Saylor v. State

535 418, 668, 422 (N.Y.Aрp.Div. Similarly, N.Y.S.2d the initial award. if a judgment 589 York, appeal, is on 1989), reduced interest should run by overruled Love v. New 78 only plaintiff on the amount to which 540, 859, is 577 N.Y.2d N.Y.S.2d 583 entitled, greater not on a sum. And de- (1991). However, 1296, 1297 this view is spite party some courts' concern that a unusual and is inconsistent with the may surprised by modification, be providing Indiana statute and case law pending appeal gives fact of a parties post-judgment interest runs from the adequate they may notice that liable for be finding date of the verdict or of the court. interest on a if appel- modified amount Others have determined interest prevails. lant amount modified is the paid original on amount from should be amount that the trial court have should the time of the verdict until the date date, original post- entered on the on appeal of modification and then judgment run interest should on the modi- modified award from the time of the modi original fied amount from the date of the Stokoe, judgment. v. 170 Ill. fied Owens verdict. 179, 725, App.3d 120 Ill.Dec. Conclusion (1988) 755, (reasoning 757 the defen This case is remanded to the trial court opportunity dant did not have a reasonable judgment with instructions to enter for the the accrual to forestall of interest on the $882,937.57 plaintiff the amount of with amount and that it new is unreasonable to opinion. interest consistent with this expect the defendant to foresee the court's judgment). new SHEPARD, C.J., DICKSON, variations, Despite prevalent these SULLIVAN, RUCKER, JJ., concur. jurisdictions view other is that "where a money judgment ap modified on been

peal only necessary and the action compliance

trial court with the mandate court, appellate judg

of the on the interest

ment as modified runs from the date of the Benny SAYLOR, Appellant-Petitioner, Morrison, original judgment." Gilmore v. v. 779, (Fla.Dist.Ct.App.1976).10 So.2d Indiana, Appellee- STATE of think We this is the more sensible view. Respondent. increased,

If a judgment is this rule com pensates plaintiffs money loss of No. 48S00-9712-PD-647. rightful that has been determined to have Supreme Court of Indiana. ly belonged throughout to them the time of 20, March 2002. pending appeal. It also reduces the defendant's incentive to continue to resist plainly appeal merely meritorious to ob produced by

tain the lower interest cost Snapp (appellate v. See also State Farm Fire & Cas. court awarded interest Co., 816, 612, expenses on the increased amount of medical Cal.Rptr. 60 Cal.2d 388 P.2d 884, (1964) ("When judgment original judgment); is modi- from the date of the Uli upon appeal, upward Gee, fied whether or down- barri v. 107 NM. 764 P.2d ward, ("[When the new sum from the аn award draws interest is remanded order, excessiveness, entry original date of for a new decision reason of judgment."); Long from the date of the new the new award shall accrue interest from the Hendricks, original judgment."). 117 Idaho 793 P.2d date of the Freeman-Wilson, Attorney

Karen M. Indiana, General of Arthur Thaddeus Per- General, ry, Deputy Attorney Indianapolis, IN, Appellee. for THE DENIAL ON APPEAL FROM OF RELIEF POST-CONVICTION RUCKER, Justice.

Summary jury Benny Saylor A convicted murder, murder, felony robbery, and con stabbing finement in the 1992 death of Judy VanDuyn. jury's contrary Over the recommendation, the trial court sentenced death, Saylor to and we affirmed the con appeal. victions and sentence on direct State, (Ind.1997). Saylor v. 686 N.E.2d 80 Thereafter, Saylor petition post- filed a for relief, post-conviction conviction which the hearing. court denied after a He now appeals raising that denial several issues for our review some of which are waived Carpenter, they K. Public Defender of because were known and available at Susan Saylor's appeal.1 the time of direct We Indiana, Hinesley, Deputy Thomas Pub- C. Hawk, issues, Defender, Emily Deputy remaining lic Mills address the which we Defender, IN, Indianapolis, Ap- (1) Public rephrase sup as follows: did the State press exeulpatory thereby evidence violat pellant. State, super appeal. See Conner v. 711 N.E.2d Saylor as follows: frames those issues Rather, (Ind.1999). as we have (1) judge by The State misled the out, consistently pointed post-conviction pro argument, presenting false evidence provide opportunity cedures defendants the by suppressing evidence favorable to issues were not known at the time raise gained Saylor. State also an unfair original of the trial were not available advantage by selecting judge who would State, Lowery appeal. defendants on direct (2) and decide his fate. hear case (Ind.1994); 640 N.E.2d Kimble v. Saylor rights to was denied his cross-exam- State, (Ind.1983). 451 N.E.2d 303-04 present and to a de- ine State's witnesses presented Claims are available but not (3) juror-witness rela- fense. Undisclosed appeal direct are waived for Saylor's right tionships compromised to a review unless the error is fundamen claimed impartial jury.... Say- fair trial tal. Wrinkles v. 749 N.E.2d because lor's death sentence is unreliable Conner, (Ind.2001); Say- sentencing were not cured and n. 3 at 1246. errors foregoing recasts number of the rights denied his at resentenc- lor was general heading under the of ineffec claims ing.... Saylor's death sentence contra- exception tive assistance of counsel. With the evolving decency venes standards of violation, alleged Brady we address the international law. they only. issues in that context Otherwise Petitioner-Appellant Br. of at 2. Even in death penalty litigation, post-conviction procedures not demon are waived because opportunity do not afford defendants the for a error occurred. strated that fundamental inside, Looking recog- in door locked. Paul right process to due viola ing Saylor's (2) of children's in nized some clothes one Brady Maryland; was of tion of trial plastic bags the effective assistance machines and washing denied (8) counsel; the effec was denied in laun- VanDuyn which had carried the counsel; appellate laundromat, tive assistance dry. leaving As he was penalty statute unconstitu Indiana's death Paul noticed a red Chevrolet Cavalier Jersey; in v. New light Apprendi tional parked along building the side of the in an court post-conviction did the dis and Suspicious, manner. he odd wrote down against Saylor rendering thus play bias description plate of the car and the license affirm judgment court's unreliable. We number. He then returned home and re- Say- court's denial ported missing police. his wife to petition post-conviction relief. lor's for a.m., Conrad, Around 1:00 David who farm, County a rural lives on Madison was Background2 Factual and Procedural watching the storm when he saw a van approximately p.m. At 10:00 on June driveway. peri- turn into his After a short her to a Judy VanDuyn drove van time, lights od of on the van shut off. at twenty-four hour laundromat 8th Street began shortly The storm to subside there- Anderson, in Bypass and the Indiana. after, and decided to drive around Conrad left, an hour after she About violent survey possible damage. the farm to storm, storm hit the Anderson area. The truck, As he started his Conrad noted the accompanied by large which was amounts lights on the van came on and the van rainfall, wind, lightning, and caused began backing driveway. out of the It widespread power outages property eventually to rest in a field at the came damage warning and even set off tornado driveway. Approaching end of the sirens. inside, van, people saw two a wom- Conrad midnight after on June Just Charlеs in in the driver's seat and a man laundromat, Teague, the owner of the re- seat,. passenger Conrad asked the When telephone from an unidenti- ceived a call problem if or if she woman there was complaining fied woman that the machines help, needed the woman indicated that she at stopped. Teague had When arrived Assuming couple parking did not. later, just laundromat ten minutes there his privacy, and wanted Conrad went on lot, parking were no cars the front way. However, Teague no one was inside. washing found clothes in some of the ma- Gary also went out to check for Gibson determining chines. After that there was early morning damage storm power outage, Teague up decided to lock field a came across the van Conrad's laundromat, Leaving the go home. looked little after 8:00 a.m. When Gibson Teague parked noticed a red car at the inside, body a female cov- he discovered building. side of the lying ered blood on the floor between body was identified as the seats. The VanDuyn

After had not returned home autopsy A a.m., husband, Judy VanDuyn. later revealed VanDuyn, Paul by 3:80 her approxi- or cut that she had been stabbed proceeded to search became worried and times, twenty-eight times mately forty-five for her. He arrived at the laundromat alone, which caused se- am. and found the to her left breast approximately 4:25 post- court record. "P-C R." refers to the 2. "R." refers to the trial court record. supplemental "Supp. R." refers to the trial court record. conviction 54G ultimately straight around 12:80 a.m. and then went injury and her

vere internal Saylor that he home himself. later said death. change to went to the laundromat to obtain arrived at Investigating police officers buy taking home. a drink before VanHorn 4:45 a.m. around Because the crime scene Saylor questioned the officers about When muddy extremely from the the field was injuries, Saylor responded that the in- his storm, discovered a trail of investigators jury temple fight on his was from a with shoeprints approximately a half of a mile other VanHorn. When asked about the Along the van. long leading away from injuries, Saylor requested attorney, at investigators found shoeprints, this trail of point ques- the officers ceased all which a with VanDuyn's purse and dollar bill tioning. shoeprints it. The were so clear blood on immediаtely Say- officers arrested investigators could read the brand The County him the Investiga- of the shoes as Jordache. lor and took Madison name jail, police Saylor At and matching shoeprint also found a on a Jail. searched tors twenty-two currency piece paper inside the van. found dollars wet soaking and a wet billfold. Police then am., Captain Thompson At 8:00 Mark Saylor's executed a search warrant at and Detective Robert Blount of the Madi- They pair Jordache house. found wet County Department son Sheriffs arrived shoes, FBI tennis which the later deter- VanDuyn They informed at the home. shoeprints consistent with the mined were Paul that his wife had the victim of a been seene, pair found at the crime and a description Paul them the gave homicide. jeans. day, Later that soaking wet Con- plate and number of the car he had license jail line-up posi- rad viewed a parked seen at the side of laundromat tively Saylor person identified as the he morning. Captain Thompson earlier that in VanDuyn's had seen van earlier that plate ran a check on the license number morning. that the car's owner was and discovered 283,1992,

Benny Saylor charged L. of Anderson. On June the State murder, murder, felony with am., Captain Thompson At 9:40 robbery and also filed a notice of its intent police other officers arrived at penalty. to seek the death The later State vehicle, A house. red Chevrolet with charge added a of confinement. Pursuant plate matching giv- one license number Rule the trial court to Indiana Criminal Paul, parked driveway. en was in the appointed attorneys Jeffrey Lockwood and door, Saylor came to the the officers When Chabraja represent Saylor. Mitchell right observed dried blood on the side of trial, Saylor incarcerated before told While hairline, temple his fresh laceration Herche, jail, Richard another inmate at the finger, ring to his left and numerous abra- Specifi- several details about the crime. Further, Saylor sions on his arms. cally, Saylor told Herche that he had seen description matched the that Conrad had VanDuyn the laundromat and decided to just given police of the man he had seen brought out rob her when she her elothes VanDuyn's morning. earlier that Af- van and that he used a knife to force to the van reading Saylor rights, tеr his Miranda away. get her to into the van and drive him questioned officers about his where- 5-18, January trial held during night. Saylor abouts said after charged and The convicted as but spending evening drinking alcohol against penalty. recommended the death doing drugs with his friend Fredrick recommendation, Rejecting jury's VanHorn, home "Butch" he took VanHorn support; failed to pay ures to child Saylor to death. We trial court sentenced report showing an FBI that fibers produce the convictions and sentence affirmed Thereafter, knife; Saylor filed in the well of appeal. direct were found VanHorn's relief, (4) which petition post-conviction produce police report for a describ- did not court denied after a post-conviction weap- knife as the murder ing VanHorn's (5) hearing. appeal on; This followed. provide police a report failed to VanDuyn's detailing the efforts of husband of Review for Post- Standard money to ascertain the amount of Van- Proceedings Conviction Duyn possessed night on the of the mur- petitioner post-convic a (6) der; provide photographs of failed to proceeding tion bears the burden of es VanDuyn the interior of the van in which a by pre a tablishing grounds for relief (7) shown; toy gun pro- and failed to Ind. ponderance of the evidence. Post- report a an police detailing duce interview State, 1(5); Curry v. 674 Conviction Rule with the father of one of the State's trial (Ind.1996). 160, ap N.E.2d 161 When witnesses. pealing post-conviction from the denial of relief, posi petitioner stands 83, Brady Maryland, v. 378 U.S. negative a appealing tion of one from 1194, (1963), 83 S.Ct. 10 L.Ed.2d es Curry, 674 N.E.2d at 161. judgment. suppression by tablished that "the review, judg will not reverse the On we an prosecution of evidence favorable to a un ment unless the evidence as whole upon request process accused violates due erringly unmistakably leads to a the evidence is material either to where opposite that reached conclusion irrespective guilt punishment, or Further, post-conviction court. Id. prosecution." good faith or bad faith of the post-conviction court in this case entered 87, Id. at 83 S.Ct. 1194. Evidence is "ma findings of fact and conclusions of law only proba if there is a reasonable terial" accordance with Indiana Post-Conviction bility that had the evidence disclosed been 1(6). Rule "A court's defense, proceeding result of the to the findings judgment will be reversed A different. "reasonable would have been only upon showing a of clear error-that probability" "probability sufficient to firm which leaves us with a definite and in the outcome." undermine confidence conviction that mistake has been 682, 667, Bagley, v. 478 U.S. United States State, Ben-Yisrayl made." (1985) 3375, (quo 87 L.Ed.2d 481 S.Ct. (Ind.2000) (quotation omitted). Therefore, tation to establish -- omitted), denied, --, cert. U.S. violation, Brady Saylor must show that the (2001). S.Ct. 151 L.Ed.2d 88 evidence that suppressed material State Denney v. was favorable to his defense. I. (Ind.1998). 90, 94 Exculpatory

Non-disclosure Evidence As for claims provide the eriminal records assertions State failed to Saylor makes a number of ex- claiming suppressed witnesses, the State material disclose informa of two failed to dereliction of his Specif- concerning tion Herche's culpatory impeaching evidence. duties, support produce and failed to child failed to ically, he claims the State police report concerning interview provide the criminal records for witnesses wit the father of one of the State's did not disclose with VanHorn; Herche nesses, Saylor filed his fail- the record shows information about Herche's numerous regard to the remainder of post conviction ‍‌‌​‌‌‌​​​‌​‌‌​‌​‌​​​​‌‌‌‌‌‌​‌‌​‌‌‌​‌‌‌‌​‌​‌​​‌‌‌‍relief With original petition evidence, post- alleged suppressed R. at 73-89. The July on 1998. P-C conviction court determined it was not ma amended: onee on Octo petition was twice shows, post- terial. The record and the 30, 1998, January again ber 99-186; found, R. at 395-486. conviction court that counsel were 1999. P-C aware of the about existence the knife Saylor mention petitions none of the does R. at complains. which now P-C three assertions he anything of the above Although Saylor 2252-53. insists that the Accordingly, appeal. claims in this now report FBI have existence of the would eighty-six page post-conviction court's testimony him impeach allowed Fact, Of Law "Findings of Conclusions witnesses, various he has not demonstrat Judgment On Petition For Post-Con And trial ed the outcome would have anything Relief" fail to mention viction any different.3 been concerning Saylor the claims now ad essence, R. at In vances. P-C 944-1080. allegation same is true for the Saylor asking to review a this Court provide police report the State failed to a upon which he carried the burden matter detailing VanDuyn's the efforts of husband proof post-conviction before the court money to ascertain the amount of Van- present judge, but to whom never Duyn possessed on mur- night ed the claim the first instance. These report may provided Say- der. This have R. alleged errors are waived. See P-C opportunity impeach lor an the husband 227, However, Saylor 1(8); on a collateral matter. 235 Canaan (Ind.1997) (declining appellant's to address has not shown that the outcome of the trial jury improperly in claim that was changed. Brady would have There was no proof structed on the burden of at both the violation here.

guilt phases of his and habitual offender Standard of Review for Ineffective trial defendant failed to set forth because Assistance of Counsel court, such a claim to the trial on direct post-conviction To a establish court). appeal, post-conviction or to the alleging claim a violation of the Sixth

Concerning allegation that the State right Amendment to effective assistance of provide photograph failed to of the inte- counsel, a defendant must establish before post-conviction VanDuyn toy compo rior of the van which a court the two shown, gun Washing was court nents set forth Strickland v. ton, 668, 2052, 466 U.S. 80 found, reflects, S.Ct. and the record that not only provided photo- (1984). were counsel Taylor, L.Ed.2d 674 Williams v. 862, 390, graph, photograph but also the was intro- 529 U.S. 120 S.Ct. into at trial as Ex- L .Ed.2d 389 (2000). First, duced evidence State's defendant 3589; hibit 26. R. at R. at 2466. The must show that perfor P-C defense counsel's toy belonged record also shows the to the mance was deficient. Strickland, 466 U.S. VanDuyn requires children. P-C R. at 2881. This at 104 S.Ct. 2052. This suppressed, showing evidence was not and thus that counsel's fell representation objective Saylor's Brady claim of a violation on this an of reasonable below standard point fails. ness and that counsel made errors so seri- attorney agent 3. The record also shows Lockwood or before the FBI testified. P-C R. at post-conviction hearing event, at the that he testified any apparent 2252-53. In it is report possessed report, did in fact receive the FBI on Van- and thus his claim that began report just "suppressed" knife the trial is not well taken. Horn's either before functioning spected shortly appointment, as the van after was not ous that counsel 22839; sought discovery P-C R. at to the defendant guaranteed "counsel" evidence, P- 687-88, copies obtained of the State's Id. at the Sixth Amendment. 2288-39; deposed R. at all C of the State's Second, must a defendant S.Ct. 2052. 1470; witnesses, P-C R. at consulted with performance preju- that the deficient show 1470-71, 2223; experts, at the defense. Id. S.Ct. forensic P-C R. diced experts including retained various showing that coun- requires This consultant, mitigation specialist, and deprive were so serious as to sel's errors experts, two mental health P-C R. at trial, of a fair a trial whose the defendant 1471-72, addition, pursuant 2228-24. preju- Id. To establish result is reliable. the trial mutual reciprocal court's discov- dice, that there is a a defendant must show order, ery supplied, the State that, coun- probability reasonable but for examined, counsel numerous written state- errors, the result of unprofessional sel's ments, audiotapes, videotapes, witnesses' Id. at proceeding would be different. records, autopsy report, criminal a cor- proba- 2052. A reasonable S.Ct. report, toxicology report, oner's various bility probability is a sufficient to under- FBI reports, police report. and a R. at Fur- mine in the outcome. Id. confidence 71-73, 122, 1283,182, 186, R. at P-C ther, performance presumed is counsel's 1499-1954, 1956, 1957-2071. effective, must offer and defendant production phys- counsel also moved of to over- strong convincing evidence evidence, jail photographs, ical rec- Ben-Yisrayl, 729 presumption. come this ords. trial poor N.E.2d at 106. Counsel's strate- mistake, carelessness, tactics,

gy, or bad Saylor not demonstrated inexperience necessarily does not amount failing independent investigator, to hire an to ineffective assistance of counsel. Carr performance objectively un counsels' (Ind.2000). State, v. reasonable. See Rondon (Ind.1999) (finding IL. defendant's claim of ineffective assistance fur alleged failure to based counsel's Ineffective Assistance investigate weight ther of the State's Counsel-Pre-Trial merit; in case is decision not to without Saylor his counsel failed contends type vestigate precisely of decision case. properly investigate to the State's that falls within the broad definition essentially He claims that counsel should deficiency argued by strategy). trial independent investigator hired an to have appeal apрroach not this does against him. evaluate the State's evidence strong showing necessary to overcome the post-conviction presented to the In presumption competence. of counsels' various ac testimony concerning court sum, that the Saylor has not demonstrated have taken if investigator tions an would findings clearly are post-conviction court's post-conviction hired. The court was erroneous. finding there was no ineffective persuaded point on this because assistance of counsel IIL. investigation strategy was not counsels' Ineffective Assistance of Counsel- R. at 908. objectively unreasonable. P-C Phase Guilt agree court. We with of assertions diligent Saylor sets forth number The record shows counsel worked in- ly investigate this case. Counsel that counsel demonstrate that he contends during believe, disbelieve, ineffective assistance rendered give them to more or weight person's testimony to that than less Consolidated, re- of trial. guilt phase any testimony other witnesses. P-C reordered, those claims are phrased, and 2412, 2417, 2422. In appeal, R. at this (a) failed to ensure an counsel as follows: testimony Saylor does not contend that the (b) failed to make jury; counsel unbiased jurors of other who also alerted the bailiff (c) objections; appropriate timely and any would have been different if called to prepare adequately failed counsel testify hearing. Although there supporting the defense present evidence may strategic have no reason for been (d) case; failed theory of the counsel jurors questioning counsel to refrain from 404(b); invoke Indiana Evidence Rule they any on whether knew witnesses (e) to tender certain counsel failed case, Saylor has not shown that such fail- address each contention instructions. We sum, produced jury. Say- ure a biased in turn. prejudice prong lor's claim fails the Strickland. Jury A. Selection Object B. Failure to Saylor claims counsel were failing impar to ensure an ineffective for Saylor contends counsel acted de- jury. tial His claim is based on the follow ficiently by failing objec to make various during time voir ing facts. At no dire did specific alleged tions. The instances of jurors question potential counsel on wheth counsel error can be summarized as fol they acquainted any were with object er lows: counsel failed to when the impact testimony State elicited victim from Later, witnesses the case. as potential husband; VanDuyn's counsel failed to testify, witnesses were called to different object laboratory testimony concerning to they jurors notified the court bailiff that Say- on a in tests conducted knife found one or more wit acquainted were with bedroom; lor's counsel failed to bailiff in turn either nesses. The wrote object prosecu to various statements the juror note to that effect or instructed the In during closing argument. tor made note, given which was then to write such prevail order to on a claim of ineffective judge.4 Apparently to the trial no action assistance of counsel due to failure to response. Saylor in was taken seems to object, prove a defendant must that an question that failure to contend counsels' objection if would have been sustained jurors provide the at voir dire or them prejudiced by made and that he was the with a witness list amounted to ineffective Wrinkles, 1192; failure. 749 N.E.2d. as a assistance of counsel matter law.5 State, Timberlake v. (Ind.1997). hearing, Saylor At post-conviction the presented jurors who three nine had impact 1. Victim statement acquain-

alerted the bailiff of his or her particular tance with a witness. Each tes- during guilt the claims trial, acquaintance phase impact not Paul tified the did cause read a victim Generally, affecting [framework] 4. the notes were in the form of error is a 'defect proceeds, "[juror] knows within which the trial rather than P-C R. at 2433- [witness]." 41. simply process an error in the trial itself'" Fulminante, (quoting Id. at 48 v. Arizona Specifically, Saylor partic- contends counsel 279, 310, U.S. 111 S.Ct. 113 L.E.d.2d "cultivating" ipated what to he refers as (1991)). Petitioner-Appel- "structural error." Br. of According Saylor, lant at 57. "Structural made, if the trial court would not counsel did even to the to which statement objections by counsel post-conviction court re have sustained when object. The concerning evi finding specific "[the claim witnesses testified jected this impact evi was not victim dence at issue knife. introduced." P-C properly and was

dence challenge the Saylor does not R. at 906. by prosecutor made 3. Comments Rather, during closing argument findings. post-conviction court's in a makes the above assertion simply hе Saylor also contends his counsel Phase paragraph entitled "Guilt three-line deficiently failing object for performed Petitioner-Ap Br. of Impact Evidence." "misstatements" of the evidence to several claim Saylor has made no pellant at 58. by closing argument. in its made State findings court's post-conviction at 59. Petitioner-Appellant Specifi Br. of clearly And our own re are erroneous. cally, argues he that the State's reiteration record does not leave us with view the points by three testified to three differ that a mistake and firm conviction definite required ent witnesses was incorrect made. See Prowell has been correction counsel. (Ind.2001). 704, 708 of the record

Our review confirms petitioner's 2. Tests conducted on of the evidence was not State's recollection knife wholly with the evidence actual consistent petition his However, ly at trial.6 counsel introduced relief, Saylor alleged failed to "[clounsel object reasonably could have decided that effectively challenge improper comments, interspersed ing to the State's of an irrelevant prejudicial identification argument, places at different would police by Say- Mr. knife turned This draw undue attention them. choice after lor's mother several months strategic a reasonable decision. See post-con P-C R. at 408. The crimes[.]" Conner, ("By choosing 711 N.E.2d at 1250 there was no ineffective viction court found closing ... object to the State's not to point counsel on this because assistance of counsel avoided draw argument, defense successfully argued that "[cJounsel testimony argument ing attention to knife not connected to the crimes." was unfavorable to the defendant. This was R. at 910. P-C Saylor has failed to legitimate strategy."). trial, shows that at outside The record conduct fell below show that counsels' counsel, jury, pros- presence objective of reasonableness.7 standard ecutor, extensively and the court discussed objection introducing testimo- counsels' Evi- To Invoke Indiana C. Failure knives, ny concerning including various 404(b) Rule dence R. at Saylor's in bedroom. knife found that counsels Saylor contends trial court overruled coun- 3610-24. The allow- such, deficient also for testimony. performance As was objection to such sels' comparing animal hairs is that nеss testified argued that Van- example, 6. For the State get "Say- practice...." VanHorn out of R. at 4354. Horn's sister saw "not a common However, red car." R. at 4955-56. lor's testimony saw sister's was that she VanHorn's Further, jury, the trial court instructed get of "a red car." R. at 4137. VanHorn out arguments among things, that of coun- other Also, argued that a witness testified the State given evidence but are to assist sel "are not way you compare" can ani- that "there is no evaluating R. at 312. you the evidence." However, the wit- hairs. R. at 5057-58. mal statement; ing Saylor's previous giving into evidence arrests VanHorn into evi- that did not result convictions. More that VanDuyn's journal dence checkbook particularly, he asserts counsel should money was inconsistent with the amount of have invoked Indiana Evidence Rule Paul VanDuyn possessed estimated on the 404(b) any to secure notice of evidence of murder; night of the that evidence prior acts or crimes which the bad State lying Herche was his about conversation against Saylor intended to introduce at Saylor. complains with He also counsel Saylor trial. are these. testi- The facts highlight should have done more to certain trial, on direct fied examination testimony of VanHorn. if

counsel asked he had a "criminal ree- "yes," ord." R. at 4598. said theory Counsels' at trial that was extensively counsel examined him on his someone other than Saylor committed the past criminal convictions. R. at 4599-4602. post-convic crime. R. at 4146-47. At the cross-examination, Upon prosecutor tion hearing, counsel stating elaborated questioned Saylor previous about his ar- they that prove tried to than more rests for R. at burglary. 4620. Counsel person one was in VanDuyn's involved ab objected, but the court ruled that counsel murder; duction and VanHorn opened Saylor's "complete had the door to involved; one of persons and that the criminal including record" arrests. R. at tying Saylor evidence to the murder was post-conviction 4623. The court found 1484-86, weak or non-existent. R. at P-C failing counsel were not ineffective for to 2228-82. additionally Counsel testified 404(b) request. make Rule P-C R. at by extensively cross-examining Van- agree. 910. We Horn about the inconsistencies in his state ments, highlighting VanDuyn the fact that 404(b) requires Indiana Evidence Rule try did not escape passerby when a prosecution in a criminal pro- case to van, approached focusing vide reasonable notice in advance of trial if history intoxication and of black it intends to introduce evidence of other outs, they sought prove that it was less crimes, wrongs, prove motive, or acts to likely all committed the acts intent, preparation, plan, knowledge, iden- alleged. the State had P-C R. at 2234-36. tity, or absence of mistake or accident. court found that coun Here, Saylor's previ- the State did not use sel were not investiga ineffective their Rather, any ous arrests to show of these. presentation tion and of the evidence: previous the State used the im- arrests to peach Saylor's direct examination testimo- placing [TJrial defense was centered on ny concerning his eriminal record. Butch Horn at Van the scene of the committing

crime and the murder. aggressively questioned Counsel Butch D. Presentation of Evidence family Van Horn and the three members Saylor contends counsel rendered who testified on his behalf at trial seek- they ineffective assistance because failed ing to undermine his alibi defense. prepare to present evidence to support presented Counsel also evidence that theory defense of the case. He as inculpatory Butch Van Horn had made serts, example, that counsel should police. statements to the (1) have videotape introduced: a of Van- (2) at police; testimony Saylor Horn's statement to P-C R. 905. has made no show- alleging ing post-conviction from Officer Blount he finding coerced court's Saylor by foreclosing sup a defense diced clearly erroneous.8 is Br. of Petition ported by the evidence." Jury Instructions E. er-Appellant post-conviction at 60. The rendered Saylor claims counsel otherwise, Saylor has nei court found jury concerning two assistance ineffective shown that the court's argued ther nor instruction con The first instructions.9 findings clearly are erroneous. of intoxication. The the defense cerns trial, Saylor's counsel At facts are these. Saylor also contends counsel ren on volun proposed a instruction tendered failing assistance for to dered ineffective as a defense to murder. tary intoxication object to a instruction this Court dis give to it for two trial court declined State, Spradlin v. approved comply fаiled to with reasons: counsel (Ind.1991). The instruction read: directing discovery of previous a order clothing charged those with crime defenses; of all notify to the State defense innocence, the presumption with the pursue not because counsel did contemplate thereby law does not Saylor's inability to form based on defense from merit- guilty should be shielded intent, not entitled to an counsel were object punishment. protect Its is to ed voluntary intoxication. R. instruction on innocent, agencies so far as human Ellis v. (citing at 4934-35 can, unjust verdicts. from the effects (no (Ind.1987) error presumption of this is to with- The effect voluntary intoxication failing to instruct punishment charged from one with hold to murder where defendant as defense necessary until all the facts crime inability pursue did not defense charged offense have been constitute the intent)).10 appeal, In this con form certainty proved degree to that fixed veniently ground over the second glosses being beyond a by law as reasonable give for the trial court's refusal doubt. instruction.11 Rath voluntary intoxication er, authority and with innocent, without citation to not If is he should a defendant elaboration, "[dlefense contends if erroneously, but no a defen- be convicted acquitted discovery guilty, he should be comply with dant counsel's failure to erroneously. preju performance which was deficient is not available for re setting pability. This claim that other than 8. We also observe failings, Saylor Saylor's laundry alleged included in list of view because it was not forth explained how counsel rendered inef- post-conviction has not relief. See Min petition for doing what he now nick, assistance for not fective N.E.2d at 753. says they have done. He cites no should contention, facts, support his cita- reasons to Counsel testified record, case law and makes no tions to the they postulating that hearing "were not beyond separate argument paragraph. a short [Saylor] that he could not form was so drunk Although the merits of we have addressed intent, thought made it [intoxication] we claim, pres- for failure to it is waived things and com- likely that he did all the less argument. Appellate Rule cogent Ind. ent the State were [sic] all the acts that mitted 8.3(A)(7)); 46(A)(8) (formerly Harrison App.R. P-C R. at 2236. him...." (Ind.1999). State, 707 N.E.2d give refused to this "The Court 11. He asserts: Saylor argues were ineffective also counsel 9. instruction, part on the defense's based in accomplice failing instruction to tender an discovery comply order." to with its failure in failure was both unreasonable in that the (emphasis Petitioner-Appellant at 60 Br. of prejudiced theory and it light of defense omitted). added) (citation Saylor by precluding a defense of lesser cul- R. although began marshalling at 5068. We first observe that mitigation evidence judges that trial we recommended refrain expert even before the was hired. P-C R. instruction, using from this we did not 1478-79, at post-conviction 2080. The Spradlin's reverse conviction on this that court found "counsel was not ineffec- 951; ground. Spradlin, at see failing tive in properly secure and use a State, Matney v. also mitigation specialist." P-C R. at 916. In ("The (Ind.Ct.App.1997) Spradlin appeal, Saylor argued this has neither nor however, not, giv court did hold that demonstrated that finding the court's [presumption ing of the in innocence] clearly erroneous. error."),

struction constituted reversible Thus, assuming trans. denied. even Mitigation B. Additional Evidence of performance counsel rendered deficient in Saylor complains that counsel rendered object instruction, failing Saylor to the failing present ineffective assistance for objection has not shown would mitigation all available evidence to the if have been sustained made. jury. He concedes that strategy counsels'

IV. apparently jury was successful-the rec- against ommended penalty. the death He Ineffective Assistance of Counsel- contends, however, approach that counsels' Penalty Phase Saylor "failed at judge sentencing." Br. of Saylor argues his counsel were inef- Petitioner-Appellant at 62. penalty phase fective at the of trial be- (a) cause did mitigation counsel: not hire a Saylor's claim revolves around expert year they until one after ap- were disagreement between counsel and their (b) case;

pointed present to his failed to all mitigation expert. expert wanted to (c) evidence; mitigation available did present every evidence, piece mitigation present additional evidence at the time but counsel focusing primarily insisted on sentencing. We address each conten- on the sexual abuse suffered aas in tion turn. Attorney Chabraja child. testified post-cоnviction hearing that sexual abuse Mitigation Specialist A. powerful was the most mitigation factor in The record shows that counsel did Saylor's view, case and in his everything mitigation expert not hire a until nearly a secondary. else was R. at P-C 2108.12 year entering after appearance their However, This impor Court realizes the stating this case. other than fact, evidence, presenting mitigating tance of argument advances no particularly capital explaining how he was We have Attorney harmed. cases. held Chabraja testified at that the present mitigating failure evi hearing began preparing that he dence constitutes for the ineffective assistance of counsel, penalty phase trial prepar warranting while he was the vacation of a death ing guilt phase for the and that counsel sentence. See Harrison 5384, 5459; judge sentencing, presented Saylor's 12. At parents' drug counsel and alco- witnesses, including expert seventeen childhood, testimo- during hol abuse his R. at 5400- ny Engum. 01, 5413-16, from Dr. Eric R. at 5292-5538. 5424-25, 5444-47, 5491; Although primary punishment Saylor's sexual abuse was parents focus severe inflicted testimony, 5490-91; of much of the heard also Saylor, R. at testimony Saylor's drug about habits, 5317-18, 5323, alcohol and work R. at childhood, beginning early abuse R. at

555 (Ind.1999) that additional evidence Burris sentence and (citing 783 N.E.2d purpose. material have served no (Ind.1990)); would State, N.E.2d ‍‌‌​‌‌‌​​​‌​‌‌​‌​‌​​​​‌‌‌‌‌‌​‌‌​‌‌‌​‌‌‌‌​‌​‌​​‌‌‌‍(Ind. N.E.2d Smith v. 1989). However, predi were opinions our at Evidence Sentenc- C. Additional failure upon counsel's large part in

cated ing See mitigating evidence. investigate to that counsel were Saylor contends Smith, 1074-76; Burris, at finding presenting and for not ineffective in example, we noted at 822. For N.E.2d at the time mitigation evidence additional a attorney who makes that "an Burris specifically ar judge sentencing. He of present evi- to reasonable decision in implicating VanHorn gues evidence exceptionally had an that his client denee introduced to should have been the murder after unstable childhood unhappy commit killing while refute the intentional the client's back investigation of some robbery aggravator, a see Ind.Code ting the dictates ground, complies with 35-50-2-9(b)(1)(G), miti § and that more Thus, 558 N.E.2d at 1075. Strickland." Saylor's home life and gation evidence on strategic to make permitted counsel is Saylor on testimony about its effect expert types of present not to certain judgments presented. support, should have been evidence, including evidence mitigating dictating, Saylor guidelines cites ABA Canaan, 683 background. a defendant's sentencing present to the "Counsel should Timberlake, 234; at see also N.E.2d reasonably entity all available or entities ("As matter of trial strate at 261 a there are mitigation unless evidence may capital in a case gy, a defense counsel forego reasons some strong strategie argument pres is the best decide what Br. of Petition portion of such evidence." phase."). during penalty ent omitted). (quotation at 62 er-Appellant Here, investigated adequately counsel hearing, Saylor post-conviction At the and then made mitigating cireumstances present witnesses who introduced several to focus the evidence strategic decision impeaching testimony either VanHorn's ed will not second- Saylor's sexual abuse. We VanDuyn's implicating VanHorn reasonably alibi their decision. Counsel guess that evidencere Saylor claims murder.13 Say- presenting evidence believed was relevant lating to VanHorn enough to avoid lor's sexual abuse was intentionally killed he culpability-whether death possible recommendation Further, mother and sis- Tammy Stonebarger at trial VanHorn's example, witness 13. For hearing that his where- post-conviction provided VanHorn an alibi for testified at the ter with VanHorn in she had a conversation At the night of the murder. on the abouts 18, 1992, Saylor argued VanHorn told hearing, their of June afternoon van." P-C R. at "he was there in the her presented testimony tes- was not credible Beatrice, a cousin of Van- Candice 3691. timony frightened of VanHorn both were Horn, both VanHorn that she saw testified R. tendency violence. P-C of his because 18, 1992, subject of and the June 2241-45, pre- 4668-74. also Beatrice, up. According to came the murder testimony VanHorn's sis- hearsay sented anything to do with had she asked if VanHorn night allegedly said that on ter murder, responded "he didn't which he "came home without VanHorn murder anything. All he remembered remember wet, shirt, in the wall." a knife all and stuck 4659. "All he being the van." P-C R. at knife Allegedly she threw the at 3678. P-C R. being say in the was he remembered would afraid he had she was in the trash because on and he was blacked out van and after that 3678, 3685. P-C R. at killed someone. anything." P-C R. at remember he didn't 556 have

VanDuyn-and post-conviction should been intro At hearing, Saylor duced. also lay expert introduced both and testimony concerning Saylor's home life Major participation in killing and its effect. He argues that had this coupled culpable with a mental are state presented, evidence been the court "could satisfy require needed to constitutional reasonably not have found mitigating no in finding killing ments the intentional circumstances to exist." Br. of Petitioner- committing robbery aggravator. while Appellant Chiefly, Saylor's at 68. argu State, (Ind. Ajabu v. 698 N.E.2d goes ment to weight of the evidence 1998). This issue often surfaces when de presented; penalty as in the phase argu who, termining among two or more actors ment, argues mitigation he more evidence crime, committing accused of acted as presented. should have been post- principals accomplices. and This is so be conviction court testimony found that the may cause accomplice "[wJhile an be found post-conviction offered at the hearing was guilty largely of the crime executed his "only more of the same" and "largely un principal, it does not follow that the same theory dermined the of mitigation present penalty appropriate." Id. (quoting Martinez ed at the sentencing hearing."1 P-C R. State, Ch avez at 1001. (Ind.1989)). Here, Saylor evidence We have presented reviewed the additional post-conviction to the court evi goes Saylor's dence of upbringing presented to to alleged participation VanHorn's in Van- post-conviction court, murder; not, Duyn's it and while it in does as presented cluded information not argues, culpability. address his own at the Addi tionally, judge sentencing, time it might implicate only while the evidence adds de tail and not participant, weight VanHorn as an additional to the mitigating it cir disprove Saylor's major argued during does not cumstances partic guilt phase ipation Thus, trial. the murder. We find that counsel ade failed quately presented to show that had this judge evidence been with at least principal introduced, Saylor's contours of home life outcome would have been different. and its effect.15 See Bivins v. post-conviction 14. The performed court further found: chores around the house. Peti- tioner's mother and father also set rules for parents drug While his did admit to children, them, sought their to enforce use, they any knowledge alcohol denied attempted discipline the children when being they the children were abused or that the rules were breached. Petitioner's fa- abusing themselves were substances at ther testified that he tried his best but now young ages. parents Each of the stated that knows that they stop any would have tried to such wrong; what he did was instead of disci- they occurring. abuse had it known was for, plining stealing Petitioner example, for Moreover, parents they testified that gun running away, his father's he sought protect loved their children and fishing should have taken him or told him them, exposure even from to their own use he loved him. of substances. Petitioner's mother and fa- P-C R. at 1001-02. Presentation some of years, ther were for more married than 30 mitigating the additional evidence would have they remain married. Petitioner's fa- likely judge being exposed resulted in the ther employer has worked for the same information that casts claim in a years, job and often followed that Harrison, negative light. See 707 N.E.2d at far from home distances so that he could 783-84. provide family. continue to for his When home, he made himself available to judge, 15. We observe that the in both the chil- decisions, original him, sentencing and revised dis- dren who were not available to and he court's de- (Ind.2000) contrary to the (finding 1116, 1130-31 compe- provided perfor that counsel counsel's termination defense the extent that to sentencing. failing during to investi for tent assistance deficient mance was cireumstances, present additional and gate weight to and not only added detail

it v. trial), at presented

mitigating evidence Ineffective Assistance at denied; Ben-Yisrayl, 729 N.E.2d reh'g Appellate Counsel in wit that the similarities (finding 112-13 penalty matter between subject nesses and claims he was denied Saylor are evidence post-conviction phase and counsel on direct assistance of the effective performance counsel's that defense such of review for The standard appeal. standards); reasonable not fall below did appellate ineffective assistance claim of (Ind. 1115, State, 1126 690 N.E.2d Roche v. counsel; trial the same as for counsel is 1997). ap is, must show the defendant perfor sentencing, at his note that counsel was deficient pellate alsoWe re high deficiency standard resulted on the that the counsel focused mance and overriding jury's recommen N.E.2d at Ben-Yisrayl, 729 quired prejudice. argued death. Counsel for this against claims dation assistance 106. Ineffective met, into fall thus the generally proceedings level of had not been standard jury's recom override court could not (1) of access denial categories: three basic Clearly, this is R. at 5820-37. mendation. (8) issues; appeal; waiver to an merely consid Bieghler v. where counsel well. not a case present issues failure to mere sentencing proceedings (Ind.1998). ered 188, State, 193-95 690 Averhart trial. See to the postscript are Saylor's claims exception, With one (find (Ind.1993) 924, 930 is, That category.16 the second based on coun where representation ing ineffective failed to appellate counsel Saylor argues merey of the client on the threw his sel have claims that should a number of raise report pre-sentence relied on the court and raised. been evidence). Counsel mitigating produce performance deficient finding A and ar evidence additional presented both only category of issues" Thus, in the "waiver per counsels' to the court. gument court deter- reviewing occurs when to a conclusion not lead us formance does directly case that Supreme Court Saylor States whether mitigating factor as a cussed on counsel advanced contrary position non-nurturing environment. in a was raised Alabama, U.S. 5855-57; Harris v. judge appeal. found See Supp. R. at 6. The atR. 130 L.E.d.2d primarily S.Ct applicable mitigator was not suggestion (rejecting defendant's siblings, Saylor's who fact that on the based weight" to the give "great judge must environment, a trial had not in the same were raised However, advice). conduct, appeal from in this previous jury's engaged in criminal conclusion court's present- evidence with the reports conflicted ineffective not render appellate counsel did at 5855-57. ed. R. provides no point, on this assistance does analysis Nor of Harris. coherent conten- based on exception is 16. failure how counsels' demonstrate present explain failed appellate counsel tion that error was an appeal to cite Harris overriding direct adequately court error trial functioning was not that counsel acknowledges so serious He jury's recommendation. Amend appeal but guaranteed the Sixth on direct this issue as counsеl counsel raised Strickland, 104 S.Ct. 466 U.S. ment. job because counsel they poor adid contends distinguished a United cited nor neither mines that the omitted issues signifi case, were in a death penalty vietim impact evi- cant, obvious, "clearly stronger than dence only admissible if it is relevant to presented." those Bieghler, 690 N.E.2d at penalty the death aggravating statute's omitted). (quotation This is so be circumstances). and mitigating al-We cause "the decision of what issues to raise lowed parties supplemental to submit is one of important the most strategic deci briefing after remand and resentencing. sions to by appellate be made counsel." Thereafter, the trial court issued a new omitted). Id. at (quotation As we sentencing order again once imposing the noted Bieghler, experienced appellate death penalty. emphasize advocates importance "'the of winnowing out arguments weaker on ap 1. impact Victim evidence peal and focusing on one central if issue possible, or at most a key few issues.'" original The sentencing in order Id. at Barnes, 193-94 (quoting Jones v. cluded consideration of the impact Van- 745, 751-52, U.S. 103 S.Ct. 77 Duyn's death had on her family. R. at (1983)). L.Ed.2d 987 5848-49. That precise is the reason this According Saylor, to appellate counsel Court ordered remand and resentencing. rendered ineffective assistance on direct Saylor acknowledges the revised sentenc appeal failing for to raise the following ing order did not include this consider (1) claims: impact use of victim evidence argues, however, ation. He that "[clourts upon (2) remand; resentencing after use cannot always 'unring the bell onee infor upon resentencing Saylor's juvenile ree- mation like that has been heard. Subse ord; (8) allowing resentencing without quent appellate vindication, remand, like Saylor being present; failure pres necessarily does not have ordinary its con ent resentencing; evidence at restrict sequence totally repairing the error." ing cross-examination of certain State wit Br. of Petitioner-Appellant at 80. He nesses; (6) restricting Saylor's right claims appellate counsel should have raised present a defense.17 We address each this issue in supplemental briefing. contention in turn. generally presume We in a Resentencing A. Claims proceeding by bеnch, tried a court claims, Before addressing these pro- we renders its solely decisions on the basis of vide background some information. After relevant probative evidence. Coleman the trial court imposed the penalty death State, (Ind.1990) 558 N.E.2d over jury's contrary recommendation, (rejecting defendant's claim that his consti Saylor appeal. initiated his ap- While the tutional rights were violated a family when peal was pending, this Court entered an member of a provided murder victim vie- order remanding the cause to the trial tim impact testimony at judge court sentenc with instructions to reconsider its ing). case, In this sentencing Saylor has order appeared because it shown trial court that the had trial court improperly upon Indeed, relied did vie- otherwise. impact tim State, evidence. See before the post-conviction Bivins v. Saylor court (Ind.1994) 642 N.E.2d 956-57 (finding presented no point. evidence on this 17. also claims ineffective assistance of ment. We addressed this claim at IIL. infra appellate failing counsel for to address com- heading B.3 under the of ineffective assis- ments the during State made closing argu- tance guilt phase. of counsel at the 641, 648 history. Day v. record juvenile Saylor's Indeed, (Ind.1990). adjudication itself re- upon contends a criminal prove enough may not be erroneously re trial court sentencing, the However, acts committed "the history. appel juvenile record his lied on a criminal his may constitute juvenile assistance ineffective rendered late counsel a sen support enhancement tory raise this failing to appeal on direct added). In this (emphasis tence." Id. pen a death things, Among other issue.18 that a few of case, show the record does defen "[the includes factor alty mitigating were dismissed juvenile offenses history prior significant has no dant disposed of informal one was and at least 85-50-2-9(c)(1). § I.C. conduct." criminal However, also shows the record ly. court not the trial sentencing order In its of acts as in a number Saylor engaged ed: if been crimes would have juvenile that has a defendant, Saylor, Benny Lee Saylor has not by adults.19 committed delinquent be- criminal history of improper court relied that the trial shown many, the Court It take havior. would imposing in sen juvenile record ly on his to de- paragraphs and many pages fashion, to Saylor has fаiled tence. In like of the record prior the criminal lin[elate counsel ren appellate that demonstrate the has examined The Court defendant. failing in to assistance dered ineffective that the and notes report pre-sentence appeal.20 on direct pursue this issue activity and prior criminal defendant years age the of ten dating to behavior resentencing at absence 3. number cireumstance Mitigating old. presented and no evidence prior criminal history of significant [no in this case. apply he was complains not Saylor does conduct] not allowed and thus was present suggest Saylor seems to at 2-8. Supp. R. at present evidence opportunity to for juvenile record any of his use its new sen entered the trial court time That sentencing prohibited. purposes Saylor, appel According to tencing order. Rather, must the court case. is not ineffective assistance late counsel rendered of a delin- the existence rely more than on appeal. on direct this issue raising for not juvenile proceed- quency petition. When was entitled be that he is correct Saylor mere disposition, ends without ing court entered the trial when present alleging delin- was filed petition that a fact 35-38-1-15; § I.C. sentencing order. new prove criminal suffice to does not quency apparently based on age dating of ten is to the court's that the trial Saylor claims 18. also September attempted auto theft in juvenile charge vio- Saylor's past record "reliance on One, However, charge of the Section Sixteen record shows lated Article 1977. Petitioner-Ap- Br. of "informally." Constitution." R. at 350. Indiana disposed of was general providing 80. Other than pellant at Say- authority, inapplicable case citations would have claim also that this We note 20. analysis for this constitutional no provides lor another reason. appeal for direct failed on address it. decline to We therefore claim. entry was that trial court's point of the The history that significant criminal Saylor had a counts of burglary, three They include re- statutory mitigator. Without negated a mischief, theft, trespass and criminal criminal record, sig- Saylor has a juvenile gard to his Saylor was fifteen when in November as well record criminal nificant adult September age; yeаrs conversion conversion, convictions sixteen; several burglary includes conversion age theft, burglary. R. at 351-53. age R. at 350. May seventeen. 1984 at juvenile record to a reference trial court's State, (Ind. nesses, Flowers however, still does not 1981). However, it is not the case that explain he how his cross-examination was present entitled additional impermissibly evidence. limited. This recently Court has determined that It would be appropriate under cir- when a case is remanded for a new sen cumstances to treat this issue as waived. order, (1) tencing the trial court can: issue However, we decline to do so and under- a new sentencing order without taking any take an independent review of the record action; further order additional brief attempt to discern the error that ing on sentencing issue and then issue Saylor now contends has occurred. See a new order holding without a new sen Bieghler, 690 N.E.2d at 195 (noting that tencing hearing; or order a new sen commonly we review portions relevant tencing hearing at which additional factual record, perform separate legal re- submissions are either allowed or disal search, and often decide cases based on lowed and then issue new order based on legal argument reasoning not ad- presentations parties O'Con vanced party). either "[A] less than (Ind. nell v. 952-53 top performance notch does not necessari- 2001). Because would not have ly prevent us from appreciating the full been present entitled to additional evi measure of an appellant's claim, or amount dence even if present he were when the to a breakdown in the process adversarial trial court entered the new sentencing or system our produce just counts der, he has not shown that the issue of his results." (citations, Id. at 195-96 quota- non-presence significant "clearly or tion, omitted). and footnote The record stronger than presented." those shows that in those instances involving VanHorn and members of family, his occurring

B. Error at trial trial court sustained the objection State's Saylor's that question eross-examination 1. Limits on cross-examination exceeded seope of either direct or redi- Saylor contends the trial imper- court rect 3607-09; 4141-48; examination. R. at missibly restricted his efforts eross- 4149-52. respect Herche, With the rec- еxamine VanHorn, State's witnesses ord shows that Saylor posed when hypo- a members of family, VanHorn's and fel- question thetical witness, to the the State low inmate Herche. He tells us nothing objected on grounds that the facts were about how these why claims arose or he not based on evidence in the record. R. at appellate believes counsel rendered inef- 4468-69. fective assistance on appeal direct for not raising Rather, them. says he "rele- right The of cross-examination vant facts in Argu- discussed detail is "one of the fundamental rights of the ment II incorporated are herein." justice Br. criminal system" and essential to a of Petitioner-Appellant at 81. Turning State, fair trial. Reed v. 748 N.E.2d to that Saylor's section of brief is of lit- (Ind.2001) omitted). (quotation How There, help. tle he complaint ever, makes no there are limits in the exercise of concerning the cross-examination of Van- right. A cross-examination question Horn Rather, or Herche. complains he seope exceeds the of direct or redirect about the eross-examination Captain improper examination is may pro and be Thompson and two members of Van- hibited. Ind. 611(b); Evidence Rule Fay Horn's family. See Br. of Petitioner- State, (Ind. son v. 726 N.E.2d Appellant 2000). at 35-40. Even for fashion, these wit- In like hypothetical a ques- At one defense. in his own the stand expert took for reserved tion, generally is which counsel during direct examination point in evidence. to facts witnesses, limited to a Dr. Eric talked if had asked Henson v. yes. replied Counsel (Ind.1989). he Engum, to which family history of "is there then asked aggres trial counsel Finding that The R. at 4614. problems." blackouts each witness sively cross-examined relevancy grounds, objected on prosecutor tes testing their from precluded not were objection. sustained trial court and the court concluded post-conviction timony, the that counsel also shows record Id. The not ineffective "was that counsel Engum, Eric Dr. to the stand called any restrictions regarding issues raising 47836.After a R. at neuropsychologist. Richard his examination on placed the doc- responses, questions series of Horn, Trixie Van Herche, Butch Van history of sub- Saylor's tor testified Clark, Thompson Horn, Mark Nina trial Saylor's own supported stance abuse appeal, In this R. at 921. P-C Hal Wood." from blackouts he suffered testimony that court that thе trial has not shown occur- events not remember thus did objections or on the State's ruling erred 4745- R. at the murder. ring night finding was court's that the anything if there was asked 47. When clearly erroneous. his led to which Saylor's background present Right 2. defense testified the doctor dependency, chemical Saylor suffered history that claim as follows: was a his next there Saylor states R. at family member. from sexual abuse Say- further restricted trial court The object- prosecutor point, At that 4748. a defense. present right lor's judge the trial relevancy grounds, developing from ed prevented defense was ensued jury, substance and a discussion severe theory excused its R. at 4748- any premeditation presence. precluded jury's abuse outside corroborating Say- crime, objec- and from this court sustained The trial Attempts to testimony. returned, phase trial guilt jury lor's tion, and when suf- abuse long-term sexual present disregard jury to court admonished siblings were and his by Saylor fered examination 4752. Direct R. at question. restricted. only minutes with for several continued State, which Saylor by the objection at 81. Petitioner-Appellant minor one Br. authority, further, no at 4752-68. cites R. no sustained. was elaborates voluminous portion of this no and cites com As with assertion. observe support his We

record pursue claim, merely di- he not allowed that he was plaint the cross-examination mer of his brief. lacks portion abuse to another of his substance rects us the issue no little to there, provided testified are professionals we Onee it. Two health claim, abuse for his sexual As point.21 this guidance. argued nor shown Saylor has neither about complaining Saylor surmise We sustaining the trial court erred Saylor shows The record following. a blackout suffered possible that it Engum, the record to Dr. addition 21. In 18, 1992 Kete morning stand Dr. of June early called to the hours also shows in the suffering the disease Cockrell, practice from his physician who limited of him "as a result R. at 4796-97. addictions. R. at dependency." of medicine of chemical things, Cockrell testified Among Dr. other State's relevancy objection. Finally, in ad beyond a 490, reasonable doubt." Id. at dressing appellate ineffective assistance of 120 S.Ct. 2348. counsel, noted, court capital Indiana's sentencing stat appeal "While the was ultimately unsue- provides ute three distinct steps that a cessful, none of the issues now offered as trial court must take in reaching its sen incorrectly omitted clearly are so stronger tencing decision in cases where jury than those raised as to warrant a different has found a defendant guilty of murder Indeed, result. Petitioner doe{s] not even and the State sought penal the death much, allege as let alone offer the required ty. First, the trial court must find that comparative analysis to warrant relief" proved the State beyond a reasonable

P-C R. at 921. agree We post- with the doubt the existence of at least aggra one conviction court. vating circumstance listed in the death

penalty 35-50-2-9()(1). statute. § I.C. VIL. Second, the trial court must find that the aggravating cireumstance or cireumstances Denial Meaningful Appellate Review outweigh any mitigating circumstances. Saylor claims he was denied 35-50-2-9(k)(2). § I.C. Third, before meaningful appellate review on ap direct making its final sentencing determination, peal because this Court failed to review the trial court must jury's consider the adequately the trial judge's override of the § recommendation. 35-50-2-9(e0); I.C. jury's recommendation against death. We Roark v. (Ind. 565, ruled against Saylor on override 1994). Saylor contends that in light of issue in his direct appeal. Saylor, See 686 Apprendi, Indiana's death penalty statute N.E.2d at 87-88. We now revisit this is unconstitutional deprives because it him in light issue of the recent United States right a jury-rather have than a Supreme Court decision in Apprendi v. court-determine the existence of an ag New Jersey, 530 U.S. 120 S.Ct. gravating beyond cireumstance a reason (2000). 147 L.Ed.2d 485 able doubt.

Apprendi, a non-capital case, involved a Arizona, In Walton v. 497 U.S. New Jersey "hate crime" statute that au- 110 S.Ct. 111 L.Ed.2d 511 thorized a trial court to increase the sen- (1990), the United Supreme States Court tencing range for a crime when the court addressed a sentencing scheme similar to found, by a preponderance evidence, Arizona, Indiana's. after a jury finds a that the purpose defendant's in committing defendant guilty of murder, first-degree the crime was to intimidate an individual the trial court alone conducts a sentencing or a group race, color, because of gender, hearing to determine whether the sentence handicap, religion, orientation, sexual should be death or imprisonment. life Id. ethnicity. 468-69, Id. at 120 643, S.Ct. 2348. at 110 S.Ct. 3047. During the course Finding this statute unconstitutional under of the hearing, the cоurt determines the the Fourteenth Amendment's Due Process existence any of statutory aggravating or Clause, the United Supreme States Court mitigating circumstances. Id. The court announced general can impose a sentence of death only if it the ‍‌‌​‌‌‌​​​‌​‌‌​‌​‌​​​​‌‌‌‌‌‌​‌‌​‌‌‌​‌‌‌‌​‌​‌​​‌‌‌‍rule that "[other than the fact prior conviction, of a any fact finds that one aggravating cireumstance that increases penalty the for a crime be- exists and that there are no mitigating yond prescribed the statutory maximum circumstances sufficiently substantial must be submitted a jury, proved leniency. 644, merit Id. at 110 S.Ct. 3047.

563 Felton, v. Agostini law.22 See good still sentencing scheme capital Finding this 1997, 188 208, 287, 117 S.Ct. 521 U.S. Supreme constitutional, States the United (1997) (directing lower federal 391 it is well settled that L.Ed.2d that explained Court prerog this Court cireum- aggravating "leave] courts to the existence decisions.") own eligible overruling its defendant a ative that renders stance omitted). that conclude determined We may be (quotation penalty the death for Walton, Apprendi-based light of jury. Id. at 647- than a rather judge aby Unit, stat penalty Indiana's death challenge to Apprendi, 48, 8047. 110 S.Ct. must fail. ute not was careful Court Supreme States ed explained: The Court to overrule Walton. Walton, Saylor's from Apart con- previouly Finally, this Court reason. for another challenge fails also that argument rejected sidered in dictates, that "[Any fact Apprendi today decision our guiding principles beyond the a crime penalty for creases sentencing capital state invalid render be must statutory maximum prescribed jury judges, after requiring schemes beyond jury, proved to a submitted of a guilty a defendant holding verdict at 530 U.S. Apprendi, reasonable doubt." crime, specific aggrava- find capital Apprendi does 490, 2848. 120 S.Ct. a sentence imposing before ting factors a reason beyond find require that Arizona, U.S. [497 v. Walton of death. to sentenc related every fact doubt able 3047, 647-49, 111 L.Ed.2d 639, 110 S.Ct. only that Rather, requires Apprendi ing. (1990).] 511 for a penalty increase facts that those maximum be 496-97, prescribed 120 S.Ct. beyond at U.S. crime Apprendi, As the doubt. a reasonable beyond proved explained: Court four majority opinion, Criticizing ... nothing that be clear should We Apprendi that insisted justices in dissent for impermissible it is suggests 538, Walton, at id. effectively overruled discretion-taking judges to exercise sepa in a 2848; justice, and one 120 S.Ct. factors relat- variоus into consideration opinion, declared concurring rate im- and offender-in to offense ing both "another be re-examined could Walton pre- range within judgment posing any 528, 2348. In 120 S.Ct. day," id. noted have often We by statute. scribed may raise doubt event, Apprendi although long country have in this Walton, judges validity continued about this nature discretion overruled, exercised Walton expressly it is until may an be not one Walton "is juris rules expressed those view 22. This is filed, court."), cert. See, petition by this swered issue. addressed the for have dictions that --- 4, 2002) (No. -- (U.S. 001- Jan. Promise, U.S.L.W. F.3d v. eg., United States 267, 25 P.3d 7837); Ring, 200 Ariz. Cir.2001) Ap- Arizona (4th (holding that whether Apprendi did (2001) (finding that "for the a matter Walton is prendi overrules - - ), U.S. granted, Court"), filed, cert. Walton petition cert. not overrule Supreme --, U.S.L.W,. -- L.E.d.2d 20, 2001) (No. 122 S.Ct (U.S. 01- Sept. 01-488); (No. Illinois 523, Arave, 3246 U.S.L.W. 542 6398); 236 F.3d v. Hoffman 340, Kaczmarek, Ill.Dec. 251 Ill.App.3d 318 v. Cir.2001) ("[WJhile may Apprendi raise (9th ("Thus, (2000) while it Walton, 953, place our N.E.2d 1131 it is not 741 doubt about some greater constitu Apprendi extends appears overruling."), cert. anticipatory engage in than noncapital, rather protections tional - 323, , denied, 151 S.Ct 122 U.S. defendants, endorsed the Court capital, Sansing, (2001); 200 v. 241 L.Ed.2d Arizona posi are in no and we principle, precise this 1118, (2001) (holding 347, 1131 26 P.3d Ariz. here."). guess decision that second tion to Apprendi over- whether question of 564

imposing sentence within statutory lim- § added). 1.C. (emphasis 35-50-2-8 It is in its the individual case. true that person a may be sentenced to only upon death proof beyond a reasonable 481, Id. at 120 (emphasis S.Ct. 2348 omit doubt of the existence of certain statutory ted). aggravating circumstances upon a In Apprendi, the statutory finding that the aggravating circumstance penalty maximum for the crime of which or outweigh cireumstances any mitigating the defendant was years. convicted was ten § circumstances. 1.C. 85-50-2-9(K)(1), (2); A totally separate statute, known as a Roark, 644 N.E.2d at However, when law, "hate crime" provided for an "extend construing statute, all sections of the act ed term" imprisonment when the court should be together. viewed Fuller v. found that the purpose defendant's in com 235, 752 N.E.2d 238 (Ind.Ct.App. mitting the crime was to intimidate an 2001); see Eilers, also State v. individual group or a race, because of col- 969, ("[Sltatutes 970 (Ind.Ct.App.1998) re or, gender, handicap, religion, sexual or lating to the subject same matter should ientation, ethnicity. 468-69, Id. at 120 be together construed produce order to S.Ct. 2848. Unlike the statute under scheme."). statutory harmonious which the defendant was convicted in Ap- fact that death possible is a sentence prendi, sentencing Indiana's statute for where a murder accompanied by one or provides murder the maximum sen statutory more aggravators places death tence is death: prescribed as the statutory maximum. (a) person A who commits murder See Smith, United States v. 554, 228 F.3d shall imprisoned be for a fixed term of (7th Cir.2000) 565 (rejecting defendant's (55) fifty-five years, with not more than Apprendi-based claim where a life sen (10) years ten added for aggravating tence "possible" under federal statute (10) circumstances or not more than ten even though it was not a certainty), peti years subtracted for mitigating cireum- - -- tion filed, cert. (U.S. U.S.L.W. stances; addition, person may be 2001) (No. 16, Jan. 00-8082); see also Illi fined not more than ten thousand dollars Vida, nois v. 554, 323 Ill. 256 IIl. ($10,000). 734, Dec. 614, (2001) 752 (hold 628 (b) Notwithstanding (a), subsection ing that when determining the "prescribed person who was at least sixteen statutory maximum," the court must look years of age at the time the murder was scheme"). the "overall sentencing On may committed be sentenced to: this ground additional we conclude that (1) death; or Saylor has failed to show that Indiana's (2) life imprisonment pa- without death penalty statute is unconstitutional role.... withinthe Apprendi.23 dictates of 23. We passing note in 2000) exception ("[W]e with the are persuaded not Appren- panels of four appellate intermediate di's reach extends capital to state sentencing Illinois, court no state or federal court has judges schemes in which required are to find Apprendi extended capital to its sentencing specific aggravating imposing factors before See, eg., Hoskins, scheme. death.") Arizona sentence of (quotations omitted), cert. 127, 997, Ariz. 14 P.3d denied, 1016-17 n. 2 1004, 531 U.S. 121 S.Ct. (noting Apprendi does apply capital not (2000); Moore, L.E.d.2d 478 Mills v. - schemes), sentencing denied, cert. U.S. (Fla.2001) ("[The So.2d plain lan ---, guage Apprendi (2001); S.Ct. 151 L.E.d.2d 294 indicates that the case is Delaware, (Del. Weeks v. 761 A.2d apply intended to capital sentencing

565 and findings court trial elegant more VIL that the recognize reasoning. We legal Bias Court Post-Conviction prop- is moving keep the docket to need error of allegation final his For trial bench. our priority erly high was judge court post-conviction the asserts the reason, prohibit not we do For this rendering the thereby him against biasеd proposed party's adopting of practice to points He unreliable. judgment court's findings. his assertion: of support events two not Thus, do although we at 708-09. the Id. of adoption judge's wholesale the judges to court post-conviction encourage and con- fact findings of proposed State's and conclu findings the adopt wholesale communi- law; parte ex and of clusions court find post-conviction to the decline we party, cation between of either sions handled in who critical The prosecutor that basis. solely and the on judge bias by adopted trial. original findings the whether quiry is See clearly erroneous. are the court re (1), this Court As to item 1208, 1210 State, 701 N.E.2d v. Woods that and held issue this cently addressed fact un findings of (Ind.1998) (accepting party's adopting judge aof practice the erroneous, although clearly they are less in a conclusions findings and proposed deference). no of law give conclusions we prohibit not is proceeding post-conviction findings of pages Here, eighty-six out we 709. As Prowell, at 741 ed. post- conclusions, a trial based discussed: vol forty-four exceeding record conviction to trial court for a uncommon It is not minor inconsis four umes, to Saylor points repro- are verbatim findings enter at presented the evidence between tencies prevail- the by of submissions ductions court. the trial findings of and the trial this state courts of trial The ing party. alleged errone anof instance And in one volume an enormous with faced are In wrong.24 simply is finding, Saylor ous law clerks have the few cases not demonstrated event, any available be that would resources other point. on this based bias help craft to world perfect a more at body." P-C R. area of wider much 1015, denied, 121 schemes."), U.S. 532 cert. testimony Dr. Clark Saylor points 861. (2001); 1752, Missouri 673 L.E.d.2d 149 S.Ct. hearing where he (hold post-conviction gave 778, (Mo.2001) at Black, 792 50 S.W.3d v. certainty with state possible to "it is not capital said apply to not does Apprendi ing that victim were wounds of the stab find that all judges to permit sentencing schemes R. at 3283. P-C person." by one circumstances), inflicted de cert. aggravating certain trial, However, question responding 1121, at -- --, 151 nied, S.Ct 122 U.S. whether as to opinion Gol he had (2002); whether Carolina North 1014 L.Ed.2d assailants, Dr. Clark 168, or more was one there S.E.2d N.C. phin, 352 was one there apply "[mly opinion Apprendi doеs (2000) (holding testified why, he schemes), asked de When cert. 4550. sentencing R. at capital assailant." state all testified, injuries are "Because nied, S.Ct. U.S. of the area relatively same in the grouped (2001). L.Ed.2d seen I have cases that rare body.... those assail- than one more been there has where following challenges the he Specifically, over ant, generally distributed injuries are opinion that was finding: "Dr. Clark body I see than area wider a much assailant, because only one there at 4550-51. R. here." area of in one grouped were wounds testimony contrary assailant, bound was not court one than is more there body; where hearing. provided over generally distributed are wounds 566 Concerning the parte ex communi might reasonably questioned...." be cation, the facts are these. William Lawl 3(E). Jud.Canon The test then is whether

er was the prosecutor former for Madison an objective person, knowledgeable of all County and prosecuted had Saylor at trial. the cireumstances, would have a reason days Several after the conclusion of the able basis for doubting the judge's impar hearing Saylor's petition post-con tiality. James, 716 940; N.E.2d at Ed relief, viction Lawler present wards, 694 710; N.E.2d at Tyson, 622 Madison County and, Courthouse as was N.E.2d at Here, 459. the test is not met. custom, his visited the Cireuit Court to say The facts and cireumstances are signifi hello to personnel court including Judge cantly different from those in which there Spencer, Special Judge appointed to is a reasonable basis for doubting the preside over hearing. judge's impartiality. Tyson, 622 Cf. 4754, P-C R. at there, While Lawl N.E.2d at 459-60 (finding a reasonable er and Judge Spencer engaged in "small basis where the judge's wife advised an talk" lasting no more than three to five attorney on how to obtain a better result minutes that included a discussion about for his client appearing before the judge); the Shrine Club and price of Vidalia State, Bell v. 655 129, (Ind.Ct. N.E.2d 182 onions. P-C R. at 4761-63. In the course App.1995) (finding a reasonable basis of that conversation case was where the judge made no effort explain mentioned in general terms, with Judge the nature of his parte ex communication Spencer making "one or two brief with defendant's co-conspirator or to as remarks about the difficulty in cases where sure defendant that private meeting in you have to decide if a person lives or wаy no impacted case); his In re Guard dies." P-C R. at 4780. Judge Spencer ianship Garrard, 624 68, N.E.2d 70 later disclosed the conversation to ap (Ind.Ct.App.1993) (finding a reasonable ba propriate authorities. P-C R. at 4781-82. sis where the court parte met ex with an After Saylor's counsel learned of the meet expert witness in an attempt to settle the ing, he filed a motion for recusal. After a matter more quickly). We conclude that hearing, the motion was denied. Saylor's claim judicial bias fails. presumes The law that a judge Conclusion is unbiased and unprejudiced. James v. Applying our standard of State, review in an 716 N.E.2d 940 (Ind.1999); In appeal from a negative judgment in a Edwards, post- re (Ind. N.E.2d conviction proceeding, we find that 1998); the evi- State, Smith v. dence does not unmistakably unerr- (Ind.1989). However, prac Indiana ingly lead to a conclusion contrary to tice has always leaned toward recusal post conviction court's decision. We where there- reasonable questions about impar fore affirm post-conviction tiality court's deni- Tyson exist. al petition for post-conviction (Ind.1993). Indiana's Code of Ju relief. dicial provides, Conduct "A judge shall not initiate, permit, or parte consider ex com SHEPARD,C.J., and DICKSON,J., munications." except in limited cireum- concur. stances. Ind. Judicial Conduct Canon 3(B)(8). It provides, further "A judge BOEHM, J., except concurs as to Part shall disqualify himself or pro herself in a VI, on which he concurs in result with ceeding in which the judge's impartiality opinion. death state's that appeal direct held on to except as

SULLIVAN, J., concurs holding in subsequent the despite opinion. penalty with he dissents VI, which on Part course, prin- the is, of Walton Apprendi. con- Justice, concurring BOEHM, on majority's views for the support cipal Part VL. toas curring in result of certiorari grant the Despite this issue. as prediction majority's the I find Ring, in penal- death Indiana's may describe One case to be in that likely result the crime to separate creating as ty statute Ring until thing is certain: One simply plausible. de- as or elements additional with constitu- decided, in sen- of federal issue this circumstances is aggravating seribing However, ex- as unresolved. the maxi- law is tional carries which a crime tencing for of the resolution below, whatever seems plained This debate of death. penalty mum I be- proposition, semantics, general sub- not issue as this of one me to be to the not violate does Saylor's sentence lieve sen- bottom, cannot be one At stance. the States. unless the United of in Indiana Constitution to death tenced cireumstances under is committed crime is- debatable raises a second case This "eligibility" listed of the one include that decided, Say- Apprendi Before sue. rea- result, Sullivan's Justice As a factors. appeal, his direct sentencing, trial and lor's seems Apprendi of logic to the soning as all con- were for certiorari petition and his least, Justice At the me. to persuasive Ap- that if it is determined Even cluded. O'Con- dissent, echoing Justice Sullivan's authority of future the invalidates prendi Jersey, New v. Apprendi in dissent nor's defen- to sentence judges trial Indiana 2348, 147 528, 466, 120 S.Ct. 530 U.S. jury's recom- against death to dants substantial (2000), very raises 485 L.Ed.2d Ap- that all clear mendation, not at it is that decision of application as to issues Saylor's to retroactively applies prendi the United of Court Supreme by the case. statute. penalty death Indiana's to States majori me, as both to not clear It is penalty on death Apprendi of The effect assume, appear Sullivan Justice ty and currently is to Indiana's similar statutes retroactively apply would Apprendi Supreme Court in consideration under doe- rule" the "new Under case. Saylor's Ring, v. Arizona States of the United Lane, 489 v. Teague announced trine (2001), cert. 1139 267, 25 P.3d Ariz. 200 334 1060, L.Ed.2d 103 288, 109 S.Ct. U.S. -- 865, 151 --, 122 S.Ct. U.S. granted, habeas initial federal (1989), applied as 2002). Ring, on (Jan. 11, 738 L.Ed.2d 1 Dan adopted corpus proceedings Arizona, 497 v. of Walton authority (Ind.1990), for 487 N.E.2d 3047, 511 561 111 L.Ed.2d iels v. 639, 110 S.Ct. U.S. relief, con "a new postconviction Indiana up- Arizona of Court (1990), Supreme (10th States, Cir. F.3d retroactively United in a applies a new rule When retroactivity de ("[It 2001) subject of is clear is proceeding habeas federal habeas successive second for termination on depending may differ debate some Supreme wholly belongs applications See petition. first prisoner's it is whether proceedings Court."). Retroactivity in federal Sanders, 146 n. 247 F.3d v. States United applica no federal law an issue is Cir.2001) lower ("[It (4th possible is postconviction review Court's this tion to retroactive rules new can declare courts Mohler, v. States, State petitions. relief Ashley United petitions."); initial hearing ("State (Ind.1998) courts 1129, 1132 Cir.2001) (wording of (7th 266 F.3d to set are free ... review collateral claims for appeals courts "impliеs that statute habeas independent retroactivity rules own their retroactivi- may 'make' courts and district Teague."). Browning v. petitions); on initial ty decision" stitutional rule of procedure criminal element, its finding by a trial judge may generally applicable to those cases on be viewed as not inherently suspect such review, collateral is, those which have that the "fundamental fairness" pro- become final before the new rule was an ceeding is in doubt. Teague, 489 U.S. at nounced." Id. at 488-89. present 109 S.Ct. 1060. appeal is from the denial of petition his All of the foregoing seems to me to be postconviction such, relief. As is a col it trumped by the fact that Saylor was on

lateral review proceeding akin to an initial probation at the time of the crime. That petition for federal writ of habeas corpus. cireumstance seems to put me to Saylor's Id. at 488. Although Indiana is theoreti case within the doctrine Ap- announced in cally free to fail to give retroactive effect prendi that the fact prior of a conviction is to a new federal constitutional govern rule not among the facts that need to be found ing procedure by denying postconvic its jury. the Apprendi, 530 466, 490, U.S. tion procedure relief to those who seek to 120 S.Ct. ("Other 147 L.E.d.2d 485 rule, invoke a new I can see no reason why than the fact of prior conviction, any fact we should choose to do only so. The effect that increases the penalty for a crime be of such a refusal would be to force to yond prescribed the statutory maximum federal habeas corpus proceedings a claim must be submitted to a jury, proved and that we recognize to be valid. So as a beyond doubt."). a reasonable Status as a practical matter, I regard would the status parolee probationer or seems to me to be of Apprendi Teague under and Damiels to qualitatively the same as prior conviction be governed also by the ultimate resolu for these purposes. Both are established tion of the retroactivity issue under federal by judicial records require and none of the law. fact-finding expect we of jury. the One of the eligibility factors

For a the new State alleged, constitutional and rule of criminal the found, trial court procedure Saylor's to apply having retrоactively on collat committed the review, eral murder probation while on that rule must either place previous for a burglary. Accordingly, certain kinds of I conduct "beyond pow Saylor's believe sentencing er does not impli of the criminal law-making authority to cate Apprendi whether or not proscribe" that holding require the observance of applies retroactively. Brannigan v. procedures those Unit "implicit in concept States, ed (7th 249 F.3d Cir.2001) of ordered liberty." Teague, 489 U.S. at ("[Wlhen an argument invoking Apprendi 109 S.Ct. 1060. At least five Cireuit would fail even if that case turns out Courts to be Appeal have examined the issue fully retroactive, deny we it on the merits Apprendi whether applies retroactively in order to forestall a further round of petitions initial for habeas corpus. All litigation if the Supreme Court five later have said no. See United States v. should decide in favor of Sanders, (4th 247 F.3d 139 retroactivity."). Cir.2001); United Moss, States v. (8th 252 F.3d 993 For the foregoing reasons, I concur in Cir.2001); Smith, Jones v. 231 F.3d 1227 result as to Part VI of the majority opin (9th Cir.2000); United ion. I concur in the remaining portions of Aguirre, States v. (10th 2002 WL 188972 7, 2002); Cir. Feb. opinion.

McCoy v. States, United 266 F.3d 1245

(1ith SULLIVAN, Cir.2001). Justice, Judges routinely make concurring part in and dissenting in part. findings incident to eriminal proceedings, and particularly incident to sentencing. agree I with the majority's analysis and Even if the eligibility factor is viewed as conclusion is not entitled to recommendation, judge sentencing no conviction his from relief the determination makes cases however, its in certain with disagree, I murder. for That is jury.4 Indiana reserves Apprendi conclusion analysis case. in sentencing judge scheme did what murder capital require with respects in all complies Ap-prendi recent Court's Supreme

ments I most I believe sion.1 deci Indiana's why I believe explain To does statute penalty cases, death our sentencing murder capital (unique) ma contrary to But Apprendi. violate I Apprendi, part violates scheme begin cases in certain view, I believe jority's and, partic- statute of our a review with either recommends in which "aggra- functions ular, distinet the two sentencing rec no or makes years term it. within circumstances" vating nevertheless judge ommendation death, re the defendant sentences A met and are not Apprendi of quirements capital unconstitutional. has divided therefore Supreme is Court sentence stage "eligibility" stages: a сase. is such into two cases a to be is found the defendant in which In is this.2 my argument summary, death-eligible the narrowed of member Jer cases, v. New Apprendi penalty death stage in which class; "selection" and a to deter judge a "permit[ ] not sey does is de sentence defendant's death-eligible makes which a factor of the existence ‍‌‌​‌‌‌​​​‌​‌‌​‌​‌​​​​‌‌‌‌‌‌​‌‌​‌‌‌​‌‌‌‌​‌​‌​​‌‌‌‍mine v. Calif Tuilaepa generally See termined. rather, jury offense;" a capital a a crime 2630, 129 967, S.Ct. 114 512 U.S. ornia, "of all the existence determine must 462 (1994); Stephens, v. Zant 750 as its L.Ed.2d carries which an offense of elements 2733, 235 L.Ed.2d 77 862, 103 S.Ct. U.S. of sentence penalty maximum 3 153, 96 428 U.S. (1983); Georgia, Gregg v. im in Indiana judge ..." When death. (1976); Nina 2909, 859 49 L.Ed.2d S.Ct. has jury where sentence a death poses Shatz, Cases F. & Steven Rivkind made or against death recommended judge applies where analysis same 2. This of purposes majority, I assume Like the 1. parole not- life without of a sentence holding Apprendi imposes is opinion that the this of a withstanding jury are recommendation There Saylor's case. retroactive addressing cases sentencing recom- federal of growing number no years or of term applied opinion, is to be Apprendi simplify whether this the issue -Inorder mendation. See cases. habeas retroactively pa- federal life without to the references I will omit 139, Sanders, 146 necessary 247 F.3d v. where States except United scenario role - -, denied, S.Ct. Cir.) 122 (4th U.S. in- cert precedents Indiana applicable where ("neither 573, 445 L.E.d.2d 151 parole rather without life sentences volve circuits any sister of our nor Supreme Court death. than retroactively appli Apprendi have held attack.") district Several on collateral cable 147 2348, 120 S.Ct. 497, 466, U.S. 3. 530 apply to does Apprendi held have courts (internal marks quotation 435 L.Ed.2d v. United Levan See corpus petitions. habeas omitted). and citation (E.D.Pa. States, 275-76 F.Supp.2d 128 However, cases). question 2001) (listing matter argument as a a similar have made I retroactively for applies Apprendi of whether in another in dissent statutory construction ques is a review collateral federal, of state purposes State, 142 v. case. Farber state, generally See law. tion J., dissenting). (Sullivan, (Ind.2000) (Ind.1998) Mohler, 694 N.E.2d v. State (discussing Daniels (Ind.1990)).

Materials on the Death Penalty 135 fendant is then eligible for a death sen (2001). tence; Supreme Court's "eligibility stage" is finished.

Our Legislature has established the crime of § murder Ind.Codе 85-42-1-1. Under the statute, Indiana the "selec- As in all criminal prosecutions, a defendant stage" tion requires weighing the aggrava- accused of murder is entitled to a trial by ting cireumstance or cireumstances with Jury in which the State is required to any mitigating cireumstances. A death prove beyond a reasonable doubt each of may sentence be imposed if the mitigating the elements of the crime. U.S. Const. cireumstances do not outweigh aggra- XIV; amends. VI & Apprendi, 530 U.S. at vating cireumstance or cireumstances. 476-77, 120 S.Ct. 2348 (quoting United 35-50-2-9(k)(2) § (1998). Ind.Code Gaudin, States v. 506, 510, 515 U.S. Set forth schematically,6 the imposition S.Ct. (1995)). 132 L.Ed.2d 444 of a death sentence under the Indiana However, a defendant convicted of mur capital murder and sentencing regime re der under § Ind.Code 35-42-1-1 is not quires the following steps: three eligible for a sentence of death. As Fur (1): Step A finding that the State has man v. Georgia, 408 U.S. S.Ct. proved beyond a reasonable doubt the 2726, 33 (1972), L.E.d.2d 346 suggested, elements of the crime of murder set and Gregg, and companion its cases made forth in § Ind.Code 35-42-1-1. clear, for capital sentencing scheme to be (2): Step A finding that the State has constitutional, "narrow|[ the scheme must ] proved beyond a reasonable doubt one the persons class of convicted of murder or more of the death eligibility factors who are eligible for the death penalty." set forth in 35-50-2-9(b). § Ind.Code Phelps, v. 231, 244, 484 U.S. Lowenfield These first steps two comprise the Su- 546, 108 S.Ct. (1988), 98 L.Ed.2d 568 reh'g preme Court's "eligibility stage." denied, 944, 485 U.S. 1126, 108 S.Ct. (8): Step A finding that any mitigat- (1988) L.Ed.2d 286 (citing Stephens, 462 ing circumstances that exist are out- 2733). U.S. at 108 S.Ct. Our Legisla weighed by the aggravating cireum- ture has provided this constitutionally- stances or circumstances. Ind.Code mandated "narrowing" in § Ind.Code 35- 85-50-2-9(k)(2) § (1998). This third 50-2-9. A defendant guilty found of mur step comprises the Supreme Court's "se- der under § Ind.Code 35-42-1-1 is not lection stage." eligible for a death sentence unless the proves State beyond a reasonable doubt There is dispute no but that the finding one or more of the factors set forth in in step must be made a jury. And 85-50-2-9(b)5 § Ind.Code If a finding whatever it may say (2) (to step about be that one or more of the factors set forth in discussed at length ), Walton v. Ari infra 35-50-2-9(b) § Ind.Code made, is zona, the de 497 U.S. 110 S.Ct. 5. The eligibility number of factors sent forth 6. Compare my schematic "pyramid" with the 35-50-2-9(b) in § Ind.Code many. are The with planes three Georgia that Supreme ones with Saylor which charged were: Court used analogy as an for its capital state's that had intentionally killed the victim sentencing scheme in responding to the Su while attempting to robbery, commit a § 35- preme Court's question certified in Zant v. 50-2-9(b)(1)(G), and that at the time the mur- Stephens, 862, 871, U.S. 103 S.Ct. committed, der was probation was on (1983). 77 L.Ed.2d 235 after receiving a sentence burglary, § for 35- 50-2-9(b)(9)(C). C not jury is (1990), that holds L.Ed.2d (3). step in finding make required that out accurately points majority Walton discusses Apprendi in majority I differ majority Where in which Arizona, case penalty a death v. find- that the requires Apprendi whether capi- Arizona's upheld Court Supreme I jury. by a made be step ing of which under sentencing scheme tal requires. so Apprendi believe aggravating specific finds jury, judge, sentence. a death imposing before factors B I-B, in the Part alluded For reasons two make need to I proceeding, Before majority with disagree I swpra, in steps three about points additional authority for constitutes discussion this sentencing scheme. murder capital our sentencing capital Indiana's holding entirely distinct two First, are the there re- in all Apprendi under is valid scheme cir- "aggravating the term functions under- an why requires explain To spects. stat- Indiana our under plays cumstance" the discussion context standing of the cireumstance" "aggravating The term ute. a review as as well Apprendi in Walton in the weighed are factors is used discussion. the entire (8). It is step in sentencing determination says, involved majority as Apprendi, death for the used that is term also pos jury of by a guilty found a defendant (2). distinc- This step factors eligibility New Under firearm. illegal sessing an under- view, important is, my tion was im law, sentence additional Jersey said, and didn't Apprendi standing what that the found judge trial after the posed Arizona. Walton say, about acted crime committing the "in defendant may or Apprendi Second, fact that an individual intimidate purpose awith mur capital states' to other apply may not race, because individuals group of (including schemes sentencing der or sexual handicap, religion, color, gender, makes jury the under which schemes those at 468- 530 U.S. ethnicity." ientation judge) to the sentencing recommendation argued The defendant 2348. 69, 120 S.Ct. it or not of whether determinative is not constitution, this additional the under that state's each While Indiana's to applies fac if the imposed only be could sentence mandates the subject to law criminal increase authorizing the determination tuаl fed constitution, principles federal the the by jury made the sentence latitude wide states the give eralism doubt. a reasonable beyond proof basis codes, including criminal constructing their 471, 120 S.Ct. at Id. Whatever schemes. penalty death their the de- with agreed Court Supreme The not have may may or Court Supreme the Process Due the that held fendant penalty death Arizona the about said re- Amendment Fourteenth Ari Clause v. Walton it discussed when scheme prove jury to submit states may quires (and it whatever Apprendi zona (other any fact doubt a reasonable beyond penalty death Arizona the say about conviction) that prior 200 of a Ring, fact v. than the State it decides when scheme beyond a crime penalty the increases (2001), grant cert 267, 1139 25 P.3d Ariz. Id. maximum. statutory U.S, - prescribed 151 --, 122 S.Ct. ed, quoting (citing and 2348 490, 120 S.Ct. necessarily- (2002)) does 738 L.Ed.2d 227, 252- States, 526 U.S. v. United Jones not-apply does argue I will (1999)). 811 143 L.Ed.2d 53, 119 S.Ct. scheme. penalty death Indiana 572 dissent, Justice argued O'Connor plained, the capital cases are not con-

such holding was inconsistent with Walton trolling: v. case, Arizona. In that the defendant cited, "Neither the cases any nor oth- had challenged the Arizona capital sen- case, er permits a judge to determine tencing scheme, contending that the Con- the existence of a factor which makes stitution required that jury, and not a crime capital offense. What the judge, make the factual determination cited that, cases hold is jury onee a of the existence or nonexistence of the has found the defendant guilty of all statutory aggravating factors. The Su- the elements of an offense which car- preme Court had rejected his claim. ries as its maximum penalty the sen- death, tence of it may be left to

Arguing that Walton refuted the rule judge to decide whether that maxi- announced in Apprendi, Justice O'Connor mum penalty, rather than a lesser wrote: one, ought imposed.... be law, Under Arizona the fact that a statu- person who is charged with actions tory aggravating cireumstance exists in " that expose him to the death penalty the defendant's case 'increases the has an absolute entitlement jury maximum penalty for [the] crime'" of trial on all the elements of the first-degree murder to death. If the charge." judge does not find the existence of a statutory Apprendi, aggravating cireumstance, 496-97, U.S. at 120 S.Ct. (internal punishment maximum omitted; citations quoting authorized jury's guilty verdict is life imprisonment. Almendarez-Torres States, United Thus, 224, 257, U.S. using n. terminology S.Ct. L.Ed.2d (Scalia, Court J., itself employs to dissenting)). describe the con- stitutional fault in the New Jersey sen- I acknowledge that these two passages tencing presented here, scheme under have something of the character of ships law, Arizona judge's finding that a passing in the night. The Apprendi ma- statutory aggravating jority says that Walton is not controlling cireumstance ex- ists 'exposes the criminal defendant to a because it does not allow "a judge to deter- penalty exceeding the maximum he mine the existence of a factor which makes would punished receive if according to a capital crime offense." Id. But Justice the facts reflected in verdict O'Connor says is exactly what alone." permits Walton when it allows "a defen- Apprendi, dant U.S. at 120 S.Ct. convicted of first-degree murder [to] be sentenced to only (O'Connor, death J., (internal the judge dissenting) cita if omitted). finds the tions existence of To a statutory aggrava- Justice O'Connor's ar gument, ting factor." the Id. at majority responded: 120 S.Ct. 2348 (O'Connor, J., dissenting).

Finally, this Court has previously con- sidered and rejected argument the that Until the Supreme provides Court fur- principles the guiding our decision today ther guidance on point, this I think the render invalid state capital sentencing majority and dissenting positions can be schemes requiring judges, after a jury reconciled for purposes today in the follow- verdict holding a defendant guilty of a ing way. First, we should recognize that capital crime, to specific find aggrava- the Indiana statute is materially different ting factors before imposing a sentence from that of Arizona. The Indiana statute of death. For reasons we have ex- calls for the jury to be (2); involved in step in Ind. set forth factors eligibility death in Walton issue at statute Arizona the 85-50-2-9(b). the exist- of Some the § point, the toMore Code not. did apparently upon depend factors eligibility ing death in the State upon imposes statute Indiana way particular in a acting the defendant beyond proving (2) of the burden step crime, eg., commit- committing the while one or of existence the doubt reasonable of detonation "by unlawful ting the crime Further- factors. eligibility death more 35-50-2-9(b)(2); commit- § explosive," unani- finding must be more, jury's the the vie- "dismember[ing] by ting the crime the two recall Secоnd, we should mous. committing 35-50-2-9(b)(10); tim," § "aggrava- term the that functions distinct or mutilatat[ing], "burn[ing], the erime in the Indiana plays cireumstance" ting 85-50-2-9(b)(11). vietim," $ tortur[ing] the step in function "eligibility" statute-an (8). to were Legislature step in that Suppose function and a "selection" need not and 85-50-2-9(b) we should summary, a new § to Ind.Code add respect with that operate to factor: eligibility Apprendi death require "hate crime" way same crime committing precisely in in statute to our "the defendant Arizona's, an indi- intimidate respect purpose with operates it acted with that of chosen because Legislature individuals our of group or both because vidual religion, sex- handicap, substantial- color, much more jury race, gender, to involve my hypo- ethnicity." In and because Arizona's than ual orientation ly in ours the State oper- that thetical, further suppose cireumstance" "aggravating the term based in Ari- sentence than a death statute seek differently in our were to ates the defen- is, for in order That factor. this zona's. would the State eligible, death to be dant me way, it seems Proceeding in this "hate crime" this prove required be capital Arizona's how that, of regardless doubt. a reasonable beyond aggravator finding operates, scheme sentencing Ap- that but question any there be Can Indiana scheme step of required to be a determination such requires prendi capital in a finding kind of precisely jury? aby made being contemplates Apprendi case of] "determin[ation jury: a by a made II a crime makes which a factor of existence "all A offense"; a determination capital as carries which an offense elements above, I be- forth set the reasons For sentence penalty its maximum that a requires Apprendi lieve "actions death"; a reasonable a determination beyond determination make a death to the eligi- defendant] expose [a death more one or doubt 120 S.Ct. Id. penalty...." § 85- Ind.Code forth factors set bility citations (internal marks quotation rea- beyond a 50-2-9(b) proven been have omitted). in order State by the doubt sonable to to sentenced be eligible to be

person D However, I believe in Indiana. death statute Indiana the cireumstances in most conclusion of this correctness the I think For mandate. Apprendi the with complies hypo- following by illustrated can be conclusion reason, disagree with I this above, the State after As noted thetical. Barker, No. in State Hawkins (1), Judge of step under proof of its burden has met (Marion Sup.Ct. a reasonable beyond 49GO05-98308-CF-095544 prove then must it grant- interlocutory appeal 2001), Sept. more of one or of existence doubt ed, (Ind. No. 49800-0110-DP-461 Oct. Our provides that, statute upon receipt 2001), that Apprendi renders Ind.Code of jury's recommendation, the judge 35-50-2-9(b) § has final authority as to sentencing. unconstitutional on its face. If the jury recommends to the judge that Following completion (1), of step if defendant be sentenced to death or to life the defendant has been guilty, found Ind. parole, without I believe that sentencing § Code requires 85-50-2-9 jury proceed can in conformity with Apprendi. be (i) purposes reconvened for consider This is jury because the permitted is not ing proof of the existence of one or more of make such a recommendation unless it has the death eligibility factors set forth in first found that the State proved be- 35-50-2-9(b), (ii) § Ind.Code considering yond a reasonable doubt the existence of any whether mitigating cireumstances are one of the eligibility factors set forth in outweighed by the aggravating circum § Ind.Code 85-50-2-9(b), ie., (2). step (ii) stance cireumstances, or consider Therefore, jury when a recommends a sen- ing whether the defendant should be sen tence of death or life parole, without it has death, tenced to parole, life without or by definition predicate made the determi- unanimously to a years. term of Unless nation of death eligibility required by Ap- concludes that the prov State has 7 prendi. en the existence of one or more of the death eligibility factors set forth in Ind. However, in two situations-where § Code 85-50-2-9(b), the proceeding is jury recommends a term years terminated, and the defendant is eligi makes no sentencing recommendation-I ble to be sentenced to death. Because of believe that Apprendi prohibits imposition this, I believe that our statute complies of death or life parole. without This is with Apprendi in all but two limited situa because in these two situations the jury tions-and that even in some of those two need not have found that the State has situations, limited Apprendi is proved satisfied. beyond a reasonable doubt the ex-

istence of one of eligibility factors set forth in § Ind.Code 35-50-2-9(b), i.e., step B (2). After evidence presented has been to a

jury with respect to the three determina- C tions described in previous paragraph, the jury retires for deliberations. Our could, A jury course, unanimously statute provides then that the jury is to find that the proved State has beyond a return to the court with a "recommenda- reasonable doubt the existence of one of tion" as to whether the defendant should the eligibility factors set forth in Ind.Code be sentenced death, pa- life § without 35-50-2-9(b), but nevertheless recom- role, or to a years. term of jury's mend a term years or make no sentenc- recommendation must be unanimous ing recommendation. might This be the so it possible that, in the event of result, irree- for example, because the jury found oncilable disagreement, that the jury will that the mitigating cireumstances were not have no sentencing recommendation at all. outweighed by the aggravating cireum- unanimity This requirement empha- bears unanimity this requirement as to one or more sizing because it differentiates our factors, statute eligibility death I do not believe our from those of "jury other recommendation- statute comply would Apprendi's with man- judicial sentencing" states. Were it not for date. a sought the State Pope, of case. type as such Cases circumstances. or stance asserting parole, life without of sentence Apprendi. violate not would these the defendant that factors: eligibility two present, cases that these difficulty The be- human another intentionally killed had always apparent, it is not course, is that of § 385-30-2- robbery, Ind.Code a during ing years of a term jury recommends the when had the defendant 9(b)(1)(G); that recommendation, sentencing no makes or time, the same at murders two committed death to be the defendant found it whether in- 35-50-2-9(b)(8). had been jury The § that the clear it is Unless or not. eligible to recommend that, in order structed be death to defendant the found has jury re- it was parole, life without of sentence requires Apprendi that I think eligible, the defendant find unanimously to quired itsmet has not the State that find that we the of doubt a reasonable beyond guilty eligibility. as to proof of burden second. the factor eligibility first "and/or" that be- appeal argued defendant D worded factors were eligibility the cause at are that, there I think said Having it alternatively, well as as conjunctively where, even cases types of two least jury the whether know tо impossible of terma jury recommends the though aggrava- charged any unanimously found sentencing recommen- no makes years a reason- beyond proven ting cireumstance jury the that clear sufficiently dation, it is doubt. able eligi- death to be defendant the has found ap- use of "the that 'and/or' heldWe imposed be may therefore death that ble option to the jury the given have pears Apprendi. with consistent less where parole life without recommend D-1 any found jury of the members than all jury the case is where of type such One have been aggravator charged single eli- to death findings as written made has Such doubt. a reasonable beyond proven (2). cases seen have ie., step We gibility, of the mandate contrary to option jury in which County in Marion and, I at N.E.2d statute," Pope, 787 finding before eligibility a written made of mandate contrary to argue, would case in a years of recommending a term the error However, held we Apprendi. parole. life without sought the State which to be it hold I would harmless-and be State, N.E.2d v. Holsinger See as well- purposes Apprendi harmless that such held (Ind.2001). have 'We by its demonstrated jury had because Farber See required. findings are at had found it verdict phase guilt (Ind.2000); at id. State, 729 N.E.2d have factors eligibility one least (listing J., dissenting) (Sullivan, 142, n. 2 doubt: reasonable beyond proven been my would cases). findings such Because two committed had the defendant I problem, Apprendi eliminate view guilt In the time. the same murders in cases required they be direct would unanimously had trial, jury of phase § 85-50-2-9. Ind.Code under proceeding a rea- beyond guilty defendant found D-2 indi- two murders doubt sonable clear sufficiently such, it was As viduals. is where of case type such A second be- unanimously found had trial, phase of guilt in the jury's verdict the existence doubt a reasonable yond finding of death (1), i.e., step constitutes forth set factors eligibility one Pope v. eligibility. 85-50-2-9(b). Id. § Ind.Code denied, this illustrates (Ind.2000), reh'g E The eligibility factors which the State alleged in conclusion, support I of a would death hold that Appren- sentence di were that Saylor does not render had capital Indiana's intentionally mur- killed der and the victim sentencing regime, while attempting Ind.Code to commit a § 35-50-2-9, unconstitutional on robbery, its face. § Ind.Code 35-50-2-9(b)(1)(G), However, I would and that at the Apprendi time the murder was com- hold that does permit not (or sentence of death mitted, ‍‌‌​‌‌‌​​​‌​‌‌​‌​‌​​​​‌‌‌‌‌‌​‌‌​‌‌‌​‌‌‌‌​‌​‌​​‌‌‌‍life Sаylor probation was on after re- parole) without imposed to be ceiving Indiana a sentence for burglary, § 35-50- jury where a recommended a term of 2-9(b)(9)(C). No jury findings of the kind years or has made no sentencing recom- part described in II-D-1 are of record as mendation unless there is a sufficiently to the existence of the aggravating cireum- clear showing that jury the has found stances. unanimously that the State has proved be- As to the category of cases described in

yond a reasonable doubt the existence of part II-D-2, I am unable to conclude from one of eligibility factors set forth in guilt (1)) phase (step of the trial 85-50-2-9(b). § Ind.Code the jury unanimously Saylor convicted of both intentional murder and robbery. The III jury did unanimously find him guilty of The jury in Saylor's case recommended robbery. But the murder charge on which that he be sentenced to a term years, of jury unanimously found him guilty al not to death. Notwithstanding this recom- leged that he "knowingly" killed the vice- mendation, the judge trial imposed a death tim, not that he "intentionally"did so.8 As Saylor sentence. the aggravating cireumstance requires a (Ind.1997). As above, discussed it is finding by the jury of "intentional" killing, my position that Apprendi does permit jury's guilt phase verdict in this case imposition of a death sentence under the did not constitute a finding of the existence Indiana statute unless jury unanimous- of one of the death eligibility factors. ly finds that the State has met its burden of proving the existence of one or As to the other charged more of aggravating cir- the eligibility factors set forth in Ind.Code cumstance, killing while on probation, I am 85-50-2-9(b). § join unable Because jury Justice Boehm's analysis. recom- against mended death here without While may mak- he be correct that Apprendi ing written eligibility findings, and because satisfied with respect to aggravator, this I the case here does not fall within the do cate- not think that making a defendant eligi- cages gories of described in part either II- ble for death on the sole basis of a know- D-1 or part II-D-2 supra, I find the ing sen- killing while probation on "genuinely tence impermissible under Apprendi. narrow[s] class of persons eligible for 8. Count I of the alleged information Say- murder, of intentional it possible is also that it lor "knowingly (R. killled]" victim. found at guilty him only knowing murder. 37.) During closing argument, prosecu- (To extent, this opinion our appeal direct tor defined murder occurring as when "a was incorrect saying jury had рerson 'knowingly intentionally kills anoth- Saylor found guilty of intentional murder. (R. er being." 4941.) human at The trial Saylor, 89.) 686 N.E.2d at The fact that court jury instructed the that murder occurs jury also convicted felony murder person when "a knowingly or intentionally also does not finding constitute a guilt kills (R. another being." human intentional murder since there is no mens rea 5069.) While possible it is that under these requirement felony murder. circumstances the did guilty find 2001, respon- 21, the December wit: on reasonably jus- .... penalty death the of one count of guilty found dent was severe more of a imposition the tiflies] punisha- crime Marijuana, a of Possession compared defendant on the sentence Cireuit in the Gibson felony, ble as murder," Stephens, of guilty found others that the find Accordingly, we Court. required as 877, 103 S.Ct. 462 U.S. of suspension for request Commission's the U.S. Constitution. by law in of practice from respondent Ap- of mandate that find I would finding guilty of notice upon this state find unanimously be- prendi however, provided, granted; should be State that the doubt a reasonable yond sane- the ultimate of that in consideration set factors eligibility of proved one viola- for a appropriate that would be tion 85-50-2-9(b) has not § Ind.Code forth case, we in this charged the one tion as I Accordingly, case. in this met been suspen- lite pendente further that find death. of sentence aside set would (90) days. ninety expire should sion THEREFORE, IS, ORDERED IT Partenheimer, is S. Robert respondent, from the lite pendente suspended hereby state, im- effective in this of law practice expire shall suspension This mediately. be- demonstration absent days, ninety be- continue that it should expiration fore days. youd Robert Scott of the Matter PARTENHEIMER. is directed this Court of The Clerk or certified this Order of notice send No. 26S00-0201-DI-73. his or respondent to the mail registered of Indiana. Supreme Court Supreme Court the Indiana attorney, Commission, all other and to Disciplinary 28, 2002. March Ad- provisions to the pursuant entities UPON 28(8)(d). SUSPENSION OF Disc. R. ORDER mis. OF GUILTY

NOTICE concur. All Justices FINDING Supreme Court Indiana now Comes and, pursuant Commission

Disciplinary Rule Discipline Admission

Ind. Sus- 11.1(a)(2), a Motion files Section Finding, Guilty upon Notice pension PHILLIPS. Nicole C. Matter of In the Robert respondent, requesting 10S00-0112-DI-622. No. immediately sus- Partenheimer, be Seott in this lawof practice from pended of Indiana. Supreme Court Court of this order further pending state 28, 2002. March disci- resulting any final resolution guilty found being to his due action RESPON- plinary THE SUSPENDING ORDER felony. aas punishable a crime OF PRACTICE THE DENT FROM INDIANA IN LAW advised, now Court, duly being this And or- this Court December found On has been respondent finds Phillips, to C. Nicole respondent, felony, to dered as a punishable a crime guilty of

Case Details

Case Name: Saylor v. State

Court Name: Indiana Supreme Court

Date Published: Mar 20, 2002

Citation: 765 N.E.2d 535

Docket Number: 48S00-9712-PD-647

Court Abbreviation: Ind.