Dye v. State

CONCLUSION trial court fix the

We remand to the performance and the amount

manner restitution, affirm the trial court respects.

all other

SHEPARD, C.J., DICKSON, BOEHM, JJ„

SULLIVAN, and concur. (Defendant DYE, Appellant

Walter

Below), Indiana, Appellee

STATE of

(Plaintiff Below).

No. 49S00-9801-DP-55.

Supreme Court Indiana. 30, 1999.

Sept.

it penalty phase modified his tendered in- struction on clemency; death is not appropriate sentence based on the weighing aggravating and mitigating “residual circumstances and the doubt” of guilt. We affirm. Background Factual and Procedural Myrna Dye to leave Dye, decided her husband years, early July, of four According Myrna, couple constantly fought, their sexual relationship had be- nonexistent, come had become Myrna’s “real grouchy” daughter toward Clay, Hannah who lived the couple. Monday 15, Myrna On July signed a lease for a apartment furnished located seven blocks from and Dye where she resided. That evening Dye Myrna confronted about leave, her plans to she and confirmed his suspicions. Myrna, According Dye ap- peared “kind of and “I angry” told her can you have something done and have an alibi I at because would be work.” He added, you “I’m make going to sure suffer life, the rest your everybody of and Harper, Teresa D. Bloomington, going to know who been there.” The next Indiana, Attorney Appellant. for work, day, Dye Myrna while was at and Modisett, Jeffrey Attorney A. General of (cid:127) Hannah moved out. Indiana, Mallett, Deputy Janet Brown At- Sunday, The following July Myrna General, Indiana, torney Indianapolis, At- and daughters, another of her Potrena torneys for Appellee. Jones, night went to work the shift at a nursing home. Hannah remained at the BOEHM, Justice. apartment grandchil- two Myrna’s Dye Walter was convicted of the murder III, dren, two, age Lawrence Cowherd and fourteen, of Hannah Clay, age Celeste Jones, age Celeste Lawrence seven. was Jones, seven, age and Lawrence Cowherd son, daugh- Potrena’s and was the Celeste III, age two. A recommended that Jones, Myrna’s ter of Theresa another of imposed, the death sentence be and the daughters. supposed to Theresa was have trial court imposed the sentence. worked the afternoon shift at the same (1) this direct appeal contends that Myrna nursing home where and Potrena the State discovery committed numerous work, went to not up but had shown (2) violations; right his to be free from Myrna angry work. and was called self-incrimination violated was when he Theresa at the home Theresa shared with was questioned without Miranda warnings; Potrena and their children. two Theresa’s (3) trial by excusing court erred a boyfriend, Jennings, eventually John an- juror for cause on the State’s motion and phone, Myrna swered the had and harsh failing jurors upon to excuse for cause two words for both of them. (4) motion; his his not selected shift, from a At representative Myrna cross-section of the the end of their and community; they ap- the trial court erred Potrena took the bus home. As when a.m., Dye’s shoeprints at on apartment papers about 8:00 were proached found police They cars. on they saw several soon strewn the bedroom floor. One of partially body that Hannah’s nude learned papers palmprints these had the in Han- apartment had found in and that been nah’s blood both and Hannah. missing. were An Celeste and Lawrence Dye’s during Police seized shoes the exe- later that Hannah autopsy revealed had residence, a cution of search at warrant his pathologist been with what the be- beaten and Hannah’s blood was found in the inner a lieved to be a crowbar and hammer. stitching Finally, and fibers the shoes. injuries body blunt force Her sustained as analysis sperm DNA in the on found ligature strangulatiоn well stab washcloth matched with odds of 1 in and hand. The blunt wounds neck 39 billion.1 injuries applied with such force were force initially police told that he had nev- “to have crushed front of the chest Myrna’s apartment er been to spine, wall toward the crushing back left residence the night on of the mur- heart and the between.” A lungs rape However, ders. he testified at during kit autopsy. was collected Al- get cigarettes he about walked 2:45 her though body the swabs of showed no night a.m. on the killing kept a wet sperm, washcloth con- Myrna’s apartment, walking because fluid was on a taining seminal found bed Myrna days had told him earlier she body. near Hannah’s Sunday night. would off work be He A search for Celeste and Lawrence was that upon Myrna’s testified his arrival at At 2:00 promptly begun. p.m., about apartment he found the door open, walked police officer found bundled comforter inside, foot, saw walked over to Hannah’s along tall among alley some weeds near her, body, touched she concluded Myrna’s apartment. bags Two trash con- dead, and left. He not call the police. did taining the lifeless bodies of Celeste and He returned slеep, home but could not and Lawrence were found the comforter. in at work at 5:26 clocked a.m. injuries Both children had sustained con- Dye A of jury convicted three counts of on being sistent hit the head with with murder. The recommended that the fist. also hit in Lawrence had been imposed, death penalty be and the trial liver, left chest and Celeste lower and had court followed that recommendation and been stabbed with a knife. Lawrence had Dye sentenced to death. strangled been with a cord lamp taken Alleged Discovery I. Violations Myrna’s apartment, and Celeste had strangled been extension cord. with Dye contends that the State vio discovery County lated the rules of Marion Investigators a great collected deal of by belatedly disclosing physical pieces several of pointed Dye evidence that He Dye’s argues the killer. evidence. also these palmprints were found nightstand “egregious” on a near body. deprived Hannah’s violations him of his Dye’s fingerprint, blood, made in “state process rights Hannah’s and federal due and clothing tag was found on a near her body. right present Trial defense.”2 thаt, Dye 1. process” testified at 2. trial in the course of "Due is a term found in the Four practices Myrna, his sexual with he would teenth Amendment of U.S. Constitution. ejaculate in a sometimes washcloth and had appear It does not Constitu Indiana Wednesday Myrna done so before left analog tion. The closest the "due state that, Myrna eja- him. testified after I, provision course law” of Article Section her, culated on would take she either a bath provision, 12. does let not cite alone However, or clean herself with washcloth. separate analysis offer a based the state last she testified that her sexual contact with Accordingly, any constitution. constitu state part early was in the of and that June she State, tional claim is Valentin waived. dirty had taken no washcloths with her when (Ind. 1997). N.E.2d 412 she moved. result, Myrna’s discretion in given courts are wide discov statements that the crow- they duty have the to bar ery belonged Dye matters because were disclosed to discovery 13, 1997, of truth and to promote the until August defense three guide proceedings. and control the Bras weeks begin. before was to (Ind. State, memo, well v. 550 N.E.2d Upon recеipt of the defense counsel 1990). deference in de They granted are filed a motion to exclude substantial termining crowbar, what constitutes relating contending orders, and compliance discovery we the State’s belated of disclosure the in- to viola will affirm their determinations as terdepartmental “is in total memo and tions and absent clear error and sanctions complete of violation Rules Discov- Id.; resulting prejudice. Kindred v. Court, ery of the Superior Marion is con- (Ind.1988). 524 N.E.2d When temptuous, deserving and is of the most warranted, a con remedial measures are severe sanctions.” The trial court con- usually proper remedy, tinuance is but hearing ducted a on the motion and denied may appropriate exclusion of evidence be evidence, the motion to exclude the observ- flagrant where the violation “has been “[tjhere ing that are other remedies avail- deliberate, misleading or such bad so able to the defendant.” right impair faith as to of fair trial.” Kindred, Dye points Rule 7 of the Rules Organization and Procedure of the Mar

A. The Crowbar Court, ion Superior Criminal Division. 1(a) day killings after the a crow Section rule provides of that alley running hearing bar was court at initial will “[t]he discovered automati Myrna’s cally behind order to disclose apartment. crowbar’s the State and fur existence was disclosed to nish all relevant and information un promptly items defense, defendant(s) report as was a that it had been der this Rule to the within presence twenty days tested for the human blood from the date of the 13, 1997, here, On March initial positive. hearing....” tested The information detectives, however, prosecu at the direction of the was not known to exist within office, again Myrna twenty days tor’s interviewed initial hearing, but Myrna by Theresa. rather was the State confirmed uncovered months a or later of during preparation owned crowbar similar identical to the the course its circumstances, promptly one found. The detective ad for trial. the Under these obligation vised a of what the to deputy prosecutor he had State nevertheless had learned, timely him make of the evidence to deputy the instructed to disclosure the month interdepartmental delay write an memo memori defense. The five here alizing hardly timely. the can Never conversation. detective be viewed theless, gave wrote the it to a State’s paralegal accepting explanation memo and the value, prosecutor’s in the office. The at face disclosure was paralegal the belated deliberate, apparently flagrant misfiled the memo and failed to or and disclosure it or three prosecutors route to the defense at nevertheless occurred weeks before torneys try the trial. time to allow who would case.3 As a This was sufficient 5.3(b) ensuring compliance 3. Rule Rules mate burden of with the of our of Professional especially require lawyer having discovery true under "[a] Conduct di- rules. This is here, supervisory authority nonlawyer deputy pros- a rect over the circumstances where [a] indeed, requested shall make efforts to ensure that ecutor knew that detec- reasonable of— person's compatible important a the conduct is with the tives take—an statement from professional obligations lawyer.” this is a death of the Al- crucial witness. That though only heightens attorneys sending appro- to cаse the need for a memorandum the priate attorneys appropriate- prosecutor's the office to ensure that is a clerical task within paralegals discovery over ly assigned prosecutors turning the are all paralegal, to a assigned timely bear the manner. to case nevertheless ulti- punishment, guilt “material” to necessary that is re-depose the to defense counsel i.e., a reasonable evidence that creates trial, which was done. before witnesses pro result of a circumstances, of a different probability the these Under See, e.g., Bag v. ceeding. United States request to exclude of denial court’s 682, 3375, 667, 105 S.Ct. ley, 473 U.S. for continuance motion evidence and (1985). Theresa’s statement L.Ed.2d error, and in event he not clear was hardly exculpatory or mate police to any resulting preju- demonstrated has not that her Dye’s guilt. police She told rial Kindred, N.E.2d dice.4 from the one found was different crowbar on the asserts error based Dye also scene, questioning near the crime of Theresa disclosure belated State’s car repossessed who her those individuals tо detectives. statement March 13 Jones’ would, in the best case scenario that she had owned police Theresa told defense, that no crowbar have disclosed by to the one described similar crowbar would not found her trunk. This shown the crowbar being after Myrna, but materially Dye nor would it add exculpate police scene told near the crime found overwhelming light to his defense police also told not hers. She it was connecting him to the physical whether her crowbar not recall she could crime. it of her car when was was in the trunk was also This conversation repossessed. Testing and DNA Fingerprints B. same misfiled memo memorialized Jennings5 John and not disclosed described above 22,1997, depo August after her On memo surfaced three until defense defense, finger taken sition was that, be argues trial. weeks before Donnelly took Diane print examiner disclosure, he had an cause of the belated boyfriend, of Theresa Jones’ fingerprints effectively use “inadequate opportunity Donnelly generated a re Jennings. John allowed, time Had this information. day of September the first port, dated explored repоsses have defense could selection, that a number of compared if car and the crowbar sion Theresa’s fingerprints latent unidentified was, indeed, He in the trunk.” contends with those submitted Jen crime scene of this belated disclosure that the State’s According no matches. and found nings, Brady a violation of evidence constitutes Donnelly’s it did not receive 83 S.Ct. Maryland, 373 U.S. evening September until the report (1963). disagree. We L.Ed.2d 215 report over to the de and it turned the matter, no there was following morning. As a threshold ad early the fense dition, evidence was because the office directed a Brady prosecutor’s violation the defense three weeks be for a blood transport Jennings disclosed to detective trial, August analysis 22. DNA exclud fore see Williams draw on (Ind.1999), any and the of Jennings as the contributor of N.E.2d 648-49 ed scene. pursue to unknown DNA from the crime ample opportunity had the defense objected to both the ad and to Defense counsel any by raised its disclosure avenues Moreover, fingerprint comparisons the accordingly. mission of adjust strategy its Jennings ground on the analysis DNA of apply to evidence Brady prоgeny and its August presents no basis for rever- 13. This suggests he was misled Dye 4. also that dur- given State’s witnesses some answers sal. However, he ing pretrial depositions. does these answers were not cor- not contend that shoeprints of Dye 5. also mentions evidence knowledge at according to the witness's rect excluded then notes that the trial court but depositions. respective time of their the Accordingly, any belated dis- this evidence. Moreover, Dye opportunity had the to re- presents for no basis closure of this trial, light depose of these witnesses before reversal. belatedly to him on information disclosed the the responded possible perpetrator during opening The disclosure. State of its late analysis after requested expressed this identi- His not that it statement. decision to that someone theory defense fying challenge the the scientific evidence hardly else, Jennings, had committed the possibly prevented challenging him from scientific of Dye initially sought exclusion murders. yet evidence not known the time of at his evidence, granted instead a the but was opening grant- The trial court statement. hour. trial until thе noon The continuance Dye’s expert ed a continuance to allow to “with agreed that it the court observed fingerprints. compare the Had ex- duty they in that I that a State believe pert prints concluded found try compare to these obligation and an Jennings’, scene crime were he prints, although at this late date. So even presented jury could have this to the rules, discovery it of due to is a violation through expert pointed his and also out will be no the circumstances there sanc- of com- belated disclosure the State’s imposed.” tions Donnelly. parisons in cross-examination of Dye testimony did not offer of his explanation for the We find State’s adequate fingerprint expert, than un- the obvious infer- belated disclosure more Although late expert’s der circumstances. its ence is his conclusions were rea- test materials a Donnelly. decision to these of similar to those trial expected defense response to an sonable until the hour court’s continuance noon risk, it ran the theory, nevertheless remedy was an under these cir- adequate fingerprint of in the event either Dye no cumstances has demonstrated match, the defense with providing DNA of prejudice ruling. as a result of this its case. powerful evidence to bolster However, instead exculpated the results Alleged C. Violations Other This at most forced minor Jennings. point, Dye quotes As a final theory adjustment defense continuance, pretrial motion for filed person may have com- some unidentified trial, days alleged which other dis before killings. mitted However, covery Dye violations. makes open- on his alleges prejudice based Dye separate argument regarding no these al

ing which he statement any claim leged accordingly violations and by telling himself in ... “hemmed present error is waived the failure dispute about the that there would be no cogent argument. Appellate Ind. Rule [Dye] evidence.... could not scientific 8.3(A)(7).6 challenge later the scientific evidence yet which he not know.” about did II. to Provide Miranda Failure addition, Dye’s opening spoke statement Warnings generalities possibility about argues that some statements other than had committed someone have been police sup he made to should able killings: going “We are not be police provide failed to pressed because who these children. We you tell killed However, warnings him Miranda before with the do know.” made no July At noon on by;name questioning him.7 about specific Jennings mention but two other witnesses State does not assert waiver instead oral statements merits, pointing week in advance of trial which addresses the issue on its out more than a nonpreju- the mentioned the to them that three of witnesses in was time render sufficient State, were not called at trial the motion dicial his case. to complained portion of of another wit- the trial, argument terms Dye captions in of testimony presented at an 7. ness's was ‍​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​​​‌‌​​​‌​‌‌​​​​​​‌‌​​​​​​‌‍not disclosed, rights report timely "state federal self-incrimination expert's and was I, merely Article transcript but cites witness’s and to counsel” amended of a statement making any separate merely without Sections 11-13 issued to correct “inaudibles” was Any analysis on the constitution. transcript, Dye of based state an earlier and learned 14 Arizona, v.

22, terrogation. to Miranda 384 place went of See two detectives 436, 1602, 444, him about Hannah’s talk to 16 L.Ed.2d to U.S. 86 S.Ct. еmployment (1966). disappearance of Law- interrogation and the murder 694 Custodial They Dye informed rence and Celeste. lawby initiated enforcement “questioning suspect a nor under neither that he was has been taken person officers after a into needed him they to ask that arrest but custody deprived of his free- otherwise light allegations questions some way.” any significant dom of action in Id. he had made threats to- family the that explained further Supreme Court has to agreed accompany He Myrna. wards question- interrogation express as “either station, police the the detectives ing equivalent.” or its Rhode functional department poli- police that they explained 291, 300-01, Innis, v. Island 446 U.S. 100 he be cy that handcuffed required (1980). 1682, S.Ct. 64 L.Ed.2d 297 Custo- during his ride placed in the backseat has been as “whether dy described there were upon removed there. The handcuffs a ‘formal or restraint on [was] arrest free- taken to Dye was an interview arrival and degree the dom movement’ of associated room, spoke he where detectives Stansbury v. with formal arrest.” Cali Dye minutes. told the forty-five about 318, 322, 1526, 511 114 fornia, U.S. S.Ct. Myr- had never that he been to detectives curiam) (1994) (per (quot 128 L.Ed.2d 293 a pretty good had idea apartment na’s but Beheler, 1121, 463 U.S. ing v. California He also that he it was located. said where 1125, 3517, 103 77 L.Ed.2d S.Ct. 1275 night his residence on the had never left (in curiam) (per quoting turn Ore if capa- asked he were murder. When 492, Mathiason, 495, v. gon 429 U.S. crime, committing Dye this replied ble of (1977)) 711, (per S.Ct. 50 L.Ed.2d cu thought, “[i]f I ever had never riam)). authorities, Based on these this was made kids.” This statement before custody has Court described issue as bodies of Celeste Lawrence in the person whether reasonable ac day,8 Much later in been discovered. believe cused’s circumstances would that a time arranged on Wednes- detectives State, he or she is leave. v. free to Cliver Dye day pick up at which to from work (Ind.1996). A police 666 N.E.2d a blood transport him for draw. Detec- plan officer’s unarticulated to arrest or they sought a blood explained tives no suspicions suspect bearing about a has possible it was that Han- sample because issue; rather, “the only on relevant At the raped. agreed upon nah had been inquiry is man how reasonable Wednesday, a picked time on detеctive suspect’s position would have understood rode, unrestrained, Dye Dye up at work. Stansbury, his situation.” 511 U.S. of the detective’s car. En the front seat (quoting 114 S.Ct. 1526 Berkemer v. draw, blood route to the the detective 442, 104 McCarty, S.Ct. 468 U.S. breathing heavily and asked heard (1984)). 82 L.Ed.2d 317 wrong. Dye him he replied what was a semen given sample had never before. As made during statements responded we’ve “[a]ll The detective police, the initial with interview State you was agreed you ever said would police questioned does contest that the ” provide sample, nothing a blood more.... Dye. Accordingly, the issue turns on custody at the warnings Miranda are re whether time. State, quired Loving context of in- relies v. only custodial N.E.2d during time error under the Indiana no statements made this claim of is Constitution Valentin Accordingly, waived. See we suppressed. should be need (Ind. 1997). interroga- custodial not address whether subsequent to the initial tion occurred inter- police, Dye spent After this interview view above. described police points several more hours with but

15 (Ind.1995), in which this re questioning Court under Hopkins Innis. See (Ind.1991) (“vol- versed a conviction because defendant subjected interrogation was to custodial unteered statements are admissible absent being without advised of his Miranda Miranda warnings”); see Loving, also Loving rights. Although officers Moreover, N.E.2d at was not in suspect, did not consider the defendant a custody at the time the statement was they never communicated that belief to made. The blood draw was arranged in Moreover, him. Loving questioned was advance to place Dye’s take over lunch officers, police the crime scene several hour, and he was transported in the front placed then handcuffed and the back police seat of the car any without type of police a marked car to be taken to the restraint. The trial court properly denied police where questioned station he was Dye’s motion to suppress. being without ever told that he was free to that, leave. Id. at 1125. This Court held Rulings Challenges III. for Cause “particularly view of the initial use of handcuffs, person ... a reasonable Dye argues that the trial court improp- defendant’s circumstances would not have erly juror excluded one for cause and erro- believed himself to be free to leave but neously denied his motion to exclude two would instead have considered his freedom jurors other for cause. He contends that of movement have been restrained to this violated his rights “state and federal ‘degree associated with a formal ar process to due impartial and to an jury.”9 ” Beheler, rest.’ Id. at 1126 (quoting 3517). 1125, 103 U.S. at S.Ct. A. Excused Cause Loving, Dye by police Unlike was told that he suspect specifi- was not a and was The trial court excluded for cause one cally told that he was being handcuffed as juror expressed who strong opposing views a matter of standard procedure during penalty. the death In response a ques- station, transportation police where tion jury questionnaire on the about the immediately the handcuffs were removed circumstances under which he believed the as promised. Both detectives testified at penalty would be appropriate, the suppression hearing was free juror responded society “[t]o save or man- time, to leave the interview at and the kind aas whole when there is no defense.” totality of the circumstances surrounding prospective juror explained further the interview lead tous conclude that a this as argument” “[t]he Hitler and was person reasonable in these circumstances questioned then at some length by the trial would not have considered his freedom of court, State, and defense counsel. The movement restrained to the degree associ- prospective juror during ques- stated this ated with a formal Accordingly, arrest. tioning that he could recommend the death the trial court did not err when it denied penalty in a ease of an individual similar to suppress motion to the statements Adolph possibly City Hitler and Oklahoma during made his initial po- interview with However, Timothy McVeigh. bomber he lice. later observed that this case involved the alleged killing of three individuals and alleged Miranda violation agreed that he “could never consider” rec- presents en route to the blood draw issues Here, ommending penalty the death for such a interrogation custody. both crime. When asking Dye wrong detective’s asked whether he would be what does not interrogation juror constitute under able to follow his oath as a Miranda or the equivalent functional consider the death “as viable again, any argument 9. Once slate constitutional claim is under the Indiana Constitution. separate waived for the supra failure to make a 16 above, plained in he stated that he

option this case” would the relevant is not inquiry juror not. whether the prospective could rec- any ommend the death in penalty conceiv- the 1. Juror Exclusion Under Federal case, genocide able including or the most Constitution Rather, famous of mass murders. the is- sue is whether the can follow the inquiry The relevant for exclu juror’s court’s instructions and the oath in jurors cause under the federal sion of for this juror’s “whether the case. constitution is views ‘prevent substantially impair the would cases, In reported pro most excused juror performance of his duties as in spective jurors opposi have stated blanket accordance with instructions and his See, penalty. e.g., tion to the death Davis ” Witt, 412, v. 469 Wainwright oath.’ U.S. State, 1041, (Ind.1992) v. 598 N.E.2d 1047 424, 844, 83 841 105 S.Ct. L.Ed.2d (after being “any asked if there cir are Texas, 38, 45, (quoting Adams v. U.S. 448 prospective juror cumstances” under which (1980)). 2521, 100 S.Ct. 65 L.Ed.2d 581 As penal could vote to the recommend death Witt, in “the explained quest the Court is ty, juror sir”); responded “No Benirschke jurors conscientiously for who will apply State, 576, (Ind.1991) ‍​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​​​‌‌​​​‌​‌‌​​​​​​‌‌​​​​​​‌‍v. 577 N.E.2d 582-83 the law and find facts. That is the what (prospective jurors they indicated were op an ‘impartial’ jury consists of....” 469 posed the death penalty and “could not at The U.S. 105 S.Ct. 844. Witt find a case where would appropri it be juror’s require “standard does not that ate”); Underwood, 535 N.E.2d 513 (pro at proved clarity. bias be with unmistakable spective “candidly juror expressed several paid Deference must be court times that she could not consider death jurors prospective who was able to see the State, penalty”); Burris v. 465 N.E.2d responses during to their voir listen (Ind.1984) (“all excused venire State, dire.” Underwood men that stated under no circumstances (Ind.1989). 507, 513 they imposition would consider Indiana, In juries capital in cases are death penalty”). We find no case from they instructed that must consider wheth- directly this addressing Court issue proven er aggravating the State has However, several imply raises. cases doubt, beyond circumstance a reasonable necessary inquiry is whether the done, and if that then they weigh must prospective juror could recommend the against the aggravator(s) any mitigating trial, penalty death case on evidencе. Jurors who state at outset Davis, case. N.E.2d they will not recommend a sen- prosecutor prospective juror asked if if proves tence even the one or State more could death penalty recommend the “[u]n- statutory aggravating are in- circumstance der any you imag- circumstances that can capable following the court’s instruc- uh, ine have you been described to accordingly properly tions and are excused juror this responded case[.]” “No” for cause. questioning described upheld this Court the removal for prospective above demonstrated that this cause under Witt. We observed that juror’s views on the death would need be “[t]here no ritualistic adherence to him prevented following have a requirement juror that a prospective court’s instructions his oath. unmistakably make it clear he or she it

Dye contends that was nev automatically against would vote impo- ertheless error for the trial court to capital punishment.” excuse sition of Id. Simi- juror because stated larly, cause he Daniels v. N.E.2d (Ind.1983), he “could consider death penalty under Court this reviewed the fact, сertain circumstances and in a prospective juror believed removal for cause of it who, to be an appropriate penalty.” initially stating As ex- after he did not be- standards, penalty, in the death stated that he constitutional presumably lieve be in thought might it be warranted the case cause that was how the issue was framed president. of a The See, Davis, of the assassination at trial and on appeal. e.g., following colloquy place then took between Witt); 598 N.E.2d at 1046-47 (applying juror: prospective the trial court and the State, (Ind. 950, Jackson v. 597 N.E.2d 1992) Q. president you “Then than the (applying other Witherspoon); Be any any nirschke, think of or cir- can’t instances 577 N.E.2d at (applying 582-83 you that involving Witt); cumstances a murder Evans v.

would feel would warrant recommenda- (Ind.1990) (applying Witherspoon tion of the death sentence?” statute); while quoting also the Under wood, Witt). A. “No.” 535 N.E.2d at 513 (applying However, Dye objected also at trial on the Q. your feelings preclude “And would 35-37-1-5(a)(3), § basis of Indiana Code you recommending from pen- the death provides which alty if the Defendant as one of several guilty, “good was found is causes for right?” challenge” that that the “[i]f State is sentence, seeking a death that the ‘Tes, person A. Ma’am.” opinions entertains such conscientious as at Applying then-existing Id. 167. fed- preclude person would from recom eral constitutional standard of Wither- mending that the death im penalty be spoon,10 upheld this Court the exclusion. posed.” Accordingly, we must address logic The basic that it Witt is is juror whether the exclusion of this violated proper jurors to excuse who are unable statute, which arguably higher sets a carry their in out duties the case before bar than generally Witt. See 16B Wil juror’s them. A to recommend willingness Kerr, liam Andrew Indiana Practice a death under sentence other circum- (1998).11 § 21.6d at 151-52 (cid:127) inquiry. stances is irrelevant to that Be- prospective juror cause the here stated suggests that exclusion improp- penalty that his views on the death would er under the statute because the prospec- him render unable to follow the court’s juror tive stated that he could consider the oath, instructions and his exclusion was penalty death under some circumstances. proper under federal constitutional The statute in speaks preclusion terms of standard of Witt. recommending from penalty the”death specifically does not address whether the

2. Exclusion Under Indiana Code in preclusion particular must be case 35-37-1-5(a) (3) § cases, only or in all no matter how far of our penalty may Most death afield their facts be from the case at cases have been resolved under federal bar. Illinois, Witherspoon spoon’s

10. See unnecessary 391 U.S. facts ‍​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​​​‌‌​​​‌​‌‌​​​​​​‌‌​​​​​​‌‍it was to decide (1968). Witt, S.Ct. 20 L.Ed.2d 776 The they when could be.’’ 469 U.S. at standard, Witherspoon commonly applied original). (emphasis 105 S.Ct. 844 in Witt time, permitted excusing only at the quoted language concluded that the footnote Jhose (1) jurors "unmistakably who make clear Witherspoon was "dicta” and "not con- they automatically against would vote the im- trolling.” Id. position punishment capital regard without might developed evidence that be at 11. contends that this statute is a codifica- them, the trial case before tion of the standard set forth the United penalty their attitude toward death would Supreme Witherspoon. States Court in This prevent making impartial them from deci- Although statutory language incorrect. guilt." sion as to the 21, at defendant’s Id. 522 n. Witherspoon, is somewhat similar to the statu- original). 88 S.Ct. (emphasis provision tory has been on the in a Witt, books Supreme Court made clear that the virtually centuiy— identical form for over a holding Witherspoon only Court’s "focused long Witherspoon. supra before See prospective ju- on circumstances under which Kerr, excluded; 21.6d, § rors could not be under Wither- 149 n. juror Dye’s personal case prospective stat- could set aside her beliefs and penalty the death ed follow the law her opposition oath. The other (Hitler) that exception juror narrow did not very stated it was “possible” also juror went case. on to apply against he would vote penalty death unequivocal opposition explain and agreed aggra- that he would weigh knowledge under his limited good vators and mitigators faith and (the Dye’s killing of the facts of case apply given the law as it was to him. children). Although opinions his three Dye contends that exclusion for precluded not have a may recommendation Illinois, required Morgan cause was v. case, every hypothetical in they of death 719, 2222, 504 112 U.S. S.Ct. 119 L.Ed.2d preclude did reсommendation the (1992). Morgan, 492 In Supreme the penalty death in this case. For the same Court that held the trial court’s refusal to already explained, believe reasons we this inquire prospective jurors whether would all that is under the required statute. automatically impose vote to the death the Accordingly, prospective ju- because penalty upon conviction violated the Due opinions precluded conscientious ror’s him Process Clause of the Fourteenth Amend recommending penalty the death However, ment. in this case the trial case, proper this exclusion was under inquire court did the possibility about that 35-37-l-5(a)(3).12 § Indiana Code jurors these automatically would vote impose the death penalty and defense B. Failure to Excuse Cause for counsel were the same opportuni afforded argues also that the trial ty inquire. questioning This revealed failing court erred to excuse pro two jurors that prospective these understood spective jurors upon cause motion. that both the law and their oath were Although jurors both of these at some contrary their favoring view auto point expressed they the view that would matic recommendation of death and automatically impose vote the death agreed they that follow law would and penalty knowing in the case of a or inten their oath. The trial court err by did not murder, tempered tional their views were failing to exclude them.13 by subsequent jurors Both questioning. told law required were that the them to IV. Fair Cross-Section make recommendation after weighing Jury of the Pool aggravating mitigating and circum juror agreed stances. The first that there argues that his jury was not “possibility” was a that she would not rec from a selected venire that represented a agreed ommend death fair community. she cross-section of the Be Dye quotes out, following language points from 13. State As the even if a trial court 12. State, erroneously opinion ju- this Court’s Baird refuses to remove for cause (Ind. they 1992), impose rors who declare that will vote to "[o]nly jurors N.E.2d automatically, may death state, a death sentence be equivocation who without or self-con jurors if affirmed were nevertheless re- tradiction, they that would not vote for death through moved of perеmptory the use chal- any case be can excluded....” Baird cites Oklahoma, lenges. See Ross v. U.S. Witherspoon Lamar v. 266 Ind. (1988). 108 S.Ct. L.Ed.2d 80 (1977), 366 N.E.2d 652 ap an Indiana case inquiry jurors relevant is whether such plying Witherspoon, support. as Baird does jury ultimately sat on the which sentenced the statute, cite the not Lamar cites the stat 85-86, defendant to death. Id. 108 S.Ct. quoting language ute without of subsec case, jurors both were ex- (3). applies tion Lamar instead cites and through cused of peremptory use chal- above, Witherspoon. explained As the federal lenges and he does not contend that the use of Witherspoon constitutional standard of has challenges prevented excusing these him from Moreover, replaced by been Witt. Baird did prospective jurors other who would have vot- purport interpreting to be the statute. impose automatically. ed to 33-4-5-2(d) (e). § completed & That statute jurors Code prospective fore trial 150 question “[t]he included commissioners provides questionnaires reviewing question may supplement registration After voter lists about race. eighteen naires, only ... Dye discovered and tax schеdules with names from jurors them potential residing identified persons county of the 150 lists of He filed a African-American.14 may selves as commissioners as designate Stay Proceedings or Dismiss “Motion to obtain a necessary cross section Racial upon Dis the Information Based population county of each commissioner’s ” Jury 33^1-5-2(d) which Venire” crimination § district.... Ind.Code investigation of (1998). either time to allow sought “may supplemental sources supplementation of disparity, the racial utility consist of such lists those of § to Indiana Code 33-4- pursuant venire customers, filing tax re- persons income 5-2(d) (e), dismissal of the informa & turns, registrations, city di- motor vehicle The court denied the motion. tion. trial directories, rectories, driv- telephone licenses_” 33-4-8-2(e). § Id. As er’s prima make facie In to a order above, Dye that showing made no noted of the fair cross- showing of a violation necessary comply was to supplementation es requirement, a defendant must section Duren, re- and we see no basis for tablish courts under such circum- quiring trial (1) alleged to be exclud- group that the discretionary utilize this statuto- stances to in the commu- group a ed is “distinctive” for ry provision supplementation. (2) of this representation nity; that juries from which are group venires registration use voter lists of and reasonable selected is fair § with statute. See Ind.Code 33- complied persons of the number such relation to (1998).15 addition, In the trial court 4-5-2 (3) un- community; and that this duty comply to the constitution also a systematic due to derrepresentation is Duren, forth in which requirements al set jury-selec- group exclusion of required to supplement it did. It was not process. tion Bradley registration the voter’s lists. See (Ind.1995) State, 100, Missouri, 357, 364, N.E.2d 103-04 U.S. 99 v. 649 Duren v. 439 (“Absent however, (1979). 664, infirmity, constitutional L.Ed.2d 579 S.Ct. 58 [Indiana decline construe Code acknowledges that he bears the burden of we 33-4-5-2(d) see, violation, option § so as to convert an e.g., ] establishing a Duren mandate.”). (Ind. State, 589, Nor the trial court 591 into a was 533 N.E.2d Bond v. a for further grant Dye stay 1989), required cannot meet and concedes that he investigation systematic of exclusion. of Duren on the prong the third based days until before not raise the issue before us. He nevertheless asserts did record would lengthy a continuance the trial court’s denial of trial when error based on study required to conduct the stay sup or have been proceedings his motion to a requested.16 We review trial court’s plement pursuant the venire Indiana State, 1139, 1986)); v. 475 N.E.2d during voir dire that Smith (Ind.1985). 14. It was later revealed eighteen mentally handicapped 1142-43 one of the was erroneously race Afri- and had listed her brief, Dye reply can-American. that this Court asks 16.In not-yet- of judicial a take notice of results addition, study pending completed capital in a case expressed ap this Court has systematic possible exclu- proval registration that examines the of the use voter lists of jury venires in pool prospective of African Americans from a of sion from which to select 201(a) State, per- See, County. Evidence Rule jurors. e.g., v. Marion Fields 679 N.E.2d 1315, State, (Ind. 1997); judicial notice of a fact Bradley to take v. 649 mits courts dispute (Ind. 1995); subject is reasonable Concepcion that "not N.E.2d 104-05 (1) State, (cit (Ind.1991) generally known within the it is either v. 567 N.E.2d court, (2) State, (Ind. jurisdiction of or ing Burgans 500 N.E.2d 183 territorial v. erroneously A trial court continuance for an abuse of refuses denial of a State, instruction, Perry part v. 638 N.E.2d tendered or of a tendered discretion. (1) (Ind.1994). instruction, Under these cir- when: the instruction cor (2) law; cumstances, Dye’s rectly sup out the the denial of motion for sets instruction; ports giving an abuse of discretion. stay was not the substance of the tendered instruction Clemency Instruction V. The by is not covered the other instructions given. Byers that the trial Dye contends court (Ind.1999). 1028-29 The last sentence of it clem erred when instructed the Dye’s tendered instruction fails on both 35-50-2-9(d) § ency. pro Indiana Code prongs. the first and second vides, part, in relevant court “[t]he concerning ... shall instruct the regard- A correct statement of the law availability good time credit and clemen ing clemency by provided cy.” Dye tendered instruction Indiana Constitution and statute.19 provided: part tendered instruction power, of Indiana has the The Governor was refused the trial court was not a Constitution, grant under Indiana re- Rather, it statement law all. commutation, pardon per- to a prieve, practice statement of historical surround- convicted and sentenced for murder. son Moreover, ing in Indiana. clemency not entirely up leaves it The Constitution nature, only language legal is this whether and how to use Governor there is no basis to conclude that it was power. power sparing- this This is used correct, if prediction viewed as a of future ly imposition, possible, and its while Although Governors’ actions. the exercise a likely should not be considered as power grant clemency may have result. prior been rare under current and Indiana Governors, Dye’s objection, way Over the trial court struck there is no to determine may the last sentence of this tendered instruc- whether a future alter Governor this Dye appeal on argues grant tion. “what trend of executive restraint and sought clemency ‍​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​​​‌‌​​​‌​‌‌​​​​​​‌‌​​​​​​‌‍significant trial counsel do was eliminate to a number of in- Wilkerson, speculation through complete and accurate generally mates. See Isabel possibility Clemency information about the of clem- to 25 Granted Women Convicted Murder, ency. speculation jury ... The could Assault or N.Y. Dec. Times, for 1990, 22, (discussing have entertained is endless.”18 at 1 the grant of capable ready power of accurate and determination to commute a sentence does not violate Amendment, by accuracy Eighth applicable resort to sources whose cannot reasonably questioned.” study through be allud- states the Fourteenth Amendment. Ramos, 992, proper subject judicial ed to here is not a See v. 463 U.S. California (1983). According notice. to the limited information S.Ct. 77 L.Ed.2d 1171 brief, reply study has taken weeks study or months and similar has never be- may grant reprieves, 19."The Governor com- subject fore been done. Its matter is neither mutations, conviction, pardons, and after for "generally jurisdiction known” within the nor except all offenses treason and cases of im- study do the conclusions of such a seem to be peachment, subject regulations to such "capable ready of accurate and determina- V, may provided by be law.” Ind. Const, art. tion” resort to sources cannot be § applications 17. Such are to be filed with reasonably questioned. board, parole which shall make a recom- (1) notifying mendation to the Governor after (A) language 17. This was added to the statute in court, (B) sentencing the victim the 250-1993, 2,§ 1993. See Pub.L. kin, 1993 Ind. (C) prosecuting crime or next of Acts 4481. attorney county where the conviction (2) conducting investiga- was obtained and Dye giving hearing. § concedes an instruction tion and 11-9-2-1 Ind.Code (1998). governor that tells the that the has the to-2 ” State, v. (quoting Spranger Rich- decision.’ Id. Ohio Governor clemency by former (1986)). 498 N.E.2d 947 n. killing convicted of to women ard Celeste al- companions husbands or assaulting Dye contends that the death sen them). abused physically to have leged appropriate tence is not when the one modifying not err The trial court did aggravating circumstance is weighed clemency. Dye’s tendered instruction against mitigating presented, Appropriateness VI. particularly alleged “residual doubt” the Death Sentence surrounding guilt. generally See Mil (Ind. State, ler v. Dye appro attacks the point, a final As 1998) (describing “residual doubt” and Accord of his death sentence. priateness holding argue that the failure to it to a statute, subject a death sentence is ing to jury does not constitute ineffective assis by this Court. See “automatic review” counsel). alleged tance of The State as an 35-50-2-9(j)(1998). Although § Ind.Code circumstance that killed aggravating authority has the constitutional this Court having Hannah.20 Celeste after murdered sentences, Ind. Const. review and revise 35-50-2-9(b)(8) (1998). § See Ind.Code VII, § it will not do so unless art. testimony offered the of six witnessеs “manifestly unreason imposed is sentence found penalty phase.21 at his of the nature of the offense light able aggravator outweighed that the miti of the offender.” Ind. and the character gators and recommended that the death 17(B). has ex Rule The Court Appellate imposed. sentencing be After a whether in this standard as “not plained hearing presented at which the testi the sentence is unreason judgment our witness, mony of an additional able, clearly, plainly, it is but whether agreed22 imposed court the death sen (Prowell obviously so.” tence. (Ind.1997), 563, 568 cert. de N.E.2d — -, nied, sentencing explic- trial court’s order 119 S.Ct. U.S. (1998)). itly rejected Dye’s argu- a “residual doubt” reviewing L.Ed.2d 83 ment, however, evidence more sentence, finding noted that that the “was we have beyond a reason- prove more as than sufficient to requirements harsh ‘stand “these able that the defendant committed review than as doubt guideposts appellate for our charged. with which he was supporting a sentence murders pillars immovable alleged, separate County corrections’ officers testified on a Marion 20. The State also any problems day, they had сharging that- instrument filed on same never murdering Dye during pretrial incarceration. Final- his that killed Lawrence after However, ly, public from the De- jury present- a information officer was not Hannah. partment testified that 186 aggravating circumstance of Correction ed with this second general serving the 1536 men sentences the trial court make mention of it nor did sentencing prison population for were convicted sentencing or- murder its statement in twenty- killings. that multiple She testified der. fifty death row were men on seven County probation testified multiple A Marion officer On cross-exami- there for murders. probation- compliant during multiple his mur- was that nation witness testified ary sentence for a Class A misdemeanor bat- and that she did not means two or more der against Myrna. he tery “He did what committed offense the statistics for those who have supposed He finished his counsel- was to do. murders. three kept ing paid money his and he his and he III, State had Bracy, trial court found that the appointments.” Dr. Odie a 22.The clini- beyond proven aggravating neuropsychologist, circumstance testified that overall cal mitigating as a fairly normally.... was doubt and found Dye "presented reasonable [H]e "[a]lthough he defendant’s very cooperative, very friendly, presented no circumstance that prior cannot be during history of criminal conduct problems entire whatsoever sur- capability significant, the circumstances good to considered day.... He showed a instructions, learn, [against rounding battery conviction comprehend, [his] to follow to significant.” Myrna memory.” was] Three in 1992 and exhibited an excellent ‘residual doubt’ when consider- with used carpeting, There no used furniture and a ing the doubt standard.” The reasonable dirty mattress.” We are no persuad- more sentencing trial court’s order recounted by Dye’s ed argument residual doubt than against Dye including some of jury were the and court. Residual palmprint was found on a that his left presents doubt no basis reversal here. found, near where Hannah was table point, As a final we observe bloody fingerprint gar- was found on a his Dye points alleged to no other mitigating tag lying body, ment near Hannah’s circumstances, significant found on a save his lack of a that his semen was washcloth body. found next her history to criminal found the trial court. Considering nature of the offense and Dye’s argument ap- on residual doubt the character of the offender as presented peal pieces focuses on a few of unidentified through the proffered mitigating evid evidence, specifically hairs found on Han- ence,23 we are persuaded to revise chest, crusty nah’s a dried substance found this sentence. hair, thigh pubic on her as well Dye’s footprints absence of outside the

apartment, the absence of fingerprints Conclusion picked the area where he must have up Walter convictions for murder and fingerprints knife and the absence of death sentence are affirmed. the hammer believed to have been used to bludgeon Hannah and Celeste. He also SHEPARD, C.J., and DICKSON and points fingerprint was found on a SELBY, JJ., concur. glass Myrna’s apartment and was com- pared twenty people may who have SULLIVAN, J., separate concurs with apartment been inside the (including Dye), opinion. but remained unidentified. Defense coun- sel free argue- argue— did —and SULLIVAN, Justice, concurring.

these items to the guilt both the I concur in opinion. the Court’s I write and penalty phases and to the trial court provide additional review of the appro- However, sentencing. light of the priateness of the death imposed sentence significant physical evidence that connect- here. Cooper v. murders, ed these (Ind.1989) (“In appellate contrast to trial court persuaded by were not these prison few review of terms accompany- loose ends. Some of this is and its evidence attributable, arguably ing strong points presumption as the State the trial out, Myrna’s to the fact that court’s sentence appropriate, furnished is this apartment filthy, “was a oft-rented unit capital Court’s review of cases under arti- "present- compliant contends that the evidence ap- behavior because "it does not jury primarily painted ed .to the pear sentencing [him] as an in Skipper, [the] order.” In average psychopatholo- Joe with no serious Supreme the Court held that it was error for gy.” points He history, to his stable work a state trial court testimony to exclude the of " compliance probation jailers terms and ‘regular cor- and a jail visitor’ to the trial, awaiting rections officers while petitioner the good effect that had ‘made testimony brother’s capable adjustment’ that he was not during spent jail.” his time in killings, of the and daugh- a letter from his Id. at 106 S.Ct. 1669. The Court ob- telling ter him that she missed and loved served that the exclusion of this "relevant However, Dye points him. only po- mitigating impeded sentencing one the tentially mitigating alleged jury’s ability carry circumstance out its task of consid- ering have been overlooked the trial court all relevant facets of the character and Citing based on this Skipper evidence. record of the individual offender.” Id. at Carolina, South 476 U.S. Skipper's jury. 106 S.Ct. 106 S.Ct. 1669. Unlike (1986), 90 L.Ed.2d he contends that the testimony heard this and nevertheless apparently trial court overlooked the testi- imposed. Skip- recommended that death be mony per presents corrections officers about his no for basis reversal here. sentencing aggravating circumstances of one of the list- part parcel and the cle is judg- penalty in relying than ed the death statute exists. process. Rather 35-50-2-9(k)(l) court, § conducts (Supp.1996). of the this Court ment trial Ind.Code mitigating aggra- Second, any own review of its the trial court must find ‘to whether examine vating circumstances circumstances that exist are mitigating ... appropriate.’ sentence of death outweighed by the circum- aggravating indepen- and relative thoroughness § Id. stance circumstances. 35-50-2- part of Court’s review is 9(k)(2). dence of this Third, making the final before capital punishment makes Indiana’s sentence, what the trial determination of the omitted). constitutional.”) (citations statute jury’s court must consider the recommen- 35-50-2-9(e). § dation. Id. The trial the death appropriateness As to the of court must make record of its reasons case, guides in the statute this this penalty imposes. selecting the sentence that it by setting forth standards review Court’s (1988). §Id. 35-38-1-3 of death sentences. imposition governing guilt phase of the of Following completion sentence, imposing the trial the death rendering jury’s trial of beyond a proved court found that the State verdict, for the the trial court reconvenes a charged reasonable doubt aggravating sentence phase. Before a death penalty penalty in circumstance listed the death imposed, penalty our death statute can be multiple statute —-that had committed prove a rea- requires beyond State sup- murders. The record and law cir- aggravating at least one sonable doubt ports finding. this (b)(1) listed subsections cumstance way The trial court found little of (b)(12) of the statute. Ind.Code through to exist. The mitigating circumstances § Here the State (Supp.1996). 35-50-2-9 Dye’s history of only prior court found penalty for the death supported request its (he significant criminal conduct was not circumstance that aggravating with the A convicted two misde- had been Class (those multiple murders committed Suspend- Driving While License meanors — Jones), §id. 35- Clay and Celeste Hannah 1992). However, Battery ed in 50-2-9(b)(8). did that the circumstances the court note aggrava- To the existence of this prove surrounding battery significant were penalty phase at the ting circumstance battery Myr- because the victim of the trial, the evi- upon the State relied considered, Dye. The also but did na court of the guilt phase dence from the earlier exist, statutory miti- find to additional (with respect to which the trial purported and other gating circumstances murders, two Dye guilty found of the IDye. mitigating circumstances offered Cowherd). the murder of Lawrenсe well as and this agree with the court’s requires statute analyses mitigation this Court’s weighed circumstances be any mitigating mitigating weight to be find the case and proven aggravating against properly range. in the low The Court’s accu- opinion circumstances. by penalty our death stat- required As rately Dye’s argument in favor describes ute, specifically the trial court found circumstances. The re- mitigating outweighed aggravating circumstance recommendation that turned unanimous The trial mitigating circumstances. imposed. death be a sentence of jury’s gave court also consideration the jury Once has made its recommen- imposed court The trial recommendation. dismissed, dation, and the trial sentence of death. duty making the final court has the First, of the record and my Based on review sentencing the trial determination. law, proven has agree I that the State proved must find that the State has court an aggravating doubt beyond that at a reasonable beyond a reasonable doubt least pen- authorized our death circumstance and that

alty mitigating statute cir- that exist are outweighed

cumstances aggravating circumstance. I conclude ‍​​​‌‌‌‌​​‌‌‌‌‌​​‌​‌​​​​​‌‌​​​‌​‌‌​​​​​​‌‌​​​​​​‌‍is appropriate of Hannah Clay, murder Celeste

Jones and Lawrence Cowherd III. JOHNSON, Appellant

Terri J.

(Plaintiff Below), ASSOCIATES, INC.,

SCANDIA Oxford

Management Company, Appellees,

(Defendants Below).

No. 06S01-9506-CV-785.

Supreme Court Indiana.

Sept. See notes and 7.

Case Details

Case Name: Dye v. State

Court Name: Indiana Supreme Court

Date Published: Sep 30, 1999

Citation: 717 N.E.2d 5

Docket Number: 49S00-9801-DP-55

Court Abbreviation: Ind.