Will Walmsley's murder charge be dismissed?

Photo courtesy of Indiana Court of AppealsOf Rachel Walmsley's drug death, attorney Stacy Uliana said, "I think it's heartbreaking and it's something Nathaniel is going to have to live with for the rest of his life." Listening (far right) is Ripley County Chief Deputy Prosecutor Shane Tucker, who assisted attorney Ian McLean, but did not speak in court.

Felony murder charges were filed Nov. 8, 2017, against Batesville residents Nathaniel Walmsley, 36, and James "Al" Trimnell, 38, by the Ripley County Prosecutor's Office after the July 30, 2017, death of Walmsley's wife, Rachel, 36. The husband allegedly bought heroin and/or fentanyl from Trimnell, then shot his wife and himself up, according to a probable cause affidavit filed in Ripley Circuit Court.

At the time Prosecutor Ric Hertel noted, "This is the first felony murder charge based on an overdose case in Ripley County and possibly the first in Indiana .... A lot of people will be watching to see how this case unfolds."

Both defendants requested that the murder charges be dismissed, but Ripley Circuit Court Judge Ryan King denied those motions.

An Indiana Court of Appeals three-judge panel reversed his decision in the case against Trimnell in a Dec. 31, 2018, opinion. Members “agreed with Trimnell that the trial court abused its discretion in denying the motion to dismiss the felony murder charge by misapplying the law to the facts and circumstances in this case.”

Walmsley, incarcerated in the Ripley County Jail, Versailles, now is in the process of appealing the circuit court decision, which is being reviewed by the Indiana Court of Appeals. His attorney argued that injecting his wife with drugs that they purchased and possessed together does not amount to dealing.

A live webcast of the Nathaniel Walmsley vs. State of Indiana oral argument occurred Aug. 6 at 1:30 p.m. The argument is archived online at https://bit.ly/2GTKemG

The charging document stated Walmsley, "while committing the crime of dealing a narcotic drug, which is to knowingly or intentionally deliver a narcotic drug ... did kill another human being, that is Rachel Walmsley ..."

The courts.IN.gov website explained, "Most appeals cases are completed in written form through briefs that each party in a particular case submits to the appellate court. However, in some cases, a court may choose to set an oral argument, which provides an opportunity for appellate judges to question attorneys in person about the material they have included in the written briefs they filed earlier with the court."

During the oral argument before Chief Judge Nancy Vaidik and Judges James Kirsch and Robert Altice Jr., each side was allotted 20 minutes.

Attorney Stacy Uliana, Bargersville, representing Walmsley, said, "This is a case of overcharging. When Nathaniel Walmsley injected himself and his wife with what they were told was heroin, but turned out to be something much stronger, fentanyl, he did not commit felony murder for two reasons. First, Nathaniel could not deal to Rachel because she purchased and possessed those drugs with him. And second, ... the Legislature did not intend for the felony murder statute to be applied to adult overdose cases because it leads to unfair results, like the one in this case."

Altice asked how this case differs from the 2006 Duncan v. State case. In the only Indiana case upholding a felony murder conviction based on an overdose death, the defendant gave her 2-year-old grandson a portion of one of her prescribed methadone pills and he died the next day from methadone poisoning.

Uliana answered, "There that child had no choice." The decision for the boy to receive that drug "was completely involuntary."

Vaidik questioned, "You said that Rachel helped purchase and possess this drug. How do you know that?"

According to the attorney, "The Walmsleys were in a longtime relationship ... where co-drug use was very much a part of that." Trimnell admitted he interacted with the woman on the day she died. "She knew Al was their dealer... In fact, Rachel ... had snorted herself before they even injected ... they had an alcohol problem more than they even had a drug problem ... Rachel would be passed out on the couch often." Trimnell said after he delivered the drug, "they probably made some bad choices because they were a little buzzed."

The judges debated whether the murder charge should be dismissed. Uliana said, "We've proven that Rachel was a part of this deal."

She added, "We do not want people charged based on speculation ... Nathaniel admitted he injected his wife ... but he also told them the history of their drug abuse, but the state just omitted that" from legal filings.

Vaidik observed Uliana's brief discussed the drug delivery, but not the death. "Why is it you didn't talk about the killing aspect?"

The attorney said a jury would have to decide whether Walmsley killed his wife. "Rachel also snorted drugs (earlier in the day). Whether she would have survived if she had not snorted before, I don't know." She also felt the charge was too harsh. "Felony murder was meant for violent crimes – the drug deals where somebody brings a gun."

Altice wondered, "Why isn't it delivery when he takes the syringe and delivers the injection into her arm? It seems pretty simple."

Uliana believed drug co-possession is not the same as dealing. "You can't give possession or control to somebody who already possesses it." Ironically, one brief stated the fatal dose was bought with Rachel Walmsley's bartending tip money.

Vaidik noted Ripley Circuit Court said there was evidence Rachel Walmsley co-possessed and evidence she didn't.

According to the attorney, "I am unaware of any piece of evidence that showed she did not co-possess." She pointed out the state's brief reported the couple bought from Trimnell six or seven times and he delivered the drugs "when they both were there ... they both knew what they were getting."

Vaidik quizzed, "Is there any evidence Rachel did not consent" to being injected? No, answered Uliana. "Everybody knows Rachel struggled with drug abuse just like Nathaniel did."

It disturbed Altice that when the woman became unresponsive and fell to the bathroom floor after being shot up, her husband and 15-year-old son carried her to bed. While family members had a barbecue elsewhere in the home, she lay there for several hours before being taken to the Margaret Mary Health Emergency Department, where the mother of four was pronounced dead.

The chief judge asked how a new state law, Indiana Code § 35-42-1-1.5, drug dealing resulting in death, would have affected this case.

Uliana responded, "It reads completely different than felony murder" because the severity level of the crime (Levels 1-3) is directly related to the potency of the drug. "It only validates our argument that felony murder is about violence. That's why it matters, whether the violence occurs during a crime."

She pointed out everyone knows fentanyl is risky. If a death results, who should be punished? "It should be the dealer who's making money ... not the guy who's injecting himself and his wife ..."

According to the brief she wrote, "it is unfair and illogical to hold that Trimnell, who sold the deadly substance to the Walmsleys, is less culpable than Nathaniel, who unknowingly used it with his wife. Nathaniel and Rachel were both victims of Trimnell’s dealing. Nathaniel injected himself with the same deadly fentanyl that he injected into Rachel. Not only did Nathaniel lose his wife, he will always wonder if he could have saved her. As Nathaniel told the detective, he does not understand why he was given the second chance at life."

Uliana asked the three judges to order that the jury be instructed that Indiana law recognizes drug co-purchasers. "It's the state's burden to show they did not purchase this together."

Ian McLean, Office of the Indiana Attorney General Criminal Appeals Section supervising deputy attorney, represented the state. He contended, "Walmsley was properly charged with felony murder because he delivered drugs and in the process ... killed Rachel."

Vaidik asked, "Is there any evidence Rachel did not consent to this injection?" No, he admitted.

Altice said, "The dealer now is a free man. Now we're talking about the user. Why should we let the dealer go yet continue to prosecute the user?"

According to McLean, in the Trimnell case, "the majority of this court held her death was not foreseeable" and the killing did not occur while Trimnell was there. "The cases are not similar."

Vaidik said, "We also know there's no force, ... Nathaniel didn't think it was a lethal quantity of fentanyl."

The attorney responded, "I only know there was a history of violence in the relationship."

Vaidik pointed out, "The same drugs he put into her he put into himself."

McLean added, "So he said."

The chief judge continued, "Is there any evidence she did not co-possess the drug?" No, he conceded. "It doesn't matter that they bought it together ... what mattered is that Mr. Walmsley gave it to her. He cooked it, he put it in the syringe and he injected it. ... This is how most drug dealing occurs ... friends giving to friends. Here someone died because of a direct result of what Mr. Walmsley did."

Vaidik wanted to agree on pertinent facts: "Rachel and Nathaniel are married and ... Nathaniel put the needle in Rachel's arm and Rachel was a willing participant."

McLean said, "I accept that."

The judge added, "We also know there was no force ... Nathaniel wasn't intentionally trying to kill her or you would have filed reckless homicide against him."

The attorney said, "Even accepting all that ... what we have here is a statute that makes delivery of a drug a crime."

Vaidik granted Uliana her requested five minutes for a rebuttal. The attorney announced after researching out-of-state cases, "I have not found one case that says co-purchasers is an impossible thing ... I ask this court to not be the first."

She argued, "We are not here to turn drug users and drug possessors into dealers ... it's going to encourage people to not report overdoses" and to not bring users near death to the hospital. "That is the opposite of what we want to do."

Uliana said the case is "all about sensationalizing." The facts are shocking to those who aren't addicts. Nathaniel Walmsley injected heroin and/or fentanyl "into his veins and he injected it into his wife's." She suggested he could be charged instead with neglect or drug possession.

Altice asked, "What about reckless homicide?" Possibly, she admitted.

If found guilty of injecting fentanyl, "that's reckless homicide, facing one to six years" in prison. "It's the rest of your life in prison for felony murder."

"The bottom line: Injecting your wife with drugs you purchased together isn't dealing. ... The Legislature did not mean to make him a murderer ... What Nathaniel did is not worse than what Al Trimnell did."

In her May 20 reply brief to the state's brief, Uliana wrote, "Even if this court finds that Nathaniel technically dealt to Rachel, he is still the addict and the user. He has forever lost his wife and broken his family. Treating him as a murderer when the dealer of the deadly substance walks away from Rachel’s death is unfair and the antithesis of the goals of the criminal justice system."

At the end of the 43-minute proceeding, Vaidik told the attorneys, "You've given us a lot to think about." She promised a decision soon.

Debbie Blank can be contacted at debbie.blank@batesvilleheraldtribune.com or 812-934-4343, Ext. 113.

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