ANDERSON — The Indiana Court of Appeals has ruled that a Chesterfield man’s conviction of felony murder and attempted armed robbery were double jeopardy.
Agapito Diaz III was sentenced to 101 years for murder, Level 1 felony attempted murder, Level 2 felony attempted robbery resulting in serious bodily injury, Level 3 felony attempted robbery, Level 4 felony unlawful possession of a firearm by a serious violent felon and Level 5 felony criminal recklessness on April 17, 2019.
On Nov. 6, 2017, Diaz III attempted to rob Joshua Steele at gunpoint and Steele shot at Diaz and Jalynn Harman as he ran from the home.
Bullets from Steele’s gun struck both Diaz and Harman. Harman, 20, later died from the gunshot wound.
Although the bullet that killed Harman was not fired by Diaz, prosecutors said he was charged with murder because Harman died while Diaz was committing a robbery against the other man.
Steele was originally charged with murder, but his charges were later reduced to Level 4 felony unlawful possession of a firearm by a serious violent felon after authorities learned he was acting in self-defense.
“Diaz first contends that his convictions for felony murder and the underlying felony, namely attempted armed robbery, violate double jeopardy principles, and the State agrees,” the Court of Appeals states.
Convicting and sentencing Diaz for both felony murder and the underlying felony is double jeopardy because the conviction for felony murder would “necessarily require proof of the underlying felony,” according to court records.
The court said the case will be sent back to Madison Circuit Court 1 where the trial took place with instruction for Judge Angela Warner Sims to vacate Diaz’ conviction for attempted armed robbery.
Diaz also appealed his felony murder conviction stating “felony murder should not apply when a person is not killed by either the defendant on trial or an accomplice but rather by the victim of the offense or some third party.”
The Court of Appeals said the evidence does not support reversal of his murder conviction “under that precedent.”
Diaz claimed the trial court abused its discretion when he was sentenced by mischaracterizing his “minor” criminal history as “extensive,” but the Court of Appeals disagreed with Diaz and said his argument is without merit.
The Court of Appeals also disagreed with Diaz that his sentence was inappropriate for the offenses and his character noting his prior criminal history and “continued bad behavior in jail pending trial and in court during trial.”
“We cannot say that Diaz’ 101-year sentence is inappropriate in light of the nature of the offenses and his character,” according to the ruling.