Thirty minutes before the Indiana Supreme Court began hearing oral arguments in Richard Allen’s second original action on the removal of Attorneys Andrew Baldwin and Brad Rozzi, the Carroll County Prosecutor requested to amend the charging information. I was only able to review the amended charges quickly after they were filed. Since then I have been able to review them fully and thought I would share what I discovered.

In Indiana, we have both knowing/intentional murder and felony murder. Unlike other states, Indiana treats these two types of murder the same. They are defined under the same statute and carry the same potential penalties (45-65 years in prison). Subsection (1) of Indiana’s murder statute, Indiana Code section 35-42-1-1(1), is murder as most people commonly know it: the knowing or intentional killing of another person.

Allen was not originally charged with knowing/intentional murder. Rather, he was originally charged under Subsection (2) of Indiana’s murder statute. To prove felony murder under that subsection, the State must prove that a defendant killed another person while committing, or attempting to commit, one of the enumerated offenses. Kidnapping is one of those offenses.

The original two charges against Allen that were filed in late October 2022 were for felony murder of Victims 1 and 2, where the underlying felony was kidnapping. To obtain a conviction for felony murder, the prosecutor does not have to prove that the defendant knowingly or intentionally killed the victim he kidnapped. Rather, the prosecutor need only prove that the defendant knowingly kidnapped (or attempted to kidnap) the victim and that, during the kidnapping or attempted kidnapping, the victim died. Essentially, the intent to commit the kidnapping is also used to satisfy the intent to commit the murder.

In the amended charges, the Carroll County Prosecutor added a statutory citation to the original Counts 1 and 2. Under Indiana law, a defendant can be guilty of a crime under two theories of liability: principal liability and accomplice liability. One is liable as a principal if he himself committed the offense in question. Under Indiana Code section 35-41-2-4, one is guilty as an accomplice if he knowingly or intentionally aided, induced, or caused another person to commit that offense, regardless of whether that person has been prosecuted, convicted, or acquitted of that offense.

The amended charging information for Counts 1 and 2 merely adds the theory of accomplice liability to original felony murder counts. This is a theory of liability, not an essential element of a criminal offense. So it did not need to be added to the charging information. When the original charges of felony murder were filed against Richard Allen, under Indiana law he could be prosecuted for those offenses as either the principal or as an accomplice.

Counts 3-6 of the amended charging information are new. Counts 3 and 4 allege that Richard Allen knowingly or intentionally killed Victims 1 and 2. These two counts also include a citation to Indiana’s accomplice liability statute. So Allen could be found guilty of these offenses if he is proven to be the actual killer, or merely an accomplice to the actual killer.

Counts 5 and 6 allege that Richard Allen, while armed with a handgun, knowingly or intentionally removed Victims 1 and 2 from the bridge to a wooded area through the use of force or threat of force. These kidnapping offenses are Level 3 felonies, which carries a range of 3-16 years in prison. Counts 5 and 6 include a citation to Indiana’s accomplice liability statute. So Allen could be found guilty of these offenses if he is proven to be the one who kidnapped the victims, or if he merely aided, induced, or caused another to kidnap the victims.

On the original counts of felony murder, the State was required to prove both the kidnapping and the killing in order to carry its burden under the felony murder statute. And the prosecutor is not required to plead accomplice liability in the charging information. So why the amended charges? One can really only speculate. But based on my criminal law experience, there are a few possibilities.

First, the kidnapping counts. Without the amended charges, theoretically the jury could find that Allen kidnapped the victims but played no role in their murder. Absent Counts 5 and 6, Allen would walk free. The State could be increasing its chances of getting some convictions, rather than none at all.

As for the murder counts themselves, this is more puzzling. One idea is to increase the maximum possible sentence Allen could receive if convicted. By separating the murder and the kidnapping of each victim into separate counts, the two counts for each victim could be “stacked,” or run consecutively. Instead of a maximum possible sentence of 65 years for felony murder, Allen could face up to 81 years in prison. Amending the charging information for this reason seems implausible, however. Allen is facing 45-65 years for each victim if he is convicted of felony murder. That’s 90-130 years in prison, as the trial court could stack the sentences since there are two victims. Given Allen’s age, this is a de facto life sentence. Seeking a longer sentence is pointless.

Many have theorized this request to amend the charging information was done to file a notice of intent to seek the death penalty against Richard Allen. This, too, seems unlikely. To seek the death penalty in Indiana, a prosecutor must allege and prove the existence of one or more aggravating circumstances. The existence of at least one aggravating circumstance has been present since the inception of this case. If the State intended to seek the death penalty, why now and not earlier? This theory seems far-fetched. The timing of the filing would certainly raise suspicion. Plus, if the prosecutor wished to seek the death penalty, he likely would have filed the notice of intent when he requested to amend the charges.

My best guess as to why the amendment? These charges likely should have been filed at the beginning of this case, and this amendment corrects that oversight.