Roche v. State

ROCHE, Jr., Appellant, Edward Charles Indiana, Appellee.

STATE

No. 45S00-9012-DP-812. Indiana.

Supreme Court 20, 1992.

July Stewart, Jr., Point,

Charles E. Crown for appellant. Pearson,

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

GIVAN, Justice. codefendant, Appellant and a Edward Niksich, by jury tried John were were convicted of two counts of murder felony and two counts of murder. Another defendant, Roche, Sr., Charles Edward separately. discharged tried failing to reach recommendation appel- as to lant, reaching recommendation as to Niksich. subsequently ap- The trial court sentenced pellant to death.

The facts are: Sometime before Febru- ary of Niksich used Patricia Andras- Graves, give eo's car to Ernest who also Wee," was known as "Pee a ride. Andrasco, day, with Nik- who lived sich, noticed that food worth missing car. stamps was from her dep- in evidence the State introduced Blaski, baby-sitter osition of Nanetta Andraseo, she stated Niksich and April that sometime Andraseo's resi- and Niksich arrived at dence, and there was a discussion about people, Ernest and Daniel two Graves Brown, Boy," "Danny also who known going to killed or who had been stated that he wanted killed. Niksich trunk of put and Brown Graves Andrasco's car. with Duszynski,

Delores who lived lant, evening May testified that on the Roche, Sr., 10, 1990, and Niksich ap- driving her car. When left the house home, through he entered pellant arrived basement, stay Duszynski told was, her there she and told he was guys in the basement were some 10, 1990, they someone going to shoot because owed June described to Ratazezak, Virginia $120. a correctional officer County Department, the Lake Sheriff's approxi- Duszynski testified that after how the two victims had been murdered. down- mately five minutes went Appellant told Ratazezak that while he and Duszynski nine or stairs and heard about plead gunshots. Spot heard someone Niksich were at the Bar in ten She Calumet life, or three for his and then she heard two City, pointed Niksich out the two victims Roche, Sr., and gunshots. Appellant, more and stated that one of them owed him $120. upstairs and told Dus- Niksich then came Appellant up phony and Niksich then set possessed only zynski the victims victims, drug deal with the two took them bag and a dime of cocaine. home, to the basement Duszynski, and appellant, appellant upstairs get gun. After Niksich then went cocaine, some of the each consumed Nine bullets were recovered from the Duszynski's permission lant asked to use victims' bodies. State introduced transport car to the bodies. three men a two-shot State's Exhibit .38 downstairs, approximately went Derringer. caliber Excam Tests on the twenty Duszynski fifteen or minutes heard bullets showed that four of the bullets the car leave. were fired from the lower barrel of State's 10, 1990, evening May the Jose On 26; therefore, derringer Exhibit the had to Roche, Sr., Sanchez saw and Nik- reloaded at be least three times the Appellant driving sich in a car. perpetration of the crimes. car, and the men offered Sanchez a ride. house, arriving Upon at Sanchez' Appellant testified that he shot both vic- opened the trunk of the car. When San- tims, but claimed that he did so in self- bodies, chez saw the Niksich told Sanchez defense. He testified that he owned the they one of men that he had shot while derringer, .38 and admitted that he caliber basement of house. deputy told two wardens that he vol- Niksich stated that he had told one of the unteered to kill the victim who owed Nik- going victims that he was to die and that money. sich wrong guy wrong he was with the at the The cause of death of Ernest Graves was wrong place. Appellant time and the stat- multiple gunshot wounds. The cause of ed that he had the other shot victim while death of Daniel Brown was a skull fracture begged Appellant the victim for his life. by gunshot and lacerations caused wounds. told Sanchez that he had used a .38 derringer and a .22 At caliber caliber rifle. contributing Factors to Brown's rifle, point, upstairs get one he went perforation were a of the stomach and upon returning, repeatedly shot hemorrhaging small intestine caused victim the head. by gunshot wounds. Superits James testified that Appellant's first is that derringer May sold him a two-shot upon him imposed the sentence of death day appellant 1990. Later same Eighth and Fourteenth Amend violates the Superits clipping newspa- from a showed it, ments to the United States Constitution per, claimed that he did and described killings. days Superits Three later and art. 16 and 18 of the Indiana §§ gave gun police. to the Appellant urges Constitution. us to exam degree culpability ine the of each of the 14, 1990, May gave Andraseo a state- Appellant defendants case. police. ment to the She told the officers culpability that since Niksich's contends 10, 1990, May evening that on the Nik- own, appellant's sen great was as as his sich left the house and then returned later night. tence to the two consec Niksich told Andrasco that he finally gotten (40) year had for even with Pee Wee Niksich received forty utive terms stealing stamps. part in the crimes. food his

Upon imposition review of the argues that the trial sentence, court erred failing to consider as a a death we must determine if appropriate to the offender mitigator fact that and his crime. Martinez Chavez v. State to reach a recommendation regarding the (1989), Ind., 584 N.E.2d 731. We also rec death penalty. stated, As previously ognize accomplice may that while an effect of jury's inability to reach a recom guilty found of a largely crime which was mendation is that will be dis principal, executed his imposition of the charged and the trial judge shall conduct same principal accomplice as if it had been tried to the may not appropriate. trial court alone. Ind.Code 85-50-2-9(f). presented evidence that had vol meaning no interpret should be unteered to kill Graves and fact had shot ed from the jury's failure to reach a recom both Graves and taking Brown after from Likewise, mendation. the failure to reach them and some cocaine. The trial a recommendation should not be considered court jury and the position the best as a mitigating during factor the penalty weigh the evidence and assess the de phase. gree culpability of of the codefendants Appellant argues the trial court found purposes sentencing. We will not make appellant's that case "cried out for the a new degree determination as to the death penalty," but factually failed to sup- culpability of the defendants. Brewer v. port this conclusion. disagree. We 338, 889, 275 Ind. trial court did consider all factors relevant denied, 1122, cert. 3510, 458 U.S. 102 S.Ct. to sentencing appellant. The trial court 73 L.Ed.2d 1384. ample There is found that the proven State had the two in the support record to the penalty im aggravating charged circumstances posed. that mitigating two existed; circumstances however, the aggravating circumstances argues that the sen outweighed the mitigating circumstances. tence was inappropriate under the circum stated, The trial court further among other stances of the case. The things, that this case was a double homi- to reach a determination wheth cide during robbery committed while one impose er to the death penalty. pled life, victim for his and that it was the trial court acted when it dis triggered by dispute concerning charged $120. proceeded as if the Review of the record indicates that hearing had been conducted to the trial conclusion reached the trial court court 385-50-2-9(F). alone. Ind.Code § sentencing factually supported. Appellant argues that the trial court failed to consider as a mitigating circum- Appellant argues that the sentence stance catalyst Niksich's role as a imposed to sentences surrounding events Appel- murders. imposed in other cases. We note that lant that, restates his contention in his many by appellant of the cases cited view, Niksich was at least culpable as as support argument of his are cases in which and that because Niksich re- years sentence was a term of and the ceived a lesser sentence sought death was not the State. should receive a similar sentence. prosecutor may in his discretion seek The record indicates that penalty against particular de in fact appellant's did consider (1987), Ind., fendant. Fleenor v. State that Niksich acted as catalyst 80, denied, (1988), in the N.E.2d cert. 488 U.S. 109 S.Ct. However, 102 L.Ed.2d 158. How commission of the crimes. trial court did not find that to mitigat be a ever, this discretion is controlled our required factor nor was it system prevents to do so. of review which the arbi trary capricious (1989), Ind., of the infliction death See Graham v. N.E.2d 1152. penalty. failed to the trial court Appellant claims argument here gist 1.) that factually support its conclusions: not penalty was

that because an culpability was degree of similar involving arguably sought cases 2.) circumstance; al- aggravating sentence facts, imposition of that alone, not act though appellant did capricious. arbitrary and is both case at bar factor, appel- mitigating to be considered already has been decided This issue 3.) major participant; lant awas Supreme States The United appellant. penalty. out for the case cried (1984), 465 Pulley v. Harris held Court 29, that 79 L.Ed.2d 104 S.Ct. findings in court's statement The trial is not review type proportionality to the trial quite similar this case are fur The Court constitutionally required. findings Be court's statement statute will that a death ther stated nirschke, we found supra, which chal a constitutional upheld against the trial court note that adequate. We adequate guid non-exist long provides existence or it fully assessed the lenge so regarding perform the sentencer ance to cir aggravating and ence of function, prompt ance case in those written in this cumstances consistency, and promote review to judicial enu court did not findings. While con findings imposition of the factors in its merate evenhandedness concluding was sidered Id. sentence. Niksich, those reasons culpable than more on the focus during the by trial court stated penalty seek the death decision to State's findings and the hearing. The sentencing involving sim not others certain cases and sentencing hearing during the record made with misplaced. The issue is ilar facts support of the adequate factual provided concerned, of upon review we are of purposes conclusions trial court's sentence, imposi fairness is the here. see no error We review. sentence, cases light of other tion of the sought. the death reversible Appellant contends Ind., (1989), N.E.2d 535 v. State Games impact state occurred when error victim 874, denied, 110 S.Ct. 530, 493 U.S. cert. sentencing during the introduced ment was is factual 205, to the 158. This case Attached 107 L.Ed.2d appellant's trial. phase of cases where ly was considered to other report which similar presentence e.g., imposed. See sought and penalty was sentencing was a during by trial court Ind., (1991), 577 vie- of one of the v. State the mother Benirschke letter from of 576; Brewer, Imposition supra. that introduction N.E.2d Appellant claims tims. case is not Eighth Amendment letter violated imposed in to sentences and art. States Constitution of the United Constitution, other cases. 1, Indiana 16 of the § v. Gathers on Carolina relies South challenges the de Next, appellant 2207, 805, 104 (1989), 109 S.Ct. 490 U.S. with which specificity gree (1987), Maryland and Booth v. L.Ed.2d 876 findings. sentencing its supported 2529, 496, 96 L.Ed.2d 107 S.Ct. 482 U.S. Ind., (1990), v. cites Evans Appellant 440, argument. support to 1251, proposition that Benirschke, that the supra, noted of We provide a statement court must overruled Supreme Court United States a sentence. imposition of for the reasons Booth, supra, Gathers, supra and include identification must The reasons - --, (1991), U.S. aggravating Tennessee significant Payne v. all 720, regarding 2597, 115 L.Ed.2d S.Ct. support circumstances, reasons to specific impact state- admissibility of victim ag mitigating or is why each circumstance Supreme Court States The United miti- ments. indication that gravating, and an impact of victim consideration held that weighed aggravators have been gators and sentencing phase during the aggravators offset if the statements to determine by the prohibited not capital cases was mitigators. - appellant's prior also listed Eighth burglary Amendment of the United States con- Appellant error No reversible viction. contends the trial court Constitution. - presented on this issue. erred a second time when mo- tion for mistrialwas deniedafter witness Next, challenges con "repeat to referred an exhibit as offend- 85-50-2-9(f). stitutionality Ind.Code § er" sheet. Appellant claims that the statute violates right jury Appellant objected to admission of his to a determination fingerprint grounds card on the that an aggravating existence circumstances pursuant inadequate laid, to the and Fourteenth Sixth foundation had been but improper Amendments to the United States Constitu also that an reference to an un- 1, and art. 13 of the Indiana Consti past tion related offense would be made. The allowing tution the trial court to dis trial court admitted the exhibit as a busi- charge proceed on its own exception hearsay ness record to the rule. sentencing phase capital ruling requested regard- No or made agree case when the is unable to on a prior objection offense to the exhib- Appellant recommendation. it. - contends that determination of the exist objection We have held that when an aggravating ence of an cireumstance is an request made and not does a rul murder, capital element of and as such ing objection, appellant on the waives his by jury must determined rather than objection. Turczi v. State 261 Ind. the trial court. relies on 301 N.E.2d 752. An error not (9th Cir.1988), 865 Adamson v. Ricketts preserved during trial the motion - denied, --, F.2d cert. appeal. correct error is not available support S.Ct. 111 L.Ed.2d his (1988),Ind., 519 N.E.2d 561. Ward position. The trial court did not commit reversible However, Supreme the United States error. recently Court has held that the Sixth However, assuming appel that require spe Amendment does not that the properly preserve lant did this issue for findings authorizing imposition the cific appeal, Appel we find no error. reversible jury. be made a Wal correctly general rule lant states that as a (1990), 110 ton v. Arizona prior crimes is evidence of a defendant's Aggravating 111 L.Ed.2d 511. S.Ct. highly prejudicial and should not admit circumstances are standards to be used (1987), Ind., ted. Lewis v. 511 N.E.2d State sentencing phase capital the of the case, But in the instant as discussed 1054. in murder case to assist the choice of sen above, guilt the evidence of was tencing a defendant to death or to life overwhelming. jury's the verdict is Where imprisonment separate and as such are not by independent guilt evidence of supported Therefore, of the crime. elements that upon such that review we are satisfied require United States Constitution does not likelihood that the there was no substantial only jury can make the determina question part appel played evidence of those circum tion of the existence conviction, any error in its admission lant's light of the stances. Walton (1989), Ind., is harmless. v. State Jaske decision we find that Ind.Code 35-50-2- 539 N.E.2d 14. 9(f) is constitutional. Appellant's argument

Appellant's final is that alleged error like the second instance of the trial court committed reversible error for a mistrial fails. moved appel occasions when reference to wise on two to an for the State referred prior history criminal made dur after a witness lant's was "repeat offender" sheet. exhibit as a guilt phase of the trial. The and appellant's motion trial court denied occasion, trial court admitted in first disregard the re jury to objection fingerprint card admonished the evidence over Appellant contends the trial fingerprints. card mark. bearing appellant's The by denying his conviction, death, finally error and committed reversible who voted for support imposi- could not whose conscience motion for mistrial. my opinion, In penalty. tion of the death remedy an extreme Mistrial is rejected rationally cannot that sentiment measure no other curative warranted when falling as mitigating circumstance as a is a matter rectify the situation and will 85-50-2-9(C)(8) catch-all, "I.C. within lies within the discretion appropriate for cireumstances Any other Ind., (1990), v. Szpyrka court. it is not weight consideration." to deter used N.E.2d 316. The standard range. falling say I would in the low great, is a consid if a mistrial is warranted mine however, mitigation agree, I defendant was of whether eration appellant acted under the domi- claims that peril to which position grave placed and that was nation of Niksich subjected. Jack he should not have been re- Niksich are culpable less than Ind., 787. (1988), son insufficiently supported. jected determined gravity peril jury's effect on the probable persuasive Here, judge to exist found judge is in the best Id. A trial decision. significant history prior mitigator of no surrounding cireum- position gauge mitigator is in this This criminal conduct. impact jury. potential stances and range. Appellant was con- in the low case Szpyrka, supra. age and burglary 1982 at victed of case not so close years. prison sentence of ten received a thereby placing jury, remark influenced parole in March He was released on position grave peril. in a offenses fourteen committed these Further, Jackson, an admonition supra. May According to later in 1991. months any error in the admis presumed to cure trial, he testimony at after release his own State, English v. sion of evidence. drug conducting three or four sales Ind., 485 N.E.2d 93. home, used alcohol and vari- week from his excess, drugs possessed several ous The trial court is affirmed. parole. in violation of his guns, all DICKSON, J., SHEPARD, C.J., and also concluded that The trial court concur. resulting traumatic childhood lant's DeBRULER, J., separate concurs with during puberty to- treatment psychiatric J., KRAHULIK, concurs. opinion in which drugs alco- addiction to gether with his circumstance. hol constituted KRAHULIK, J., concurs result. in the middle weight it agree I and accord Justice, DeBRULER, concurring. range. convicting jury, case the In this Here, mitigators three must be these of murder and two appellant of two counts aggravators the two weighed hearing the felony murder and counts of court, namely exist found to sentencing hear- at the additional evidence killing during robbery, the intentional codefendant ing, life for recommended killing episode. I.C. and the double penal- to render a Nicksich but 35-50-2-9(b)(1) (b)(8). type of This Roche, as to ty recommendations kill is killing the intent double penalty recom- no such Jr. When there is I highest range. find both is of the requires fury, the statute mendation beyond a reason- proved to be aggravators "discharge pro- the court to doubt, of the three the total value able hearing had to the court as if the been ceed outweighed to be mitigating circumstances 85-50-2-9(f). agree I do not alone." LC. it, penalty appropriate. and the proscription re- majority that this with the meaning" given to the quires that "no KRAHULIK, J., concurs. failure to make a recommendation. jury represents at least

quandary of the juror, conscientious sentiment of one dire, heard the voir who

who survived injury sudden shocking evidence of

Case Details

Case Name: Roche v. State

Court Name: Indiana Supreme Court

Date Published: Jul 20, 1992

Citation: 596 N.E.2d 896

Docket Number: 45S00-9012-DP-812

Court Abbreviation: Ind.