*1 search, Hours before was reasonable. that Sow-
police obtained credible evidence resi- in a tent behind the asleep
ers Neely. They secured at 801 West
dence the residence at to search
warrant Sowers and seize to arrest
address and materials believed
handgun and related dwelling. about” “in or
be concealed circumstances, aof the search
Under these eminently
tent behind the residence was presented no violation
reasonable and Indiana Constitution.
Conclusion to the trial
This case is remanded deny motion
with direction to Sowers’
suppress. C.J., DICKSON,
SHEPARD, RUCKER, JJ., concur.
SULLIVAN DUNLOP,
Tracey Defendant- T.
Appellant, Indiana, Plaintiff-Appellee.
STATE
No. 49S00-9704-CR-273.
Supreme Court Indiana. 18, 2000.
Feb. *2 McMath, A Indianapolis, medi[t]ating rationally. Patricia Caress Indiana, Attorney Appellant. responsibility should not be relieved plan, operate equip- could devise a Modisett, Attorney General of A. Jeffrey ment, car- instruct behavior of others or LaFuse, Indiana, Deputy Christopher L. ry requiring physical acts skill. Indiana, General, Indianapolis, Attorney *3 Attorneys Appellee. State, Curran v. 208. Citing Record at 341, (Ind.Ct.App.1996), 675 344 the N.E.2d DICKSON, Justice contends that this instruction defendant defendant, Tracey Dunlop, ap- T. The impermissibly province the the invaded of peals convictions for the murder1 of his I, jury, violating Article Section 19 Hawkins, Carolyn robbery, counts of two upon the mandating finding conviction of felonies,2 two as B and counts of both class jury and by requiring certain facts the confinement, class as B felo- criminal both facts in the specific accept order nies,3 life and his sentence of voluntary defense. intoxication appeal, he parole. this direct (1) the claims: erroneous instruction on The Curran court found that this same intoxication; (2) voluntary defense of erro- province instruction invaded the of the on without parole; neous instruction I, jury in violation of Article Section 19 of (3) improper sentence. it Indiana Constitution because “ Voluntary Instruction on the minds and ‘[bound] consciences Defense Intoxication jury upon return a of guilty verdict ” Curran, facts,’ finding certain 675 N.E.2d contends that defendant first State, Pritchard v. jury erroneously (quoting instructed the at 344 248 Ind. voluntary 566, on the of intoxication. 575, 416, (1967)),5 defense 421 230 N.E.2d province He it invaded “improperly required because a certain upon jury, mandated a conviction degree proven of intoxication before the facts, of certain and mandated jury accept Id. could the defense.” Never intoxication, degree minimum in viola- theless, Curran court held I, tion of Article 19 of Indiana Section erroneous instruction was be harmless Constitution.4 jury cause “the evidence is such properly could not have found that.Curran challenges fol
The defendant incapable so intoxicated that he was lowing from Final Instruction language requisite forming criminal intent.” 675 voluntary regarding No. 34 defense State, In White v. N.E.2d at 345. 675 intoxication, objection at given over (Ind.Ct.App.1996), 345 N.E.2d the Court trial: Appeals addressed the same issue Mere intoxication is not sufficient unless instruction errone found similar likewise incapacity there is some mental result- light ous in of the evi but harmless ing person therefrom as will render incapable deliberately and thinking dence. (1993). § facts 35-42-1-1 determine the and the law under Section 1. Ind.Code Pritchard, 575, 248 19. at 230 at Ind. N.E.2d (1993). § 35-42-5-1
2.
Ind.Code
voluntary
421. The
intoxication instruction
present
in the
case does not
directive
contain
(1993).
§
35-42-3-3
3.
Ind.Code
Pritchard,
language equivalent
to that
248
("then you
provides:
4.
595 recently A ex the items he did not sell for contrary view cocaine. Hav- State, which ex pressed jar Cheshier v. obtained a knife from a under the disapproved kitchen, of Curran. pressly microwave in mother’s he then (Ind.Ct.App.1998). 1228 n. N.E.2d bicycle took his mother’s rode to the majority Cheshier observed that we door, victim’s house. knocked on her challenged lan repeatedly have used entered, and asked where her children opinions. Id. at (citing our guage were. Learning the children were (Ind. Legue asleep, victim, began stab the but 1997); Miller N.E.2d 263 one of the children entered while Terry v. stabbing the victim. The victim her told (Ind.1984)). 1085, 1088 See also Horan v. daughter to run out the back door As door, tried to but get herself the front separate opin Sullivan in his Judge noted *4 the grabbed defendant the child and Cheshier, in concurring in how ion result her threatened to kill because he “knew ever, in approve none of these cases did we go [the victim] wouldn’t out that door and jury containing a instruction this lan daughter’s sacrifice her life like [be- that Rather, 690 1229. guage. N.E.2d at we probably ... she ... thinking [was] cause the evaluating sup were whether evidence daughter] [I stab too.” Rec- would] [her in ported giving the of an intoxication ord at grabbed 568. The defendant then resulting or was for the struction sufficient daughter help the and demanded that she articulating our appel conviction. While him money or other valuables. While issues, rationale for late these we did not they money, were for a looking younger to appli intend create a trial standard for awoke, child the to defendant tried by juries. mere cation The fact lan that mother, keep seeing her from her ran but appears opinions in guage appellate does from the house when he to was unable necessarily proper jury it not make keep the child out the room. The de- See Spence instructions. fendant returned to his mother’s house Meek v. N.E.2d bicycle. replaced He the knife and washed (Ind.Ct.App.1994). it in Noticing the kitchen. that his shirt Myers v. N.E.2d Cf. bloody, was it and it be- he removed hid it We hold that was error to hind a chair. Then he went into the bath- jury the that the intoxication de instruct room and blood from his hands washed if the defendant fense unavailable had rings the that he taken. plan, operate equipment, devise a “could behavior or carry instruct of others evidence, From a we conclude that requiring physical skill.” acts Record jury not have that reasonable could found the defendant so intoxicated that he in- incapable forming requisite the Curran, however, As noted such an tent. The instruction error was harmless. require erroneous instruction will not re- appeal on if we find the error to be versal Imprisonment Life Instruction on in light harmless of the trial evidence. 675 Without Parole at 344. at trial in- The evidence contends that the defendant audio-taped the cluded defendant’s state- permitting jury trial court the not erred given police shortly after ment he was as to make recommendation whether custody. into In the taken defendant’s statement, imprison the defendant receive life should place he where detailed the parole. argues ment without the knife before he went to the obtained home, jury when reach rec the was unable to sequence victim’s events sur- ommendation, court should have re rounding the the locations where stabbing, life quired jury against each to recommend jewelry he found item of took from home, Instead, police parole. and where the would find without jury jury imprison- re- life discharged against recommend trial court pro- agreement recommendation and when cannot an ceiving any jury ment reach the defendant ceeded to sentence Although the recommendation. on parole. imprisonment without portion Preliminary quoted Instruction statute, No. 46 was inconsistent with cites Burris The defendant the error favored defendant. (Ind.1984), support argu- op- not have the ment that does Any on this was therefore error issue tion to to make recommendation. decline harmless. Burris, an instruction stated Sentencing requisite circum- juror each that the found necessary support recommen- stances The defendant pres- penalty the death were dation for miti weighing court erred ent, “may” against recommendation circumstances; that his gating sentence Id. at 189. We held penalty. the death provisions prohibit violates constitutional because, in the the instruction erroneous punishment6 cruel and unusual against the death case a unanimous vote requiring proportionality; option must penalty, jury has no —it manifestly sentence is unreasonable. against report recommendation its However, did penalty. death Id. Burris guilty on *5 jury’s of the ina- question not address but, I, charged, all six as to it counts Count bility any kind of recommenda- reach to of guilty returned a verdict murder but tion, as here. occurred mentally ill at the time of the offense. The argues that the further defendant evidence established defendant instructions re- given conflicting weapon, bicycle a his a obtained rode to garding required to recom- whether was co-worker’s former house search parole in the against mend without cocaine, money placed to and purchase not reach unanimous event it could bicycle it could seen from the where not be Phase Prelimi- agreement. Sentencing house, He then went inside street. nary No. 46 included the sen- Instruction Carolyn twenty-seven Hawkins stabbed this unanimous you tence: “If do not reach times with a knife threatened harm and proven factor aggravating decision [that twelve-year-old daughter, her -an action found], outweighs any mitigating factors which later admitted he knew would you sentencing against must recommend stop Carolyn leaving. from He also forced imprisonment Tracey Dunlop to life with- daughter her to search house valu- contrast, parole.” 223. In Record at ables, he took. then which returned Final Instruction No. 55 Sentencing Phase house, hid his blood-covered shirt be- “In to return a rec- part: stated in order chair, hind a and washed the knife used you agree.” all Record ommendation must professionals Mental the attack. health at 235. mentally that the testified defendant time impaired at the murder as “If a provides:
The applicable statute "result of addiction. Other evidence jury is on a sentence agree unable showed that the defendant under the reasonable delibera- recommendation after tions, drugs influence of at the time he discharge commit- the court shall crime, very that he came from a proceed hearing and ted as had been 50—2—9(f) dysfunctional family, § that he and had ex- court alone.” Ind.Code 35— (1993). not remorse for the crime. require pressed The statute does Although Eighth Appellate Ind. cites the Such claim is thus forfeited. Constitution, State, pro- 8.3(A)(7); Amendment U.S. Rule Kindred v. 540 N.E.2d authority regarding any applicable vides (Ind.1989). no principles separate argument. and no makes All Acknowledging penalties propor- court inflicted. shall be found a valid circum properly tioned to the nature of the offense.” (intentional killing stance committed dur prohibition The constitutional robbery) and mitigating numerous against cruel punishments and unusual
circumstances, the defendant proscribes punish atrocious or obsolete trial court to give failed sufficient and ments is aimed at the kind and form of weight mitigators any to all the and miti punishment, rather than the duration to the gating weight evidence he could Cohn, or amount. v. 693 N.E.2d rehabilitated and reformed. its Ratliff (Ind.1998); v. decision, Wise 272 Ind. thoughtful sentencing the trial 498, 502, (1980). 400 N.E.2d 117-18 weighed mitigating as cir Punishment is cruel and unusual under jury’s cumstances the verdict of guilty but “ I, ill, Article 16 if it Section ‘makes no meas mentally the defendant’s urable acceptable goals contribution to family background, his decision not to flee punishment, jurisdiction, but rather only his confession and constitutes purposeless expressions guilt imposition and needless remorse. ” pain suffering.’ Ratliff, 693 N.E.2d The determination that a cir (quoting Douglas at 542 cumstance is is within the trial (Ind.1985)). The sentence discretion, and court’s the court is not of life parole does explain why obligated to it finds a circum not punish constitute cruel and unusual stance not to be mitigating. Taylor v. ment. Widener We will find a sentence not required The trial court is not “ proportional ‘only penal when a criminal to give weight proffered the same miti ty graduated proportioned gating circumstances as the defendant ” *6 the nature of an offense.’ Conner v. State, 3, does. Thacker v. 709 N.E.2d 10 State, (Ind.1993) 803, 626 N.E.2d 806 (Ind.1999); State, Montgomery v. State, (quoting 229, Hollars v. 259 Ind. 1137, (Ind.1998); Battles (1972)). 286 N.E.2d Given 688 N.E.2d case, the in presented circumstances this The trial court’s prop determination of the penalty we decline to find the of life im weight er given aggravating be and prisonment parole dispropor without to be mitigating appropri circumstances and the tional to nature of the the offense commit ateness of the sentence as a whole enti is ted. great tled to deference and will be set only upon showing aside of a manifest The defendant also that claims Thacker, abuse of discretion. 709 N.E.2d manifestly sentence is A unreasonable. 10; Willsey at 698 N.E.2d reviewing may court review and revise a (Ind.1998). The record of the sentenc sentence, only criminal but when the sen not ing proceeding does demonstrate that “manifestly light tence is unreasonable in the trial court abused its discretion in con of the nature of the offense and char sidering and weighing mitigating evi 17(B). App. acter of the offender.” R. To presented by dence the defendant. We warrant prop modification of an otherwise in imposed by find no error the sentence sentence, er trial court we must find it to the trial court. clearly, plainly, obviously be unreason Thacker, 10; The defendant that his sentence able. 709 N.E.2d at Brown parole of life without vio- v. 698 N.E.2d (Ind. I, lates Article Section 16 of the Indiana Prowell v. Constitution, 1997). which part: imposed declares in “Cru- in The sentence this case punishments el and unusual manifestly shall not be is not unreasonable. only given “multiple heretofore mur-
Conclusion
aggravating
der”
circumstance
Ind.Code
trial
is af-
court
judgment
50—2—9(b)(8).2
event,
any
§
In
I would
35—
firmed.
assign
mitigating circumstances here—
dysfunctional
youth,
upbring-
Defendant’s
J„
SHEPARD, C.J.,
BOEHM,
addiction,
ing,
and alcohol
extreme
SULLIVAN, J.,
concur.
concurs
jury
fact
remorse and the
that
unani-
separate opinion in which
dissents with
mously
mentally
equal
him to
RUCKER, J., concurs.
ill—
think it
greater weight.
I
also
SULLIVAN,
Justice,
concurring
worthy
that
note
was unable
dissenting.
make a unanimous
in fa-
recommendation
opinion except
I concur with the Court’s
parole
vor of
without
life
sentence.
parole.
as to
of life without
the sentence
many
The trial court found “there were
permits
The law
sentence
circumstances”
this case.
proves
parole only if the
that
State
First,
the trial court found that “[Defen-
outweighed
are
mitigating circumstances
from
of an ex-
dant suffered
the effects
by the
circumstances.1
See
aggravating
(R.
tremely
family.”
at
50—2—9(i)(2)
§
I
(Supp.1994).
Ind.Code
35—
1067.)
testimony
I
discuss
expert
will
do not
the standard
met
believe
Second,
point
on this
below.
the trial
case.
court took into
consideration
aggravating
circumstance
sole
unanimously found
Defendant
be men-
proved
in this
was the
by
State
case
Third,
tally ill.3
the trial court found that
“felony
aggravator—
so-called
murder”
very
Defendant “was
remorseful” and not-
committed the mur-
“[the]
that,
fleeing
rather
than
the jurisdic-
ed
intentionally
by
killing
der
the victim while
tion,
immediately
went home
where
...
committing
attempting
or
commit
(R.
“signs
guilt.”
showed
of conscience
35-50-2-9(b)(l)(G)
§
Robbery.”
See id.
1070.)
(Supp.1994).
aggra-
While this is a serious
vator,
I
weight
findings,
we have never accorded
addition to the trial court’s
“highest range,”
designation
weight
we have would
assign mitigating
Defen-
challenge
requires
1.The
statute
the sentence on this basis from
"any mitigating
which I
circumstances
infer that she was satisfied that the
weight
outweighed by
aggra-
trial court considered
exist
cumstances,”
cir-
are
*7
is,
vating
outweigh
mitigat-
to
circumstance
the trial
must find
court
Third,
error,
ing
despite
factors.
this
the trial
outweigh
aggravating
circumstances
sentencing
court’s
is
statement
careful
ap-
mitigating
circumstances.
trial court
complete, showing
for and
case,
concern
attention
plied an erroneous standard in this
special requirements
particular
to the
of this
mitigating
that the
cir-
it sufficient
statute.
outweigh
aggravating
cumstances did not
("I
say
See
at 1071
circumstance.
R.
cannot
528,
2. See Peterson v.
good
[all of]
[miti-
conscience that
those
denied,
(Ind. 1996) (Dickson, J.), cert.
U.S.
factor.”).
gators] outweigh
aggravating
(1998);
118 S.Ct.
family full of violence the bar member of of this state. cocaine, marijua- suffered from Defendant addictions, na, and and Defendant alcohol All concur. Justices personality suffered from disorders —as determination jury’s well as the unanimous ill mentally
that Defendant inability to rec-
jury’s reach unanimous that Defendant be sentenced
ommendation parole,
to life without I would
sole circumstance does
outweigh mitigating circumstances.
RUCKER, J., concurs. BUTLER, Appellant Taurus
(Defendant Below), Indiana, Appellee STATE (Plaintiff Below). No. 02S00-9812-CR-822. Supreme Court of Indiana. KELLY, In the of John Matter L. Jr. Feb. 2000. No. 45S00-9307-DI-812.
Supreme Court of Indiana.
Feb.
ORDER GRANTING
REINSTATEMENT 23, 1995,
On October this Court sus-
pended L. petitioner, Kelly, John Jr. practice
from the law this state for 18
months without automatic reinstatement. I.Q. test, average.
5. Dr. also conducted an Defendant scored below Dixon test, Intelligence Westler Adult Scale in which