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ATTORNEY FOR APPELLANT
Bruce E. Andis Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Kelly A. Miklos Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S02-0605-CR-174 TOMMY MCELROY, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Marion Superior Court, Criminal Division I, No. 49G01-0408-FC-144046 The Honorable Tanya Walton-Pratt, Judge _________________________________ On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0505-CR-381 _________________________________ May 2, 2007 Rucker, Justice.

Statement of the Case The issue presented is whether the trial court abused its discretion when it imposed enhanced concurrent sentences for two counts of reckless homicide and one count of criminal

recklessness. Finding that the valid aggravating factor is substantiated by the trial court's sentencing statements and that it supports an enhanced sentence, we conclude there was no abuse of discretion.

Facts and Procedural History

On the afternoon of July 29, 2003, a paint truck owned by Roland's Painting and Trim broke down after leaving a job site in Indianapolis. Another paint truck, owned by the company and already carrying nine employees, stopped to pick up the eight stranded employees. The eight painters joined five others in the enclosed cargo area in the back of the truck. In addition to holding thirteen people, the cargo area contained highly flammable paints, lacquers, and thinners, and all of the passengers were aware of these substances. The rear cargo door was the only exit from the cargo area, and for ventilation the workers riding in the back propped up the overhead cargo door with a small ladder and secured it with a bungee cord.

Tommy McElroy sat next to Otis Turner in the cargo area of the paint truck and repeatedly used his lighter in an effort to ignite the newspaper that Turner was reading despite Turner's demand that he stop. Turner then stood and poured lacquer thinner onto the truck floor in the midst of the employees. McElroy leaned over and flicked his lighter toward the lacquer, causing the fumes to ignite immediately and engulf the cargo area in flames. The trapped men banged on the walls of the cargo area, and the driver pulled the truck over on Interstate 465. All of the painters riding in the cargo area were seriously burned, and two, Turner and John (Jay) Webster, died from their injuries.

The State charged McElroy with two counts of reckless homicide, Class C felonies, see Ind. Code

Download Tommy McElroy v. State of Indiana.pdf

Indiana Law