Brewer v. State

BREWER, Defendant-Appellant, James Indiana, Plaintiff-Appellee.

STATE 119.

No. 678 S

Supreme Court of Indiana.

March

PRENTICE, Justice. (Appellant)

Defendant was convicted in a Murder, by jury trial in that he knowing- ly or intentionally Stephen killed Skirpan. (Burns Ind. Code 1979). 35-42-1-1 Fol- lowing a sentencing hearing thereafter held before the jury, same it was determined that said murder was committed by De- fendant committing while or attempting to commit a robbery, and a sentence of death was recommended and thereafter decreed by the (Burns court. Ind.Code 35-50-2-9 .1979). appeal challenges

This direct both the legality of the defendant’s conviction and legality of the sentence presents and following issues: (1) Whether the verdict was sustained sufficient evidence.

(2) Whether the trial court erred in ad- mitting evidence of other criminal activity by the defendant.

(3) Whether our death sentence statute violates constitutional proscriptions following respects: (A) I, transgression As a of Article Section 18 of the Constitution of Indiana providing penal code shall be principles founded on the of reformation justice. and not vindictive (B) failing provide parame- ters of the review of the sentence re- quired by this Court.

(C) imposition As permitting penalty against death one convicted un- theory liability, der a of vicarious hence allowing punishment is cruel and unusual, proportioned and not to the crime.

(4) finding aggravat- Whether the of an ing circumstance, prerequisite impo- to the sentence, sition of the death was sustained by sufficient evidence. Kramer, Point, (5) charging requirements

Dennis R. Crown for de- Whether complied of the death statute were fendant-appellant. with. Pearson, Linley Indiana, Atty. E. Gen. of Ward, (6) Quigley, Depu-

Thomas D. Palmer K. denying Whether the court erred in Gen., ty Attys. Indianapolis, plaintiff- Defendant’s motion for a continuance of appellee. sentencing hearing. Mr. rights pushed Skirpan Whether defendant’s aside and drew a hand- fired, compulsory gun. Simultaneously, self-incrimination were a shot was and

against sentencing hearing. Stephen floor. Brooks then held violated at the fell to the Spirpan bay gun, Mr. with his while the at (8) Whether the defendant was denied defendant, who was also armed with a the effective assistance counsel at the handgun, stepped drawn into house. hearing. Both Brooks and the defendant entered the (9) Whether the defendant had been de- house. report psychologist nied access The defendant Brooks held and Mr. pursuant had examined who Skirpan Joyce gunpoint Mrs. sponte order of the court made to a sua money. Skirpan demanded Mrs. said that jury’s return of the following the bedroom, money was in the and the penalty recommendation. Meanwhile, went look for defendant it. the trial court erred in ad- Whether money Skirpan Brooks took from Mr. and during vising jury, deliberations follow- her, Skirpan’s person, searched Mrs. herded sentencing hearing, concerning pa- ing the Skirpan bathroom, Mr. Joyce and into the prison concomitant to a possibilities role closed the door and ordered them to remain term. there for ten minutes. (11) Defendant’s death sentence Whether After approximately one minute inside application is an unconstitutional bathroom, Skirpans Joyce and statute, as excessive and irra- emerged and found that their assailants tional, unusual, cruel and when com- hence departed. episode had The entire had last- sixty (60) pared years with the sentence ed Skirpan seven to ten minutes. Mrs. imprisonment accomplice, awarded to the neighbor’s help, rushed to a house for Brooks. did, depart as she she saw a dark blue sedan Joyce from the area. summoned an ambu- ISSUE I lance, arrived, Stephen but when it was dead. 4, In the late afternoon of December 1977, Stephen Skirpan, the decedent a The defendant’s claim of insufficiency of man, home with

young parents, was at his is addressed to the evidence absence of Skirpan, cousin, Mr. and Mrs. John and his medical evidence of the cause Stephen’s Joyce Matthews. At approximately p. 5:00 death, alleged plac- absence of evidence m., the rang, front door bell and he re- ing him at the scene of the crime and the' sponded. Skirpan Mr. was then summoned absence of evidence identifying him as the decedent, by the who said that two detec- Stephen. one who shot speak tives wanted to with him. The call- Circumstantial may evidence alone well-dressed, ers were youthful looking two conviction, support a long so as a reasonable men, black the defendant and Kenneth man could find each element of the crime They doorway Brooks. stood in the therefrom, beyond a reasonable doubt. displayed badge they and announced that State, (1980) Ind., Jackson v. 402 N.E.2d investigating were a traffic accident 947; 42, Ruetz v. 268 Ind. Skirpan which one of the automobiles had 152, denied, N.E.2d cert. 439 U.S. Skirpan been involved. Mr. advised the 58 L.Ed.2d 245. parked callers that their automobiles were house, in front of the had been there all day respect With to the evidence they death, and that could look at them. One of the cause of decedent’s we have responded they callers had a search heretofore testimony held that medical warrant, Skirpan and Mr. prerequisite establishing asked to see it. not a the cause that, State, With who standing of death in a murder case. Hall v. 823; began behind Brooks to move and ex- 269 Ind. 378 N.E.2d Hudson claimed, up!” “This is a hold Brooks 265 Ind. 354 N.E.2d 164. ther, Stephen police attempted fell the floor when the simultaneously to arrest handgun Brooks, at firing range. with the close were defendant He was not moved and was found to be travelling together, and the defendant shot shortly dead when examined thereafter. at them. bullet, autopsy performed

An and a Notwithstanding discrepancies some which the front left had entered side of testimony, the identification which were Stephen’s abdomen and travelled down- consider, forego- matters for the ward, point just was removed from above ing related circumstantial evidence was am- evidence, right hip. From such a rea- ple permit person a reasonable to con- conclude, person beyond sonable could doubt, clude, beyond a reasonable that the doubt, Stephen died of a reasonable defendant was the assailant with Kenneth bullet wound. robbery Brooks at the time of the and mur- regard With to Defendant’s contention der. placing that there was insufficient evidence final submission with re- defendant’s crime, him the scene of the evidence gard sufficiency of the evidence is following: revealed the actually that there was no evidence that he The decedent was shot and killed in his Stephen Skirpan. conflicting shot While during home men by one of two the com- inferences as to whether was Brooks or robbery at approximately mission of a 5:00 Stephen who shot can be the defendant p. m. One of the assailants was identified although drawn from the evidence and eyewitnesses as Kenneth Brooks two may there have been some conflicts be- who Admittedly, were also victims. description Skirpan’s tween Mr. of the as- identify witnesses could not the defendant stature, sailant and the defendant’s actual assailant, as the testimony other their con- we find the conflict to be immaterial. Un- cerning height sound of the (Burns 1979), der Ind.Code 35-41-2-4 an § voice of the unidentified assailant did not offense is committed whenever one inten- match such characteristics aids, tionally knowingly induces or causes and defense witnesses testified that the de- that offense to be committed. We have fendant was elsewhere at the time the held in similar circumstances that concerted Nevertheless, crime was committed. thére participation action or in a crime is suffi- testimony also that another armed rob- See, g., cient e. purpose. for this Webb v. bery approximately p. had occurred at 4:30 State, 554, 1016; (1977)266 Ind. 364 N.E.2d and, day, m. the same at approximately 7:30 300, 262 Ind. Simmons v. p. day, m. of the same a series of three fully N.E.2d 368. The evidence this case apart- robberies force occurred at had an supports a determination that the defend- ment house. The defendant and Kenneth participated ant in the commission of the by eyewitnesses Brooks were identified as (This crime at issue treated further bar. robberies, perpetrated the ones who all four IV). under Issue Gary, all of which occurred which was Skirpan the scene residence. Addi- II ISSUE tionally, Gary, approximately also in at 6:30 objections, Over the defendant’s p. day, m. that the defendant and Kenneth permitted trial court the introduction of together Brooks were in a seen bail-bond disclosing participation evidence office. aforementioned other four robberies. Al money robbery

Part of the stolen in the though not admissible to show a defend Skirpans of the was in bicentennial propensity gener com- ant’s to commit crimes in coins, they al, admissible, memorative which prior had been sav- evidence of crimes is if ing. arrested, case, evening, When later that it is relevant to some issue in the most dollars, motive, intent, two silver commonly knowledge, plan, two half dollars and two quarters, issue, identity credibility. all of the commemorative Lawrence v. 306, 830, person. (1972) were found on Defendant’s Fur- 259 Ind. 286 N.E.2d Al- preme of the United States. see Underhill’s cited. Also cases there Court, Georgia, in Furman v. Evidence, (6th though at 595 ed. § Criminal 2726, 33 92 S.Ct. 408 U.S. 1973). unnecessary it to deter- L.Ed.2d found case, the evidence ob In the instant constitutionality of death sen- mine the relevant, in that it had a jected to was se, separate opinions of the per tences identify the defendant tendency to logical length with the issue and Justices dealt at at the time accomplice with Brooks as the diametrically opposed conclu- arrived robbery and murder. He Skirpan of the however, majority, per found no sions. The Brooks, before company of both was in the leaving the unmistakable proscription, se proximi and in close after the incident possible, under the inference that thereto, distance. Ad in time and ty both amendment, states to enact and were a number of similari ditionally, there authorizing imposi- statutes administer by which all the operandi ties in the modus penalty. of the death tion robberies, Skirpans, including the one holding and response to the Court’s effected, evidencing thus were Furman, states, number of the opinions persons. by the same were committed Indiana, penalty including whose death passed constitutional mus statutes had not III juries they granted to the un ter because that our contends The defendant impose or withhold trammeled discretion statute, Ind.Code 35-50- penalty where it the death in those cases 1979), which he has been (Burns 2—9 under statute, statutes was authorized enacted unconstitutional, death, per sentenced to years replace the deficient ones. Four se, derogation proscrip being later, three death sen the Court affirmed infliction of “cruel and against tion statutes, thus imposed tences under such Eighth Amend punishment” unusual leaving nothing to inference the issue. of the United ment Constitution Gregg Georgia, 428 U.S. Although no claim has been made States. 859; Flori 49 L.Ed.2d Proffitt v. I, companion provision under the of Article da, 2960, (1976) 96 49 428 U.S. S.Ct. constitution, appro it is 16 of our state Sec. 913; Texas, (1976) Jurek v. 428 L.Ed.2d regard assignment this as a priate that we L.Ed.2d U.S. challenge both the Federal under State Constitutions. III(A) consistently held that the This Court has that the death Having determined I, Article penalty does not offend Sec. se, per penalty is not unconstitutional 64, 74, v. 259 Ind. 16. Adams being derogation Eighth of either the 425, 430, (DeBruler, J. and Pren- 271 N.E.2d of the Amendment to the Constitution tice, dissenting) and cases there cited. J. I, Article 16 of the United or Sec. States Indiana, of we now turn to a Defendant’s claim under Constitution regard With to Statute, Amendment, the Indiana Ind. governed we are consideration of Eighth (Burns 1979),1 light 35-50-2-9 opinions Su- Code by § decisions 1. Ind.Code 35-50-2-9 murder the rest of the ence of at least one section. son is convicted prove circumstances of at least one stances (a) The state beyond alleged. by alleging, In the listed in subsection charging may reasonable sentencing hearing after a ^[1] of the seek on a murder, ^[1] (Bums 1979)provides: instrument, a death sentence for aggravating circum- page of the doubt the existence the state separate aggravating (b) of this the exist- must from per- intentionally killing the victim while commit- napping, rape, or child the intent to lows: ting lying in wait. (b) (1) (2) (3) unlawful detonation of an or The defendant committed The defendant molesting, The defendant committed The attempting to commit aggravating circumstances are as fol- injure person criminal deviate robbery. committed the murder or damage arson, burglary, explosive with the murder the murder conduct, property. kid- by by by tence, Supreme regardless of the Court of of his wishes in the Pronouncements mat- emanating subsequent to the United States ter. Georgia, supra.

Furman v. “Although Judy we feel Steven can waive very recently We have considered these any and has waived review of issue that Judy matters in handed down Jan- might be raised with reference to his (Ind.) 416 N.E.2d 95. It was uary convictions, we believe that the death was the first unfortunate that that case imposed anyone sentence cannot be on arrive in this Court under the relevant stat- it has been State until reviewed ute, the condemned man insisted because comport this Court and found to with the upon waiving appellate rights, his thus de- laws of this and the principles State priving us of the benefits flow our and Federal State Constitutions.” noted, adversary proceedings. It should be Judy, supra. however, although recognized permit Judy put To to be to death upon a right right appeal waive his Judy’s finding permissible that his sentence was conviction, recognized we also that we were statute, legislative regard under mandate to review his sen- under our but without tions hiring motivated ment ing der was murder, life other murder. has been convicted of that other murder. be considered under this acting extreme mental or emotional disturbance when he committed the murder. the tial domination of another sented murder committed in a sentencing hearing; court, plea, conduct to the stantially impaired as a result of mental disease defendant’s consideration. or defect or of intoxication. sider all the evidence introduced at the (6) (4) (5) (7) The defendant has been convicted of an- (9) The defendant was under a sentence of (c) (8) The defendant has committed another (2) The defendant was under the influence of (6) (7) Any (5) The defendant acted under the substan- (4) (d) prior in the course of criminality hearing. imprisonment jury the court employee, The defendant committed The victim of The defendant who committed the mur- The defendant has no officer, The defendant was an The victim was a The defendant’s If the defendant was convicted of murder another or the in the course of to, criminal conduct. hired to kill. trial, the defendant’s conduct. mitigating other participation judgment an act the victim and either person to kill. the alone of his conduct or to conform his time, fireman, requirements circumstances jury, jury at the time of the murder. by duty shall regardless circumstances that if the another duty. was entered on a capacity shall reconvene for the was to the or the (i) murder was participant judge, section conduct person. the victim was act- (ii) significant history trial of law was sub- accomplice relatively performed court, the murder was person, or law-enforce- appropriate the murder are as follows: of whether he to the in, appreciate may a correc- sentenc- and the or con- minor. while guilty may in a con- trial for The defendant evidence vating The court shall make cumstance or circumstances. exist are dence relevant to: sonable doubt that at least one recommend to the court whether the death ommend the death penalty ined stage the court shall on the same standards that the quired and the ommendation, only if it finds: as if the recommendation after reasonable which shall be heard under court shall sentence the defendant to death vating circumstances cumstance or circumstances. the all other cases. The death sentence review sonable doubt that at least one ed its review. executed until the exist are (e) (1) (2) (2) Any (1) (f) (1) (g) (h) (2) jury’s Supreme sentence, If a The If the That the state has That subsection That the state has That If the A death circumstances to consider. The court is not bound by should be jury hearing presented outweighed by recommendation. outweighed aggravating any mitigating any mitigating the hearing hearing Court, proceedings, together after is unable to sentence is may discharge Supreme (c) mitigating had been imposed. Supreme considering present at the shall be of this section. is to the court exists; exists; by sentence by jury, circumstances proved beyond proved beyond final the Court. The the subject agree sentencing hearing. circumstances circumstances to Court any circumstances list- given priority and jury rules only determination of aggravating the ^{[1] [1]} shall additional evi- on a sentence deliberations, to automatic has of the and court alone. adopted by if it may jury’s jury with new alone, be based may complet- proceed was re- alleged; review, aggra- aggra- not be a rea- a rea- finds; shall over rec- rec- cir- cir- the statute, would have been the validity English the of the tradition of and American Ju- beyond comprehension. Ac- an aberration risprudence. We have reconsidered our a study only to cordingly proceeded the light conclusions in of Defendant’s ar- of his propriety sentence under our of the authorities, guments cogent and but no ar- constitutionality but of the of statute also gument authority or present- has been here statute, aspects. of its From that the in all fully considered, ed that was not albeit sua pursued, we study, diligently concluded that Judy review, sponte, and we are procedures our our statute and thereunder convinced that our in decision that case was and and under related statutes court rules correct. in compli- are consistent with and are full in Judy, supra, As ance with the of the stated pronouncements Su- “We note that Gregg preme Court the States of United in present our very statute is to similar the Georgia, Florida, supra, supra, v. Proffitt v. statutes cases, under consideration in those * * * * * * Texas, supra. and Jurek (Gregg, Proffitt) Jurek and and, fact, in is vigor- nearly identical subjected We have now been to a to the Flori- in challenge keeping upheld ous debate with in Proffitt.” Our task and da statute2 (b) upheld 2. The statute in Proffitt was Fla.Stat. mitigating Whether sufficient circum- 1976-1977), (Supp. pro- (6) Ann. 921.141 which stances as enumerated in subsection exist outweigh aggravating vided: which the circumstances exist; found to and (1) Separate proceedings penalty. on issue of (c) considerations, Based on —Upon adjudication guilt these whether or of conviction of felony, the defendant should be prisonment capital sentenced to life im- the court shall defendant conduct a determine whether sentencing proceeding or death. separate to (3) Findings support of of sentences death. defendant should be —Notwithstanding imprisonment the recommendation of a to or life as au- sentenced death majority jury, court, weighing proceeding after thorized conducted s. 775.082. The shall be aggravating mitigating circumstances, the shall death, death, and judge trial before trial imprisonment If, enter jury a sentence of life practicable. through impos- or as soon as imposes sibility inability, but if the court a sentence of or the trial unable writing findings it shall set forth in hearing its penalty, for on the issue of reconvene upon accused, having which the sentence death is based guilt as to determined the of the the facts: judge may special juror trial summon a (a) aggravating That jurors provided sufficient circumstanc- chapter 913 to determine (5), exist imposition es as enumerated in penalty. subsection and issue the the trial If (b) mitigating waived, That there are insufficient cir- been or it has the defend- (6) pleaded guilty, cumstances as enumerated outweigh proceeding subsection ant aggravating circumstances. jury impaneled shall be conducted before a imposes purpose, In each case in which the court that In unless waived the defendant. sentence, proceeding, may death shall be of tions determination of the presented court evidence supported by specific any findings written as to matter the court deems relevant upon fact based the circumstances in to matters subsec- sentence the and defendant shall include (6) (5) any relating and records of the If the the sentencing proceedings. mitigating trial and the circumstances enumerated in sub- findings requiring (6). Any court does not make the sections such evidence which sentence, impose shall probative may the court be der the the court sentence deems to have value imprisonment received, life regardless admissibility of 082. in accordance with s. 775.- of its un- exclusionary evidence, provided rules of judgment Review opportunity defendant is sentence.—The accorded a fair any judgment hearsay However, rebut conviction and sentence of death statements. subject shall be to automatic subsection shall not the introduction of review be construed to authorize Supreme sixty (60) Florida within evidence secured days by violation of after certification the the court Constitution of the United record, or of the entire the States the unless time is extended Constitution of State Flori- of period thirty an da. The state shall be against for (30) days by additional not to exceed and the defendant or his counsel permitted Supreme present good argument Court for cause for or by Supreme shown. Such review sentence death. Court (2) Advisory priority by shall all other jury. have over cases and sentence the —After hearing evidence, promul- all shall be heard accordance with rules shall deliber- gated by Supreme advisory ate and render an Court. sentence to the court, (5) Aggravating Aggravat- following based matters: circumstances.— (a)Whether ing lowing: aggravating circumstances shall be limited to fol- sufficient circum- stances exist (5); as enumerated in subsection determining whether our statute meets (8) The completion, prior carrying out is, therefore, the current standards mini- sentence, of an automatic expedit- mal. ed review imposed of the by sentence comparative analysis A of the Florida Supreme Court of the State. statute and our own reveals that under In holding that the death penalty is not both, the by determination is made per unconstitutional, se the Court said in judge require and the following, as prereq- Gregg Georgia, supra : imposition uisites to the and execution of a “We hold that the is not a sentence of death: punishment form of may never be (1) A conviction of murder. imposed, regardless of the circumstances (2) A hearing purposes of determin- offense, of the regardless of the character ing the sentence to imposed, be sepa- offender, of the regardless rate from the trial at which the issue procedure followed in reaching the deci- guilt was determined. impose sion to it.” 428 at U.S. (3) jury trials, In finding, a by the jury, 49 L.Ed.2d at 883. of at (1) least one of the aggravating Which is way but another of saying that circumstances enumerated in the stat- the penalty may extracted, if the circum-

ute. stances of the offense and the character of (4) jury trials, In finding, by the jury, the offender both warrant proce- and if the that mitigating circumstances, any, if dures making followed in the determination are outweighed by the aggravating are such reasonably to assure that it was circumstances. not done arbitrarily or capriciously. (5) trials, In recommendation jury, as to whether or not the cases, Gregg, all three Proffitt and death penalty imposed. should be Jurek, the Court the pertinent examined determining A statutes with a view to finding by they the trial if court of at least criteria; one aggravating circum- met such and in each case it found stances enumerated in the did, statute. although by varying means. case, In the Florida specifically (7) A finding by the trial court that miti- presence eight noted the gating circumstances, attributes any, if are out- weighed being hereinbefore set forth as common to circum- Indiana, stances. both Florida concluded: (a) capital felony (h)The capital felony especially The was committed hei- person nous, atrocious, imprisonment. under sentence of or cruel. (b) previously (6) Mitigating Mitigating The defendant was convicted circumstances.— capital felony felony following: of another or of a involv- circumstances shall be the ing (a) person. significant history the use or threat of violence to the The defendant has no (c) knowingly great prior activity. The defendant created a criminal many persons. (b) capital felony risk of death to The was committed while (d) felony capital The was committed while the defendant was under the influence of ex- engaged, the defendant was plice, or was an accom- treme mental or emotional disturbance. of, (c) attempt participant in the commission or an The victim was a in the de- commit, flight committing attempt- or after or fendant’s conduct or consented to the act. commit, any arson, robbery, rape, (d) accomplice bur- The defendant was an glary, kidnapping, piracy capital felony person or aircraft or the un- committed another throwing, placing, discharging participation relatively lawful and his minor. (e) destructive device or bomb. The defendant acted under extreme du- (e) capital felony The was committed for the ress or under the substantial domination of purpose avoiding preventing person. a lawful ar- another effecting escape custody. (f) capacity an appreci- rest or The of the defendant to (f) capital felony pe- The criminality was committed for ate the of his conduct or to conform cuniary gain. requirements his conduct to the of law was (g) capital felony substantially impaired. was committed to dis- rupt (g) or hinder the gov- age lawful exercise of of the defendant at the time ernmental function or the enforcement of the crime. laws. 898 procedures, special jury their face these a sentencing,

“On like for the under Georgia, appear those used in to meet the certain finding circumstances. The of enu- constitutional deficiencies in identified merated aggravating circumstances must sentencing authority Furman. The in beyond Indiana, a reasonable doubt in Florida, judge, the trial is directed to while, Florida, no proof standard of weigh eight aggravating against factors specified. mitigating seven factors to determine permits Florida the recommendation of a penalty whether the death shall be im- death sentence by majority a mere requires This posed. determination the jury; while our requires unanimity statute judge trial to focus on the circumstances recommendation, if any. Notwith- of the crime and the character of the standing may proceed that the court with- must, He individual defendant. inter recommendation, out a if the is unable alia, the consider whether defendant has and, agree notwithstanding that it is not record, prior a whether criminal the de- recommendation, bound if forthcom- fendant acted under duress or under the ing, we are of opinion require- that the influence of extreme mental or emotional ment of the Indiana statute cannot but disturbance, whether defendant’s role have a mollifying effect. in the crime was that of a minor accom- plice, youth whether the defendant’s The Indiana statute affirmatively pro- argues in favor of more lenient sen- vides that upon there be no limitation might imposed. tence than otherwise be mitigating circumstances to be taken into judge must The trial also determine sentence, account in determining the whether the crime was committed Act, however, whereas the Florida has been course of one of several enumerated felo- interpreted being as without limitation with nies, pecu- whether it was committed for respect mitigating circumstances. See gain, niary whether it was committed to 586, 606, Lockett v. Ohio 438 U.S. 98 escape assist in an custody or to 2954, 2965-66, 973, S.Ct. 57 L.Ed.2d 991 arrest, prevent a lawful and whether the Proffitt, 8, (citing at 250 n. 96 U.S. S.Ct. heinous, atrocious, especially crime was 8, 8). at 2965-66 n. 49 L.Ed.2d at 922 n. questions, cruel. To answer these which permits The Florida statute the relaxa- 252, are not unlike U.S. S.Ct. [428 tion of the rules of evidence at the sentenc- by Georgia those considered sen- 2966] but, ing hearing, inasmuch as this could 197, Gregg Georgia tencing jury, see presentation facilitate the of evidence the sen- L.Ed.2d S.Ct. the State as well as focus tencing judge must on the individu- regard do not the adherence to customary of each homicide and al circumstances evidentiary having as any impact rules ad- each defendant.” U.S. 96 S.Ct. [428 verse to fundamental fairness. 2966], 49 L.Ed.2d proce- capital-sentencing “The Florida perceive significant Neither do we 253, 96 dures thus seek to U.S. [428 respect variance with to the time limitation will assure that the death 2967] placed upon Supreme for review Court imposed arbitrary capri- not be in an upon of Florida the Supreme but not cious manner.” U.S. 96 S.Ct. [428 Indiana. Gregg, supra, both 2967],49 L.Ed.2d 923. Proffitt, supra, expressed very the Court regard requirement favorable Looking now to the variances in the Flor- supreme review court of the con- statutes, ida and Indiana we find that However, cerned state. in neither did it respects, most Indiana is more restrictive comment upon time limitations or even applicability of death sentences than is requirement requires that that such reviews be Florida. Indiana when the guilt expedited. giving by jury, priority issue was tried to such hearing altogether appropriate. must matters is How- jury, be before same ever, permitted whereas matter can be to domi- permits Florida no impaneling Court; ble to that the Court of Appeals exclusion all others. the court to the nate given such a degree priority imposed upon under will review sentences con- The must, therefore, rest in statutory mandate appealable victions to the Court of Ap- Any of the court. oth- the sound discretion peals. judicial a denial of our

er view would be Scope “2. of Review. authority responsibility. (1) reviewing The will court not revise Judy legislative We found in that our a sentence statute except authorized procedural comports scheme with the stan- manifestly where such sentence is unrea- guidelines provided Gregg, dards and for in light sonable in of the nature of the of- appellate and Proffitt at the trial and lev- fense and the character of the offender. Gregg, Supreme els. In the United States (2) A manifestly sentence is not unrea- approvingly requirement Court wrote sonable unless no person reasonable could sentencing authority specify appropriate find such sentence par- upon reaching factors relied in its decision ticular and offender offense for which referring safeguard to it as “... a further imposed.” such sentence was meaningful appellate review ... to in- general sentencing Indiana’s hearing imposed sure that death sentences are not require statutes in all cases where there are in a freakish manner.’' 428 capriciously or present circumstances that the 195, 96 49 L.Ed.2d at U.S. sentencing judge include a statement of the required 886-87. This is also under selecting reasons for the sentence he impos- pointed Judy, As we out in Florida statute. enactment, es. This Ind.Code § .35-4.1-4-3 though provision specifically even this is not (Burns 35-50-1A-3, (1979Repl.)) provides § statute, required it is our death as follows: sentencing and followed in the of all of committing “Sentencing felonies in hearing felony those convicted of cases.—Be- person of Indiana. fore sentencing felony State for a hearing court must conduct a to consider Article 4 of our Indiana Constitution the facts and circumstances relevant to provides: Supreme “The Court shall have in sentencing. person is entitled to sub- power appeals all of criminal cases poena and call witnesses and otherwise to questions all law and to review review present information in his own behalf. imposed.” the sentence And un- and revise make a record of the The court shall rules der our Indiana Constitution and hearing, including: Court, adopted by jurisdiction exclusive (1) transcript hearing; A appeals judgments of criminal or sen- death, imprisonment life imposing tences (2) report; copy presentence A greater a minimum sentence of than ten this Court. Ind.R.

years, reposed (3) aggravating cir- If the court finds 4(A)(7). App.P. mitigating circumstanc- cumstances or es, appellate review of a statement of the court’s reasons Our rules for 1, 1978, sentences, January impos- are as selecting effective the sentence that follows: es.” “1. Availability Judy requirement —Court. We found (1) Appellate review of sentence authority his rea- sentencing that the state

imposed con- on criminal defendant writing in the facilitated sons in record victed after the effective date of this rule by this meaningful appellate review Court provides. rule is available as this the trial court’s decision.

(2) Florida, Appellate review of sentences un- Judy, supra; supra; Proffitt v. 1304; may Ind., der this rule not be initiated Page v. N.E.2d State. Brandon v. 264 Ind. 756; State, (1971) 257 Love v. Ind. Supreme will N.E.2d review sen- 57, 272 N.E.2d 456. This statute was de- imposed tences appeala- convictions His supported courts to the claim is not by cogent argu- to restrict trial rational signed ment, perceive to impose, any interplay and fail en- exercise of their discretion provisions. between these constitutional It and hanced or diminished sentences to facil- noted, however, should here that we such sentences. Death itate our review of I, previously have held that Article Sec. 18 for murder penalty is an enhanced commit- did not proscribe penalties. death Adams v. designated circumstances. ted under certain 64, 425, Ind. 259 271 N.E.2d (Burns Repl.) 1979 Ind.Code 35-50-1A-3 § (DeBruler, Prentice, J. and dissenting); J. statutory constitutional and all other Judy, supra. out judicial requirements set above are and death sentence is to be applicable when a III(B) with in complied case imposed and were the Defendant also contends that our before us. statute, (Burns 1979) Ind.Code 35-50-2-9 § to us by has been out the pointed As constitutionally infirm because: “[I]t statutory procedural and our complete does not review of the provide exactly any like those in of scheme is not by Supreme trial court’s decision the penalty proce- death those states whose premised upon the argument is Court.” His by approved the United dures have been specifications this of omission from Statute However, Supreme as that States Court. parameters our review. to determine the of Gregg, supra: in “We Court stated do similarity noted of previously We have the suggest only that the intend to above de- procedures to those of our statute and our permissible procedures scribed would be un- Florida, su Florida in Proffitt v. approved sentencing system der Furman that pra. also observed that Ind.Code We have along general constructed these lines would (Burns 1979) requires the 35-50-1A-3 Furman, inevitably concerns of satisfy the findings. make sentencing judge to written system for each must be examined distinct Judy, opinion, In and in this we have supra, an 428 on individual basis.” U.S. 96 Constitution, our stat pointed out that our Thus, although utes, provide S.Ct. L.Ed.2d our court rules re and procedures courts, the there are some variances in of fixed trial penalties by view all penalty. and the death A review prescribed including under our statute the Flori- pursuant under our rule and statute, death sentence do not appear da those variances and our to our Constitution aforementioned required procedures be critical. The in guidelines statutes will meet the established supra, also Gregg, were different from the of by Supreme Court the United States Proffitt, required supra, those those in and expressed Gregg Georgia, supra; v. as in Jurek, were at a required supra, in substan- Florida, v. supra; Proffitt Woodson v. and applicable those either tial variance from in Carolina, North U.S. hold that our of the other two. We statuto- it 49 L.Ed.2d 944. These cases made ry procedural imposi- scheme limits and clear of review appellate that the function death in such tion of sentences manner as in the consideration constitution overall to assure that will not be inflicted system, ality applied is to assure manner, arbitrary capricious an case, particular precludes capricious in a the provisions that basis thereof for sen- arbitrary penalty, infliction Eighth tences of death violate neither the assuring legislative guidelines have Amendment the Constitution of the not been circumvented counterpart United States nor its in our preclud standard of review authority. Our I, Constitution, State Article Sec. 16. the revision of sentences authorized I, Defendant has cited us to Article except statute for manifest unreasonable 18 of the Sec. Constitution Indiana is, essence, ness no different position that the support penal of his death recent Su dictates of United States punishment is cruel and ty unusual violative and arbi preme capriciousness Eighth penalties and Fourteenth Amendments trariness in the infliction of death than cruel and unusual. Constitution of United cannot be other States. Court, Mandatory Eighth review in each and Fourteenth Amendments case, imposing United States Constitution. of the articulated reasons for penalty, together the death with a review reviewing imposition supporting the evidence these reasons penalty case, in this is apparent consistency, rationality assures fairness and statutory procedures that all of the were operation of the death stat- followed of this trial defendant. As Florida, supra. Gregg ute. Proffitt v. See already opinion, set out in this Georgia, supra. Cf. Woodson v. North judge the trial by found the homicide the Carolina, State, supra; French v. 266 defendant here to have been committed in The application Ind. 362 N.E.2d 834. the perpetration felony. of a A separate guidelines procedures and established sentencing hearing was following held the Constitution, by our statutes and rules ef- determination, guilt and all mitigating cir focused, informed, guided fect an and ob- were weighed cumstances considered and jective inquiry, by all concerned into the against aggravating the circumstance. The statute, appropriateness, capi- under the of judge trial the procedure followed same and Therefore, punishment given tal in a case. addition, possession in had in his and knowl Judy, supra, in our death as hold sen- edge pre-sentence all the information in the tencing procedures to be consistent with report by probation filed the officer as well compliance required and in full with those presented as all evidence to him by both the the the Supreme Court of United States parties aggravation mitigation in and Gregg Georgia, supra and Proffitt v. in sentencing hearing. judge The trial made Florida, supra, writing and thus not violative of the in in findings3 the record stat- imposition 3. The trial court’s “reasons for of in the Lake in Criminal Court 1975 of Assault penalty” Battery Robbery are as follows: and With Intent to Commit Entering Felony following and also The Court sets out the reasons for with to Commit the of accepting jury impos- jury recommendation and Theft. was The instructed that these mat ing the death impeachment only this case. ters were admitted for and trial, stage In the first the defendant aggravating not as circumstances. guilty James Brewer was found of the inten- reviewing pre-sentencing report In which killing Skirpan. tional of one Steven J. At the the jury, was not available to the found Court sentencing hearing, the burden was that the defendant was committed to the Indi- prove beyond State of Indiana to doubt that the intentional murder was commit- a reasonable (1) year Farm ana State for one on each of the above counts under the terms of the Minor perpetration robbery ted in the in the addendum to the of a as set forth Sentencing Act and said that terms were charging indictment. concurrently. served The defendant further reference, incorporate by The State moved to testified that he was convicted of Auto Theft testimony presented stage the trial, in the first pre-sentencing report and the indicated that granted. which motion was The testimo- Tippecanoe Superior conviction was in ny showed that the defendant and his co-de- that the and defendant was sentenced to 92 Skirpan family fendant announced to the that it days on the Indiana State Farm. The Court “holdup”; guns awas that drew and de- pre-sentencing report further found from the that the money Skirpan manded and left the home with lengthy juve- had a rather defendant Hundred, something ($100) in excess of One including nile record several commitments to defendant, contending Dollars. The while Boys’ Indiana School. victim, actually his co-defendant shot the testi- report reflects that the defendant was fied that the victim was shot in the commission Boys’ first committed to Indiana School on the robbery. justi- Accordingly, aof March, 1968, day being incorrigible 6th of for finding fied the existence of the the institution and that he was returned to beyond circumstances a reasonable doubt. parole day February, the 5th of violator on mitigating reviewing possible the seven theft, truancy, possession for of a jury, circumstances considered Court finds: dangerous weapon again and was released af- days. serving again ter Defendant was I parole returned to the institution as a on the 3rd violator THE DEFENDANT HAS NO SIGNIFICANT December, 1970, day aggrava- for HISTORY OF PRIOR CRIMINAL CON- DUCT battery again ted assault and released after serving days. day January, during 20th On the The defendant took the stand the sen- tencing hearing nation, was returned to Indiana and the on cross-exami- defendant Boys’ aggravated established that he had been convicted School for the fourth time for along with the evidence in ings and reasons fixing the death therein his reasons of the entire cause. An examination reviewed those' find- we have penalty, and deadly weapon been fired from the victim could not have possession assault and Further, Brewer days release from when James his final an automatic. before served sentencing hearing, during he said the institution. testified indicated, lengthy juve- this the shot that killed As hereinbefore Kenneth Brooks fired the auto theft followed when nile record was soon was instructed that the victim. The County Tippecanoe and then the people conviction unite in a commission of two or more County. felony in Lake crime, criminally here responsible two convictions each felony are sufficient to con- records alone commission of that actions of the other history pre-criminal significant con- stitute a crime. duct. purpose If we were to assume for II provision, James Brewer EXTREME UNDER THE DEFENDANT WAS shot, jury would still did not fire the fatal DISTUR- MENTAL OR EMOTIONAL rejecting mitigating justified in this as a THE HE COMMITTED BANCE WHEN The evidence was that this circumstance. MURDER only one of several robberies committed mental or emo- There was no evidence on James Brew- Brooks and Brewer that date. testified The defendant tional disturbance. Skirpan home admitted that he entered the er employed full-time at Harri- that he had been gun with the intention of commit- with a loaded ting robbery, Company for some 18 months as a son Metal was shot he that after the victim and, fact, go to work intended to burner morning money proceeded home for to ransack the Further, killing. defend- after upon leaving, and Brooks divided the he he and his co-defendant had ant testified that money equally. Brewer further testified that day commit the robberies on the decided to pair to commit other robberies continued before. night and that later the same after the incident after had the defendant examined them, chasing police he fired at when the were Vargas by J. the trial purpose one Dr. Manuel police to In the robberies testified car. determining intelligence quo- of trial, repeated during references there were quotient intelligence His full scale when tient. Court, kill made Brewer. The of threats to Intelligence Adult tested with the Wechsler course, way knowing of has no of whether (WAIS) Although this is within Scale was beyond doubt that de- found a reasonable range, to borderline it cannot the dull normal James Brewer fired the fatal shot. But fendant be said constitute extreme mental or emo- to that, even if a certainly had some doubt about tional disturbance. partici- was no evidence that his there III pation “relatively was minor.” A THE VICTIM WAS PARTICIPANT IN/OR V THE DEFENDANT’S CONSENTED TO DEFENDANT UNDER THE SUB- THE ACTED CONDUCT STANTIAL OF ANOTHER DOMINATION The evidence was that the victim was un- PERSON robbery to the defendant. The known simply no evidence that the de- There was Skirpan one of several random rob- home was Brewer, fendant, was under substantial James day. committed the defendant on this beries person. domination of another posed as The defendant and Kenneth Brooks VI gain entry policemen to the home and when APPRE- warrant, THE DEFENDANT’S TO CAPACITY asked he was the victim to see THE OF HIS CON- CIATE CRIMINALITY killed. HIS CONDUCT DUCT OR TO CONFORM IV THE LAW TO THE OF REQUIREMENT WAS AN ACCOMPLICE THE DEFENDANT IMPAIRED AS A WAS SUBSTANTIALLY BY ANOTH- IN A MURDER COMMITTED DE- RESULT OF MENTAL DISEASE OR DEFENDANT’S AND THE ER PERSON . OF RELATIVELY MI- FECT OR INTOXICATION WAS PARTICIPATION defendant, BREWER, did not file JAMES NOR insanity plea alleging charged jointly plea nor did he file a with one The defendant was testify comprehension. He did that he the victim was lack of Kenneth Brooks. The father of question. high drugs night identify as one of the on on the Kenneth Brooks able However, robbery. knew people He he further testified that he committed the two who doing he was have controlled Brooks was not the one what could testified that Kenneth if He testified that that it was the himself he had wanted to. who shot and killed his son but State, night by strong to com- he and Brooks decided the before man. The circumstantial other evidence, he mit the robberies on that date and that show that the other man was able to However, gun Skirpan with a loaded entered the home James Brewer. robbery. purpose committing As that Brooks father of the victim also testified indicated, the defendant’s intelli- Ex- hereinbefore gence quotient had a revolver and Brewer an automatic. normal pert testimony within the dull removed that the bullet showed clearly supports penalty, that it seek the death for a count of mur- record discloses der, imposition of the death conclusion that the virtue of circumstances sentence was determined nature consisting alleged mur- defendant’s the offense and the character of the defend- person der of another in an unrelated inci- Accordingly, say- ant. there is no basis for dent, for which he was under indictment person that a reasonable could not find tried, yet but had not been would abe appropriate Defendant’s sentence to be process. denial of due Under such circum- sentence, his offense and character. Such stances, prejudiced by being he would be therefore cannot be said to be based separate, charges tried on two unrelated capricious arbitrary considerations or jury. before the same In each of those manifestly unreasonable. Adams, following cases the sentence was ordered vacated because the standards and Since we have vacated death sen- guidelines They were absent. have since eight (8) tences in cases. Adams v. however, provided, been as hereinbefore re- 259 Ind. 284 N.E.2d lated, proce- and we hold the statute and (opinion rehearing) it on was in and the dures aforementioned sentence response holding Furman v. Geor- imposed upon the gia constitutionality which left the thereunder defend- pro- under statute under which he was convicted and ant to be constitutional Supreme uncertain. sentenced Six of the other nouncements of the Court of the cases,4 following came before us an amend- United States in those cases last mentioned. ed statute and the decisions in Woodson v. Carolina, supra, Gregg

North v. Georgia, III(C) Florida, supra, supra, Proffitt v. Jurek v. next asserts that Defendant Texas, Louisiana, supra, v. and Roberts proscriptions against constitutional cruel (1976) 325, 3001, 428 96 U.S. S.Ct. 49 punishment preclude inflicting the death denied, 890, 974, L.Ed.2d reh. 429 U.S. 97 penalty upon one whose role in the crime 248, 50 L.Ed.2d 173. S.Ct. accessory, opposed princi was that of as to McCormick, contention, (1979) Ind., pal. support In of this he cites In v. 397 State Ohio, 586, 276, (1978) interlocutory N.E.2d we allowed an Lockett v. 438 U.S. 98 973, permit 2954, appeal particularly and held that to to 57 L.Ed.2d and State S.Ct. range. intelligence borderline That this alone would not of the defendant is well countered certainly constitute a mental disease or defect. wisdom” and cannot be his “street trial, After the had the defendant mitigating Court circumstance. His ma- considered a D., Vargas, a examined Dr. Manuel J. Ph. nipulation police and his alibi witnesses psychologist, who said of the defend- licensed ant, during the trial in the fabrication of his alibi simply feeling impulse. “He acts on and stage calculating mind that tends to reflects a appears pretty He to live much on the moment negate intelligence quotient the low score. looking thinking without ahead nor much be- CONCLUSION, aggra- IN finds the Court Consequently, hind. he tends not to learn from vating upon ruled the State to circumstance experiences.” copy report A of this at- beyond any proven have doubt whatsoev- been tached hereto. simply er and that there was no evidence VII any mitigating circumstances to affect it. Ac- ANY OTHER CIRCUMSTANCES APPROPRI- cordingly, finds the recommen- ATE FOR CONSIDERATION proper and lawful and that dation to only other circumstance that duty recommenda- Court has a to follow such might possibly mitigation have considered in tion. only years 21 was the fact that the defendant is age and his mother died when he was 11 State, 276, (1977) Ind. 362 French v. 266 record, years or 12 old. In view of the entire Ind., 834; State, (1980) v. 403 N.E.2d Bond importance certainly this was of minimal State, 380, 816; (1977) N.E.2d Fair v. 266 Ind. significant could not have been considered enough 1007; State, (1977) 264 N.E.2d v. 267 Gaddis outweigh to circum- 244; State, 100, Ind. (1977) 368 N.E.2d LaMar v. mi- stance. The fact that defendant was of a 689, 652; Murphy N.E.2d 266 Ind. 366 nority significance race was of little or no State, 184, 411; (1977) jurors 267 Ind. 369 N.E.2d view of the fact that three of the ing includ- State, Ind., (1980) minority N.E.2d 514. Norton v. 408 the foreman were of the same race as the defendant. The affects of the limited of Justice Marshall separate opinion guilty Accessories are of the same crimes especially system critical of We, therefore, which was principals. as are their per- a wilful distinguish “between that did ceive why ipso of no reason it should be accomplice and an malicious murderer inappropriate subject facto them robbery killing in which a to an armed penalties. same * ** and on unintentionally occurs. turns Historically, imposed we have death sen- distinguish that do not fortuitous events upon tences aiders and abettors to both culpability of the defend- intention or moral felony intentional murders and murders. added). (Emphasis, ants.” State, 328, In Neal v. 214 Ind. although judgment, it re- The Lockett 590, 950, N.E.2d 15 N.E.2d we affirmed the lower judgment versed the court to convictions of Neal and Marshall for mur- imposi- sustained the the extent that it had perpetration robbery, der for penalty tion of the death to Sandra Lock- which crime were sentenced to death. ett, did not hold that the Ohio statute was The facts in that case were that the defend- the death permitted deficient because (William Bright) ants overtook the victim penalty felony for murder be inflicted while the latter was in his automobile. upon others than those who dealt death Rather, Bright statute was defendants forced from the wheel blow. overturned consideration, provision because it made country. and drove him out into the While stage, there, at the determination of but sentence Bright the defendants removed range mitigating circum- very limited the automobile and searched him for valua- age were and relative stances. Excluded bles. Defendant-Marshall then walked essence, only: the case holds culpability. back to the car in order rope to obtain a requirements, “To meet constitutional route, Bright. secure En Marshall heard preclude statute must not firing of four shots and when he re- mitigating relevant fac- consideration of turned, Bright was dead. 586, 608, 2954, 2966, tors.” 438 U.S. In Hamilton v. 207 Ind. 973, 992. Our statute has nu- 57 L.Ed.2d 190 N.E. and Witt v. provisions that would militate merous Ind. 185 N.E. we affirmed the arbitrary imposition against the of a death convictions of Hamilton and Witt for mur- theory sentence one convicted under a in perpetration robbery. der the of a We liability. particularly of vicarious note Again, both defendants were sentenced to felony that murder in and of itself is not a Here, death. the facts were that the de- capital only offense but becomes one if the Grocery fendants entered the Standard intentionally murder was committed Company headquarters in Indianapolis and accomplice that where a defendant was an stick-up. erupted announced a Confusion another; in a committed murder result, were fired. As a Lafa- shots expressly provided degree that of his yette Jackson was killed. The cause of culpability mitigating be considered. Other gun death was determined to be a shot factors are: the substantial domination wound, inflicted a a hand- bullet from another, significant history the absence of a gun. pistol Defendant-Hamilton a used prior perhaps criminal conduct and during robbery, while Defendant-Witt all, important “any most other circum- shotgun. used a appropriate stances consideration.” 35-50-2-9(c). Ind.Code § State, (1855) 7 And in Rice v. Ind. and Driskill v. Ind. That Legislature contemplated affirmed the convictions of Rice and Dris- imposition of death sentences under circum- present degree up stances such as those kiil for first murder. We also this case questioned provi- imposition cannot be in view the held the of a sentence playing “relatively sion that the minor” against each Defendant. The facts here role by accomplice mitigating an is a cir- were that the defendants and one other cumstance. Fahrenbaugh entered the near Lafay- home Brooks, attempted identify, to break that whom he did They night. ette revolver, and the bal- armed with a chrome prevented from a bureau but were into bullet revealed that the fatal listics tests Fahrenbaugh. After doing by Cephas so revolver, which is had been fired from occupants neutralizing other that testimony with Defendant’s consistent home, drug Cephas outside the intruders he, Brooks, Stephen. it was not who shot He been shot twice and killed him. had pistol. Fahrenbaughs with the same however, is mis- argument, Defendant’s who had in fact shot could not determine It is reconcilable placed in this Court. Cephas. testimony that when he Skirpan’s with Mr. response Stephen’s went into the room in that execution argument The defendant’s call, companion was in front of his Brooks accessory had no intention to of an who “in back” who and that it was the man and, fact, personally did not com- murder fired. ef- murder can have no deterrent mit the unpersuasive. If fect as to such murders is present. two assailants There were but can, in the commission of violent crimes ev- Strong Brooks. circumstantial One was fact, the rational infliction be deterred guilt determination presented at idence requires that penalty, of the death reason firmly supports finding trial phase of the in such man- program be administered defendant; and at that the other was the penchant all who have a ner as will deter sentencing phase, Defendant admitted This, turn, in violent crimes. participate inescapable one. It is that he was the other participate, who in a dictates those “in is the man who stood that the defendant significant way, eligible for selection to back,” up a hold and fired the announced examples. serve as Mr. Stephen Skirpan, killed unless shot that to be un- Skirpan’s testimony is determined

ISSUE IV credibility His was a mat- worthy of belief. evi ter for the to determine and cannot be Defendant contends that insufficient, in this under the circum- in reassessed dence adduced at trial Bentley v. demonstrate, stances of this case. beyond a rea it did not Ind., 414 N.E.2d 573. doubt, intentionally sonable that he killed this conten Stephen Skirpan. He makes V the constitutional tion in the belief that 35-50-2-9(a) (Burns proscribes impo review Ind.Code provision under may seek a death upon 1979)provides defendants “The state sition of death sentences by alleging, page on a only. whose roles were accessorial We have sentence for murder charging in III(C), separate the con from the rest of determined under Issue strument, existence of at least one permit imposition of death stitutions do aggravating circumstances listed notwithstanding that the convic of the penalty, (Em (b) this section.” Id. theory vicarious sub-section tion is based added). contends that unnecessary phasis Defendant liability. Hence it would be proce to follow this It should be the failure of the State for us to consider this issue. apprise to a failure to clear, however, con was tantamount made that Defendant’s dure be penalty the death would can stand without resort to the ac him that viction the sought. erroneously He asserts that concept. cessorial ag charging statute mandates the insufficiency premised is This claim of as therein directed gravating circumstances Skirpan upon inability the of either Mr. the di misperceives purpose the of niece, eyewitnesses the to who were sole rective. tragedy, identify the to him as one is assailants, procedure urged by the statute together Skirpan’s with Mr. mis- provided charging statement, height, given patterned to the after as to his 35-50-2-8, offenders, the habitual Ind.Code investigating immediately § officers after our hold- adopted response which was Additionally Skirpan event. Mr. testified State, (1972) 259 Ind. for a sentencing hearing. in Lawrence continuance of the case, 306, In that 286 N.E.2d 830. held The motion was denied because it was not procedure reciting prior premised upon grounds and because the charging instrument offenses in the and jury sequestered. them in the trial of

giving evidence of The determination of whether unnecessarily current offense was contami- grant a continuance lies within the sound nating unfair. patently The bifurcated court, discretion when of the trial the mo not proceedings were fashioned as a means upon statutory tion therefor is not based position, apprising the defendant of his grounds. The denial of such a motion will Rather, appears to believe. as defendant only be overturned when an abuse of discre designed were to shield him from tion is demonstrated. Johnson v. having knowledge prior hazard of of his Ind., denied, 390 N.E.2d cert. prematurely imparted criminal record 312; U.S. 62 L.Ed.2d jury. potential not have this We do Works v. 266 Ind. however, problem, respect pre- with to the case, N.E.2d 144. In this the defendant sentation of the death issue in all presented no factual basis to the trial court penal- circumstances which the death under which delay proceedings. warranted a in the although present ty applicable, is is when He now contends that a continuance was aggravating charged circumstance to be required permit investigation an conviction, prior prior is murder either a prior problems circumstances of his mental offense, murder unrelated to the current and that the precluded presenta denial prior life sentence. circumstances, tion mitigating in viola case, charged, In this Defendant was with Ohio,supra, deprived tion of Lockett v. Brooks, with murder and with intentional right him of the to counsel. We find this perpetration of a robbery, murder in the contention to be without merit. The denial being aggravated latter the first listed situ- grounded upon specula of a motion sheer rendering penalty applica- ation the death might tion that some benefit flow from it killing ble under the statute. The and the cannot arbitrary be said to be or abusive. robbery They were the same res. could not State, (1981)Ind., 570; Hardin v. 414 N.E.2d kept separate presentation have been State, (1980) Ind., Himes v. 403 N.E.2d evidence, and there was no such need. Consequently, there was no benefit to flow segregating defendant charge circumstances, of the VII robbery, charge from the of the murder. Defendant asserts that he was de prop-

Defendant’s claim that he was not rights against nied his constitutional com erly apprised that the death penalty pulsory would sentencing self-incrimination at the sought be simply Argu- belies the record. hearing, consequence put of his counsel’s ably, the mere citation ting of Ind.Code 35- upon him the witness stand in reliance top 50-2-9 endorsed at the of the charging judge’s the trial informal recommen may regarded inadequate. instrument dation and assurance that he would not However, arraignment the record of the permit extensive cross-examination. The replete record, however, penalty sought. with notices does not confirm Defend representations. ant’s procedure

We hold utilized in respect by prejudice did State hearing opened with a rights substantial of the defendant and motion the State that the evidence intro- error, was not in this case. guilt duced at the trial on the issue of be reference, incorporated, part by of the

ISSUE VI hearing. record of the The motion was Following sustained, guilty return of the and the Thereup- State rested. on, verdict jury, the defendant moved who had not testified ant’s previously, history problems, took the stand. On direct exam- of mental we are not ination, repudiated testimony he the alibi apprised of how thereby Defendant was having voluntarily and admitted to taken presumption harmed. The is that counsel added, part robbery-murder. He competent, presumption and that can however, that he the influ- had been under only by showing overcome a clear drugs ence of at the time and that it was his actions or inactions resulted in a mock- Brooks, he, Stephen Skirpan. not who killed ery justice such that our collective con- consequence testimony, of such the State science is shocked. Deadwiler v. extensively. cross examined Defendant 521; (1980) Ind., 405 N.E.2d Robertson v. 262 Ind. N.E.2d We view the decision for the defendant to Further, presumption competence take the witness stand as a tactical choice reinforced the record herein. fault, and one that we given cannot circumstances of the moment. jury claims that counsel Defendant rejected defense, had the alibi and the de- should have moved in limine to exclude fendant stood particularly convicted of a prior activity evidence of his criminal heinous crime subject and was to the death objected to its sentencing hearing and penalty. judge That neither the nor the But, presented. such evi admission when favorably reacted to the evidence of- stage dence was relevant at that of the in mitigation fered does not render its its proceeding, and there was no basis for judgment. tender bad There was simply no for exclusion. Neither was there basis way other mitigating submit evidence. object counsel to the State’s motion judge, The trial pursu- affidavit made presented trial be made evidence at the Ind.R.App.P. 7.2(A)(3)(c), ant has ac- hear part record that, knowledged response to defense ing. expressly provides for statute request guidance, counsel’s he stated stage consideration of such evidence at that circumstances, that in view the ap- he of the proceedings. Ind.Code 35-50-2- peared put to have no alternative but to his 9(d) (Bums 1979). client the stand. This claim preju- error, itself, attests to impro-

dicial IX ISSUE deviating priety judge’s from his as- signed impartial However, role referee. After the returned a recom appreciate the frustrations of the mo- mendation of penalty, the death the trial ment, perceive design by and we no court, either sponte sua ordered that the defend judge or the to do other than counsel ad- ant be examined by Vargas, psycholo Dr. interests of the vance the best defendant. gist. The substance of Dr. Vargas’ report Neither do we believe that the defendant was that given the tests to the defendant thereby harmed. indicated that he was in the lowest seven (7) percent population general as to VIII intelligence, feelings acts on impulses, assignment

Defendant’s that he intelligent without reflection analysis was denied the effective assistance of coun and tended experiences. learn from sentencing hearing sel at the is not substan The court report, along considered the tiated the record. The indicators of with the presented evidence at the trial and incompetence Defendant, upon by relied sentencing hearing, arriving at its main, appear to have been either tacti impose decision to the death penalty, and cal decisions or matters over which counsel the defendant now contends that he did not had no control. report have access to such and that it was regard With to the claims that therefore error for the court to consider it. spent counsel Florida, insufficient time preparing He cites Gardner v. 430 U.S. sentencing hearing, subpoenaed no 51 L.Ed.2d but that witnesses and failed to investigate support argument. Defend- case does not 908 Gardner, longer any provision court that there was no supra, the held that it

In sentence, process to for a life that of due sentence one our statutes was a denial murder, based, death, range sentence was sentences for if the death when such to imposed, was a fixed sen- which the defendant was not part, upon information deny explain. thirty sixty years and that opportunity no tence of from had had case, good for that the record did not sentenced could earn credit Additionally, in one information, sentence, with apply against the undisclosed there- behavior to contain fifty per- frustrating meaningful appellate review. a maximum allowable credit The court further cent of the sentence. although first note that the record We fixed instructed that the sentence would be copy Vargas’ that a of Dr. does not indicate court, by the and that the determination of served report formally was ever binding jury would not be but would be counsel, his neither does it defendant or only. a recommendation he was suggest denied access reflect and his counsel were to it. Defendant assignment is not available for This made, had been aware that the examination rules, appellate review under our inasmuch pronounced, was the sentence and when presented at trial. Rennert v. as it was not report, and no reference to court made 274, 595; State, (1975) 263 Ind. 329 N.E.2d The denial of such ac- protest made. was State, 610, Ind. 283 Pinkerton v. assigned in the first motion to cess was not is, he position Defendant’s N.E.2d 376. point was made a of con- correct error but nevertheless, entitled to review under our motion to correct the belated tention in exception to the afore fundamental error thereon, counsel ac- hearing error. At the recently We have stated rule is incorrect. report was available to knowledged that the transgressing error” our said “fundamental sentencing, although he him at the time procedure “must be bla appellate rules it; received when he had did not recall tant, for harm must be potential and the ruling upon the belated announcing its appear clearly prospec substantial and error, stated the court motion to correct State, (1980) Ind., 409 Nelson v. tively.” available to de- report had been that the N.E.2d fense counsel. nevertheless, are, liberty We to review Gardner, court dis- supra, the trial In notwithstanding non-compliance questions, and sen- jury’s dained the recommendation State, rules, v. Lindsey with our death, but tenced the defendant 505; and we deem this Ind. 341 N.E.2d us, followed the rec- case before the court action, appropriate case for such in view an ommendation, ample for which there the matter and the need gravity given by the trial court basis. The reasons guidance concerning newly established for sentence reflect imposing for procedure. ordering the examination purpose Although if there were circumstanc- we have condemned ar to determine against es that militated the recommenda- instructions that invite or guments and report nothing There was about the tempt tion. to consider ultimate served, to Defendant’s interest. prejudicial Feggins that was likely sentence to be 517; (1977) 265 Ind. N.E.2d X Ind., Inman v. N.E.2d with cases where Following sentencing hearing, our concern has been to have such jury interrupted its deliberations and in- there was no need because, law, information, quired as when the under the of the court defend- sentencing. Im eligible parole, ant would be for if a life were not concerned with therefore, parting knowledge, A such could imposed. sentence were conference was beneficial, potential pol the court and a not be and the had between counsel and to, present. response agreed given by luting guilt the court determination was effect, problem, with that jury. reply advised We are not confronted however, only in the case before us. Not benefit from it but also that at the trial guilt upon guilt, been made and he presented had the determination issue of had an influenced, but also there alibi thus could not be defense. jury to have

was a definite need The defendant was sentenced on March such information. 1st and Brooks more than nine months la- ter, Notwithstanding judge that the sentence deter- a other than the one who jury binding upon mination is not sentenced Defendant and apparently upon a judge, regard guilty plea. we do not it as a mere We not privy are to evidence formality having sixty year no substantive value. If that induced the sentence for did, Brooks, any, regard error if such could hence we have no basis for conclud- not be other ing than harmless. Oh the con- that the sentences were properly not trary, the recommendation proportioned. Conceivably, of the is a there may have very process, valuable contribution to the mitigating been circumstances shown that that it group representative comes from a have would rendered death sentence for peers, unreasonable, of the defendant’s likely who are to Brooks even assuming that reflect, collectively, the standards of the he was the who fired the one shot. community. The ultimate determination

cannot be made in a vacuum. Hence rec- CONCLUSION ommendations, they if are to have rele- We find no reversible error with respect vance, light must be arrived at in the guilt to either the determination or the available alternatives. Given the task of sentence determination. stage hearing, this of the it is findings The and reasons trial altogether proper fully aware part court are a of the record.5 We have consequences of prison sentence as reviewed the evidence in detail. It would consequences well as of the of a death sen- purpose opinion serve no to burden this tence. with a further recitation. That has which hereinbefore discloses that been detailed XI provisions there is a under the rational basis punish Defendant asserts that his (Burns 1979) of Ind.Code 35-50-2-9 for § unusual, ment is cruel and inasmuch as it is sentence, imposed. the sentence there- Said compared excessive and irrational when fore, manifestly light is not unreasonable in sixty years imprison with the sentence of of the offense and the charac- nature Brooks, who, accomplice, ment awarded ter of the offender. according testimony, to Defendant’s judgment of the trial court is af- “triggerman.” things; firmed in all and this cause is re- We have hereinbefore held that there was purpose manded to the trial court for the support finding, beyond evidence to fixing a date for the sentence to be exe- doubt, that reasonable defendant was cuted. “triggerman,” argu- in which event his upon point ment is this moot. GIVAN, C.J., and HUNTER and PIVAR- Assuming that the evidence leaves a rea- NIK, JJ., concur; DeBRULER, J., dissents issue, is, upon sonable doubt there with- opinion. with question, probative out evidence substantial DeBRULER, Justice, dissenting and con- it was he who fired the fatal shot. curring. it was fired only evidence testimony given Appellant pursuant was convicted Brooks was the defendant’s 35-41-2-4(1) sentencing hearing. testimony provisions at the This of Ind.Code for subject scrutiny, Stephen Skirpan. to considerable consider- the murder of He there- only position subject upon the defendant’s trial became to another supra. 5. See note 3

allegations circumstances while committing attempting to com- purpose determining whether he arson, mit burglary, molesting, child given should be the death sentence. A bur- conduct, criminal kidnapping, deviate upon prosecution den was the prove the rape, robbery.” (Emphasis added.) alleged aggravating circumstances to the jury The following returned the recommen- jury, ultimately judge, to the beyond a dation: reasonable doubt. Defendant, BREWER, “The JAMES hav- murder, we, guilty been found the I. Jury, recommend to the Court that the jury The indictment and the instructions imposed.” be jury appellant informed the that was judge sentencing upon relied that charged “knowingly with or intentionally” stating verdict in imposing reasons for killing Stephen Skirpan by “knowingly or the death He penalty. stated: shooting” intentionally jury him. The re- trial, “In stage the first the de- upon an instruction based ceived Ind.Code fendant, Brewer, guilty James was found 2, defining both intentional and § 35-41-2— killing of the intentional Stephen of one knowing jury conduct. The returned a ver- Skirpan. J. At the hearing, We, simply: jury, dict which stated find upon the burden was the State of Indiana defendant, Brewer, James guilty of prove beyond a reasonable doubt that general murder. As this verdict is consist- the intentional murder was committed in ent with a conclusion of the jury appel- that perpetration robbery as set forth knowing lant had the mental state and with to the charging addendum indict- appellant a conclusion that had the inten- incorporate ment. The moved to State state, tional mental it does provide a reference, by presented the testimony choosing basis for which of the states of stage the first trial which motion jury actually mind the Only determined. granted. was The testimony showed that the culpability of an killing intentional can the defendant and his co-defendant an- justify penalty pursuant the death Skirpan family nounced to the that was aggravating alleged circumstances in this ‘holdup’; guns that drew and de- case, knowing one cannot. money Skirpan manded and left the home In instructing jury at the sentencing something with in excess of One Hundred hearing, judge informed jury that: ($100) Dollars. The while con- stage trial, “In the first of this you found tending that actually his co-defendant Defendant, BREWER, JAMES victim, shot the testified that the victim guilty charge Murder as alleged was shot in the commission of a robbery. charging in the State’s indictment.” Accordingly, the jury justified added.) (Emphasis finding the existence jury: And he informed the beyond circumstances reasonable “In the second or sentencing stage of this doubt.” (Emphasis added.) seeking trial the penal- State the death The sentencing judge concluded his state- ty by alleging Defendant, that the James ment with the following: Brewer ... .. . knowingly did or inten- conclusion, “In the Court aggra- finds the tionally Stephen kill and murder ... vating circumstance, upon ruled by [sic] Skirpan knowingly ... ... or inten- the State to proved have been beyond any tionally shooting ... (Emphasis him.” doubt whatsoever and that simply there added.) was not evidence of any mitigating cir- jury And he instructed that the death cumstances to affect it. Accordingly, the penalty statute aggra- defined one of the court jury finds the recommendation to vating circumstances as follows: proper and lawful and that the Court

“1.) The defendant committed the has a duty mur- to follow such recommenda- der intentionally killing added.) tion.” (Emphasis victim

9H apparent It is from this proceed- record of In arriving at his final conclusion that the ings that there has been to date no determi- aggravating circumstance proven, sentencing judge judge appellant nation found that the jury had appellant found guilty of the “committed the murder intentional intentionally killing. At trial on charge, however, killing required by the victim” as subsec- the jury was instructed as follows: (b)(1), (e)(1) (e)(2), tions of the death “It is a fundamental principal of law penalty statute. judge made no deter- persons where two or more engage in the mination gener- himself and relied act, commission of an per- unlawful each guilty satisfy al verdict of require- son is criminally responsible for the ac- ment. That verdict does not contain a de- tions of each other committed the exe- termination that the appellant found cution of the common design plan or even “intentionally” to have killed the victim. though not part origi- intended as judge’s The conclusion that the State design nal or plan. It is not essential proved aggravating circumstance be- participation that person of one yond a reasonable doubt cannot stand. each element of the crime be estab- lished.” II. Under legal principal, the verdict of This Court is called to construe and guilty may have been arrived at without a apply aggravating alleged circumstance appellant determination that personally against appellant pursuant made to Ind. held the objective conscious in mind to kill 35-50-2-9(b)(l), Code provides: which § agree opinion victim. I with the of aggravating “The circumstances are as White, Ohio,(1978) J. in Lockett v. 438 U.S. follows: 98 S.Ct. 57 L.Ed.2d (1)The defendant committed the mur- may “death not be killings inflicted for der intentionally killing the victim consistent Eighth with the Amendment committing while attempting finding without a that the defendant en- arson, commit burglary, child molest- gaged in conduct with pur- the conscious ” conduct, ing, criminal kidnap- deviate pose producing of death . .. . 98 S.Ct. ping, rape robbery.” at 2981. aggravating The circumstance identified I would add to this as well that the conduct here is the coexistence of separate two and of the immediately defendant must be con- culpabilities distinct with conduct taking constitut- nected to the deliberate of the life of separate crimes, two the victim. separate opinion the same Cf. of Black- e., mun, J., person, Ohio, i. supra. the commissionof Lockett v. I two offenses find specified. Indiana statute and position The taken aggravat- elements of this by Justice White to be in accord. ing circumstance Our following: are the statute states: “The defendant committed (1) The death of the victim as the result by intentionally killing the murder the vic- injuries. of inflicted ” tim . .. . The phraseology “by intentional- (2) The defendant had the conscious ob- ly killing” culpability serves to stress this jective to injury upon inflict the victim “knowing killing”. and to exclude a and cause his death. Ind.Code 35-41- § focusing upon statute here is the actual (definition 2-2 intentional) state of mind of the pri- defendant its (3) The defendant had the culpability re- mary personal level and not at a vicari- quired underlying e., felony, i. in ous support level. I do not discount the this case he had the objective conscious by majority conclusion reached take property from the victim. Ind.Code simply establishing guilt evidence statute) 35-42-5-1 (robbery § two necessarily inevitably offenses is (4) Conduct satisfying the remaining ele- sufficient to establish the cir- ments of intentional murder and the un- proscribed cumstance under subsection derlying felony. (bXl) above. Both views this statute are However, PRENTICE, light of the ir- Justice. supportable. nature, involved, penalty revocable charged (Appellant) Defendant with purpose make its Legislature should Attempted Rape, Felony, a Class A and was clear, having persons no actual if be convicted, following by jury, a trial of At- producing purpose of death are to conscious tempted Rape, Felony. a Class B This di- executed. appeal presents sufficiency rect conviction, I vote to affirm the but to set evidence as the sole issue. aside the of death. charged, Felony Class A Ind.Code 35-41-5-1, (Burns 1979), 35-42-4-1 § attempt prosecutrix

an while rape Felony B armed with a knife. The Class which the defendant was convicted is lesser necessarily offense included charged, differing only offense that com- B mission of the Class offense does require being the element of armed. WHITE, Appellant Norville Below), (Defendant The evidence most favorable to the State revealed that the defendant attacked the prosecutrix companion they and her male Indiana, Appellee STATE of walking past building were a school and Below). (Plaintiff drinking wine at about 10:30 a. m. Her No. 880S229. himself, companion and extricated enlisted policeman. policeman aid from a When the Supreme Court of Indiana. on the scene Defendant and Prose- arrived March doorway or alcove of the cutrix were building, approximately an area three feet standing, were by eight feet. Both dressed, prosecutrix fully defendant nude from the waist down. prosecutrix testified that before the arrived, her in police Defendant had had alcove, and with a knife ground on the exposed and penis her throat and his However, no knife was rape tried to her. or on the defendant’s found at the scene person. he was ac- testified that defendant prosecutrix and that a

quainted with the given short time earlier he had her five wine, ciga- buy dollars to some beer to return. After rettes and that she was returned, six to ten she had not minutes and he went in search of her. He found the prosecutrix who, joined then had been companion, her had not re- why asked she turned, accosted him. He denied Relphorde, Gary, Kevin B. appellant. for rape that he her. attempted had Pearson, Gen., Linley E. William E. Atty. Counsel, Daily, Indianapolis, ap- argument Chief It is the defendant’s pellee. inasmuch as the a verdict of returned

Case Details

Case Name: Brewer v. State

Court Name: Indiana Supreme Court

Date Published: Mar 6, 1981

Citation: 417 N.E.2d 889

Docket Number: 678 S 119

Court Abbreviation: Ind.