Vinсent J. PROWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
No. 82S00-9407-DP-666.
Supreme Court of Indiana.
Nov. 4, 1997.
Rehearing Denied March 2, 1998.
687 N.E.2d 563
Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.
On Direct Appeal
DICKSON, Justice.
In this direct appeal, the defendant-appellant, Vincent J. Prowell, challenges his death sentence for the murders of Denise Powers and Chris Fillbright. On May 23, 1993, Powers sat in her automobile waiting for Fillbright. As Fillbright approached the automobile door, the defendant shot him in the back of his head, at close range. As Powers was screaming, the defendant shot her twice, also at close range, in the face and in her right side, piercing her lung and heart. An eyewitness observed the shootings and identified the defendant as the shooter. The defendant pled guilty to both murders. The trial court ordered the death penalty.
The defendant alleges various errors, four of which are reviewable in this direct appeal:1 (1) improper admission of victim impact evidence; (2) applicability of the option of life imprisonment without parole; (3) insufficiency of the trial court order imposing the death sentence; and (4) improper consideration of factual issues in sentencing. In addition, the defendant requests that this Court revise his death sentence to a term of years.
1. Victim Impact Evidence
The defendant first contends that the substantial amount of victim impact evidence—testimony, poems, and photographs—admitted at his sentencing hearing requires reversal of his sentence.2
In Bivins v. State, 642 N.E.2d 928 (Ind.1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996), we explained
It is significant that the present case does not involve a jury, whose opaque “yes” or “no” recommendation would not reflect the factors leading to its decision. See
The trial court‘s sentеncing order disclosed that the trial court based its sentencing judgment upon the finding and weighing of the charged aggravating factor (the defendant committed two murders) and several mitigating factors (no significant history of prior criminal conduct, youth in a dysfunctional family, and possible exposure to physical and emotional abuse). Record at 270-71. Because the trial court‘s sentencing order does not refer to any evidence characterized by the defendant as “victim impact evidence,” we conclude that any alleged error in admitting such evidence did not affect the sentence imposed. We “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Ind. Trial Rule 61.
2. Option of Life Imprisonment Without Parole
The second sentencing issue raised by the defendant is the applicability of
The defendant claims that this limiting provision denies him equal protection of the law. He acknowledges that this question was decided adversely to him in State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind.1994), but claims that Alcorn was wrongly decided. We decline to revisit Alcorn.
3. Sentencing Order
The third sentencing error claimed by the defendant is an alleged deficiency in the sentencing order. He сlaims that the order: (1) lacks the specific facts and reasons which support the court‘s finding of aggravating and mitigating circumstances; and (2) is perfunctory and conclusory in the manner in which it describes how the aggravators and mitigators have been balanced.
In a capital sentencing order, the trial court must: (1) identify each mitigating and aggravating circumstance found; (2) include the specific facts and reasons which lead the court to find the existence of each circumstance; (3) articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence; and (4) set forth the trial court‘s personal conclusion that the sentence is аppropriate punishment for this offender and this crime. Harrison v. State, 644 N.E.2d 1243, 1262 (Ind.1995). This evaluation need not be lengthy, merely thorough. See Roark v. State, 644 N.E.2d 565, 571 (Ind.1995).
In identifying the aggravating circumstances, the trial court expressly found that the State established the charged aggravating factor listed in the death penalty statute by proving “beyond a reasonable doubt that the defendant . . . committed two murders,” Record at 269, because “[t]he Defendant . . . plead guilty to Murder . . . by knowingly killing Denise Powers . . .” and that “[t]he Defendant . . . plead guilty to Murder . . . by knowingly killing Christopher Fillbright . . .” Id. The recitation of the
In its discussion of mitigating circumstances, the sentencing statement specifically addressed each statutory mitigating circumstance, expressly determining which applied in this case. The first was that “[t]he defendant has no significant history of prior criminal conduct.” Record at 270. See
As to its articulation of the evaluation and balancing of aggravating and mitigating circumstances, the trial court‘s order states that it finds the “aggravating circumstances far outweigh any consideration of mitigating circumstances” and that “having considered all the evidence in the case, the aggravating and mitigating circumstances presented, . . . the presentence report filed by the Adult Probation Department and the independent report submitted by the defendant, . . . the imposition of the death penalty as to the defendant . . . is appropriate and proper. . . .” Record at 271. This balancing description is similar to ones accepted as adequate in other cases. See Benirschke v. State, 577 N.E.2d 576, 581 (Ind.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Williams v. State, 669 N.E.2d 1372, 1389 (Ind.1996), cert. denied, 520 U.S. 1232, 117 S.Ct. 1828, 137 L.Ed.2d 1034 (1997). The trial court‘s statement, although brief, adequately establishes that the court evaluated and balanced the mitigating and aggravating circumstances.
4. Consideration of Factual Issues in Sentencing
The defendant contends that the trial court erred in its factual considerations regarding sentencing beсause it: (1) failed to find the defendant‘s mental condition as a mitigating factor; and (2) improperly found and considered non-statutory aggravating circumstances.
First, the defendant claims that the trial court failed to give mitigating weight to the testimony presented by defense neuropsychologist, Dr. Joel Dill, because the sentencing order states that “[t]here was no evidence that the defendant . . . was under any type of influence of extreme mental or emotional disturbance at the time the murders . . . were committed,” and “[t]here is no evidence that the defendant‘s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law, was substantially impaired as а result of mental disease or defect or of intoxication.” Record at 270. Dr. Dill testified that the defendant has a paranoid personality disorder, an essential feature of which “is the general expectation of being exploited, interpreting the actions of people as being deliberating demeaning or threatening and usually are present in a variety of contexts” which results in the defendant reading “hidden or demeaning or threatening meanings into benign remarks or events.” Record at 662-63. He testified that the defendant‘s scores on tests indicated that the defendant “would be impulsive, tending to act out of his emotions.” Record at 666. Dr. Dill also testified that the personality disorder was caused by “problems or difficulties that date back to childhood.” Record at 661.
The defendant argues that the evidence demonstrates the existence of mitigating circumstances under
Because of his citation to Evans v. State, 598 N.E.2d 516 (Ind.1992), we understand the defendant also to argue that the trial court should have considered the defendant‘s mental condition as a mitigating circumstance pursuant to
The defendant next asserts that, “[i]n his sentencing order,” the trial judge improperly “considered the ‘nature and circumstances of the offense,’ which is not a statutory aggravator.” Brief of Defendant-Appellant at 57. We first observe that the circumstances of the crime often provides an appropriate context for consideration of the alleged aggravating and mitigating circumstances. Inclusion of the nature and circumstances of the offense in a trial court‘s sеntencing order does not necessarily compel a conclusion that such matters were improperly considered and weighed as aggravating circumstances.
In the present case, contrary to the defendant‘s assertion, there is no such reference in the court‘s written sentencing order. The reference to the nature and circumstances of the offense occurred during the trial court‘s oral remarks at the time of sentencing. There are two reasons why these comments do not amount to the improper consideration of a non-statutory aggravating circumstance. First, as discussed above, our capital sentencing procedure requires that the trial court identify and articulаte its reasons in a separate written sentencing order. In the absence of clear contrary indications in the record, we will assume the
Another [pre-sentencing] statement revealed that the Defendant believed Mr. Fillbright was about to pull a gun. I do not believe this, as Mr. Fillbright was shot in the back of the head, execution style, at close range. The Defendant also stated he believed Ms. Powers was attempting to pull something from her purse. All the physical evidence shows that Ms. Powers was shot in the back of the head, in the side of her face as she was attempting to get out of her car. The Defendant‘s explanation for shooting Ms. Powers is just not believable.
Record at 929-30. The trial court further mentioned the fact that the defendant drove a car over Fillbright, which is also related to the defendant‘s mitigation claim that he felt threatened. We agree with the State‘s argument that consideration of the defendant‘s driving conduct was relevant to show that Fillbright “could not possibly have been a threat to [the] defendant” after he had just been shot in the head at close range. Brief of Appellee at 24.
We conclude that the trial court properly considered both aggravating and mitigating circumstances and imposed the death penalty in accordance with Indiana law.
5. Review of Sentence
The defendant‘s final contention is that this Court should modify and revise his death sentence to a term of years. He urges that such a revised sentence is appropriate because of various mitigating factors: “the defendant‘s total lack of criminal history, his violent and bizarre childhood, his recognized mental illness which contributed to the commission of the crime, his limited intelligence, and his adjustmеnt to institutionalization.” Brief of Defendant-Appellant at 62.
This Court is empowered to review and revise criminal sentences.
The nature of the offense is clear. The defendant pled guilty to two counts of Murder: the knowing killings of Denise Powers and Christopher Fillbright with a handgun. Thе defendant presents conflicting versions of the incident. At the guilty plea hearing, the defendant testified that as he was returning from the mailbox, Fillbright made “racial slurs and insinuation,” Record at 512, whereupon the defendant took his mail to his apartment, came back out into the parking lot, and shot Fillbright and Powers, using the weapon he usually carried with him. Record at 513. The defendant admitted that, when he shot Fillbright and Powers, he had “a high probability of knowing” that the shots could kill the victims. Record at 522. In his tape-recorded confession given to police on the morning following the murders, however, the defendant denied hearing any words from Fillbright or Powers. The defendant told police that, as he returned to his apartment from the common mail box area of his apartment complex, he observed Powers and Fillbright in the yard outside Powers‘s apartment. Although Fillbright said nothing, the defendant perceived Fillbright to exhibit a menacing look. About twenty minutes later, the defendant left his apartment and walked to his car. There the defendant observed Fillbright with “this look like he was about to draw on me.” Record at 529.4 The defendant told police that when Fillbright, about to enter another car parked about six feet away, appeared to reach under his shirt, “something just clicked in me” and he shot Fillbright. Record at 535. He said that he then shot Powers inside the car when he saw her reach toward her purse.
Denise Powers had been waiting for Fillbright. As Fillbright approached the car and reached for the door handle, the defendant shot him in the back of his head at close range, killing him almost instantly, and then walked around to the driver‘s side door and shot Powers. An eyewitness testified that Powers was heard crying and screaming, “Help, help me please, help.” Record at 582. The forensic pathologist who performed the autopsy testified that he believed Powers had turned her head and was looking at the defendant as he shot her in the face. While leaving the scene of the shootings, the defendant drove his car over Fillbright.
It is regarding the character of the offender that the defendant directs most of his argument seeking our revision of the sentence. Prior to these murders, the defendant had no criminal record. Witnesses described him as intelligent and regularly employed. His family has several members with college educations and advanced degrees. As discussed in Part 4, supra, a neuropsychologist, Dr. Dill, opined that the defendant‘s paranoid personality disorder results in the defendant perceiving threatening meanings from benign remarks or events.
The defendant‘s mother testified in considerable detail regarding the abusive relationships in which she was involved following her divorce when the defendant was two years of age. He experienced frequent physical violence and emotional abuse of both his mother and himself. The defendant‘s mother testified that as a child, he was extremely frightened, often fearing “for his life.” Record at 713. He attended private schools because he was frightened of people and needed to avoid the larger crowds at public schools. Several other witnesses testified that the defendant, both during childhood and as an adult, had a history of unrealistically perceived threats and unfounded fears for his safety. The evidence regarding the defendant‘s childhood and adult life appears consistent with Dr. Dill‘s opinion that the defendant suffers from paranoid personality disorder which may have been a factor in the defendant‘s conduct in committing the murders. The State did not present any contrary psychological testimony or evidence about the defendant‘s life experiences.
However, considering both the nature of the murders and the defendant‘s character as
Conclusion
The judgment of the trial court and the sentence of death is affirmed. Further proceedings shall be in accordance with Indiana Criminal Rule 24(G).
SHEPARD, C.J., and SELBY and BOEHM, JJ. concur.
SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Justice, dissenting.
I agree with the majority that the trial court‘s decision to sentence defendant Vincent J. Prowell to death for the terrible murders of Denise Powers and Christopher Fillbright was in accordance with Indiana law. But Article VII, § 4, of Indiana Constitution provides that “[t]he Supreme Court shall have, in all appeals of criminal cases, the power to review and revise the sentence imposed.” This Court‘s review of capital cases under Article VII is part and parcel of the sentencing process. Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989).
The approach we take in reviewing death sentences was well illustrated in the recent case of Peterson v. State where, after analyzing the trial court sentencing determination for error and finding none, we proceeded with our “duty under the Constitution and statutes of Indiana to determine whether in our judgment the death penalty is appropriate for the defendant under the circumstances of th[e] case.
In this case, the trial court found the aggravating circumstance alleged, that the defendant committed two murders,
The trial court in this case found two mitigating circumstances to exist. The trial court‘s sentencing order in this regard read as follows:
The Court finds that the mitigating circumstances contained in [Ind.Code §] 35-50-2-9(c)(1) and (c)(8) apply to the defendant in that he has no significant history of prior criminal conduct and grew up in a dysfunctional family and may have been subjected to physical and emotional abuse. (R. at 271.)
As the majority notes, there was no elaboration by the trial court on these findings in its order.
Based on my review of the record and the law, I analyze the mitigаting circumstances entitled to weight in this case as follows.
First, the defendant pled guilty to the crimes charged. A guilty plea demonstrates a defendant‘s acceptance of responsibility for the crime and at least partially confirms the mitigating evidence regarding his character. Scheckel v. State, 655 N.E.2d 506, 511 (Ind.1995). A guilty plea further extends a benefit to the state and the victim or the victim‘s family by avoiding a full-blown trial. Id. Thus, a defendant who pleads guilty deserves to have some mitigating weight extended to the guilty plea in return. Id. Accord, Widener v. State, 659 N.E.2d 529, 534 (Ind.1995); Hardebeck v. State, 656 N.E.2d 486, 493 (Ind.Ct.App.1995), trans. denied. See also Duvall v. State, 540 N.E.2d 34, 35 (Ind.1989); Davis v. State, 477 N.E.2d 889, 899 (Ind.1985) (death penalty case); Lang v. State, 461 N.E.2d 1110, 1112-1113 (Ind.1984); Singer v. State, 674 N.E.2d 11, 14 (Ind.Ct.App.1996). Under the circumstances of this case, I
The trial court found that defendant grew up in a dysfunctional family and may have been subjected to physical and emotional abuse. The evidence presented at the sentencing hearing tended to show that defendant grew up in Chicago with his mother and brother. When the defendant was two years old, his mother was involved in an abusive relationship with a man named Raymond Edwards. From the time defendant was seven years old until the time he moved out at age eighteen, an individual named Tony Johnson lived with defendant‘s mother. Their relationship was characterized by periodic violence, some of which affected the two children. There was also evidence that while Tony Johnson insisted that he be considered a man and presented himself to the world as a man, he was in fact a woman (or at least had the external physical characteristics of a woman). This situation created tension in the home аnd resulted in the children being taunted by other children in the neighborhood. On the other hand, the defendant had the regular care and affection of two grandmothers. And his mother, a college graduate, made arrangements for him to attend a variety of public and private schools in order to meet his educational needs. Defendant graduated from high school and attended some college.
Dr. Dill, a psychologist, administered certain tests to the defendant. Dr. Dill testified at the sentencing hearing that the defendant suffered from “Paranoid Personality Disorder.” Dr. Dill illustrated manifestations of this disorder in defendant‘s reclusiveness and his unwarranted barricading of himself in his room at home; wearing a flak jacket; quitting a job out of fear after a co-worker had been killed; and other instances of suspiciousness of others and fear of danger generally.
I find that defendant‘s unwarranted heightened suspiciousness of others and unwarranted heightened fear of danger generally are attributable to, and should be considered in support of, the claim of difficulties of his upbringing. I do not find Dr. Dill‘s testimony supportive of a separate claim that defendant suffered from a mental impairment that is entitled to mitigating weight. As to the proffered mitigating circumstance of the defendant‘s difficult upbringing, I would assign it weight in the low range.
The trial court found that the defendant had “no significant history of prior criminal conduct.” (R. at 271.) In fact, the record suggests this to be an understatement. There is absolutely nothing of record to suggest that defendant ever had any difficulty with the law whatsoever—either as a juvenile or an adult. The section of the presentence investigation report prepared by the probation department dealing with prior legal history contains the following entries: (a) Juvenile: “The defendant denied any juvenile record, and this investigator was unable to locate any evidence of a juvenile record for the defendant;” (b) Adult: “The defendant is currently charged with two counts of murder. He has no prior record.” (c) Criminal Orientation: “The defendant has no prior involvement with the legal system. His driver‘s license is current and has never been suspended.” (R. at 259.)
In my view, absence of criminal history is the weightiest of аll mitigating circumstances. One who has conformed his or her conduct to the dictates of our society is entitled to consideration therefor upon committing a first offense. The defendant here, age 30, maintained a blemish-free legal history both in Chicago where he lived for most of his adulthood and in Evansville where he had lived for a short period of time.4 Given the
The multiple murder aggravator is entitled to great weight and because it is, I agree that the trial court‘s sentencing determination is in accordance with Indiana law. But in the exercise of this Court‘s “duty under the Constitution and statutes of Indiana to determine whether in our judgment the death penalty is appropriate for the defendant under the circumstances of th[e] case,” Peterson, 674 N.E.2d at 542, I am unable to find that the aggravating circumstances outweigh the mitigating circumstances. The law requires that aggravating circumstances outweigh mitigating circumstances for a death sentence to be imposed.