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ATTORNEY FOR APPELLANT Matthew Jon McGovern Evansville, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 31S00-0610-CR-355 HOBERT ALAN PITTMAN,

May 15 2008, 11:13 am

CLERK

Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Harrison Superior Court, No. 31D01-0406-MR-481 The Honorable Roger D. Davis, Judge _________________________________ On Direct Appeal _________________________________ May 15, 2008 Boehm, Justice. The defendant, known as "Albert" Pittman, was found guilty by a jury of two counts of felony murder, and one count each of attempted murder, theft, auto theft, and conspiracy to commit burglary. The jury found that Pittman intentionally killed each of the murder victims and recommended a sentence of life without parole on each of the murder counts. The trial court sentenced Pittman to two consecutive life sentences for the murders plus consecutive sentences on the other counts aggregating seventy-three years. We find that the evidence does not support one of the life without parole sentences and remand with instructions to enter a consecutive sen-

tence of sixty-five years on that count. We otherwise affirm Pittman's convictions and sentences. Facts and Procedural History The defendant, Albert Pittman, is the son of Hobert Pittman and the stepson of Linda Pittman. 1 In the spring of 2004, Hobert and Linda lived together in the Ohio River town of Mauckport, Indiana, along with Linda's mother, Myrtle Satterfield. Myrtle was in her eighties and suffered from a medical condition that had required amputation of both legs. To transport Myrtle, Hobert and Linda had purchased a wheelchair-accessible van. They also owned two pick-up trucks and a Ford Explorer. Although Myrtle owned a house in adjacent Crawford County, she was unable to live alone, and Hobert and Linda were helping to prepare the house to be rented. On Saturday, June 12, 2004--Hobert and Linda's thirteenth wedding anniversary--Hobert, Linda, and Myrtle all worked at the Crawford County property. At some point, Hobert left for home in his truck, but Linda and Myrtle remained for a few hours and returned to Mauckport late in the afternoon in the van. When Linda and Myrtle arrived at the home, they found the security gate open and Hobert's truck parked at an unusual angle. As the van stopped in the driveway, Pittman emerged from the garage on the driver's side of the van and fired shots into the van. Pittman then got into Linda's Explorer, drove past the van, and stopped. Pittman and another man emerged from the Explorer and both resumed shooting into the van. Linda screamed, then stopped breathing and tried to appear dead in the driver's seat. Pittman and the man then drove away in the Explorer. Despite having sustained severe injuries, Linda drove for help with Myrtle still in her wheelchair in the van. Linda identified the Explorer ahead of her turning left toward the Ohio River. She saw the Explorer's backup lights come on, thought the Explorer was coming after her, and turned right into the parking lot of a tavern where she was able to flag down a passing truck. Linda told Darrell Mosier and Matthew Stanley that Pittman had shot her and her family
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The defendant's legal name is Hobert Alan Pittman, but he is known as Albert Pittman. This opinion will refer to the defendant as "Pittman" and to his father as "Hobert."

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and had driven away in an Explorer. At that point, Mosier and Stanley saw an Explorer approach, execute a U-turn, and head back toward the Ohio River. Stanley remained with Linda and called 911 while Mosier followed the Explorer in his truck. From a height above the river, Mosier saw the Explorer stop under a bridge where two men transferred items from the Explorer to a Plymouth Horizon that had been parked under the bridge, and then drove the Horizon over the bridge into Kentucky. Myrtle was found dead in the van. An autopsy concluded that she had died of shotgun blasts to her head and shoulder. Linda sustained shotgun wounds to her chest and lost a thumb, but survived. Examination of the van revealed bullet fragments and shotgun pellets and wadding. The front windshield and rear driver's side window had bullet holes, and the windows on the driver's side had holes consistent with shotgun fire. At the home, officers found Hobert under a tarp in the garage, dead from a wound to the head that could have been inflicted by either a shotgun or a rifle. Empty shotgun and rifle shells were found in the driveway. Portions of the home had been ransacked, a window was broken, and Hobert's gun cabinet had been emptied. A search of the Ford Explorer abandoned at the bridge turned up seventeen long guns, at least four of which were Hobert's. Tests determined that the bullet fragments and shotgun shells recovered at the crime scene had been fired from two of the weapons recovered from the Explorer. No useful fingerprints were found on either weapon. Two days after the shootings, Pittman's mother reported to law enforcement that she had received a phone call from Pittman. Pittman told his mother that he was not involved in the shootings and was sleeping in a park when they occurred, but had heard of the murders on his scanner radio. Law enforcement determined that the call came from a pay phone in Daytona Beach, Florida. Daytona Beach police soon located and arrested Pittman and John Michael Naylor and seized a Plymouth Horizon. The men were transported back to Indiana along with evidence found in the Horizon, including firearms and survival gear. No scanner was found among the items removed from the vehicle. While incarcerated in Indiana, Naylor requested to speak with a correctional officer and stated, "I'm guilty of killing those two people and need to talk to someone over the situation."

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Pittman was charged with theft, auto theft, conspiracy to commit burglary, attempted murder of Linda, and two counts of felony murder alleging that Hobert and Myrtle were killed in the course of a burglary. The State also filed a request for life imprisonment without parole, alleging three aggravating circumstances as to each murder: that Pittman had intentionally killed each victim in the course of the burglary, that he did so by lying in wait, and that the murders occurred while Pittman was on probation. The jury found Pittman guilty on all counts, determined the existence of statutory aggravators, decided that the aggravators outweighed any mitigating circumstances, and recommended two sentences of life imprisonment without parole. The trial court sentenced Pittman to concurrent terms of twenty years for the conspiracy to commit burglary and three years for theft, followed by consecutive sentences of life without parole for each of the two murders, fifty years for attempted murder, and three years for auto theft. Pittman appeals his convictions and sentences. Because the trial court imposed life without parole, this Court has mandatory jurisdiction of this direct appeal under Indiana Rule of Appellate Procedure 4(A)(1)(a). Pittman's appeal raises five issues: I. Whether a sentencing order imposing life imprisonment without parole under the current life without parole statute must comply with the heightened requirements of Harrison v. State; II. Whether the trial court abused its discretion in denying a mistrial after testimony that Pittman and his co-conspirator met in prison; III. Whether the trial court erred in admitting into evidence a photograph of the victims during life; IV. Whether the trial court improperly imposed a sentence of life without parole on a theory of accomplice liability; and V. Whether the trial court improperly imposed consecutive sentences. I. Adequacy of the Sentencing Order Pittman argues that his sentences of life without parole are erroneous because the trial court's written sentencing order does not satisfy the requirements set out in Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995), for an order sentencing a defendant to life without parole or death.

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A sentence of life without parole requires findings that (1) the State proved at least one aggravating circumstance beyond a reasonable doubt and (2) the aggravating circumstances outweigh any mitigating circumstances. Ind. Code

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