Harrison v. State

assessed are proceeding Costs Respondent. against J., participating.

DICKSON, HARRISON, Appellant, P.

James Below), (Defendant Appellee, Indiana,

STATE Below). (Plaintiff 65S00-9105-DP-380.

No. Indiana. Court

Supreme 4, 1995.

Jan.

1246

William Bender, H. Allyn, Givens & Bend- er, Poseyville, appellant. for evi- into introduced knife (although no Thad- Gen., Arthur Carter, Atty. Pamela near observed (ii) dence); defendant Indianapolis, Gen., Atty. Deputy Perry, deus before murders night of scene fire appellee. pur- (ifi) had arrived; defendant fire trucks days before several kerosene chased SULLIVAN, Justice. by a started (iv) had been fire murders; convie- murder affirm and review We told (v) had defendant liquid; flammable P. Harrison. James defendant tions had he jail that Maryland ain inmates fellow sentencing order specific a more remand trial, During crimes. committed court. results into evidence admitted separate by two performed analysis DNA Facts Stacy taken using swabs laboratories Stacy Forsee met defendant blood. defendant's mouth Forsee's On Vernon, Indiana in Mount church Arson, jury convicted A a.m., firemen 3:45 about January Forsee, Felo- Tia knowingMurder in Mount home her fire at ato called were acquitted It Hanmore. of Jordan ny Murder Stacy Forsee bodies dead Vernon. of their knowing Murder Forsee, Tia children, daughter two her subse- During the Forsee. mother, Stacy Hanmore, age 3%, Jordan son age trial, the phase offender habitual quent Autopsies home. months, found were Habitu- being an jury convicted stabbed had been Stacy Forsee that showed penalty death Following the al Offender. Se- breaking out. fire the prior to death recommended trial, jury the the of phase Forsee Tia mouth. in her found was men for death sentenced be defendant that fire. during the suffered burns from died Jor- and Forsee Tia of murders the of each inhalation. smoke died Hanmore Jordan Hanmore. dan two over until filed not Charges were hearing, the sentencing subsequent aAt arrested then was later, defendant and years for to death defendant sentenced court charged was He Baltimore, Maryland. Jor- Forsee Tia of murders of the each Stacy of knowing Murder2 Arson,1 the with his con- appeals Defendant Hanmore. dan Forsee, Tia of knowing Murder Forsee, sentences. death his Murder for victions Hanmore. Jordan of Felony Murder Arson. his conviction appeal not does He being with charged defendant also State The as neces- facts additional provide shall We death sought the Offender Habitual sary. cireumstances aggravating As the penalty.6 State penalty, death justifying Appeal On Issues victims, Forsee Tia of two that charged Verdicts. Inconsistent 1. twelve than Hanmore, less were and Jordan had been jury Hanmore that Jordan age,7 because of that years argues Forsee, Stacy commission during murder of the killed intentionally him acquitted previously had defendant arson,8 lawof matter a as exists doubt reasonable murder rea of another mens required in 1973 convicted possessed been he children. her murder Virginia.9 guilty be therefore, there claims, (% defendant that: The presented trial, evidence At him convict evidence insufficient hunting knife carried regularly (currently (1988) 35-50-2-9(b)(12) § Ind.Code (1988). 35-43-1-1(a)(1) § 1. Ind.Code (1993)). 35-50-2-9(b)(11) § Ind.Code (1988). 35-42-1-1(1) § 2. Ind.Code (currently 35-50-2-9(b)(1) § Ind.Code » 3. Id. (1993)). 35-50-2-9(b)(1)(A) § Ind.Code (1988). 35-42-1-1(2) § os 4. Ind.Code (1988). 35-50-2-9(b)(7) § Ind.Code oy (1988). § 35-50-2-8 5. Ind.Code g (1988). § 35-50-2-9 6. Ind.Code the murders of Tia Forsee and Jordan Han- proven. Martinez Chavez v. State more. Br. of Appellant at 14. It is true that Ind., 534 731, 738, N.E.2d reh'g denied a mens rea of cither knowledge or intent is (1989), Ind., 539 noted, N.E.2d 4. As defen an essential element constituting the erime of dant does not contest the sufficiency of the Murder in Indiana. Ind.Code 35-42-1- evidence with respect to the arson charge. 1(1) (1988); Vance v. State Ind., 620 Thus, irrespective of whether 687, 690; Abdul-Wadood knowingly or intentionally killed Stacy For- (1988), Ind., 521 N.E.2d 1300, reh'g see, there was sufficient evidence from which denied. "[The Due Process Clause [of the could infer the required mens rea to Fourteenth protects Amendment] the ac convict defendant of the murders of the chil against cused conviction except upon proof dren.

beyond a reasonable doubt of every fact nee- essary to constitute the crime with which he Second, defendant's argument as charged." In re Winship, sumes that the acquittal of defendant on 25 L.Ed.2d 368 charge of murdering Stacy Forsee (1970); implies as Bellmore v. State Ind., 602 a matter of law that the State did prove reh'g denied; Smith v. State required mens beyond rea 357. But defen reasonable is, doubt. Such course, dant cites authority no not the case. specific his argu Jury's ment verdict here on this charge the fact of acquittal could have re murder of sulted Stacy from the Forsee failure means State to State meet its proof burden of failed to on any meet its proof burden of element of the required offense, mens rea to just convict the mens rea element. the murders of Tia Forsee and As observes, Jordan Han- argument defendant's more. is essentially that the verdicts are inherently and impermissibly reject inconsistent. defendant's While this contention for sever- does review verdicts to determine al reasons. they whether consistent, are perfect logical First, proof of the intent necessary to consistency is not demanded ex conviet defendant of the murders of the chil tremely contradictory and irreconcilable ver dren was in way no dependant upon the dicts warrant corrective action this court. intent necessary to convict him of the murder Hoskins v. State 563 N.E.2d of their Stacy mother. Forsee died from 577; Townsend v. State Ind., 498 multiple stab wounds. children, The howev 1198; see also United States v. er, Pow died from the fire defendant was convict ell, ed of setting, a conviction the sufficiency of L.Ed.2d 461 (holding that sufficiency the evidencewith respect to which the defen of evidence review should dant be independent does not of contest. There was substantial Jury's physical determination that evidence evidence on with anoth respect the er place count insufficient). was where the fire Here started we from which cannot Jury conclude could that infer that verdicts defendant are knowingly inconsistent. killed Tia Forsee. A The pathologist verdict mother's death can be reconciled with the Fire Marshall investigators verdicts in the children's testified that the fire deaths on started Tia Forsee's basis that bedroom. may have As to Jordan Hanmore, because found a failure proof charge of as to stabbing while felony murder, no beyond intent the intent finding to proof related to the fire suffic commit the underlying felony of arson need ient.10 10. The State concedes that the evidence that analysis to show that it was Defendant's semen defendant Stacy killed Forsee stabbing her in swabs taken Stacy from Forsee's mouth. strong not as as the evidence that he set the jury, however, The could have felt they that fire. could not be beyond certain a reasonable presented The State evidence that Defendant doubt that it was Defendant-and not someone had a hunting knife disappeared around else-who Stacy stabbed Forsee to death. crimes, the time of the and attempted by DNA Br. Appellee of at record, that any in the find we nor can Change Venue. Motion Denial of for of undisputed claim was an there that indicate trial contends Defendant expressed trial court that the or prejudice of denying his its discretion abused court controversy. of merits on the opinion an coun from venue change of for motion argument and no Moreover, makes publicity pre-trial that extensive asserting ty, in his issue authority on this no points to a fair to receive opportunity his precluded simply that says He court. this before brief mo of this support trial. impartial preserv purposes "raised for the issue videotapes from tion, filed Under appeal." further for ing [it] local from a media, cassettes audio news trial say. that circumstances, cannot we exhibits. station, other certain radio denying defen discretion its abused court must appeal, defendant from prevail of venue change To motion dant's prejudi the existence show, to in addition judge. jurors were publicity, pre-trial cial notions preconceived their aside to set unable Questions. Dire Voir to Ask 4. Refusal upon the based a verdict guilt and render limit court During dire voir (1987), Ind., 515 v. State Burdine evidence. - question twenty minutes each side ed A review 1085, reh'g denied. jurors, fourteen configuration ing for each shows proceedings dire voir record dire general voir the court's in addition inability to indicated juror who every submitted When questioning. case, gained knowledgeof prior put aside dire, the voir questions list of tendered with media, discussions from through the questions. those to ask court declined source, was any other persons, or other has fre court any first observe specified has not excused. twenty minutes any prior upheld limitations put quently aside being unable juror as examinations.11 during voir dire per side not seek and did case knowledge of the court's conduct However, 1987 the basis. since on this cause any juror for challenge by Indiana governed has been regard in this defen record from the appears It also 47(D): chal peremptory of his all Rule not use Trial dant did process. See jury selection during the lenges of Jurors. Examination attorneys Kappos their parties permit shall therefore, made, has been prospective showing No examination conduct to set aside unable jurors were that the the examination may conduct jurors, render guilt and notions preconceived may in- examination court's The itself. evidence. upon the based verdict in writ- any, submitted if questions, clude If the court attorney. any party or by ing Judge. Change Motion Demial examination, permit it shall conducts supple- attorneys their parties de he was contends inquiry. by further examination because trial ment impartial a fair nied time an advance may impose The change of venue for a motion of his denial by the examination upon such limitation judge change of ruling for judge. A from expira- attorneys. At their parties or within is proceeding in a criminal lib- limitation, shall the court ruling said such tion of review court's discretion. time reasonable additional erally grant Stidham of discretion. abuse only for a clear related 140, 142; good cause showing of upon a (1994), Ind., N.E.2d v. State case, quantity the nature Ind., (1992), N.E.2d Harrington v. State juror va- jurors examined prospective curiam). Here, defendant 558, (per manner remaining, and court, cancies this before brief in his no facts states Ind., (1985), 716; 712, v. State Linder also see (1985), Gossmeyer State E.g., per minute (upholding a 35 485 N.E.2d 241; v. State N.E.2d Wickliffe in the penalty case death in a side limitation v. State 1008; Lynn granted on court), post-conviction same relief 451; Hart 298-99, 392 271 Ind. Ind.App., 589 N.E.2d grounds other 151, 352 Ind. content of inquiries responses giv- test polymerase called chain (PCR) reaction prospective en jurors. The court which Cellmark felt might be able to be may prohibit parties and their attor- performed on samples. Cellmark itself neys from examination which repetitive, perform did not PCR tests and referred the argumentative, or improper otherwise but State to laboratories, two including Genes- permit shall inquiry reasonable pan- Dallas, creen in Texas. el and jurors. individual At pre-trial hearing October As we understand happened what in this the State advised the court and the case, defense tendered a questions list of of its desire to have the new performed. test to the trial court for the court to ask because It highly uncertain at point this whether found the twenty minute limit too the results could obtained before trial. restrictive. 47(D) While Trial Rule certainly permits The approach, suggests record that at this hearing was also entitled to a grant agreed liberal State it additional time would dismiss charges for questioning upon making against the showings the defendant if the test excluded required by the rule. Because the State him (although the record can be read to the seeking the death penalty and because the effect that the only State agreed to dismiss if trial court refused to ask defendant's ten- DNA fingerprinting specifically excluded questions, dered defendant would have been him), that the defense wanted the new test entitled to more than twenty minutes of voir performed agreed to the admissibility of per dire configuration requested had he more the results (although the record can be read time in accordance with 47(D). Trial Rule to the effect that the defense agreed to However, defendant does not contend that have the conducted), tests and that the trial 47(D) Trial Rule was violated and so has court overruled a request defense for an shown no error. expert interpret results, holding that personnel Genescreen were sufficiently neu- 5. Denial Motions Regarding DNA provide tral to the defense with expert Testing. assistance it required.

Defendant contends that the trial court committed reversible error denying sever- On November reported State al motions regarding the admission of DNA to the trial court that Genesereen had been testing results. successful in extracting male DNA from the sample it, Investigators sent and that submitted oral and defendant's vaginal "blood swabbings matched sperm taken Stacy that was Forsee to found Cell- on the mark Laboratories for swab excluding DNA percent "fingerprinting." 90.2 of the popula hoped genetic coding material tion." Contemporaneously, defendant moved (DNA) derived from semen in these for a continuance, swab- renewed its motion for an bings could be used to identify perpetra- expert permit it analyze the DNA test tor. Cellmark used a testing procedure results independently, and filed a motion in called restriction fragment length polymor- prohibit limine to reference to the PCR tests phism (RFLP). However, Cellmark was un- "until a Frye hearing [could] be conducted to able to identify any male DNA from the assess the of this novel reliability scientific samples; 2 the DNA identified was that of evidence."1 Even though specifi the State the victim. cally said it objections had no to Frye the trial, the date of personnel Cellmark hearing, the trial court summarily Near denied all advised the State of a type different of DNA motions, agreeing with the State that "Frye" 12. A hearing is pre-trial named after the based on that methodology is therefore admissi- hearing required Frye States, in v. United 293 F. ble. Id. at 1015. The "Frye hearing" term is (D.C.Cir.1923), 1013 to determine defendant, whether the used and we use it opinion, in this scientific methodology supporting proffered ex- generic to refer to hearing a reliability on the pert testimony is "sufficiently established to proffered have scientific evidence rather than to gained acceptance particular in the field legal in standard applied to be evaluating which it belongs" and expert whether testimony reliability. See note infra.

1251 admissibility hearing on "Frye" 21 to the a on October conduct agreed had defendant trial, re At results. the test this evidence. admission and for his motions newed continuance the Genes- trial, immediately before At again raised expert appointment testified, de- personnel and Cellmark creen hearing. While we Frye holding a issue of for continuance motions his renewed fendant conducted have court should the trial believe lengthy collo- A expert. appointment ultimately conclude hearing, we Frye October during quy followed require not regard does in this any error reviewed were 4 discussions November reversal. depose requested either and the (1991),Ind., "Frye-like" Hopkins v. State Starting with or conduct DNA witnesses under would the witnesses hearing where regu has court this N.E.2d re- court The trial the courtroom. identi of DNA oath admission larly approved the case current I understand "As fused: prosecutions.13 in criminal fication evidence Indiana, Frye hear- proposi statutory for the not stand law cases do But these is, they are The fact required. ings are is DNA evidence any proffered tion Rather, they court ultimate- re The trial automatically admissible.14 not recommended." motions, the defen- ruling that ly denied case, that in each court's conclusion this flect that the the evidence requested had dant applied properly either trial court rely- it was advantage because admitting the no had rules of evidence applicable defendant. experts as the the same ing on error that commit did not results or test DNA wit- order that did trial court The denying. all de summarily By reversible. ques- for defense available nesses be conducting any pre without motions fense three hour approximately tioning during an admissibility of the into the inquiry trial break. lunch ran serious tests, court here DNA evidentiary prin violating important from Cellmark risks trial, Forman Dr. Lisa At ciples. had been unable analysis that its testified from swabbings taken

link defendant the restriction First, involved Hopkins from Judy Floyd Analyst Stacy Forsee. (RFLP) test length polymorphism fragment although its test testified Genescreen However, test at DNA methodology. ing white of all 92.6% to exclude able had been methodology, new employed the here issue defen- specimen, the source males as (PCR). reaction chain polymerase However, she been excluded. had not dant magic are test results" "DNA words men, 13,000 any white acknowledged that of uttered, doors which, cause the onee words 1,000 any have come could specimen testi Expert scientific open. admissibility to of them. only if the in Indiana mony admissible principles the scientific satisfied court is noted, on October As are testimony rests expert upon which appointment 4 moved and November Ind., State, DNA v. analyzing the him in reliable. Cornett expert to assist 503; N.E.2d Hopkins, 579 N.E.2d 4, the defendant November results. On test 702(b). There Rule Ind.Evidence him 1303. allow a continuance also moved Cf. here trial court by the no effort and was results analyze the test time to more the new regard as to satisfy itself the test to exclude limine a motion in filed testing.15 DNA type of PCR court could results, until at least § 34-5- Ind.Code prevail statute. Ind., over v. State 13. Jenkins (Mutual) (1988); - v. Auto-Owners -, Hawkins denied, 2-1 reh'g Co. (1994); Ins. Lockhart 130 LEd.2d DeLong v. grounds, Kimberlin 1098; on other overruled Woodcox Ind., reh'g denied. N.E.2d 1026-27; Ind., 591 580 N.E.2d v. State Davidson by courts in Indiana used to be standard 15. The 243, reh'g denied. past has in making a determination such Hopkins, 579 subject debate. See of been notwithstanding Code Indiana so This is J., (Dickson, concurring with at 1305 procedure, (1991 Supp.). of Rules § 35-37-4-13 J., concurs). Krahulik, opinion which separate in evidence, by this established including rules of Amended, Second, by summarily dismissing (1991)).17 F.R.D. the de fense motions we believe the trial court failed There is no in evidence this record that the give proper attention to obligation its trial court engaged any in such weighing. expert determine that witnesses were expert Before scientific may evidence be properly qualified. Our decision Hopkins Indiana, admitted the trial court must be best point. illustrates this There we left for satisfied that the scientific principles upon duty the factfinder of evaluating the expert testimony reliable, rests are weight expert testimony and resolving qualified, witness is and that "[alny qualified experts battle of ... or other testimony's probative value is not substan- reliability conflict as to the of evidence." tially outweighed by dangers of unfair Hopkins, 579 N.E.2d at 1303. But we also prejudice. By summarily denying defen- clearly any Said that before such testimony is dant's motions without conducting any kind presented jury, be to the the trial court hearing making or any kind of record on must rule qualified "the witness as a matter issues, these we have no basis for concluding give expert law to testimony regarding the trial court was satisfied in analysis." DNA Id. There was no such respects. these ruling here. As to the trial court's denial of defendant's Third, no evidence is if admissible the dan appointment motion for expert and for ger of prejudice unfair to the defendant sub a continuance to evaluate the DNA test re- stantially outweighs probative value of sults, we believe the trial court's rulings were evidence. Hardin v. State within its discretion for the reasons to be 611 N.E.2d (quoting Warner v. State discussed in a However, moment. we think (1991), Ind., 1307, 1310, 579 N.E.2d and the because the defense was forced (1986), Ind., 490 N.E.2d rulings Hansford begin within a few 1083). This rule is now embodied Indiana days of receiving the DNA test results and to Evidence Rule 403.16 This court clearly has rely on personnel Genescreen as its own recognized that presents scientific evidence experts, the trial court should have set aside special "potential risks of harm prejudice permit time to in-depth defense an inqui- parties Cornett, ry into the tests. A pre-trial hearing involved." could at 503. agree with pronounce the recent have been used for purpose as well and ment of the United Supreme States presents Court an additional why reason construing Federal Rule of Evidence 408: court should have pre-trial conducted a hear- "Expert evidence powerful can be both ing on the admissibility of the test results. quite misleading because of difficulty 'Webelieve the trial court within evaluating it. risk, Because of this judge its discretion in denying the in weighing defendant's re possible prejudice against proba quest for appointment expert of an tive assist force under Rule 408 ... exercises more in analyzing the DNA tests. In a control recent experts over than lay over wit death penalty case we reviewed the nesses.'" stan Daubert v. Merrell Dow Pharma - dards for court-appointed experts ceuticals, Inc., for erimi- -, -, 2786, 2798, nal defendants: 125 L.Ed.2d 469 (quoting Weinstein, Rule 702 the Federal Rules Indiana, a criminal is not Sound; Evidence It Should Not Be constitutionally entitled, public at expense, Effective 1, 1994, Indiana In re: Paoli Railroad January Evidence Rule Litigation, Yard PCB Cf. principles and related control. (3d Cir.1994) F.3d (indicating that language quoted from Daubert "does not Indiana Evidence Rule 403, effective January change opinion our that in order for a district 1, 1994, provides: relevant, "Although evidence evidence, to exclude scientific there must may probative be excluded if its value is substan- something particularly confusing about tially outweighed by danger preju- of unfair scientific evidence issue-something other dice, confusion misleading issues, or general jury, than the complexity delay, considerations of scientific evi- undue waste time, dence"). presentation or needless of cumulative evidence."

1253 experts likely from other or dence available expert witnesses of number any type or to wrong," the Kennedy v. they were case. indicate support his would to which he desires in its discretion not abuse Ind., did (1991), N.E.2d trial court 578 State 112 S.Ct. an ex appointment of for denying a motion cert. denied Here Schultz, who at 534. A N.E.2d 497 pert. [1992]. 117 L.Ed.2d has that expert every witness to believe for an reason funds requests there need for De demonstrating the were neutral.18 personnel of burden CGenescreen of ex appointment question The their attempt Id. to expert. made no that fendant of the discretion sound perts is left accuracy, did nor ability, truth or precision, that dis court, only an abuse reasonably showing which could make he reversal, a trial but in a wrong. result will they cretion were that an indication to lead to access a defendant provide must cases, how holding in future applying this In will prejudice that it is clear experts where to upon trial courts ever, incumbent it will Issues Id. result. otherwise truly neutral- experts are that such assure determining consider should trial court they are not that are aware experts that the to funds entitled a defendant whether and that neither side for either advocates (1) defense whether expert include an pre advantage as to any material has side the skills already possesses counsel or test results or to to them trial access or adequately expert cross-examine materials. studying publish by to do so prepare could Oklahoma, 470 v. on Ake relies (2) Id.; purpose writings, whether ed (1985), 84 L.Ed.2d only, Hough v. exploratory expert is (9th McCormick, F.2d 1153 and Smith 516; Ind., (1990), 560 N.E.2d Ake, re Cir.1990). Supreme Court In expert of the nature whether appointment because conviction versed mea physical precise testimony involves to an was denied psychiatry expert of an re testing, the and chemical surements insanity relying on indigent defendant subject dispute. were of which sults Smith, the Court panel In defense. Ind., 497 N.E.2d v. State Schultz rejected the Cireuit the Ninth Appeals for a defendant In cases where 533-34. psychiatrist a "neutral" appointment held also have penalty, we the death faces had have should that held the defendant to allow the failure assistance. psychiatric independent expert retain an resources appropriate concerning the opinion give an would who that defendant's the State agree with may require reversal mitigator, statutory Ake different here is situation v. State Castor penalty. the death extremely un is an Psychiatry and Smith. [, reh'g Ind., 587 N.E.2d of the mysteries dealing with field certain ]. denied opinions can be expert mind where human con widely. N.E.2d do differ to and v. State expected James nature case the in this believe 21. We experts here trast, Genescreen neutral precise testimony involved expert "in a test to the results testifying were testing, and chemical measurements physical measurements physical volving precise, subject which were James, the results at 21 testing," chemical Schultz 533-34). the rule of and so dispute, Schultz, Un (citing applies. Where cireumstances, did trial court der these "pre involved experts testimony of the denying appoint discretion its not abuse and chemical cise, measurements physical expert. requested defendant's ment of showing that is no testing, and there motions denial As to the or able precise than less experts were continuance, several observa make we observations, the truth testing and their continu of a or denial granting tions. questionable testimony is accuracy of their court, matter for primarily ance is is evi evidence, there or that new some available were its services agency, and that ment Genes- testimony to the effect 18. There clients. defense prosecution enforce- company, not a law private was a creen and the denial of one will be only reviewed lins v. (1984), Ind., State 464 N.E.2d for an abuse of discretion.19 Woods v. State 1289-90. (1989),Ind., 772,788, 547 N.E.2d reh'g grant Second, ed grounds (1990), on other DNA test results were denied, primary of importance cert. one of charges-the (1991). knowing L.Ed.2d 1074 murder of Stacy The record For- see-and defendant was acquitted of must reveal that the defendant preju was fact, crime. In from our reading of the by diced grant the failure to the continuance record, it appear would that may in order to demonstrate an abuse of discre very well acquitted have on this charge based tion. (1986), Ind., Evans v. State in part on defense counsel's effective cross- 942, 948. examination of the Cellmark and Genescreen Here, technician.21 the reason the continuance was As noted the discussion of re- quested permit was to requested defense Issue supra, No. there existed substantial expert independent to review the results apart of evidence the Genes- from the DNA creen test test. results to support Because it was within the trial convictions for Arson and court's deny discretion to Murders of appointment the children. of Ex clusion of the underlying DNA expert, test perceive we results would no abuse in have affected the sufficiency court's denial of evidence continuance that was supporting those sought convictions. permit expert time to work. Likewise, Restriction we find no Alibi Testimony. reversible error - in the trial court's admission of the DNA test contends that the trial court First, results. suggests record that de committed by reversible error restricting his fense counsel consented to the admission of ability present alibi testimony. After de- the test results at October pre fendant filed a alibi, notice of prosecution trial conference. any event, In defendant did filed a motion in limine seeking to exclude not renew objection his to the admission of alibi evidence. Following a hearing, the test results embodied in his motion in granted the State's motion. limine.20 The issue was therefore waived for appeal. Conner We find no error here for two rea 214, 219, First, sons. defendant did not file his notice (1992); L.Ed.2d 640 Col of alibi until long after the imposed deadline Indiana Code 35-36-7-1 sets forth A: Correct. statutory certain entitling bases to a XQ: you And just white, if were including out continuance. However, here does not every thousand, thirteen there would be a any statutory claim violation. thousand men that would fall catego- in that ry? acknowledge that defendant did renew at A: Approximately, correct. his motions for a continuance and for the appointment Cross-examination expert. Dr. Lisa Were Forman it not Cell- for the below, second reason mark set might forth Genescreen we well Counsel: Defense have held that XQ: your motions were ... In you sufficient to first test had no match preserve objection defendant's to admissibility. with James Harrison. right. A: That is 21. Cross-examination Floyd Judith I. Genes- - XQ: your test, you second weren't interest- creen Counsel: Defense ed in James Harrison, running were you XQ: So as I your understand it from testimo- against victim the unknown? ny, sperm found, you cells that you A: right. That is already unknown was being attribute to mouth, in Ms. Forsee's run, and we were comparing the victim's right? standard to banding pattern. Right. A: XQ: test, your So your XQ: One conclusion every thousand, thousand out ten you had approximately, no match with North James American men Harrison? fall into category. right. A: That is A: Approximately you if including are black and white. XQ: right. That is to that 35-86-4-8(b) (1988).22In pertaining any alleged error $ view by Indiana Code Id. at 93. days evidence. two until not filed fact, notice disagree with dowe While trial. before investigat- to statements 7. Defendant's he contends when defendant ing statute officers. notice in the alibi imposed deadlines deny a defendant as to so enforced cannot Fifth infringement of his claims Defendant trial, find we a fair law and process due a result of as right to counsel Amendment re trial court's in the nothing unreasonable to of his statements at trial the admission alibi defense hour on the eleventh strictions January 18 and occasions-on on three police prospect only was Not here. presented trial, 4, At two 1989, April 1990. 19, on and the last until offered not defense an alibi City and Police detectives Indiana State for the reason gave no minute, the defendant as to testified Police Chief Vernon of Mount alibi in the only information delay, in investigation, murder in the roles their at his was that the defendant was notice on of the defendant questioning cluding their In simi erime. of the the date on residence dates.23 those proper to it have held we lar circumstances to specifics no Defendant offers v. State Adkins See alibi evidence. exclude 1989, January, that the claim support his 6, 8; v. State Baxter (1989), Ind., N.E.2d 532 suppressed, have been should statements 362, 369, reh'g de 522 Ind. for it. any basis discern unable to are we nied. that he was contend does not Defendant the rec questioning, custody during this hear two Second, there were while custody not he was ord indicates dis issue was the alibi during ings questioning. at the end go was free court the trial did cussed, occasion on neither only to custodial apply safeguards Miranda alibi evidence. introduction prohibit Mathiason, 429 U.S. Oregon v. interrogation, defense Instead, court ordered 713, 714 711, L.Ed.2d 494, 50 492, 97 S.Ct. outside permission the court's to seek Arizona, curiam), doing so. On Miranda (per jury before presence of 1612, 1602, 16 L.Ed.2d 436,444, 86 S.Ct. not contend does appeal, the general applicable and are no find and we permission sought such he atmosphere. in a non-coercive questioning so. he did in the record evidence 587, 593.24 Pasco 78, (1985), Ind., 481 N.E.2d Bieghler v. State upon to have ceased appears questioning All denied, 475 U.S. reh'g January on counsel request for defendant's we held 89 L.Ed.2d S.Ct. the con contend to 20; does grants the State's trial court when the suppres a conducted trary. The trial fails to and the defendant motion in limine was no that there concluded hearing and trial, de sion during proof an offer make agree. violation. Miranda appellate re preserved has not fendant date, of the initial days the date seventy-five (1988) requires a Code 35-36-4-1 Indiana did not July hearing prosecution to file notice was felony ain days the "omni- twenty before until November any defense file his notice alibi felony prose- in a date omnibus date." The bus no trial court specified law is a date cution statements of defendant's 23. None than days and no later forty-five than earlier a confession. constituted officers enforcement completion of the ini- days seventy-five after the attorney (unless prosecuting hearing tial questioning interrogation refers 24. Custodial date). Ind. agree different to a the defendant per- after a officers by law enforcement initiated (1988). purpose of the § 35-36-8-1 Code custody or otherwise taken into has been son point in time from to establish date is omnibus signifi- action in deprived of his freedom article are under deadlines which various at 429 U.S. Mathiason, cant way. Id. established. Pasco, custodi- 714; To be at 593. argument at the principal counsel's Defense context, interrogation non-arrest al in the hearing that because in limine motion de- person has been after commence must date, an omnibus to set had failed trial court deprived in has been of action prived of freedom timely. While notice alibi defendant's way. any significant Id. an omnibus apparently to set fail did trial court No further questioning of defendant N.E.2d 817. note, We do however, that de April occurred until question 1990. This object fendant did to the admission of exhib ing was also non-custodial. Defendant ar its through 26, consisting autopsy pho gues that police his statement to should have tographs of Stacy Forsee's stab wounds. suppressed been because it was taken in Once it is established that a photograph is an Arizona, violation of Edwards v. depiction accurate of that which it is intended (1981). 68 L.Ed.2d 378 to portray, its admissibility turns on the According defendant, this violation oc question of relevancy. Photographs are rele curred because he requested had lawyer they vant if depict scenes that a witness is questioned when January and he permitted to describe in their testimony. A provided not lawyer with a ques when photo relevant will be admitted into evidence again tioned fifteen months later. We cannot unless its relevancy is outweighed by its ten agree. dency to inflame passions the of jury. the (1992), Baird v. requires Ind., Edwards State 1170, onee 604 the Fifth N.E.2d - 1189, right denied, Amendment cert. counsel has -, been assert- U.S. 114 S.Ct. defendant, ed 255, the the may 126 (1993); not L.Ed.2d 208 Games v. State interrogated further (1989), until counsel has 530, 535 denied, N.E.2d cert. 493 available, been made 874, unless the U.S. 205, 110 S.Ct. 107 L.Ed.2d 158 initiates further communication thereby and (1989). Although defendant claims that the knowingly intelligently right waives the "photographs could serve purpose no other previously Edwards, invoked. 451 U.S. at than to prejudice inflame and jury," the Br. 484-85, 1884-85; James, 101 S.Ct. at 613 Appellant of they were fact used to Edwards, N.E.2d at Miranda, like illustrate testimony the of pathologist applies to custodial interrogation: so met the test of relevancy. Defendant The Fifth right specific makes no argument Amendment identified in or showing as to Miranda right is the to have how pres- the relevancy counsel of the photographs was any ent at interrogation. custodial outweighed by Absent their tendency to inflame the such interrogation, there would have passions been of jury. We have regularly held infringement no right that Edwards that such evidence is unduly prejudicial, invoked and there would be no occasion to e.g.,. Baird, 604 N.E.2d at Jackson v. determine whether there had been a valid (1992),Ind., State 597 N.E.2d reh'g waiver. - denied, denied, cert. -, U.S. 1424, 122 (1993), L.Ed.2d 793 Edwards, Kennedy v. 451 485-86, U.S. at 101 S.Ct. at (1991),Ind., State 578 633, 640, N.E.2d reh'g Because the questioning in January, denied, denied, U.S. interrogation, custodial S.Ct. no E'd- 1299, 117 rights wards L.Ed.2d 521 triggered remand, were that could have after (1993), Ind., been violated at questioning reh'g denied, April, do so here in the absence any argu such ment or showing. 8. Admission Certain Photographs. Defendant claims that it was re 9. Jury Selection Procedures. versible error for the trial court to admit State's argues exhibits 11 through jury 22. These exhib se procedure lection employed in this

its case sub consisted of photographs of burned jected him bodies an unfair three victims. trial. His argument We nothing find appears indicating record it was impermissible that defendant ob under jected to - admission of these Georgia By McCollum, exhibits. v. -, failing object, L.Ed.2d 33 to exclude waived this issue. Smith potential jurors those who were excused "be reh'g post-conviction they cause stated they would not consid relief granted on grounds other Ind., 547 er penalty death under circums invoking the his crime when cumstances This at 24. Appellant Br. tances."2 (ii) court erred penalty; of death misunderstanding argument reflects cireum- considering aggravating finding and McCollum. while by the evidence supported stances not recent a series one of McCollum cir- mitigating consider find and failing to placing cases Court Supreme States United by the evi- clearly supported cumstances chal peremptory practice upon limits wrong standard dence, by applying it is jurors.?26 While prospective lenges to factors out- aggravating if the to determine rights of refers McCollum true in order mitigating factors weighed partic- denied not to be jurors prospective (iv)the death penalty; impose the death service, case jurors in that pation consider unconstitutional. penalty is their because sought to be excluded were below, under fourth issues penalty. on the death race, attitudes not their Pen- "Constitutionality of the Death heading out, pointed fact, Court McCollum caption under the first three alty" and the juror not have does individual '[aln "While Review." "Death Sentence jury, ... petit any particular right to sit on right not to be possess she does he or Penalty Constitutionality the Death race."" - account of one on excluded grounds multiple challenges on Defendant Pow (quoting -, at 2353 112 S.Ct. atU.S. penalty. death constitutionality of the 1364, 409, Ohio, 400, 111 S.Ct. U.S. 499 ers v. sen- Indiana death acknowledges that the (1991)). right He This 411 1370, L.Ed.2d 113 in face upheld has tencing been scheme con clause equal protection under arises apparently past but challenges in the of such to the Amendment Fourteenth in the tained for federal issues preserve these wishes Defendant Id. Constitution. States United review. authority cite, of no know and we does jurors prospective that proposition for the Constitutionality Per Se. a. about their views aside unable to set firmly estab in note Acknowledging described to the extent penalty death type a classifica of 25, contrary, constitute supra, to the precedent is lished serutiny pur heightened killing of tion entitled "the contends nevertheless equal pro Amendment always Fourteenth unconstitu poses of by any means is convicts analysis. degradation suffering tection due tional life, away a taking very act of in the inherent Appeal. Issues 10. Other ultimate with which the arbitrariness availability with imposed and is penalty (i) argues that also Defendant imposed and is penalty the ultimate which impact" "victim permitted improperly severity of lack the punishments () consider evidence; failed to trial court at 38. Defendant's Appellant Br. of death." and cir- of defendant the character properly 2348, - -, 33 L.Ed.2d 120 S.Ct. 112 U.S. their to set aside "Prospective jurors unable in 'pre (1992) (forbidding discrimination racial penalty would death about the views challenges by criminal impair performance peremptory of substantially of exercise vent or Co., defendants); Concrete v. Leesville with [jurors] Edmonson accordance in as duties [their] Wainw 2077, oath.'" 614, [their] 660 instructions L.Ed.2d [their] 114 111 S.Ct. U.S. 500 844, 424, 412, Witt, S.Ct. 105 right U.S. v. 469 in (1991) (forbidding discrimination racial (1985) v. 852, (quoting Adams 841 cases); 83 LEd.2d challenges civil in peremptory of exercise 2526, 65 2521, S.Ct. 1364, 100 38, 45, 448 U.S. 400, Texas, Ohio, 111 S.Ct. U.S. 499 v. Powers (1980)), cause may be removed L.Ed.2d 581 (forbidding (1991) dis racial 411 L.Ed.2d 113 Wither guidelines set out according to the peremptory chal of the exercise crimination 1770, 510, Illinois, 20 S.Ct. U.S. 88 spoon 391 v. prosecutors where by lenges criminal (1968), by decision in as refined 776 L.Ed.2d black); jurors were challenged was white not maintain does Witt. Defendant 1712, 106 S.Ct. 79, 476 U.S. v. Batson Kentucky, this case. violated in guidelines were (1986) (forbidding racial discrimi 69 90 L.Ed.2d challenges peremptory the exercise nation - -, T.B., U.S. ex rel. v. J.E.B. Alabama prosecutors where by criminal (forbid (1994) L.Ed.2d 1419, 128 S.Ct. black). challenged jurors were exercise in the ding gender discrimination McCollum, Georgia challenges); v. peremptory argument has frequently analyzed been and contends that "in age an which offers the length rejected, by both the United alternative of injection, lethal the barbaric Supreme by States Court and our own court. killing people putting them in See, e.g., Gregg v. Georgia, 153, 168, 428 U.S. antiquated electrical device should be con 2909,2922-23, 49 L.Ed.2d 859 sidered no less eruel and unusual than burn (joint Stewart, opinion Powell, and Ste ing at the stake or breaking on the wheel vens, JJ.); (1981), Brewer v. State 275 Ind. was considered to be in 1890." Appel Br. of 338, 346-47, 889, cert. den lant at 35. While recognize we the strong ied, 102 S.Ct. 73 national trend injection toward lethal as the L.Ed.2d reh'g denied, 458 U.S. appropriate most form capital punish 103 S.Ct. 73 L.Ed.2d 1403 ment,27 argument defendant's here does not post-conviction denial persuade us to relief aff'd prior overrule our holdings that execution of a death sentence electro 94 L.Ed.2d 780 cution does not Eighth violate the Amend grant conditional writ corpus habeas ment the United States Constitution or aff'd, Shettle, Brewer (7th 917 F.2d 1306 Article of the Indiana Constitution. Cir.1990), opinion issued, Aiken, Brewer v. Fleenor, See 514 N.E.2d at 89. (7th Cir.1991). 935 F.2d 850 We reaffirm that the Indiana penalty death statute is d. Prosecutorial Discretion. constitutional. argues the Indiana death penalty statute is b. unconstitutional Vindictive be Justice. cause the prosecuting attorney given over- while, Defendant contends that as a broad and unfettered discretion in seeking matter of law, federal constitutional retribu the death penalty. This court has frequently tion is proper justification for the death rejected contention, most recently in Bi penalty, Gregg, 183, 428 U.S. at 96 S.Ct. at State, vins v. 928, (Ind. N.E.2d 947-48 2929-30, it an impermissible justification is in 1994). Indiana because our provides constitution "penal that our code shall be founded on e. Consideration Aggravating principles reformation, of of and not vindictive Mitigating Circumstances. justice." 1, Ind. Const. art. argu This ment has been rejected considered and Defendant attacks the Indiana death court, our both shortly after the enactment of penalty provisions statute's concerning ag constitution, our Driskill v. State gravating and mitigating cireumstances in 338, 342, Ind. Rice v. State 7 Ind. respects. First, several defendant contends 338, and more recently in Fleenor v. the statute is constitutionally infirm "because 80, 90, denied, reh'g cert. it does require not jury to consider all denied, 488 U.S. 109 S.Ct. 102 proffered and mitigating evidence, while it (1988). L.Ed.2d 158 We reaffirm those hold precludes consideration of relevant mitiga ings. tion." Br. of Appellant at 36. disagree We with defendant's characterization of the stat c. - Electrocution. ute. 35-50-2-9(c)(8) $ Indiana (1988) Code Defendant argues that even if the specifically jury authorizes the to consider death penalty is se, not per unconstitutional "any other cireumstances appropriate it is cruel and applied unusual as in Indiana consideration" mitigation. Furthermore, because of the nature of electrocution. De defendant has not any identified mitigating fendant cites graphic opinion of former evidence jury that the precluded was United Supreme States Court Justice Wil considering. Similarly, while defendant con liam Brennan in Louisiana, Glass v. tends that the statute permit does not 105 S.Ct. 85 death sentence to imposed be upon based L.Ed.2d 514 (Brennan, J., dissenting) non-statutory aggravating cireumstances, he See, eg., Lonny Hoffman, Note, J. 70 Tex. (1992). L.Rev. 1039 n. 5 prop that can be non-statutory aggrava cireumstances any aggravating not identified has unanimity found, that such we hold erly to the presented ting evidence © Indeed, in Bi as we said required. is not Jury. jury provides for vins, procedure "Indiana that the contends next factor, enu mitigating any consideration be unconstitutional is statute penalty death unanim not, reference or without merated jury ... require not "it does cause not Thus, procedure does Indiana ity. charged finding that each unanimous make Bivins, at of Mills" run afoul beyond a reason proven has been aggravator contention, our Second, is no there require a unanimous doubt, but does able suggest, not does of the record review may be it mitigation before finding of una jury that court instructed Appel Br. of aggravation." against weighed required. nimity was relates to claim here Defendant's lant at 86. argues Lastly, United States identified problem it because constitutionally defective 486 statute Maryland, in Mills v. Supreme Court proving that place the burden 1860, 1865, 100 does 108 S.Ct. mitigat outweigh required to (1988). jury is cireumstances aggravating If a L.Ed.2d State, shifting thus particular on the finding that a ing circumstances unanimous the defendant proof to that burden exists before mitigating cireumstance Wilbur, 421 U.S. Mullaney v. any violation against weighed can be circumstance 44 L.Ed.2d found, then circumstances aggravating any guidance as agree provide jurors might it does all twelve because theory, while required for proof and level method were cireumstances mitigating some aggravating cireumstances determining if mitigat (and those agree that even present cireum- outweigh mitigating sufficiently enough to significant - - - ing cireumstances were that our held previously have We stances. cireumstances aggravating outweigh the factual burden not shift does statute agree that found), could all twelve unless Eighth and Four proof violation present, mitigating circumstance same Bivins, Amendments, engage in teenth permitted they never be would here. the issue 945-46, to revisit and decline any deliberation weighing process that "when penalty. held the death have further appropriateness whether determination its ultimate makes requiring such penalty schemes Death Id. penalty, it need the death to recommend in Mills unconstitutional unanimity were held out cireumstances 433, aggravating Carolina, that the find 494 U.S. McKoy v. North cireumstances; jury 1231-82, 1227, mitigating 108 L.Ed.2d 439-44, 110 S.Ct. weigh the be conclusion this required to reach is (1990).28 Indiana's do not believe We 369 v. State Rouster doubt." reasonable yond a subject infir to these is penalty statute death 1348, 1342, reh'g 600 in our First, language is no there mities. (citing Dan original) (emphasis in jury denied suggests una case law or statute 160,171, (1983),Ind., 453 N.E.2d v. State iels mitigating circum required on nimity is post-conviction any denial weighed against it can be aff'd before relief stance mitigating circum- aggravating and particular to and the in Mills Maryland statute issue 28. The - theory that though on the McKoy, and considered at issue in stances found statute Carolina North another, pro- great jury's both decision give from one judge different somewhat must provided jury, sentencing by and both defendant. vided for on the passing sentence weight in ques- specific required answer juries were argument. reject this Appellant at 37. ofBr. found mitigating circumstances tions about jury's must consider While the trial sentencing Indiana, forms. In verdict on written be based must and its sentence recommendation 35-50-2-9(e) § jury, by judge, Ind.Code required jury was that the standards on the same verdicts not use and we do special consider, nothing a constitu- perceive we jury. Rule 49. Ind.Trial interrogatories require would dimension tional McKoy Thus, and Mills applicability of jury's delibera- details of have the court to attenu- in Indiana is penalty jurisprudence death statutory discharging obli- it in tions before ated at best. gations. urges is unconstitu- that our statute findings as: requiring such written tional for not 1260 775, reh'g 35-50-2-9(h) $ Indiana (1988) Code specifies granted, vacated, judgment remanded, that a death subject sentence is to automatic 902, 491 U.S. 109 S.Ct. 105 L.Ed.2d 691 review court, given is to be priority (1990),Ind., remand 561 N.E.2d over all other cases, after and that a death sen- 487 (affirming denial post-conviction re tence is not to be carried out until this court

lief). provides This standard guid completed sufficient has completed its review. ance for the engage in the weighing It is understandable that both our Consti- required by the statute. repeatedly We have legislature tution and require should such affirmed the constitutionality of this stan special appellate serutiny of death sentences dard, Bivins, recently most in 642 N.E.2d at many because so of the fundamental values 945-46. embodied in our state Bill Rights are at stake penalty See, death e.g., cases. Ind. f. Meaningful Appellate Review. (life § Const. art. is an right); inalienable Defendant contends that our death (cruel Ind. Const. § art. and unusual penalty statute Eighth violates the and Four punishment shall inflicted; not be penal- all teenth Amendments of the United States ties shall proportioned to the nature of the Constitution failing provide a mean offense); and Ind. § Const. art. (penal ingful appellate review of defendant's convie code shall be founded principles of refor- tion Again, and sentence. repeated we have mation and not justice). vindictive ly rejected the contention that our statutory special role of this court in reviewing death penalty procedure for its constitution death sentences grounded is also in federal ally inadequate appellate review, most re death penalty jurisprudence. general, cently Bivins, 642 N.E.2d at 948. United Supreme States Court repeated "has ly said that under Eighth Death Sentence Amendment Review qualitative 'the difference of death from all The Indiana provides Constitution punishments other requires a corresponding Supreme "[the have, Court shall ap all. ly greater degree serutiny capital peals cases, of criminal power to review sentencing determination'" Caldwell v. - and revise the imposed." sentence Ind. Mississippi, 320, 329, 105 S.Ct. Const. art. 4. Although our rules for 2633,2639, 86 LEd.2d 231 (quoting appellate review of require sentences Raimos, 998-99, California great given deference be to the judgment of 3446,3452, (1983)). 77 L.Ed.2d 1171 court, eg., Ind.Appellate Rule Meaningful appellate review of death sen where the death, sentence is those rules plays tences a crucial role ensuring that "stand more as guideposts for our appellate the death penalty is not imposed arbitrarily review than as pillars immovable supporting or irrationally. Parker v. Dugger, 498 U.S. a sentence decision." Spranger 308, 821, 739-40, 112 L.Ed.2d (1986),Ind., reh'g n. (1991); Gregg, 204-06, 428 U.S. at 96 (1986), Ind., denied 500 N.E.2d cert. S.Ct. at 2939-41. denied, 95 Penalty (1987). Phase. L.Ed.2d fact, 536 we have made it clear that "this Court's review capital Our death penalty guides statute our re- cases under part Article 7 is parcel of view of death by setting sentences forth stan- sentencing process." the Cooper v. State dards governing trial court imposition of (1989), Ind., 540 N.E.2d death sentences. Following completion of special This review of death sentences guilt is the phase of the trial and rendering the grounded in the Constitution, Indiana our jury's verdict, the the trial court recon- state's death penalty statute, and federal venes for penalty phase. The State must death penalty jurisprudence. Our constitu- prove at least one aggravating cireumstance provides tion that appeals from judgments beyond a reasonable doubt. The defendant imposing a death sentence are to brought be has the opportunity present any additional directly to this court. Ind. evidence relevant to the aggravating cireum- § Const. art. (1967); Rabadi L.Ed.2d ciream- any mitigating alleged and stances Bivins, 541 N.E.2d 85-50-9-2(d) (1988). Cf. § Ind.Code stances. N.E.2d at 957. presentation of the State's part As evi- State's Following presentation phase of penalty during this evidence the defendant phase, penalty at the dence of defen evidence trial, presented the State into evidence military record his introduced and the murder prior conviction dant's Following circumstance. mitigating as a - Hanmore. and Jordan Tia Forsee ages of counsel, jury unani- arguments of closing defendant, by the objection Over penalty that the death mously recommended Stacy Forsee uncle of permitted court also imposed. be to the statement to read seven-sentence Sentencing Determination. murders that the Trial Court impact relating the jury and, referring to defen family his had on made its recommenda- jury has Onee convictions, concluding that previous dant's dismissed, trial court and the tion, penal the death enforce allow and "we must sentencing making the final duty of has as these." in such ty cases First, must the trial court determination. beyond a proved has the State find state argues of the one that at least doubt reasonable sentencing jury's to the irrelevant ment was in death listed aggravating cireumstances provide it did not in that recommendation § 85-50-2- Ind.Code exists. penalty statute culpability to the as any helpful information § 9(e)(1) (currently 35-50-2- Ind.Code characteristics, defendant, personal his of the (1993)). Second, must 9(i)(1) trial court Further, crime. of the cireumstances or the cireumstances any mitigating find was the statement argues that cir- aggravating outweighed by the exist are it as impact" statement a "victim as much Ind.Code cireumstances. cumstance - penalty should that the death opinion anwas 35-50-2-9(e)(2) (1988) (currently Ind.Code § statements, de Allowing such imposed. (1993)). Third, 35-50-2-9(i)(2) before § - contends, "encourages random fendant sen- final determination making the recommendations arbitrary penalty death jury's tence, must consider trial court Appellant Br. of status." on victim based 35-50-2-9(e) Ind.Code recommendation. - at 27. (1988). However, is not bound the court case, held that we Bivins In the recent Id. The trial jury's recommendation. impact evidence admissibility of victim "the reasons for of its make a record must pen death to the upon its relevance depends imposes. Ind. that it selecting the sentence cir mitigating aggravating and alty statute's (1988). § 85-38-1-3 Code Bivins, As at 957. cumstances." make statutory provisions These here Bivins, impact evidence the victim sepa has a sentencing court lack of clear of its because improper both assessing and independent role rate and cireum- charged aggravating relevance mitigating cir aggravating weighing the as mitigating cireumstances stances final determi making the However, cumstances the vice- by the defendant. serted penalty. death impose the extremely nation whether presented impact evidence tim (1991), Ind., jury. Benirschke influenced likely have and not brief reh'g denied Furthermore, did not refer prosecutor - -, find closing argument. We the statement (1992). In arriv L.Ed.2d 910 to be harm of such evidence admission as to determination separate ing at its own Chapman doubt. beyond a reasonable less appropriate is an penalty the death California, 386 U.S. whether agree. The statute We do not cept capital cases. As- argues the General also 29. Defendant impact in statements way precludes victim in no victim it considers sembly has indicated cases; only capital it reports in presentence capital It cases. in impact inadmissible evidence Bivins, optional. See them makes 35-38-1- Ind.Code this conclusion draws concurring concur- (Sullivan, and (1991 requires im- 8.5(a) Supp.), a victim J., part result). ring reports ex- presentencing pact in all statement punishment, sentencing point court is to Offender, a Habitual proceeds the Cause out employment process its specific sentencing hearing. findings. and clear Id. After considering testimony present- ed in open date, Court this arguments requirement The for sentencing counsel, pre-sentence report and the findings stringent are more in capital cases psychological evaluation by submitted Dr. than in non-capital sentencing situations. Liffick, Thomas the Court FINDS: (1990), Ind., Evans v. State 563 N.E.2d 1254, reh'g granted grounds (1992), on other I. 598 N.E.2d reh'g denied. The trial (i) court's statement of reasons identify must FINDINGS mitigating each and aggravating cireum- (M) found, stance must specific include the I, Arson, As to Count Felony, Class A facts and reasons which lead the court to find the aggravating circumstances and miti- (Hi) existence of each cireumstance, such gating cireumstances do not outweigh one must articulate that mitigating ag and require another as to greater sentence or gravating circumstances have been evaluated less than the presumptive sentence; and balanced in determination of the sen The imposed sentence on Count I should tence, Benirschke, 579, Evans, 577 N.E.2d at by be enhanced thirty years additional (iv) 563 N.E.2d at and must set forth being for a Habitual Offender. personal court's conclusion that the The State of having Indiana sought the sentence appropriate punishment for this death penalty in this cause as to Counts offender Benirschke, and this crime. IV, III and and Jury having recom- 579; Woods, N.E.2d at 547 N.E.2d at 793. mended the death penalty, the Court has require considered the following such specificity aggravating in a fac- sen tors as to Counts III tencing and IV: order or statement reasons imposing a sentence to insure the trial court James P. Harrison committed the mur- only considered proper impos matters when der intentionally killing victim, Jor- ing sentence, thus safeguarding against Hanmore, dan while committing or at- imposition of sentences which are arbitrary tempting Arson; to commit capricious, and to appellate enable the James P. Harrison has been convicted of court to determine the reasonableness of the murder, another to-wit: Murder of Denise imposed. sentence Daniels v. State T. Wilberger 22, 1973, on June Cause No. A63256, Circuit Court Arlington County, Virginia; and The trial court's sentencing order reads as follows: The murders, victims of Tia Forsee

and Hanmore, Jordan were both under years twelve age, to-wit: Tia Forsee SENTENCING ORDER years old, was 3 and and % Jordan Han- (December 1991) more months old. factors the Court determines The State of appears Indiana by Prose- mitigating are are the fact that the Defen- cuting Attorney Kimberly Kelley Mohr dant served in military in Vietnam and Deputy Chief Prosecuting Attorney W. was wounded while in service to his coun- VanHaaften, Trent and the ap- Defendant try, and that Mr. Harrison suffered emo- pears person, in custody Posey tional, physical and County child; sexual abuse as a Department, Sheriff's coun- sel, Ronald Warrum and Thomas M. Swain. The having been con- The aggravating cireumstances as to victed on November I, 1991 of Count Counts III and IV far outweigh any miti- Arson, a Class A Felony, III, Count Mur- gating circumstances requiring the Court der, IV, Murder, Count being impose greater sentence pre- than trial court the that only indicates order the allowing the Court sentence, and sumptive cireumstances aggravating the "considered" penalty. the death impose to not es Second, does the order forth."30 set that the found court trial the that tablish IL. that doubt beyond a reasonable proved State SENTENCE exists. circumstance aggravating one at least sentencing Defendant, in the nothing Third, James is there the sentences Court The consid court trial indicating that the Harrison, follows: order as P. recommendation; the order jury's the ered "recom the acknowledges that only Murder, IV, James and III Counts On Fourth, the or penalty." death the mended death. to is sentenced P. Harrison conclusion personal the not contain der does custo- the to remanded The Defendant is appropri is the death that court the trial Depart- County Sheriff's Posey dy of the and this this offender for punishment ate forthwith transported he shall and ment aggrava that only observes crime; the order Indiana by the designated facility to a any miti outweigh "far ting cireumstances Correction, inmates where Department allowing the Court ... cireumstances gating held. die are to sentenced penalty." death the impose to this time at not set date is execution An process. appellate the pending clearly insuf- is sentencing order the While sen- the death give tous permit to ficient sentencing or- foregoing the that findWe review appellate meaningful the here tence com- not does The order insufficient. der is the trial that 35-50-2-9(e) recognize also required, we Code Indiana with ply sentencing an extensive conducted sentencing court governing precedents our and appears court the trial hearing in which the least in at cases capital statements find- many of the record on the recited have First, does order the followingrespects. in the included to be require which that we ings reasons facts specific forth set is there While sentencing order. written of each the existence find the court lead incorporating simply for basis rational some In mitigating cireumstance. aggravating sen- at the statements oral court's trial the the order finding in explicit fact, is no there order, in sentencing hearing into its exists; tencing cireumstances aggravating any that § 35-50-2-9. Code penalty. Indiana death by trial the troubled particularly We are com- The Defendant follows. they are as And aggravating circumstance listing court's intentionally by murders Jordan intentionally murder killed mitted that attempt- inconsistency committing or while Although killing is some victim there Hanmore. instrument, preliminary following: Arson. A. charging any of the among ing commit instructions, par- instructions, killing Jor- charged the final with Now, you were charged agree that I appear to all that that is by ties And arson. Hanmore dan Jor- felony murder of the convicted with and IV. III Counts to these as considered have Thus, Appellee at 14. See Br. Hanmore. dan State charged that with you were But intentional, required which is killing was that beyond course, proved to and, been it has circumstance, was aggravating support this Jordan you did kill doubt reasonable during the jury's verdict by the established by arson. Hanmore rea required mes (We discussed phase. guilt un- above context in another felony murder penalty impose the death order Ver- Inconsistent Appeal-1. "Issues der dicts.'") one least Judge to find has proving burden had the State proven been has aggravating circumstances sentencing during the doubt beyond a reasonable Jordan toAs doubt.... beyond a reasonable if was intentional killing arson phase that alleged that IV, also [tlhe ... in Count used to to be aggravating circumstance this during com- Hanmore Jordan you killed careful From of death. support a sentence course, which, you did arson of an mission com- court's transcript reading of the reasonable beyond a they proved that appears hearing, sentencing it during the ments distinction no made doubt. to us explana- record, killing detailed more a far and intentional this felony Given murder between finding support a required to purpose: tion Hanmore. intentionally Jordan legisla- killed separate factors are There on the Judge to consider has says ture the end we believe we must "stand firm and place, safer place or a greater justice, require a clear demonstration that the essen virtue of the Court's declaration that what operations tial of the death sentencing pro such victims say have to is "irrelevant." place." cess have taken Dillon v. State (1983),Ind., (DeBruler, J., concurring denied, and dissenting), cert. 104 S.Ct. 80 L.Ed.2d 145 corpus granted, writ habeas Dillon Duckworth, (7th

v. Cir.1985), 751 F.2d 895 (1985).

L.Ed.2d 859 We find this situation to Judy be similar to that in Ind. and Benirschke. In Susan O'Halloran LEVINSON and Judy, sentencing court had set forth at Valerie O'Halloran, Anne sentencing hearing the evidence of miti Appellants-Plaintiffs, gating cireumstances into categories discrete simply and then did not recite them in its findings. written We remanded for an inclu The CITIZENS NATIONAL BANK sion of such judgment acts of in the sentenc EVANSVILLE, OF Appellee

ing order. 275 Ind. at 416 N.E.2d at -Defendant. Benirschke, 110-11. we determined that the trial court clearly had not set out its No. 26A05-9304-CV-145. findings it had independent made the Court Appeals judgments Indiana, required and had sufficiently Fifth District. indicated given the evaluation to mitigating cireumstances. Judy, As in we ordered the Aug. trial court to articulate more specifically its findings in regards. these Benirschke, 577 Transfer Denied Dec. N.E.2d at 579.

Conclusion

We affirm the convictions of defendant

James P. Harrison for knowing Murder

of Tia Forsee and for Felony Murder of

Jordan Hanmore. For the reasons set forth

above, we the case to Posey remand Circuit Court for specific a more sentencing

order or statement of reasons for selecting

the sentence it imposed. DeBRULER, DICKSON, GIVAN JJ., *

concur.

SHEPARD, C.J., concurs in result with

separate opinion.

SHEPARD, Justice, Chief concurring in

result. join

I in all of the opinion Court's save for

the declaration that judge commit-

ted error allowing Stacy Forsee's uncle to

tell the about impact grisly

murders on family. Indiana is not a

Case Details

Case Name: Harrison v. State

Court Name: Indiana Supreme Court

Date Published: Jan 4, 1995

Citation: 644 N.E.2d 1243

Docket Number: 65S00-9105-DP-380

Court Abbreviation: Ind.