Obadyah BEN-YISRAYL, f/k/a Christopher D. Peterson, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
No. 64S00-9103-DP-00229
Supreme Court of Indiana.
Dec. 31, 1997.
1141-1156
By our decision today, this Court does not seek to impair the exercise of prosecutorial authority or discretion. The key element of culpability in the respondents’ actions was their use of the prosecutorial powers to further their self-interests. Holmes used his prosecutorial discretion and authority to further his interest in retaining his elected position. Christoff, who worked directly for Holmes, actively assisted him in doing so. Use of prosecutorial authority becomes improper when the sole or overriding motivation for exercising it is the prosecutor‘s personal benefit or gain, and not to further the public interest of effective law application and enforcement.
Having found misconduct, we now turn to the issue of proper sanction. In so doing, we examine the surrounding circumstances, the respondent‘s state of mind, the duty violated, actual or potential injury to the client, the duty of this Court to preserve the integrity of the profession, the risk to the public, and any mitigating or aggravating factors. In re Conway, 658 N.E.2d 592 (Ind. 1995); In re Ragland, 647 N.E.2d 319 (Ind. 1995). The respondents used their positions of authority for personal benefit. Holmes attempted to fend off what he saw as a challenge to his incumbency in office. Given that he wielded the ultimate prosecutorial authority in this case, we view his culpability as more severe than Christoff‘s, who was under his direct supervision. However, the action each took reflects abuse of their prosecutorial authority. Objective and appropriate use of prosecutorial authority must be preserved and respected, otherwise the public‘s confidence in those entrusted to enforce the state‘s laws erodes. Given these considerations, we are convinced that Holmes should be briefly suspended from the practice of law, and that Christoff should be publicly admonished.
It is, therefore, ordered that Richard M. Holmes be suspended from the practice of law for a period of thirty (30) days, beginning February 1, 1998, after which he shall be automatically reinstated to the practice of law.
Mark S. Christoff is hereby reprimanded and admonished for the misconduct set forth above.
The Clerk of this Court is directed to provide notice of this order in accordance with Admis.Disc.R. 23(3)(d) and to provide the clerk of the United States Court of Appeals for the Seventh Circuit, the clerk of each of the Federal District Courts in this state, and the clerk of the United States Bankruptcy Court in this state with the last known address of respondent as reflected in the records of the Clerk.
Costs of this proceeding are assessed against the respondents.
Gary S. Germann, Portage, I. Alexander Woloshansky, Merrillville, for Defendant-Appellant.
Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.
The defendant-appellant, Christopher D. Peterson, was convicted of two counts of murder1 and two counts of felony murder2 for the intentional killing and robbery of Harchand Dhaliwal (Counts 1 and 2) and Marie Meitzler (Counts 3 and 4).3 In accordance with the jury recommendation, the trial court ordered that a death sentence be imposed.
On December 15, 1990, Marie Meitzler, a Portage, Indiana, motel clerk was killed as the result of a shotgun wound to the neck and $467.00 was missing from the cash register. The next day, Harchand Dhaliwal, an attendant at a nearby gas station, was killed by a shotgun blast to the head and $327.55 was missing. The defendant subsequently confessed to these murders.
The defendant presents twenty claims in this direct appeal, which we regroup and address as follows: (1) severance of offenses;4 (2) change of venue;5 (3) admissibility of evidence of the defendant‘s other crimes;6 (4) prosecutor‘s comments during
1. Severance of Offenses
The defendant was charged on February 14, 1991, with two counts of murder and two counts of felony murder stemming from the shotgun murder and robbery of Harchand Dhaliwal on December 13, 1990, at his workplace and the shotgun murder and robbery of Marie Meitzler on December 15, 1990, at her workplace. The defendant contends he was entitled to a severance of the charged offenses as a matter of right. He also contends that, in the alternative, the denial of severance was an abuse of the trial court‘s discretion.
Two statutory provisions are at issue here:
“Two (2) or more offenses may be joined in the same indictment or information, with each offense stated in a separate count, when the offenses:
(1) are of the same or similar character, even if not part of a single scheme or plan; or
(2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.”
Whenever two (2) or more offenses have been joined for trial in the same indictment or information solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. In all other cases the court, upon motion of the defendant or the prosecutor, shall grant a severance of offenses whenever the court determines that severance is appropriate to promote a fair determination of the defendant‘s guilt or innocence of each offense considering:
(1) the number of offenses charged;
(2) the complexity of the evidence to be offered; and
(3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
Interpreting these statutes, we have required severance of offenses as a matter of right under subsection 11(a) only when the offenses are joined solely because of the reason listed in subsection 9(a)(1), i.e., that the offenses are of the same or similar character. See Brown v. State, 650 N.E.2d 304, 305 (Ind.1995). However, when the offenses are joined under subsection 9(a)(2), the court must grant a severance only if it determines that it is “appropriate to promote a fair determination of the defendant‘s guilt or innocence,” based on subsections 11(a)(1) through (3). Conner v. State, 580 N.E.2d 214, 219 (Ind.1991), cert. denied, 503 U.S. 946, 112 S.Ct. 1501, 117 L.Ed.2d 640 (1992).
Under subsection 9(a)(2), offenses may be sufficiently “connected together” to justify joinder if the State can establish that a common modus operandi linked the crimes and that the same motive induced that criminal behavior. Davidson v. State, 558 N.E.2d 1077, 1083 (Ind.1990). In this case, the crimes for which the defendant was charged both have the same modus operandi. Both shootings involved victims who were clerks and were killed at their place of business while working alone between the hours of 6:00 p.m. and 8:00 p.m. The assailant in both shootings was identified as someone who drove a white Nissan Sentra automobile. In both killings, the victims’ cash registers were emptied. The cause of death for both victims was a shotgun blast to the head, at close range, from a .12 gauge shotgun. Winchester AA 8 shotgun waddings were also found at both crime scenes. Both shootings were committed in the City of Portage, two days apart. As noted, the crimes also had the
The defendant concedes he cannot establish that the number of offenses charged or the complexity of the evidence offered subjected him to any prejudice, as required under
2. Change of Venue
The defendant contends that the record relating to his Motion for Change of Venue is insufficient to permit adequate appellate review. Alternatively, he argues that, to the extent that review is possible, the trial court abused its discretion in denying his motion.
On August 25, 1994, the defendant sought relief in this Court for a new trial, alleging portions of the trial transcript were indecipherable.12 In response, this Court ordered the following:
As to the claim that the faulty transcript renders appellate review impossible, Ind. Appellate Rule 7.2(c) governs. That rule provides for reconstruction of the record where material is omitted from the record or where the record does not accurately represent the actual trial court proceedings. It provides “[i]ncompleteness or inaccuracy of the record of proceedings shall not constitute a ground for dismissal of the appeal or preclude review on the merits.” App.R 7.2(C)(2).
Pursuant to App.R 7.2(C), the Court ORDERS the following. The trial court judge, deputy prosecutor and defense counsel who participated in Appellant‘s trial in this cause shall, to the best of their abilities, reconstruct the actual testimony or arguments not accurately depicted in the trial transcript filed in this Court. To the extent that such testimony cannot be reconstructed, the trial court judge, deputy prosecutor and defense counsel shall report in writing the thrust of the inaccurately transcribed testimony or arguments to the best of their recollection. To the extent that their memories of the actual testimony or arguments are inadequate to reconstruct or outline the testimony or arguments, the trial judge, deputy prosecutor and defense counsel shall report in writing to this Court whether such testimony or arguments raise any material issue or relate to any error raised in Appellant‘s motion to correct errors.
The process outlined above will be conducted with respect to each apparent error in the trial transcript contained in the record of proceedings and in any transcripts submitted as part of any supplemental records. This task shall be completed and the results submitted to this Court on or before February 1, 1995. All further appellate briefing in this case is stayed until further order of this Court....
INDIANA SUPREME COURT ORDER, dated Oct. 6, 1994 (emphasis added).
On May 8, 1995, we removed the stay on briefing, stating, “On October 6, 1994, this Court issued an Order staying briefing in this case until supplementation of the Record of Proceedings was completed. This Court now deems the Record of Proceedings filed and supplementation complete.” INDIANA SUPREME COURT ORDER, dated May 8, 1995.
The defendant now contends there were problems with the reconstruction process or result. However, he was ordered to present those to this Court while the briefing period was stayed or at the very least he should have requested an extension in which to continue the reconstruction process. We formally resolved the reconstruction of the record on May 8, 1995, without any objections from the defendant. He has therefore forfeited his claim regarding the sufficiency of the record.14
3. Admissibility of Evidence of the Defendant‘s Other Crimes
As proof of the defendant‘s identity, the State introduced evidence that the defendant was also responsible for the December 18, 1990, shotgun killings of Eli Balovski and George Balovski. The defendant had been charged with these crimes, but was not tried and convicted of these murders until after he had been convicted of the murders in the case at bar.15 The defendant argues that the admission of this evidence was error. However, even if the evidence was erroneously admitted, which we do not decide, such error would be harmless.
Ignoring any reference to the Balovski murders, the evidence presented to the jury in this case was overwhelming. First and foremost, the jury was presented with the defendant‘s voluntary confession to police. The State also presented testimony that, prior to his arrest, the defendant admitted to an acquaintance that he had committed the murders. The defendant acknowledged his possession of a .12 gauge sawed-off
In determining whether the erroneous admission of extrinsic offenses is harmless error, we look to whether the error had substantial influence on the jury or whether one is left in “grave doubt.” Hardin v. State, 611 N.E.2d 123, 132 (Ind.1993) (internal citations omitted). See
4. Prosecutor‘s Comments During Closing Argument
The defendant contends that reversible error occurred during the prosecutor‘s closing argument because the prosecutor directly commented on the defendant‘s decision to exercise his constitutional right not to testify. He also argues that the trial court erred in refusing to admonish the jury.
While addressing a separate objection by the defendant at a bench conference during trial, the prosecutor informed the judge and the defendant that he intended to tell the jury there had been no evidence presented to explain why the defendant would confess to a crime he didn‘t commit. The defendant objected and the prosecution responded by stating they were not commenting on the defendant‘s failure to testify, but that they were stating there had been no evidence showing why someone would confess to a crime they did not commit. The trial court, seeking to clarify what the prosecution meant by “evidence,” asked if the prosecution was referring to coercion, to which the prosecution responded, “Yes, [it] could go to duress, anything.” Record at 5566-67. The trial court then allowed the prosecution to proceed, stating, “You can comment that there is no evidence,” but emphasized that the prosecution could not “comment in any fashion on the defendant‘s failure to testify.” Record at 5563-64. The prosecutor continued his closing argument and reminded the jury that he had told them in his opening statement that the defendant confessed to killing the four victims with his shotgun. He stated it was self-evident “that no one freely and voluntarily confesses to a murder unless they‘re guilty.” Record at 5568. He then challenged defense counsel17 to explain why a person would voluntarily confess to a crime they did not commit.
The defense objected and sought a mistrial. The trial court reserved its ruling until it could review the record in its totality. The State continued and proceeded to tell the jury that “nobody will ever confess to a murder freely and voluntarily unless they commit it. That‘s why we have spent so much time, so much effort in explaining that
[A] person charged with the commission of a crime cannot be compelled to testify and is under no duty or obligation to testify. The fact that the defendant did not testify raises no presumption of any kind against him. It shall not be commented upon, referred to, or in any manner considered by the jury in determining the guilt or innocence of the defendant.
Second Supp. Record at 16. After reviewing the record and hearing arguments from both sides, the trial court found that the comments were not improper and denied the defendant‘s request for a mistrial. The defendant then asked for an admonishment, to which the trial court responded that the instructions already given were more relevant than an admonishment, which would only call attention to what the court had just told them to disregard.
When a defendant‘s motion for mistrial is denied, reversible error exists only if that denial subjects the defendant to grave peril. Taylor v. State, 587 N.E.2d 1293, 1299 (Ind.1992). Grave peril is measured by the probable persuasive effect on the jury. Id. On appeal, the trial court‘s decision is reviewed only for an abuse of discretion. Steele v. State, 672 N.E.2d 1348, 1350 (Ind.1996).
We have recently addressed this issue in Moore v. State, 669 N.E.2d 733 (Ind.1996). Analyzing both the historical and contemporary treatment of a prosecutor‘s comments on the defendant‘s failure to testify, we held that: “The Fifth Amendment privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant‘s silence.” Id. at 739. Moore makes clear that direct and indirect references to the defendant‘s failure to testify are not, per se, improper. Id. We therefore look to whether the prosecutor‘s comments in this case could reasonably be interpreted by the jury as an invitation to draw an adverse inference from the defendant‘s silence.
The jury in this case could not reasonably have interpreted the prosecutor‘s comments as suggestion to infer guilt from the defendant‘s silence. While the prosecutor could have been more articulate, it is clear that he was responding to any possible implications that the defendant‘s confession was less than voluntary. His “challenge” to defense counsel was made to illustrate that the only reason a defendant would confess to a crime he did not commit would be because of coercion or duress. He then pointed out that the State presented substantial evidence that the confession was not the result of coercion or duress. Consequently, he was arguing that the confession should be taken by the jury as direct evidence of the defendant‘s guilt. The theme of the State‘s argument was a challenge directed at defense counsel which pointed out the uncontradicted nature of the State‘s evidence of voluntariness and invited defense counsel to explain, in its closing argument, any contrary conclusions.
Because the jury could not have reasonably interpreted the State‘s argument as an impermissible suggestion, the probable persuasive effect on the jury does not rise to the level of grave peril. Therefore, the prosecutor did not commit reversible error and the trial court did not abuse its discretion in refusing to grant a mistrial and refusing to give an admonishment.18
The defendant argues that fundamental and reversible error occurred as the result of three jury instructions given by the trial court at the guilt and penalty phases of the trial.
The defendant first claims that the instruction on accomplice liability was erroneous because no evidence of an accomplice was introduced at trial. This Court, in Swoaks v. State, 519 N.E.2d 149 (Ind.1988), was faced with an analogous situation. The defendant in Swoaks argued the trial court should not have given an accomplice instruction because he was actually charged as a principal. Id. at 151. The Swoaks court found that some evidence showed that an accomplice was also involved in the crime for which the defendant was charged as a principal. Id. We stated:
In view of the fact jurors not totally familiar with the law might have been persuaded that if appellant were only an accomplice he could not be convicted as a principal, it was entirely proper for the trial court to give the instruction that an accomplice could be charged as a principal.
The trial court in this case found that the testimony of two witnesses, Barbara Wright and Bob Bailey, raised the inference that the defendant had been accompanied by one to two other persons on the night of the murder. Furthermore, during his discussion of another issue in his appellate brief, the defendant concedes as much.19 The instruction on accomplice liability was proper.
As to the remaining instructions challenged by the defendant on appeal, the defendant failed to object and, thus, his claim of error was not properly preserved at trial. When an issue is not properly preserved at trial, this Court will reach the merits of the case only if the error is fundamental. Beasley v. State, 643 N.E.2d 346, 348 (Ind.1994). To qualify as fundamental error, the defendant bears the burden of proving that “the error [was] a substantial blatant violation of basic principles rendering the trial unfair to the defendant.” Hart v. State, 578 N.E.2d 336, 337 (Ind.1991).
The defendant contends that the following instruction was fundamental error: “You may also consider the [prior inconsistent] statements as evidence in determining the guilt or innocence of the defendant of the crime charged.” He is correct that, in Modesitt v. State, 578 N.E.2d 649, 654 (Ind.1991), we modified the applicable evidentiary rule, overruling the case upon which this jury instruction was patterned: Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (1975). It would be hard to imagine a situation in which such error could be fundamental. Furthermore, in this case, the defendant has not identified any prior inconsistent statements in the record which may have been affected by this jury instruction.20 We are not persuaded that the alleged error was a substantial blatant violation rendering his trial unfair. His claim of fundamental error fails.
He also contends that the inclusion of an instruction on aggravation and mitigation during the penalty phase was reversible as fundamental error because the instruction provided: “The law provides for the penalty of death upon conviction for the crime of murder under the following circumstances: The defendant ... has committed another murder at any other time.” Record at 49. During the guilt phase, the State had introduced evidence of the murders of Harchand Dhaliwal and Marie Meitzler, the victims of
However, at no point during the penalty phase were the Balovski murders mentioned. Further, we evaluate whether the instructions as a whole sufficiently informed the jury of the murders they were to consider as statutory aggravating circumstances. Accord Beasley, 643 N.E.2d at 348. The penalty phase instructions given by the court and read to the jury before the instruction challenged here included an instruction that the State was seeking the death penalty by alleging the existence of at least one aggravating circumstance:
Count 7: The State of Indiana ... now seeks the death sentence for [the defendant], based on the existence of the following aggravated circumstance:
(1) On or about the 13th day of December, 1990, in the County of Porter, State of Indiana, [the defendant] did murder Harchand Dhaliwal and (a) the defendant ... did commit another murder, to wit: the murder of Marie Meitzler on December 15, 1990.
Count 8: The State of Indiana ... now seeks the death sentence for [the defendant], based on the existence of the following aggravated circumstance:
(1) On or about the 15th day of December, 1990, in the County of Porter, State of Indiana, [the defendant] did murder Marie Meitzler and (a) the defendant ... did commit another murder, to wit: the murder of Harchand Singh Dhaliwal on December 13, 1990.
Second Supp.Record at 35; Record at 215, 216 (emphasis added). In addition, following the final penalty phase instructions, the trial court again read to the jury the amended charging information, which contained the same language as the instruction above. The instructions provided the jury with proper guidance as to which murders they were to consider in finding the presence of statutory aggravating circumstances. No error was committed.
6. Insufficient Evidence of Statutory Aggravator for the Death Penalty
Following the defendant‘s conviction for murder and felony murder, the penalty phase began and the State advised the trial court that it intended to rest without offering any new evidence, informing the jury that:
The court instructed you that you can consider all of the evidence in the sentencing phase. All the evidence that came in during the trial phase. The State will not submit any evidence in the penalty phase. We are going to rely upon all of the evidence that you have already received in making your determination as to whether or not the State has proved beyond a reasonable doubt one of those aggravating factors when this case is concluded.
Record at 5700. The defendant does not contend that, considering the totality of evidence in the guilt phase, the evidence of aggravating circumstances was insufficient. Rather, the defendant contends only that, because the State failed to offer any evidence of a statutory aggravating circumstance at the penalty phase, it failed to prove the existence of an aggravator beyond a reasonable doubt as required by
If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing.... The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing.
7. Admissibility of Defendant‘s Statements
The defendant contends that his confession should not have been admitted into evidence because it was the product of both an illegal arrest and an unreasonable delay in taking him before a magistrate, violating the Fourth Amendment to the United States Constitution and
The defendant was charged in Porter County with the December 13, 1990, murder of Harchand Dhaliwal, the December 15, 1990, murder of Marie Meitzler. He was also charged in Lake County with the December 19, 1990, murders of Eli and George Balovski. These four separate murder charges all arose following the defendant‘s arrest on January 28, 1991, and confession on January 30, 1991. See supra note 15. Thus, the facts and circumstances of his arrest and subsequent confession at issue in this appeal are identical to the circumstances we addressed in the defendant‘s separate direct appeal for the Balovski murders. See Peterson v. State, 674 N.E.2d 528, 535-39 (Ind.1996), petition for cert. filed (Oct. 14, 1997). We rejected the defendant‘s claims in Peterson and he presents no new argument or factual allegations as to these issues. Therefore, we find that, for purposes of his federal Fourth Amendment claim, the trial court properly denied the defendant‘s motion to suppress his confession. Id. at 539.
Separate and apart from the federal Fourth Amendment analysis, the Indiana Constitution provides an independent prohibition against unreasonable searches and seizures under
The defendant also claims that his arrest and subsequent delay were unreasonable under
8. Search and Seizure
The defendant contends that the trial court erred in finding that he could not challenge the search of his mother‘s apartment23 and that the shotgun seized during the search was in plain view and therefore admissible.
To challenge a search as unconstitutional, a defendant must have a legitimate expectation of privacy in that which is searched. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425, 58 L.Ed.2d 387, 394 (1978); Livingston v. State, 542 N.E.2d 192, 194 (Ind.1989). Because the arguments and facts of the search and seizure in this Porter
9. Appropriateness of the Death Sentence
Under the
In the penalty phase, the evidence regarding the offender25 included testimony that the defendant was generous with friends, driving one friend to and from work weekly because the friend did not have any transportation. The defendant was described as being non-violent and not abusive in any way. He had lost his sixth-month-old child a year before the murders occurred, learning of the child‘s impending death while attending his grandfather‘s funeral, a man whom he regarded as a father figure. The mother of his children testified that they had been dating since high school and that he was never violent towards her or anyone else unless they provoked him. He also helped out her family whenever needed. His own mother testified that she and the defendant had an extremely close relationship. She told the jury that he always set a good example for the rest of her children and that he was a good student, graduating from high school and then going into the Marine Corps. However, the record also contains the mother‘s testimony at the suppression hearing that she often searched the defendant‘s bedroom looking for drugs the defendant may have hidden and that he was AWOL from the Marines when she required that he vacate her apartment the night before he was arrested.
These murders were brutally committed. Using a sawed-off shotgun, the defendant killed Marie Meitzler while she was working and removed $467.00 from the cash register.
Considering both the offender and the offense in this case, we find that the penalty is appropriate.
Conclusion
The trial court is affirmed.
SHEPARD, C.J., and SELBY and BOEHM, JJ., concur.
SULLIVAN, J., concurs in part and concurs in result with separate opinion.
SULLIVAN, Justice, concurring in part and concurring in result.
I concur in sections 1 through 8 of the majority opinion.
In this appeal, the defendant does not challenge the constitutionality or the appropriateness of his death sentence or the procedures (except to the extent discussed in issues 5 and 6 above) by which it was imposed. Nevertheless, a death sentence cannot be imposed in this state “until it has been reviewed by this Court and found to comport with the laws of this State and the principles of our state and federal constitutions.” Judy v. State, 275 Ind. 145, 416 N.E.2d 95, 102 (1981).
This Court has regularly upheld the constitutionality of the Indiana death penalty statute, including challenges to the version of the statute in effect at the time these crimes were committed.1 See Peterson v. State, 674 N.E.2d 528 (Ind.1996); Lambert v. State, 643 N.E.2d 349 (Ind.1994), aff‘d on reh‘g, 675 N.E.2d 1060 (Ind.1996), cert. denied — U.S. —, 117 S.Ct. 2417, 138 L.Ed.2d 181 (1997); Bivins v. State, 642 N.E.2d 928 (Ind.1994); Roche v. State, 596 N.E.2d 896 (Ind.1992). I find no basis not to reaffirm those decisions.
As to the appropriateness of the death penalty in this case, the statute guides this Court‘s review by setting forth standards governing imposition of death sentences. Following completion of the guilt phase of the trial and the rendering of the jury‘s verdict, the trial court reconvenes for the penalty phase. Before a death sentence can be imposed, our death penalty statute requires the State to prove beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1) through (b)(12) of the statute.
To prove the existence of these aggravating circumstances at the penalty phase of the trial, the State relied upon the evidence from the earlier guilt phase of the trial (with respect to which the jury had found the defendant guilty of the two murders and the two robberies). I join the majority in rejecting an attack on the sufficiency of this evidence in section 6 of this opinion.
The death penalty statute requires that any mitigating circumstances be weighed against any properly proven aggravating circumstances. The majority opinion accurately describes the evidence of mitigation here and I repeat it in the interest of completeness:
In the penalty phase, the evidence regarding the offender25 included testimony that the defendant was generous with friends, driving one friend to and from work weekly because the friend did not have any transportation. The defendant was described as being non-violent and not abusive in any way. He had lost his sixth-month-old child a year before the murders occurred, learning of the child‘s impending death while attending his grandfather‘s funeral, a man whom he regarded as a father figure. The mother of his children testified that they had been dating since high school and that he was never violent towards her or anyone else unless they pro-
The jury subsequently returned a unanimous recommendation that a sentence of death be imposed.
Once the jury has made its recommendation, the jury is dismissed, and the trial court has the duty of making the final sentencing determination. First, the trial court must find that the State has proved beyond a reasonable doubt that at least one of the aggravating circumstances listed in the death penalty statute exists.
In imposing the death sentence, the trial court found that the State proved beyond a reasonable doubt the charged aggravating circumstances listed in the death penalty statute—that the defendant had intentionally committed the murder of Marie Meitzler and of Harchand Dhaliwal while committing or attempting to commit robbery and that the defendant had committed multiple murders. The record and the law supports these findings.
The trial court found no mitigating circumstances to exist. My own review of the record leads me to conclude (as it did this Court in the other Peterson case) that there were mitigating circumstances—defendant‘s difficult childhood, his emotional disturbance, his graduation from high school, his service in the Marines, his age, and his caring relationship with his child and her mother. Cf. Peterson, 674 N.E.2d at 543. As this Court did in the other Peterson case, I find the mitigating weight warranted for each of these considerations to be in the low range, individually and cumulatively.
As required by our death penalty statute, the trial court specifically found that the aggravating circumstances outweighed the mitigating circumstances. The trial court also gave consideration to the jury‘s recommendation. The trial court imposed the sentence of death.
Based on my review of the record and the law, I agree that the State has proven beyond a reasonable doubt aggravating circumstances authorized by our death penalty statute and that the mitigating circumstances that exist are outweighed by the aggravating circumstances. I conclude that the death
No. 82S00-9408-DP-741.
Supreme Court of Indiana.
Dec. 31, 1997.
Rehearing Denied March 23, 1998.