while pretending to be Shane. At
some point, Lennartz sent provocative photographs of herself to Shane.
Whittington was angry about the photos and repeatedly demanded that Shane
give them to him, even though Shane had already done so and then deleted the
photos.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 2 of 18 [4] In early February 2015, Whittington was served with a restraining order barring
him from contacting Lennartz and her children. When Whittington spoke with
Lennartz’s mother on February 2, 2015, he told her that Shane had photos of
Lennartz and that he was going to get the cell phone and delete the photos even
if he had to “beat the fuck out of him[.]” Transcript at 321.
[5] On the morning of February 5, 2015, Whittington drove to Shane’s apartment.
Shortly after 9 a.m., he entered the bedroom of Katelin Williamson, Shane’s
fourteen-year-old daughter, and shot her in the face at close range, killing her.
Whittington then shot Shane twice in the head after a struggle in Shane’s truck,
which took place in the parking lot of the apartment complex and in front of
eyewitnesses. Shane also died as a result of his injuries.
[6] On February 9, 2015, the State charged Whittington with two counts of
murder. The State also filed two sentencing enhancements based on
Whittington’s use of a firearm in the murders. A five-day jury trial commenced
on November 3, 2015, at which Whittington asserted an insanity defense. On
November 9, 2015, the jury returned guilty verdicts on the murder charges and
found that Whittington had used a firearm in the commission of the offenses as
required to support the sentencing enhancements. On December 1, 2015, the
trial court sentenced Whittington to sixty-five years for each of the murder
convictions, enhanced each count by twenty years based on the use of a
firearm, and ordered the sentences to run consecutively, resulting in an
aggregate term of 170 years imprisonment. Whittington now appeals.
Additional facts will be provided as necessary.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 3 of 18 Discussion & Decision
Admission of Statements
[7] Whittington first argues that the trial court erred in admitting his statements to
police because those statements were obtained in violation of his Miranda rights.
The trial court has broad discretion in ruling on the admissibility of evidence, and we will reverse the trial court’s ruling only when the trial court abuses that discretion. Fuqua v. State, 984 N.E.2d 709, 713-14 (Ind. Ct. App. 2013), trans. denied. The trial court abuses its discretion only if its decision regarding the admission of evidence is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id. Regardless of whether the challenge is made through a pretrial motion to suppress or by an objection at trial, our review of rulings on the admissibility of evidence is essentially the same: we do not reweigh the evidence, and we consider conflicting evidence in a light most favorable to the trial court’s ruling, but we may also consider any undisputed evidence that is favorable to the defendant. Id. Additionally, we may consider foundational evidence introduced at trial in conjunction with any evidence from a suppression hearing that is not in direct conflict with the trial evidence. Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005).
Hicks v. State, 5 N.E.3d 424, 427 (Ind. 2014), trans. denied.
[8] On appeal, Whittington claims that police employed the sort of “question-first”
interrogation technique condemned by the United States Supreme Court in
Missouri v. Seibert, 542 U.S. 600 (2004). Officers using this technique withhold
Miranda warnings until after a suspect has confessed, and thereafter, give
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 4 of 18 Miranda warnings and secure a waiver before obtaining a second, similar
confession. Id. at 611-14. As the Seibert court explained:
Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.
Id. at 613-14 (alteration in original, footnote omitted). Thus, the Court held
that the defendant’s statements made both before and after Miranda warnings
were inadmissible. Id. at 617.
[9] Indiana courts have consistently applied Seibert to hold a defendant’s post-
Miranda statements inadmissible in situations where a defendant has been
interrogated prior to receiving Miranda warnings and confessed or made
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 5 of 18 incriminating statements, and then repeated those statements after receiving
Miranda warnings. See, e.g., Kelly v. State, 997 N.E.2d 1045, 1053-54 (Ind.
2013); Morris v. State, 871 N.E.2d 1011, 1018-19 (Ind. Ct. App. 2007), trans.
denied. But our review of the record in this case reveals that Whittington was
not subjected to pre-Miranda interrogation.
[10] Whittington was arrested on the day of the murders and transported to the Jay
County Jail. Whittington was handcuffed and placed in an interview room,
and Officer Todd Wickey of the Portland Police Department sat with him while
waiting for Hartford City police to arrive. It is undisputed that Whittington had
not been Mirandized at that time. Contrary to Whittington’s arguments,
however, the evidence favorable to the trial court’s ruling establishes Officer
Wickey did not interrogate him. Indeed, Officer Wickey testified that he did
not ask Whittington any questions and merely listened while Whittington
talked about his motorcycle and his recipe for ribs, which Whittington said he
had been making that day. See White v. State, 772 N.E.2d 408, 412 (Ind. 2002)
(explaining that “[u]nder Miranda, ‘interrogation’ includes express questioning
and words or actions on the part of the police that the police know are
reasonably likely to elicit an incriminating response from the suspect” and that
“[v]olunteered statements do not amount to interrogation”). Although
Whittington claims that Officer Wickey questioned him concerning his
activities that day, it is not our province to judge the credibility of witnesses in
this manner on appeal. Because Whittington was not interviewed until after
Officer Matthew Felver of the Hartford City Police Department arrived and
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 6 of 18 advised him of his Miranda rights, Whittington’s reliance on Seibert and its
progeny is misplaced.
Rejection of GBMI Verdict
[11] Next, Whittington challenges the jury’s failure to return a GBMI verdict. 1 Ind.
Code § 35-36-2-3 provides that, in all cases where a defense of insanity is raised,
the jury shall determine whether the defendant is guilty, not guilty, not
responsible by reason of insanity, or “guilty but mentally ill at the time of the
crime.” For purposes of a GBMI verdict, “mentally ill” means “having a
psychiatric disorder which substantially disturbs a person’s thinking, feeling, or
behavior and impairs the person’s ability to function.”2 I.C. § 35-36-1-1. When
a defendant challenges a jury’s failure to return a GBMI verdict as contrary to
law, we grant substantial deference to the verdict in light of the jury’s “right to
determine the law and the facts” in all criminal cases. Satterfield v. State, 33
N.E.3d 344, 348 (Ind. 2015) (quoting Ind. Const. art 1, § 19). Because a
defendant raising such a challenge appeals from a negative judgment, he faces a
heavy burden. Id. Indeed, the conviction will be set aside only if the evidence
is without conflict and leads to only the conclusion that the defendant was
GBMI. Id. In considering such issues, this court “will not reweigh evidence,
reassess witness credibility, or disturb reasonable inferences made by the trier of
1 Whittington does not challenge the jury’s rejection of his insanity defense. 2 Although not relevant in this case, the term “mentally ill” also expressly includes “having an intellectual disability.” I.C. § 35-36-1-1.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 7 of 18 fact.” Id. (quoting Myers v. State, 27 N.E.3d 1069, 1074 (Ind. 2015)). We will
consider only the evidence favorable to the verdict and the reasonable and
logical inferences flowing therefrom. Id.
[12] Whittington argues that the jury’s decision to find him guilty rather than GBMI
was “contrary to the evidence and erroneous[,]” but he fails to cite or apply the
statutory definition of mentally ill. Appellant’s Brief at 18. Accordingly, his
argument in this regard is waived. See Davis v. State, 835 N.E.2d 1102, 1113
(Ind. Ct. App. 2005) (explaining that “[a] party waives an issue where the party
fails to develop a cogent argument or provide adequate citation to authority and
portions of the record”), trans. denied.
[13] Waiver notwithstanding, we cannot say that the evidence presented concerning
Whittington’s mental condition at the time of the crime was without conflict
and led only to the conclusion that he was mentally ill as defined in I.C. § 35-
36-1-1 at the time of the murders. Although there was evidence presented that
Whittington had previously been diagnosed with a number of mental illnesses,
including schizophrenia, bipolar disorder, depression, anxiety, and post-
traumatic stress disorder, there was also significant evidence that Whittington
had a history of malingering and being dishonest with service providers. For
example, Whittington had previously told mental health care providers that he
had hallucinated clowns and that an alter ago named “Elmer” could make him
do things, but he later admitted that he was being untruthful. Yet when he was
interviewed by investigators on the day of the murders, he again claimed to
have an alter ego named Elmer, and he stated that “when Elmer comes out, he
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 8 of 18 doesn’t remember what Elmer does.” Transcript at 275. Whittington also lied
to service providers about being in active combat in Vietnam. Dr. Craig
Buckles testified that although Whittington had been diagnosed with
schizophrenia early on, many of Whittington’s service providers had serious
doubts about this diagnosis. Dr. Buckles testified further that he did not
observe any signs of a thought disorder in Whittington.
[14] Moreover, evidence of Whittington’s behavior around the time of the murders
supports a conclusion that Whittington was not mentally ill at the time of the
crimes within the meaning of I.C. § 35-36-1-1, in that his thinking, feeling, and
behavior was not substantially disturbed and his ability to function was not
impaired. Brian McDonald, who was Shane’s close friend and who had spent
time with Whittington at Shane’s apartment, testified that approximately one
week before the murders, Whittington had said that “all he had to do was quit
taking his medication and he had . . . a free pass to kill.” Transcript at 149.
Three days before the murders, Whittington told Lennartz’s mother that he was
going to delete the photos of Lennartz from Shane’s phone even if he had to
“beat the fuck out of him[.]” Id. at 321 The day before the murders,
Whittington went to the VA office in Marion and requested his medical
records. The VA records from that date showed that Whittington met with a
therapist and discussed his relationship with Lennartz and the restraining order
with a therapist and that Whittington was “lucid and oriented” and “did not
express bizarre, paranoid or delusional thoughts.” Exhibit Volume IV at 30.
Immediately after the murders, Whittington altered his appearance by shaving
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 9 of 18 his beard and he disposed of the baseball cap he was wearing while he
committed the crimes. After he was arrested, Whittington denied ever having
been to Shane’s apartment and lied to police about owning a 9mm handgun.
[15] Although it is undisputed that Whittington had been diagnosed with some
psychiatric disorders in the past, the evidence in this case amply supported a
conclusion that any psychiatric disorder Whittington might have had at the
time he murdered Katelin and Shane did not substantially disturb his thinking,
feeling, or behavior and impair his ability to function. Indeed, the evidence
presented easily supports a conclusion that Whittington acted out of anger and
jealousy, and then sought to use his mental health history to escape
responsibility for his actions. Because Whittington has fallen far short of
establishing that the evidence presented concerning his mental state at the time
of the murders was without conflict and led only to the conclusion that he was
GBMI, we affirm the jury’s guilty verdict. See Satterfield, 33 N.E.3d at 350-51
(affirming a jury’s rejection of a GBMI verdict where the evidence supported a
conclusion that the defendant was acting deceitfully).
Sentencing
[16] We first note that Whittington’s sentencing argument conflates two separate
sentencing standards: whether the trial court abused its discretion in identifying
mitigating and aggravating factors and whether Whittington’s sentence is
inappropriate pursuant to Indiana Appellate Rule 7. “As our Supreme Court
has made clear, inappropriate sentence and abuse of discretion claims are to be
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 10 of 18 analyzed separately.” King v. State, 894 N.E.2d 265, 267 (Ind. Ct. App. 2008).
Accordingly, “an inappropriate sentence analysis does not involve an argument
that the trial court abused its discretion in sentencing the defendant.” Id.
[17] With respect to Whittington’s argument concerning the trial court’s
consideration of aggravating and mitigating factors, we note that sentencing
decisions rest within the sound discretion of the trial court. Anglemyer v. State,
868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as
the sentence is within the statutory range, it is subject to review only for an
abuse of discretion. Id. “An abuse of discretion occurs if the decision is ‘clearly
against the logic and effect of the facts and circumstances before the court or the
reasonable, probable, and actual deductions to be drawn therefrom.’” Id. at 490
(quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).
[18] A trial court may abuse its sentencing discretion in a number of ways,
including: (1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating factors that are
unsupported by the record; (3) entering a sentencing statement that omits
reasons that are clearly supported by the record; or (4) entering a sentencing
statement that includes reasons that are improper as a matter of law. Id. at 490-
91. If the trial court abuses its discretion in one of these or another way,
remand for resentencing is the appropriate remedy “if we cannot say with
confidence that the trial court would have imposed the same sentence had it
properly considered reasons that enjoy support in the record.” Id. at 491.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 11 of 18 [19] First, Whittington acknowledges that the trial court identified his history of
mental illness as a mitigating factor, but he appears to argue that the trial court
afforded it insufficient mitigating weight. We note, however, that trial courts
are no longer obligated to weigh such factors against each other when imposing
a sentence. Id. Thus, a trial court cannot be said to have abused its discretion
in failing to properly weigh such factors. Id. Accordingly, Whittington’s
argument in this regard is without merit.
[20] Whittington also argues that the trial court relied on an improper aggravating
factor, namely, that the imposition of a lesser sentence would depreciate the
seriousness of the offense. According to Whittington, “[t]his aggravator is only
appropriate if the trial court is considering imposing a sentence less than the
advisory.” Appellant’s Brief at 22. This is an inaccurate statement of the law.
Our Supreme Court has held that “it is not error to enhance a sentence based
upon the aggravating circumstance that a sentence less than the enhanced term
would depreciate the seriousness of the crime committed.” Mathews v. State,
849 N.E.2d 578, 590 (Ind. 2006). Therefore, the trial court did not abuse its
discretion in relying upon this aggravating factor in imposing the maximum
sentence. Moreover, even if the trial court had abused its discretion in this
regard, reversal would not be necessary, both because we can say with
confidence that the trial court would have imposed the same sentence had it not
relied on this aggravating factor and because we conclude below that the
sentence imposed is not inappropriate. See Mendoza v. State, 869 N.E.2d 546,
556 (Ind. Ct. App. 2007) (noting that “even if the trial court is found to have abused
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 12 of 18 its discretion in the process it used to sentence the defendant, the error is harmless if
the sentence imposed was not inappropriate”), trans. denied.
[21] Turning now to Whittington’s challenge to the appropriateness of his sentence,
we note that although a trial court may have acted within its lawful discretion
in imposing a sentence, Article 7, Sections 4 and 6 of the Indiana Constitution
authorize independent appellate review and revision of a sentence imposed by
the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct. App. 2009) (citing
Anglemyer, 868 N.E.2d at 491). This appellate authority is implemented
through Indiana Appellate Rule 7(B), which provides that a court “may revise a
sentence authorized by statute if, after due consideration of the trial court’s
decision, the Court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.” Anglemyer, 868 N.E.2d at 491.
Nevertheless, “we must and should exercise deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give ‘due
consideration’ to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Stewart v.
State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears the
burden of persuading us that his sentence is inappropriate. Childress v. State, 848
N.E.2d 1073, 1080 (Ind. 2006).
[22] The determination of whether we regard a sentence as inappropriate “turns on
our sense of the culpability of the defendant, the severity of the crime, the
damage done to others, and myriad other factors that come to light in a given
case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 13 of 18 State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Moreover, “[t]he principal role of
such review is to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d
1257, 1259 (Ind. 2013). It is not our goal in this endeavor to achieve the
perceived “correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292
(Ind. 2014). Accordingly, “the question under Appellate Rule 7(B) is not
whether another sentence is more appropriate; rather, the question is whether
the sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind.
Ct. App. 2008) (emphasis in original).
[23] In order to assess the appropriateness of a sentence, we look to the statutory
range established for the classification of the relevant offense. Whittington
received the maximum 65-year sentence on each murder count, and the trial
court imposed the maximum twenty-year firearm enhancement on each count.
See Ind. Code § 35-50-2-3 (providing that a person who commits murder shall
be imprisoned for a term ranging from forty-five to sixty-five years); I.C. § 35-
50-2-11 (allowing an additional term of between five and twenty years when the
defendant is found beyond a reasonable doubt to have used a firearm in the
commission of certain offenses, including murder). The trial court ordered the
sentences to be served consecutively, resulting in an aggregate term of 170
years. In other words, Whittington received the maximum sentence allowed by
law. Our Supreme Court has explained that while “the maximum possible
sentences are generally most appropriate for the worst offenders,” this is not “a
guideline to determine whether a worse offender could be imagined” as “it will
always be possible to identify or hypothesize a significantly more despicable
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 14 of 18 scenario.”3 Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002) (citations and
quotation marks omitted). Thus, in reviewing a maximum sentence, “[w]e
concentrate less on comparing the facts of this case to others . . . and more on
focusing on the nature, extent, and depravity of the offense . . . and what it
reveals about the defendant’s character.” Wells v. State, 904 N.E.2d 265, 274
(Ind. Ct. App. 2009), trans. denied.
[24] Whittington’s offenses were heinous in nature. Whittington ended two lives
because he was angry and jealous over a woman who wanted nothing to do
with him, and who had even obtained a restraining order preventing
Whittington from contacting her or her children. Whittington shot Katelin, a
fourteen-year-old girl who was completely uninvolved in Whittington’s quarrel
with Shane, in the face at close range. Katelin died an excruciating and
terrifying death as a result of choking on her own blood. Although the precise
sequence of events is not entirely clear from the record, it appears that
Whittington then forced Shane to get into his truck. Once there, Whittington
shot and killed Shane, and he did so in a parking lot of an apartment complex
during the day. There were eyewitnesses to the murder, including a girl in the
seventh grade. After the shooting, this young witness observed Whittington
3 Whittington provides the reporter citation for Hamilton v. State, 955 N.E.2d 723 (Ind. 2011), but refers to the case as McCormick v. State. Whittington cites this case for the proposition that “maximum sentences should be reversed for the ‘worst of the worst[,]’” and goes on to suggest that the trial judge should not have imposed the maximum sentence because it clearly believed that Whittington was among the worst of the worst. Appellant’s Brief at 23 (emphasis supplied). Whittington has apparently misread Hamilton, in which our Supreme Court held that trial courts “should reserve maximum sentences for classes of offenses that constitute the worst of the worst.” 955 N.E.2d at 727 (emphasis supplied).
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 15 of 18 open the driver’s side door and saw Shane’s body fall to the ground.
Whittington then looked up at her and said “he fell” before bending down to
grab something. Transcript at 23. Fearing that Whittington was reaching for a
gun, the girl fled in terror. After the murders, Whittington took steps to alter
his appearance and conceal his identity as the perpetrator. Whittington’s
sentence is certainly not inappropriate in light of the nature of the offenses.
[25] Whittington’s argument concerning the appropriateness of his sentence in light
of his character focuses almost exclusively on his history of mental illness.
There are several factors that bear on the weight, if any, to be given mental
illness in sentencing. Taylor v. State, 943 N.E.2d 414, 420 (Ind. Ct. App. 2011),
trans. denied. “These factors include: (1) the extent of the defendant’s inability
to control his or her behavior due to the disorder or impairment; (2) overall
limitations on functioning; (3) the duration of the mental illness; and (4) the
extent of any nexus between the disorder or impairment and the commission of
the crime.” Id.
[26] The trial court in this case acknowledged the duration of Whittington’s mental
illness, but expressed doubt as to its severity and impact on Whittington’s
functioning and ability to control his behavior. See Appellant’s Appendix Vol. II at
168 (sentencing order in which the trial court found as a mitigating
circumstance that Whittington “had long-term mental health issues, although
not nearly approaching the defendant’s claim to insanity, episodic blackouts,
and the existence of the defendant’s fictional character ‘Elmer’”). We reach a
similar conclusion for the purposes of our App. R. 7(B) review. Although
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 16 of 18 Whittington had long-standing psychiatric diagnoses, there was significant
evidence presented that Whittington had a history of malingering and
exaggerating symptoms. A number of mental health care providers expressed
doubts concerning Whittington’s schizophrenia diagnosis, and Dr. Buckles
testified that he saw no signs of a thought disorder in Whittington.
Additionally, evidence presented concerning Whittington’s behavior before and
after the offenses supports an inference that Whittington was thinking rationally
and in control of his behavior. Furthermore, Whittington has not established a
nexus between his mental illness and his crimes. Instead, the evidence supports
and inference that Whittington was acting out of anger and jealousy, and that
he expected to use his history of mental illness to escape responsibility for his
premeditated crimes. Indeed, about a week before the murders, Whittington
told McDonald that if he stopped taking his medication, he would have “a free
pass to kill.” Transcript at 149. The evidence presented at trial paints a picture
of a deceitful, manipulative, and violent criminal rather than a seriously
mentally ill individual.
[27] We note, as did the trial court, that Whittington’s criminal history was limited
and remote in time. The seriousness of the crimes in this case, however,
counterbalances the weight we attribute to this factor. We believe that the
brutality and senselessness of the current offenses reveals Whittington’s true
character. In sum, Whittington truly is among the worst of the worst. As such,
he is deserving of the maximum sentence.
Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 17 of 18 Riley, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 05A02-1512-CR-2359 | February 21, 2017 Page 18 of 18