      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ruth Johnson                                               Gregory F. Zoeller
      Valerie K. Boots                                           Attorney General of Indiana
      Marion County Public Defender Agency
                                                                 Eric P. Babbs
      Appellate Division
                                                                 Deputy Attorney General
      Indianapolis, Indiana
                                                                 Indianapolis, Indiana         Feb 17 2015, 9:58 am




                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Lori Ann Barcroft,                                         February 17, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1405-CR-215
                 v.                                              Appeal from the
                                                                 Marion Superior Court

      State of Indiana,                                          The Honorable Kurt M. Eisgruber,
                                                                 Judge
      Appellee-Plaintiff
                                                                 Cause No. 49G01-1205-MR-33537




      Kirsch, Judge.

[1]   Lori Ann Barcroft was found guilty but mentally ill of murder 1 after a bench

      trial. She appeals and raises two issues, of which we find the following

      dispositive: whether the trial court committed fundamental error when it used

      Barcroft’s request for an attorney, which she asserted before she made a




      1
          See Ind. Code § 35-42-1-1(1).


      Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015               Page 1 of 16
      statement to police, in its determination of whether Barcroft established that she

      was insane at the time she committed the crime of murder.


[2]   We reverse and remand.


                                  Facts and Procedural History
[3]   In approximately 2008 and thereafter, Jaman Iseminger (“Pastor Jaman”) was

      a pastor at Bethel Memorial Church, which later changed its name to Bethel

      Community Church. The church was located on Southport Road in Marion

      County, Indiana. One of Barcroft’s adult sons, Jordan Asbury (“Jordan”), was

      a member of the church. Barcroft and Barcroft’s father also became members

      of the church, and Barcroft’s mother and other adult sons attended the church

      periodically. Barcroft met Pastor Jaman in 2008.


[4]   By around 2010, Jordan became concerned about Barcroft’s deteriorating

      mental state, which he believed was caused by demonic possession. Jordan

      asked Pastor Jaman to help Barcroft, and Pastor Jaman told Jordan that

      Barcroft needed to be prayed over and hospitalized. After the death of her

      father, Barcroft deteriorated further, and Jordan attempted to hospitalize her,

      but she refused. On one occasion, Barcroft physically attacked a member of the

      church who was larger than she. Jordan and his wife, Tamia, told Barcroft that

      she could no longer live with them, as Tamia was fearful for her life. Barcroft

      then moved in with her mother, Roberta Pettigrew (“Pettigrew”). In May 2012,

      an incident occurred where Barcroft and Pettigrew were in the car with

      Barcroft’s grandsons. Barcroft began yelling about Pastor Jaman and saying,

      Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 2 of 16
      “you’re all in it.” Def.’s Ex. B at 114. When Pettigrew pulled over, Barcroft

      screamed to get out of the parking lot because it was near Ivy Tech, which

      Barcroft said was “Mexican Mafia.” Id. Barcroft also screamed at Pettigrew

      and told her that she was “yellow” and against her. Id. Pettigrew learned that

      Barcroft had acquired a gun in May 2012. An officer with the Hendricks

      County Sheriff’s Department told the family that Barcroft’s gun was legal.


[5]   On the morning of May 19, 2012, Pastor Jaman arrived at the church at about

      6:45 a.m. in order to open the church kitchen for volunteers who were working

      on a restoration project in the cemetery located adjacent to the church and its

      parking lot. One of the volunteers, Jeff Harris, was in the kitchen when he

      noticed a woman, later identified as Barcroft, walking around the outside of the

      church. Barcroft wore a black hooded sweatshirt with its hood up and dark

      jeans and was carrying a backpack. Harris went outside, where Barcroft was

      standing in the exterior stairwell that led to the church’s basement and Pastor

      Jaman’s office and looking in through a basement window. Harris asked

      Barcroft if he could help her, and Barcroft asked if Pastor Jaman was there.


[6]   Harris entered the church and went down the interior stairs to the basement,

      where he found Pastor Jaman in his office and told him a woman was there to

      see him. Although Harris was not aware of it, Barcroft had entered the church

      behind him and was waiting near the top of the interior stairs. Pastor Jaman

      followed Harris back up the stairs, and after Harris passed Barcroft, she fired a

      shot at Pastor Jaman. Barcroft turned, pointed the gun at Harris, and said “go,

      go.” Tr. at 91. As Harris ran outside and called 911, he heard two more

      Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 3 of 16
      gunshots. Barcroft then ran out of the church and crossed Southport Road.

      Pastor Jaman came up the exterior stairs, yelled for help, and collapsed on the

      ground. Lisa Walden, another volunteer, had been sleeping in her car in the

      church parking lot and heard the gunshots. Walden rushed to help Pastor

      Jaman while Harris talked to the 911 operator.


[7]   Officers from the Southport and Indianapolis Metropolitan Police Departments,

      along with paramedics, responded to the church at approximately 7:00 a.m.

      After obtaining a description of the shooter and learning the direction of her

      flight, Officers John Czankusch and Daniel Ryan used a police dog in their

      search. The dog alerted to an area covered with waist-high weeds beneath a

      couple of trees that was located about a block from the church. Barcroft was

      found hiding under a blanket of vegetation in such a manner that the officers

      could only see some red fabric from her clothing or backpack. Officer

      Czankusch later testified that Barcroft was so well-hidden that the officers

      probably would not have found her without the police dog or unless they had

      actually stepped on her. Id. at 129. Officer Ryan ordered Barcroft twice to

      come out. Barcroft did not respond to the first command. When making the

      second command, Officer Ryan told Barcroft that he would shoot her if she did

      not come out or if she did not show her hands. Id. at 134. Barcroft then

      crawled out of the vegetation and was placed in handcuffs by Officer

      Czankusch. Officer Ryan asked Barcroft if she had a gun, and Barcroft said yes

      and informed him that the gun was in her jacket pocket. At the time of her

      apprehension, the officers noted Barcroft’s calm demeanor.


      Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 4 of 16
[8]   The gun that Barcroft had in her possession was determined to be a

      semiautomatic .22 caliber pistol. Officers searched Barcroft’s backpack and

      found an ammunition container with ninety-two live .22 caliber rounds. Inside

      the backpack, they also found binoculars, personal items, and letters Barcroft

      had written to her mother and her sons with a theme of saying goodbye. A

      crime scene investigation discovered three fired casings inside the church -- one

      on the landing of the main floor near the interior stairs, one on the interior

      stairs, and one on the hallway of the main floor near the chapel entrance.

      There were also three live rounds on the floor inside the church, which may

      have resulted from Barcroft’s gun jamming. Detective Michael Mitchell arrived

      at the scene, and Barcroft volunteered to him, “I’m the one you’re looking for.”

      Id. at 171. Officers soon learned that Pastor Jaman had been pronounced dead

      at Wishard Hospital from a gunshot wound to his chest.


[9]   Barcroft was taken into custody and placed in an interview room, where she

      initially stood with her face in the corner, raking her fingers through her hair or

      across her face. Detective Mitchell entered the room, told Barcroft to have a

      seat, and informed her that he was conducting an investigation. Detective

      Mitchell read Barcroft her Miranda rights, and when asked if she understood her

      rights, Barcroft nodded in the affirmative. Barcroft initially said it was

      “probably best” for her to remain silent and get a court-appointed attorney.

      Appellant’s Addendum at 3. Barcroft asked if it would be “derogatory against”

      her or if it would harm her in any way if she spoke “ahead of time” to Detective

      Mitchell, to which he responded no. Id. at 3-4. Barcroft then volunteered that


      Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 5 of 16
       she would “like to tell [Detective Mitchell] what happened” and, “I don’t want

       a lawyer now, I want to give a statement.” Id. at 4. Without Detective

       Mitchell asking any questions, Barcroft gave a lengthy narrative in which she

       admitted to having shot Pastor Jaman. Id. at 6, 9. Near the end of this

       statement, Detective Mitchell told Barcroft, “you understand that you have to

       be arrested for this . . . for at least some time period.” Id. at 13. Barcroft

       replied, “I do understand that. . . . I actually planned on not getting caught, but

       I did.” Id. Barcroft continued, “And like I said, I’m not some sort of murderer

       or anything.” Id.


[10]   During her statement to Detective Mitchell, Barcroft disclosed a complex and

       extensive system of beliefs and delusions that the experts later categorized as

       paranoid and grandiose delusions associated with schizophrenia. Tr. at. 309-

       10, 314. These began around 1999 or 2000, when Barcroft and her husband

       lived in Florida and took in a pregnant woman from Colombia. When the

       woman’s baby was one year old, Barcroft traveled to Colombia for the baby’s

       baptism, where she met the baby’s father. Around this time, Barcroft and her

       husband divorced, and Barcroft claimed to have had an affair with the baby’s

       father, whom she said was named “Rafael Medina” and she called “R” or

       “Rafa.” Appellant’s Addendum at 5. Barcroft believed that this man was the

       wealthiest man in the world and controlled most of the world’s cocaine.

       Barcroft said that in 2007, R asked her to marry him, which made her a top

       queen in the Colombian mafia and also pitted Barcroft against R’s enemies,

       including the Bush family. According to Barcroft, the Bush family was allied


       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 6 of 16
       with the Mexican Mafia and was involved in cocaine and human trafficking.

       Barcroft thought the Bush family had asked Osama Bin Laden to commit the

       September 11, 2001 terrorist attacks and had tried to kill President Obama in

       order to regain control of the White House. Barcroft stated she had twice

       intervened to save President Obama’s life. Barcroft also said that R had a

       network of satellites and that they were being watched at that moment.

       Barcroft told Detective Mitchell, “I really love people and I hate what they’re

       doin’ to people . . . they’re pissed off as well, ‘cause I’ve stopped the human

       trafficking,” and “[t]hey want me dead.” Appellant’s Addendum at 9.


[11]   Pastor Jaman was an integral part of Barcroft’s delusional scheme in that she

       thought him to be in cahoots with the Bush family and the Mexican mafia. She

       told Detective Mitchell that Pastor Jaman was responsible for the death of her

       father in 2010; although his official cause of death was congestive heart failure,

       Barcroft claimed to have received a message that Pastor Jaman had caused her

       father to be smothered to death. Barcroft also believed that Jeb Bush had killed

       her grandmother and that they, meaning the Bush family and Pastor Jaman,

       had caused her grandson to be infected with Kawasaki disease. Barcroft further

       said that Pastor Jaman had been lying about her, to make people hate her and

       have her appear to be of a lower “Class” than she was “to get me killed.” Id. at

       5, 11-12. During her statement to Detective Mitchell, Barcroft also made the

       following statements regarding why she shot Pastor Jaman:

[12]           1. Jaman, who I shot . . . basically is the cause of all of this.” Id. at 6.



       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015         Page 7 of 16
[13]           2. “Nobody else can do this but me.” Id.


[14]           3. “I’m not a killer, by the way, but I’m the only one that can do it.”
               Id.


[15]           4. [U]ntil this time, I have committed nothing. I should be a free
               human being.” Id.


[16]           5. “I’m the only one that could take care of Jaman.” Id. at 9.


[17]           6. “[It] wasn’t even vengeance for mys [sic] . . . he was gonna try to
               pick off my family one by one. Not himself, the people that act for
               him.” Id.


[18]           7. “There are a lot of people with me that want Jaman dead, but the
               problem is if they say, because he, what he keeps doing is getting
               people killed. He lies and tells them I’m less than what I am. They
               come to kill me. In their little groups, their teams . . . He keeps doing
               this over and over and over and over again. And people keep getting
               killed . . . . Jaman’s responsible for this.” Id. at 11.


[19]           8. “I was told to do this.” Id. at 12.


[20]   Barcroft’s mental health records showed that she had been seen intermittently at

       Midtown Mental Health in Indianapolis between 2004 and 2006 and again

       between 2008 and 2010. At that time she was diagnosed with ADHD and

       prescribed Adderall, although the experts who evaluated her in her current case

       regarded her symptoms then as more suggestive of psychosis. Tr. at 258. Her

       records also reflected that, in 2007, Barcroft presented at Halifax Medical

       Center in Florida and was seen at the psychiatric ward where she claimed to

       have hitchhiked from Indiana, was dehydrated, and was afraid federal agents

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015          Page 8 of 16
       were pursuing her. Tr. at 257-58. Despite these paranoid and possibly

       psychotic symptoms, Barcroft was not found to meet the criteria for involuntary

       commitment and only stayed at the psychiatric ward for three days. After

       Barcroft’s arrest in the present case, she refused anti-psychotic medications and

       claimed that she did not suffer from a mental illness. Tr. at 321.


[21]   On May 21, 2012, the State charged Barcroft with murder and sought a

       sentencing enhancement for the use of a firearm. On December 14, 2012, the

       trial court conducted a hearing on Barcroft’s competence to stand trial and

       found her not competent to stand trial. The trial court ordered a mental health

       commitment, which resulted in a finding on March 10, 2013 that Barcroft had

       gained competence to stand trial. On January 27, 2014, Barcroft filed a notice

       of insanity defense. A bench trial was held on January 27, 2014 and March 5,

       2014.


[22]   Barcroft consistently maintained her delusional beliefs during interviews with

       court-appointed psychiatrist Dr. George Parker, court-appointed psychologist

       Dr. Don Olive, and defense psychologist Dr. Stephanie Callaway. Dr. Parker

       diagnosed Barcroft with delusional disorder, while Dr. Olive and Dr. Callaway

       diagnosed schizophrenia, paranoid type. Tr. at 25, 41; Court’s Ex. 1 at 85. After

       evaluating Barcroft, all three of the doctors concluded that, based on her mental

       disease, she was unable to appreciate the wrongfulness of her conduct at the

       time she committed her offense. Tr. at 216, 278, 305. On March 14, 2014, the

       trial court issued its order finding Barcroft guilty but mentally ill of murder. In

       reaching its verdict, the trial court noted that expert testimony is merely

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 9 of 16
       advisory and not conclusive on the issue of sanity and stated that it relied on

       demeanor evidence, Barcroft’s statement to police, and advisory opinions of the

       doctors to arrive at its conclusion. Appellant’s App. at 111. On April 17, 2014,

       the trial court sentenced Barcroft to fifty-five years, with forty-four years

       executed in the Department of Correction, six years executed in community

       corrections, and five years suspended with a two-year term of probation.

       Barcroft now appeals.


                                       Discussion and Decision
[23]   Barcroft argues that the trial court erred in using her post-Miranda request for an

       attorney in its determination that she was sane at the time she committed her

       offense. At Barcroft’s bench trial, she did not object to the use of her statement

       requesting an attorney. Errors not properly preserved during trial must

       constitute fundamental error to overcome waiver. Barton v. State, 936 N.E.2d

       842, 852 (Ind. Ct. App. 2010), trans. denied. Fundamental error occurs only

       when the error constitutes a substantial, blatant violation of basic principles of

       due process rendering the trial unfair to the defendant. Id.


[24]   In Doyle v. Ohio, the United States Supreme Court held that using a defendant’s

       post-arrest, post-Miranda silence to impeach an exculpatory story told for the

       first time at trial violated the defendant’s due process rights. 426 U.S. 610, 619

       (1976). Our Supreme Court acknowledged the Doyle rule the same year in Jones

       v. State, 265 Ind. 447, 355 N.E.2d 402 (1976). Doyle rests on the fundamental

       unfairness of implicitly assuring a suspect that his silence will not be used


       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 10 of 16
       against him and then using his silence to impeach an explanation subsequently

       offered at trial. Teague v. State, 891 N.E.2d 1121, 1124 (Ind. Ct. App. 2008). In

       Wainwright v. Greenfield, the United States Supreme Court extended the rule in

       Doyle to apply to the use of a defendant’s post-arrest silence as evidence of

       sanity. 474 U.S. 284, 295 (1986). The Court concluded that there was no

       viable distinction between the use of the defendant’s post-arrest silence for

       impeachment purposes and its use as evidence of the defendant’s sanity. Id. at

       292. Rather, “[i]n both situations, the State gives warnings to protect

       constitutional rights and implicitly promises that any exercise of those rights

       will not be penalized.” Id.


[25]   Our Supreme Court had the opportunity to address Doyle and Wainwright in

       Lynch v. State, 632 N.E.2d 341 (Ind. 1994), and Wilson v. State, 514 N.E.2d 282

       (Ind. 1987). In Lynch, the defendant had asserted his right not to be questioned

       without an attorney present at the beginning of his interrogation. Lynch, 632

       N.E.2d at 343. A tape of the interrogation was admitted for the purpose of

       establishing the defendant’s state of mind shortly after he shot his father, and

       the defendant’s sanity was an issue in the trial. 632 N.E.2d at 341. In Wilson,

       the State elicited testimony as to the defendant’s exercise of his right to remain

       silent and his right to consult with an attorney as evidence of the defendant’s

       sanity. 514 N.E.2d at 283. Relying on Doyle and Wainwright, our Supreme

       Court reversed both of these convictions and remanded for new trials. Lynch,

       632 N.E.2d at 343; Wilson, 514 N.E.2d at 283-84. We conclude that the same

       result is required here.

       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 11 of 16
[26]   At trial, the State admitted the recording of Barcroft’s statement to the police.

       The recording showed that, after Detective Mitchell read Barcroft her Miranda

       warnings, she said it was “probably best” for her to remain silent and get a

       court-appointed attorney. Appellant’s Addendum at 3. In its verdict finding

       Barcroft guilty but mentally ill of murder, the trial court stated, “Initially,

       Defendant requested an attorney. This suggests some comprehension of her

       legal jeopardy.” Appellant’s App. at 112. Pursuant to Doyle and Wainwright and

       the Indiana cases applying those cases, any use of Barcroft’s statements about

       requesting an attorney as evidence of her sanity is a violation of her Due

       Process rights. The trial court’s verdict explicitly found Barcroft’s request for an

       attorney as evidence supporting an inference of sanity. Because such evidence

       was clearly used to support the trial court’s verdict that Barcroft was guilty but

       mentally ill, we find that such error constituted a substantial, blatant violation

       of basic principles of due process rendering the trial unfair to Barcroft. The trial

       court, therefore, committed fundamental error. We reverse Barcroft’s

       conviction and remand for a new trial.


[27]   Although not raised on appeal, we wish to note our concern about the

       voluntariness of Barcroft’s statement to the police. After she stated that she

       thought it would be best to obtain an attorney before making a statement,

       Barcroft asked if it would be “derogatory against” her or if it would harm her in

       any way if she spoke “ahead of time” to Detective Mitchell, to which the

       detective responded no. Appellant’s Addendum at 3-4. Barcroft then volunteered

       that she would “like to tell [Detective Mitchell] what happened” and, “I don’t


       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 12 of 16
       want a lawyer now, I want to give a statement.” Id. at 4. Without Detective

       Mitchell asking any questions, Barcroft proceeded to give a lengthy narrative in

       which she admitted to having shot Pastor Jaman. Id. at 6, 9. We cannot make

       a determination here as to whether or not Barcroft’s statement was voluntary,

       but on re-trial, we remand to the trial court to make such a determination.


[28]   Reversed and remanded.


       Crone, J., concurs.


       Friedlander, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 13 of 16
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Lori Ann Barcroft,                                         [Add Hand-down date]

       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  49A05-1405-CR-215
               v.                                                 Appeal from the Marion Superior
                                                                  Court
                                                                  The Honorable Kurt M. Eisgruber,
       State of Indiana,                                          Judge
       Appellee-Plaintiff                                         Cause No. 49G01-1205-MR-33537




       Friedlander, Judge, concurring.

[29]   I concur with my colleagues’ conclusion that the trial court’s consideration of

       Barcroft’s post-Miranda request for counsel as evidence of her sanity amounts to

       fundamental error. I write separately to address an issue that I believe this

       conclusion compels us to address: did Barcroft prove by a preponderance of the

       evidence that she was insane?


[30]   Barcroft has raised two issues on appeal. First, Barcroft argues that the trial

       court erred in rejecting her claim of insanity. Second, Barcroft argues that the

       trial court’s reliance on her post-Miranda request for counsel as evidence of her

       sanity was fundamental error. Finding the second issue dispositive, the

       Majority declines to address the first. I disagree that the second issue is fully

       dispositive of the case before us. Regardless of what we decide about her post-


       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015             Page 14 of 16
       Miranda request for counsel, if Barcroft prevails on her argument that she

       successfully established that she was insane at the time of the offense, she is

       entitled to the entry of a verdict of not responsible by reason of insanity and not

       subject to retrial. See Galloway v. State, 938 N.E.2d 699, 708 (Ind. 2010)

       (explaining that “[a] successful insanity defense results in the defendant being

       found not responsible by reason of insanity”). See also Ind. Code Ann. § 35-36-

       2-3 (West, Westlaw current with all 2014 Public Laws of the 2014 Second

       Regular Session and Second Regular Technical Session of the 118th General

       Assembly).


[31]   Because I write separately, I will not delve into the full analysis of Barcroft’s

       claim that she proved her insanity by a preponderance of the evidence. It

       suffices to say that the trial court’s conclusion that Barcroft had not proved by a

       preponderance of the evidence that she was unable to appreciate the

       wrongfulness of her actions was not clear error. See Thompson v. State, 804

       N.E.2d 1146, 1149 (Ind. 2004) (explaining that “[a] convicted defendant who

       claims his insanity defense should have prevailed at trial is in the position of

       one appealing from a negative judgment, and we will reverse only when the

       evidence is without conflict and leads only to the conclusion that the defendant

       was insane when the crime was committed”). Although the three expert

       witnesses testified unanimously that Barcroft was insane, our Supreme Court

       has held that expert testimony is merely advisory and the fact-finder is free to

       disregard it. See Galloway v. State, 938 N.E.2d 699. In this case, the trial court,

       acting as the finder of fact, relied on Barcroft’s demeanor before and after the


       Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 15 of 16
offense as well as her statement to Detective Mitchell to determine that she was

able to appreciate the wrongfulness of her conduct. Id. at 712 (explaining that

“[e]ven where there is no conflict among the experts and the lay witnesses, a

finding that a defendant was sane at the time of the crime still may be sustained

by probative demeanor evidence from which a conflicting inference of sanity

may be drawn”). Barcroft’s arguments with respect to the import of her

demeanor and statement amount to requests to reweigh the evidence and draw

inferences that she deems more reasonable than those drawn by the trial court.

See Fernbach v. State, 954 N.E.2d 1080, 1085 (Ind. Ct. App. 2011) (explaining

that “[o]n appeal, we will not reweigh evidence, reassess witness credibility, or

disturb reasonable inferences made by the trier of fact, even though ‘more

reasonable’ inferences might have been made” (citation omitted)). Based on the

evidence presented, I cannot conclude that the trial court’s inferences were

unreasonable or that its ultimate finding that Barcroft, although mentally ill,

was able to appreciate the wrongfulness of her conduct was clearly erroneous.

Subject to my view that we should address the issue concerning the

preponderance of the evidence of Barcroft’s insanity, I concur with the majority

that the use of her post-Miranda request for counsel was fundamental error.




Court of Appeals of Indiana | Opinion 49A05-1405-CR-215 |February 17, 2015   Page 16 of 16
