text:
Israel, the spectre of 1948, and genocide scholars (2)
Posted on February 22, 2011 July 7, 2011 by Martin Shaw
The genocide psychologist, Israel Charny, having read my exchange with Omer Bartov in the Journal of Genocide Research, first posted an abusive, defamatory rant against me (on the International Association of Genocide listserve), including accusing me of 'anti-Semitism'. The President of the IAGS, Professor William Schabas, quickly apologized for the inadvertent publication of this abuse. Yet far from apologizing himself for his disgraceful departure from the standards of scholarly debate, Charny then repeated the libel (in the US Jewish newspaper Forward), by implication accusing me as well as the whole of the International Network of Genocide Scholars of 'anti-Jewish sentiment'. (The Forward has now published letters by Juergen Zimmerer, of INOGS, and myself, in reply.)
Charny has now, finally, calmed down enough to post a semi-reasoned response about Palestine in 1948 on the IAGS listserve (although a colleague of his, Elihu Richter, has posted another aggressive libel) and on H-genocide. It might well be argued that one does not reply to abuse and libel with reasoned argument, but with lawyers' letters. But since some IAGS and H-Genocide members may have missed the original defamatory rant, and therefore believe that Charny is simply debating, I intend to answer his points.
First it is important to note that Charny relies for his comments on my views entirely on the JGR debate, and has not bothered to go back to the original article in Holy Land Studies, in which I set out my arguments in full. In this respect he could be accused of violating 'the elementary requirements of assembly of established information' (to remind Charny of one of his own accusations). But it also means that he has missed quite a lot of my argument. Let us take his points in turn.
First and foremost, there is nothing to quote of Shaw about the War of Independence in 1948 being a direct result of Arab refusal to accept the UN partition plan which the Jews did, and Arab attacks on Israel from a whole constellation of Arab countries coming to invade the new State of Israel together with Arabs living in then Palestine.
I already addressed this point (made originally by Omer Bartov) in the JGR debate which Charny is supposed to have read. I said that 'to say that the Yishuv compromised, the Arabs not, needs to be contextualized by the fact that the UN plan grossly favoured the Jewish state, in relation to the sizes of the respective populations – as well as, indeed, in relation to the Arab opposition to partition as such.' Typically, Charny just repeats Bartov's point, and doesn't deal with my reply.
Shaw's conception of the war is as if the Jews are an invading colonial force doing genocide like had just taken place (guess against whom) in Europe as a result of "European nationalisms" (I hardly recognize Hitler and Nazism in such phrasing).
This wild, sarcastic comment is why I said that Charny's response was 'semi-reasoned'. But I did say in HLS: 'The Nakba was not the Final Solution, and a simple comparison of the two is utterly inappropriate'. I also said 'Palestine in 1948 was … much more like Bosnia, where a minority of the Bosniak (Bosnian Muslim) population was murdered as part of a violent and coercive campaign to terrorise the majority of the population into leaving the territory controlled by Republika Srpska'. I added, 'However one should not push any analogy too far. Genocide studies is bedeviled by excessive case-to-case comparison at the expense of the clear application of concepts.'
Little did I know until Shaw that were I some generations back a chalutz [pioneer] coming to drain the swamps in Northern Palestine to create a kibbutz or in later years a passenger on Exodus leaving Holocaust Europe, I was busy dreaming, planning and scheming to kill Arabs, and now that my capable national psychoanalyst Shaw has set me straight, I will have to get to more work on my lousy killing mind than I had realized I had to do.
Nowhere did I suggest that any section of the Zionist movement was 'planning or scheming to kill Arabs'. What I did say is that the logic of 'transfer' (removal of a large part of the Arab population of Palestine) was built into Zionism and that in the war of 1948, either 'opportunistically' or as a result of pre-planning, one of the Zionist movement's aims, in which it was largely successful, was to remove a large part of the Arab population from the future Israeli state. Obviously none of this means that either individual Zionist 'pioners' or Holocaust survivors had migrated to Palestine with this goal in mind.
I have argued explicitly against any kind of 'national psychology', let alone psychoanalysis, as it seems to me a racist argument. But it is worth noting that Charny himself is not averse to this kind of argument – look at his sneers about 'English manners' in his comments to the Forward, sneers which if made about Jews would undoubtedly be regarded as antisemitic.
In my judgment the complete failure of Martin Shaw to refer to the origin of the war, and the insistence on a preconceived genocidal intention at the core of Zionism violate every sense of historical factuality and academic integrity. That is the essence of my protest.
If Charny had bothered to read my HLS article he would have seen several references to the origins of the war, and to the fact that it was started by the Arab side. If he had even read the debate carefully it would be seen that I do NOT 'insist on a preconceived genocidal intention at the core of Zionism'. Instead I stress that while the logic of removing part of the Arab population was inherent in the project of a Jewish-majority state (since Jews were a small minority of the Palestine population until the Second World War), Zionist thinking also included more enlightened strands. I quoted with approval Mark Levene's comment that
drawing a straight line from Herzl through David Ben-Gurion, to Ariel Sharon and beyond, accusing them of aiming to get rid of the Palestinians, elides all manner of Zionist thinking and practice which has been more circumspect, cautious, and often energized by the potential for a Zionist – Arab relationship in which the two peoples might live together' (Levene 2007: 676-77). Moreover, he points out, Zionist thought did not develop in a vacuum. Zionist rejection of coexistence between Jews and Arabs in Palestine was conditioned by Arab attacks on Jewish communities, especially during their 1929 uprising. (HLS article)
Yet 'the logic of a transfer solution to the "Arab problem" remained ineluctable; without some sort of massive displacement of Arabs from the area of the Jewish state-to-be, there could be no viable Jewish state'. This quote is from none other than the Israeli historian, Benny Morris (2004: 43), of whom Charny writes:
Morris has been criticized by some for remaining a Zionist … in the face of the findings that show the Israelis also committed genocidal massacres; and for elements of callousness in his justification of the Israeli actions in a broad historical context; but to the best of my knowledge rarely for the integrity of his historical research and reporting.
On this, at last, Charny and I can find something to agree. If he had read my HLS article, he would have seen that Morris was one of my main sources. But I can only conclude that Charny has read Benny Morris very selectively. Let me point out to him some more of the things that I quoted from Morris in my article, and the conclusions I drew:
'Transfer' thinking was persistent in Zionism: 'by the early 1930s a full-throated near-consensus in support of the idea began to emerge among the movement's leaders' (Morris 2004: 44); yet the pre-war Zionist consensus for transfer 'was not tantamount to pre-planning and did not issue in the production of a policy or master-plan for expulsion …' (Morris 2004: 60).
This is why I concluded 'that pre-war Zionism included the development of an incipiently genocidal mentality towards Arab society, rather in a manner that many European nationalist fantasies of the time tended to regard "other" populations in territories that they regarded as properly part of "their" own nation-state.'
'A complete transfer of the bulk of the Arab population could only be carried out by force, by "ruthless compulsion", in Ben-Gurion's phrase. However recent European history, Ben-Gurion pointed out, had demonstrated that a massive, compulsory transfer of populations was possible – and the ongoing world war had made the idea of transfer even more popular as the surest and most practical way to solve the difficult and dangerous problem of national minorities. The post-war settlement in Europe, he envisioned, would include massive transformation transfers.' (Morris 2001: 45).
In conversation with Ivan Maisky, Stalin's ambassador in London, Chaim Weizmann, president of the Zionist Organisation, canvassed Maisky on the prospects of moving the Palestinian Arabs 'into Iraq or Transjordan'. 'Dr. Weizmann said that if half a million Arabs could be transferred, two million Jews could be put in their place.' However he did explain 'that they were unable to deal with [the Arabs] as, for instance, the Russian authorities would deal with a backward element in their population in the USSR. Nor would they desire to do so' (Morris 2001: 46.)
'the Yishuv [the Jewish community] and its military forces did not enter the 1948 war, which was initiated by the Arab side, with a policy or plan for expulsion' (Morris 2004: 60). Rather, he suggested in his first book, The Birth of the Palestinian Refugee Problem, 1947-1947 (1986), the circumstances of the war brought about the flight of much of the Arab population, although Israeli forces did coerce and deliberately expel some Palestinians.
I pointed out, however, that other historians have gone further, including Ilan Pappe who has produced much evidence for a more pre-planned, coordinated campaign by the central Zionist leadership, from which Levene concludes: 'Pappe unequivocally demonstrates that the drive towards the removal of the Palestinians came from the top.'
I argue, however, that this disagreement is about the degree of central and pre-planning. There is a consensus, which includes Morris, that to some degree, the destruction of Arab society in Palestine was the result of deliberate Israeli policies. Therefore it was not just a question of 'crimes committed by the Israelis in several specific locations', as Charny argues. The strategy of Israel in the war included as one of its aims the removal of a large part of the Arab population, and the removal of that population was in significant part the result of this aim, on the part of the Israeli leadership, as well as of local actions by Israeli commanders, officials, etc., and not simply the result of the dislocations of the war (let alone the policies of the Arab leadership).
I have little confidence that Israel Charny is capable of addressing this case in a balanced way. But I am confident that members of IAGS and H-Genocide will recognize that there is a serious argument here, and I hope you will be inspired to read the original texts.
References in the HLS article.
ADDENDUM (7 July 2011) David Moshman, who blogs for Huffington Post, writes: 'I write a blog on intellectual freedom in education for the Huffington Post, which with one exception has published all of my posts. The exception was [a] piece in which, following the recent controversy over Tony Kushner's honorary degree at CUNY, I summarized your JGR debate about 1948. The Huffington Post informed me that they would "pass" on this one, thus proving my point about the stringent limits on what can be discussed about Israel in the American mainstream.'
Web checklist – this is the latest instalment in a controversy which has taken place across a number of sites:
THE ACADEMIC PUBLICATIONS
Martin Shaw, 'Palestine in an International Historical Perspective on Genocide', Holy Land Studies, 9, 1, 2010, 1-24.
The question of genocide in Palestine, 1948: a debate between Martin Shaw and Omer Bartov, Journal of Genocide Research, 12, 3 & 4, 2010, 243-259.
THE CONTROVERSY, January-February 2011
Israel Charny's abusive and defamatory attack on the IAGS listserve: first post on International Association of Genocide Studies listserve, together apology by William Schabas, President of the IAGS, for publication of Charny's abuse.
Martin Shaw, comment on Bartov and Charny.
Report on the controversy in the US Jewish newspaper, Forward, in which Charny extends his 'anti-Semitic' libel to the International Network of Genocide Scholars.
Charny, second post on IAGS listserve and H-Genocide.
(this post) Martin Shaw, reply to Charny.
Juergen Zimmerer and Martin Shaw, letters to Forward
Posted in anti-semitism and racism, genocide, Israel / Palestine
Published by Martin Shaw
View all posts by Martin Shaw
Previous Post Israel, the spectre of 1948, and genocide scholars (1)
Next Post Darfur: counter-insurgency, forced displacement and genocide
1 thought on "Israel, the spectre of 1948, and genocide scholars (2)"
Academics go to war over the study of mass killings | Kaagoj	 July 11, 201616:54	 Reply
[…] In 2010, a piece in the journal claimed Zionism "was based on a genocidal ideal" and that the 1948 War of Independence was the "fulfillment of that intention," Charny writes. The article, by sociologist Martin Shaw, postulated that pre-war "Zionism included the development of an incipiently genocidal mentality towards Arab society." Shaw is cited as concluding that Israel can only hope for security if it comes "to terms with the genocide of 1948." (Shaw has replied to Charny's criticism here.) […]
Categories Select Category Africa (11) Congo (2) Darfur (1) Kenya (1) Rwanda (4) Zimbabwe (2) anti-semitism and racism (13) Arab world (6) Britain (26) commentary 1999-2009 (38) 1999 (3) 2000 (10) 2001 (12) 2002 (5) 2003 (1) 2005 (1) 2006 (1) 2007 (1) 2008 (2) 2009 (2) genocide (44) Georgia (5) Global War on Terror (25) Afghanistan (13) Iraq (7) globalization and democratisation (15) international justice (5) interviews, speeches, audio (4) Israel / Palestine (30) obituaries (3) racism (4) reviews (36) genocide reviews (24) war reviews (6) Sri Lanka (4) the left (24) this blog (2) Uncategorized (14) war and peace (23) Yugoslavia (14) Bosnia (9) Kosovo (6)
Follow Martin Shaw on Twitter
Martin Shaw on Facebook
Martin Shaw on Open Democracy
Racial self-interest, Max Weber and the production of racism: the strategy and propaganda of Vote Leave during the Brexit referendum
Political racism and the making of 'Brexitland' – review article
Only a bold democratic programme can stop Starmer becoming Labour's third leader to be squeezed in the war of English and Scottish nationalisms
Culpable ignorance, political humiliation, and their consequences: my revision of Lawrence Freedman's first draft of the UK's pandemic policy history
'Running hot': the Tory priority remains to manage death, not minimise it. But will they get away with the unnecessary loss of life they have caused?


text:
Politics of Saturday, 29 February 2020
Vice President marks 28 February incident with veterans
Vice-President, Dr Mahamudu Bawumia on Friday laid a wreath on behalf of government and Ghanaians to commemorate the 72nd anniversary of the February 28 Christianborg crossroads shooting incident held at the Nationalism Park at Osu, Accra.
The event that occasioned Ghana's struggle for independence, is commemorated annually of the killing of three ex-servicemen- Sergeant Adjetey, Corporal Attipoe and Private Odartey Lamptey, during a peaceful march to the Christiansborg Castle on February 28, 1948.
Major-General Obed Boamah Akwa, the Chief of Defence Staff, laid a wreath on behalf of security services, while Retired Major General Clayton Yaache, National Chairman of the Veterans Administration, Ghana (VAG) laid on behalf of departed veterans.
Nii Okwei Kinka Dowuona, the Osu Mantse laid on behalf of traditional authorities and Nii Kai Omashie I a representative of Sargent Adjetey's family, laid on behalf of the fallen soldiers.
Other dignitaries at the ceremony include Mr Ambrose Dery, the Minister of Interior, government officials, security personnel, traditional leaders, veterans, the clergy, students and pupils from selected basic schools.
Recounting the history of the 28th February Christiansborg Crossroads shooting incident, Ex-WO1 Robert Nicholas Kuma, Greater Accra Chairman, VAG stated that, the event was to honour the defenceless Ex-servicemen, who in 1947, were killed by the colonial Police while marching peacefully to the Osu Castle to present a petition to the then Governor.
He said during Second World War, soldiers of the Gold Coast Regiment of the Royal West African Frontier Forces fought alongside their allied forces and at the end of the war there was increased agitation by anti-colonial movements for independence for the colonies in South East Asia and Africa.
Ex-WO1 Kuma said the war veterans, who had fought so gallantly and received high commendation, were demobilized at the end of the war and paid a pittance by way of gratuity of about one shilling a day, adding that, the ex-servicemen were naturally not happy with the gratuity.
As a result, the veterans thought the British Government, which ruled the Gold Coast, now Ghana, would in appreciation of their sacrifices made, pay them the right amount of gratuity, adding that, several appeals made by the soldiers to the authorities fell on deaf ears.
He said after a period of waiting for a reasonable war benefits to be paid, which were not forthcoming, the ex-servicemen decided to directly approach the British Governor and Commander-In-Chief of the Gold Coast Regiment, Sir Gerald Creasy.
Ex-WO1 Kuma said on Saturday, 28th February, 1948, before noon, a number of unarmed ex-servicemen were on a march from Accra to the Christiansborg Castle to present a petition to the Governor and the Commander-In-Chief when they were intercepted at the Christiansborg Crossroads by a contingent of armed Policemen led by a British Superintendent, Mr Imray.
"Mr Imray ordered the ex-servicemen to disperse, when his orders were disobeyed, he gave another order to the Police to open fire. When this second order was not complied with, Mr Imray fired at the ex-servicemen, killing Sergeant Adjetey, Corporal Atitpoe and Private Odartey Lamptey instantly," he said.
He said the news of the death of the ex-servicemen spread rapidly, leading to a situation where law and order broke down in Accra and other parts of the country.
This encouraged anti-colonial movements to press the British government to institute a committee to investigate the killings and the general disorder.
The committee recommended self-government for the Gold Coast which subsequently led to the attainment of political independence for the country.
In a grief-stricken mood, a roll call of the veterans was announced, followed by the sounding of the last post, after which a minute silence was observed for the fallen soldiers as well as the observance of the reveille.

redpajama_set_name: RedPajamaCommonCrawl


Appellant (Defendant                           ),        )    Supreme Court No.
assisting a criminal and attempted robbery as lesser included offenses of murder; (6) the court improperly gave three jury instructions over defendant's objections; (7) the prosecutor's comments during closing argument constitute misconduct warranting reversal of defendant's convictions; and (8) the court erred when it denied defendant's motion to correct error, which was based on the State's failure to disclose an alleged plea agreement entered into with Scott Turner, a key witness for the State and an alleged co-conspirator.
Defendant's arguments are without merit, and, accordingly, we affirm his convictions.
The facts viewed in the light most favorable to the State and the verdicts below are that, in the early morning hours of September 25, 1994, Larry Newton, Duane Turner, and defendant attempted to rob Christopher Coyle ("Coyle"), a Ball State student, and during the course of the robbery shot and killed him. Newton obtained the gun used in the shooting from Scott Turner ("Turner"; no relation to Duane Turner), a State witness in this case who had purchased the gun late in the afternoon on September 24, but who was not present during the robbery attempt and shooting. Although defendant did not actually shoot Coyle, he was the driver for the group during the commission of the crimes.
smoked marijuana for about forty-five minutes. (R. at 543.) Then they all went to a graveyard nearby and continued to drink.
While they were at the graveyard, Newton asked Turner for his gun, and Turner gave it to him. At some point after Newton had the gun, Turner was standing behind a friend's car. Duane was standing on Turner's right, Newton was next to him, and defendant was standing next to Newton on the other side. Three of his friends were sitting on the back trunk of the car facing Turner, Newton, Duane, and defendant.
At that point, according to Turner, Newton said to the group that "he wanted to make some money and felt like robbing somebody." (R. at 547.) He asked Turner and one of the other members of the group if they wanted to go with him and they declined. Newton then asked Duane if he wanted to go with him and he agreed to go. He asked defendant if he would drive them to Ball State, and defendant agreed to take Newton and Duane to Ball State. Newton then said, with the group still assembled around him, that he was "hyped" and felt like "killing someone." (R. at 549.) For a few minutes they remained there, smoking marijuana, and then Newton said "we're going to go do this, let's go do this." He then walked towards defendant's car, and Duane and defendant followed him. The three of them then drove off with defendant at the wheel at about one thirty in the morning.
Immediately after leaving the graveyard, Newton and Duane talked about doing some "devious things" and showed defendant the gun. They then drove to the Ball State campus area, and at about two o'clock in the morning of September 25, they saw Coyle walking down the street alone near a dormitory. Coyle was returning from escorting another student back to her dormitory after a party.
of the car and ran towards Coyle. Defendant drove down the street about a block and a half, made a U-turn, parked the car, and waited for them to return.
Duane and Newton, who had his hand on the gun he was displaying in his belt, returned with Coyle and ordered Coyle into the car. Coyle climbed into the back seat behind defendant, who was still seated behind the wheel, Duane got in the passenger's side of the front seat, and Newton got into the back seat on the passenger's side next to Coyle. Newton then asked Coyle if he had any money, and Coyle said that he did not have any money but that he could get some at his residence. Newton, however, did not want to go to Coyle's residence, as he was afraid that there would be people there.
Defendant then drove into a nearby alley, and Newton and Duane got out of the car and also ordered Coyle to get out of the car. Newton and Duane walked Coyle to the back of defendant's car. Newton pulled out the gun and shot Coyle once, fatally, in the back of the head. Newton then handed the gun to Duane, who fired a shot into Coyle's body, which by then was slumped on the ground. The second shot grazed Coyle's shoulder.
Defendant drove Newton and Duane back to their friend's house where Newton and defendant told Turner about the shooting. Newton asked Turner to get rid of the gun. Defendant then drove with his girlfriend to his girlfriend's sister's house where he dozed off. Turner broke the gun into pieces and put parts of it in a bag which he threw into the Prairie Creek Reservoir. He threw the grips of the gun out the window of a car while driving on 12th Street.
The jury considered defendant's statements and his testimony together with the testimony of Turner and the other witnesses and evidence. On December 7, 1995, defendant's jury trial ended in guilty verdicts on all three counts.
On January 4, 1996, after defendant's trial, the State amended its information filed against Scott Turner, and, on January 11, 1996, Turner, who was originally charged with conspiracy to commit robbery, pleaded guilty to assisting a criminal.
Defendant argues that the court erred when it permitted the State to amend its informations solely for the purpose of charging accessory liability rather than liability as a principal, that is, to charge defendant with aiding Newton and Duane to kill Coyle while attempting to commit robbery and with aiding to confine Coyle without his consent and while armed with a deadly weapon, rather than to charge him with doing these acts himself. This argument is meritless.
4, 1995. The court advised the State at the time of the second continuance that any motions to amend the pleadings should be made by October 16, 1995, and the defense did not object to this date. Nevertheless, when the State moved on October 12 to amend the informations to charge accessory liability, defendant requested a hearing on the State's motion. The court set the matter for hearing on October 26. On that date the defense requested that the matter be continued to allow him an opportunity to study the State's proposed amendment which he had just received, and the court granted his request. At the continuation of the hearing on October 30, defendant objected to the amendment on the general ground that it changed the availability of defenses available to him but did not explain specifically how he was prejudiced. The court overruled his objections, and defendant failed to move for a continuance to further evaluate and prepare his case in light of the amendments, although the court reminded him of his right to do so.
Had defendant seriously believed that the amendment of the charges prejudiced him in any way, he should have requested a continuance to further evaluate and prepare his case in light of the amendments. Having failed to request a continuance after the court granted the motion to amend, defendant has waived this issue on appeal. Haymaker v. State, 667 N.E.2d 1113, 1114 (Ind. 1996).
appears to concede, under the relevant statutory provision,See footnote 6 there is no distinction between the criminal responsibility of a principal or an accomplice, Marshall v. State, 621 N.E.2d 308, 313 (Ind. 1993), and even without an amendment, the State would be entitled to a jury instruction on accessory liability provided that the evidence supports such an instruction. Whittle v. State, 542 N.E.2d 981, 991 (Ind. 1989); Fisher v. State, 468 N.E.2d 1365, 1369 (Ind. 1984).
Defendant, who is white, argues that the trial court erred when it overruled his objection to the State's peremptory strike of Robert Thompson, a prospective juror who is an African-American. We disagree.
The exercise of racially discriminatory peremptory challenges is constitutionally impermissible. Batson v. Kentucky, 476 U.S. 79 (1986); Hawkins v. State, 626 N.E.2d 436, 440 (Ind. 1993). To raise a prima facie equal protection clause claim, a defendant must establish that: (1) the juror is a member of a cognizable racial group; (2) the prosecutor has exercised peremptory challenges to remove that group's members from the jury; and (3) the facts and circumstances of this case raise an inference that the exclusion was based on race. Batson v. Kentucky, 476 U.S. at 96. Defendant and the excluded juror need not be of the same race, and so, a defendant who is white may properly challenge the peremptory strike of an African- American juror. Powers v. Ohio, 499 U.S. 400, 404 (1991); Willoughby v. State, 660 N.E.2d 570, 578 (Ind. 1996).
prosecutor to provide a race-neutral explanation for the peremptory strike. Id. Then the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Batson v. Kentucky, 476 U.S. at 95. The trial court's decision on the ultimate question of discriminatory intent represents a finding of fact which is accorded great deference on appeal, because the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge. Hernandez v. New York, 500 U.S. 352, 364-65 (1991); United States v. Hunter, 86 F.3d 679, 683 (7th Cir.), cert. denied, __ U.S. __, 117 S. Ct. 443 (1996); Williams v. State, 669 N.E.2d 1372, 1379 (Ind. 1996). Unless a discriminatory intent is inherent in the prosecutor's explanation, however, the reason offered generally will be deemed race-neutral. Hernandez v. New York, 500 U.S. at 360; Willoughby v. State, 660 N.E.2d at 578.
The record does not reveal whether the trial court made a finding of prima facie discrimination sufficient to shift the burden of persuasion. Nevertheless, the prosecutor provided a race-neutral explanation, and the record supports the prosecutor's explanation.
The prospective juror testified during voir dire that he had once given someone who had stolen something a ride. He was uncomfortable because, had the police caught the rider, he would have been implicated in the crime. In light of Mr. Thompson's experience, the prosecutor explained that he did not feel that Mr. Thompson "would be able to set that aside in assessing the facts." (R. at 331.) The prosecutor also emphasized that "race had absolutely nothing to do with" the peremptory challenge. The court found that the State had provided a race-neutral explanation of its challenge, and that the challenge was not in any way racially motivated.
proffered explanation, and, in fact, that explanation is logical if not compelling. It was entirely reasonable for the prosecutor to be concerned that Mr. Thompson, at the conclusion of the trial, might identify and sympathize with defendant as a result of the experience he related to the court and counsel. Because the prosecutor's explanation was race-neutral and fully supported by the record, there is no warrant for this Court to disturb the trial court's decision.
Defendant argues that the State did not lay the proper foundation required under Indiana Rule of Evidence 801(d)(2)(E) for the admissibility of portions of Scott Turner's testimony which recounted certain statements made by Larry Newton on the night of the murder, and that the court improperly admitted those statements over his hearsay objection, thus depriving him of his right of confrontation, presumably under the Sixth Amendment of the United States Constitution. Specifically, defendant objected to the admission of Newton's statements made to recruit assistants to help him rob and kill somebody while Newton was standing in the graveyard with Duane, defendant, and others. We conclude that the court did not err by admitting Newton's statements.
conspiracy may be shown by direct or circumstantial evidence, and the evidence need not be strong. Lopez v. State, 527 N.E.2d at 1132; Wallace v. State, 426 N.E.2d 34, 41 (Ind. 1981). Moreover, statements that occur "during the course of and in furtherance of" the conspiracy can take many forms, and include statements made to recruit potential co-conspirators. See United States v. Godinez, 110 F.3d 448, 454 (7th Cir. 1997); Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir. 1989).See footnote 7 Once the court determines that the above requirements have been satisfied, the statement is admissible under the firmly-established co-conspirator exception to the hearsay rule.
Here, the court determined that a conspiracy had been established after the State laid a foundation consisting of two statements defendant himself made to the police after his arrest, as well as the testimony of Turner. Although defendant denied that he was guilty of conspiring to rob Coyle, he told the police that he knew Newton had a gun and wanted to do "devious" things, that he drove Newton and Duane to Ball State, that he was present when Newton showed Coyle the gun and asked him for money, that he waited while Newton and Duane shot Coyle, and that he then drove them to a friend's house. (R. at 484.) After defendant's statements were admitted, Turner testified regarding the group activities at the graveyard prior to the shooting on the evening of the murder, including the fact that defendant was standing next to Newton and Duane at the time Newton told the group that he wanted to rob and kill someone.
therefore, did not abuse its discretion when it overruled defendant's hearsay objection and admitted Newton's statements.
In reviewing a claim that the evidence is insufficient to support a conviction, this Court will look only to the evidence most favorable to the State and all reasonable inferences that support the judgment, and will not weigh conflicting evidence or judge the credibility of witnesses. We will affirm the conviction unless, based on this evidence, we conclude that no reasonable jury could find the defendant guilty beyond a reasonable doubt of each element of the crime charged. See Mayo v. State, 681 N.E.2d 689, 691 (Ind. 1997); Vance v. State, 640 N.E.2d 51, 57 (Ind. 1994); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980).
criminal confinement, the State must prove that defendant aided Newton or Duane as they confined Coyle, attempted to rob him, and ultimately killed him during the course of their attempted robbery. See supra notes 1-3. While mere presence at the scene or acquiescence in the crime is not sufficient to prove his participation,See footnote 8 presence at the scene, together with evidence as to defendant's conduct before, during and after the crimes which tends to show complicity, can support an inference of participation in the crimes. Harris v. State, 617 N.E.2d 912, 915 (Ind. 1993). Moreover, it is not necessary that the State prove that defendant got out of the car while Newton and Duane shot Coyle,See footnote 9 or that he held the gun or shot Coyle.See footnote 10 It is also not necessary for the State to prove that he discussed, expressly agreed to,See footnote 11 or actually intended to or foresaw shooting Coyle.See footnote 12 Stated another way, it is not necessary that the evidence show the accomplice personally participated in the commission of each element of the offenses. Fox v. State, 497 N.E.2d 221, 227-28 (Ind. 1986). Rather the accessory liability statute imposes a form of vicarious liability. Id. Thus, evidence that the accomplice acted in concert with those who physically committed the elements of the crime is sufficient to support a conviction for murder and criminal confinement on the accessory theory. Id.
To prove defendant guilty of conspiracy to commit robbery, the State must prove only that defendant intended to commit a robbery, that he agreed with Newton and Duane to commit robbery, and that one of them performed an overt act in furtherance of the agreement. Ind. Code § 35-41-5-2 (1993). While mere association with the alleged co-conspirator is, standing alone, insufficient to support a conviction, the State is not required to prove the existence of a formal express agreement. Vance v. State, 640 N.E.2d at 57. Rather, the State may prove the agreement either by direct or circumstantial evidence. Id. at 58.
Here, while defendant did not hold the gun or shoot Coyle, this is not a case where defendant was simply present at the scene with Newton and Duane. As stated above, defendant was with Newton and Duane when Newton said he felt like robbing and killing someone and recruited assistants. Defendant agreed to join them and to drive them to Ball State, and he was aware that Newton was armed with a gun, if not before leaving the graveyard, then right after getting into his car. He helped them drive around while they searched for a victim, and he waited for Newton and Duane while they apprehended Coyle. He saw Newton display the gun and heard him demand money from Coyle who was trapped in the car with the three men. Defendant waited for Newton and Duane while they both shot Coyle, and then he drove them back to their friend's house.
largely support the State's case.
In fact, on cross-examination defendant revealed that he was no innocent. He admitted that when Newton said he wanted to do "devious things," defendant thought he meant either robbing someone or doing some other criminal act, and that, when Newton asked Coyle for money while in the car and Coyle said he didn't have money with him but could get some at his residence, Coyle was trying "to buy his life." (R. at 687.) Defendant also admitted that he could have driven off by himself after Newton, who had a gun, and Duane got out of the car to apprehend Coyle and then again after they got out of the car with Coyle, but he did not do so. At no point did defendant deny that he was with Newton and Duane, that he knew Newton had a gun, that Newton asked Coyle for money while displaying the gun in the car, and that Newton and Duane shot Coyle while defendant waited for them in his car. Defendant presented no other witnesses except his mother who knew nothing about the events of September 25 except that her son reported that their car had been stolen.
There is ample evidence to support defendant's convictions for murder and criminal confinement, as well as for conspiracy to commit robbery.
Defendant contends that the court erred when it declined to give requested jury instructions on assisting a criminal and attempted robbery as lesser included offenses of felony murder. We disagree.
To determine whether to instruct the jury on a lesser included offense of the charged crime, a court must employ a three-step test. First, the court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense. The alleged lesser included offense is inherently included in the crime charged if the alleged lesser included offense may be established "by proof of all the same material elements or less than all the material elements." Ind. Code § 35-41-1-16 (1993); Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). If an offense is inherently included in the crime charged, the court must proceed to step three, which evolves evaluating the evidence. If not, the court must proceed to step two which involves comparing the statute defining the alleged lesser included offense with the charging instrument in the case. If the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense, the alleged lesser included offense is factually included in the crime charged, and the trial court should proceed to analyze the evidence pursuant to step three. Id. If the alleged lesser included offense is neither inherently nor factually included in the crime charged, then the trial court should not give a requested instruction on the alleged lesser included offense. Id.
the element or elements distinguishing the greater from the lesser offense, and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater, then it is reversible error for a trial court not to give an instruction upon request on the inherently or factually included lesser offense. Id. If, however, there is no serious evidentiary dispute about the element distinguishing the two offenses, and therefore no meaningful evidence from which the jury could properly find that the lesser offense was committed while the greater was not, then the trial court should not give the lesser included offense instruction. Fisher v. State, 468 N.E.2d at 1367. To give an instruction under these circumstances, where the evidence does not warrant it, would be to improperly encourage the jury to reach a compromise verdict. Hester v. State, 315 N.E.2d 351, 354 (Ind. 1974).
With regard to defendant's proposed instruction for assisting a criminal, that crime is properly applicable to one who "with intent to hinder the apprehension or punishment of the other person, harbors, conceals, or otherwise assists" a person who has committed a crime or is a fugitive from justice. Ind. Code § 35-44-3-2 (1993). This statute was intended to apply to a person who did not actively participate in the crime itself, but rather assisted a criminal after the fact. Smith v. State, 429 N.E.2d 956, 959 (Ind. 1982). See generally 1 Charles E. Torcia, Wharton's Criminal Law § 33, at 198 and § 35, at 210 (15th ed. 1993). The offense of felony- murder, on the other hand, proscribes homicides which occur while a person commits or attempts to commit certain specified felonies including robbery. Ind. Code § 35-42-1-1(2). See also Eddy v. State, 496 N.E.2d 24, 27-28 (Ind. 1986).
commit a robbery or other felony and kill someone during the course of that crime without assisting a person in avoiding detection and arrest. It is not surprising, then, that this court has held that assisting a criminal is not an inherently included lesser offense of murder. See Thacker v. State, 556 N.E.2d 1315, 1321 (Ind. 1990); Evans v. State, 489 N.E.2d 942, 947 (Ind. 1986); Reynolds v. State, 460 N.E.2d 506, 509-10 (Ind. 1984). See also Lahr v. State, 640 N.E.2d 756, 763 (Ind. Ct. App. 1994); Horn v. State, 503 N.E.2d 1235, 1236 (Ind. Ct. App. 1987).
Defendant cites this Court's decision in Smith v. State, 429 N.E.2d at 959 and also Moore v. State, 445 N.E.2d 576, 578 (Ind. Ct. App. 1983) for the proposition that assisting a criminal is a lesser included offense of murder. These cases, properly read, involve situations where the State apparently improperly charged defendant with assisting a criminal when only a murder charge was appropriate. After the jury returned convictions on both counts, the court merged the two counts. To the extent that Smith and its progeny may be read in another way -- and only to that extent -- we overrule and disapprove them. In the future, these cases, and cases relying on them such as Harris v. State, 617 N.E.2d at 915-16, may not properly be cited for the proposition that assisting a criminal is an inherently included lesser offense of murder.
Moreover, with regard to step two of the Wright test, the charge in this case does not allege conduct that would have constituted the separate offense of assisting a criminal. Accordingly, the crime of assisting a criminal is neither an inherently nor factually included lesser offense of murder, and the court properly refused to give the requested instruction.
With regard to defendant's proposed instruction on attempted robbery as a lesser included offense of felony murder, the court also properly refused to give that instruction.
Although robbery or attempted robbery is an inherently included lesser offense of felony murder,See footnote 13 under the third step of the Wright test, the trial court properly refused to give the requested instruction here because defendant cannot say that there was a serious evidentiary dispute about whether or not Newton and Duane shot Coyle during the attempted robbery, and because the jury could not properly have found that defendant committed the lesser offense of attempted robbery but did not commit felony murder. Wright, 658 N.E.2d at 567. See also Fisher v. State, 468 N.E.2d at 1367; Brownlow v. State, 400 N.E.2d 1374, 1376 (Ind. 1980); Hester v. State, 351 N.E.2d at 354. Stated another way, if defendant was an accessory to attempted robbery and Coyle was killed during the course of that robbery, defendant cannot legally be guilty of attempted robbery and at the same time avoid a conviction for felony murder. The trial court, therefore, properly refused the requested instruction.
Defendant argues that the trial court erred when, over his objections, the court gave the jury Final Instructions Nos. 22, 25, and 31. We disagree.
In reviewing the propriety of a trial court's decision to give or refuse tendered instructions, this Court considers: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given. Evans v. State, 571 N.E.2d 1231, 1236-37 (Ind. 1991).
This Court previously has approved similar jury instructions. Id.; Zenthofer v. State, 613 N.E.2d 31, 33-34 (Ind. 1993). Final Instruction No. 22, particularly when read together with Final Instructions Nos. 23 and 24, is a correct statement of the law, and the giving of this instruction was warranted by the evidence.
confederates which flows incidentally from the execution of the common design as the natural and probable consequences of the common design. This rule of criminal responsibility for the acts of others is subject to the reasonable limitation that the particular act or acts of one member of a party, for which the other associates and confederates are to be held liable, must be shown to have been done for the furtherance or in prosecution of the common object and design for which the persons combined together.
(R. at 720-21, 777.) We conclude, as we have in the past, that this instruction is a correct statement of the law regarding the criminal liability of confederates and fully warranted by the evidence in this case. See Underhill v. State, 428 N.E.2d 759, 766 (Ind. 1981); Banks v. State, 351 N.E.2d 4, 17-18 (Ind. 1976).
Defendant also objected to Final Instruction No. 31 which provides: "An accomplice witness is one who testifies that he was involved in the commission of a crime with the defendant. An accomplice is competent as a witness for the State or the defendant in the trial of a criminal case. The testimony of an accomplice is to be received and weighed by the jury in the same manner and according to the same rules as the evidence of any other witness." (R. at 721, 779.) Defendant does not argue that the instruction is an incorrect statement of the law regarding the weight to be given accomplice testimony. Rather, defendant simply argues that the instruction was misleading in light of the fact that no one testified that he was an accomplice or that he was involved in the commission of a crime with defendant. Defendant is incorrect.
guilty of conspiracy to commit robbery or the separate but closely related crime of assisting a criminal depends on how the evidence is viewed and weighed. Either way, however, he clearly was involved in the commission of some crime that involved defendant and defendant's actions on September 25. Under these circumstances, the trial court did not err in giving the accomplice instruction.
Defendant asserts that several comments made by the prosecutor constitute misconduct and warrant the reversal of his convictions. While we agree that certain remarks by the prosecutor were improper, on the facts of this case the prosecutorial misconduct does not warrant the reversal of defendant's convictions.
Generally in evaluating a properly preserved claim of prosecutorial misconduct, we first determine whether the prosecutor engaged in misconduct and then whether under all of the circumstances the prosecutor's misconduct placed the defendant in a position of grave peril to which he should not have been subjected. Zenthofer v. State, 613 N.E.2d at 34; Lopez v. State, 527 N.E.2d at 1125. Whether or not the prosecutor has placed defendant in a position of grave peril is measured by the probable persuasive effect of any misconduct on the jury's decision, and whether there were repeated instances of misconduct which would evidence a deliberate attempt to improperly prejudice the defendant. Id.
To preserve an issue regarding the propriety of a closing argument for appeal, a defendant must do more than simply make a prompt objection to the argument. Defendant must also request an admonishment, and if further relief is desired, defendant must move for a mistrial. Zenthofer v. State, 613 N.E.2d at 34; Brown v. State, 572 N.E.2d 496, 498 (Ind. 1991); Dresser v. State, 454 N.E.2d 406, 407-08 (Ind. 1983). If the trial court gives the requested admonishment, generally any error is deemed cured. Id. at 408. Failure to request an admonishment or move for a mistrial results in waiver of the issue. Zenthofer v. State, 613 N.E.2d at 34. Generally this is so, even if the court has overruled a timely objection. Dresser v. State, 454 N.E.2d at 407.
Here, although defendant objected to the arguments set out below, he only requested an admonishment on one occasion and that request was granted. He did not follow this up with a request for a mistrial. In all other instances, although defendant objected, the court overruled his objections, and he did not press the objection further, request an admonishment, or move for a mistrial. Defendant, therefore, has waived his right to review of the prosecutor's comments. Even if, however, defendant had properly preserved these issues, a reversal based on prosecutorial misconduct is not warranted.
There's another one [instruction] in here that will tell you that the State of Indiana does not have to prove motive, and it's correct, but I think you got a glimpse of this motive yesterday. A glimpse in the fact that maybe Chad Wright doesn't have the guts to personally pull the trigger, but he's got the guts to show the other gang members that he'll take them there.
Counsel for Defendant: I object to the use of the phrase, other gang members, Your Honor. There was no evidence that Mr. Wright is a member of a gang, and I'd ask that that remark be stricken. That is not supported by the evidence.
The Court: The term, other gang members will go out. The jury will disregard that. Go ahead, Mr. Arnold.
Counsel for the State: I think you saw what's going on there. You don't start out that way, you start out as a look out, you start out as a driver, you're a wannabe. You want to get in a gang, you want to be with the rest of the guys.
Counsel for the Defendant: Again, Your Honor, I will object. There was no testimony as to any of that on Mr. Wright's part. None. And I would ask that that remark be stricken.
The Court: The last objection is overruled. Go ahead, Mr. Arnold.
In light of defendant's statement to the police and his testimony on cross- examination, which was admitted without objection, there was an adequate foundation to support the prosecutor's argument. Although, of course, defendant did not admit that he willingly participated in the crime because he was a "wannabe," his testimony showed a familiarity with gang procedure that, together with all of the other evidence, supports an inference that his participation as a driver was motivated at least in part by a desire to become a member of the Fly gang to which Newton and Duane belonged. The prosecutor's argument was not without foundation and did not constitute prosecutorial misconduct. In fact, we have rejected a similar claim of prosecutorial misconduct where the evidence of "gang" membership was no stronger. See Dresser v. State, 454 N.E.2d at 408.
innocence. The court's final instructions again reminded the jury that the State has the burden of proving defendant guilty beyond a reasonable doubt. In light of these instructions, the weight of the evidence, and the de minimus nature of this impropriety, the prosecutor's comment certainly did not place defendant in a position of grave peril. Zenthofer v. State, 613 N.E.2d at 34.
Defendant also argues that it was improper for the prosecutor during his rebuttal, and in response to defendant's suggestion that Turner was going to make a deal with the State after the trial and therefore was not credible, to respond as follows: "I guess we're back to trying Scott Turner. Let me tell you something, I'll take care of Scott Turner, and what I decide to do will be the right thing. Leave that in my hands." (R. at 763.) We agree with defendant that this comment was improper in that the prosecutor was suggesting that the jury should simply trust him because he was the prosecutor. We have previously emphasized that a prosecutor is not entitled "to play upon his position as a public servant to obtain unfair advantage in a criminal trial." Craig v. State, 370 N.E.2d 880, 884 (Ind. 1977). The prosecutor's argument on this point, however, was fleeting, and the trial court in both its preliminary and final instructions advised the jury that statements and comments by counsel are not evidence. In its final instructions the court also emphasized that it is the duty of a juror to decide a case only on the evidence given in court. While it would have been better also to have admonished the jury with respect to the specific statement made by the prosecutor here, defendant did not request such an admonishment. The prosecutorial misconduct here did not place defendant in a position of grave peril.
which asserted that there was a secret plea agreement between the State and its chief witness, Scott Turner, and that State's failure to disclose this agreement warrants reversal of his convictions. We disagree.
As evidence of this alleged secret agreement defendant points to the fact that, on January 4, shortly after Wright's trial ended on December 7, the State amended the information charging Turner with conspiracy to commit robbery, a class A felony carrying a maximum of fifty years in prison, see supra note 2, to charge only assisting a criminal, Ind. Code § 35-44-3-2, a class C felony with a minimum sentence of two years and a maximum sentence of eight years. Ind. Code § 35-50-2-6 (1993 & Supp. 1996). Turner then pleaded guilty and the court sentenced him to four years in prison. Defendant also points out that Turner's trial testimony is not credible because he initially gave a statement to the police that was different than his trial testimony, and that his earlier statement had not implicated defendant. Finally, defendant points out that, while Turner initially testified that he had made no plea agreements in exchange for his testimony, and that, as far as he was aware, he would be tried the following week on conspiracy to commit robbery, the trial court ultimately instructed the jury that Turner would not be going to trial the following week.
are clearly applicable if such agreements are made express. See Lewis v. State, 629 N.E.2d at 938 n.6 (expressing concern that once the prosecutor has established his quid pro quo policy for testimony, express confirmed agreements are unnecessary and tacit agreements will be sufficient inducement for government witnesses to give favorable testimony). We reject defendant's invitation to use this case as a vehicle to re-write established precedent.
We have previously acknowledged the importance of fully disclosing express plea agreements or understandings between the State and witnesses, even where such agreements or understandings are not reduced to writing and where the prosecutor trying the case apparently was unaware of an agreement or understanding reached between the witness and another prosecutor. Newman v. State, 334 N.E.2d at 685, 687 (citing Giglio v. United States, 405 U.S. 150, 153-54 (1972)). The prosecutor's obligation to disclose such agreements and understandings is particularly important for, as the United States Supreme Court has observed, "[t]he jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269 (1959).
Nevertheless, we also have held that this duty arises when there is a confirmed promise of leniency in exchange for testimony, and that preliminary discussions are not matters which are subject to mandatory disclosure. Lopez v. State, 527 N.E.2d at 1129; Aubrey v. State, 478 N.E.2d 70, 74 (Ind. 1985). An express agreement requiring disclosure does not exist if a witness testifies favorably in the hope of leniency, and the State neither confirms nor denies that hope to the witness. Lopez v. State, 527 N.E.2d at 1129; Aubrey v. State, 478 N.E.2d at 74.
Similarly, hopes and expectations of a state witness coupled with evidence that a prosecutor- accomplice/witness deal may have been consummated after the in-court testimony is insufficient to bring a case within the Newman rule. McCord v. State, 622 N.E.2d 504, 509 (Ind. 1993); Abbott v. State, 535 N.E.2d 1169, 1172 (Ind. 1989); Stanley v. State, 479 N.E.2d 1315, 1318 (Ind. 1985). See also Campbell v. State, 409 N.E.2d 568, 570 (Ind. 1980).
When a defendant believes that the prosecutor has failed to disclose an agreement with a state witness, the burden is on defendant to establish the existence of such an agreement by a preponderance of the evidence. Stanley v. State, 479 N.E.2d at 1318-19. The mere allegation of an agreement does not create an agreement and is insufficient to warrant relief. Generally, in the absence of a written agreement, proof of an agreement may be established by affidavit or other testimony. See Giglio v. United States, 405 U.S. at 765; McCord v. State, 622 N.E.2d at 508-09; Lopez v. State, 527 N.E.2d at 1128.
Once the trial court has ruled on a motion to correct error and request for a new trial based on newly discovered evidence, such as Turner's plea after trial, this Court will not disturb the ruling unless there is an abuse of the trial court's discretion. See Slaton v. State, 510 N.E.2d 1343, 1347 ( Ind. 1987); Smith v. State, 429 N.E.2d at 958; Bubb v. State, 434 N.E.2d 120, 123 (Ind. Ct. App. 1982).
And is Scott Turner getting a deal? I don't know. There's none on the table, but I'll tell you one thing I feel, he deserves some reward for what he's done in these cases, for what he's done in this case, helping the police find that gun. I feel like he deserves something.
(R. at 729.) These facts together with the subsequent plea agreement and defense counsel's allegations of a secret deal standing alone, however, do not establish that the State had an agreement or an understanding with Turner prior to his testimony.
On Tuesday Scott Turner testified as far as he knew he would go to trial himself next Monday. However, the Prosecuting Attorney and Scott Turner's attorney have advised the Court that Scott Turner will not be tried next week.
(R. at 723.) The jury was so instructed prior to final arguments.
There is nothing more in the record regarding Turner's testimony about his trial date and the stipulation. Although shortly after trial defendant filed a motion to correct error on the issue of the alleged secret agreement, he did not file affidavits to support that motion. We assume that had defense counsel heard anything during the conference in chambers that supported his theory that Turner had made a deal with the prosecutor before trial, he would have stated this on the record rather than simply entering into the stipulation, but in the unlikely event that he did not fully appreciate the significance of any information relayed during the conference until after the State moved to amend the information and Turner pleaded guilty, defense counsel still could have prepared an affidavit that recited what additional supporting facts he learned during the conference or through his investigatory efforts. The trial court gave him an opportunity to support his motion with affidavits and also specifically inquired as to whether he had any evidence other than the facts recited in his motion, discussed in the proffered Exhibit A -- which consisted of the original and amended charges as well as the State's motion to amend the information, the court's ruling, the change of plea order, judgment of conviction, and the transcript of hearing on Turner's change of plea -- and argued orally at the hearing on his motion to correct error. Defense counsel advised the court that he did not intend to file affidavits, and that he had no additional evidence to submit.
Footnote: 1 Ind. Code § 35-42-1-1(2) (1993)(defining murder to include felony murder, that is, killing another human being while committing or attempting to commit robbery or other enumerated offenses). The presumptive penalty for murder at the time of the offense was forty years, with sixty years as the maximum enhanced sentence. Ind. Code § 35-50-2-3 (1993 & Supp. 1996). See also Smith v. State, 675 N.E.2d 693, 695-97 (Ind. 1996) (discussing statutory penalty changes in 1994 and 1995).
Footnote: 2 Ind. Code §§ 35-41-5-2 (conspiracy) and 35-42-5-1(robbery) (1993). Robbery is defined to include the knowing and intentional taking of property from another "by using or threatening the use of force on any person" or by putting the person in fear, and is a Class A felony if it results in serious bodily injury to any person other than a defendant. The maximum penalty of fifty years for a class A felony is set out at Ind. Code § 35-50-2-4 (1993 & Supp. 1996).
Footnote: 3 Ind. Code § 35-42-3-3(1) (1993)(criminal confinement). Criminal confinement is a class B felony if committed while armed with a deadly weapon or results in serious bodily injury to another person, and the maximum penalty of twenty years for a class B felony is set out at Ind. Code § 35-50-2-5 (1993 & Supp. 1996).
Footnote: 4 The decision on Duane Turner's appeal of his convictions is reported at Turner v. State, 682 N.E.2d 491 (Ind. 1997).
Footnote: 5 Ind. Code § 35-34-1-5(a)(9) and § 35-34-1-5(c) (1993) (permitting amendments that do not prejudice the substantial rights of defendant). See also Benner v. State, 580 N.E.2d 210, 212 (Ind. 1991); Woods v. State, 547 N.E.2d 772, 783 (Ind. 1989).
Footnote: 6 Ind. Code § 35-41-2-4 (1993) (providing that a person "who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense").
Footnote: 7 Although the cited cases discuss and interpret Federal Rule of Evidence 801(d)(2)(E), that rule is a mirror image of the Indiana rule at issue, and there are no countervailing Indiana laws or policies that would preclude the application of the holdings of these cases here. Accordingly, it is appropriate for us to consider and rely upon these cases in reaching our decision on the hearsay issue. Yamobi v. State, 672 N.E.2d 1344, 1347 & n.4 (Ind. 1996).
Footnote: 8 Pace v. State, 248 Ind. 146, 148-49, 224 N.E.2d 312, 313-14 (Ind. 1967).
Footnote: 9 Tingle v. State, 632 N.E.2d 345, 354 (Ind. 1994); Ford v. State, 521 N.E.2d 1309, 1310-11 (Ind. 1988).
Footnote: 10 Harris v. State, 617 N.E.2d 912, 913-15 (Ind. 1993); Harden v. State, 441 N.E.2d 215, 218-19 (Ind. 1982).
Footnote: 11 Ford v. State, 521 N.E.2d at 1310-11; Fox v. State, 497 N.E.2d 221, 227-28 (Ind. 1986).
Footnote: 12 Eads v. State, 577 N.E.2d 584, 587 (Ind. 1991); Schiro v. State, 533 N.E.2d 1201, 1207-08 (Ind. 1989).
Footnote: 13 Zenthofer v. State, 613 N.E.2d 31, 35 (Ind. 1993); Eddy v. State, 496 N.E.2d 24, 29 (Ind. 1986); Collier v. State, 470 N.E.2d 1340, 1341-42 (Ind. 1984).
Footnote: 14 Defendant makes a separate argument related to his assertion that the prosecutor failed to disclose a secret agreement made with Turner. He argues that the court erred when it decided not to admit certified court records and denied defendant's motion to correct error solely because he did not submit those records with his motion under cover of an affidavit. He asserts that Exhibit A consisted entirely of certified court records that were admissible without affidavits.
The trial court's order denying defendant's motion to correct error is quite short and somewhat ambiguous. Nevertheless, we need not address here the question of whether Rule 16 or Rule 17 of the Rules of Criminal Procedure require that certified records be served with the motion to correct error and whether they must always be submitted under cover of an affidavit. Although the State below strenuously objected to the admission and consideration of these materials and the court ultimately sustained the technical objection, the trial court nonetheless heard defendant's argument on the merits. Moreover, on appeal, the State stipulated to the facts contained in the certified records at issue below, and those materials are included in the record before this Court. We have considered those materials in our evaluation of the merits of defendant's motion to correct error, which we have concluded was properly denied, even if the trial court may have denied the motion on other grounds.


text:
First Page ... 6 7 8 9 10 11 12 13 14 ... Last Page
BA 2018: The School Goes to the Games...and Baseball5
Argentina Baseball National Team visited the WBSC initiation zone at the Youth Olympic Games Buenos Aires 2018 and enjoyed a great afternoon, teaching the kids from schools an...
Nigerian Golfer Goes Low at YOG
(ATR) Nigerian golfer Georgia Oboh shot a final round 71, all the more impressive considering first and second round scores of 81 and 82. Georgia Oboh hits a shot in the f...
IOC Waits for Boxing Report from YOG
(ATR) The IOC will study the results of the boxing tournament at the Youth Olympic Games as part of its review of Olympic boxing federation AIBA. IOC Olympic Games Exec. Di...
Around the World in 20 Photos - Part 2
Momadou Ndiyea, IOC member in Senegal (ATR) (ATR) With three major sport-related events converging on Buenos Aires over the last week, you could see everyone from Olympic gol...
Golf's Global Reach on Display at YOG
(ATR) Steady rain may have added to the challenge, but it couldn't damper the enthusiasm among a diverse group of young golfers from 33 countries. Australian Karl Vilips mad...
ATR Radio: YOG Final Week Ahead
Gerardo Werthein, IOC member in Argentina, head of the Buenos Aires YOG. (ATR) The head of the Buenos Aires Youth Olympic Games says he is expecting big crowds for this final...
2 Minutes: IOC Mixes Business with Pleasure at Buenos Aires 2018
(ATR) Around the Rings Editor Ed Hula reports from Buenos Aires, where the 133rd IOC Session was held in conjunction with the Summer Youth Olympic Games. The first YOG in Sout...
IOC Session updated on ITA's significant progress
11 October 2018, Buenos Aires – International Testing Agency (ITA) Chair Dr Valérie Fourneyron delivered a comprehensive update on the ITA's progress during day one of the 133...
Putin Wants 'One of the Best Anti-Doping Systems' in Russia
(ATR) In the midst of global criticism over the return of Russia to the World Anti-Doping Agency, President Vladimir Putin said that his country intends to build one of the be...
Etienne Thobois, CEO, Paris 2024 (ATR) (ATR) With three major sport-related events converging on Buenos Aires over the last week, you could see everyone from Olympic gold med...
Swedish Olympic Bid 'Fits' IOC Winter Games Concept
(Stockholm 2026) (ATR) Stockholm 2026 bid chief tells Around the Rings a Winter Olympics in Sweden is "tailor-made to the new reality of the IOC". Speaking to ATR on the s...
Sport Climbing Captivates Fans, IOC President
(ATR) Japanese climbers Keita Dohi and Shuta Tanaka ascended to gold and silver medals as sport climbing thrilled fans sprawled below the towering 15-meter climbing wall at Ur...


text:
About St. Louis
Catherine Uroff
Chip asked me about my father once. He said it was important to know every little thing about each other, even the bad stuff. "Better start with the parents," he said and then he told me about the time he saw his father shake his fist at his mother. So I told him about the trip I'd taken with Gene to the Six Flags in St. Louis, how he'd said, "It's high time we did something fun," as I climbed into the back seat of his Dodge Dart for the three-hour drive to Missouri. I was eleven years old at the time and had no idea what he was talking about. As far as I was concerned, life with my father was always fun.
At the amusement park, I wouldn't go on any of the big rides. No roller coasters or Ferris Wheels for me. I stuck to the merry-go-round. Gene said that I was probably wise. I sat on a white painted horse that had bulging eyes and a flaming red tail. I wrapped my fingers around the sticky pole and tried to ignore all the squirmy kids around me, the ones who were propped up on their horses by their mothers. Gene lounged on one of the high-backed benches in front of me. He stuck out his tongue and crossed his eyes every time I looked at him.
That night, we stayed in a Ramada Inn that had a restaurant and an indoor swimming pool on the ground floor. There was a line to get into the restaurant. I told Gene that I didn't mind waiting. "Kiddo," he said, "you're a doll." Still, we stood in line for a long time. At one point, Gene left. He said that he'd be right back. I assumed that he was going to the Men's room, the one by the elevators that we'd passed earlier that day. I also assumed that we were going to have a fun dinner together, like the times at home when he'd take me to the Ground Round where I'd eat as much popcorn and peanuts as I wanted and was allowed to throw the peanut shells on the floor. And, anyway, I was preoccupied with another girl in line who had fine, blond hair that stretched all the way down to the small of her back. Her hair looked like it had been brushed one hundred times already that day, and I was wondering what it would feel like to be as pretty as that girl.
It took me a while to realize that Gene had been gone too long. The line kept shuffling forward. Soon, even the girl with the long hair had been seated, and I was at the top of the line. The hostess asked me where my parents were. "Can't seat you until all of your party's here," she said. I twirled around, hoping to see my father pop up out of the crowd. "Kiddo," he'd shout, "I'm right here! I've been right here all along." Instead, another family stepped forward: a man wearing a tight t-shirt that showed off his arm muscles, his wife and two kids behind him. The kids were quiet and the wife was looking down as if she saw something on the red and white diamond patterned carpet but the man brushed right by me, taking my spot in line. "We're ready," he said to the hostess. I didn't object. What could I say? I was only a kid. I didn't know where Gene was. I didn't understand why he hadn't come back yet. For a wild second, I even imagined that he'd never return. I'd have to go to the front desk clerk, ask to use the phone, call home. I thought I was going to throw up. Then I saw Gene, wading through the crowd. He reached out and touched the man's arm.
"Come on. Don't do this. Please," my father said.
The man shook him off easily, pushed him back with his elbow.
"Get the fuck off me, you faggot," he said. Then he followed the hostess into the dining room, his family right behind him. It was so brutal and quick that I thought, for a second, that I hadn't heard him correctly. I looked up at my father, waiting for one of his jolly laughs, witty comebacks. But Gene didn't say a word. He was pale-faced and the set of his mouth was grim. I felt real shame for the first time.
That was the last open table for a long time. When we were finally seated, we weren't given menus right away and our water glasses weren't filled and I didn't get a napkin. But we didn't complain to anyone about the service. In fact, we hardly spoke at all. After our dishes came—we'd both ordered spaghetti, slimy noodles covered in light red slop—I started to cry because Gene made the best spaghetti sauce, something he simmered on the stove top for hours, and this was nothing like that.
"The hell with this," Gene said. He wadded up his paper napkin, tossed it on top of his plate. He stood up and helped me push back my chair and we ran out of the restaurant together. We went right past the man and his family seated at their table, and I even managed to kick the man's chair on our way out.
Chip whistled when I finished my story. We were in bed together at my house. It was dark and I was resting my head on his bare shoulder.
"You don't forget something like that," he said. I waited for him to say more but he didn't. I loved listening to his voice. He was a morning DJ for the Lite Rock music station in Rantoul. 109.9. Dr. Chipper, he was called although he hadn't finished college. I'd listened to him every morning on my way to work for a year straight before finally meeting him. On the radio, he always sounded so close by, like he was in the car with me. You can tell me anything, he always seemed to be saying.
Chip and I planned on getting married in July, a ferociously humid time of year in central Illinois, but a good time for the radio station, which planned on re-broadcasting a few of Chip's old shows while we went to Chicago for our honeymoon. Two days before the wedding, Gene called me. "Surprise," he said and then he asked me to pick him up at the airport in the morning. He was coming in from New York. I didn't know how to respond. I hadn't spoken to him in years.
The county airport was small, just two runways planted in the middle of the cornfields. At baggage claim, I stared at the flashing red light that was fastened to the wall, the steady stream of suitcases being spit onto the carousel, and I thought of the last time I'd seen Gene, about five years earlier. He was living in San Francisco then and I was in the city for a week because I was dating some guy who had a conference there and he'd paid for my ticket. At Crissy Field, Gene and I sat on a bench and looked at the Golden Gate Bridge. He told me that this was his favorite spot in the city. Some days, he sat there for hours. He said that he was thinking of making some really big changes in his life. I got up, told him that I had to go. I didn't want to hear about his plans. The only reason I'd met up with him in the first place was because my boyfriend was in meetings all day.
At the airport, Gene was the last passenger to pick up his luggage. On the down escalator, he gripped the rubber-coated rail for support. His face was puffy but the rest of him was thin. His blue blazer hung off him. His trousers were too baggy. He'd been a good-looking man—or at least that was what I'd always thought—and now his looks were gone.
"Hello there, kiddo," he said.
"Dad, are you feeling OK?"
"Of course I am. It's good to see you. Boy, is it ever."
He made a move like he wanted to hug me and I took a step back.
"You don't look well."
"Long flight. That's all."
"You didn't have to come, you know. How'd you even find out about it? When I told Chip about it, he couldn't believe it. That's my fiancé, by the way. Chip Carson."
"A fine name."
"Just to be clear. Tomorrow is my wedding day. I need it to be perfect. No funny stuff."
Gene put his hand in a three-finger salute even though, as far as I knew, he'd never been a Boy Scout.
"I'll be on my best behavior. Scout's honor."
There was a lightness to his voice that reminded me of what he used to be like, back when I was a kid and we were together all the time.
On the ride back from the airport, I gave him the briefest details about my life. I'd moved from Chicago to this town in central Illinois two years earlier. I told Gene that I'd wanted to get away from the hectic pace of the city but the truth was I'd been out of sorts, lonely. I'd met Chip six months before when he was working a Happy Hour event at a bar downtown. I'd gone there specifically to meet Chip but when I saw him, dwarfed by the tall speaker he was standing next to, I was disappointed by how short he was, the thinning hair on top of his head, the swollen gut that pillowed out his untucked shirt. "Some would say I've got a face for radio," he said to me and there was something about him that I liked again. But I didn't tell Gene any of that.
"Sounds like a whirlwind romance," he said.
"Chip said if there's one thing he knows now it's not to wait around when things are right. He was married before. He has a five-year-old son named Grayson. It's important for Grayson to have well-defined roles, that's what Chip says. Look, I've been on my own for a long time. Chip is the best thing that ever happened to me."
"I always thought you'd be a wonderful mother. You loved baby dolls when you were a kid."
"Please don't do that."
"Do what?"
"Talk about what I was like when I was younger. Act like you're this expert on me. Look, I don't even know why you're here. When I told Mom, she was shocked. 'Of all times to suddenly reappear,' that's what she said."
"Oh, I couldn't miss it. How is your mother?"
"She's fine. She has a good life now."
Gene looked out the window. We were driving past the town's water tower.
"Last year, a high school kid climbed that tower. He was drunk and someone dared him to do it. He fell. Broke his back when he landed. But he wasn't paralyzed. He claimed there was an angel floating with him as he went down. I don't know why I'm telling you this."
"It's a lovely story. That's why."
"Lovely but completely made up. Chip had the boy on his radio show. He asked him to describe the angel. Like what did it look like? Did it have wings? And the boy started laughing. He didn't know."
"Maybe it was more of a feeling. That angel. Rather than something he could see."
Gene rolled down the window. He stuck his arm out and wiggled his fingers. Then he rolled the window back up.
"I'm in New York now," he said. "Upstate. I live next door to an apple orchard. Everything there smells sweet. Like apple pie. You would like it."
"What happened to San Francisco?"
"Oh, you know. Things never quite work out the way you think they will."
We were stuck behind a slow-moving pickup truck that had a mattress in its open bed. The mattress was tied down with thick ropes stretched across the top of it but, still, I pictured the worst. The ropes loosening. The mattress pitching off the truck, landing on top of my hood. What would I do? How would I swerve the car to get out of the way? This was what I'd always done. Tried to anticipate bad things. When I was younger, I'd devise escape routes in case of a house fire. I had it all figured out. I'd pop out the bedroom window screen, slip onto the roof, shimmy down a tree.
"Tell me the truth. Why are you here?" I asked after the truck pulled into a driveway and I was free to go faster.
"Isn't it obvious? I've come to give you away."
After St. Louis, Gene started staying away from home for long periods of time, disappearing for days, weeks. He borrowed a lot of money, first from friends and then from people we didn't know and sometimes the phone would ring in the middle of the night and my mother would be afraid to answer it. She got a full-time job and changed the locks on the doors to the house. He was only allowed in once after that, just to get his things. He carried out one suitcase and a stack of records. He belonged to a classical music club in town and his records were important to him.
A few days after he left, I was at home by myself, sitting at the dining room table. I was supposed to be doing homework but, instead, I was doodling on the back of a school handout and blinking tears out of my eyes. The day was gray. It was snowing. The furnace hadn't kicked on yet. I was cold, sad. At school, boys were making fun of my pointy nose, my flat chest. They called me a carpenter's dream: flat as a board and ready to screw. That was what I was focusing on. Not on my parents' marriage. Certainly not on my father.
Then I heard someone knock on the window. When I looked up, I saw Gene outside. He was waving at me. His smile was very broad. He didn't stop smiling, even when I shook my head. My mother had been very clear about how to handle him. Whatever you do, don't let your father back in.
I went to the front door and pulled it open. He was already standing on the welcome mat, slapping snow off the knees of his pants. How had he gotten there so fast?
"Hey," I said.
"Hay is for horses," he said and I put my hand over my mouth so he wouldn't see me smile.
"I'm sorry, Dad. But you're not allowed in. Mom says."
"Oh, I know the rules. But I wanted to see you. Maybe we could take a walk or something."
"It's too cold for a walk."
"Yes, you're right. But now I'm here and I don't have a car and it's an awful long walk back to where I'm staying."
"Where is that? I don't even know."
"I'm bunking with a friend of a friend. Until I get this all sorted out with your mother, of course."
I could feel the cold swirling around my ankles. There was snow on top of Gene's head. It made his dark hair look white, as if he was an old man.
"Dad, I've got to close the door."
"If I could come in for five minutes, just to warm up, well, that would be something. That would really mean something to me."
"I can't. Mom said."
"Five minutes, I swear. Just long enough to get this chill out of my bones."
He shivered. He wasn't wearing a coat, just one of his navy blue blazers and a long, striped scarf wrapped around his neck. It was that detail—the lack of a coat—that made me step aside, let him in. Or at least that was what I told my mother later.
Those five minutes turned into an hour. He started a fire in the living room fireplace that burned brightly and crackled loudly and made the house smell like smoke. He found some records he'd left behind and played Schubert on the turntable. He made a tasty onion dip and served it with cut up carrots and celery sticks. He poured ginger ale into champagne flutes and we toasted each other. He told me that I was beautiful and when I rolled my eyes, he said, "Trust me. I know beauty when I see it." He also, when I went to the bathroom—quite full from all that good onion dip and ginger ale—went upstairs and swiped some jewelry from the top of my mother's bureau.
Afterwards (for almost an entire year actually), I'd insist to my mother and to anyone else who asked that I didn't regret letting him in that day. He'd made me feel better, and I thought that was all that mattered.
During the rest of the drive from the airport, Gene was quiet. His head kept bobbing, his chin tucked low, and I thought he was fighting sleep. But when we got home—pulling into my driveway, next to Chip's car, a butternut yellow 1972 Chevrolet Chevelle—he perked up. He jumped out of the car and walked around the Chevelle.
"I haven't seen one of those in a good long time."
Chip was meticulous about his car, washing it carefully every Saturday morning. I'd only seen him drive it once, as part of the town's Fourth of July parade. Sometimes he'd slip a silver cover over it if he thought it was going to rain. He kept it at my house because his apartment complex only allotted him one parking space.
"Chip says it's a good investment."
"Bet it's fun to drive."
"It's not meant for that. Chip says some day he's going to sell it and make a lot of money."
"Cars should be driven."
"Not this one."
Inside my house, I went down to the rec room in the basement to find Chip. I thought he'd be where he usually was: stretched out on the recliner, watching television. His apartment was dark and small so he preferred to be at my house. Sometimes he'd invite other DJs over to watch movies, smoke cigars. My favorite was Axel from 94.1 Classic Rock. Axel's real name was Andy.
But that morning, the house was empty. I went back upstairs and apologized.
"Maybe it's best that he's not here right now. It gives us time to talk," Gene said. "Why don't we take a walk? By the time we get back, he'll be back."
"Are you sure? You seemed tired in the car."
"I'm wide awake now."
During our walk, I talked about my wedding. The ceremony was going to be held in a pavilion at the state park. One of Chip's friends had gotten ordained online so that he could officiate. I'd visited other venues in town: the ballroom in the DoubleTree, the back lawn of the golf club, a room in the civic center. But they all seemed too formal or drab.
"The place has to be perfect. Tomorrow is going to be the best day of my life, after all. I'm almost 40 years old. I never thought I'd find someone like Chip. But I did. I can tell him anything. We're so close. I don't expect you to understand."
"Oh, I know a thing or two about love," Gene said.
I started walking faster. Even when he dragged a bit, struggled to keep up, I didn't slow down. We went through the downtown area, past the high school's football field, into neighborhoods that had big houses, wide streets. I walked without any real sense of where we were headed and before I knew it, we were on Lincoln, a shaded, brick paved street that had three family homes, lamp posts littered with lost dog flyers. That was when I stopped.
"We've got to turn around," I said.
But he didn't move. We were standing underneath a tall oak tree with branches that spread out halfway across the street and thick roots that bulged out of the ground and buckled the sidewalk. He put his hand on the tree trunk, and I was reminded of what he'd looked like in the airport, riding the escalator, holding onto the rail.
"No, really. We have to go."
"What's the rush?"
Chip's ex-wife, Maria, lived on this street. Although I wasn't sure of her exact address since Chip always picked up Grayson for their weekend visits by himself, I knew it was somewhere on Lincoln. I hadn't met her yet and it wasn't something I was looking forward to. She sounded wild, dramatic. Throughout their marriage, she would scream at Chip and throw things at him when she didn't get her way and then weep uncontrollably, begging for his forgiveness. He finally had enough when she cheated on him with one of his station managers. "She shattered my heart. Brought me to my knees," he'd said about it. I always felt prim, stiff whenever he talked about her.
"Look," I said sharply to my father, "I just want to go home."
He patted the tree. I had the feeling he was trying to pretend like he wasn't using it for support.
"Look at this. Old beauty. Where I live, I walk around the orchard some mornings when the fog hasn't lifted yet and these old gnarled trees just spring up before me. They are ugly and twisted but by God, they're sturdy too, sturdier than most of the things I've come up against in my life. Ah, kid, I want to tell you about it."
"No, please don't. Not now."
"Listen, I know—"
"No. Did you hear me? I don't want to be doing this. OK? I need to pick up the boutonnieres for the groomsmen. I need to get the white folding chairs from the rental store. That's what I have to do. Not this."
I closed my eyes. I didn't want to see it anymore—the red, tight skin on his face, his slack lips hanging open as he took sips of breath.
"Hey there! No."
When I opened my eyes, everything had changed. Gene had stepped away from the tree and was waving his arms at a little boy riding a plastic Big Wheel trike, zooming down the sidewalk towards us. It was Grayson, Chip's boy, pedaling fast, careening towards us, with a solemn and determined look on his face, as if he had plans to just go right through us, until the sidewalk spilled out onto the street.
"Slow down there, buddy," Gene shouted but Grayson kept going until something—a pebble, a twig?—caught his back wheel. He wobbled for a moment, trying to straighten out, but it was too late. Before I could do anything to stop him, he crashed into the tree that my father had just been admiring.
"Grayson? Are you OK?"
I expected broken teeth, a mouth full of blood, skin left shredded on the sidewalk. Instead, only one small scrape bubbled up on his knee, blood seeping out in little red tears. I tried to help him up but he wriggled away from me. He was wearing pajama shorts with starships on them and a red cape that had twisted around his neck.
"I guess," he said. He usually didn't talk directly to me, always looking at Chip first before answering any of my questions.
"What are you doing out here by yourself?"
"Mommy's tired. So is Daddy."
"Daddy? Where's your father?"
Grayson straddled his Big Wheel, pulled on its handles until it was upright again. Then he pointed at Gene.
"Who's that?"
"This is my father."
"I know about you," Grayson said.
"It's nice to meet you, young man," Gene said.
"My dad says you're a faggot."
"Grayson, wait. You can't—"
I was in a panic. This was not something that anyone in my family ever discussed. My mother was always vague about it. "Your father has certain issues," she'd said once only after she'd had too much wine at dinner. When I was in high school and college, I'd listen to my friends make casually cruel, throwaway jokes about AIDS and Rock Hudson and Freddie Mercury and I'd laugh along, feeling ashamed only afterwards.
"What's gay?" Grayson asked, staring at my father.
Gene squatted so that he was eye-level with the boy.
"Gay means happy. Carefree. Full of joy."
"Then it's a good word," Grayson said, a question in his voice.
"Can be, sure," Gene said.
"There you are, you silly! We've been looking all over for you."
I recognized Chip's voice immediately. Warm and deep, just like he sounded on the radio. He was running down the sidewalk with another woman beside him. She was barefoot and wearing a slip dress that showed off her smooth, olive-tinted skin, her long neck. Her curly, voluptuously thick hair bounced as she ran. Something lurched in my chest when I understood this was Chip's ex-wife.
Gene stood up and put his hand on top of Grayson's head. "Your boy here ran into a tree," he said.
"Gray-bay, how many times have we told you? You can't just run off like that," Chip said and then he looked at me. "Maria's just down the street. Grayson slipped out of the house while we weren't looking."
"Maria?" I said to the woman. "It's nice to meet you."
She shook my hand. Her fingernails were long and tickled my palms.
"Congratulations on your big day."
There was a hint of laughter in her voice. I turned to Chip.
"But what are you doing here?"
"This is all my fault," Maria said. She was smiling.
"This is awkward but I can explain," Chip said and then he paused. I felt slow, dim-witted.
"I don't understand. My father's here. I thought you were going to be at my house to greet him."
"Gene. So nice to meet you."
Chip extended his hand but my father didn't take it.
"Well, I'll be a son of a gun," my father said, and he stepped close to Chip and whispered something in his ear and Chip looked down and hastily pulled up the zipper on his pants.
The rest of it was a blur. Chip saying that he was sorry, Maria continuing to smile, Chip explaining that he hadn't meant for anything to happen, Maria telling me that it couldn't be helped. "There's always been something between us," she said. My father preoccupied Grayson by leading him down the street, showing him leaves he plucked from the trees, pebbles he picked up from the sidewalk. "How could you tell Grayson about St. Louis?" I asked Chip at one point and he looked confused.
When my father and I finally returned home, I collapsed on the couch in the living room. My phone kept buzzing with texts from Chip until I turned it off. Then I heard my father outside, whistling. He was standing in front of Chip's car in the driveway.
"This is a great car," Gene said. "Despite its owner. We should do something. Just sticking around here isn't good."
"Dad, listen, what Grayson said—. I told Chip about—well, St. Louis. But I thought he'd keep it to himself. We were sharing stories, that's all."
"St. Louis?"
"You know. The time we went to Six Flags."
"What about it?"
"Please don't tell me you don't remember."
"I remember that you wouldn't get off the merry-go-round. Such a worrier. Even back then. Always expecting the worst."
"Well, the worst has happened now. I don't know what to do anymore."
He put his hand in the front pocket of his trousers and pulled out a key chain. It took me a while to recognize it: Chip's spare car key. Where had he found it?
"Here's something," he said.
The Chevelle's passenger side door creaked as he opened it for me. I got in, touched the smooth leather seat, and watched my father jog around the front of the car to get to the driver's side. He rolled his seat back so he could have more legroom. He backed out of the driveway quickly, expertly, like he'd been driving that car forever. He turned left and right and then left again, never asking for directions, until we were out of town, on a long stretch of road with cornfields on either side. The corn was tall, eight feet high. I felt boxed in. He shifted into high gear. The top was down and my hair flew in my face. He grinned at me and winked as we flew in between the corn, lifting in our seats a little with each bump in the road. I felt very light. I hoped we could stay in that car for a long time. But right as we were coming up to the water tower, the one that the boy had fallen from, the boy who'd believed in an angel, the engine began to sputter. Spurts of black smoke burst from the tailpipe. Gene put his foot on the brake pedal and downshifted, but he couldn't control the car's violent jerks, our slide across the road. I braced my arms on the dashboard. I thought we were going to run right into the fields. I looked to my father for help. He was gripping the steering wheel tightly and leaning forward but he appeared calm, completely focused as he steered into the skid.
Catherine Uroff's short fiction has appeared (or is forthcoming) in a variety of literary journals, including Sou'wester, Hobart, Prairie Schooner, Valparaiso Fiction Review, Bellevue Literary Review, and The Roanoke Review. She won the 2018 Prairie Schooner Glenna Luschei Award and was a finalist for American Short Fiction's Short Story Contest and the Snake Nation Press Serena McDonald Kennedy Award.


text:
Tahiry's attacker gets shocking punishment
By Nicholas Robinson | December 26, 2014 | 0
It's been months since anyone has heard about Tahiry's infamous attack during New York Fashion Week, but a new report has revealed that Tahiry's attacker has now been punished and fans will be shocked at what's happened to the man.
As previously reported, Tahiry was backstage at the Toure Designs fashion show on Monday, Sept. 8, getting prepped to walk the runway when she was attacked by a man named Charles Suggs after a verbal confrontation.
A source said that Suggs "repeatedly struck Tahiry multiple times while attempting to drag her by her hair. It took seven to eight men to pull him off of her." Because of the attack, Tahiry ended up in a neck brace and she's reportedly still in physical therapy over her injuries.
Despite Suggs' brutal attack, TMZ reports that he's going to get off easy for his crime.
This week, Suggs pleaded guilty to assault and agreed to a plea deal that resulted in him avoiding jail time. Suggs will only have to complete an anger management program and abide by a restraining order that keeps him away from Tahiry for the next five years.
Somehow, that ruling seems pretty light for someone who had admitted to viciously beating a woman. We just hope that Tahiry feels like justice was served.
Posted in Reality TV and tagged assault, Tahiry


text:
MH17 criminal probe results due within months: prosecutor
Malaysian lawyer Balan Nair, representing families of the ill-fated Malaysia Airlines flight MH17 crew members, speaks with journalists prior to filing the lawsuit at the Kuala Lumpur Courts Complex on June 2, 2016. / AFP / MANAN VATSYAYANA
Initial results from a criminal inquiry into the downing of a Malaysia Airlines flight over war-torn eastern Ukraine nearly two years ago will be available within months, Dutch prosecutors have said.
The results are expected to shed light on the exact type of missile used to shoot down Malaysia Airlines flight MH17 on July 17, 2014, killing all 298 passengers and crew on board, and exactly where it was fired from.
However, investigators on the Dutch-led team, which includes experts from Australia, Malaysia, Belgium and Ukraine, were still awaiting information from Moscow about BUK missile installations, it said, noting that they were expecting an answer "within two months".