Kofi Modibo AJABU, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 71S00-9512-CR-1377.
Supreme Court of Indiana.
March 6, 1998.
693 N.E.2d 921
Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Appellee.
BOEHM, Justice.
Kofi Modibo Ajabu was convicted of three counts of murder, three counts of criminal confinement, three counts of robbery, and one count of burglary. The trial court sentenced Ajabu to concurrent terms of life in prison without parole for each murder conviction, and to a term of years for each of the other convictions, sixty years of which to be served consecutively to the concurrent life terms. Ajabu‘s direct appeal presents several issues that we restate as follows:
- Was Ajabu‘s state constitutional right to be free from self-incrimination,
IND. CONST. art. I, § 14 , violated by introduction of a confession obtained after law enforcement authorities failed to honor a lawyer‘s telephoned request, of which Ajabu was unaware, that Ajabu not be questioned until the lawyer was present? - Did this conduct of the authorities violate Ajabu‘s right to due process of law under the Fourteenth Amendment to the
United States Constitution ? - Do the trial court‘s findings that Ajabu acted knowingly and was a major participant in the killings satisfy the death penalty statute‘s requirement of a showing that Ajabu “сommitted the murder by intentionally killing” the victims in this case,
IND. CODE § 35-50-2-9(b)(1) ?
We affirm the convictions. Because we hold that error occurred in the sentencing, we remand for reconsideration of the sentence consistent with this opinion.
Factual and Procedural History
At approximately 7 a.m. on March 17, 1994, Nicholas Allemenos, Lisa Allemenos,
Ajabu was not informed of Roberts‘s call at that point and two officers began questioning him five minutes later at 8:49 a.m. Before the interrogation, Ajabu received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and signed a waiver of rights form. The videotapеd questioning lasted until 10:40 a.m., recessed for a brief period, and then continued. Ajabu confessed his involvement in the multiple homicide. At no point during the questioning did he request the assistance of a lawyer. Around 12:30 p.m., police asked Ajabu if he would submit to a second interview at the house where the murders occurred and he agreed. Police took Ajabu to the murder scene and interviewed him there on videotape for approximately forty-five minutes. Before this questioning, an officer asked Ajabu if he understood his rights and he indicated that he did. Ajabu again confessed his involvement in the killings. As Ajabu was being transported back to the Hamilton County Jail around 2:22 p.m., he asked for an attorney and was not questioned further. At some point that afternoon, after demanding counsel, Ajabu was told about Roberts‘s call earlier that day.2
Ajabu was charged with three counts of murder, three counts of criminal confinement, three counts of robbery, and one count of burglary. Venue was changed to St. Joseph County and Ajabu was tried there in
I. Indiana Constitutional Right to be Free From Self-Incrimination
Ajabu moved unsuccessfully before trial to suppress the statements he gave at the Hamilton County Jail and at the Allemenos residence. He contends the trial court erred in denying the motion and in subsequently admitting the statements into evidence over objection. Ajabu‘s principal contention is that the conduct of the police and prosecutors in not informing him of Roberts‘s phone call before any interrogation violated his right to be free from self-incrimination protected by Article I, Section 14 of the
A. The nature and constitutional footings of Ajabu‘s claim
The Supreme Court of the United States has rejected nearly identical contentions under the Constitution of the United States. In Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the Court squarely held that neither the Fifth Amendment nor the Fourteenth Amendment guarantee of due process is violated by admission of a confession obtained after an attorney, unknown to the suspect, unsuccessfully seeks to intervene in an interrogation.3 Recognizing the insuperable hurdle Burbine presents as a matter of federal constitutional doctrine, Ajabu urges us to hold that the Indiana Constitution is violated where (1) police fail to inform a suspect prior to interrogation of a lawyer‘s unsolicited and unknown efforts to contact the suspect; or (2) police do not honor counsel‘s request to be present during any questioning. He argues that his waiver of his right to be free from self-incrimination was not knowing, voluntary, and intelligent under these circumstances. Stated another way, Ajabu‘s claim is that a confession that is “voluntary” in a volitional sense must nonetheless be excluded, because he was unaware of the lawyer‘s efforts to reach him, and this knowledge would have affected his decision to speak with authorities. Ajabu correctly observes that Burbine does not prevent Indiana from providing greater procedural guarantees for defendants on independent state grounds. Id. at 428, 106 S.Ct. at 1144-45. The State responds that the Indiana constitutional right is equivalent to the Fifth Amendment, and therefore reflects Burbine, or at least the Indiana right is not more protective than the Fifth Amendment.
In assessing this claim, we first must be clear about the nature of the right at issue. The federal right to counsel as protected by the Sixth Amendment, so as to ensure a fair trial after charges are filed, cf. United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), is not implicated here because Ajabu had not been charged or arraigned at the time of the alleged constitutional deprivation. Nor does Ajabu cite the state constitutional provision guaranteeing that “[i]n all criminal prosecutions, the accused shall have the right to . . . be heard by himself and counsel. . . .”
B. Sources of construction for Indiana constitutional claims
Article I, Section 14 of the
This case involves a federal constitutional analog that applies in state proceedings by virtue of Fourteenth Amendment incorporation. In that circumstance, we have found Indiana case law construing the Indiana provision prior to the date of incorporation to be “most helpful” in determining whether the Indiana Constitution demands more than its federal counterpart. Moran v. State,8 644 N.E.2d 536, 540 (Ind.1994); see also Peterson v. State, 674 N.E.2d 528, 533-34 (Ind.1996) (reviewing pre-incorporation case law in assessing whether standing is required to challenge constitutionality of search or seizure under Section 11 of the Indiana Bill of Rights), cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998). More generally, “[e]arly decisions of this Court interpreting our Constitution . . . have been accorded strong and superseding precedential value. Prior cases construing and applying [the Indiana provision] independently from federal [doctrine] are important sources for our consideration.” Collins v. Day, 644 N.E.2d 72, 77 (Ind.1994) (internal quotation marks and citations omitted). As elaborated below, both the federal and Indiana self-incrimination provisions look to a common interwoven history. Common roots and a history of coextensive construction may support the conclusion that the Indiana and federal constitutions protect the same bundle of rights and the same constitutional values. However, past reliance on federal case law in construing an Indiana constitutional provision does not preclude formulation of an independent standard for analyzing state constitutional claims. Id. at 75. Even where an Indiana constitutional provision is substantially textually coextensive with that from another jurisdiction, as in this case, we may part company with the interpretation of the Supreme Court of the United States or any other court based on the text, history, and decisional law elaborating the Indiana constitutional right.9
C. Construction of the Indiana right in light of its text and underlying purposes
The “cardinal principle of constitutional construction [is] that words are to be considered as used in their ordinary sense.” Tucker v. State, 218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941). On this first line of inquiry in any constitutional case—constitutional text—the document is unambiguous for these purposes: “No person, in any criminаl prosecution, shall be compelled to testify against himself.”
The decisional law as far back as 1860 has focused on the prerequisite of compulsion: “[The right] exempts no one from the consequences of a crime which he may have committed, but only from the necessity of himself producing the evidence to establish it.” Wilkins v. Malone, 14 Ind. 153, 156 (1860). Stated concisely, our cases establish that there is a right not to be forced to speak, but there is no right to bar a confession freely given after appropriate warnings and waivers. See also Corder v. State, 467 N.E.2d 409, 415 (Ind.1984) (defendant who spoke freely to court-appointed psychiatrists was not denied his rights under Section 14 or the Fifth Amendment); Ross v. State, 204 Ind. 281, 293, 182 N.E. 865, 869 (1932) (“The essence of the privilege is freedom from tеstimonial compulsion.“); cf. State ex rel. Keller v. Criminal Court of Marion County, 262 Ind. 420, 428, 317 N.E.2d 433, 438 (1974) (“The Fifth Amendment is not a bar to any conviction resting on self-incrimination. It prohibits only compelled self-incrimination.“).
We recently reiterated that the purpose underlying an Indiana constitutional provision is critical to ascertaining “what the particular constitutional provision was designed to prevent.” Town of St. John, 675 N.E.2d at 321 (internal quotation marks omitted). In this case, there is no connection between the purpose to be advanced by Article I, Section 14 and the evil Ajabu asks us to proscribe. The treatment of a lawyer whose services and efforts were unknown to Ajabu cannot have affected the voluntariness of his decision to speak with his interrogators about the crimes in this case. This is a critical point. As Justice Brennan declared in holding the federal self-incrimination right applicable to the states in 1964: “[T]he constitutional inquiry [under the Fifth Amendment] is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was free and voluntary.” Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964) (internal quotation marks omitted). Or, as this Court remarked in rejecting a claim that the Indiana constitutional right had been abridged in a 1902 case: “Whether [the suspect] should so testify was, therefore, a personal privilege which he could claim or not as he chose. If he gave such criminating [sic] evidence voluntarily, his constitutional rights were not violated. It is a general rule that when a personal privilege exists for a witness to testify or not as he chooses, if he does testify without objection he will be deemed to have done so voluntarily.” State
D. Indiana and federal precedents demonstrate a common objective of the two constitutional rights
That we reach the same conclusions drawn by the Supreme Court of the United States on this issue in Burbine is consistent with the interwoven history of the federal and state rights. The Indiana right has been thought to be derived in part from earlier state constitutions. WILLIAM P. MCLAUGHLIN, THE INDIANA STATE CONSTITUTION 46 (1996). Similarly, the language of the Fifth Amendment enjoys some precedent in state constitutional provisions that were enacted before the Federal Bill of Rights. Eben Moglen, Taking the Fifth: Reconsidering the Origins of the Constitutional Privilege Against Self-Incrimination, 92 MICH.L.REV. 1086, 1118-23 (1994) (concluding that historical evidence is thin and inconclusive on precise impact of state provisions on framing of Fifth Amendment).
Although not dispositive, the parallel development of the federal and Indiana doctrines is also relevant to this inquiry. The Fifth Amendment right to be free from self-incrimination was not held applicable to state criminal trials via the Fourteenth Amendment until 1964. Malloy, 378 U.S. at 6, 84 S.Ct. at 1492-93. Since that time, self-incrimination issues have more often been presented to our state courts under the Fifth Amendment. To the extent the state constitutional right has been implicated since Malloy, separate analysis of the right has been sparse. Indeed, we declared without elaboration in a 1970 case that the Indiana right “has the same scope and effect as the privilege against self-incrimination in the Fifth Amendment.” Haskett v. State, 255 Ind. 206, 209, 263 N.E.2d 529, 531 (1970) (footnote omitted). Other post-Malloy decisions appear to have assumed as much without saying so explicitly. See, e.g., Bivins v. State, 433 N.E.2d 387, 390 (Ind.1982); Brown v. State, 256 Ind. 558, 270 N.E.2d 751 (1971). However, for a century and a half before Malloy, the two doctrines existed in parallel but did not apply to the same proceedings. As a result, there is an abundance of decisional law from the pre-Malloy period construing the Indiana right to be free from self-incrimination. Not surprisingly, Indiana self-incrimination doctrine emerged as virtually identical to the federal constitutional right. Many Indiana decisions, based on independent state grounds, in fact preceded and presaged similar rulings from the Supreme Court of the United States.11
E. Doctrinal and practical considerations
There are good reasons not to stray from the historical focus on testimonial compulsion. This case presents no claim of compulsion, but rather turns on whether alleged misconduct outside the interrogation room can nullify an otherwise valid confession. Ajabu‘s proposed construction of Section 14 would transfer to the bar and others the right to terminate an interrogation that was proceeding voluntarily. Miranda warnings are intended to give the suspect some control over the circumstances surrounding the interrogation. They do not give a lawyer control over the interrogation unless the suspect requests it. Moreover, the warnings are not designed to suggest to suspects otherwise speaking without compulsion that they should have a lawyer present when they have explicitly declined one, or that they should not talk at all.
Because the federal and state rights serve the same goals, the reasoning with respect to the right to be free from self-incrimination expressed in Burbine is also applicable to Article I, Section 14 of the Indiana Constitution. In Burbine, the Supreme Court rejected a similar invitation to expand the self-incrimination right under the federal constitution. Writing for a six-to-three majority, Justice O‘Connor dismissed the notion that a lawyer‘s efforts to contact a suspect could render a Miranda waiver invalid: “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Burbine, 475 U.S. at 422, 106 S.Ct. at 1141. In essence, the Court held that the protections Miranda and subsequent cases provide were adequate to ensure that the waiver was voluntary as a matter of law. Id. at 422-23, 106 S.Ct. at 1141-42. And as a matter of Fifth Amendment doctrine, Burbine emphasized the “elemental and established proposition that the privilege against compulsory self-incrimination is, by hypothesis, a personal one that can only be invoked by the individual whose testimony is being compelled.” Id. at 434 n. 4, 106 S.Ct. at 1147 n. 4. The Court was equally unequivocal that the conduct of the police towards counsel had no bearing on the waiver analysis: “[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent‘s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect‘s decision to waive his Miranda rights unless he were at least aware of the incident.” Id. at 423, 106 S.Ct. at 1142 (citation omitted).
In concluding in Burbine that the Fifth Amendment had not been offended, Justice O‘Connor made several points consistent with the result we reach today: (1) because Miranda warnings are prophylactic and not themselves constitutionally required, the warnings did not provide a license for molding police conduct so long as they served their purpose of protecting the self-incrimination right; (2) how police treated an attorney whose representation was unknown to the suspect is unrelated to Miranda‘s purpose of dissipating the coercion inherent in police interrogation; (3) Miranda is a bright-line rule whose ease of application would be jeopardized if the validity of the waiver hinged on events occurring outside the stationhouse; (4) expanding Miranda would upset the careful balance that decision struck between thе objective of preventing coerced confessions and the need to enable police to gather truthful information through non-coercive questioning; and (5) the benefit to the suspect of knowing of the attorney‘s unsolicited efforts would be marginal and the costs to society great, because counsel‘s inquiry would actively encourage the suspect not to speak at all. Id. at 424-27, 106 S.Ct. at 1142-44.
Justice Byron White‘s observations in his concurring opinion in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) are also relevant:
There is little support in the law or in common sense for the proposition that an informed waiver of a right may be ineffective even where voluntarily made. . . . Unless an individual is incompetent, we have in the past rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case. To do so would be to imprison a man in his privileges. . . .
Id. at 108-09, 96 S.Ct. at 328-29 (White, J., concurring in the result) (citations, internal quotation marks, and footnote omitted) (emphasis in original). We share the Supreme Court‘s confidence that a “suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.” Davis v. United States, 512 U.S. 452, 460-61, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994). This is not a case in which police stood between counsel and a suspect who sought the lawyer‘s assistanсe. Cf. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (when
Requiring police to honor a lawyer‘s unsolicited request to be present during interrogation would in effect create an “undifferentiated right to the presence of an attorney that is triggered automatically by the initiation of the interrogation itself.” Burbine, 475 U.S. at 434 n. 4, 106 S.Ct. at 1147 n. 4. Miranda expressly rejected the idea that “each police station must have a ‘station house lawyer’ present at all times to advise prisoners.” Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. In sum, the necessity of a clear request for counsel in the Fifth Amendment context has remained paramount in application of Miranda, see, e.g., Davis, 512 U.S. at 461, 114 S.Ct. at 2356 (holding that unless suspect “clearly requests” counsel, police do not have to halt questioning); Mosley, 423 U.S. at 104 n. 10, 96 S.Ct. at 326 n. 10 (reiterating Miranda‘s holding that counsel must be present during questioning only if the suspect requests an attorney), and we hold today that it is a prerequisite for invocation of the Indiana constitutional right under Section 14. See also footnote 4 supra.
F. Constitutional doctrine from other states
Finally, Ajabu points to decisions of other state supreme courts construing similar provisions of their own constitutions in factually similar circumstances. We have looked to other state constitutional doctrine in interpreting the self-incrimination right under the Indiana Constitution. See, e.g., Noelke v. State, 214 Ind. 427, 15 N.E.2d 950 (1938); Ule v. State, 208 Ind. 255, 194 N.E. 140 (1935); cf. Bayh v. Sonnenburg, 573 N.E.2d 398, 414 n. 19 (Ind.1991) (noting that Tennessee Supreme Court had similarly construed Tennessee analog to Indiana constitutional provision proscribing demand of services without “just compensation“). A number of state appellate courts, both before and after Burbine, have addressed on independent state grounds whether a waiver of the right to be free from self-incrimination was knowing, intelligent, and voluntary under facts similar to those present here. As of this writing, at least Michigan, Oregon, and Oklahoma have held the confession to be inadmissible under their state constitutions.13 In contrast, Colorado, Maryland, Tennessee, Washington, and Wisconsin have essentially followed Burbine in interpreting their constitutional self-incrimination provisions.14 Some courts have found the waiver invalid on other state grounds, including due process and right to counsel under their constitutions.15 However, the result in this case must be driven by what is most appropriate under the Indiana Constitution. We affirm the trial court‘s conclusion that Ajabu knowingly, intelligent, and voluntarily waived his
II. Claims of Police Misconduct and Fourteenth Amendment Due Process
In this appeal, Ajabu contends for the first time that the actions of the police and prosecutors were so offensive that they denied him due process of law as protected by the Fourteenth Amendment. In this suggestion, Ajabu follows Burbine, which concluded that to the extent police deception can support a constitutional claim it is properly analyzed as a matter of due process. Burbine, 475 U.S. at 432-34, 106 S.Ct. at 1146-48. Ajabu explicitly declined to take this tack in his motion to suppress, where he asserted that his claim was more appropriately assessed under the Fifth Amendment and that Burbine in this respect was distinguishable. He contends in this appeal that he is entitled to relief on due process grounds.
Assuming this argument is not waived for failure to present it below, we conclude that Ajabu was not denied his rights under the Fourteenth Amendment. In Burbine, a public defender retained by a member of Burbine‘s family to represent him called the police station where Burbinе was being held and asserted that she would act as Burbine‘s legal counsel if police wanted to question him. In response, the public defender was told that the police “would not be questioning Burbine or putting him in a line-up and that they were through with him for the night.” Id. at 417, 106 S.Ct. at 1139 (internal quotation marks omitted). In fact, Burbine was questioned less than an hour after the lawyer‘s phone call and he confessed to murder. Under these facts, the Supreme Court declined to find a Fourteenth Amendment violation. However, the Court left open the possibility that a due process violation could be established under “more egregious” police misconduct. Id. at 432-34, 106 S.Ct. at 1146-48.
Ajabu argues that the State officials’ failure to inform him of Roberts‘s phone call prior to the interrogation in this case is more offensive than the circumstances in Burbine for two principal reasons: (1) the police and prosecutors “conspired” to withhold this information from Ajabu and to deny him “meaningful legal advice“; and (2) the prosecutors allegedly violated the Indiana Rules of Professional Conduct under these facts. The evidence does show a group discussion and agreement not to tell Ajabu about Roberts‘s phone call. However, this was not a “conspiracy” with an unlawful objective. Rather, the prosecutors and police appear to have grounded their actions on their reading of Burbine. Intentional or knowing deception by an attorney might present grounds for professional discipline, but this appeal is not the proper forum for that determination. Nor does the involvement of an attorney among the State officials appear to play a role in the due process analysis. By referring to the degree of deception as the controlling factor in adjudicating a due process claim, Burbine implied that what the lawyer is told in response to the inquiry is more important than whether another lawyer assists in the deception, although that may also be relevant depending on the facts.
In any event, the degree of deceit necessary to implicate the Fourteenth Amendment is simply not apparent in this case. The actions of the prosecutors and police are certainly more benign than what occurred in Burbine. A U.S. Supreme Court precedent appeared to support the decision not to halt the interrogation. And, unlike Burbine, Roberts was not told that Ajabu would not be questioned, only that the “appropriate people” would be informed of his inquiry. After Ajabu requested a lawyer later that day, he was nоt questioned further. Only then was Ajabu told that Roberts had called. We share the Supreme Court‘s concern for the appearance of what occurred, but Burbine itself found no due process violation on more offensive facts. U.S. Supreme Court authority is controlling on issues of federal constitutional law. Accordingly, Ajabu‘s claim on this point fails.
III. Validity of the Sentence of Life Without Parole
In papers filed before trial, the State indicated it would seek the death penalty if
The trial court‘s reference to these death penalty factors was correct. In imposing a death penalty, only the death penalty statutory aggravating circumstances are to be considered. Bivins v. State, 642 N.E.2d 928, 953-57 (Ind.1994). The statute provides that life without parole is imposed under the same standards and is subject to the same requirements. The court found as mitigating evidence Ajabu‘s lack of prior criminal history and his apology to the victims’ families at the sentencing hearing. After finding that the aggravating circumstances outweighed the mitigating circumstances, the court sentenced Ajabu to life in prison without parole for each murder conviction.
A. Findings required for a (b)(1) aggravating circumstance
Ajabu contends that the first aggravating circumstance is not supported by the evidence because he claims there was no showing that he took a life, attempted to take a life, or intended to take a life. His principal argument in requesting a lesser sentence was that he was at most an accomplice and did not himself kill the victims. The (b)(1) aggravating factor required proof beyond a reasonable doubt that Ajabu “committed the murder by intentionally killing the victim[s] whilе committing or attempting to commit” burglary or robbery.
1. “Major participation” is the required actus reus for subsection (b)(1)
The trial court applied the “major participation” required by Tison as the standard for actus reus necessary for imposition of the death penalty or life without parole under subsection (b)(1) of the Indiana statute. We agree that the “major participation” required by Tison as a matter of Eighth Amendment and Fourteenth Amendment law is also the requisite actus reus under subsection (b)(1). We reach that conclusion based on the language of the statute illuminated by its legislative history in light of Tison.
Because the jury was instructed on accomplice liability in this case, it may have conviсted Ajabu of murder under an accomplice theory. By its terms, the accomplice statute specifies one means by which a person can “commit” an offense.
Ajabu correctly points out that the intent and actions of confederates cannot be imputed to the defendant in determining whether the (b)(1) aggravating circumstance has been proved beyond a reasonable doubt. Landress v. State, 600 N.E.2d 938 (Ind.1992). He is not correct, however, in contending that a “non-triggerman” can never be subjected to the death penalty statute by reason of subsection (b)(1). A person who substantially participates but does not deliver the fatal blow may still fall within the statute‘s scope. Concerted action that produces death can rise above simple accomplice liability and render the defendant eligible for death or life without parole even if someone else delivers the fatal blow. See, e.g., Miller v. State, 623 N.E.2d 403 (Ind.1993), (defendant‘s plan that the victim would be killed and participation in the abduction and assault of the victim was an intentional killing within subsection (b)(1) even though a co-conspirator fired the fatal gunshot). We conclude that the trial court correctly applied the “major participation” test as the standard for the required act under subsection (b)(1). If major participation is shown under subsection (b)(1), it is irrelevant whether the defendant “commits” the crime by reason of the murder statute or by reason of the accomplice statute.
Tison declined to elaborate the precise circumstances or conduct constituting major participation, but the facts of that case make clear that the term includes at least (1) active involvement in any crimes surrounding the commission of the murder; and (2) physical presence during the entire sequence of criminal activity culminating in the murder and flight from the scene. Tison, 481 U.S. at 158, 107 S.Ct. at 1688. As discussed below, the trial court‘s careful analysis of Tison and findings on participation satisfy subsection (b)(1).
Although this case involves life without parole, death penalty jurisprudence is instructive in construing subsection (b)(1) because subsеction (b)(1) applies equally and without differentiation to both sentences. Tison establishes that “major participation” in the killing, coupled with a culpable mental state, is needed for a death penalty to satisfy the Eighth Amendment. Indeed, vicarious liability in the capital context raises concerns about proportionality: “While an accomplice may be found guilty of the crime largely executed by his principal, it does not follow that the same penalty is appropriate.” Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind.1989). The perpetrator who delivers the fatal blow or shot is plainly a major participant, but not all accomplices are necessarily major participants. It is also clear that accomplice liability in some cases—for example, where the defendant‘s involvement consists only of driving the getaway car, cf. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73
The legislature presumably could impose life without parole on a broader range of participants than Tison permits for the death penalty.20 However, by inserting life without parole into the death penalty statute the legislature chose to impose life without parole as an alternative punishment applicable only to death penalty eligible convictions. It is therefore subject to the same construction as in death penalty cases. Other state supreme courts have reached similar conclusions where the relevant statute provided that life without parole was subject to the same proof required to impose a death sentence. See, e.g., People v. Estrada, 11 Cal.4th 568, 46 Cal.Rptr.2d 586, 590, 904 P.2d 1197, 1201 (1995) (Tison does not stand for the proposition that reckless indifference to human life must be shown to impose life without parole, but that element was required because the statute at issue mimicked Tison‘s language).
2. Subsection (b)(1) requires intentional conduct
The sentencing in this case must comport not only with the Eighth Amendment but also with the terms of subsection (b)(1). The State contеnds that Tison culpability is all that need be shown to prove the (b)(1) aggravating circumstance beyond a reasonable doubt.21 We do not agree. “A
B. The trial court‘s findings do not show intentional killing
In sum, the trial court found that Ajabu (1) helped plan and substantially participated in the robbery and burglary scheme that led to the murders; (2) was present and armed with a loaded handgun when the violence escalated; and (3) “had to be aware that the probability of the victims being killed was very high,” and “once Chris James is killed, the defendant had to know that Nicholas and Lisa Allemenos would be killed.” The (b)(1) aggravating circumstance requires that Ajabu killed “intentionally.” The trial court‘s finding of major participation in the killings is well documented and easily satisfies the actus reus requirement of subsection (b)(1). But the findings do not establish that Ajabu acted “intentionally” within the meaning of the (b)(1) aggravating circumstance. Cf. Games v. State, 535 N.E.2d 530, 544-45 (Ind.1989) (death sentence upheld where trial court made finding that defendant intentionally killed the victim during course of a robbery). There is no conclusion that Ajabu‘s mental culpability rose to that level. The findings as to Ajabu‘s state of mind mirror almost word for word the definition of “knowingly” in the Indiana criminal code: “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.”
C. Proper considerations in resentencing
Harrison v. State, 644 N.E.2d 1243 (Ind.1995) set forth guidelines trial courts are to follow in making findings pursuant to the death penalty statute. In that case, defendant Harrison was convicted of felony murder and the State sought the death penalty. Although the trial court concluded in the sentencing findings that Harrison “committed the murder by intentionally killing the victim . . . while committing or attempting to commit Arsоn,” we remanded for a more specific sentencing order because, among other reasons, the record was unclear on whether the trial court distinguished between the mens rea required for felony murder, and the mens rea necessary to establish the (b)(1) aggravating circumstance. Id. at 1262-64. We reiterated that the latter required an intentional killing. Id. at 1263 n. 23.
The trial court‘s statement of reasons (i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence, and (iv) must set forth the trial court‘s personal conclusion that the sentence is appropriate punishment for this offender and this crime.
Id. at 1262 (citations omitted).
The problem in Harrison was that the trial court found an intentional killing without providing “specific facts and reasons” in support of that conclusion. The problem in this case is that the trial court made detailed factual findings without concluding whether this added up to intentional killing. Indeed, the findings suggest a failure to prove beyond a reasonable doubt that Ajabu‘s participation in the events intentionally rather than knowingly or recklessly led to death. However, because the trial court‘s findings were predicated on Tison rather than the Indiana statute, we express no view on whether the evidence adduced at trial and at the sentencing hearing could support findings of intentional killing. We hold only that the trial court must make the findings required to establish the (b)(1) aggravating circumstance beyond a reasonable doubt. Imposition of the death penalty or life without parole requires scrupulous compliance with each statutory step. Id. at 1263-64.24
Ajabu does not challenge the two other aggravating circumstances used to support the life sentences. Therefore, reweighing will take place on remand irrespective of whether the (b)(1) aggravating factor is found to be proved beyond a reasonable doubt. The only open question is the quantum of aggravating evidence to be weighed against the mitigating factors. Two other aspects of the sentencing order will require clarification on remand. First, the trial court found the (b)(8) aggravating circumstance to be proved by virtue of Ajabu‘s conviction for Christopher James‘s murder. However, the order does not state which of the other two murder convictions this factor was applied against as an aggravating circumstance—whether with respect to both Lisa and Nicholas Allemenos, or just one of the two.25 Second, the order does not comply with Harrison‘s mandate that the trial court set forth its “personal conclusion that the sentence is appropriate punishment for this offender and this crime.” Id. at 1262.
This case is remanded for a new sentencing order on the murder counts and, specifically, consideration on the current record of the following issues: (1) new or revised findings as to whether the (b)(1) aggravating circumstance was proved beyond a reasonable doubt; (2) clarification of the (b)(8) aggravating circumstance findings; (3) determination whether the mitigating circumstances are outweighed by the aggravating circumstances for each murder conviction, so as to justify imposition of life without parole; and (4) a personal statement by the court that life in prison, if that sentence is imposed, is appropriate punishment for this offender and this crime. In drafting the sentencing order, the trial court is directed to use the 1993 version of the death penalty statute. See
Kofi Modibo Ajabu‘s convictions for three counts of murder, three counts of criminal confinement, three counts of robbery, and one count of burglary are affirmed. This case is remanded for further proceedings in the trial court consistent with this opinion.
SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
SELBY, J., concurs with separate opinion, in which DICKSON, J., concurs.
SELBY, Justice, concurring with separate opinion.
I agree with the majority; however, I write separately to address the actions of the police and prosecutors in this case. This case does not involve a personal appearance by the lawyer at the stationhouse or a request to speak with the suspect. The Court‘s holding today should not be understood to apply to those circumstances, which might present different considerations depending on the factual context or constitutional provision at issue, as the Court‘s footnote 5 implies. While it may be true that the law enforcement officials did not act in a manner egregious enough to constitute a violation of defendant‘s constitutional rights under Burbine, we should not condone such conduct.
DICKSON, J., concurs.