Miller v. State

MILLER, Appellant, Perry S. Indiana, Appellee.

STATE 64S00-9012-DP-817.

No. Indiana.

Supreme Court of 26, 1993.

Oct. V. Martin, of James Law offices E. John appellant.

Tsoutsouris, for Valparaiso, Gen., Pearson, Arthur Atty. Linley E. Gen., for Atty. Deputy Perry, Thaddeus appellee.

GIVAN, Justice. conviction in the resulted juryA trial Murder; Confine- Criminal A Rape, a Class felony; ment, B a Class Conduct, a Class Deviate felony; Criminal felony; and A Robbery, a Class felony; A A Murder, a Class to Commit Conspiracy felony. Appellant sentenced to death spotted missing coat and a blue shirt one (20) charge, twenty years purpose on the murder on sleeve that was used (50) fifty years charge, gagging suspects, togeth- the confinement Helmchen. The on (50) evidence, years rape charge, fifty transported on the er with the back to Indiana. charge, fifty conduct criminal deviate (50) years conspiracy to commit mur- on plea agreement entered into Wood with charge. der agreed the State wherein it pursue penalty would not the death if are: On November 1990 at facts Wood made a statement. Wood's state- a.m., approximately Valparaiso 1:20 Police implicated ment appel- both Harmon and officer Michael Brickner discovered that statement, lant the crime. In his he said Helmchen, Christel the attendant stepfather, he had lived with appellant, his Pantry, missing. ap- White Hen At past months, during for the three and proximately p.m. day, 4:80 on the same period, began stealing he and Harmon cars body Helmchen's was discovered at 180 burglarizing property. and Among other Highway U.S. 6. items, Harmon and Wood took several shot- autopsy An revealed the cause of death guns burglarized premises out of the and shotgun to be a wound to the head. The brought appellant's them into home. He autopsy also revealed that Helmchen had stated that he and Harmon sawed the bar- been the victim of sexual and assault shotguns despite appellant's rels off the injuries pu- she had received severe to the objection they so that easier to be body bic area and to her canal. Her anal conceal. also contained a number of bruises and 12, 1990, Wood, On November Harmon contusions. appellant and had a conversation about rob- evening, Later that Helmchen's check- bing Pantry. night the White Hen On the driveway appel- book was found in the 14, 1990, of November another conversa- police seeking lant's home. The in- were place appellant, tion took between Harmon concerning Rodney formation Wood and concerning and the robbery Wood police William Harmon. told Pantry. White Hen Wood testified that that Harmon and approxi- Wood had left at discussion, during this "Miller indicated mately midnight on November and he that he had found a location where the trio time, had not seen them since. At rape could and kill the clerk." Wood fur- suspect. was not a they got ther testified that when to the they going "rape, location have fun Appellant consented to a search of his with, and kill" the Hen Pantry White clerk. shotguns home and two were found in the He stated there during was no mention bedroom, attic of a identified as the bed- actually going conversation who to kill room of Harmon and Wood. de- the victim. having shotguns nied seen the before. On 15, 1990, November the Owensboro Police conversation, Shortly they after de- Department Valpa- authorities parted Pantry for the Hen taking notified White they raiso that had four individuals in cus- pistol, with them a .88 caliber a sawed-off tody and them two of resided at 206 Hol- shotgun, gauge gauge pump a .12 shot- comb, appellant's which was address. gun, spool nylon rope and sleeve torn Both Indiana State Police and Porter Coun- purpose a flannel from shirt ty Owensboro, Sheriff's officers gagging They flew the clerk. first drove to a Kentucky interrogate suspects. house under construction in Jackson Town- ship on the south side of Highway U.S. arrival,

Upon they were advised that Wil- Harmon, Wood, Wood, liam Rodney Stephanie surveying area, After Harmon appellant proceeded to the White Hen April appre- Bell and Bowman had been hended Pantry near a vehicle had been sto- Upon which located on Calumet Avenue. arriving, Harmon and Wood exited the ve- LaPorte, len from Indiana. The vehicle Pantry hicle in back of the White Hen contained Helmchen's black leather suede appellant. pubic hair standard across from known in his car appellant sat while the The examiner Harmon entered to eliminate the Wood and was able the store. come hair could have buy possibility cans of that the pretended to they store where or Harmon. from either Wood opened the the clerk pop. when weapons pro- their register, they drew fundamental error was Appellant claims money, then escorted take ceeded to prosecuting attorney committed when they entered her where the clerk outside regard to the truth- opinion with stated his vehicle. guilt of and the of the witnesses fulness driving the clerk and With Wood during his Appellant claims that appellant. they proceeded in the backseat Harmon prosecuting attor- closing arguments, Highway 6. Highway 49 to U.S. north on person- to his ney made several references ride, gagged and tied During Harmon regarding the truthfulness of opinion al arriving at the construc- Upon the clerk. opinion with personal witnesses and site, into the they dragged the clerk tion appellant. We have regard guilt ap- dwelling. When partially constructed attor- prosecuting that a previously stated began to premises, he pellant entered the personal may state his beliefs ney the vice- Appellant threw fondle the clerk. Lopez closing argument. floor, clothing her removed tim to the Ind., 1119. 527 N.E.2d sexual intercourse instructed Wood to have her, then he did. with which bar, in case at inter- Harmon to have sexual instructed not indi prosecutor do of the statements Har- He instructed course with the clerk. knowledge independent he had cate that upright in an to tie the clerk mon and Wood placed in evidence not which was house position the wall of the where to In guilt appellant. of establish the her with his fists. appellant began to beat presented commenting upon the evidence gauge her with the .12 Harmon then struck stated, robbery, he "I don't concerning the shotgun. Appellant then beat the victim in doubt that there was there's much think pick an ice two-by-four a and stuck with it." There was robbery and who did fact a thigh. Appellant right her breast and had statement that he in this no indication something find and Harmon to told Wood had been other than what any information They re- rectum. to insert the victim's com and that he was jury to the presented of the tire iron from the trunk moved a sufficiency that evi menting on the it into her and inserted victim's vehicle dence. appellant while rectum several times watched. commenting on the defendant's premises appellant left the As Wood and evidence, prosecu interpretation of the car, Harmon exited the house go to to their any stated, that makes "I don't think tor clerk, shotgun to the back of put a with the merely was prosecutor Again, sense." Harmon, trigger. pulled head and her presented commenting the evidence on proceeded then back appellant Wood imply attempting to was not way Harmon along the where LaPorte concerning appel information that he had clothing from the vehicle. clerk's threw the in evi placed was guilt which lant's Harmon, Wood, thereafter, April Shortly Commenting upon the truthfulness dence. of, left for Ow- Stephanie Bell Bowman appellant and implication of in his Wood ensboro, Kentucky were subse- where ap implicating he was possibility quently arrested. gaining purpose solely for pellant State, merely prosecutor favor with for Black, a forensic hair examiner Lisa me, it." At stated, I don't believe "To Laboratory in Lo- Police the Indiana State referred prosecutor point, another No. well, Indiana, Exhibit identified State's thought that I other evidence of the right thigh of "some from the hairs collected 54 as stated, evi He collected, important...." "[T)he was one the six hairs the victim. Of in that is, dence, the defendant I believe to the similar had characteristics hair H Again, merely trial, procedure same store...." this is ed to make a criminal a of the ascertainment of the true facts the evidence statement what showed. surrounding the commission of the crime. phrases The mere "I use of be extent, adversary To this our so-called "I im lieve" or think" does not constitute all, system adversary is not nor should proper argument. Expression person of a it be." opinion improper prose al is not where the commenting credibility disapprove prosecutor reading cutor is on the We of a from the dissent Wade. long implica the evidence there is no as as special tion that he had access to informa When one examines the full text of the tion presented outside the evidence to the comments, prosecutor's it becomes obvious jury and that such outside information con comparing that he was not so much prosecutor guilt vinced the of the of the of the State burden with that of the defen (1987), Nagy accused. See State as he apologizing dant Lopez The case does not taking long try so the case say that the mere "I use words reason of its proof. burden of His com ipso improper. believe" is facto ments progecu- did not therefore constitute torial misconduct under Maldonado v. Appellant also it error contends was as a 265 Ind. 355 N.E.2d 843. prosecutor appellant for the to refer to prosecutor merely "mean s.0.b." The Appellant cites Bardonner commenting on the fact that the evidence (1992), Ind.App., wherein appellant aggres showed to have been an Appeals the Court of reversed theft con sive, Again, sadistic individual. this char prosecutor's improper viction due sup was well acterization commentary. voir dire Ap Court of ported by the evidence and the nature of peals distinguished Hubbard v. State the crime. 176, 346, 262 Ind. 313 N.E.2d on two First, grounds. in Huwbbordthe comments points State also out that prosecutor of the had occurred on final none by appellant of the instances cited argument, whereas in Bardonner the com by prop was called to the court's attention objection. Any Second, er ments had occurred on voir dire. regarding issue in prosecuting Bardonner attorney closing argument State's is therefore length read at interspersed from Wade and (1989), Ind., waived. Mftari quotes from that case with his own point N.E.2d 469. We would further out emphasizing repeatedly remarks how the that a claim of fundamental error is not responsibility had to tell the truth showing grave viable absent a peril of and whereas the defense did not. the case possible jury's effect on the decision. bar, Hubbard, at prosecutor's as (1990), Ind., Scherer v. State remarks were not as extended and not as pointed as those Bardonner. Appellant prosecutor claims the . prosecutor erred when he stated that Appellant capital contends Indiana's police and the duty officers had the to sentencing scheme provide fails to suffi

present truth, whereas defendant guidance cient to the "sentencer'" concern had no responsibility. Appellant such ing who proving has the burden of whether points prosecutor quoted out that the from aggravation outweighs mitigation; there dissenting concurring opinion in fore, the statute should be declared uncon United States v. Wade U.S. stitutional. observes that Ind. 1926, 1947, S.Ct. 18 L.Ed.2d prohibits Code 85-50-2-9 consideration § 1174, as follows: aggravating circumstances which have "Law enforcement officers have the obli- proved beyond not been a reasonable gation to guilty convict the and to make However, doubt. he claims there is no sure do not convict the guidance "1) innocent." on two questions: erucial my That's duty. "They must be dedicat- prosecution which-the or the defense has though this Court has stated reason even aggravation whether proving the burden 2) what stan- mitigation; is not re outweighs such an instruction previously use in (1989), Ind., the sentencer proof does dard of quired. Woods See — —, making this determination"? denied, U.S. cert. Thus, 2911, 115 L.Ed.2d 1074. 111 S.Ct. ques- addressed the have previously We not re though such an instruction is even sufficiency guidance to tion of given in this case. quired, it in fact was regard aggravating sentencer note that Ind.Code 85- further would We § factors. Fleenor v. State mitigating See 50-2-9(e) states, inter alia: denied, (1987), Ind., 514 N.E.2d cert. 488 U.S. recommend the death jury may "'The held in Fleenor that 158. We further only if it finds: penalty constitutionally flawed for statute was not 1) beyond proved has that the state find that failing require the sentencer (1) that at least one reasonable doubt outweighed circumstances aggravating exists; aggravating cireumstances beyond a reason- mitigating circumstances the determina- We noted that able doubt. 2) any mitigating circumstances weight accorded between tion of to be outweighed by aggra- that exist are mitigating circumstances aggravating and or circumstances." vating circumstance proven is a not a "fact" to be but (Emphasis supplied.) balancing process. Id. the stat- question is no that under There does not thus is clear that the statute It prove least required ute the State jury to recommend the death mandate the aggravator beyond a reasonable doubt. gives option, one penalty, only them but although some it also is true room for the exer- of course leaves which integral an mitigating circumstances are mercy. find no constitutional cise of We case, during part of the the sentenc- State's regard. in this impairment in the statute ing process the defendant also is free claims the statute is might any evidence which be con- introduce it does not comparison constitutionally infirm because mitigating. The sidered as the sentencer's determi process adequately guide does not involve the those factors We proof beyond a reasonable doubt. mitigating existence of a nation as to the Appellant error here. claims the statute see no reversible cireamstance. mitigators jury that the inform the should capi Appellant contends the Indiana "beyond required to be established are not sentencing statute is unconstitutional tal in the He contends a reasonable doubt." discretion because it limits the sentencer's in this specific admonition of a absence mercy. Appellant claims the to exercise naturally feel that regard jury would adequately informed of its dis jury is not stan apply the reasonable doubt they must imprison a sentence of cretion to return mitigators. to the dard penalty even if an ment rather than a death and no aggravating cireumstance exists rejected by this A instruction similar claims mitigating circumstances exist. He Ind., (1989), 547 Lowery in v. Court judge instructing jury in that 881, 1046, denied, 111 498 U.S. cert. they them that have the dis- should advise 217, In the case at 112 L.Ed.2d 176. S.Ct. mercy and return a ver eretion to exercise instruction; bar, such appellant tendered no imprisonment despite the dict in favor of thus, waived. the issue was Whittle aggravators justi existence of sufficient All (1989), N.E.2d 981. 542 fy penalty. the death doubt jury to a on reasonable instructions There is upon the State. place that burden bar, gave appel- the court the case that a any portion in of a trial no inference 2 Instruction No. which stated that lant's under that comes defendant's evidence jury merey for the could recommend 4, actually given scrutiny. Instruction No. mitigating defendant whether circum- mentioning a standard in this case without stances existed or not and with or without 410 However, mitigat point further out that proof, that all evidence of we would stated Supreme has held must considered. We United States Court

ing circumstances be that is not unconstitution jury could have such an override hardly can see how the do we find nor Spaziano been misled in this situation al. See v. Florida 447, 3154, 82 L.Ed.2d 340. far U.S. 104 S.Ct. so as any inadequacy in the statute cir weight the evidence mitigating (9th Appellant cites Adamson v. Ricketts cumstances is concerned. — denied, Cir.1988), 1011, 865 F.2d cert. —, 3015, 888, 120 L.Ed.2d U.S. S.Ct. contends Indiana Appellant capital punish which held that Arizona's capital sentencing statute is unconstitution required ag ment statute the existence of al, requires it applied, as to the extent gravating circumstances be determined statutory mitigating sentencers to consider by jury, judge rather than a violated they upon whether are relied circumstances by jury. defendant's to trial Howev by are relevant the defendant or er, Supreme Court United States claims it accords too little case. He further contrary held to the on the same issue. mitigating weight non-statutory factors. (1990), 497 U.S. See Walton v. Arizona It is difficult to conceive how sentencer 3047, 111 L.Ed.2d 511. We S.Ct. they required would feel were to consider Capital sentencing hold the Indiana statute mitigating or circum irrelevant unrelated it does not violate the Constitution if would run stances. Even a sentencer permits judge jury's ree- to override a through statutory the entire list of miti- ommendation. apply gators attempt them to the Appellant sentencing claims the case, it is difficult to see how this would mini statute is unconstitutional because it accept ap cannot harm a defendant. We jury's responsibility mizes the sense of for pellant's premise regard. We see no this sentencing its decision. cites infirmity unconstitutional in this statute. Mississippi Caldwell v. U.S. capital claims Indiana's 105 S.Ct. sentencing constitutionally infirm statute is support position. in the adequately guide because it fails to case, prosecuting attorney at Caldwell sentencer's discretion because it accords tempted jury's responsibili to minimize the "absolutely unguided impos discretion in imposing ty by the death sentence ad ing a He contends death sentence." vising them that their sentence because the is instructed are appel be final but would be an reviewed judges of the law as well as the facts distinguished Supreme late A divided court. Court impermissibly statutory nullifies the elly Donn (1974), DeChristoforo guiding constitutional standards for 416 U.S. case, jury's discretion. The prosecutor's L.Ed.2d and held that done, usually as is was instructed that al Donnelly quite remarks in different though they judges they are the law challenged from the in remarks Caldwell. it, apply must they the law as find and majority Donnelly The in held that the disregard previous are not to the law. We prosecutor's ambiguous, comments were ly have held proper that such instruction is in majority whereas the found Caldwell capital sentencing and that our statute suf prosecutor's the remarks very fo ficiently guides jury's the discretion. Flee cused, unambiguous, sought give nor, supra. the a of its in capital view role the sentencing procedure incompati that was Appellant capital contends the sen ble with the Constitution. tencing constitutionally statute is infirm permits judge bar, because it the to override a In the dealing case at we are not jury's recommendation, which violates a de by with comments made prosecuting the by jury. fendant's to a trial attorney dealing This but are with the structure issue, course, of present is not in the case delegates of a statute which at bar because no such examining override occurred. role making of the evidence and public policy rather than a constitutional judge con to the trial a recommendation Caldwell, argument question the ac and thus is an to be cerning In the sentence. penalty, legislative body than to responsibility for the death made to the rather tual final was a although appeal, on judicial reviewable a tribunal. jury. by the at the trial level determination the Constitution of the United When Indiana, fully advised are In all concerned prohibiting cruel and States was drafted the evidence of jury's that the examination punishment, capital punishment unusual is for the edification and recommendation day. place in and continues to this has the ultimate judge the trial who legion holding capital in that The cases are imposing responsibility in the sentence. in itself does not violate punishment and of (1989), Ind., v. State See Huffman prohibition against cruel and inhuman 1011, 360, denied, 497 U.S. cert. rejected punishment. This Court has 3257, 111 L.Ed.2d overruled on S.Ct. claim, stating that we are: "unable (1991), 567 grounds, Street v. State other this method of reach the conclusion that N.E.2d 102. unnecessary execution involves Appellant sentencing pain." claims wanton infliction of Johnson 1092, 1107, (1992), unconstitutional because the statute is State — final permitted open and close denied, —, 113 S.Ct. cert. U.S. per It argument, as Ind.Code 85-87-2-2. 121 L.Ed.2d 105. § procedure in this and is well-established imper- Appellant claims the statute jurisdictions party that the hav most other presumption in favor of missibly creates proof opens closes ing the burden of Ap imposition capital punishment. argument. that no We would observe ob pellant position takes the that because

jection made at the trial level to this aggravating factors than statute lists more thus, procedure; issue iss waived. mitigating statute therefore fa factors the Woods, supra. we observe penalty. pointed death As out vors the sentencing penalty in a death case is no State, used in aggravators to be any phase different than other of that case peculiar to that case. any given case are any litigation other as to the or fact correctly that there also observes concerning procedure to be followed those may mitigators on be is no limitation having proof. the burden of The statute is submitted to the Court. regard. not unconstitutional Penry Lynaugh cites the statute contends U.S. should be held unconstitutional because Supreme reversed a Court wherein penalty death is a cruel and unusual meth holding under Texas penalty death because punishment od of and as such violates adequately con there was a failure to law Eighth and Fourteenth Amendments to the case, mitigating In that sider facts. United States Constitution and art. §§ proceeding effectively prevented state and 18 of the Indiana Constitution. considering mental retardation jury from argument, quotes a making mitigating circumstance. The Indiana as a description lengthy graphic rather prohibition statute does not contain an electrocution from Justice Brennan's any type mitigating circum against dissenting opinion to denial of certiorari stance. v. Louisiana 471 U.S. Glass 2159, Appellant also claims our statute 85 L.Ed.2d 514. Similar con gruesome accounts have been written adequately limit the sentencer's fails to penalty cerning by hanging, firing imposing in the death executions discretion weighing of appropriate squad, injection. prevents and lethal It seems obvi in of any healthy mitigating kill cireumstances violation ous that method used to a being by very 238, nature be (1972), 408 U.S. human its Georgia v. Furman However, 2726, gruesome physical damage and inflict to 92 S.Ct. infirmity in the Indiana find no such we body. question a of the human This is 412 explic- very is county The Indiana statute

statute. residents of a other be drawn from impose County. procedure to The used may be used than Porter it as to what crimes Ind.Code panel prospective jurors and under penalty, death was that the of brought ques- permit- were into the courtroom 35-50-2-9(c)(8), the defendant § any circum- present group. questioning, evidence ted to tioned as After for consideration. appropriate group step jury stance was asked into the room to the statute in under There is no limitation attorneys and the court and the then dis- nothing in the statute regard. We find challenges for cause. cussed favor the presumes to imposition partic- occurred where a When instances capital punishment. opin- an prospective juror ular would voice contends the statute is purported be facts ion or state what to in because it vests unconstitutional case, concerning remaining panel attorney discretion prosecuting unbridled brought ques- then in and members were concerning individually request tioned their reac- the death file or not file a for to Furman, prospective jurors. supra by penalty. Appellant cites tion to remarks other instances, jurors questioned proposition In some so that death sentences for "arbitrary, capri in an may not be inflicted procedure This were themselves excused. manner. we particular cious or freakish" continued until members of that impairment in the Indiana stat see no such panel had either been seated or excused. obvious that the decision ute. It should be panel brought Another then in would be prosecute any type of criminal activi procedure until a and the same followed ty must reside somewhere. acquired. jury full was by place Indiana has chosen statute to acknowledged by appellant, a As prosecution criminal responsibility defendant has no absolute to individu prosecuting attorney on the of a elected Lowery, supra. al voir dire. We would given county. Ind.Code 35-84-L-1. Of § appellant did not ob further observe course, attorney's prosecuting it is the deci jury in ject to the manner which the prosecute sion to whether it be for the chosen; thus, the issue was waived. See penalty penalty. or some lesser His death (1984), Ind., Burris 465 N.E.2d State determine the final out decision does not 171, denied, 1132, 105 cert. 469 U.S. S.Ct. merely places per come. His decision system L.Ed.2d 809. Under the 83 guilty son on trial. A determination of court, every by appellant used the trial had imposition penalty of a lies with jurors in opportunity challenge fact jury judge. repeatedly and the We have correctly The notes that did so. State also type procedure held that is not persons eventually none of the who became constitutionally impaired. See Coleman v. jurors challenged for cause (1990), Ind., cert. and the defense. At the close of voir dire — denied, —, U.S. S.Ct. seating jury, of the the defense still had 1075; Bieghler L.Ed.2d peremptory challenges had not been which denied, cert. 475 U.S. previously used. We have held that 89 L.Ed.2d 349. S.Ct. appellant such a situation the cannot com Appellant claims he was denied a plain accepted jury. Monserrate fair trial because voir dire Ind. 352 N.E.2d 721. group conducted form and several Appellant contends the evidence is jurors revealing made statements informa support insufficient to the existence of a pertaining appellant's prior tion conviec- presence tions of the rest of the conspiracy commit murder. bar,

panel. In the case at filed a concedes there is evidence which would change upon motion for of venue based support jury's finding intent of his pretrial publicity county. within the further there commit murder and concedes change trial the mur court denied the from the was evidence of overt acts toward however, county; jury it ordered that the However, der which were committed. he

413 Brogno no evidence of an urges that there was Dr. psychologist, cal as a witness. gave extensive tests to as recited that he The evidence above testified agreement. him and and that he interviewed appellant accomplices, appellant and his that shows appellant that "does came to the conclusion Wood, robbery discussed Harmon and people so comply and work with his best to they kidnap, "have the fact He okay guy." as an that he will be seen with," rape night murder clerk fun of a "there was no indication further stated However, appel- Pantry. Hen the White at De- showing profound psychological an disturbance." there was no lant claims then asked him whether night kill fense counsel agreement to clerk. any any indication of there was sadistic posi Appellant appears to take the "No, Brogno replied, tendencies. Dr. because there was no detailed tion that profile." psychological in his concerning killing conversation testimony, the State In rebuttal to this clerk, support no to night there is evidence testimony of Etta Thomas presented previ conspiracy kill. have held We that she raped had her and conspiracy may rest ously proof of a witness, up." Another was "all bruised evidence. entirely on circumstantial Smith Hunter, got testified that defendant Bev Ind., (1984), 465 N.E.2d 1105. v. State her, car, gun made pointed her in her rea agreement element as well as the mens location, up, tied her her drive to a secluded alone, circumstances can inferred from be ground and tried to force jerked her to the pur including parties acts of the overt him, hit her perform fellatio on her v. of the criminal act. Mullins suance ground after she bit and knocked her to the Ind., 419; also, (1988), N.E.2d 523 see State spread-eagled her to a him. He then tied (1983), Ind., 452 N.E.2d Harbison v. State knife, tree, open skirt with a split her ample there is evidence to 943. We hold ground, raped pulled her to the back down conspiracy to support jury's verdict of her, if told to kill her she and threatened murder. commit of course anyone. type This of evidence Appellant elaims it error was admissible under Law would not have been jurors permit court to alternate for the trial Ind., 923, (1984), N.E.2d 464 rence v. State during enter the room deliberation in the case-in-chief. State's appellant. express without consent from However, appel fact that in view of the (9th Appellant cites United States v. Olano had present that he fit to evidence lant saw Cir.1991), F.2d 1425. in that that there tendency sadistic and no to be case, by the procedure was controlled psychological profound no indication of Procedure which Federal Rules of Criminal pres had the the State disturbance procedure. Indiana In do not control John that testi ent evidence which would rebut 256, (1977), 267 Ind. son v. State testimony pre mony. permitting denied, 436 U.S. N.E.2d cert. State, cited by the trial court sented held this Court S.Ct. (1980), Ind. Bond v. State for the trial court permissible it was (1974), 812, and Robertson jurors sit in on and have the alternate The trial 319 N.E.2d 833. 262 Ind. long as as listen to deliberations ruling and the judge correct properly participate instructed not to a defen cited him hold that when cases holding, In so we in those deliberations. psychological to his opens the door dant 261 Ind. cited Turczi he may the evidence profile the State rebut also, Reichard See did not err presents. The trial court 510 N.E.2d 163. We also regard. objection presence there was no note jurors during of the alternate deliberation. court is affirmed. The trial Appellant claims it was error to KRAHULIK, J., SHEPARD, C.J., and prior

allow evidence of criminal conduct. Brogno, a clini- concur.

Appellant called Dr. Frank found further that DeBRULER, J., separate aggravating the cireum- with concurs stances, KRAHULIK, J., proven doubt, beyond concurs. a reasonable opinion in which outweighed any mitigating circumstances. with DICKSON, J., and dissents concurs Consequently, the court sentenced the de- separate opinion. fendant to death. Justice, concurring. DeBRULER, conduct, robbery, The evidence of deviate Court determine that this It is essential rape, parole clearly persua- and status propriety every the reasonableness sive. The evidence likewise substantiates requiring step, In of death. this

sentence plan- In presence the of the intent to kill. 385-50-2-9(h) provides: Ind.Code § crime, ning appellant the the victim said subject A death sentence is to automatic killed, would be and he heard his accom- by supreme review the court.... The plice say that he could kill if he Harmon may not be executed until death sentence had to. knew Harmon was supreme completed court has its re- shotgun during robbery, armed with a view. encouraged and later on Harmon to beat the victim it. the end of the with Toward society interests of be- Such review serves subject yond episode, bodily injury the individual after serious had interests of sentence, and cannot be waived. upon by appellant been inflicted the victim others, Judy v. 275 Ind. appellant and the told Wood (1986), Ind., 95; Thompson headlights move the car and shine the car's 264; Cooper up into the windows. Wood did so. Har- Ind., 540 N.E.2d 1216. house, appellant mon walked into the walked to his car. told Wood to alleged statutory aggra- The State four walking lights. turn off the Harmon came vating factors: the defendant committed victim, out of the house with the and with by intentionally killing the vie- the murder standing by appellant and Wood the two committing tim criminal deviate con- while cars, Harmon shot and killed her. This is duct; committing rape; com- while while persuasive that substantial evidence mitting robbery; and the defendant was on appellant knew that the victim was to be parole at the time the murder was commit- killed, killing by and facilitated actual penalty phase, ted. At the the State relied weight aggravators Harmon. The is in evidence, upon the trial while the defense high range. presented from a clini- favorable evidence worker, cal social a former female room- mitigation supports The evidence in defendant,

mate of the and the defendant's propositions that had behaved Following hearing, father and mother. prisoner years, well as a for nineteen had penalty. recommended the death helpful relationship been kind and sentencing The court then found that: with a roommate and her small child since proved beyond the State had a reason- parole, during released on childhood able doubt that the defendant committed displayed had not sadistic tendencies. This intentionally killing by this murder mitigation evidence is entitled to value in committing victim while criminal deviate range. the low conduct, the defendant committed mitigating I therefore find that cir- by intentionally killing murder outweighed by aggra- cumstances are committing rape, victim while vating cireumstances and sentence defendant committed the murder in- of death as envisioned in the statute is tentionally killing the victim while com- appropriate. Accordingly, join I the Court mitting robbery, and that the defendant sentences, affirming the convictions and parole was on time murder including the sentence of death. was committed. addition, mitigat- the court found that no ing KRAHULIK, J., circumstances existed. court concurs.

415 majority's approval of I dissent to the DICKSON, Justice, concurring and dis- permitting jurors alternate senting. practice jury listen to deliberations to sit with and majority's de- concurring with the While penalty cases. While our deci- in death convictions, I would to affirm these cision permitted procedure in non- sions have present death sentence be- not affirm cases, it be forbidden in capital should misleading argu- final cause of the State's penalty cases. death jurors presence of alternate ment and the penalty phase deliberations. during the expressed by I the concerns Justice share wisely today's decision the Court With (1977), Pivarnik in v. 267 Johnson reading disapproves discourages of and (Pivarnik, J., Ind. 369 N.E.2d 623 dis mi excerpts from a to the of certain (1978), senting), cert. denied 436 U.S. nority opinion States Wade United He noted 98 S.Ct. 56 L.Ed.2d 791. 388 U.S. juror's lack of a that it is "the alternate attempting to by prosecutors L.Ed.2d deliberate, right right lack of to to prosecutor police offi portray that the verdict, which defines him as a vote on a truth, duty present the but cers have the to stranger privacy of final delibera The counsel does not.1 Wade that defense The at 369 N.E.2d at 627. tion." Id. law, only but excerpt is not decisional "stranger" as "a presence mere of this justices. nine dissenting opinion of three of deliberations, person during without third judicial and Reading jury conveys it to a more, may the free flow of discus inhibit and its favoritism for the State institutional 262-63, sion in the room." Id. at witnesses, credibility, un enhancing their risk at 627. I cannot dismiss the innocence, presumption dermines juror's commu that an alternate non-verbal proof. and alters the State's burden more likely are to influence one or nication Furthermore, impinges upon a defen it addition, pres the alternate's jurors. of coun right dant's to effective assistance may psychological ence alone distort jeopardize the significantly sel and can jurors, both as to motivations of individual impartial jury. a trial and an to fair their decisions and as to their ultimate Bardonner generally See de Clearly, this openness participation and active Ind.App., 587 N.E.2d 1353. interfering with process, thus liberation misleading trial tactic will henceforth be curtailed. duty. their sworn any help separate to following passage furnish other information is from the White, prosecution's case. If he can confuse a wit- opinion joined by Justice Har- of Justice one, ness, appear him even a truthful or make dissenting Stewart, lan and Justice in part disadvantage, concurring part: indecisive, unsure or at a course. Our interest in not will be his normal obligation Law enforcement officers have permits convicting the innocent counsel guilty and to make sure do to convict proof, put put its the State's the State to They dedi- not convict the innocent. must be possible light, regardless of case in the worst making procedure criminal trial a cated to truth. he thinks or knows to be the what the ascertainment of the true facts sur- Undoubtedly de- there are some limits which rounding the commission of the crime. To often fense counsel must observe but more extent, our so-called adversary not, system defense counsel will cross-examine than all; adversary should it be. But nor witness, impeach if he prosecution him obligation comparable defense counsel has no can, telling the even if he thinks the witness is present system Our to ascertain or the truth. truth, attempt destroy just as he will assigns be him a different mission. He must lying. re- he thinks is In this witness who preventing the conviction and is interested in sys- adversary spect, part as of our modified innocent, but, voluntary plea of the absent a part duty imposed on tem and as guilty, counsel, he defend his we also insist defense we counte- most honorable guilty. The many client whether he is innocent or require which in in- nance or conduct obligation present the evi- State has relation to the search little, stances has if any, present Defense counsel need noth- dence. for truth. ing, 1947-48, even if he knows what the truth is. He S.Ct. at 256-68, 388 U.S. at Wade, J., (foot- (White, dissenting) any police, not furnish witnesses to the L.Ed.2d at 1174-75 need omitted). against death. sulting recommendation Ind.,

Kennedy v. State — —, (1992), U.S. 633, 637, cert. denied 521; Martinez

Chavez clearly per precedents 734. While our juror dur alternate presence of the

mit the deliberations, I

ing guilt phase phase delib penalty practice

extend this compromise should not

erations. We penalty recom jury's death

integrity of a confi subjecting otherwise

mendation serutiny

dential deliberations person of a who potential influence of the moral a full share

does not bear resulting decision.

responsibility for given to the the misinformation Because excerpts through reading of from presence of an dissent and Wade penalty phase juror during the

alternate integrity of a jeopardize the

deliberations recommendation, I cannot not share

death the death majority's confidence I would af-

penalty properly ordered. convictions, the death sen-

firm the reverse

tence, penalty death and remand for a new

hearing.

ENSERVCO, INC.; Western Environmen Resources, Inc.; Associated Envi

tal Inc.; Systems, and Don ronmental (Plaintiffs Below),

James, Appellants DIVISION, et

INDIANA SECURITIES Below). (Defendants al., Appellees

No. 49S02-9310-CV-1195.

Supreme Indiana. Court of 29,1993.

Oct. notes client, reveal confidences of his or or any immense capital jury the to a We entrust recommending whether responsibility imposed, and be penalty should the death any re deference substantial we accord

Case Details

Case Name: Miller v. State

Court Name: Indiana Supreme Court

Date Published: Oct 26, 1993

Citation: 623 N.E.2d 403

Docket Number: 64S00-9012-DP-817

Court Abbreviation: Ind.