Games v. State
535 N.E.2d 530
Ind.
1989
Check Treatment

*1 (1984), Ind., 466 Barger See also

N.E.2d 725. trial court is af- judgment firmed. C.J., DeBRULER,

SHEPARD, PIVARNIK, JJ., coneur. GIVAN and GAMES, Appellant James (Defendant Below), Indiana, Appellee STATE (Plaintiff Below). No. 185 S 7. Supreme of Indiana. Court

March *3 penalty was robbery. The death

commit ordered. presents appeal, defendant direct for our review: issues

eleven after sentence count filing of death date; omnibus constitutionality of Indiana's statute; Special Motion of defendant's 3. denial Discovery; Ad- Motion for of defendant's 4. denial Ques- Questions on Juror ditional tionnaire; alleged prose *4 trial court control 5. misconduct; cutorial photographic evi- admissibility of 6. dence; by de- admissibility of letter written 7. fendant; allowing substantive 8. accomplice before from defendant's of details revealing to the negotiated plea accomplice's agreement; penalty as dis- death imposition of sentence; accomplice's from parate mitigating cireum- 10. consideration

sentencing; and at stances penalty as constitutionality of death justice.

vindictive show that at trial facts adduced The defen- eighteen-year-old July accomplice, fourteen-year-old his dant and robbery scheme Tillberry, plotted a Earl Fer- Thomas to lure whereby they intended defendant, into ree, acquaintance of an home, they where to his taking them head, up, himtie on the hit him planned to in his car. stereo, escape then and take Ferree, Ferree and contacted Tillberry and the defendant agreed to meet ap- Shields, Indianapolis, for K. George home. near defendant's at a market pellant. a homo- was that Ferree indicates evidence Gen., E. Pearson, Louis Atty. Linley E. from favors anticipated sexual sexual and Gen., Indianapolis, Ransdell, Deputy Atty. evening early In the conspirators. appellee. met the defendant Ferree 'July to them and drove planned Tillberry as and DICKSON, Justice. Tillber- and defendant While his home. kitchen, Tillberry told in the alone ry Games, were R. Defendant-appellant, James "making pass- Ferree was murder, to defendant conspiracy guilty of found was would Ferree Expecting that him. es" at conspiracy to murder, robbery, and commit (Ferree) Tillberry accompany ask him following dant claims the harm resulted shower, a) upstairs thereby: urged sentence; to take a he received the defendant death b) he forced Tillberry continuance, consent and to seek a then to stab Fer- gave the State additional time they up ree in the as back walked complete locate witnesses and key plea anticipated stairs. Ferree made the re- agreements; c) quest Tillberry, plan put preparation and the and his tactical was harmed. following up into motion. While Ferree stairs, Tillberry pulled folding a concealed The State contends Ind.Code pants knife from his and stabbed Ferree apply 35-34-1-5 does not to informations § around, fell, the back. Ferree turned and requesting imposition of the prone position landed in a at the bottom of and, alternatively, that defendant suffered the stairs. The defendant then attacked prejudice. no actual victim, punched him his fists with provides: Ind.Code 35-84-1-5 pulled then the knife out of his back and (a) An indictment or information which repeatedly stabbed him while the victim charges the commission of an offense struggled. Tillberry Defendant ordered may not be dismissed but be amend- provide weapons, him some other ed on prosecuting attorney motion Tillberry complied. Using an assortment any at time because of immaterial knives, fireplace a meat cleaver defect, including: poker, defendant continued to stab and (1) Any miswriting, misspelling, or bludgeon the victim. When defendant and grammatical error; Tillberry apparently were startled (2) Any misjoinder parties *5 defen- alarm, buzzing they took the victim's car charged; dant or offenses quickly left the ap- scene. The victim (8) presence any of unnecessary parently shortly died thereafter as a result repugnant allegation; multiple of the stab wounds to his head and (4) The negate any excep- failure to back. tion, excuse, provision or contained in the defining offense; statute the 1. Timeliness Filing Death of (5) disjune- The use of alternative or Sentence Count acts, allegations means, tive as to the The State filed its four-count information intents, charged; or results 18, July hearing 1983. At the initial (6) Any mistake the name of the following day, September the trial court set action, county court or in the title of the 26, 1983, as the omnibus date. On October statutory provision alleged or the to have days six before the then-sched- violated; been date, uled trial the State filed an Informa- (7) The failure to state the time or Sentence, tion for Death to which defen- place at which offense was commit- dant filed objections. Following written ted place where the time or is not of the presentation arguments pre-trial at a offense; essence conference, the trial court overruled the (8) The failure to state an amount of objections expressly grant- but price any value matter where that ed opportunity defendant the any to "file price value or is not of the essence of the motions to dismiss directed the in- toward offense; or formation for death sentence." After mo- (9) Any other defect which does not tions for continuance on behalf of both prejudice rights the substantial of the parties, finally trial commenced on defendant. 27, February (b) The may indictment or information

Defendant claims that reversible er amended in be matters of substance or ror was committed form, when the trial court and the names of material witness- accepted the State's information for added, may es be prosecuting upon attorney, giving written notice to date, sentence filed after the omnibus defendant, violation of Ind.Code 35-34-1-5. Defen- any up at time to: § filing origi seeking, after the of the from is (1) days if the defendant Thirty [30] information, enhancement un sentence nal felony; or charged a In Ho offender statute. der habitual if the defendant (2) days Fifteen [15] 589, Ind. ward more misde- one or charged only with 628, meanors; omnibus date. before 708, we held 58 L.Ed.2d indictment is information or When to be permitting an information signed by prosge- amended, it shall be sta- charge offender habitual amended cuting attorney. charging of did not constitute tus at- prosecuting (c) motion of the Upon prejudice not separate crime and did any time be- may, at torney, the court appellant. The rights of the substantial trial, permit an fore, during, or after applied in Gilmore holding in Howard or informa- indictment to the amendment 134, defect, imperfec- any respect tion in of a delayed addition permitted not tion, which does in form or omission offender count: habitual rights of the the substantial prejudice any amended at information An defendant. long before, during or after trial so time any indict- (d) amendment Before prejudice the substantial as it does not other than amend- information ment or the habit- the defendant. Since rights (b) of this provided subsection ment as impose pun- criminal statute does ual give parties all section, shall the court pro- separate crime but for a ishment intended amend- adequate notice the crime penalty for a more severe vides to be heard. opportunity ment and an given defendant was charged and since amendment, the such Upon permitting defense, an prepare adequate time shall, by the defen- upon motion court criminal to add the habitual amendment pro- dant, continuance order prejudice the substantial did not count necessary to ac- may be ceedings which defendant. rights of the opportunity adequate defendant cord the 85-84-1-5, also at 73. See defense. prepare Id. at [IC Barnett P.L. by Acts as added *6 Ind., 320-1988, 21; (1984), 468 204, 625; 1982, PL. PL. § Radford N.E.2d § 18.] statutory fil prescribed While the that the amend- agree the State We a belat applicable, here sequence is not prescribed and limitations procedure ment improper will be penalty request death ed preclude informations 5 do not by section a defendant's prejudice operates if penalty it the death imposition of requesting question, we this rights. On charging in- substantive initial subsequent to the filed that, following significant particularly find formation. trial request, penalty filing of the death sen- to enhance the may seek The State four months. more than occur for did not pursu- penalty death by seeking the tence granted. sought and were Continuances 85-50-2-9(a), re- to Ind.Code ant fol resulting harm in the claims Defendant request filed "on a quires that such the death He received lowing particulars: charg- separate from the rest page per resulting time sentence; additional re- This enhancement ing instrument." evidence, enhance its mitted the State when prescribed analogous to that quest is tri request impaired penalty and the person a sentenced seeks to have the State tactics. diligence preparation, al to Ind. pursuant offender as a habitual to defendant's prejudice of The element Discussing the rela 85-50-2-8. Code § fact by the rights is not shown autho- substantial statute previous a tionship between or receives ultimately convicted he is charge, a rizing the amendment Ind., (1983), 453 is whether sought. The issue penalty v. Hicks Court State 1018, fair trial was 1014, opportunity for a the amend held N.E.2d defendant's pro- by the denial detrimentally affected preclude the did not State ment statute 536 opportunities 338, cedural 357-58, for ascertainment 417 N.E.2d cert. de of truth to which he otherwise (1982), would have 1122, nied 458 U.S. 3510, 102 S.Ct. entitled,

been We conclude that the belat- 73 L.Ed.2d 1384. See also Resnover v. filing penalty ed of the death information (1984), Ind., 922, State 460 N.E.2d cert. ensuing and the delay four-month did not (1984), 873, denied 469 231, U.S. 105 S.Ct. impair opportunity for a fair 160; 83 L.Ed.2d (1983),Ind., Schiro v. State trial in this case. 1047, 451 N.E.2d (1983), cert. denied 464 1003, 510, U.S. 104 S.Ct. 699; 78 L.Ed.2d fact that State's evidence (1982), Ind., Williams v. State 430 N.E.2d strengthened have been is not inconsistent 759, appeal (1982), 808, dismissed 459 U.S. with the ascertainment of truth. addi- 33, 47; S.Ct. 74 L.Ed.2d Fleenor v. tion, delay we are not convinced that the (1987), Ind., 80, State 514 N.E.2d cert. de operated any improper imposition cause -- (1988), nied --, U.S. 189, 109 S.Ct. upon defendant's trial tactics. 102 L.Ed.2d 158. (1981), Defendant cites Trotter v. State points Defendant also Ind., 637; out (1984), Gillie v. State statutory Indiana Ind., scheme 1380; require fails to 465 N.E.2d and Humphrey v. that the death 597, predicated sentence be 631, State finding, beyond doubt, support argument of his reasonable amend- mitigating prejudiced ed information circumstances are out- substantial weighed totality aggravating rights. However, these cases did in- volveindictments or informations amended omission, contends, circumstances. This he request renders statutory habitual offender our sentence en- scheme violative of imposition eighth (cruel hancement or penal- of the death amendment and unusual ty. punishment clause) and fourteenth amend- (due process clause) ment of the United We find no error on this issue. States Constitution and the counterparts in Constitution, I, Indiana article section 2. Constitutionality Death 16 and section 12. This rejected Court Penalty Statute essentially argument the same in Spranger Defendant advances numerous ar (1986), Ind., 931, State cert. guments in support of his contention that denied 481 U.S. 107 S.Ct. statutory Indiana providing scheme 95 L.Ed.2d Moore v. State imposition the death per se unconstitutional. L.Ed.2d Daniels v. A. 453 N.E.2d 160. We have reconsidered our argues that the Indiana statu- light conclusions in of defendant's conten- *7 tory scheme allows the death penalty to be authorities, tions and but argu- we find no inflicted in arbitrary, an capricious or presented ment here already that has not "freakish" by vesting manner unbridled fully been considered. discretion in sentencing authority. This Court has addressed this issue on nu- B.

merous occasions and consistently held that "our statutory procedural and scheme lim- challenges Defendant Ind.Code its imposition 35-50-2-9(e) death in sentences permits because it § sen such a manner as to assure they tencing judge impose will penalty death not be inflicted in arbitrary capricious an or despite contrary jury recommendation. manner, upon and provisions that basis the argues He provision that this is violative of thereof for sentences of death violate nei- process both the due clause of the four ther Eighth Amendment to the Consti- teenth amendment and the jeopardy double tution of the United States nor its counter- clause of the fifth amendment of the Unit part Constitution, in I, our State Article ed States Constitution and their counter (1981), Sec. 16." Brewer v. parts State 275 Constitution, Ind. in the I, Indiana article

537 legis- disagree the contention that first We 14. We observe 12 section and section promulgation of mandates the lative intent position to raise not in a that defendant penal- of death rules for the review special recom- in this case jury issue as the this repeatedly held that our ty cases. haveWe Notwithstand- sentence. mended the death allow appellate review standard rules fact, Supreme Court meaningful appellate re- requisite for the this issue ad- has decided United States Bieghler, penalty death cases. See view of position. Spaziano versely to defendant's Moore, supra; Lowery v. State 447, supra; 104 S.Ct. (1984), 468 U.S. Florida v. 1214, 478 N.E.2d per 3154, (statutory scheme L.Ed.2d 340 82 1500, 1098, 89 (1986), recommenda jury mitting judge to override Ind., 900; or L .Ed.2d Smith eighth amendment not violative tion clause). 1105. jeopardy double fifth amendment adversely this issue decided have also We reject defendant's conten- therefore We Schiro, su position. See to defendant's penalty Indiana death scheme tion that the (1985), Ind., 481 pra; Bieghler is unconstitutional. (1986),475 U.S. 78, 94, cert. denied 1241, 89 L.Ed.2d 1031, 106 S.Ct. Discovery Motion Denial 4. Ind., Thompson v. State seeking dis- motion Defendant filed a us with 264, provided has Defendant since Octo- police reports filed covery of all has not al- rationale that authority or no investiga- 1977, detailing 1, homicide ber by this Court. considered ready been of Indiana that resulted in the State tions pri- charges. The filing of murder in the C. facilitate defense mary purpose was to contends of evidence to presentation Defendant counsel's is unconstitu penalty statute Indiana death support of his constitutional court trial un prosecutor penalty it allows the death argument tional because seek the whether to man- sought discretion as to a uniform being applied bridled system. Ind.Code justice penalty. throughout See our criminal death ner con 35-50-2-9(a). previously comparison We have that the contended argument during rejected this and of assistance sidered also be data would Resnover, supra; mitigation pur- Bieghler, supra; negotiations and plea during court Williams, supra. See also Smith and trial poses before 1066, 1984, January cert. trial. On the defendant's - --, U.S. S.Ct. defendant's month before denied more than one reconsidered granted have trial, 102 L.Ed.2d We court the trial reports ar light of defendant's limited it to discovery conclusions our motion but concerning and 1983 filed between to our view guments, yet we adhere only. subse A law County dictated statute procedures in Marion homicides request the re- filing death to conduct quent employed student was inflic than capricious on more arbitrary compiled data prevent the He search. Resnover, 460 in Marion penalty. occurred tion of the homicides that De- January County N.E.2d at between in an affidavit stated cember but de- Department Indianapolis Police D. *8 records to access to him nied sufficient that Indiana's asserts Defendant 800 other more than details of evaluate fail to provisions statutory penalty death County in Marion that occurred homicides legisla manifest comply our State's with period. during the same pro of a of an absence policy because tive argues re the trial appellate affording adequate now Defendant cedure by limit- virtually identical reversible error argument is committed This court view. Fur- discovery request. ing defendant's by this rejected that considered substantial Resnover, ther, at 929-30. he incurred 460 N.E.2d he contends Court the Indianapolis harm as a result of Police the trial court to decide evaluating after Department's cooperate fully failure to request reasonableness and the discovery with the order. necessity requested information for preparation of the defendant's case. The respect imposi to the trial With court's upon relative burden appro- the State is an scope tion of limitations on the of defen priate (1983), consideration. Jones v. State discovery of files related to homicide dant's Ind., 449 N.E.2d 1060. investigations, first we note that the trial discretionary court has wide latitude in dis respect With to defendant's covery ruling matters and its will not be contention that he incurred substantial appeal showing a overturned on absent Indianapolis harm as a result of the Police resulting prejudice. Wag clear error and Department's noncompliance with dis (1985), Ind., ner v. State order, covery argument we find the to be (1982), v. 436 N.E. Williamson State Although without merit. discretionary it is present 2d 90. Neither is here. sanctions, impose with court to a con State, v. we noted that the Smith usually tinuance is proper deemed the rem eighth and fourteenth amendments to the discovery edy by for a violation the State of require United States Constitution do not (1984), Ave rhart orders. Ind., compare us to the death sentences in the cert. denied penalties imposed case us before with 471 U.S. 105 S.Ct. 85 L.Ed.2d (citing in similar cases. 465 at 1114 nothing 323. We see in the record to indi 37, 44, Pulley v. Harris 465 U.S. sought cate that defendant enforcement of 29, 36). 104 S.Ct. 79 L.Ed.2d discovery by calling order police Nevertheless, practice it is the department's noncompliance to the atten meaningfully systematically Court tion of the trial court. thusWe deem the penalty regard each case review death issue waived. for other Indiana cases to consistent, ensure the fair and even-handed Questionnaire Juror operation of Ind.Code 35-50-2-9. Bur ninety- submitted ris v. State questions one to the trial court and moved questions juror those be added to the 809; Resnover, supra. L.Ed.2d questionnaire normally prospec mailed to accomplished procedure This review is in a jurors. tive The trial court denied the mo statute, mandated codified rules and tion, and defendant contends rul now by precedent. Burris, controlled 465 N.E. ing constituted reversible error. Resnover, 2d at 191-92. See also 460 N.E. 929-30; Schiro, 2d at 451 N.E.2d at 1052- recognized purpose We have that the Resnover, aspect 53. As we noted in one pro- voir dire is to determine whether of our review entails an evaluation of all of spective juror impar- can render a fair and appellate arguable points counsel's in be tial verdict accordance with the law and client, merey half of for his and that this Murphy evidence. permit, require, if appellate

would Ind., 469 N.E.2d trial court has counsel find and direct this Court's atten discretionary powers regulate broad involving tion to cases similar factual dire, form and substance of voir it will circumstances that resulted similar or only upon showing be reversed of mani- punishment. dissimilar fest abuse of such discretion and a denial Marbley the defendant of a trial. fair this, It does not follow from how (1984), Ind., 461 N.E.2d 1102. ever, that defense counsel can automatical ly compel every police, argument disclosure of sheriff appears Defendant's to rest on police report detailing and state assumption proposed questions Indiana eliciting responses and method for would investigations homicide that resulted in the filing charges. of murder To limit such a improved juror process. have selection *9 discovery request purely Despite advantages arguably was a matter for whatever ex- It is settled that the trial court is proposed supplemental well in defendant's ist duty power and inherent to vested with method, to con- we are unable voir dire proceedings Marbley control the before it. any in prejudiced that defendant was clude (1984),Ind., 461 N.E.2d 1102. The ruling. the trial court's way as a result of proceedings any extends to duty to control jury selection The record reveals disruptive by parties potentially behavior days, of two process spanned the course attorneys in the case. Lawson involved examined during defense counsel effectively exercised jurors and prospective specific jurors eliminated right to have 3057, 69 L.Ed.2d424. The trial S.Ct. He has not contended from consideration. discretionary authori court's exercise its scope of his examination the actual ty reversed absent a manifest will be unreasonably any limited in manner was of discretion. Green v. State abuse process. We are unable to the voir dire discretion; thus detect a manifest abuse error. we find no case, the trial In the instant we view request counsel's

court's denial defense subsequent to instruction Prosecutor Prosecutorial Conduct logical compromise as a fair and Goldsmith Immediately presen before countervailing of the interests involved. case-in-chief, defense tation of the State's pre- have Goldsmith's schedule well judge a con articulated to the trial counsel during trial. presence cluded his the entire County Prosecutor regarding Marion cern Nevertheless, we have no to conclude basis presence Stephen Goldsmith's intermittent from the that he should have been banned proceedings. the trial during the course of altogether. certainly He proceedings had exhibited a Apparently, Goldsmith present and to assist entitled during tendency to sit at counsel table long presentation of its case as State in the and leave the parts proceedings of the compliance the court's as he did so during portions. Defense courtroom other find no merit instructions. We thus the intermit concerned that counsel was the trial court's contention that popularly presence tent of a well-known error. ruling itself constituted reversible public official such as Goldsmith elected Likewise, disagree we that reversi highlight certain testimo could be used to Prosecutor Gold error occurred when ble expect "some ny jury would because entered three different occasions smith on special" occur coincident with thing during course of the courtroom Thus, defense appearances. Goldsmith's note first that defense proceedings. We from the court sought an order counsel three objected of the counsel never either all or requiring to attend Goldsmith trial, objec explains He that such an incidents. judge The trial denied none more attention drawn even tion would have request admonished Prosecutor but and made his ac presence to Goldsmith's distraction, he to avoid Goldsmith However, apparent. defense tions more only courtroom enter and exit the should opportunity pose had sufficient counsel court recessed. when presence or hear objection outside the an points to three instances ing request a second ad entered the Prosecutor Goldsmith where so, to do By monishment. his failure proceedings trial were courtroom while the issue was waived. trial process and now contends that the Notwithstanding defendant's waiv by deny- error committed reversible court of error er, note that this claim we further Prosecutor Goldsmith request entrances merits. Goldsmith's fails on the all or none of defen- to attend be ordered trial, courtroom, although in contraven con- into the Alternatively, defendant dant's admonishment, actions that Prosecutor Goldsmith's do not tends of the court's tion analysis in this case. warrant reversal prosecutorial misconduct war- constituted (1976),265 Ind. Maldonado ranting trial. a new *10 540

498-99, 843, 848, 355 N.E.2d is A instructive of the record review reveals that Gold- on this issue: smith's entrances into the courtroom while progress the trial in place did not the A number of in this cases Court and position defendant in grave peril. of Appeals

the Court of have considered the during first instance occurred the direct problem improper of by conduct at trial examination of the State's first witness. prosecuting attorney, the and the effect The second and third instances such conduct should have on occurred convictions during the course of the under review. From these cases the fol- State's direct ex- lowing procedure emerges of investigating for the deci- amination two of the offi- "prosecutorial sion of perceive misconduct" cases: cers. We are unable to dis- ruption in proceedings as a result of 1. The Court first determines that the prosecutor engaged in fact in miscon Moreover, these reviewing incidents. after specified duct. elicited after by This determination is made ref each incident, erence to the discipli case law and the we would be strained to conclude nary rules of the presence Code of Professional that Goldsmith's was intended to Responsibility adopted as highlight any particular this State. aspect of the See [148],325N.E.2d193. Swope v. State, (1975) [263] Ind. any way. We conclude that Goldsmith's State's case prejudice defendant 2. The Court then considerswhether actions did not constitute a deliberate at- tempt improperly prejudice misconduct, under all the circum- probable persuasive stances, "placed had no po- effect on the [the defendant] grave peril sition of to which he should jury. Such matters are best left to the subjected." not have been White v. proper discretion of the trial court. We (1971) State, 64, 78, 257 Ind. 272 N.E.2d find no of abuse discretion here.

State, (1973) courts to observe in standard does not find that the misconduct determined the 272 N.E.2d 319-20. This is the same standard which outcome of the trial. 752; 517, 312, 320, Ind.Dec. (1976) Ind. 297 N.E.2d 409. The Robinson v. [258], [265] 481; followed in Warner v. Ind. 342 N.E.2d Rufer 261 Ind. [262], White State, require v. ruling 354 N.E.2d State, (1976) White, 273, mandates trial (1973) "grave peril" the Court 301 N.E.2d on mistrial supra, Turczi v. 260 Ind. 178, State, [264] 54 at value of all three that State's Exhibit 16 was irrelevant trial court erred in outweighed by taken State's Exhibits sisted of passions issues at trial and that the during three Photographic Defendant next claims that the photographs their photographs autopsy. admitting jury. tendency Evidence 18, of the victim into evidence He contends which con to inflame probative clearly It is well settled that a trial court has motions. determining wide discretion in the admissi- 8. Whether the misconduct results in bility photographic of evidence and subjecting "grave peril" will not defendant to probable persuasive is determined showing be disturbed absent a abuse effect of the misconduct on discretion. jury's Van Orden v. State decision, degree improprie

ty State, Swope the conduct. su 85 L.Ed.2d pra. 851; Drollinger v. Ind. 1228; Wilson v. State 4. Even if an isolated instance of mis 268 Ind. 374 N.E.2d 45. Once grave peril, conduct does not if it establish photograph established that a is a true and repeated instances evidence a deliberate attempt improperlyprejudice the de representation accurate of that it is fendant, portray, admissibility a reversal still intended to its result. turns question relevancy. on the Drollinger, State, (1973) Robinson v. (1973) Wilson, State, supra; supra. Photographs Garrett v. are [157] Ind.App. [426], 300 N.E.2d 696. relevant if they depict scenes that witness- defen- as to the verbally. photograph irrelevant permitted to describe es would *11 in role the murder. dant's the issue whether germane to the Also a illustrative of witness's photographs are lac- depicted numerous Exhibit 17 State's prove the cause testimony and tend rear of the victim's top on the and erations Orden, photo- supra. If a death. Van portrayed multi- 18 head. State's Exhibit relevant, it should be ad- deemed graph is in inflicted the victim's ple stab wounds tendency to unless its mitted into evidence illustrating the nature In addition back. clearly jury of the passions the inflame wounds, photographs assisted the relevancy. outweighs Ferry v. State its the cause of Baenziger explaining Dr. 207; Ind., Askew v. only rele- was death. Such Ind., Al 439 N.E.2d 1350. was prosecution, murder but vant in a it gory, may depict photo- revolt though photo the case. The necessary to the State's they accordingly relevant as graphs crime, were inflammatory details of the they for not, itself, scope sufficient of the rule that by a basis fell this is within which a witness Ferry, supra; depicted scenes about from evidence. its exclusion testify. Drollinger, permitted to would be N.E.2d Akins Moreover, to illustrate they served supra. Wilson, supra; Sotelo Drollinger, supra; Baenziger's testimony and tended to Dr. Orden, death. prove the cause of Van supra. case, see no error In instant we prej- argument support In challenged ex- admitting into evidence photographs out- effect of the udicial Dr. C. first John We note hibits. value, defendant weighed probative their performed Baenziger, pathologist who more photographs were suggests that the photo- all three autopsy, testified that necessary than because vic- gruesome portrayed the fairly accurately graphs and are appears and the wounds body wet tim's the blood had been wounds after victim's light. We dis- portrayed in an unnatural depicted away. Exhibit 16 State's washed assessment. defendant's agree with bruising and numerous lacera- substantial repugnant, but depicted are indeed scenes face and forehead. the victim's tions about tendency to in- say that their cannot we pho- argues particular this Defendant clearly outweighed their flame the of de- to the issue tograph was irrelevant not error to admit It was probative value. bruising depict, guilt because fendant's into evidence. them by the caused photograph in the ed Tillberry, accomplice, Earl who Letter 7. Defendant's kicked the victim he twice testified that next contends Defendant merit. argument is without face. This admitting into evidence erred in trial court that defendant beat Tillberry testified 61A, letter a handwritten Exhibit State's his fists and the head with victim about signed by the and to "Mom" addressed Thus we are unable fireplace poker. from received the letter Police defendant. bruising depicted in agree that all of the brother, Games, the defendant's Michael by Tillberry. caused photograph was mur days after the victim's July three addition, depicts numer- photograph part as follows: letter reads der. The face and the victim's ous lacerations about "to Mom by forehead, inflicted other apparently I didton mom but you I vere mush love photo- Baenziger used means. Dr. put i I sore mom woat to kill hem woit others, illus- along the two graph, i mash time I cant do that you thyoo. types of wounds different trate the my i no todo whit it. so woat cant do variety that a explain his conclusion you i no are I desove to live dod sailfe. inflict those wounds. used to weapons were you mom. Ime. dod banm sham a explain the testimony served to Tillberry's good bey Mom injuries to the vic- of some of source mush you vere vere necessarily render love does not tim's face but Jimmy killing /s/ Games" debt the victim to avoid payment; properly thus it was admitted argues that because the letter party exception under the admission to the who, if anyone, does not indicate defendant hearsay rule. killing, sorry the letter was of no probative question to the value of defen- Likewise, reject we must here the notion guilt merely fury dant's invited undue probative that the letter was without value. speculation. clearly The letter manifests a conscious- guilt ness of contains statements tendency Probative value is the of evi- *12 which, the defendant when taken in proposition con- dence to establish the that it is evidence, junction with other may lead to prove. a offered to on McCormick Evidence logical inference that defendant 1984). was refer- (Cleary at 541 3d ed. In his - ring to in the victim this case. Defendant probative value, discussion Professor has authority, cited no nor any, can we find Cleary states: support proposition that for a system, by Under our molded the tradi- admissible, person statement to be a re- jury predominantly tion of trial and oral ferred to in the statement must be identi- proof, party a offers his evidence en by fied name. masse, item An by but item. item of evidence, being single but a link in the appropriately Defendant has conceded proof, prove chain of need not conclusive- properly that the letter was authenticated ly proposition the by which it is offered. handwriting expert compared a who the It need proposition not even make that handwriting exemplars letter to known to appear probable more than not. Wheth- have been written the defendant. The body er party's the entire of one letter evidence therefore constituted an "admission" go jury ques- properly is sufficient to and was is one admitted into evidence party under the exception admission to the particular tion. a Whether item of evi- hearsay dence rule. is relevant to his quite case is enough another. -It is if the item could Accomplice Testimony reasonably slightly show that a fact is probable more appear than it would with- assignment Defendant's next of er out that proba- evidence. after the Even predicated ror is on the State's failure to tive force of the spent, evidence is fully plea agreement disclose details of a proposition for which it is offered still negotiated accomplice, with the defendant's quite improbable. Thus, can seem Tillberry, prior Tillberry's Earl to substan objection common that the inference for testimony concerning tive the murder. which the fact is offered "does not neces- The record reveals that toward the end sarily poses follow" is untenable. It Tillberry's examination, direct he admit- standard of very conclusiveness that few entering plea agreement ted into a with the single items of circumstantial evidence testifying pursuant State and that he was ever could A meet. brick is not a wall. cross-examination, agreement. to that On Evidence, supra, McCormick on at 542- vigorous defense counsel launched a attack Tillberry's credibility by eliciting congruent

These observations are agreement. details of plea agree- provided 275 ment exchange that in for Tillber- holding our Waters v. State ry's plea guilty to testimony murder and Ind. where state against case, the defendant in the instant prosecution witness a murder testified that he had overheard agree defendant tell his drop State would to three father, worry charges "You don't have to about the and recommend a reduced sen- money. Despite It's all taken Tillberry care of." tence. also admitted a concern objection testimony State, that if cooperate he did not with the immaterial, was irrelevant and we held that he could face possibility longer of a the statement tended to indicate prison possibly sentence and face the death defendant problem had "taken care" of the penalty.

Despite apprised ultimate disclosure of the fact-finder to be "deals" details, agreement plea the defendant con- tend to cause or influence the fully tends that the State's failure to dis- testimony. witness's Defendant has failed Tillberry's details exten- prior close the cite, and our research has failed dis- testimony against the defendant sive close, any authority proposition for the deprived the defendant to be of due caused agreement plea the existence of a must be guaranteed process as the fourteenth prior disclosed to the fact-finder to the amendment to the of the Unit- Constitution testimony concerning witness's substantive ed States. boldly the crime. Defendant asserts that failure to State's disclose the details of support argument, In of his defendant plea agreement prior Tillberry's sub- primarily line of relies on a cases from this stantive holding plea agreements resulted be- Court be effectively gauge unable to Tillberry's tween State and a state witness must fully credibility. disagree. to the disclosed trier of fact. We Defendant's ar- gument jury's capacity underestimates the Newman v. State Ind. 684, 686-87, stated: we credibility to reevaluate the of a witness's *13 testimony following the accomplice An who turns "state's disclosure of evi- agrees "cooperate" indicating facts jury dence" and with witness bias. The leniency fully the in consideration of here apprised State of the details of the State, charges by and, the dismissal of to plea agreement trust, quite we competent realistic, bribed, credibility being to evaluate the of Till- regardless be is public policy approved the fact that has berry's light testimony in of the terms of such action in the interest of effective agreement. We find no error. necessarily law enforcement. It does not follow that because of inducements of- 9, Penalty Disparate Death as From accomplice testimony fered to the Accomplice's Sentence is, however, highly suspect. false. It Defendant contends that the trial pressure Because of the of such undue judge sentencing abused his discretion upon influence witness such cases light defendant to death in of the fact that jury should have the evidence relat- accomplice, Tillberry, Earl re type thereto. Such of influence natu- only fifty-five-year prison ceived a sentence rally impairs credibility of such a for his role in the murder. witness. previously reject We have addressed and In may this state a defendant be found arguments ed similar to this Brewer v.

guilty solely on the evidence of a con (1981), 338, 373-74, 275 Ind. 417 N.E. State accomplice. State, fessed Walker v. (defendant's (1934) 127; Payne 2d 909 death sentence not 206 Ind. 189 N.E. compared excessive or irrational when State, (1924) v. 194 Ind. 142 N.E. accomplice's sixty-year prison sentence); 651. Because human nature would tend accomplices against (1985), Ind., to cause to "unload" Young v. 482 N.E.2d 246 State partners their and desire to clear them (twenty-year prison appropriate sentence despite sentence); possible ten-year selves as much as co-defendant's blame a crime, highly such should be Ind., Gajdos v. State by (trial scrutinized or fact finder. judge 1017 by did not abuse discretion finding body Such fact should have be sentencing co-defendant to lesser term fore it all the relevant circumstances that defendant); Morgan than caused or induced such witness to testi (defendants' 275 Ind. 419 N.E.2d 964 including fy, the rewards for such testi sentences held not excessive or irrational mony. despite relatively light sentences of accom plices). See also Green v. State See also v. Jarrett State Ind., 41; v. Richey N.E.2d 967. Defendant's reliance on New- 389; Donner, (7th misplaced. man and other similar cases is v.U.S. Cir.1975), emphasize deciding These cases the need for the In 528 F.2d 276. 5A4A existing mitigating cir- supra, Justice Prentice stance and Morgan,

issue in aggra- outweighed by the stated: cumstances are vating circumstance or circumstances. situations, passed we have similar princi upon meted out to the sentences in rele- judgment The trial court's reads pals gleaned It and accessories. part vant as follows: one de from those decisions when Games, defendant, 1. That the James R. proceeds to trial and his accom fendant Robbery upon did commit the crime of guilty, need plice pleads sentences person H. Ferree on the of Thomas not be identical. This is reason of the July, day 14th guilty plea a and be special nature of during That the course of said Rob- plea such a does not result a cause defendant, Games, bery, R. James judicial on the merits. determination See victim, intentionally kill did Thomas (1978) State, Tessely v. by stabbing during Ferree the course H. State, (1973) N.E.2d Combs robbery of Thomas H. Ferree on short, 294, 295 366. In there Ind. said date. requirement consistency. is no aggravating 8. That such circumstances Likewise, in 419 N.E.2d at 969. the instant killing proven and intentional have been case, Tillberry fifty-five-year received beyond the State doubt. reasonable negotiated plea pursuant sentence to a Tillberry's did not agreement. sentence mitigating That circumstances preclude imposition penal- of the death defendant, youthful age were ty on the defendant. Games, R. and his relative inex- James perience. Moreover, the evidence reveals that dis- logically

parate sentences were warranted having pre 5. Court examined the sen- by the in this case. Tillber- circumstances evidence, report hearing tence and other ry the plan teen. was fourteen murder, and prompted Tillberry to inflict the whereas years old at the time of instigated defendant the was robbery eigh- does not factors. #k # find L # other # mitigating [*] aggra- 9. The Court now finds the first stab wound. Defendant administered that majority vating outweigh he the miti- the vast of wounds when circumstances bludgeoned gating judgment it stabbed and the victim with factors and is the of weapons, including various knives and a defendant, this that the James R. Court Games, penalty suffer the of death shall meat cleaver. charged for the offense of murder as We find no of discretion in the abuse Count Two. trial court's determination that defendant's culpability a more conduct and warranted Defendant first asserts that the penalty imposed upon than that his severe present State failed sufficient evidence accomplice. support finding the trial court's that the during murder committed the course 10. Consideration of issue, robbery. reviewing of a this we Mitigating Factors weigh conflicting not nor will will evidence allegation Defendant's next of error is judge credibility of we the witnesses. We premised on the trial court's consideration only look to the evidence most favor will application mitigating cireumstane- to the State and all reasonable infer able ' es. ences to be drawn therefrom. Burris v. provides Indiana Code 35-50-2-9 State § 1132, imposed only

a death sentence af- cert. denied U.S. S.Ct. jury's Loyd ter the court considers the recom- 83 L.Ed.2d mendation and then finds that the State

proved beyond a reasonable doubt the ex- 66 L.Ed. aggravating istence of at cireum- 2d least one 105.

Robbery is defined Ind.Code Moreover, the court trial obligated weigh to credit defen- 85-42-5-1 as follows: or § mitigating dant's evidence of circum- knowingly intentionally or person A who way stances the same the defendant person or property takes from another (1983), Ind., 447 Perry does. presence person: another from the However, failure of the N.E.2d 599. (1) By using threatening the use of or mitigating trial court to find cireumstane- any person; or force clearly supported by es are (2) fear; By putting any person in may reasonably give record rise to a robbery, felony.... C commits Class they belief that were overlooked and 85-42-5-1, as added Acts [IC properly Page hence not considered. [v. 340, 39; 1982, 204, 84; P.L. PL. P.L. § (1981), Ind., 424 at 1021] 186-1984, § 1.] at trial reveals that Having thoroughly examined the record accomplice conspired his defendant and case, unpersuaded in this we are home, him accompany the victim to his tie prevail defendant should on this De- issue. stereo, up, escape his in his car. steal juvenile history adjudi- fendant's discloses home, arriving Shortly after at the victim's involving charges burglary, cations conspirators plan modified their theft, possession possession of alcohol and decided to the victim. Imme- further stab marijuana. His adult record reveals ar- murder, diately following two were rests for alcohol offenses and conversion. apparently startled an alarm and left see no error in trial We court's refusal taking scene in the car without victim's prior to treat criminal record as a clearly find the evidence stereo. We mitigating circumstance. support the trial con- sufficient court's intentionally The record does clusions that the defendant reveal defendant family from by using took the victim's car force and suffered a turbulent back- meager during ground pre- that the victim murdered and a education. The robbery report background noted course of the scheme. sentence deprived experience him of had an base for argues Defendant next the trial upward mobility problem-solving ability court, determining propriety socially acceptable The tri- within bounds. case, in this failed to find and *15 court, considering background, al his did weigh properly purported a number of miti- inexperi- find defendant's "relative gating Specifically, circumstances. defen- mitigating factor, yet, ence" constituted a points prior dant to his minimal criminal even with defendant's when combined record, education, paltry his his unstable youthful age, outweighed by ag- life, family the fact that he consumed alco- gravating factors. marijuana day hol and on the of the mur- der, consumption voluntary police his surrender into cus- As for defendant's of intoxi- murder, tody, day of and his exhibited remorse over the cants on the there was | killing. capacity no evidence appreciate criminality of or his conduct Ind., 493 Hammons requirements conform his to the of conduct 1250, 1254-55, N.E.2d we stated: substantially impaired. the law was argues mitigating cir- When a defendant regard With to the fact that defendant court, cumstances to the trial the sen- voluntarily police custody, surrendered into tencing judge obligated explain is not Indianapolis we note that the of why finding he has chosen not to make a Department Police officers reveals that the mitigation. particularly of This is true investigation rapidly beginning murder underlying when an examination of the defendant, making ap- to focus on the his highly disputable record shows the na- mitigating prehension nearly inevitable. We ture factors. v. view Stark (1986), Ind., 48; weight Frop- carrying State surrender as a factor little (1983), Ind., pier significance. 448 or State undisputed The de- alleged remorse over evidence showed that As for defendant's murder, appreciated find understood we fendant and the commission support argument that wrongfulness of his acts. The overwhelm- little evidence to mitigating circum- proves constitute a the defendant's it should evidence both contrary, pre-sentence guilt aggravating On the circumstance be- stance. that defendant "did report yond indicated conclude a reasonable doubt. We of appear much remorse because to exhibit arbi- that the death sentence is not here "(hle appeared more his actions" and that applied it is trarily capriciously and that living with he has concerned about what appropriate reasonable and this case. escaping penalty." the death done and is judgment of the trial court af- purported find none of the We therefore to the trial firmed. This cause is remanded presumed can mitigating circumstances purpose setting for the a date for court judge. the trial overlooked to have been the death sentence to be carried out. Thus, is on this issue. no error found SHEPARD, C.J., and GIVAN and 11, Constitutionality Penalty Death PIVARNIK, JJ., concur. As Justice Vindictive DeBRULER, J., concurs and dissents separately contends opinion. penalty Indiana death statute vio DeBRULER, Justice, concurring and dis- I, 18, of Indiana article section lates penal senting. requiring that our code Constitution principles of reformation and be based Article VII of the Indiana Constitution justice. This issue has not on vindictive 35-50-2-9(h) govern the Indiana and I.C. adversely to defen already decided been sentencing hearing by imposing on position Lowery, supra; Dillon v. dant's duty this Court the distinct to review a cert. it sentence death and determine whether denied U.S. appropriate to the offender and his 145; Averhart, supra; L.Ed.2d crime. Van Cleave v. State Schiro, Smith, 1105; supra, 465 N.E.2d Vandiver Williams, Fleenor, supra; supra; supra. Ind., 480 N.E.2d 910. This review includes reject therefore defendant's conten interpretation We examination of the an tion that the Indiana death scheme application of criteria set forth in the is unconstitutional. by the death sentence statute as revealed proceedings,

entire record of trial court Conclusion judge include the manner in which the eval possible mitigating pointed factors uated disposed all the Having addressed and argument out in and the manner which defendant, finding issues raised judge weight assessed relative court all the re- the trial followed *16 quired statutory procedures pertaining to Thompson such factors. penalties, question we turn to Van Cleave appropriate 517 N.E.2d 356.

whether the death considering the nature of the offense and judge, In summation before the defense the character of the offender. "ability argued appellant's counsel accomplice conspired im-

Defendant and his conform conduct to the law [sic]} any consciously paired and deter- as the result of intoxication or to rob victim plan succeed at intoxicant," mined that the would mitigating was a factor. For sentence, lay beg- purpose judge con- cost. As the victim on the floor life, presentence report re- ging struggling and for his the defen- sidered which dispositions bludgeoned juvenile the victim in the and corded at least seven dant back involving and adult the use and convictions knives, hacked neck with an assortment of drugs probation abuse of and alcohol. The cleaver, at the head a meat victim's pool prepared presentence re- and then left him to die of blood. officer who drug port heavy indicated use in his com- upon

ments the evaluation sheet in the WARNER, Appellant Roman E. report and, testifying (Petitioner when at the sentenc- Below), ing hearing judge, before the mentioned drugs appellant's use of and The alcohol. Indiana, Appellee STATE of judge appellant's accomplice heard Below). (Respondent testify at trial that in the hours before the No. 37S00-8706-CR-592. killing marijuana the two smoked several record, cigarettes whiskey. and drank Supreme Court of Indiana. including probation reports, chronicles a March pattern drugs of his use and abuse age alcohol from the of fourteen he until age eighteen.

killed at the His father prone physical was an abusive alcoholic violence towards others. The court con- appellant's past

sidered record of arrests drug and convictions for and alcohol abuse purpose determining for the whether the mitigator significant of "no history prior present,

criminal conduct" was 1.C. 35-50- 2-9(c)(1), gave mitigating but no force to the arrests and convictions as evidence of

appellant's impaired capacity "appreciate criminality of his conduct" or to "con-

form his requirements conduct to the

law," 35-50-2-9(c)(6), (8), concluding 1.0.

only appellant's age and relative inex-

perience mitigating weight. were entitled to record, upon

Based I find a substantial possibility appellant suffered an im-

paired capacity killed, when he lengthy

stemmed from his and constant drugs use of and alcohol grow- as he was ing Therefore, developing. I also find there is a substantial risk that

death sentence wrongly will be carried out here. I would therefore concur in affirm- conviction, but remand for a new

sentencing hearing before the court. *17 Defender, Carpenter,

Susan K. Public Nicholson, Deputy Linda G. Defend- Public er, Indianapolis, appellant. for Linley Pearson, Gen., Atty. E. Louis E. Ransdell, Deputy Gen., Atty. Indianapolis, appellee.