*1 $45 DILLON, Appellant Richard
(Defendant below), Indiana, Appellee
STATE of
(Plaintiff below).
No. 282S67.
Supreme Indiana.
3,Oct.
846 Jr., E. Ripstra, B. Steven Lytton,
Howard Jasper, appellant. for Lytton Ripstra, & Indiаna, Pearson, Atty. Gen. of Linley E. Ward, Gen., Indi- Deputy Atty. Palmer K. anapolis, appellee.
HUNTER, Justice. Dillon, was con- Richard The felony jury of two counts victed 35-42-1-1(2) (Burns murder, Ind.Code § a Class burglary, 1979 one count of Repl.), (Burns 35-48-2-1 A Ind.Code felony, § conspiracy one count of Repl.), felony, A Ind. a Class burglary, commit (Burns Repl.). 35-41-5-2 Code § that a sentence jury also recommended defendant, Ind.Code imposed upon death be and de- (Burns Repl.), 35-50-2-9 sentenced to death thereafter fendant was by the trial court.
$47 appeal His direct challenges legality "a. April On during the presents death sentence and the fol- course of pre-trial proceedings, counsel for the lowing issues for our review: defense was divorced from his wife of eleven years, which divorcee 1. Whether the defendant was denied wife, was the desire of counsel's trial; effective assistance of counsel at against said counsel's wishes. *3 2. Whether the deny- trial court erred in 18, 1981, April "b. -On counsel's broth- ing defendant's motion to suppress his in- er, Fulcher, Ronald D. was seriously statement; culpatory injured accident, motorcycle in a 3. Whether Indiana's penalty stat- County, Knox and remains paralyzed in ute is unconstitutional as violative of due Hines, Hospital the Veterans Illinois process. at this date. A brief summary 5, of the facts from the "c. 1981, That on Sunday, July Father, record most favorable to the Fulcher, state counsel's shows Randall R. Mary William and Hilborn were found was rushed to the Hospital Vеterans stabbed to death in their Indianapolis, home in Peters- Indiana and on Monday Indiana, 6, burg, on March July 1981. Defend- 1981underwent eleven hours of walking ant was observed heart vicinity emergency surgery and at this the Hilborns' around date remains in an property the time of unconcious [sic] state, deputy murders sheriff. He in serious condition. was questioned by police at work on March "2. That continues daily State to 10, 1981, and at his home on March provide the defendant with new items of being He denied in Petersburg at the time discovery, despite there- prior statements of the murders and said he had been in is; to discovery complete, and such Indiana, friend, with a J.R. Princeton, new discovery has led the defendant to Thompson. A knife which was idеntified as new of defense avenues which defendant the murder weapon was found in Thomp- pursue, provide adequate should to an son's 12, 1981, car. On March police defense. asked if go defendant he would with them "3. That the course of the investigation to the sheriff's up office to clear dis- some by defense has turned up possible new crepancies concerning his actions on March evidence, which could not have been dis- 8. Defendant voluntarily accompanied the period covered in the short of time al- officers to the sheriff's signed office. He pre-trial proceedings. lowed for
two rights waiver of forms gave two "WHEREFORE, defendant respectfully statements, the second of which wаs a con- submits proceed to this Court that to with fession. scheduled, the trial as after such a short
period preparation time for of its de- L. effectively deprive fense would defend- trial, right ant of its to a fair and that to Defendant alleges first that he was de- proceed hearings trial as sched- nied the effective assistance of counsel having uled while defendant's counsel is 7, 1981, his trial. July approximately On personal problems, immediately after trial, two weeks prior to the the court held personal problems defense counsel's other a hearing on defendant's motion sup- to would effectively deny defendant press. At this time his counsel retained right competent to counsel." filed a motion for postponement and contin- uance pertinent part: which reads in hearing July The was continued on
"1. That counsel for the may specifically defendant and the trial court asked have not presence had the of mind to if he was aware of his attorney's defendant effectively and if he represent personal problems defendant dur- wanted his pre-trial the course of the to Defendant answer- proceed- attorney withdraw. ings, to personal problems, due to-wit: ed that he was aware circumstances up- has Supreme The Indiana to "3. attorney wish the he did but that constitutionality of the attor- held reminded court The withdraw. deter- duty to court's was the that it ney statute. was com- attоrney or not mine whether to voir prior day first "4. theOn- Here a defendant. represent to petent re- attorney defendant's dire of four months hired been attorney had was denied. which a continuance quested had said he also The court the trial. as counsel withdraw He then offered preparation the hours all considered was and defendant defendant for par- by both spent already been which had the withdrawal accept opportunity that witnesses case, the fact ties on appointed. other counsel and have members had panel subpoenaed, been with his to continue elected calendar notified, the court's been Thereafter, counsel. hired congest- extremely months next six adequately attorney performed *4 mean a time would at that delay any ed so trial. trial. After for the long postponement of the evidentiary part After "5. sides, by both arguments hearing further defendant, outside begun, had trial sup- motion to both the court denied to attempted of presence for a continuance. motion and the press rejected was which guilty of plea enter a that after record shows However, the court, upon defendant's based because did grant the court selected had been not find facts, could of the rendition would have counsel so that continuance The court plea. for the basis factual trial. for the prepare to extra weekend sequestered immediately thereafter Monday, July on proceeded The trial jury. defend- objection by further without court denies findings the these "Upon or his counsel. ant errors." to correct motion defendant's to correct the motion hearing on At the filed an affidavit counsel incom the trial argument errors Defendant's upon he personal problems primarily his is based due to of counsel stating petency that for prepare his counsel adequately to time inadequate not had time allegedly had trial, felt he had that coun that he the fact and preparation defendant's for the defendant represent final instructions. competent to been to tender sel failed a nеw trial should competency he felt and that the issue of properly, regarding law Our affida- pre filed counter is The state granted. settled. Counsel is well of counsel actions many of the his vits which summarized and executed prepared to have sumed preparing strong had taken attorney effectively, defense client's itself, and the trial trial, during his conduct to rebut required is convincing evidence prob- personal Ind., when the various State, (1981) the times v. Lindley presumption. the time relation to State, (1979) arose in 271 398; lems v. Rinard 426 N.E.2d to cor- motion The court denied trial. Incompetency 160. 394 N.E.2d Ind. findings: following with the rect errors facts particular around revolves counsel court will reviewing that: "The court finds of each cаse the circumstances totality consider evidence before "1. There was sufficient preparation pretrial counsel's surrounding could find from which trial,. The conduct actual a reasonable and the beyond guilty justice mockery is the of review standard doubt." legal rep adequate modified test as hearing on defend- pre-trial "2. At State, v. Hollon standard. resentation - 1273; found the court suppress, ant's motion State, Crisp N.E.2d (1980) the statements that 115; Cot N.E.2d 271 Ind. (1979) new evi- trial. No at were admissible 261, 379 269 Ind. tingham would trial which denee was N.E.2d ruling. of that reversal required have behalf, on defendant's
A careful examination of the record consulted with the in this case reveals the following facts: state's attorney trial, several times сounsel appearance entered his for defend viewed the list of prospective jurors, and ant approximately four months before the consulted with the attorney representing trial; his wife had filed for divorceeone accomplice. He visited defend- month prior to his entering appearance his ant at least ten to fifteen times while he cause; in this his divorce was cighty- final was in the County jail Pike four on or trial; nine days before the his brother's five occasions in the jury room of the Pike accident occurred eighty-five days before Court, Circuit averaging forty sixty min- trial; and his father had been ill for some utes on each During occasion. time prior to trial but did not die until counsel extensivеly cross-examined the forty-seven days after the trial began. witnesses, state's called witnesses on behalf Thus, while we appreciate the fact called defendant as a witness counsel experiencing pressure unusual behalf, in his own timely objec- made pretrial period, personal tions and a lengthy closing argument to the problems and trial preparation time were jury. spread months, out over a period of and he case, In this there was evidence to show had a reasonable amount of prepare time to that defendant's trial counsel had rendered for this trial. adequate assistance in both the pretrial
Defendant also argues that his coun phase and the triаl itself and that he had sel's failure to tender any final instructions *5 presented partial alibi defense for defend- was an indication of his incompetence. We ant in the face of substantial evidence to disagree. The record shows that defend contrary. He was well prepared for the ant's trial counsel prepared and tendered to trial and had an informed making basis for the court eleven proposed in preliminary his trial strategy Furthermore, decisions. structions, but these were either withdrawn defendant has presented any specific not or refused as covered by the court's own facts which demonstrate repre- ineffective instructions. The gave trial court many of sentation. The trial as a whole was not a instructions, its own both preliminary and mockery justice. fact, In the record final, which were sufficient to cover the shows that defendant vigorous repre- necessary points of law. Defendant does sentation in the face overwhelming evi- point out now any way in which the dence, confession, his own including against trial court's instructions were improper or him. The record does not show that de- inadequate. Trial counsel's failure to fendant was denied effective assistance of tender instructions on issues which are ade counsel.
quately
covered
the court's own instruc
tions does not show incompetence. Leaver
II.
The record further many spe shows admitting cоurt erred in into evidence his cific actions the attorney took on defend inculpatory they statements because were ant's behalf both prior to and during product of an unlawful detention. trial, trial. Prior to the attorney sought facts of these surrounding giving state- and was granted a change of venue from ments brought hearing were out at the on Pike County. He interviewed witnesses suppress. During defendant's motion to prior to requested and was granted investigation crime, the instant defend- full discovery, viewed all the state's ant questioned briefly had been two differ- evidence, physical officers, read and ent by police times once at his copied grand jury testimony, filed pretrial several home and once аt work. The police thought motions, attended and offered evidence at he might be a witness to the crime as he pretrial hearings, attended omnibus hear had been seen near the scene of the crime. ings, subpoenaed friend, witnesses The police questioned but he wanted the attorney present
J.R. and found evidence have an Thompson, indicated defendant Thompson's car be contacted so he would prosecutor to might to them when he lying have been charges facing. know what he would be originally questions. answered their to call the One of the officers left room to the sher- prosecutor, agreed who come 12, 1981, March four point, At this on Then, iff's office. defendant looked at murders, days police after the two officers officer who was in the room with him and home and saw his went to defendant's "Well, it," said, erying. we did and started The brother called yard. brother out in the to the room and The other officer returned come over to the car and defendant to rights his again defendant was advised of the officers identified themselves and said rights waiver of form. signed him. asked a second they They would like to talk to his police admitting if he would come to the He a second statement gave about some of the part station order to talk in the murders. told them concern-
things previously he had given, After the statement was second of the murders. De- day events on prosecutor deрuty and his arrived and said, fendant Then defendant and "Sure." criminal possible advised defendant of one of the officers went into the house and period he faced. The entire charges where were told defendant's mother two and questioning approximately took going. jacket from his got Defendant one-half hours. Defendant was free room. He rode to the station in the back period and the any leave at time police seat of the car. He was not hand- He did doors to the office were not locked. and was not under arrest or treated cuffed a soft not ask for food and was suspect. as a Both officers rode threatened or physi- drink. He was never officers specifically front of the car. The promises leniency and no cally abused testified that told defendant he didn't were made. Defendant was not arrested if he didn't want have to come with them confession and gave taped until after he to, agreed go but he voluntarily ~ he before a following day appeared them. provided by all as statute. magistrate *6 station, was tak- police At not contends that he could Defendant en to the sheriff's office which was fur- rights as he had voluntarily have waived desk, nished with a wooden comfortable took two smoking marijuana been chairs, carpeting. a bookcase and He was Quaaludes day questioned. he was on form which he read rights a waiver of that she and Defendant's mother testified signed. taped state- gave He then police went to the station and her husband activities on March 8 in ment about his but the officers asked see which he that he had been with indicated just him said wouldn't let them see not been in the Thompson J.R. but had In them what they would tell happened. police of the crimes. The two offi- vicinity rebuttal, that in his Nelson testified Officer what de- cers left the room and discussed under the influ- opinion defendant was not concluded They fendant had told them. at the time the statements drugs ence of truthful, that his were not statements testified that given. were Officer Sibbitt which light they of other information parents asking he did not recall defendant's by deputy showed that he seen had been only thеy inquired but that home to see their vicinity sheriff in the of the victims' son on and going and what was near the time the murders occurred. where he was office. then left the sheriff's told de- officers returned to the room and fendant felt his statements were not review, we review As a court
truthful. Defendant was advised that of a confession admissibility question of discussing were the crime of murder sufficiency matters. We do as we do other that the final possible penalties, but evidence, but rather deter weigh the not charges up decision on the to be filed was evi- there was substantial to mine whether prosecutor. Defendant never asked
851 product the trial fendant's confession was not the probative support dence of vаlue to though voluntarily is true even and was finding. illegal court's This detention the is conflicting evidence is on given. State, (1981) Long
sue of voluntariness. v. 284;
Ind.,
State, (1981)
422 N.E.2d
Battle v.
IH.
Ind.,
39;
State, (1978)
Arch v.
415 N.E.2d
that Indi
finally argues
Defendant
450,
269 Ind.
propriate
оnly
other
DeBRULER, Justice, concurring and dis-
might
circumstance which
be considered
senting.
is the
of 18
age
years.
This
Operations required
performed by
to be
is
necessarily
not
to be considered as a
jury
judge
and
after the conclusion of a
circumstance,
in
mitigating
particularly
sentencing hearing
death
are set forth
view of the obvioustorture inflicted upon
85-50-2-9(e)
provides:
Ind.Code
which
prior
least one of the victims
to the
final
of
capability
"(e)
hearing
jury
fatal blow. The
such
If the
is
by jury,
of one that
can-
cruelty
age
mind
shall recommend to the court whether the
mitigating
be considered a
cireum-
The
penalty
imposed.
death
should be
jury
recommend the
may
death
stance.
only if it finds:
beyond
"In conclusion the сourt finds
a
that
the aggravating
reasonable doubt
(1) That the state has
proved beyond
killing
circumstances of the intentional
of
that
one of the
reasonable doubt
at least
committing
burglary
the victims while
exists;
aggravating circumstances
and
and
two
having
committed
(2) That
circumstances
any mitigating
outweigh mitigating
murders
cireum-
that
are
outweighed by
aggra-
exist
significant history
prior
stance of no
vating
circumstance or circumstances.
Accordingly,
criminal conduct.
the court
The court shall make the final determina-
jury
finds the
recommendation to be
sentence,
tion
considering
after
proper and lawful and that the court has
recommendation,
jury's
and the sentence
a duty to follow such recommendаtion."
shall be based on the same standards that
the jury
required
to consider. The
We have
findings
reviewed
written
by
jury's
court is not bound
recom-
and reasons
with the
along
evidence in the
mendation."
case and find that the
clearly sup-
record
ports the
imposition
conclusion that the
According to this statute
"final deter
by
sentence was determined
the mination
be made by
sentence" is to
nature
the offense and
the character of
judge by applying
the same standards
the offender.
the statutory aggra-
Two of
reaching
used
its recommen
vating
proved beyond
circumstances were
dation. The
applied by
first standard to be
reasonable doubt
both
and
is the
judge
trier-of-fact standard
judge
aggravating
found
thеse
cireum- proof
a reasonable doubt. One of
beyond
stances outweighed
mitigating
circum-
major
sentencing process
of this
is
goals
stance
of no
criminal
We
history.
prevent
arbitrary
discriminatory
find that
respects prop-
the trial court in all
imposition
penalty.
Brewer
erly followed the
required procedures
mitigating particularly
view оf the obvious torture inflicted upon prior least one the victims to the
final The capability fatal blow. of such
cruelty in the mind of one age that can- mitigating
not be considered a circum- FINCH, Appellant, Wallace J. stance. In conclusion a beyond the court finds aggravating that reasonable doubt Indiana, Appellee. STATE of killing circumstances of the intentional No. 782S273. committing burglary
the victims while and the having committed two Supreme Court of Indiana. outweigh mitigating murders cireum- 18, 1983. Oct. significant history stances of no criminal conduct. the court Accordingly,
finds the jury recommendation to be
proper and lawful and that the Court has duty to follow such recommendation. August
DATED: Theobald, Judge
Edward C.
Superior County" Knox
There is no direct statement here that the
sentencing judge persuaded beyond
reasonable doubt is
guilty of felony murder and at the time of
such offense intentionally killed one of the
victims, aggravating the elements of the
circumstance relied upon by State. Ind. Instead,
Code 35-50-2-9(b)(1). this ree-
ord shows a support review of the evidence
ing the existence of the cir
cumstance. dealing There is no with that
evidence as a trier fact. It may
this has occurred again because lack precision language of the statute.
Cf. supra. may Schiro v. It be be
cause the trial sentencing process
capital complicated case has become too
demanding. difficulty, Whatever
Court should require stand firm and a clear
demonstration operations that the essential have sentencing process taken here, I
place. find no such demonstration
and therefore must vote to set aside the not, however,
penalty of death. I find do