*1 JUDY, Appellant, T. Steven Indiana, Appellee.
STATE of
No. 580S128. of Indiana.
Supreme Court
Jan.
PIVARNIK, Justice. for by is before us review This cause Judy’s T. “Veri- appellant virtue of Steven for Determination the Sta- fied Petition court-ap- filed his Appeal,” tus of This that, petition shows pointed counsel. 25, 1980, appellant Judy February on conviction of four upon sentenced to charges arose out of murder. These counts 28,1979 Terry Chas- April slayings Zollers, children, Misty teen and her three and Mark Chasteen. Stephen Chasteen judge signed the death warrant trial out. On the sentence to be carried ordered sentenced, appellant Judy day he was filed, Ken- appeal requested that Stephen L. Harris neth M. Stroud appellate Judy’s counsel. attor- appointed error filed a motion to correct neys timely court denied the April on and the trial 23, Judy’s attor- May May motion on 6. On for the record neys praecipe filed a Court, and, Superior Morgan Clerk of the the record of the August counsel filed Supreme with the Clerk proceedings granted petition This Court then Court. appellant’s of time to file extension filing brief. At the time of the for Determination of the “Verified Petition Appeal” of This on October Status appellant’s brief was October due date for 8, Judy notified his counsel On October he terminate and this Court that desired to completion and fil- appeal prior brief; requested of his he that counsel ing with his proceeding cease all efforts toward further indicated to counsel appeal. Judy right appeal he wished to waive appeal pro- terminate the completely ceedings. petition in their verified asserted
Counsel duties, conflicting created Code Stroud, Indianapolis, Stephen Kenneth M. adopted by Responsibility of Professional Harris, Mooresville, L. for appellant. the nature of the sentence this Court and here, placed them in an “intolera- imposed Pearson, Gen., E. Linley Michael Atty. portion of the death dilemma.” One ble Worden, Gen., Gene Asst. D. Atty. Charles statute, 35-50-2-9(h) Ind.Code Rodgers, Gen., Deputy Atty. Indianapolis, Repl.), provides: (Burns appellee. waive, and, that waiver if he did so whether subject to au- “(h) A sentence knowingly made. Supreme voluntarily Court. tomatic review (1) determine review, opinion, be heard under we shall: shall re- appellate Court, waiver of validity Judy’s shall adopted by rules convictions; (2) review the of his all other cases. view given priority over court. the trial imposed by not be The death sentence executed *3 completed Court has Supreme until I. its review.” an individ It is well established section, then, of this a sentence Under prosecution a setting ual of criminal out in this not carried State rights. Gener may waive his constitutional been a until there has review this Court. knowingly, volun this must ally, waiver Generally, provision this would have im- g.,E. Brewer intelligently made. tarily and Harris, a on as posed duty Stroud and 387, 430 97 S.Ct. (1976) Williams U.S. v. counsel, complete this appointed Judy’s 424; 1232, v. Utah 51 L.Ed.2d Gilmore this appeal thereby assist in Court’s 1012, 436, 50 97 (1976) 429 S.Ct. U.S. Therefore, would violat- they review. have 632; (1975) v. California L.Ed.2d Faretta di- they ed that if had followed the duty 562; 806, 2525, 45 L.Ed.2d 95 S.Ct. 422 U.S. prose- rectives of client ceased to their 238, 89 (1969) U.S. v. 395 Boykin Alabama appeal. cute this 274; v. 1709, Johnson 23 L.Ed.2d S.Ct. hand, attorneys generally the other On 1019, 82 (1938) U.S. 58 S.Ct. Zerbst 304 duty requests, have a to act on their clients’ Ind., (1980) 1461. Baker v. State L.Ed. See recognized here and counsel 137; v. State 400 N.E.2d Holleman request, should with if that comply Judy’s 123; Ind., Tyson 400 State N.E.2d knowingly, voluntarily and in- request was 1185; Ind., v. Brown State N.E.2d telligently Thus, as counsel asserted made. (1941)219 Gilmore N.E.2d petition: in their verified Utah, supra, presented substantially “Appellant’s cannot counsel determine we face The defend same situation here. to follow. If Statute duty there, Gilmore, of was convicted Gary ant drop mentioned and counsel construed as to death a Utah murder sentenced appeal Appellant’s re- pursuant stop ordered his counsel to trial court. He statutory quest they have violated death sentence appeals and to allow the all If as al- duty. the Statute construed unchallenged. Supreme The Utah to stand lowing cases appeal waiver hearing inter personally held Court a ignore Appellant’s request and counsel to determine that he viewed Gilmore they have violated appeal and file the waiv knowingly, intelligently willingly their their client.” duty appeal. That right any his further ing Therefore, protect their fully interests accepted waiver. Gilmore’s Court client, requested and those their counsel mother, to act next claiming Gilmore’s dispose this “insoluble this Court son, an her then filed on friend behalf professional problem.” and ethical stay of execution application for considering presented in After the issues with the United States Su- death sentence petition, counsel’s this concluded that Court Supreme granted The Court. preme 35-50-2-9(h) precludes waiver of a re- of execution in order to temporary stay view of the in a death from of Utah. response the State secure However, case. we further found that Gilmore, through attorneys, chal- his by and re- preclude statute waiver of a does standing of his mother to initiate lenged the Accordingly, view of a murder conviction. on behalf. any proceedings this Court set a hearing October reviewing transcripts sub After Judy appear before us so that personally Utah, the United did, the State might we determine he mitted whether conviction, that Gilmore Court found Supreme wish to his appeal waive of this States finding and the Judy’s type blood knowing and waiver intelligent had made a Judy’s sample “H in a endogen” he have after rights might asserted that, once the Testimony blood. established imposed. court’s sentence trial discovery geographic location specifically held Court further known, only a small very determination of Gil- substance was Supreme Utah Court’s was ca- population male knowing percentage and of his competence, more’s with the identifi- pable of semen rights, firmly producing of his intelligent waiver addition, mentioned. qualities cation grounded. United States material found in Steven that Gilmore’smother had two threads of Court also found substantially matched the Judy’s truck any proceedings no to initiate standing behalf; therefore, Terry threads of one article Chasteen’s her the Court ter- son’s clothing. of exe- previously stay minated the entered here, then, deter- inquiry cution. Our is to established that The evidence further *4 Judy intelligently, mine whether Steven her left in automobile Terry had Chasteen voluntarily waiving right his knowingly and 6:00 some time after with the three children his four convictions for murder. appeal leave the children planned a. m. She had and on to at a house continue legal babysitter’s response procedures Judy’s Utah; proba- When place employment. her case was much like Gilmore’s in her this retraced, was her automo- might driving surmise was ble route Judy one interchange parked bile near activity, aware of Gilmore’s as it was heavi- was found publicized, and 70 in southwest Mari- ly opted bring and to bear the of Interstates 465 on County. same results in this case. An examination transcripts and record of the trial related that had Several witnesses before the court and reveals that of the On segments seen various incident. prosecution presented overwhelming evi- killings and the day preceding of the Judy’s guilt. dence of in his a red day, Judy Steven had control murdering which several witnesses Judy gray
Steven was convicted of truck Terry her near the location of placed three children: at or Terry Chasteen Zollers, years; five on Interstate Misty age Stephen Chasteen’s car 465. One Chasteen, that he saw a blond- age years; four and Mark Chas- the witnesses testified man, later teen, haired whom he identified age years. two Hunters discovered parked Judy, standing at near a car on the body approximately Terry Chasteen’s Creek, open. Lick hood Another 9:30 a. m. in White near State interstate with the driving witness that he was south- Morgan County. 67 and Mooresville testified Road 67 and saw a red and A search of the led to the west on Road police creek State man, woman, a Terry gray carrying other three truck a discovery bodies. naked, childreN, di- proceeding Chasteen was found with her hands some the same rection. witness stated that the truck strips and feet bound with of material torn clothing, moving pace, and her was at a fast in a some- from her head covered manner, and that the woman with her slacks. had been and times erratic gagged She him two strips with other waved to when the strangled of cloth. truck light. vehicles at a traffic stopped established that Terry evidence Chasteen and that she of stran- raped had been died parked seen near Judy’s truck was also gulation, while children asphy- died of killings by Lick of the White scene drowning. xia due to to 7:30 a. m. wit- 7:00 One Creek around from seen having the truck recognized evidence to cir- ness physical Certain tended site. connect with it on at a construction cumstantially Judy Steven several occasions saw a the' Another testified he incident. Tests on a found at witness coat a carrying man child under crimes stain. near the scene scene of the revealed semen a bundle, one which actu- Analysis carrying of this stain arm and indicated child, size of a under ally shape of the had makeup compatible substance was A third her walking strangled Terry child was in he Chasteen and threw his other arm. man. The saw no he of the witness the creek. testified that body Judy front into that time. approximate- At he person other then threw each of children as far as m., ly running away a man seen 7:30 a. water. that he could into the He stated parked toward the truck. from the creek one seeing remembered of the children time, person same another saw Near that his standing Judy in the creek. returned to backing hair his truck onto man with blond his foot- attempting truck after eradicate from portion highway the travelled prints. then drove from the away He person location. The who wit- this same drink, scene, bought stopped and a soft nessed this occurrence testified that he away. Thereupon, threw the coil wire driver of the truck alone. truck to Robert at Carr’s returned the Carr Although Judy’s residence. version of earlier, Judy possession As noted had con- presented discrepancies events some day preceding the truck in on the details, testimony very minor cerning day and the The evidence murders. corroborated the evidence substantially Judy established returned the truck presented by the State. Indianapolis witness Robert Carr in be- day 8:00 and 9:00 a. tween m. on only presented defense at the trial initially involve- killings. Judy denied insanity plea was a at the time incident, that he ment in and asserted Cathy of the offenses. Dr. commission girlfriend ques- was with his at the time in Widom, testified for Spath psychologist, hap- tion and could not what had remember *5 Judy that she believed had the defense pened. Judy’s girlfriend first corroborated described problems. chronic emotional She story, but contradicted subsequently having personality an antisocial Judy Judy’s alibi. disorder, opinion and was of the that he was trial, insane. referred in her testimo- Judy presented insanity legally At de- She ny Judy’s fense records on life length concerning and testified his to extensive condition; a rape commission of the mental these records covered Judy and murders. period years. During he of fourteen this time driving stated that was on Interstate 465 many Terry when he he had been examined and evaluated County passed Marion committing offenses at He he mo- times as a result Chasteen’s car. testified that neighborhood. The evi- school and in his pull tioned for her to over to the shoulder that, road, thir- indicating Judy dence established when was something that old, rape, years perpetrated teen he wrong with the rear her car. The two times, eighteen and hit pulled stopped, vehicles to the stabbed the victim shoulder of this her with a hatchet. As a result Judy purported assist the victims. wire, incident, he was admitted to State In he removed the coil Central process, Indianapolis for rendering in- evaluation. thereby Terry Hospital car Chasteen’s start, was involved in operable. When her While he Central State’s car would he foster ride, program, became the her and treatment Judy offered the children He was family Indianapolis. of a accepted. and she child Hospital discharged from Central State then drove the to the loca- Judy victims sixteen, with age a recommendation 1972at pulled off killings tion of the his truck center juvenile he be returned that the road. He testified he directed that Boys at the Indiana School. placement creek, them foot toward the and that he on Judy stated that hospital’s evaluation down path sent the children ahead recover his emotional appeared to from had Terry Judy and him. that he then testified hospitalization problems and that further raped Terry Chasteen and bound her hands warranted. was not gagged Terry and feet and her. When out, up path cried the children that he had been commit- Judy ran back testified Judy years them. stated the children offenses since he was ten ting various he involved yelled. point, him and had been stood around At He asserted old. might select and recommend. See shoplifting two hundred approximately incidents, burglaries, (d) (Burns Repl.). a like number of 35-50-2-9(c), Code § robberies, fifty approximately twenty open court at the to the Judy stated thefts, car and from twelve to twenty-four would advise sentencing hearing that he rapes. sixteen He also estimated that he sentence, be- give them to him the by approximately thirty examined had been kill that he would cause he had no doubt during those From psychiatrists years. and some of again opportunity, if he had an offenses, to the time of these had Judy might might he kill in the future people jail approxi- out of for a total time of been He also directed a jury. be members of the During periods, mately four months. those Then, judge. comment to the trial similar testified, had lived with or had inter- he he during argument final women. Three women course with fifteen attorneys his not to hearing, Judy ordered whom had lived testified that he Judy penalty. They argue against harmed physically had never threatened except sug- for a request, with his complied living with one of Judy them. judge that the constitu- gestion to the trial during prior those women the week ought statute tionality of the death commission of these murders. considered before such to be However, other women testified as to imposed. Judy upon various attacks had committed 27, Judy appeared in this On October accosting them. These incidents involved attorneys hearing with his for a kidnapping, the victims in their cars and request permitted his that he be to waive threatening beating them. One wit- appeal. hearing, Judy very his At that being ness testified to a victim of one of his situation freely openly discussed Judy’s armed robberies. These witnesses It was with the members of this Court. Judy all believed was in control himself obvious to all members of this Court that during stopped the incidents and could have well understood his situation and the Judy However, doing doing. what he was one expected that could be from an ac- results point Judy witness stated at one “act- Judy that he ceptance of waiver. stated ed her crazy” beating when he was about *6 right appeal, understood that he hád a to an psychiatric the face. conducted Previously might review of the convictions re- that a Judy having per- evaluations classified as trial, in sult in an order for a new that that disorder and concluded there was sonality again jury event he would be entitled to a no indication of a mental illness. Two trial, that, trial, new he also at that Dr. John court-appointed psychiatrists, change judge would be entitled to a Davis, Larry Kooiker and Dr. testified that that, county. venue from the He change in their they Judy had examined that, understanding if opinions, personality expressed he had an antisocial further trial, legal- granted disorder. Both concluded that he was a new he would be he were ly sane at the time of the commission of counsel and to entitled to the assistance fact, these crimes. In the record reveals in He also subpoena witnesses his behalf. every psychiatrist that who has ever exam- not might that he be found understood Judy opinion ined has been of the that he is addition, Judy In guilty at a new trial. above-average intelligence of normal or stated he was aware that our review the is legally jury rejected that he sane. The might setting result in the aside sentence Judy’s insanity defense and convicted him and the of a imposition the death sentence charges. on all Moreover, acknowl- years. Judy term of edged that he understood that a waiver at After the on all jury guilty found Judy of his would that time of review convictions murder, four counts of bifurcated and the decision, be considered his final and would sentencing portion of the trial was com- stand, if were to menced, even this Court decide not to Judy attorneys ordered his Finally, set aside the death sentence. he present any circum- mitigating evidence of guilty stances admitted that he is of the freely to the regard question. Judy’s crimes in overall he Waiv- atti- of which was convicted. murders response Transcript expressed by best his at 8-19. tude Hearing er warning: that Thus, questions from vari- response know, “I It’s, that. you understand all Court, he indicated that ous members know, of not on why, you going with happen might of all that fully he was aware myself, you it’s within know. appeal, ap- his if allowed him waive this Court know, And I you there’s ac- really He peal. discussed all alternatives no— know, cepted what the court found. You clearly and showed that he with Court fair, I more than thought I was treated re- them. He intelligently understood provided good fair. with counsel I was question following sponded to one going no sense on and I lost. There’s longer any repre- wish more manner: “I no with this.” counsel, any counsel. All sentation know, my right Thus, I Hearing Transcript You feel that it’s at 10. right? Waiver appeal.” attitude, short, I Waiv- proceed that can with the was that he would Judy’s Transcript a.t as well Hearing er like to review of the sentence waive convictions; however, if as review of he the attor- Judy further stated that felt the sen- felt it had to review this Court Harris, him, with neys in court Stroud and that, tence, would take accept he would but good attorneys.” were “darned He said he review, preferring no action toward that them, and, no complaint about possible. it as as be done soon are he they lawyers the best has ever seen. terminated, Judy stat- Hearing Transcript hearing Waiver at 12. Before the Judy like to to be his court that he would open also wanted it known that actions ed Stroud, not way feeling formally attorneys did detract in from his fire Harris and any they representing compe- were him no wished for them to saying longer he treating fairly him tently and all further stated that he represent Judy him. Court, He made clear to this respects. against gentlemen; nothing had these two sentencing hearing, had he done at he had ever they attorneys are best arguments seen, he did not want counsel make that he wanted the sentence re- but the, regarding for him death sentence. no efforts on proceed view to further and Harris Attorneys his behalf. Stroud addition, Judy person- he asserted that also under- stated to the Court that intend take further ally any did not want Judy them act stood that did appeal. In answer to another action behalf, including filing any on his way Court, Judy from the stated: concerning the review brief Court’s 35- I understand that statute “What [§ acknowl- sentence. Court to mean is that Indiana Su- 50-2-9] of Harris and edged Judy’s dismissal preme has to review the case. It’s *7 Stroud, them that and advised not that a has to be filed on saying brief obligation with any released from further or Al- anything. motions filed or any his regard process in case. to the review final, right, there. The Indiana that’s case, can review the if Court has made a Judy We further find that they wish.” intelligent waiver knowing, voluntary, and con- right of his his four murder appeal Hearing Transcript at Waiver 18-19. At in all we see victions. In addition to point, Judy another told the Court he record, having much of been dis- his rights; understands constitutional in above, Judy’s ap- cussed we have observed rights he feels he his understands Court, and his pearance demeanor this laymen more than other understand them. responsiveness questions, our and his Hearing Transcript Waiver at 14. The that, ability lawyers. his to communicate with by waiving Court explained Judy We fully competent find him be to make appeal, his would be convictions Utah, errors, supra. this See Gilmore legal reviewed and that waiver. for this Court accept Judy guilty Accordingly, will not evaluate would further; added years aggravating convictions circumstanc- any murder we then, shall, proceed years to review the or not ten subtracted death es more than circumstances; addition, mitigating trial court. imposed by ten may
he not more than thou- fined II. sand dollars. (a) of Judy (b) Notwithstanding subsection
Although we feel Steven can section, a commits mur- person has review of issue this who waive and waived death under may with reference to his might be raised der sentenced of this convictions, chapter.” the death we sen section nine believe [35-50-2-9] anyone tence cannot be this imposed Thus, statute, plain language of this by the by reviewed it has been this until State imposed not be penalty may comport found to with the laws Court and fashion, only mandatory may be im- of our principles of this State state procedures posed pursuant to established In conducting and federal constitutions. sentencing provi- elsewhere in the set out review, extensively we have an charted sions. various ways, course. In this issue been Finally, pro- 35-50-2-9 establishes the § many jurisdictions, as well as reached our seeking for the cedure state to follow own, years. in recent The efforts vari penalty, provides substantive legislatures ous and courts have culminated procedural and the applied to be standards in a number decisions the United determining the appro- to be steps taken have set Supreme Court that States penalty in a priateness given of the death used in guidelines ap standards and to be case. section states: plying reviewing sentence. “(a) seek a death sen- state Thus, review province it is our here to on a by alleging, page tence for murder statutes, and validity assess the of our their separate charging from the rest of the case, application in this under these control instrument, of at the existence least one ling standards and guidelines. aggravating circumstances listed Appellant charged, Judy Steven (b) in subsection of this section. In the tried, and sentenced to convicted and hearing person after is con- statutory provisions adopted by under our murder, must prove victed of the state legislature in Ind.Code 35^42-1-1 beyond a reasonable doubt existence (Burns Repl.) defines the crime of aggravating least one of at circum- murder: alleged. stances person “A who: (b) The circumstances are aggravating (1) Knowingly intentionally or kills an- follows: being; other human or (1) The the mur- defendant committed while being Kills another human com- killing der the victim intentionally arson, mitting or to commit attempting attempting while committing or com- burglary, molesting, child criminal devi- arson, molesting, mit child burglary, conduct, rape, ate or kidnapping, robbery; conduct, kidnapping, criminal deviate murder, felony.” commits rape, or robbery. murder committed the mur- Judy Terry was convicted for the The defendant of this detonation of an Chasteen under subsection two stat- der unlawful ute, Zollers, injure person for the Misty explosive murders of intent *8 Stephen Mark Chasteen damage property. Chasteen and un- one. der subsection the (3) The committed mur- defendant in wait. by lying der addition, establishes the 35-50-2-3 who committed the sentencing (4) for this crime: alternatives The defendant kill. murder was hired to “(a) person A commits who murder fixed term the imprisoned (5) shall be for a The committed mur- defendant person more than to kill. forty years, twenty hiring with not another by der relevant present any additional evidence murder was a (6) The victim of the fireman, judge, or employee, to: corrections
law-enforcement
the victim
duty or
other
of another murder.
reconvene
intoxication.
result of
conform his conduct to the
ence of extreme mental or emotional dis-
turbance when he committed the murder.
consider all
court
as follows:
may be considered under
ate for
consented
hearing.
ciate
stantial domination of
atively
the trial
ment was entered on a
history
murder
tence of
the murder.
other murder.
whether
(7) The defendant has
(d) If the defendant
(8) The defendant has committed an-
(c)
(9)
(1) The defendant has no
(4)
(3) The victim
(2) The
(5) The defendant acted under
(6)
murder committed
the course of
act the
law was
The
Any other circumstances
The
The defendant was
The defendant’s
murder,
alone shall
minor.
consideration.
(ii)
defendant’s participation
in a
life
he has
criminality
mental disease
defendant
defendant
prior
mitigating
for the
victim
to,
the
was
imprisonment
substantially impaired
murder
jury,
criminal conduct.
duty.
acting
been
was a
evidence introduced at
performed
officer,
conduct
sentencing
defendant’s conduct.
trial,
was an
was under the
court,
or the
by
circumstances that
time, regardless of
capacity
convicted
was motivated
in the course of
participant
his conduct or to
another
guilty
another
or
this section
been convicted
at the
under a
accomplice
requirements
or the
convicted of
defect or of
while
court,
hearing;
significant
jury
either
appropri-
plea,
was rel-
time
person,
person.
appre-
acting
influ-
in,
judg-
shall
as a
may
sub-
sen-
are
by
(i)
or
if
jury
that exist are
jury’s
reasonable doubt
only if
The court shall make
vating circumstance
leged; or
court
the
tion
given priority
es listed in subsection
shall be
reasonable doubt
charge
sentence recommendation
review,
shall recommend to
aggravating circumstances
matic review the
mendation.
the court shall sentence the
hearing
view.”
that exist are
ble
vating
death sentence
adopted
(1)
(f)
(2)
(2)
(e)
(1)
(g)
(h) A
(1)
jury
Supreme
deliberations,
aggravating
may
If
That the state
If
That
Any of the
That
The
That the
If
only
recommendation,
the
circumstance
which shall
based
the
not bound
had been
was
finds:
recommend
aggravating
jury
sentence,
if it
any mitigating
any mitigating
jury
hearing
hearing
required
on the same standards
outweighed by
over
outweighed
state has
may not be executed
should
finds:
is unable to
Supreme
mitigating circumstanc-
that at
that at
circumstances
the court
by
all
Supreme Court.
after
is to
has
is
the
proceed
or
(c) of this section.
heard
the
other cases.
circumstances.
to consider.
by jury,
circumstances
and the
completed
court
proved beyond
proved beyond
final
least
the court
subject
least
considering the
Court, shall be
imposed.
after reasona-
circumstances.
by
circumstances
circumstances
jury’s
defendant to
court alone.
exists; and
whether the
under rules
agree
determina-
the
one of
one
shall dis-
sentence
the
to auto-
recom-
aggra-
aggra-
exists;
if the
its
alone,
[1]
on a
until
jury
The
The
The
The
the
re-
al-
a
adopted by
provisions
stage
statutory
proceedings, togeth-
the trial
following
pronounce-
several
legislature
er
new
at the
our
presented
evidence
Court.
sentencing hearing.
ments
States
The defendant
the United
*9
153,
“be exercised
power
punish
the states’
to
Georgia, (1976)
v.
428 U.S.
96
Gregg
859;
Texas,
2909,
v.
49 L.Ed.2d
Jurek
civilized standards.”
S.Ct.
within the limits of
2950,
2989,
262,
301,
96
49
L.Ed.2d
(1976) 428 U.S.
S.Ct.
96
at
49
428 U.S. at
S.Ct.
929;
Texas, (1976)
Dulles,
v.
428
356
(1958)
Proffitt
L.Ed.2d
v.
(quoting Trop
at 959
2960,
913;
49
242,
598,
L.Ed.2d
590,
96 S.Ct.
L.Ed.2d
86, 100,
U.S.
2
78 S.Ct.
U.S.
325,
Louisiana, (1976) 428
96
v.
U.S.
630,
Contrary
Roberts
(plurality opinion)).
642
974;
3001, 49 L.Ed.2d
Woodson v.
S.Ct.
death
Furman, mandatory imposition
Carolina,
280,
428
96
(1976)
U.S.
S.Ct.
North
Carolina statute
under the North
penalty
944;
Georgia,
Furman v.
2978,
L.Ed.2d
49
objective
jury with
provide
failed to
238,
2726,
(1972)
92
33
408 U.S.
S.Ct.
make
guide, regularize,
standards
Furman,
In
the Court found
L.Ed.2d 346.
impos-
process
for
rationally reviewable
imposition
of the death
302-03, 96
Id. at
ing the death sentence.
unconstitutional,
it
be
cases before
but
2990-91,
Fi-
49
at
at
L.Ed.2d
959-60.
S.Ct.
for
did not delineate
standards
deter
“to
North Carolina statute failed
nally, the
it
mining
might possibly
when
be constitu
of
particularized
allow
consideration
Court,
State,
v.
tional.
Adams
and record
aspects
relevant
of the character
757,
164, 165,
(1972)
Ind.
284 N.E.2d
259
758
im-
before the
of each convicted defendant
pro
(opinion
rehearing),
found that
death,”
him of the sentence of
position upon
v.
left
Georgia
nouncements of Furman
for
respect
to the fundamental
contrary
constitutionality
proce
our statutes and
Eighth Amend-
underlying the
humanity
uncertain;
thus,
necessary
it was
dures
2991, 49
303-04,
ment.
Id. at
96 S.Ct. at
set
case.
aside
In
Therefore,
French,
960-61.
L.Ed.2d at
quoted
we
in Adams from Chief Jus
imposition
penal-
we found the
opinion
tice Burger’s separate
in Furman:
We
stat-
ty to be unconstitutional.
further
majority
“Since there
no
Court on
ed:
cases,
presented
ultimate issue
in these
do not
how this
or a
see
Court
“[W]e
punishment
capital
future
trial court could
sen-
review
revise
in an
country
been left
uncertain lim
death in
absence
statuto-
tences of
Georgia, supra,
bo.” Furman v.
408 U.S. at
for
ry procedures providing
the introduc-
403,
2811, 33
92
at
L.Ed.2d at 444
S.Ct.
appropriate
tion
evidence on which to
J.,
(Burger,
dissenting).
C.
Second, we
not see
base such review.
do
1973,
adopted
Indiana
a new murder
judiciary
legislate
it as
role of the
statute,
(Burns
Ind. Code
35-13-4-1
which the death
standards
1975),
mandatory
provided
for
applied.
The establishment
should
types
specified
sentences
murder.
procedures by
such standards and the
The validity
imposing
the death sentence
stan-
which evidence relevant
to those
presented
under this statute was
to this
accused would
dards and the individual
State, (1977)
v.
266
Court
French
Ind.
record,
part
of court
are tasks
made
276,
At the both acting while performed an victim act the argu- and make may introduce evidence duty. course regarding aggravating jury ment mitigating circumstances. 35-50-2- been (7) § has convicted The defendant permits jury statute 9(a)-(d). The of another murder. at the all the evidence introduced consider (8) has committed an- The defendant guilt determining phase proceeding, time, murder, regardless other any at together presented with new evidence at been convicted of that whether he has hearing. 35-50-2-9(d). the sentencing § other murder. may The stand on the evidence prosecution (9) sen- The defendant under a phase, intro- presented may at the trial or imprisonment tence of life the time aggra- duce further evidence show the the murder.” alleged 35-50- vating circumstance under § McCormick, 35-50-2-9(b). See State § 2-9(b). may present The defendant addi- following lists the supra. The statute also aggravating relevant to the tional evidence mitigating circumstances: mitigating or circum- any circumstances “(1) significant has no his- The defendant (c) of the stat- stances listed subsection tory prior criminal conduct. addition, plurality ute. In of the United (2) under influ- The defendant was States Court held that ence or dis- mental emotional extreme consider,
sentencer must be allowed to as a when he committed the murder. turbance factor, mitigating “any aspect of a defend- (3) in, participant was a or The victim any ant’s or record and character to, the defendant’s conduct. consented of the offense de- circumstances (4) accomplice was an in a The defendant proffers as a basis for a sentence fendant Ohio, person, murder committed another (1978) less Lockett v. than death.” 604, 2965, participation defendant’s was rel- 2954, 98 S.Ct. 57 U.S. atively minor. (opinion J.) of Burger, L.Ed.2d C. omitted).
(footnotes
See State McCor
(5)
acted under
sub-
The defendant
mick, (1979)
397 N.E.2d
person.
stantial domination
another
(6)
capacity
appreci-
The defendant’s
aggravating
statutory
circumstances
The
criminality
ate
of his conduct or to
are
follows:
the requirements
his conduct to
conform
“(1) The defendant
committed
impaired
substantially
as a
law was
intentionally killing the victim
murder
or
result of mental disease
defect or
committing or
to com-
attempting
while
intoxication.
arson, burglary,
molesting,
mit
child
(7)
appropriate
circumstances
Any other
conduct, kidnapping,
criminal deviate
for consideration.”
robbery.
or
rape,
35-50~2-9(c).
Ohio,
(2)
supra.
mur-
Lockett v.
The defendant committed the
See
§
der
by the unlawful detonation
pen-
recommend
jury
injure
explosive
intent to
person
unanimously finds
only
beyond
if it
alty
damage property.
that at least one of the
reasonable doubt
(3)
the mur-
The defendant committed
exists, and that
aggravating circumstances
by lying
der
in wait.
circumstances, if
do not
any,
mitigating
who
circumstances.
outweigh
aggravating
The defendant
committed
this
jury’s
verdict on
35-50-2-9(e).
murder was hired to kill.
§
power
appeals
trial
all
of criminal cases the
advisory only;
court
of the sen-
the final determination
of law and
review
questions
makes
review all
deciding
on
to be
imposed.
tence
In addi-
imposed.”
and revise the sentence
sentence, the
must con-
appropriate
court
tion,
rules
adopted
following
recommendation, but
jury’s
sider the
must
sentences,
review of
effec-
appellate
also base
decision
the same standards
tive
1978:
January
required
to consider.
“1. Availability—Court.
Thus,
35-50-2-9(e).
trial court
must
the sentence
review of
Appellate
beyond
find
a reasonable doubt that at
also
defendant con-
imposed
*12
criminal
aggravating
one
circumstance is
least
rule
the effective date
this
victed after
any existing mitigating
and that
present,
provides.
rule
is available as this
outweigh
aggra-
do not
circumstances
(2)
of sentences un-
Appellate review
Finally, a
vating circumstances.
by
not be initiated
der this rule
automatic,
subject
expedited
of death is
State.
35-50-2-9(h).
by
review this Court. §
(3)
will
sen-
Supreme
The
court
review
Thus,
statute,
as under the
just
under our
appeala-
imposed upon convictions
tences
Proffitt,
in
in order
upheld
Florida statute
Court;
of Appeals
the Court
ble to that
imposed,
several
for a death sentence
upon
imposed
con-
will
sentences
review
guidelines
standards and
must
procedural
Ap-
the Court of
appealable
victions
be met and followed. Where the case is
peals.
require:
to a
a
jury,
tried
both statutes
Scope
of Review.
murder;
conviction for
a bifurcated sen-
least
tencing hearing;
finding
a
that at
one
(1)
will
revise
reviewing court
statutory aggravating
of the
circumstances
except
by statute
a sentence authorized
exists; a finding
mitigating
cir-
manifestly
sentence is
unrea-
where such
outweighed
by
aggra-
cumstances are
of-
light
of the nature
sonable
circumstances; a
vating
jury recommenda-
fense and the
offender.
character
imposition of the death
concerning
tion
(2)
manifestly
A sentence is not
unrea-
finding by
the trial court that at
penalty;
person could
no reasonable
sonable unless
aggravating
one
circum-
statutory
least
par-
find
appropriate
such sentence
exists,
aggravating
that the
cir-
stance
and
for which
ticular offense and offender
outweigh the
cumstance or circumstances
was imposed.”
such sentence
circumstances; and automatic
mitigating
duties under
Also in furtherance of our
Supreme
state
Court.
review
legislative en-
and
the Indiana Constitution
addition,
above, our statute re-
as noted
actments,
adopted a rule
this Court has
circumstance or
quires
aggravating
that the
gives
jurisdiction
which
this Court exclusive
a reasona-
proved beyond
circumstances
judgments or sen-
appeals from
of criminal
ble doubt.
death,
imprisonment,
life
imposing
tences
legisla-
and
other constitutional
Several
ten
greater
than
or a minimum sentence
plus
procedur-
pronouncements,
tive
certain
Moreover, In-
4(A)(7).
Ind.R.App.P.
years.
Court,
promulgated by
rules
this
also
al
hearing
sentencing
statute
general
diana’s
guidance
dispo-
direction and
provide
aggra-
are
in all cases where there
requires,
trial
cases at the
and
sition
sen-
vating
that the
present,
circumstances
constitution,
appellate levels. Under our
a statement of the
tencing judge include
legislature,
the statutes enacted
our
impos-
selecting the sentence he
reasons for
Court,
the rules
trial court’s
of this
enactment,
35-4.1-4-3
Ind. Code §
es. This
findings
sentenc-
regarding
and conclusions
35-50-1A-3,
Repl.),
(Burns
reads
writing
ing
required
are
to be
follows:
for
Article sev-
record
this Court’s review.
felony
cases.—
hearing
“Sentencing
en, section
Constitution
four
Indiana
sentencing
felony
for
following
person
au-
Before
provides this
with the
Court
hearing to consider
have in
thority:
shall
court must conduct
“The
Court
Further,
proce-
provides
our scheme
for a
relevant
and circumstances
the facts
sub-
is entitled to
sentencing.
person
this
to review the
dure which enables
Court
otherwise to
call witnesses and
poena and
further
of the death
imposition
in his own behalf.
present information
improper
against the influence
safeguard
make a record of
The court shall
level,
trial
factors at the
prejudicial
including:
hearing,
the elements
to further determine that
hearing;
A
(1)
transcript
capriciousness condemned
arbitrariness and
presentence report;
copy
A
Georgia, supra, were not
by Furman v.
sentencing decision. With
present in the
cir-
aggravating
If the
finds
court
guidelines in
the above considerations
mitigating circumstanc-
cumstances or
mind,
meaningfully
this
can
then
es,
court’s
a statement
reasons
case
review each
systematically
impos-
sentence that it
selecting
chosen,
light
punishment has been
capital
es.”
Mandatory
of other death
cases.
Thus,
requires
the statute
Court,
case,
in each
review
authority
trial court in this state —to
—the
imposing
articulated reasons
for the
*13
include
reasons
the record
supporting those
penalty, and the evidence
and,
course,
imposed,
this must
fairness,
reasons,
and
“consistency,
assures
require-
in
writing. Clearly,
done
operation” of
rationality in the evenhanded
meaningful appellate re-
ment facilitates
v. Flori
statute. Proffitt
the
view this
of the trial court’s sen-
by
Court
259-60,
da,
at
96
at
supra, 428 U.S.
S.Ct.
Florida,
tencing
supra.
decision. Proffitt v.
2970,
Gregg v.
HI appear give statutes and rules Our Accordingly, review of the case. the our death penalty and reasonable assurance that the steps, trial court has taken all of these arbitrarily capriciously in- cannot and findings we and conclusions conclude comport require- and flicted thus Gregg comport pronouncements with the the Su- Florida, ments those recent decisions supra, Georgia, supra, Proffitt of the United States cited Georgia, preme Court supra. Furman v. and upholding and the majority opinion find, above, explained We further of several of our sister laws in all fol- respects properly the trial court differences, how- states. There are some procedures imposing the required lowed ever, laws provisions our between There more the sentence of death. It approved. those there should ample justify than in the record to evidence differences, of those noted that the effect beyond trial court’s determination constitutionality pro- hence our cir- aggravating reasonable doubt that the cedures, adversarily has not been tested. findings cumstances set out in his were in this case. testing That has been waived present. The facts evidence before court, together with presented those Justice, DeBRULER, dissenting. presentence report, completely also substan- people The this Court from the address mitigating tiate the court’s that no finding several means. present by past outweighed circumstances existed which statutes, through so such as those They do aggravating circumstances. Both code, up including the making the criminal conclusions, specific findings these and the us, recently statute before them, support clearly enunciated by representatives in the enacted elected writing evi- by the trial court. facts so Legislature. They through also do case, pat- dent in the record of provisions of the Indiana Constitution horrifying show ently egregious long ago by a convention which was drafted nature these offenses and character popular vote. Constitu- and ratified offender, of this and the trial court’s care- for the tion establishes the framework procedures, ful compliance proper with the relationship its the citi- government and lead us to the conclusion that inescapably the direct ratifi- zenry, draws its force from of death recommended vote, popular pre- of it and takes cation trial imposed by court was contrary it. Our at, and, cedence over statutes arbitrarily arrived capriciously of Rights Bill Indiana Constitution doubt, appro- is reasonable without following provision: contains priate. be founded on penal “The code shall Therefore, in its we affirm the trial court and not of principles of reformation
imposition here. 1, 18. justice.” vindictive Article cause remanded the trial court for recently whether This Court has considered purpose setting a date *16 to enact- provision is an obstacle this sentence be carried out. to and concluded ment of the death State, (1971)259 Adams v. it not. that HUNTER, GIVAN, J., J., and C. concur. 64, position 271 425. That N.E.2d margin. to by three two In adopted PRENTICE, J., concurs in result length support argued I in dissent at case separate opinion. that would withhold a construction of J., DeBRULER, opinion. dissents with provide Legislature power A) (See Appendix punishment. capital PRENTICE, Justice, concurring in result. in its hold- contrary was terse majority (See result, Appendix B) I It is agree I and this ing point. concur in on of constitutional con- principle is lawful and reasonable the first not to duty in this sworn rewrite case. our struction and 112 new matter to which I refer Constitution, but to it to amend the read as the arisen United States intent purposes and of
effectuate
constitutionality of
has considered the
(1964)
v. Maryland,
Bell
378 U.S.
Framers.
Gregg Georgia,
v.
penalty.
In
1814, 12
226,
(Concur
822.
84
L.Ed.2d
S.Ct.
859,
153,
2909,
96
49 L.Ed.2d
428 U.S.
S.Ct.
J.)
Goldberg,
doing
In so
ring opinion of
himself and
on behalf of
Justice Stewart
as “legislative
be read not
provisions must
states:
Powell and Stevens
Justices
subject to continuous revi
codes which are
part,
punishment
“In
an
events,
capital
of
changing course
sions with the
outrage
moral
at
expression
society’s
great purposes
as
revelation of the
but
offensive conduct.
particularly
intended to be achieved
many,
unappealing
bemay
function
continuing instrument of
as a
Constitution
society
it
in an ordered
but
is essential
Classic,
v.
313
government.” United States
legal
rely
that asks its citizens
1031, 1038,
299, 316, 61 S.Ct.
85 L.Ed.
U.S.
vindi-
self-help
than
processes rather
determining
meaning
1368.
wrongs.
their
cate
have
guid
we
held fast
Constitution
part
‘The instinct
for retribution
words
ing propositions that “the
used in the
man,
channeling that
nature of
and
must
presumed
Constitution
be
to have
of crimi
administration
instinct
been
word
carefully chosen so that each
important purpose
justice
nal
serves
and
“each
meaning”,
would have a
society
stability of a
promoting
thought
word
of as
been
having
must
begin
When
governed
people
law.
selected
deliberately
intentionally
and
is un
organized society
to believe that
placed
though
as
it had been hammered into
impose
crimi
willing
upon
or unable to
v. City
the instrument.”
Chadwick
“de
punishment they
nal offenders the
Crawfordsville,
399,
216 Ind.
24
serve”, then there are sown the seeds
N.E.2d 937.
jus
anarchy
self-help, vigilante
—of
myself
I would
Ordinarily
consider
to be
tice,
lynch
Furman v. Geor
law.’
bound
through
principle
stare decisis
U.S.,
S.Ct.,
supra,
308,
gia,
408
at
92
at
uphold
in-
would
this statute in an
J.,
(Stewart,
2761
con
L.Ed.2d 346]
[33
1,
stance
as this as consistent
such
with Art.
curring).
18.
aptly
But
Justice Frankfurter
§
“
longer
‘Retribution is no
the dominant
stated:
law,’
Williams
objective
the criminal
v.
“stare
principle
decisis is a
policy
York,
241, 248, 69 S.Ct.
New
337 U.S.
not a
mechanical formula of adherence
1079, 1084,
(1949),
nei-
H3 of tracking which at once form constitutional amendment penalty objective has another identifiable, real. It is a in the Mon- separate, provision is similar which was retributive, vengeful, and thus vindictive 1972 would from 1889 to tana Constitution White, Rehnquist and the one. Justices purpose. Article accomplish suffice go Concurring even further. Chief Justice III, 24 of Montana Constitution of the § in the in refer to judgment Gregg, 1889 reads as follows: reasons v. appearing dissent Roberts punishment “Laws for the of crime shall Louisiana, 325,96 3001, (1976)428 U.S. S.Ct. principles be of reforma- founded on the 974, which 49 L.Ed.2d include the idea that prevention, tion and but this shall not imprisonment life “to inadequate of power legislative affect assem- for satisfy reprobation the need or retribu- provide punishing for offenses bly adding tion.” of By concept At 3015. added) (emphasis death." I reprobation in this context take them to vindictive, agree can that the retri One penalty applied mean that the death is objective reprobative butive totally when a without life can declared penalty is not inconsistent with the death viewed, biological of worth. So dignity encompassed man respect law is the wrongdoer by culmination prohibitions within the of our constitutions its process steps which has as one of how against punishments, cruel or unusual determination that an extant human life is ever, accept the rationally prop one cannot Blackmun, totally valueless. con- Justice objective consistent with osition that this is curring, Pow- joining refers to Justice 1, bringing mandate Art. 18. In § Georgia, ell’s dissent in Furman meaning provision forth the of this 346, 238, 2726, 408 U.S. 92 S.Ct. 33 L.Ed.2d words to be taken Constitution the of it are *18 114 the discretion of the to when the opinion say the majority
It was said State, It is supra, previous opin- penalty and in death shall be inflicted. Adams v. true, responding as well to this does ions of this Court one branch of that discretion reform; still, is the punishment contemplate of all is not it purpose issue that the the instance in law protection society. response only the the is point purpose prominent, The core of Article of reformation not misses the mark. cannot, us, allowed 1, indeed to be society may protect 18 that and it it seems is § upon principles the give enactment and enforce- to character to through the itself The sanctions, is but that it never- which the entire code founded. penal ment rights, go accomplishing eighteenth so section of the bill of may theless not far construed, objective requires pe- the important necessary properly as when that protect need of the com- nal laws to so framed as to longing and be satisfy the time, sys- as a society, at the same munity revenge against retribution tem, principle the of reform. wrongdoer. pur- I to be inculcate This believe the view, is, no present code 1, 18, In this I deem pose myself Article § doubt, principles of refor- founded on I there- judge, bound to honor it. would mation, spirit within and intent of the case fore remand this with instructions law which allows constitution. The impose determinate sentences. inflicted, must, there- penalty be death A added.) APPENDIX fore, (Emphasis be held valid.” 342, 7 Ind. at be juris- Whatever the case other dictions, explic- in Indiana the Constitution In Rice this Court said: itly sets that at one of the func- out least State, v. “It is also decided in Driskill tions of be to reform the punishment must infra, not in penalty the death is is in- absolutely offender and that function first conflict with the 18th section of the compatible penalty. with death any ques- article of our If constitution. judiciary tion can be before the raised obvious, spite meaning In clear un- upon legislature the discretion past upheld this Court § section, der that we concur that it has validity penalty. of the death Hawkins leaving been abused in 79; (1941), 219 Ind. N.E.2d State assessing jury. There penalty (1927), McCutcheon State Ind. beyond hope reforma- are cases 544; (1855), Rice v. 7 Ind. 155 N.E. State become tion—criminals whose necks have 332; (1855), 7 Driskill v. State Ind. 338. suddenly so hardened ‘that should position The rationale of this was set out in ” off, remedy.’ cut and that without Rice, Driskill subsequent cases added.) (Emphasis at 338. nothing have added to the discussion. made quotations In the above the Court Driskill, this Court said: attempts justify several its conclusion point, “In it is connection with this 18 is no obstacle to enactment authorizing insisted that law provision by Legisla- penalty death penalty is in conflict section arguments sup- ture. I believe the fail eighteen rights, of the bill of which re- port that conclusion. quires penal code to founded reformation, principles First, baldly and not of vin- the Court stated dictive justice. punishment of death is not vindictive in nature but not, de- degree, justice”. murder in the first is in is This has no “even-handed vindictive, our opinion, might It mean that meaning. but even-hand- terminable indeed, justice. option ed is, nothing There vin- is an which the dictive penal in our laws. main ob- first authority may choose in all ject of protection all is the As but punishment murder cases. such it is true degree view, society. legis- might With that It that the point. end beside the mean case, have, lature left given in a it within is not vindictive because
H5 accept offers no valid reason to the Court recognized by the Court in The fact any. of life of the offender who taking the the Driskill, only death “is the penalty that the a life. This would be the has himself taken purpose law in which the instance in the “eye eye” for an claiming same that the vindictive, sup- is not prominent” fact not does is when in it reformation philosophy not penalty and re- is epitome argument is the of vindictiveness that the death port the vengefulness. constitutional, The exclusive use the contrary clearly but the is “eye philosophy precisely for an eye” anomaly it a lone is demonstrates that precluded by what is 18. Whatever it § at laws that it is odds penal the and among judge who might wrote have meant penal laws and rest body with the of the it, penalty that the death is this statement that is unconstitutional. it is justice argument not even-handed Fourth, to rely the seemed on the Court all, in establishing does not succeed sentencing authority fact that not penalty that is vindictive. discretionary degree first power a mur- Second, that “main said Court impris- of life impose penalty der case to a protection of object punishment ail is the it death if so onment rather than chooses. Although this is not stated society”. thought Presumably that the existence they indi- and the Court does not Constitution power penalty provision of this renders the claim, I constitutional basis for the any cate nonvindictive and conformance objectives assume it to be one of the basic and, reformation, therefore, principles However, need system. of the penal my not 18. In view the in violation § protect society require does not to select power sentencing authority no to adopt and there is reason penalty, life rather than death does objective principle imprisonment to the exclusion possible try penalty provision If must not render constitu- embodied we § is, give objectives effect both tional under 18. The when § easily chosen, This is done criminal sanction. be- is in penalty the death fact is 18§ nothing is 18 is incom- cause there that § satisfied? 18 Section means that the sen- protecting soci- patible objective with the actually imposed open tence must leave ety. merely precludes penalty a Section possibility of reformation of the offender. possibility of which forecloses all reforma- This is not of a satisfied the existence imprisonment as tion of the offender. Life imprisonment. potential of life accomplishes both penalty maximum Fifth, case, the states in the Rice no goals there is need choose be- who opinion its firm those offenders them; defeats penalty tween but the death penalty had the death been assessed them, only specifically one set one of and, of reformation there- beyond any hope out in the Constitution. fore, did principles reformation not Third, the requirement Court said the in a death case. I need to considered “penal code” founded on the for two position believe this is erroneous apply did principles reformation not of human nature concept reasons: statute, each every merely criminal but says every implicit in 18 is one which § applies to the entire and one in- system, man, pos- has the depraved, no matter how stance, where admittedly penalty does redemption ways evil sibility of contemplate reform, does not make the we change of heart. Who are through a whole system vindictive in violation of 18. § is say any beyond man’s heart hardened I see interpret no reason to way. in this § hope change? (2) grounds There are no is “penal up code” made of each and persons who receive believing those every legislative enactment which defines a hope are in fact beyond crime provides for violation thereof; is class authori- of all criminal stat- of reformation since utes it is must defendant ty required be founded is not find that the on principles of language assessing reformation. The before non-reformable of 18 does not indicate any exceptions merely saying The Court is penalty. of the death imposition
that the offender is non-re-
justified because
formable, we he is non-reforma- know penal- the death he has received
ble because
ty-
I that the mandate would hold penalty and that
clearly prohibits begun to offer even
no Indiana case has position. argument
good counter B
APPENDIX contention that the appellant’s
Likewise punishment as for the crime jus- first murder is degree “vindictive merit. In Driskill v. is also without
tice” 338, 343, (1855), 7 Ind. this court
State
stated: murder punishment
“The of death for not, degree, opinion,
the first our
vindictive, justice. but even-handed indeed, is, nothing vindictive our
There pun- object of all
penal laws. main society.” protection is the
ishment we are bound
For the reasons stated rationale,
legislative historical policy and
therefore, appellant’s contention fail. must TINNIN, Appellant (Defendant
Steve
below), Indiana, Appellee
STATE
(Plaintiff below).
No. 480S117. of Indiana.
Supreme Court
Feb.
in which Justice
notes
retribu-
Powell
in their natural and
sense. Ben
ordinary
impermissible.
tion is not
Both Justices
Sparks,
ex rel.
County
ton
Council State
Gregg
Marshall
dissent in
and Brennan in
114,
(1946) 224