Holmes v. State

$41 HOLMES, Appellant, Eric D. Indiana, Appellee.

STATE

No. 49S00-9002-DP-00104. Indiana.

Supreme Court

Aug. 17, 1997. Jan.

Rehearing Denied Kammen, Flanigan, T. Su-

Richard James Kammen, McClure, Rayl, McClure & san D. Allen, Baratz, Baratz Indianapolis, Arnold P. Conway, Indianapolis, Appellant. & General, Carter, Attorney Arthur Pamela General, Deputy Attorney Perry, Thaddeus Appellee. Indianapolis, for DeBRULER, Justice.

Appellant Eric D. Holmes was convicted of murder for the trial of two counts killing of Ervin and the intentional Charles killing of Theresa Blosl. Ind. intentional 35-42-1~1(1) (West Supp.1995). Aun. Code a sentence could decide calling separate on a count recommendation for the sentence of death. Thereafter impose the sentence of death did B(1) aggravator, killing on the basis B(8) robbing, aggravator, mul- while and the tiple Ind.Code Ann. 85-50-2- murder. - (West 9(b)(1) (8) Supp.1995). counts: convicted on three additional was also Foshee, robbery, Amy of attempted murder rob, conspiracy to and was sentenced Multiple made in accordingly. claims are appeal of the convictions and sen- this direct tences. attack, partner Michael

Appellant's Vance, by jury separately tried and con- murder, felony a counts of victed of two robbery, attempted and a count of count of role. murder for his Vance (Ind.1998). He received a total N.E.2d ninety of one hundred sentence executed (190) years. tending support the ver-

The evidence got that he against appellant showed dicts Amy argument with his fellowworker into an job a from his and was fired Foshee worked Shoney's where he had restaurant time of months. At the for at least three Ervin, manager, closing day, Charles Foshee, Blosl, Amy manager, and Theresa worker, Er- leaving restaurant. were Holmes, carrying the till. vin was years age, and Michael Vance then 21 of foyer-appellant trapped the three going and Mi- from outside preventing them going from preventing them chael Vance attacked the Holmes and Vance back inside. three were grabbed the till. The three and Appel- grabbed multiple times. and stabbed Prosecutorial misconduct said, degree," in the first "This lant "Murder Judge granted a Emkes motion triumph." is the real truth?" and "We will limine, ruling impact that victim evidence and died, but Foshee survived. Ervin Blosl permit legal arguments related would not be special showing ted absent a of relevance. Watkins, Raymond Vance Gail a friend prosecution sought photo of to admit a Shoney's, left work with and also a worker at depicting during the victim Blosl her life with Raymond appellant, Vance and who said of photo her small child and a of the victim Foshee, Amy going "I'm to kill that bitch depicting during Ervin him life. The court tonight." going spit he was He also said may have ruled them inadmissible. Jurors glasses. on her photos possession observed these trial, prosecutor as he started the rebuttal testified at described the at- Foshee detail, portion final appellant of his summation tack and identified is, however, penalty phase. There no direct Michael Vance. While had been any in the job at the hours record the extent fired from his restaurant such observation. attack, Michael Vance had started before the working day upon being there that rehired. During phase opening sum- Foshee could not recall whether it had been penalty stage, prose- mation at the the trial appellant or Vance who had stabbed her. disputed cutor the value of much of the testi- mony given by array mitigation a wide Vance, Raymond of Michael brother Vance prosecutor witnesses. criticized some restaurant, employee and also an also indicating by appel- letters remorse written testified at trial. He said that Michael Vance awaiting lant while trial. He was also critical car to the had driven another brother's res- testimony describing appellant's religious parked taurant and it in the lot on the same awaiting Basically, activities while trial. he night. Raymond dozing in the car. He argued gain that these were manufactured to appellant talking in saw and Michael Vance sympathy forthcoming at trial. the No is- front of the restaurant with Ervin and Blosl. respect opening sues are raised with to that appellant Then and Michael Vance entered phase. "Mike, I the car. said did it. I lawyer responded The defense to these said, wrong I was but did it". Both then depredatory yet appropriate statements of "We're ruthless." Both were covered with prosecutor pointing many the trial out the Raymond blood from the waist down. went supporting mitigat- historical documents the cars, change procure with them to a motel ing calling prosecutor's room, shower, clothes, evidence and the ef- change and discard insulting jury. forts Defense counsel things. Appellant bleeding some from by stating closed that he was not ashamed to Raymond cut on his wounds hand. testified ery appellant. for the victims and for pursuant plea agreement year to a for five assisting appellant sentence for and Michael prosecutor opened The trial his rebuttal with four heated statements intersticed with Vance. objections rulings defense and of the court Laura Scott testified that she lived with striking the statements: Andy apartment Vance in an and that Mi- ery, He's not ashamed to because he cries Raymond stayed chael and Vance sometimes every case. appellant there. She further testified that going gonna fight And I'm for the victims apartment and Michael Vance came to the says gonna fight like he he's for the Defen- one or two a.m. on November 1989 and nobody stop (pointing) dant. And can me. began play saw loud music. She blood on can't, [meaning judge] He and she the trial rug the and wall of her bathroom. said, "I killed the mother fuckers" The Nobody stop can't. can me. door, police permit give you soon on knocked and Michael The law doesn't me to photo- Vance and ran to the back of the about the victims or information apartment, graphs they but were soon arrested. of the victims and how were quite regular, uninterrupted before and after why they It doesn't. That's when lived. anything. have no you prosecutor's haven't heard We the trial outburst. See Robin people's case in this case. The humans son v. 297 N.E.2d 409 permitted (1973). You're not has no humans. clogely upon The outburst followed them, about the victims. hear about presentation the conclusion of an effective of gain pull your heartstrings him very complete body Let on mitigating describing way if support your sympathy in an underhanded deficiencies just Lawyers to do he wants to. have cues guidance given appellant growing as he was ery appropriate at the time. To events, that. To up. Among ongoing the trial jury. touch the Defendant front of the prosecutor's calling sympathy outburst thing. They are masters at this kind upon impact because of the restraint victim particularly evidence would not have been A motion was removed. defense A motion to for mistrial was denied. defense impressive. In addition to the abatement of the death count was denied. When dismiss condemnatory judge's its influence from the returned, the trial court admon- apology by ruling prosecutor, and the its disregard the statements. ished impact jurors would have been curtailed prosecutor then restarted his rebuttal (1) any in effect the limited nature of view by profusely apologizing argument before the (2) jurors, photographs by unprofessional for his behavior. The any absence of mention of a deleterious im argument concludedwithout further ado. pact upon persons other than the deceased probable persuasive victims themselves. The prosecutorial A claim of misconduct is upon effect the misconduct delib approached upon consideration to be recommendation, upon penalty erations its prosecutor engaged in fact the whether death, so, favor of life or in favor of under all the misconduct, and if whether the miscon circumstances, was minimal. The miscon placed position the defendant in a duct grave peril grave peril to which he should not have been duct did not result subjected. Bellmore motion for mistrial and the motion to dismiss denied; Maldonado v. properly were overruled. Ind. Here (1) Appellant argues that a more strin respects: there was misconduct three rulings disrespect shown the court and its gent than the one announced standard (2) defense, employed favoring personal attack Maldonado should be when evalu counsel, integrity opposing in a ating prosecutorial misconduct claim (3) attempts persuade jury the with evi case, particularly the capital one by had inadmissible dence which been ruled high intentionality misconduct is in the court, had the trial and the mention of which range urged It is as it was this instance. by court order. expressly been forbidden prosecutorial that misconduct at when however, place the misconduct did not Here jury is jury sentencing phase occurs and the jury right in the appellant and his to fairness unable to arrive at a recommendation grave peril. process in recommendation case, a standard such as that occurred this reviewing judge's a decision to used when repeatedly The trial court admonished impose recommended death where argument that of counsel was not by adopted should be this death rely on its evidence and that the should State, v. 534 N.E.2d court. Chavez memory The trial of the evidence admitted. - (Ind.1989), reh'g 539 N.E.2d special response to the court's admonition State, (Ind.1989); Roark v. 644 N.E.2d 565 prosecutor was quoted outburst of the above (Ind.1994), reh'g argument This content, denied. immediate, complete in almost was by prosecutor's apolo support a funda adequately and was reinforced such does heightened for change. A concern mental usually gy. An admonition alone is sufficient fair the two fairness capital adequately to maintain a balance between can cases (Ind. State, factoring inten by process sustained sides. Hill v. 497 N.E.2d 1986). tionality jury indecision into the overall summation was As a whole to a trial strat in determin before the defense committed to be considered

cireumstances fashioning present. egy. ruling of a trial court grave peril is or ing whether discovery remedy violation is reviewa perjured or undisclosed 2. Use of only Phillips for an abuse of discretion. ble evidence 550 N.E.2d 1290 remedy The usual is a continuance. that ar denied. Lt. Davis testified when Joie remedy. is an extreme Two of the Mistrial car, police being to a walked rested appel that main witnesses testified State's degree murder". "first appellant chanted evidence, similar statements incriminating as it tended lant made the same or This was shortly trial court ral- after the crime. The questionable recollection support properly light that it had been evi surviving victim Foshee ing is sustained dence as a whole. made a like statement at appellant who had previous Davis had the seene of the attack. ly deposition in his testified impact evidence 3. Victim other than he had made no statement improper claims that vie- squad played in the car. didn't like the music impact tim evidence was received on the basis of A defense motion for mistrial process court in the testimony denied. The court did Generally, which he was sentenced to death. grant overnight permit prepara recess to an impact victim evidence is evidence which cross-examination, and the defense tion for consequences by a demonstrates the suffered thorough eross-examina did then conduct family victim or a victim's as a result of a prior his statements. tion of the officer about (West crime. Ind.Code Ann. 85-88-1-8.5 per Appellant here claims the use of Supp.1995). Such evidence is inadmissible jured testimony. This claim was not made penalty unless it is relevant to the death Despite turn to the merits of trial. this we aggravating mitigating cireum- statute's resulting from the the issue. A conviction Bivins v. stances. testimony knowing perjured use of would be denied; (Ind.1994), reh'g Burris fundamentally unfair and should be reversed. (Ind.1994), reh'g Error denied. Sypniewski 400 N.E.2d may receipt impact in the of victim evidence sustained in The claim is not doubt, beyond a be harmless reasonable support for because of insufficient this case may remedy appeal. Bi thus warrant falsity. the claim of Davis testified he vins, 642 N.E.2d at 957. For the reasons had not mentioned these statements his dealing expressed in the section above they police reports because did not seem misconduct, prosecutorial including the brevi sufficiently significant, but he had mentioned ty any photos of view of the the two prosecutors in 1991. He did them to 1990 or may victims which have disclosed victim im present not mention the statements crime, pact any we find error prosecutor until minutes before fifteen jury sentencing hearing regarding the re going plausible on the stand. It is that a ceipt impact victim to have been just might person who has been arrested beyond a doubt. harmless reasonable

repeat the of the crime for which he name just repetition has been arrested and that case, present In the the vietim of the might incriminating signif seem to have little murder, Foshee, Amy attempted testified officer, arresting listening in icance to an among things sentencing hearing other at the tently against for interest. There admissions judge the that she had suffered a before quali was here no more than an inconsistent miscarriage during the first week of the trial. warranting ty testimony Lt. Davis to the preju that become She also stated she had opportunity the for cross-examination. fullest against black men as a result of the diced Crowley among pros that the crime. David testified other also claims by things hearing duties fail at the same and called for the ecution violated its disclosure ing testimony to consider the future of the families of produce this of Lt. Davis for Blogs] Ervin, particularly trial the one child of consideration of the defense before jury of Ervin. Neither 4. Instruction that the Blos! and the two children "should" acquit convict or Crowley express or made an sen Foshee recommendation to the court. tence Appellant finds insufficient bind ing in given jury force the instruction the sentencing hearings, the trial Prior to the it guilty" that "should find the defendant not an order in limine to limit victim court issued particular charge of a if the State failed to that which impact evidence to was relevant prove beyond each element a reasonable aggravators. At mitigators and the sentenc- argued binding doubt. It is that the force of objection hearing, no ing there was inadequate the term "should" is fur and is however, Crowley, testimony of Foshee and ther diminished when considered with the judge counsel reminded the that tes- defense I, pursuant instruction to Article Section 19 timony in contravention of the order in limine Constitution, of the Indiana that the judge The trial ruled had been received. law, judge the and when considered portions that the irrelevant were discernible case, in prosecutor with the fact that this the by give her and she would consider- dire, repeatedly in voir stated that the law is portions arriving ation to those her upon proof the "must" convict light brevity In of the testi- decision. beyond guilt a reasonable doubt. There was Crowley mony of Foshee and and the lack of objection to the instruction or to the it, acrimony given the assurance evident prosecutor. statements of the The issue was parts trial court that irrelevant would the preserved appeal. thus not raised and for her, ignored and the absence in record be Snider v. 274 Ind. 412 N.E.2d 230 any weight indication that was accorded (1980), Furthermore, reh'g denied. this in parts arriving these when at the irrelevant approved in struction was Mitchem v. death, Finally, any we sentence of we conclude that error receiving impact this victim evidence was agree that the term "should" lacks that abso terms, quality present lute in other such as beyond a harmless reasonable doubt. "must." See Loftis (1971). Nevertheless, N.E.2d 746 it does Appellant argues that the error adequately instruct what law receiving impact the victim this contemplates proper course harmless, by case can not be reason of Arti proof by in the event there failure I, cle Section 18 of the Constitution of Thus, prosecution. proper prohibits Indiana wherein "vindictive ly instructed. justice." apparent There is no tension be application stringent tween the the most Non-statutory aggravators prohibition

harmless error standard and the justice. Appellant vindictive also ar sentencing, claims that gues ruling denying discovery of vic judge erroneously gave weight in favor impact process. tim evidence denied him due imposition of the death sentence to non-stat Here, type readily the evidence was utory aggravators. In Bellmore v. fully anticipated appreciated. be For example, testimony of Foshee sentenc aggravators held that Court ing hearing before was brief. She weighed against mitigators in the death sen guilt/innocence phase testified at process only expressly enu tence are those discovery thus had been available for in the Ind. merated death sentence statute. respect consequences to the adverse to her 85-50-2-9(b) (West Supp.1995). Ann. Code from the attack. The cross-examination of Belimore, properly restricting In after first Crowley very was effective. No motions for aggravators to those enumerated and permit development to of continuance rebut erroneously proved, trial court deemed unfairly tal were made. The defense was not weight aggravator on the added additional hampered. present Chandler of side of the scales for a lack re acquisi 419 N.E.2d morse evidenced the defendant's sixteen, enough eighteen, mature to vote conviction and before after tion of a tattoo marry parental enough to without mature sentence. enough age eighteen, and mature consent at contrast, Here, judge's trial refer- twenty- alcohol at purchase to and consume premedita- sentencing to in order ences age Differing regarding this are one. views deliberation, intently from one tion, moving posited there is no cause war- not here and next, the use of extreme killing to the mitigating weight. ranting additional discrete torture, perfectly clear makes force considering the manner she was 8. Mental Retardation for the sole aggravators occurred which the trial, conviction, appellant's After and sen- weight appropriate to giving an purpose of tence, legislature Indiana amended the referring to aggravators. In proved those penalty preclude imposition to death statute the defendant had to opportunity which mentally penalty for retarded of the death background, rise above his _ 35-50-2-9(a) Ann. offenders. Ind.Code - that she is in the perfectly clear makes {(West mentally Supp.1995). A retarded indi- determining the existence process of twenty- becoming who before vidual is one mitigators. procedure The em- weight of (22) (1) signifi- years age two manifests: entirely gov- ployed consistent here subaverage functioning and cant intellectual erning law. case (2) impairment adaptive behav- substantial jail mitigator Adaptation life 6. - (West Supp. Ann. 35-86-9-2 ior. Ind.Code order, sentencing In her written 1995). Diagnostic According to the and Sta- mitigating (DSM- placed trial court the evidence tistical Manual of Mental Disorders categories gave eight circumstances III-R), IQ mentally levels of the retarded fall mitigating weight to six of them. The some saving range By specific 20 to appellant testimony ad described clause, directly appli- this amendment is not justed jail well environment appellant's Ind.Code Ann. cable sentence. six, only which received placed in one of the (West 35-86-9-1, Supp.1995). § n. Here, weight. the factor was not minimal could mandate a result on amendment required considered as overlooked and was this issue. Bivins v. by pertinent case law. See precluding Prior to the amendment (Ind.1994), reh'g denied. retarded, mentally mental execution serving mitigator appellant envisions This mitigat- retardation could be considered as a danger guards and being a time without Indeed, Judge ing factor. Emkes noted making personal prisoners and some other IQ appellant's order seores such, improvement gains. As there are falling the 79 level and within the low to warranting greater factors consider relevant average intelligence placed level. The provided by the trial court. ation than those general background within the cate- note granted gory of considerations and the cate- {. Age mitigator aas gory mitigating weight. as a whole moderate twenty-one years old when Appellant was light totality appellant's Viewed The trial court men- this crime occurred. functioning background, his intellectual as a general background cate- age tioned within a mitigating fully factor was considered considering the context of gory, it within appropriately assessed. from appellant having lived foster homes 9, 10, and 11. Non-death Sentence age age eighteen. did eleven to of Co-defendant school, although graduate high from without passing grades. He lived on his own from mitigating contended that - - twenty catego- age eighteen age one. The weight the fact that Mi- should be accorded ry weight. as a whole received moderate penalty did not receive the death chael Vance society participation in these crimes. The

Twenty-one age is the at which this for his granted only minimal independent personhood. agreed. It trial court It recognizes full however, Ordinarily weight, finding age responsibility. full is the participant in the "more of a enough mature to drive at one is considered crimes." reflecting only jury finding upon this that the was unable trial court based angry Second, the vie- appellant Holmes was to reach a recommendation. this tims, revenge, to use his dissent, a motive of had had vigorous court has twice held over carry relationship to further out employment including opinion, that of the author of this recognized and knew he would be the crimes jury's inability that a to reach a recommen anyone the attack. survived mitigating dation need not be considered as a circumstance and has no effect subse the trial court are These conclusions of quent sentencing procedure. court Roche v. of evidence. At supported the details State, (Ind.1992); 596 N.E.2d 896 Burris v. Raymond p.m., appellant left 10:00 work State, (Ind.1994), reh'g 642 N.E.2d 961 de espoused an to do harm. Vance and intent nied. approxi- Michael Vance at He returned with midnight, plan harm

mately with a to do major Appellant's role in the worked out. Legal 13. Standard culpability planning and his the utmost makes a When recommenda limit are reasonable to infer. Michael Vance against imposing penalty, tion the death day begin work the had been rehired only sentencing judge impose can the death his arrest. was much better decision, penalty point if at the of final Appellant's risk of identification if known. judge evidences in the court's written sen greater. the victims were not killed was tencing statement that due consideration to Furthermore, might trial court have well given. recommendation was Roark v. by noting ap- support finding added for the State, (Ind.1994), reh'g 644 N.E.2d 565 de incriminating pellant's admissions made after participation nied. This form crimes, as well as the wounds he suffered sentencing process, distinguished criminal attack, in the his showed hand jury participation determining guilt from clearly that had he used his hands subdu- | innocence, required or is not the state or ing the three victims. A rights by jury federal constitutional to trial out, appellant points As is true that Florida, process. Spaziano and due v. there was evidence that Michael Vance was 447, 3154, U.S. S.Ct. 82 LEd.2d 340 erimes, urging at the more vocal time (1984); 86, Collins 275 Ind. killings completed, pro- that he (1981), 991, cert. 451 U.S. transportation to vided their the restaurant (1981); 101 S.Ct. 68 L.Ed.2d 851 Mack escape to commit the crimes and to after- (1982); 203 Ind. 180 N.E. 279 ward, and that he too was also covered with Miller v. N.E. review, however, Upon blood. we are (1898). Jury participation in the death sen accord with the trial court's view of this tencing process aas recommender is a hu potentially mitigating element. The sentenc- highly statutory mane and laudable role. ing properly considered this factor. role, According defining to the statute Bivins, supra. against recommendation for or the death Furthermore, we conclude the evidence penalty must be unanimous. In the event was sufficient to establish that was is divided on the issue and can reach culpable the more of the two. The sentences recommendation, jury's unanimous disproportionate. were thus Roche participation sentencing by is at an end and the court to a conclusion without proceeds Disregard Jury's Non- the benefit of a recommendation. recommendation Appellant claims that the trial court Appellant argues that give opinion consideration to an should considering jury's in error for not against imposing penalty the death when that alleged ten-to-two vote the death by only majority jurors. opinion is held penalty mitigating aas factor when deter jurors In mining such case the have been unable to impose whether or not to the death First, agree unanimously. legislative decision finding sentence. there is no that the two, only split ten to the record of the that it is the unanimous recommen- 852 that she and Blosl were special testified given consid

dation which should Foshee the wall. Ervin was then judge capital required in a to face sentencing by the eration multiple First, savagely stabbed grabbed grounds. upon at least two rests case spilling and wounds his judge. A times. The blows job for the sentencing is capital by accompanied aid to a criminal intent assistance and blood were jury may possibly be of grabbed final him. Blosl was then make the directed at judge the must judge, the but unanimously multiple times. The blows savagely stabbed decision. Even when sentence, accompa- by her were and wounds received the death recommends at her. Foshee appropriate re nied an intent directed death is question of whether upon Second, Though the attack there is the was then attacked. judicial one. mains a which is moments after the attack and aid Blosl occurred that the assistance notion Ervin, upon Blosl and the proper upon function the attack to the needed and beneficial accompanying intent to kill her occurred with judge that assistance ing sentencing is knowledge and realization of the product of a while the sure is the and aid which required high level operating at the same inflicting consequences stab- nature and guilt cutting upon inno a human be- upon bing or wounds rendering a verdict when ing. the re As the trial court concluded: upon which cence. The basic values jury recommenda quirement of a unanimous was of such a The fact that the Defendant upon which rest are those values tion rests and attitude that he could en- character a unanimous verdict. requirement and move dure the murder of one victim 130, Louisiana, 99 U.S. Cf. Burch yet swiftly intently to murder another (1979). 1623, Those 60 L.Ed.2d 96 S.Ct. weight. given aggravating considerable if nonunanimous threatened values are considered, properly applied, The trial court required to be consid were recommendations gave weight multiple ag- murder sentencing judge. When ered gravator. judge and are capital sentencing roles of apparent that light, in this seen Sentence sentencing judge con requirement that judge arriving A at a sentence ap not jury recommendation need sider the carefully weigh and capital in a case should juror unanimous ply in of a the absence mitigating circum evaluate evidence viewpoint. so hold. We stances. The should include sensible analysis description of the of evidence Aggravator 14. Double Murder order, sentencing together with the result efficacy Ann. 35-50-2- reached as to the of the various Pursuant to Ind.Code 9(b)(8), alleged multiple prosecution items in the order. Benirschke appellant killed aggravator because de murder nied, denied, 1224, having killed Charles 112 S.Ct. Theresa Blosl after cert. U.S. (1992). Judge 120 L.Ed.2d 910 Emke's that this trial court concluded Ervin. The beyond proved a rea these re aggravator had been order reflects conformance with "full and substan placed quirements. doubt and sonable weight highest it. The tial level" presented ap- The defense is the mind gravamen aggravator this adapted during the three pellant had well forming the intent capable repeatedly charges years awaiting trial on these and was kill, being culpable mental state highly each disruptive. or never observed to be violent resulting in re accompanied by conduct weight" judge gave trial "minimal to this killings. 604 N.E.2d peated Baird judge gave mitigat- evidence. The moderate (Ind.1992), cert. 510 U.S. weight was relative- ing to fact that appellant 114S.Ct. 126L.Ed.2d through ly age from free from misconduct noted killings age 21 when he killed. The Appellant complains that the two rapid sequence that the trial living occurred such for three had been alone years age age 21. The trial court granting this from 18 to not warranted in court was give mitigating Amy required additional highest weight level. aggravator judge gave opinion, weight appellant's age. The other sections deficiencies, background aggravating outweighed two consideration cireumstances recognizing appellant operated the low to mitigating respect the circumstances with to level, granted the average intelligence and the conviction for the intentional murder of weight. No claim of mental factors moderate thoroughly Blosl. The trial court considered can be sustained on this record. retardation factors, mitigating giving weight to the lack history of a of adult criminal conduct and complains the only juvenile record, aggres- a minimal the weight killing to judge added the Charles appellant's partner sive role the crimes of Ervin on the basis that he had been tortured. years, appel- Mike Vance and his sentence of showed that Ervin had been The evidence nature, drinking impulsive lant's and his lack leg pommeled repeatedly and stabbed the father, of an interested the death of his robbery completed. had been He after the seven, age neglect mother at the and abuse wounds, eight of which received stab one social, surrogate parents, at the hands of his penetrated through his neck. The trial physical, problems, and educational and to sufficiently supported. court's conclusion is mitigating other items. The trial court's judge appellant's par- concluded that The findings respect mitigating cireum- light revenge ticipation of his motive of complete stances are and we find that the and his motive avoid identification was weight aggravators, the intentional greater than that of The Michael Vance. killing having of Blosl after taken the till supported by injuries conclusion is also the him, killing outweighs from Ervin and the by appellant sustained the attack and his weight mitigators imposi- and that the grant weight in admissions. The did penalty tion of the death for the intentional range appellant the low for the fact appropriate. is murder Blosl likely would have been to follow rather than to lead. 16. - Indiana Code 35-50-2-9 requires The Indiana Constitution Appellant contends that the death appeals imposition Court in all from the sentencing process required by statute is penalty the death to determine whether Eight unconstitutional under the Fifth and statutory procedures have been followed and Amendments the U.S. Constitution be penalty appropriate. the death is whether guidance to cause there is insufficient every Review this Court of death sentence sentencing judge as to what evidence should automatic, mandatory, is and cannot be received, aggravating be what are and miti Cooper waived. circumstances, gating weighing and what the balancing of cireumstances entails He trial court in this meted out the case process provides also claims that penalty appellant death for the conviction of "guarantee" appropriate of an decision. VI, of Count intentional murder gave Theresa Blosl. The trial court a sen- evidence to be received in a (60) sixty years tence of for the intentional hearing is rele death sentence killing of Ervin. The trial court Charles penalty aggra charged vant to death statute prosecution proved concluded that be- vating any mitigating cir cireumstances and yond appellant a reasonable doubt that killed Aggravating cumstances. circumstances are intentionally in Theresa Blosl the course charged in the statute and those enumerated B(I) robbery, aggravator, and that Bivins, in the individual case. 642 N.E.2d at having killed Blosl after Theresa weighing balancing processes 955. The B(8) Ervin, multiple mur- killed Charles judgmental processes applied are the same manifestly aggravator. der The evidence operating fact under defined triers of proves aggravating both cireumstances be- charges judging the ered- and defenses when yond a doubt. reasonable ibility weight and the to be of witnesses guilt given deciding upon or to evidence The trial court declared in its written sen- appropriate innocenceand an sentence. order, tencing considered in detail some a sensible ing pre-trial period. This is proce statute where death Even followed, this court pressure on scrupulously dividing line. There is some dures are they general panel learn reweigh aggrava members independently may appeal during examina case voir dire provide issues cireumstances ting mitigating tion, pressure onee the but that builds consistency and fairness. an assurance of specific issues are and the Bellmore, jury recom commences supra. When out, jurors and for the both for the imposed, and the fleshed that death not mends death, large, be public at deliberations imposes the sen judge nevertheless holding is The Bellmore come imminent. unless the sentence tence will not stand reaffirmed. State, 565 v. 644 N.E.2d appropriate. Roark statute, (Ind.1994), all The like reh'g denied. valid, statutes, and the bur presumptively dire of fourteen 18. Voir challenger upon appellant as the den is trial court Appellant claims that the unconstitutionality. The va its demonstrate conducting voir dire of a in error in was lidity presumption has not been overcome. jurors prospective panel of fourteen member (Ind.1982), State, 759 430 N.E.2d Williams repe objection. argues that the over his He denied, 808, denied, 103

reh'g cert. 459 U.S. assuming questions hypothetical tition (1982); 33, Fleenor v. 74 L.Ed.2d 47 S.Ct. aggrava guilt proof of a death or successful denied, (Ind.1987), State, 514 N.E.2d 80 con the individual members tor desensitizes 189, denied, 872, 102 488 109 S.Ct. cert. U.S. in loss cerning major issues and even results (1988). L.Ed.2d 158 neutrality. concerns caused the Similar Supreme in exercise of its California Court Jury sequestration 17. individual, supervisory powers require se 4, jury 1992 the selec On November penalty cases. questered voir dire in death objection of the process began. tion Over Court, 1, 168 Hovey Superior 28 Cal.3d defense, sequestra that the trial court ruled (1980). 128, 1301 Cal.Rptr. 616P.2d jurors imposed not be tion of would examination of purpose of voir dire panel members point at which individual jurors to discover whether a challenge process, prospective but passed through the belief, juror any opinion, or prospective has jury was sworn. would start when the entire or control her deter- which would effect completed and the trial com bias was Selection 14, to be tried and thus mination of the issues menced November right of provide basis for exercise of the case, must capital In a the court 77, Ind. challenge. Johnston v. 239 jury during trial if there is sequester the (1958). 155 N.E.2d 129 Voir dire examina- Lowery 434 motion for it. defense supervision of the tion is conductedunder the re-trial, (Ind.1982), after necessity be left to its trial court and must of denied, 1098, N.E.2d cert. U.S. sound discretion. (1986). major A S.Ct. 89 L.Ed.2d law, sequestered individual prevent Under Indiana purpose requirement is to any required case. Howev jurors capital trial from voir dire is under the stress of a er, struc trial court retains discretion to receiving the about and seeking or advise circumstances. voir dire to meet discrete the trial from ture attitudes towards issues Lowery v. 547 N.E.2d 1046 juror continue to persons with whom the will 217, 112 Appel cert. 498 U.S. S.Ct. after the trial is over. live and work such There were no panel who are L.Ed.2d 176 argues lant members will be and released before trial brought selected to the attention of the cireumstances ruling of the in this case. The trial court subject influences to those same mischievous court remains was not This sequestered and therefore should be error. yet has been no convinced that as there question settled Bell- selection. This support re more, convincing shown to basis supra. An admonition from the - jury mandatory individualized coverage quirement judge not to view or listen to media capital cases. voir dire suffices dur or discuss the case with others is, It claim 19. Caldwell course, say an incorrect statement of law to jury during was informed give years the court must a term of dire, instructions, during voir and pen the death summation, recommends sentencing that a decision However, alty. when couched within this it, that death should not reached should or particular dealing instruction with the sub imposed, Appel recommendation. ject length potential sentences and repetition lant of this infor claims legal consequences, juxta other and when mation when considered with an erroneous posed particularly to other instructions more informing statement in the instruction correctly dealing with the subjects parole eligibility; on the jury, roles of the it does not minimum and maximum sentences for mur constitute fundamental error. der, murder, attempted robbery; consec sentences; good utive and concurrent Fleenor, In this court dealt detail credits; precludes imposition time of the with a Caldwell claim of almost identical penalty death because it so undermined the import rejected it on the basis that jury's responsibility making sense of its responsibility jury sense of had not sentence recommendation as to violate the There, here, been shown undermined. as Eight Mississippi, Amendment. Caldwell v. appellation repeated "recommendation" was 320, 2633, 105 U.S. S.Ct. 86 L.Ed.2d 231 again throughout time and the trial. It is provided: The instruction not, however, jury error to inform the that The law states that a defendant not will sentencing its decision is a recommendation. eligible parole be for until has he served at Lowery any least one half of sentence. appellant's denied. If we assume that you ap- If decide that death is by stronger presence claim is made of case, penalty propriate in this the sentenc- instruction, in the misstatement the above an ing will be the Court's discretion. The Fleenor, present error not we must at the Court must then sentence Eric D. Holmes recognize appellant's same time that claim is on the Murder convictions to term of judge's weakened the trial assertiveness years. The minimum sentence the Court granting an preventing order limine (80) impose thirty years could is on each use of the term "mere recommendation" Murder conviction. The maximum sen- propensity the a which has more distinct to (60) impose sixty tence the Court could is jury responsibility, protective undermine years on each Murder conviction. The sum, present umbrella not in Fleenor. In we impose minimum sentence the could Court any jury's that conclude dilution of the sense (20) twenty years Attempted on the responsibility sentencing of its duties was Murder and the maximum sentence the require not inconsistent with constitutional (6) impose years Court could is six on the ments. (20) Robbery twenty and the maximum is

years. These sentences could be ordered 20. Verdict form instructions consecutively concurrently served or way predict each other. There is give guilt The trial court refused to point might what sentence the Court phase special jury verdict forms on whether impose. kill proved intent and on whether Indiana, In the State of a defendant can guilt accomplice theory. an was found on good apply earn credit behavior give separate pen The court also refused to sentence, against his a maximum alty phase special jury verdict forms for each (50%) fifty percent credit of of the sen- major aggravators, of three death each imposed by tence the Court. evidence, category mitigating weighing brief, [Appellant's p. aggravators unanimously proved There was no versus all 102-08] type objection Caldwell to the instruction. by only mitigators proved found even one juror, The direct issue whether was error to and whether death electrocution give appropriate. this instruction is not raised. Jester v. would be 86, 415 N.E.2d 46 lins interrogatories to the Special verdicts 991, (1981), 101 S.Ct. cert. 451 U.S. in Indiana 1969with

jury were abolished (1981); Taylor v. 49. The L.Ed.2d 851 Trial Rule adoption of Indiana that the benefit N.E.2d 1231 judgment was for this basis claims and permitting the dissection Penalty phase instruction re- elements and into constituent defenses trial court instructed assessment of each individual quiring an penalty phase, sentenced outweighed by far practice to be proved appellant would earn one years, term of to a courts and the they place on the the burden any through credit for off of sentence half they injected into delib- confusion which time, may multiple sentences good and that exception, their use miniscule With erations. concurrently. Logically ordered served State, 512 See Criss has been eliminated. existed, habit, therefore, appel possibility (Ind.1987)(prior feloniesin years. Ap in fifteen could earn release lant proceedings). ual offender years un this fifteen pellant claims special verdicts claims that the mislead the so as to realistic and would rights to have necessary his to ensure were contrary penalty to the recommend the death juror intent as an element determine his each 12, 16, and of Article Sections guarantees aggravators, and charges and the of both the and the of the Indiana Constitution mitigators, weight aggravators Constitution. Eighth Amendment U.S. pursuant to Article being claimed right such 12, 16, and 19 of Indiana Consti- Sections general in Indiana is that instruc- rule (trial by jury, prohibition eruel tution impermissible are because tions such as this of law punishment, unusual function. fulfills no facts, respectively). and However, may given in be such instructions there discretion of the trial court where the regard- jury properly instructed The was jury engage to believe that the will is reason prosecution prove to ing of the the burden of alternative speculation in over the extent charged states of mind both the criminal must be com- penalties. Such instructions trial, and jury part of the phases of the Fleenor, supra. plete and accurate. See necessity of unanimous ver- regarding the Here, objected in- to this defense counsel authority to dicts and recommendation. judge and not on the that it did not aceu- impose belongs to the struction basis death rately Argu- state the maximum sentences. duty judge is under a to jury and the the may and be ment was held and resolved findings like the ones re- provide written claim denied. Thus the raised deemed rejected jury by instruc- quired of the these timely in a manner and appeal was not made tions, mandatory propriety the review of with Jester, preserved. 551 N.E.2d at 842. by this court. No the death sentence pro- required is these constitutional more moreover, appeal, ignores the The claim on respect verdict forms than the visions with jury learning process engaged in as a jury proper requirement complete ignores impor- progresses, and also the trial general instructions and verdicts. lawyers opposing advo- tant role of the as recommend 21. The failure to learning process. Instructions cates in that counsel the provide as these defense Appellant that death such contends arguing death sentence is pro- option it that the wherein statute is unconstitutional likely imposed highly it that the sen- jury arrive at a not is that if the cannot vides recommendation, tencing impose court would a sentence jury drops out of the the in the years high range in the indicated the sen- process and the alone decides prosecutor might then re- by jury right to trial instruction. tence. He relies on the would receive jury judge spond law that the defendant right to and the have I, §§ jury art. 18 and 19. range. and facts. Ind. Const. A would the low sentence play argues required by op- that He extreme views realize that these are de- sentencing. advocates, and that a better assess- This claim has been role posing probably somewhere be- would against appellant's contentions. Col- ment cided 857 tween, meaningful gave incriminating which he an and that a assessment statement. purpose admitted at him. The trial impossible for it. It is the would be although court instructed the that permitting these instructions of the law cireumstances, admissibility court had determined of the that armed with exceptional statement, was to consider the vol- knowledge perimeters impact and the events, will pur of future unknowable untariness of the statement poses ignoring altogether it or determin subject and res- speculation on abandon ing weight and credit to which is was jury's proper office will oceur. toration Grassmyer, entitled. Unlike in the eviden- 674, Feggins v. 265 Ind. See tiary predicate for the issue of voluntariness N.E.2d present the case at bar. While 28. Article Section instruction there was evidence that jurors The trial court instructed the custody during statement, his there is no law, right that it was their to decide the but prod the statement was the they apply it as found and not to disre interrogation uct of and thus there is no gard it. It further advised the court's question. foundation for the voluntariness source of the instructions were the best law. (Ind. Clemens v. preserved with No issue was raised re 1993), reh'g denied. The therefore spect R. to this instruction. Ind.Crim. disregard could not the statement as in claims fundamental error viola Grassmyer, only ut determine the credibil multiple tion of the Sixth Amendment and it, ity police sponsored who and the provisions of the Indiana Constitution. weight justly to which the statement was adequate That determination entitled. is no error. This instruction There ly governed by general instruction on jurors they along informs the sit weight credibility. It was not error to judges honestly, justly, refuse this instruction. impartially interpret apply existing law. 25. Mental state instruction Beavers v. 141 N.E.2d (1957), reh'g judicial power denied. This following tendered the right does not include the to create law or to instruction: reject law. Ind. Burris The issue of the Defendant's mental state is This ever so evident has been raised in this case. The evidence light the instruction is considered in when of negate capac- is offered to the Defendant's given defining the law other instructions ity knowingly intentionally during to act or proper jury. The office was and after the offenses which form the basis any single told to consider instruction with charges this case. The State of challenged all the other instructions. The proving beyond Indiana has the burden of concepts it instruction and the which embod a act- reasonable doubt the defendant appellant's precious ies shielded constitution knowingly intentionally or ed for each of- rights against al encroachment. knowing fense that contains the element of or intentional conduct.

24. - Voluntariness instruction employs part This court a three [R. 768] Appellant tendered an instruction analysis reviewing the denial of tendered concerning the voluntariness of statements First, instructions. the tendered instruction evidence, by attributed to him Second, correctly must state the law. it would include statements "murder in the Third, his supported by must the evidence. it be degree" custody. first chanted while by covered other instructions. must (Ind.1986). instruction was refused. Pavey v. 498 N.E.2d 1195 parts fails the first and third instruction upon Grassmyer relies of the test. premised upon a which the evidence showed that the defen This instruction is theory. In given polygraph capacity dant was a exam sub defense and diminished jected police interrogation during of to further Indiana there is no defense diminished 28.Hearsay message N.E.2d

capacity. Cardine an is erroneous This instruction objection, the trial court ad Over simply If viewed as an of law. statement message by penned mitted a written focusing the attention of the instruction night manager. victim as shift She left Blosl tending at trial upon the admitted day manager init for the shift the restaurant knowing or state intentional to show exiting before the restaurant with Ervin formed, no been there would be had not It being Foshee and killed. attacked it, refusing as the issue of the suffi- error yellow paper legal pad was hand written guilt ciency support to is ade- of evidence and stated: upon the quately the instructions covered Suzie[,] your feeling Morning Hope Good charge requirement and the elements tonight some went had better/ smoth/ beyond proof reasonable doubt. Amy problems gave he some with Erie/

problem[;] [T]hen wanted to kick her ass. 26.Jury limitation instruction he in later to do the came back and wanted bring Sunday said he’d be in [H]e same/ granted a The trial court defense going his uniform in. whats on. [N]ot sure to file than ten instructions for motion more Mary go she has to to court[—] can’t work/ being penalty phase, ten the number set you get can someone fill in[?] Twenty-five in 51. Indiana Trial Rule ya See submitted, the trial court structions were Theresa eighteen in all to be permitted instructions p.s. I the store look better[.] Three refused. Fifteen were know could filed. were the restriction vio given. claims Appellant objected, contending that the ex- rights guaranteed by the lated constitutional hearsay rights hibit his violated Eight and Article One of the Amendment trial court confront and cross-examine. The premised The claim is Indiana Constitution. objection, ruling that the ex- overruled general proposition the issues hearsay hibit the busi- admissible under unique complex. capital are exception. ness records special prejudice. There is claim proof A is business record of facts hear- (1) say, an exception admissible under it is applied in criminal properly The rule (2) record, original regular an is made cases. Harris v. at or course of business near the time of the (1974),reh’g denied. The rule and N.E.2d (3) recorded, events it reports facts within eminently application fair. The its here are knowledge first had a hand someone who sanctions, permitted, trial court rule and the duty report business observe and special circum- discrete consideration facts, (4) witness first hand who had exception. warranting stances an There knowledge must be unavailable. Wells no undue restraint violative constitutional State, 608, (1970); 254 Ind. 261 865 N.E.2d imperatives. (Ind.1983). State, Smith v. 455 N.E.2d 606 testimony 27.Truthful It noted that Evidence need be under Ind. jury, in The trial court instructed the twice 803(6), Rule trial of made effective after the attempt “You to fit part: should the evidence case, requirement is no unavail- there of the is presumption defendant Nevertheless, ability. here even that re- every theory is innocent the witness quirement The the is met. witness was vic- telling the There was no issue raised truth.” charged obviously tim of the homicide respect to preserved this instruc remaining not available. The elements presented. tion. The claim is not Snider v. exception provided are satisfied. The State State, 401, (1980), 412 N.E.2d 230 proof written the exhibit was a hand reh’g presented, original, by part denied. If would be re supervisor made a shift as jected in requirements accordance with the her duties to «inform next shift routine supervisor occurring decisis. under of the doctrine of stare Lottie of relevant events (Ind. State, 529, supervision. ruling 273 406 N.E.2d 632 her The of the trial court Ind. 1980),reh’g denied. not erroneous.

$59 1, guar Those accused of crime are Amendment and Article Section 13 of the rights of effective confrontation anteed Indiana Constitution. by and cross-examination our constitutions. robbery 29. The conviction by hearsay may

Exeeptions which guilty The returned a verdict of lawfully admitted into evidence must be A, Robbery Class enhancement to Class separately tested to determine whether their being A upon based the element of the knife rights. application is violative of those Idaho Ervin, wounds to injury Charles the same 3139, Wright, 497 U.S. S.Ct. being the basis the murder conviction. (1990); Brady L.Ed.2d 638 injury by same to Ervin as found N.E.2d 981 The State must jury would constitute the for an basis en- hearsay prove that a statement bears ade hancement to Class B. The is cor- quate reliability. Reliability may indicia of rect that he is entitled to resentencing on the be inferred a statement falls within a firm robbery count felony. as Class C Bevill v. ly hearsay exception rooted or in the event (Ind.1985), N.E.2d 1247 de- admission, hearsay exception warrants nied. exception qualify firmly if the to but fails rooted, "particularized the State must show conspiracy 30. The conviction guarantees of trustworthiness" which include guilty returned a verdict of "only surrounding the cireumstances Conspiracy Robbery, To Commit the rob making of the and that statement render the bery of constituting Charles Ervin itself particularly worthy declarant of belief". overt act element. is correct that Wright, 497 U.S. at 110 S.Ct. at 3148. cireumstances, under these where no addi Assuming arguendo that the business rec- required tional prove facts would be exception firmly hearsay ords rooted charge beyond murder necessary those exception, we find the statement and the prove conspiracy, conspiracy vacation of the cireumstances under which it was made ren- principles conviction is necessitated particularly worthy der the declarant Blos! jeopardy. double Neal v. 659 N.E.2d belief. The exhibit is a record of a small (Ind.1995); Buie v. restaurant business which describes routine (Ind.1994), reh'g denied. personnel operational matters. Several subjects different are touched in the Jury qualification portion broadest of terms. The relevant process claims that the the argument of this case describes an Indiana, questioning by and coun- employees between two and the fact that one sel, by qualified to serve in a was hostile towards the other. The record case, capital likely renders a more manager supervisor, was made a shift convict of the crime and to recommend in to whom the event would not have been a penalty. favor of the death This facial chal- one, happy yet message does not evince lenge to the death sentence statute as incon- accusatory an or rancorous intent toward right impartial sistent with the to a fair and employees either of the involved. The rec- question guilt trial on the or inno- during ord was written at the end of the shift crimes, charged fully cence of the has been argument place, which the had taken when v.State, rejected. Utley considered and supervisor the recollection of the would have cert. 506 U.S. been fresh and before the crimes occurred. 991, 122 118 S.Ct. L.Ed.2d 142 Face to face cross examination of Blos! would Constitutionality appreciably reliability not have added related, namely, argu- of the facts that an It remains to consider that contentions appellant ment had occurred between and challenge death sentence statute because Foshee, and that was hostile. Un- repugnaney supposed to the Constitution totality circumstances, der the provisions. to result from some its hearsay fully admission of this exhibit proper application opinion of the business records We are of the that the stat exeeption being per consistent with both the Sixth ute is not unconstitutional se as

860 State, N.E.2d v. 642 Burris Smith v. punishment. and unusual cruel - 961(Ind.1994), (Ind.1984). reh'g pros- denied. The State, 1105 N.E.2d 465 seek bring the count discretion ecutorial 34. Waiver Doctrine not alter this penalty does ing the death matter, unre- urges general as State, 514 N.E.2d 80 v. opinion. Fleenor appeal, that this any specific claim on lated to denied, denied, 488 (Ind.1987), reh'g cert. its waiver doctrine should re-examine Court 189, 872, 102 L.Ed.2d 158 109 S.Ct. U.S. cases appeals post-conviction and in direct (1988). statute of whether the question present ser- permit capital defendants and assigned to the role void because arguments trial legal overlooked ious process has been re jury in the claim, noting only that pass counsel. We by cita may disposed of here solved and made, allegation of trial court error no State, 541 authority. v. Canaan tion of appel- would warrant which substantiated denied, (Ind.1989), cert. reh'g N.E.2d 894 late relief. 230, 882, 112 denied, 111 S.Ct. 498 U.S. is affirmed. The The sentence of death conclusion also A like 185 L.Ed.2d robbery conspiracy to commit convictionfor upon jury based adversely disposes of claims for Rob- vacated. The sentence is ordered for appropriate sentences consideration aside and a new bery, A is ordered set Class guilt phase evi years, jury consideration Robbery, C is ordered for Class sentence closing argu dence, jury unanimity, order remaining convie- imposed in its stead. The ment, proportionality. proof, and burden are affirmed. tions and sentences 338, 889 Ind. 417 N.E.2d v. Brewer denied, (1981), 458 U.S. reh'g cert. C.J., SHEPARD, DICKSON (1982), 3510, L.Ed.2d 1384 102 S.Ct. SULLIVAN, JJ., concur. L.Ed.2d 1403 103 S.Ct. 458 U.S. (Ind. (1982); N.E.2d 403 Miller SELBY, J., separate opinion. concurs with denied; 1993), Bivins reh'g denied; SELBY, Justice, concurring. Roche N.E.2d 928 And we I it neces- opinion. I coneur in the feel pro challenging the statute's pass the claim however, sary, penalty phase on to comment of the de considering the extent visions for trial, objected instruction 80. At Defendant history the extent of fendant's criminal that it did not to this instruction the basis perceived as any mental disturbance extreme accurately the maximum sentences. state pass claim also by the defendant. We objection, Following this faulty it contains because that the statute is to include both the amended the instruction special verdicts. requirement and minimum sentences maximum claims the stat of these unsoundness The instrue- possible for each count. were require to' do more apparent us ute is too could tion further advised that sentences open under the stat avenue than the broad consecutive, and the sen- be concurrent or and to mitigating evidence to all relevant ute by a maximum of could reduced tence authority. the lack of cited fifty good From this percent for behavior. information, could determine 35-50-2-9(g) 33. Indiana Code prison time would be possible minimum years. fifteen repugnaney claims Now, appeals Defendant on the basis where- Eighth Fourteenth Amendments "shall." 35-50-2-9(g) uses the term year prison term is unrealistic 1.C. a fifteen (West so an instruction would mislead 85-50-2-9(g) Supp. such Ann. Ind.Code 1995). penalty. Since to recommend the death argues term unconstitu- He that the ground appeals on a different by Defendant tionally imposition of death mandates the trial, majority agree I with the judge, follow- than raised sentencing judge when the preserved properly Defendant has not a recommen- ing a failure of the to make State, 551 appeal. Jester v. dation, outweigh this issue for aggravators determines rejected by this mitigators. claim was This Nevertheless, danger that such there is jury speculation, to can lead

an instruction judge only used when the trial be

and should jury would reason to believe

has speculation over the ex engage

otherwise specula penalties. When of alternative

tent inevitable, appropriate it is tion is jury complete and judge give the

trial Fleenor v. information.

accurate (Ind.1993). However, jurors

N.E.2d possible minimum sen to fixate on the

were

tence, may they be inclined recommend relatively to avoid a short

death order

prison term. case, present

In the present an accurate instruction

careful minimum provided the maximum and sentences, giving any without indica-

possible likely may sentence be.

tion of what

instruction itself did not lead they choosing between

conclude that were year

death and a fifteen sentence. judge does have the discretion to

The trial if it clear that the

offer such an instruction engaging speculation.

jury would be

However, my that such instructions it is view speculation and should

can themselves invite used with care.

MERIDIAN MUTUAL INSURANCE

COMPANY, Appellant/Defendant, Henry Harter, K. HARTER and

Karen

Jr., Appellees/Plaintiffs.

No. 68S04-9609-CV-609.

Supreme of Indiana. Court

Oct.

Case Details

Case Name: Holmes v. State

Court Name: Indiana Supreme Court

Date Published: Aug 7, 1996

Citation: 671 N.E.2d 841

Docket Number: 49S00-9002-DP-00104

Court Abbreviation: Ind.