*1 GIVAN, C.J., and PIVARNIK and
SHEPARD, JJ., concur.
DICKSON, J., opinion dissents without
on of Issue basis IV. SPRANGER, Appellant
William
(Defendant Below),
v. Indiana, Appellee
STATE (Plaintiff Below).
No. 684S216.
Supreme Court of Indiana.
Oct. *2 Richmond, Milan,
Terrance appel- W. lant.
Linley Pearson, Gen., Atty. E. Joseph N. *3 Stevenson, Deputy Gen., Atty. Indianapo- lis, for appellee.
DICKSON, Justice. Defendant-Appellant Spranger William murder, charged L.C. 35-42-1- § requested pen- 1. The State also the death alty, alleging as the circum- stance that the murder victim was a law acting enforcement officer in the course of 85-50-2-9(b)(6)(i). duty, IC. After a § change of venue from Wayne Noble to County, Wayne jury a Circuit Court con- murder, during viecteddefendant of penalty phase penalty found that the death imposed. judge should be The trial sen- tenced to death. defendant Restated, following issues are raised appeal: on this direct deny- 1. the trial court erred in whether ing requests defendant's several for con- tinuance; deny- 2. whether the trial court erred in ing request defendant's for a list of wit- specifically expected testify; nesses the trial court erred in re- 8. whether sociologist; fusing appoint a defense in 4. whether the trial court erred ad- exhibits; mitting various in 5. whether the trial court erred ad- mitting evidence of crimes committed defendant in the course of events which crime; led to the instant deny- 6. whether the trial court erred ing jury of the crime motions for view demonstration; weapon scene and for a giv- 7. whether the trial court erred in 8; ing its Final Instruction No. was sufficient whether the evidence 8. murder; the verdict of to sustain during 9. the trial court erred whether limiting penalty phase of the trial witness; testimony of a defense May 31, 1, 10. whether 1.0. 85-50-29 fails to was arrested 1983. On June process of law in that it does accord due County public the Noble defender finding aggravat- require that the appointed represent him. On June outweigh mitigating 10, 1988, factors defendant's motion appoint beyond ment of co-counsel was doubt before Following denied. factors a reasonable and, penalty may imposed; the death venue, change Wayne Circuit imposition Court trial 11. whether of the death set for November penalty contrary Thereupon again case is to law. defendant moved for the appointment of co-counsel. On October affirm the conviction and death sen- We appointed the trial court co-counsel to tence. approved investigative assist and funds for During early morning May hours of and secretarial assistance. On October 1983, defendant, old, years then 18 1988, the trial court denied defendant's mo driving one Allen were from Fort continuance, begin tion for and moved the Avilla, Wayne County. Nearby Noble ning day, trial date forward one to October vandalizing observed them an residents *4 again 1988. Defendant moved for con automobile, one called Avilla Town tinuance, claiming the need for additional Marshal William Miner. Marshal Miner investigate prepare. time to scene, apprehended drove to the the two respect With to defendant's claim that struggle A men and called for assistance. the denials of his motions for continuance Snyder quickly between the marshal and deprived trial, disagree. him of a fair we during ensued marshal's service granting of subject continuances is to away revolver was knocked either from his the trial court's sound discretion. Smith v. highway. hand or out of its holster onto the (1985), Ind., 27; State 475 N.E.2d Kimball highway, picked Defendant it crossed (1985), Ind., 982; v. State 474 N.E.2d Rhi up fatally shot Marshal Miner in the (1985), Ind., nehardt v. State Snyder back. Defendant and were even- 89. Our review of the record fails to dis tually arrested. Defendant led officers to any resulting close abuse of discretion or a he small lake where had discarded the representation. inadequacy of flashlight. Snyder revolver and was al- plead guilty involuntary lowed to to man- showing Defendant contends that a of slaughter prison term. De- prejudice a unnecessary when insufficient fendant later claimed that shot right time results a denial of the to However, Marshall Miner. to addition However, persuaded counsel. are not we Snyder's testimony, presented the State ev- that trial court failed to afford ade- by idence of at least four admissions quate time. he, Snyder, defendant that not fired the Finding no abuse of discretion nor denial shot, presented and the State unrefuted trial, rights of to to counsel and fair we do expert bullet, testimony medical that upon not find error this issue. distance, fired from mar- some entered the specific testimony shal's back. We review ISSUE II
in somewhat more detail in our discussion of Issue VIII below. Defendant contends he was denied a by fair trial trial court's denial of de I
ISSUE require fendant's motion to to State emphatically specific contends disclose trial Defendant witness information. fair trial and the Defendant's he was denied both a "Motion to Produce Evidence" effective of counsel because the 8, 1983, requested assistance filed June extensive dis requests covery, including trial for a court refused several the "names and last continuance, timely appoint persons to known and failed addresses all whom the investiga provide prose co-counsel and additional of Indiana intends to use in the State tory personnel. and secretarial Defendant action, cution of this cause of and the persons 8. an description names and last known addresses of exact and designation of each photograph to have to known State Indiana be used as an exhibit, including copy a knowledge pertinent to this cause of action same to be provided to defense counsel if not it has not or who were interviewed but who will already provided. been as witnesses the State of be used response, Indiana herein." The State's entry motion, In its denying the it filed June asserted that had court stated: it determined which individuals would call requests parties The Court cooper- to witnesses, per but submitted list ate and the possible State the extent "may call as sons State witnesses". give some indication as to witnesses response, acknowledged its State actually who will be called so that the incomplete. Responding the list was may prepare defendant for such witness- discovery requests, provid other the State es and also have some idea as to when to copies the defense ed of 26 statements ready present any defense. witnesses, potential and offered to make urged error defendant is that the upon other statements request. available court require trial failed to the State to potential The list of witnesses contained specifically disclose which witnesses the persons. Hardly the names of over 170 calling State would be for trial. Defendant given, majority addresses were but a ruling motion, upon contends by telephone names were followed court had but two choices: either to number. requested discovery, order the grant or to continuance. 26, 1983, By September prosecutor had indicated to counsel for defendant that orders, discovery In cases of violation of *5 approximately the State would call 30 wit- a continuance has proper been held as a However, nesses. the record does not indi- remedy unless the State's action is so mis cate or identity whether not the of these leading or demonstrates such bad faith that
persons had September been disclosed. On necessary pro exelusion of evidence is to 26, 1983, filed request- defendant a motion rights. tect the defendant's fair trial ing transcript hearings a of bail reduction (1982), Ind., Crenshaw v. State 439 N.E.2d September scheduled to occur 29 30. and However, trial 620. court would be Thirty-three witnesses testified at said granted determining discretion in whether hearing, twenty-six of whom were included compliance there has been substantial with original potential in the State's list of wit- (1982), Ind., discovery. Allen v. State 7, 1983, nesses. On October the court N.E.2d 615. granted transcript defendant's motion for a to, find, We are not directed nor do we of proceedings. the bail The record does any transcript in indication that defend- transcripts not reflect when the were re- compel discovery, ant filed a motion to or in by Thursday, ceived defense counsel. On any objected other adequacy manner 27, 1983, October the trial scheduled with response of the State's initial to defend- begin following Monday, to defendant discovery request ant's for identification request filed a "Motion for Specification" regarding po- and information the State's beginning that before 9:00 a.m. on the tential trial witnesses. has Defendant not trial, day of the State be ordered to furnish complained, assert, and does not now following: defense counsel with any discovery the State violated order. He merely contends that the trial court should names, telephone addresses and required discovery. have the additional every of to
numbers
each and
witness
be
cause;
called as such for
trial
in this
granted
are
Trial courts
wide latitude
description
2. an exact
of each and ev-
concerning discovery. Opfer
matters
v.
exhibit,
ery
present
Ind.,
(1985),
706;
and its
location and
State
Kalady
Ind.,
v. State
trial court
will not be over-
sociologist,
of his motion for a
supra; Wagner
Opfer,
turned.
v. State
the defendant submitted a memorandum
(1985),Ind.,
sonable of such must be subject to the discretion of judge. ISSUE III Defendant's contention is tantamount to Defendant contends the trial court's asserting that a trial court should be obli- employ sociologist denial of his motion to gated provide public funds for whatever public expense deprived defendant of a expertise preparation and trial assistance fair trial and effective assistance of coun might requested by capital defendant. requested sel. Defendant's motion the as requests The list of only would be limited private sociologist sistance of a to assist imagination. policy counsel's Such a proof mitigating the evaluation and cir delays guise would invite trial under the penalty phase cumstances death requests, such great would consume a trial, ability defendant's to un evaluate portion public funds. The determi- proceedings derstand the and assist coun nation reasonably necessary as to what is investigation, identify sel in assess must judge. therefore rest with the trial motive, potential bias, prejudice *6 request witnesses, The defendant's was thus evalu- State's and to assist in voir dire. judge light ated here in of the previously granted The trial court had purposes sought, it argu- which was employ defendant's motion for funds to a Haney's article, ment set forth in Professor private granted psychiatrist, and also de- along with the court's awareness of seeking public fendant's motion funds for expertise the other preparation and trial services, employ private a secretarial already granted assistance which had been investigator expert, and ballistic/firearms public expense. defendant at The employ and to counsel. additional record fails to demonstrate abuse of issue, facing Recently a similar discretion the trial court's refusal Ind., Court in 484 v. State Wisehort grant sociologist. defendant's motion for a recognized N.E.2d that an accused is 949 constitutionally public not at ex- entitled ISSUE IV pense expertise desired. Rath- whatever er, the sound discre- the matter is one for Defendant contends the trial court com- upheld admitting tion of the trial court. a mitted error in Wisehart reversible several penalty including photographs conviction and death not- exhibits of the crime murder scene, withstanding photographs victim, the trial court's refusal of the a crowbar appoint sociologist, a there was no where scene, found at and the marshal's ser- showing particular resulting nor need vice revolver because of alterations in its appearance after it was recovered. prejudice.
937
photo
Snyder
3
a
defendant's contention
State's Exhibit was
shot
during
marshal
their
generally showing
struggle.
the crime scene
graph
incident;
Exhibit 4
shortly after the
State's
explained
This Court
in Richardson v.
marshal's
photograph depicting
500;
(1985), Ind.,
State
argues these
body
the seene. Defendant
photographs
Such
are
they
admissible if
photographs
should not have been admitted
provide relevant evidence and their rele-
scene had been
because "items at
is
outweighed by
not
their tenden-
vance
took the
moved"
the officer who
before
cy to
impassion
jury
inflame and
only
photographs
The
evidence
arrived.
against
question
the defendant. The
being
pertinent
"moved" at all
"object"
an
necessarily
balancing
becomes one of
nearby
resident
objection
to this
was that
concerns,
these
and thus the trial court
drainage
pulled the marshal out of the
had
has
in determining
broad discretion
give
attempted to
him assistance.
ditch and
photographs
whether such
should
ad-
3 de
jury
The
was informed
exhibit
(Citations
particular
mitted in a
case.
scene of the crime at the time
picted the
omitted.)
taken,
pre
photograph
at the
argues
Defendant further
the trial court
Photographs
moment of the incident.
cise
admitting
erred in
into evidence
Ex-
State's
compe
of a crime are
depicting the scene
hibit
a crowbar found at the scene.
assisting jurors
in ori
tent and relevant
jury might
Defendant contends the
have
enting
understanding
themselves and
by person assisting
inferred "it was used
evidence,
they
admissible if
are
bewill
killer,
injure
to threaten or
the victim
representation of the
a true and accurate
argument
when
fact it was not." This
things they
portray. Bray
are intended to
entirely speculative, as there was no evi-
(1982), Ind., 430
v. State
N.E.2d
injured by anything
dence the marshal was
easily
4
State's Exhibits 3 and
met this
except the
fatal shot.
crowbar was
test.
found near the second automobile which
defendant and
vandalized. The
argues
Defendant then
the ad
evidence,
presented
Is-
State
discussed in
along
4
mission
State's Exhibit
below,
pair
sue V
used the crow-
photographs
admission of other
of the mar
vandalizing
they
bar
automobiles
body,
presentation
shal's
resulted in the
parked
highway.
found
next to the
cumulative evidence of the victim intended
shooting.
incident led to the
second
only
passions
jury.
to inflame the
of the
agree.
An
is admissible as rele
We do not
exhibit
and material
it bears some rele
vant
when
noted,
photograph
was a
Exhibit
to this defendant and the transaction
vance
body
the marshal's
at the scene.
9
Exhibit
charge
arises.
from which
criminal
photograph
was an identification
(1985), Ind.,
This Court has # [*] [*] upheld L the admission of [*] # Accord, 610, 615-16, Pinkerton v. State 379-80 and 258 Ind. *8 evidence leading of transactions authorities cited. In this case defendant generally jury contends that the had been charged, crime if the even evidence con- scene, they cerned acts outside of the immediate allowed to view the could have offense, time charged pro- gained helpful insight eyewitness- frame of the into the
939
proof
to him on
the issue of eriminal
carefully
testimony. Having
reviewed
es'
noting
intent, or mens rea.
the
testimony, and also
their
refer to a chart
were allowed to
witnesses
pertinent
part
instruction
stated:
scene,
con-
are unable to
depicting the
we
act is done "knowingly"
an
or
[WJhether
mate-
the
would have been
clude that
view
"intentionally" may be
from
inferred
jury. Defendant
rially helpful to the
by
all the
established
facts and cir-
by
trial
the refusal
the
not denied a fair
attending
complained
cumstances
the act
request
jury
for a
view.
of,
bearing upon
or
or
otherwise
related
evidence,
act,
by
to such
as disclosed
the
also contends the trial
Defendant
if the facts and circumstances
refusing to
an
court erred in
allow
in-court
purposes
such an
Men's
are
imference.
re
weapon demonstration
marshal's
acts,
by
often
their
revealed
whether
disagree.
volver. We
"knowingly"
an act is done
or "intention-
protected
a criminal defendant
is
While
ally" may
alleged
be
from the
inferred
being
by
process requirements
the due
itself,
evidence,
act
established
against
to confront the witnesses
allowed
taken into consideration with all of the
present
him and to
material
relevant
surrounding
facts and circumstances
behalf,
on his
from witnesses
own
evidence
act,
related to such
as disclosed
I,
12, 18,
Art.
the trial
see Ind. Const.
§§
evidence, if
jury
should determine
court,
pro
in order to make sure
such an
should be drawn.
inference
manner,
orderly
in an
is
sub
ceeds
(Emphasis supplied.)
ruling
on the
stantial latitude
admissibili Defendant relies on Sandstrom v. Mon
See,
ty
eg.
of evidence.
Connell v. State
(1979),
510,
2450,
442
61
tana
U.S.
99 S.Ct.
Ind.,
701,
(1984),
704. The trial
89,
progeny.
L.Ed.2d
and its
ruling
is
wide discretion in
court
accorded
the trial court instructed
Sandstrom
espe
expert testimony,
on the admission of
jury,
qualifying language,
without
where,
here,
cially
testimony
such
would
presumes
person
law
that a
intends
"[the
tangentially relevant to the material is
be
consequences
voluntary
ordinary
his
See, Dougherty
sues in the case.
v. State
518,
2458,
442
61
acts."
U.S. at
nal Instruction finding intent from vol shifted the of criminal impermissibly struction burden *9 940 acts,
untary
jurors
tapes.
sette
They passed
"were not told that
another automo-
choice,
they
they might
or
just
had a
that
bile
before they
Avilla,
entered
turned
infer
around and came back to
conclusion;
they
only that
they
it. As
were told
start-
515,
presumed
it." 442
99
law
U.S.
ed to vandalize the second
they
automobile
2454,
(emphasis
were
by
observed
S.Ct. at
Sixteen-year-old Hakey argues Tina was awake Defendant that the testimony Snyder at her supporting when defendant and arrived outweighed, conviction is as a 4:00 and 4:80 a.m. after law, residence between by "eyewitness" matter of the testimo- Gaff, testified, ny Egley, killing. from Mr. Mrs. maintained and Mrs. the She and cross-examination, de- vigorous that over Arnett, each of whom testified as to their fendant then stated: conclusion that the shot fired by was the guilty I (Snyder) actually fighting
I shot him
don't feel
because man
but
with Mar-
stepped inside of
somebody
it was like
shal
A
Miner.
careful
of
review
the testi-
me,
stepped
pulled
trigger and then
mony
the
compels rejection
argument.
of this
back out.
upon
Mr. Gaff's attention was riveted
the
fight
Snyder
Miner,
between
and Marshal
presented testimony from
The State also
which was
by
headlights
illuminated
the
of
cellmates,
of
who testi-
three
defendant's
the
barely
Gaff vehicle Mr. Gaff was
defendant,
occasions,
fied
on several
that
person
aware of the existence of the third
repeated essentially
story
had
the same
of
(Spranger) at the scene. Mr. Gaff did not
shooting:
attempted
the marshal
gun,
see a
any
nor did he observe
flash
struggled
his revolver as he
with
draw
when he heard the sound of a shot. His
Snyder
Snyder,
kicked it or otherwise
Snyder
surmise that
shot Marshal Miner
away,
picked
knocked it
defendant then
it
apparently
upon
based
his observation
up and shot Marshal Miner
the back.
being
of the marshal's arm
extended out
argument,
Contrary to defendant's
Snyder
toward
at the time of the shot.
quantity
probative
of
evidence here distin
Egley
Mrs.
observed
events from over
guishes
present
case from Chew v.
away.
two hundred feet
She did not ob-
Ind.,
516;
(1985),
486 N.E.2d
Ritchie
State
any weapon,
at the
of
serve
but
time
(1963),
614, 189
v. State
243 Ind.
N.E.2d
shot, she saw Marshal Miner's hands on
575;
(1958),
v.
238 Ind.
Thomas
State
shoulders,
Snyder's
Snyder having
with
503;
154 N.E.2d
Penn v. State
237
against
one hand
the marshal's chest.
240; and,
Ind.
Zinn v.
watching
Mrs. Arnett was
from a distance
(1981), Ind.App.,
testimony hearsay 386-5-7-4, and the testi- Code prescribed pow- § mony regarding the defendant's own ad- ers of town marshals pow- reference to missions, clearly we conclude that it is suf- granted ers police to other agencies, the jury's ficient to conclusion that new statute referred to town marshals hav- the defendant fired the fatal shot. powers of "other" law enforcement officers. opinion,
In his dissent to this Jus Ind.Code provides perti- 35-88-1-1 tice DeBruler contends because *11 - part: nent murder of Avilla Marshal Miner Town oc Avilla, curred outside the town limits of the A law may arrest a enforcement officer prove ag evidence was insufficient to the person when: gravating circumstance the that victim was (2) probable He has cause to believe a law acting enforcement officer in the person the has committed ... or is duty. course of The dissent would hold committing felony[.] ... a (Emphasis that, pursuit unless in perpetrator of supplied) crime, an "in-town" a town marshal has no provision This analogous to Ind. Code power to arrest outside the town limits. 34-4-82-2 which states: § disagree. We Whenever a law enforcement officer be- A powers town marshal's to arrest are good lieves in person faith that has 86-5-7-4, set forth in Ind. code § committed an infraction or ordinance vio- provides pertinent part in that a marshal: lation, may person.] he detain that powers has the other law of enforce- The latter statute was reviewed the ment in executing the orders of officers Appeals Court of (1985), in State v. Russ legislative body and enforcing [town] Ind.App., 248, 250-51: laws. The deputy: marshal or his The clearly above statute states that a (2) process shall arrest per- without all law may, enforcement officer any sons who commit an offense within his time, person detain a suspected of com- (Emphasis supplied) view[.] mitting an infraction. It does not state predecessor statute, Ind. Code 18-3- § any jurisdictional limitation on the au- 1-82, provided that town marshals "shall thority (in- of law enforcement officers possess all statutory common-law cluding city police officers) (or to detain powers of powers These constables[.]" stop) committing individuals for infrac- 17-4-86-5, were found in Ind. Code § tions. 1852, codification of dating statutes back upheld The decision authority city of a granting "power constables the to act police officer to make a lawful traffic ar- throughout counties, respective their un- city rest outside his limits and inside those specially less restrained law[.]' § nearby city. of a 85-88-1-1, Ind. Code that, dissent enacting contends in section 34-4-82-2, like contains no territorial § 36-5-7-4, legislature intended to re- limitation. authority strict the of town marshals as compared Since the authority defining to their recodified statute "former" un- powers of powers town marshals refers However, der section 18-8-1-82. we find 1979, 17-4-86-5, in of other officers, Ind. Code law defin- enforcement and as § ing constables, powers repealed powers of those officers to arrest are replaced. 1979, not Acts Law given Pub. territorial limitation in sections point, language 35-88-1-1, 1. As of that in 34-4-82-2 and accept § we cannot 18-3-1-82, section referring "statutory the dissent's legisla- contention that powers had constables" no referent be- ture, granting powers town marshals the defining cause the statute power 86-5-7-4, those other officers in section repealed. According- constables had been intended to authority. restrict their With ly, legislature when the thereafter rede- abolished, the office of constable Ind. Code powers fined the of town marshals in Ind. 36-5-7-4, basing town marshals' au- § powers granted correctly law en- thority argues on other Defendant I.C. 35-50-2-9(c)(7), officers, and the forcement has maintained United States Supreme opinions Court's in Eddings power well-established historical of town v. (1982), Oklahoma 455 U.S. 102 S.Ct. enforcement officers to effect arrests law 71 L.Ed.2d and Lockett v. Ohio town for felonies committed outside the 438 U.S. 98 S.Ct. case, In the we within their view. instant (plurality opinion), require L.Ed.2d 973 act- find that Marshal Miner was therefore trial court any mitigat to consider relevant ing duty course of when he was penalty evidence in a death case. How murdered, demon- and thus the evidence ever, the defendant is not carte strated the existence of the opin blanche to introduce evidence charged. factor testimony concerning ion penalty. the death Burger As Chief Justice noted Lockett: ISSUE IX Nothing opinion in this limits the tradi- argues Defendant the death authority exclude, tional court *12 irrelevant, must be vacated because the trial sentence bearing evidence not on the testimony of a defense court limited character, prior record, defendant's or during penalty phase of witness the circumstances of his offense. rulings
trial. The trial court's were cor 604, 2965, 4838 n. U.S. 98 S.Ct. at n. 12, rect. 12, 990, (plurality opin- 57 L.Ed.2d at n. 12 ion). testimony The introduced the defense McClendon, distinguish Other authorities cited are Lloyd
one
who at one time was
inapplicable.
To
able
whatever extent
sentenced to death for murder in
Mex-
New
(1983),
992,
ico
edu-
but later achieved a substantial
v. Ramos
463 U.S.
California
3446,
1171,
103 S.Ct.
77 L.Ed.2d
and
cation,
Bar
pardoned
prior
was
for his
offenses
(1983),
939,
clay v. Florida
463 U.S.
103
and,
trial,
working
as of this
for the
3418,
1134, support
S.Ct.
77 L.Ed.2d
Department of
The trial
Ohio
Corrections.
jury's
proposition
obvious
that the
moral
court refused to allow Mr. McClendon to
judgment
determining
is invoked in
(1)
testify regarding
personal experi-
his
recommendation, they do
death sentence
rehabilitated,
(2)
being
ence of
his knowl-
proffered general testimony
not hold that
edge
experiences
of the
of 12-15 other
concerning
penalty
the death
must be ad
leading
former death row inmates now
sue-
(1983),
mitted.
v. Estelle
463
lives,
(8)
personal
cessful
his
views
Barefoot
880,
3383,
1090,
U.S.
103 S.Ct.
77 L.Ed.2d
concerning
capital
the deterrent effect of
874,
209,
464 U.S.
104 S.Ct.
78
reh. den.
punishment. The trial court
Mr.
did allow
L.Ed.2d
the trial court
testimo
185
allowed
that,
testify
McClendon to
on his
based
ny
psychiatrists,
hypo
from
based on
two
defendant,
personal
brief
he
interview with
questions,
thetical
that
the defendant
hope
had some
could be
defendant
danger
continuing
society
would be
rehabilitated. The trial court otherwise
Supreme
opin
allowed to live.
Court's
proffered testimony
concluded that the
supports
ion
the view that
if the State
Specifically,
irrelevant.
the court held that
presents hypothetically-based psychiatric
testimony regarding
the rehabilitation
dangerousness,
testimony of future
the de
of Mr.
McClendon
other former death
be allowed to counter
fendant should
with
prove
row inmates would not tend to
generally attacking
reliability
evidence
this defendant was amenable to rehabilita-
testimony.
psychiatric
of the
Regarding
opinion
tion.
Mr. McClendon's
capital punish-
Among
of the deterrent effect of
other cases cited
defendant
ment,
trial,
(1979),
Georgia
the court
ruled that
such was a
here or at
Green v.
95,
2150,
policy
legisla-
99
McClendon's
this issue.
testimony
that death row
may
inmates
be rehabilitat-
ISSUE X
ed and his views regarding the deterrent
capital
effect of
punishment
would not
attacking
In
certain instructions
have been
jury's
given
relevant to the
individual
during
penalty
court
in
phase,
finding
ag
defendant raises
familiar chal
standard
the existence of
lenge
procedural aspect
to a
of our death
gravating factors
in
weight
de
that,
He
implicit
penalty statute.
termination
in the requisite bal
contends
process,
jury
matter of due
must find
ancing process. Notwithstanding this
aggravating
circumstances out
distinction,
expressly adopt
we
the lan
weigh mitigating
beyond
cireumstances
guage
quoted
passage
above
from
they
a reasonable doubt before
can recom
Daniels and
that it
hold
is constitutional
penalty.
mend
death
Defendant's ar
require
to not
a finding
aggravating
effect,
gument,
require
in
would
also
outweigh mitigating
factors
cireumstanc-
sentence,
judge,
imposing
trial
to con
beyond
es
(Empha
reasonable doubt.
clude
circumstances out
original.)
sis
weigh
mitigating
beyond
factors
a rea
Moore,
weight words, accorded the them. In other there is no evidence participated equally the two men in the mitigating circumstances is not a Rather, killing. the record shows one of proved beyond 'fact' which must be a doubt, pair gained balancing reasonable but is a control of the service re- process." volver and fired it. For reasons discussed jury properly previously could have and Daniels, Appellant 453 N.E.2d did conclude that this was the defendant. suggests language now this reject argument Snyder's in- We jury dicta because Daniels involved a "proportional." jury trial which the was instructed to volvement this crime was "beyond Supreme follow the a reasonable doubt" The United States Court re- has judge though regard 1. The trial in this case did state in his he did not as a factual find- sentencing ag- ing, memorandum that he found the emphasized compulsion he saw no gravating outweighed mitigat- circumstances apply that standard. doubt, beyond circumstances a reasonable 946
cently
Eighth
held that
Amendment
outweigh the aggravating factors. Cf.,
imposition of the
penalty
forbids
death
on Lowery
(1985), Ind.,
v. State
-
one
felony
who aids and abets a
1214,
in which a
1232,
(1986),
cert. denied
U.S.
-,
1500,
is committed
106 S.Ct.
murder
others
89
but who
(Pren
L.Ed.2d 900
kill, attempt
kill,
does not himself
tice, J.,
(trial
concurring)
court's comments
killing
place
intend that a
take
or that
showed the court did
proffered
not deem
employed. See,
lethal force be
Enmund v.
evidence mitigating, not that
trial court
(1982),
782,
458 U.S.
Florida
102 S.Ct.
failed to
evidence.)
consider such
3368,
1140. Snyder
73 L.Ed.2d
did not
Defendant particularly emphasizes
entertain
intent to kill the marshal or
the trial court's failure to consider his
attempt
to do so. Under Enmund we
youth
factor,
a mitigating
and cites us to
might
been
well have
constrained to vacate
(7th
Dillon
Cir.1984),
v. Duckworth
751
a death sentence on
under the facts
895,
(1985),
F.2d
1108,
cert. denied
471 U.S.
here.
2344,
105 S.Ct.
947
imp
supported by
conclusion is
substantial evi
offender
for which such sentence was
dence,
guilty'
that defendant was
of the
osed.2
acting
murder of a law enforcement officer
Second,
in terms of the factors which
duty.
in the course of
IC.
85-50-2-
weight given
may be considered and the
9(b)(6)().
stage"
Once the "definition
is
guided by
Stephens
them we are
Zant v.
passed,
explained
the Zant court
that "the
2733,
(1983),
862,
462
103 S.Ct.
77
U.S.
require
jury
Constitution does not
[or
235,
subsequently
L.Ed.2d
as
discussed
judge]
ignore
possible aggra
trial
other
(1985), Ind.,
477
applied Davis v. State
vating
process
selecting,
factors
of
-
889,
-,
106
N.E.2d
cert. denied
U.S.
class,
among
from
those defendants
546,
In his review of
S.Ct.
judgment
was not affected
an emotional
that,
although
assessment
defendant was
capable
rehabilitation,
or intoxication. The record
disturbance
he
young
was a
supports
controls,
that
poor
the conclusion
and man with
social
who tended
acting
defendant were
in concert until the
impulsive
extremely
to be
suscep-
was
arrived,
marshal
and that defendant
people
acted
tible to the influence of other
to a
shooting.
extent,
alone in
There is evidence
pathological
though
de- near
again
we
drinking,
fendant had been
but he had
emphasize
the record shows he
not
was
presence
driving
of mind to be
from
by Snyder
Fort
dominated
in this incident. The
Wayne
Avilla,
to
to direct traffic at the
record also included defendant's
state-
scene,
shooting,
to flee after the
to
probation
discuss ments to the
pre-
officer who
brother,
dispose
the incident
his
to
pared
pre-sentence
with
report
he
did
revolver,
flashlight
and service
and to
not
charges,"
jury
"like these
surrounding
"unfair,"
later
recall events
the inci-
and that he would do "whatever
I
Regarding
get
dent.
emotional
distur-
Finally,
can to
out of it."
on at least
bance,
probative
there is no
evidence de-
one occasion defendant
stated to a cell-
suffering
fendant
from a mental or
mate,
referring
to the State Police Officer
emotional disturbance that affected his who had
investigated
the case and arrested
ability to conform his
to
conduct
law.
him,
that defendant
"wished it would have
been Officer Barrett that he'd shot instead
emphasizes
Defendant also
there was no
Thus,
of Bill
regard-
Miner."
the evidence
plan
advance
or scheme
shoot the
mar-
ing capacity
was,
best,
for rehabilitation
significance
shal. The
of this factor
is
inconclusive,
judge properly
and the trial
lessened because the defendant had time to
personal
considered defendant's
lack of
re-
deliberate the act and to consider other
questions
morse as relevant to
options, including
rehabili-
flight from the scene.
dangerousness.
tation and future
particularly argues
Defendant
complains
Defendant further
that the tri-
judge
trial
improperly considered his "si
judge unduly emphasized
al
Marshal Min-
lence,"
crime,
i.e. refusal to admit the
police
er's status as a
officer victim of a
aggravation. He cites
v.
Griffin
Califor
However,
judge correctly
murder.
the trial
(1965),
nia
85
14
U.S.
S.Ct.
persons
observed that many
otherwise will-
L.Ed.2d
reh. denied 381 U.S.
damage property
engage
in vio-
8.Ct.
appropriate particular to the offense and GIVAN, C.J., and PIVARNIK offender. SHEPARD, JJ., concur. age In view of defendant's and lack of DeBRULER, J., concurs and dissents
prior history assumed, criminal we have separate opinion. arguendo, upon our initial review of the record, might the death sentence However, APPENDIX manifestly upon unreasonable.
considering present all the relevant factors record, jury's recommendation COURT'S MEMORANDUM OF carefully judge's prepared
and the trial FINDINGS memorandum, im- we cannot conclude that adjudged has Court the death position penalty of the death in this case imposed in penalty be this cause. The arbitrary capricious, or that no rea- upon Court's determination is based person sonable could find such sentence following findings reasoning appropriate particular offense hereby incorpo- have and are been ordered Accordingly, imposition offender. part judgment rated as of the Court's penalty contrary death this case was not sentencing. to law. Aggravating I. Factor
CONCLUSION Burger's Justice Chief comment A. The evidence establishes and the beyond finds a reasonable doubt that Court "(ilt pain- can never be less than the most *18 any or influence would make admis- of fear gion implicating all the two. at it was the defendant who killed Marshal Miner, the victim in this case. so, (b) likely Or if more he would have 1. contends The defendant that it was Snyder only excluded and included himself. co-defendant, original his Snyder, who did (c) event, any appear And in it would killing. the ordinarily replaced Snyder he would have (a). The co-defendant testified to story, up himself in his not make with a contrary corresponded his and version version. His contention has been that new many to the details of the defendant's ad- victim, only person fought one and shot the killing. Further, that he did the missions namely, Snyder; fought (Snyder) not one many defendant's admissions without (Spranger) and the other shot as has been explanations why as to the ad- reasonable his version of the incident his admission. they missions made and no denial that were Particularly impli- is this true since he first were, fact, made, explained cannot be daugh- cated himself to his brother and the away except on the that it basis was the girlfriend ter of his brother's soon after the addition, killing. defendant who did the In he incident before would have had time presented the defendant has never through entirely think an different ver- Court with his account of what occurred at sion of the incident. killing give the scene of the a basis for B. Evidence the case also establishes determining otherwise. The Court has dis- beyond and the Court finds a reasonable testimony counted the of some witnesses killing doubt that the was deliberate and who testified at the trial who viewed the intentional. In of this conclusion: away incident from several hundred feet they on the the darkness basis that what 1. The nature of the wound and the thought they correspond did not saw angle location and of the wound in the back being the victim's wound from the rear and weapon reflect that the would have been downward. The evidence establishes the pointed and fired from behind and above clearly location and nature the wound the victim. beyond being doubt as reasonable 2. Statements that the defendant has entry back wound with from the back and made as way in which killing exiting path. in the front in a downward accomplished. (1) suggestion There has been the all who heard defendant's admissions were 3. The defendant's comment scene, bastard, lying and had some "I shot get lets motivation to lie-but our [sic] when of here." consideration is to the testimo-
ny defendant, of the brother of the 4. The defendant's statement to his daughter girlfriend, of the brother's and brother it was like stepping someone those who were confined with the defend- inside him doing killing and then ant, likely it is not that all of them were out, stepping back although perhaps in- up motivated to make admissions. tended to reflect some psychologi- kind of addition, the Court observed the witnesses phenomenon, cal there is no basis in the at trial they and finds that in fact were not evidence for such psychological conclu- misstating misrepresenting or the admis- sion. Consequently, the statement tends to sions of the defendant. primarily reflect the deliberateness of the suggestion There has some been act. acting the defendant was out of fear or 5. There is no contention of accident under the Sny- influence of co-defendant suggestion and no in the defendant's ver- der. sion that the act was other than deliberate. (a) However, in additional to Although evidence to he Snyder, blames there is no the contrary to, above referred it does not indication the shooter acted other than de- liberately intentionally. make sense acting that the defendant out weapon, butt of the jumping the officer C. The evidence also establishes and the making one, it exiting two on beyond a Court finds reasonable doubt that scene-would seem more of a reflection of victim, Miner, Marshal was a law en- deficient character than misjudgment acting forcement officer in the line and youth. duty killing. course of at the time of the Youth under these circumstances be- Therefore, abbravating D. [sic] *19 comes almost more than miti- factor, of a law enforcement the murder gating. defendant in the course of officer C. Lack Criminal Record and {sic proven beyond a reasonable duty, has been History Violence aggra- finds that said doubt and the Court positive 1. This is mitigating a proven beyond has been a factor. vating factor reasonable doubt. (a) depreciated, however, It is by the fact age, record, that because of lack of Mitigating II. Factors comparative minor nature of the defend- following by the A. The are contended brought ant's criminal act which the Mar- mitigating factors: defendant to be scene, shal to killing make the even age. 1. Defendant's aggravated more disproportionate lack of record and vio- 2. Defendant's compared when to the risk of the defendant history. lent standpoint from the punishment of eriminal Defendant's state of intoxication at 8. Avoiding he had submitted. the situa- of the incident. the time by killing tion under all circumstances of acting 4. defendant under emo- was substantially case deviates from the stressful situation. tional or response ordinary person in such a engaged The defendant in no ad- 5. situation, even one inclined otherwise to act plan or scheme to kill. vance way. out a criminal subject is to 6. The defendant rehabili- question proper D. There is no mit- tation. igating weight should be when one is is a worthwhile hu- 7. The defendant under the control of alcohol so that it being. man person alcohol and not the a initiates cooperated au- 8. The defendant with violent act. thorities. consumption 1. The fact that there was 9. The co-defendant received judgment, of alcohol which clouded how- disproportionate sentence. ever, proper mitigating is not a factor. regard mitigat- finds The Court Few crimes are committed without some consumption drug. ing factors as follows: of aleohol or other Age A. (a) Here the evidence does not conclusion that the defendant was so drunk certainly youth Defendant's adds 1. The that his act was the result of alcohol as tragedy of this whole affair. opposed to his inclination to act out in can, proper 2. Youth in the cireumstanc- violence. es, mitigating factor. a definite be (1) The defendant was able to function (a) young But for one so to be able before, during, and after the incident. For pick up weapon police and shoot a officer example, vehicle, operated he his motor back; knew; in the an officer whom he although speeds, times at excessive provocation with no other than that that indication without such was erratic or out police existed this case wherein a officer of control. defending himself in a fracas that the provoked by evidence establishes had been (b) He directed traffic at the scene and the defendant and with the numerous alter- passerby indicated to at least one respect flashlight, everything right, thereby diverting natives with to use of a all
least voluntarily he did not surrender him- in diffi- assisting the Marshall them from self, sought ap- but had to be out and culty. prehended. {c) of his sought He the solace brother H. The is a worthwhile in- defendant immediately after the incident and was able dividual and can rehabilitated
to recount the event. together These factors are discussed remembered he (d) occasions On later they fundamentally are related. great detail. the event disclosed 1. The Court does not discount (e) got weapon He rid of the and later being. defendant is worthwhile as a human they led law enforcement where could age prospects At his there are for rehabili- weapon find the in a lake near his where tation. lived. brother mitigating is not a factor
2. Intoxication However, it is difficult to assess a here. defendant's attitude and his likelihood of repeating out, acting his violent when a E. The Acted Under Great Defendant *20 Emotional Stress persists denying defendant in crime when the evidence shows that he committed the 1. The entire situation which culminated crime. in killing provoked by the Marshal's was
the defendant's own conduct. terms, psychological 3. he is an anti- social, impulsive type personality. Experi- killing, already 2. The as act of men- tioned, disproportionate is to the total situ- ence has type shown Court that this ation; personality is change difficult to and to the fact that he killed a law enforce- attempting duty; ment officer to do his guide. fact the law enforcement officer was pattern killing; pattern His in the his defendant; known to the and the fact that strongly in this case is indicative that he
there were other alternatives. The re- necessary will do is what to avoid a diffi- sponse to this situation more reveals defec- situation, cult to whatever costs others. reasonable, tive character than a even officer, probation His comment to the "I youthful reaction to stress. charges. don't like these I think it an F. No Advance Plan or Scheme jury. going unfair I'm I to do whatever it," get perhaps
1. It is true can to out of is defendant did not indicative plan in advance to kill the officer. approach of his to a difficult situation. As disproportion- in this case wherein he acted situation, however, 2. This is not a ately possible to the risk and inconvenience surprised wherein the defendant was law, to himself to avoid to submission course of immediately criminal action and the indication is he will do what is neces- over-reacted. sary when threatened. 8. The defendant had time to think. He personally 5. He has the Court deliberately picked up gun and deliber- little. His demonstration of remorse or ately shot the officer in the back. straightforwardness contriteness or to dis- G. cooperated with au- defendant pel feeling a similar situation such thorities arose, as that in this case he would neces- recognizes The Court that the defendant sarily act out in a different manner has cooperated enforcement officers with law been limited. locating weapon as far as onee he sentencing 6. He has avoided in the apprehended. flight He had taken from phase a detailed account of his version of apprehension the scene to and deten- avoid might the incident so that the Court have tion and evidence would indicate had his not enforcement brother informed law against to basis test his version what other- him, overwhelming of defendant's admissions to the de- wise is evidence to the con- trary. persisted position fendant would not have come At Even if he in his forward.
83. The defendant did not act under sub- it, did co-defendant the defendant stantial domination of or other could have recounted his version in some committing the crime. detail. that he doing The fact avoided so 4. The defendant's capacity appreci- supports further a conclusion posi- that his criminality ate the of his conduct or to tion supportable is not and would not stand conform his requirements conduct to the up if effort present were made to it in substantially the law was not impaired as a detail. disease, defect, result of mental or intox- unwillingness 7. The of the defendant ication. open possible as Court, be with the light of a killing, senseless limits the III. Weighing Aggravating and Miti- ability indulge Court's in a presumption gating Factors young that one so repeat,. would not And it certainly deprives the Court of a humane The Court finds: feeling response to form a basis for a A. The factor-the more merciful light determination in officer, murder of a law enforcement tragic such a result in the total context of deserving special weight in the context the case. If there was open ever need to here only vulnerability because of the honest, up, everything out, and let are, of law enforcement officers who with- this was it. And happen. it did not question, out the front line of defense in I. The Snyder's sentence co-defendant community protecting against crime was disproportionate violence; and also because an attack *21 law,
Under the could not have officer, representative on such an as a of community, is a more direct attack on received the penalty probabili- death in all ty, being man, non-trigger speak, community so to members of the kill- than other nor would the evidence indicate that because, too, he ings, enforcement law encouraged or killing. symbol authority induced the officer is a of With- order. going greater detail, out into in proba- all 1. One who is able to attack such an bility the facts by as disclosed the evidence representative authority officer-a of the would well Snyder's have led to conviction community-represents of the a different pled that which he certainly to and there acting many out level violent than do is sufficient probability to have allowed ordinarily one others. Even bent on com- room for the Prosecutor to have made the batingness in other confrontations will ordi- judgment that the Prosecutor made with narily authority submit to the of the com- regard Snyder. this, Because of the fact munity and the law. the co-defendant received different aggravating especially B. The factor is mitigating treatment is not a factor. too, aggravated, particular in the factual Finally, J. the Court finds that other Perhaps situation in this case. it is the possible mitigating specifically factors appear incident which would least threaten- in applicable (ZC. mentioned statute ing to an officer which increases an offi- 45-50-2-9) although not contended vulnerability. cer's This case an exam- present case, defendant to be in this are ple. may recognized The officer have not established the evidence: ("Hi there, I'm Billy Spranger, defendant me") you appearance
1. The victim know or the of van- participated in, had not dalism, provoked very consented to or serious but not serious on a the defendant's comparative basis, conduct. or the combination in all 2. The participation defendant's probability caused the Marshal to lower his not relatively minor, back, already guard, as his turn and his death fol- indicated above. lowed. cases, Supreme
In recent the Indiana killing C. The senselessness al- age, young had Court decided aggravat- ready eluded to makes the defendant, younger than this of lack of [sic] prior penal- especially aggravating. record not deter the will death factor here ty particular if otherwise the act and the addition, pattern of con- whole In D. circumstances of the case are serious ques- night in on the the defendant duct of disrespect enough. total an attitude tion indicated (the Mus- caring property for lack of part proportionate-dispropor- 2. from incident, only items stolen
tang upon judg- tionate determination rests actually apparently an Mustang but ment of whether the and sense- deliberate get no one could destroy it so that intent to killing less of a law enforcement officer in it, reason other for no from benefit duty the line of under the cireumstances of course, and, destructive) to be than degree put this case is of sufficient it on of the victim person disrespect for total par killings perhaps with other more hei- in this cause. nous in the manner in which the act of factors which mitigating possible The killing out-multiple itself is carried stab- when, in con- in detail been discussed bings example as in have a recent case text, against the weighed are penalty imposed which the death context, to find factor, the Court causes upheld. reasonable doubt beyond a and conclude places This Court the act the context pos- outweighs the aggravating factor plane of this case on that and finds it to be (The use of be- mitigating factors. sible penalty. sufficient the death an to indicate doubt is yond a reasonable will, course, Supreme The Indiana Court although the Court certainty, expression of regard; make the ultimate decision in this judg- weighing and in this does not believe position actually and is in a better to sur- appropriate an this is process mental passed vey all that has before it than is the test). trial court. question remains whether IV. made here determination to be penalty im- any event the death should be cases, focuses, penalty as do all death but posed. many, upon perhaps this one more than *22 A. Contention is made that this sen- necessarily conflict exists in this which tence would generally be disproportionate area: to other penalty death in cases the State of (a) importance is the On one hand we Indiana. place particularly on individual life and Supreme ap- 1. The United States Court recognition young life and our of the frail- by in pears to created decisions have ty of homan nature-there is absolute [sic] years a in last several framework ly question no we are all more deficient permitted are to establish their states than care to admit and the difference we employment of the own standards as to us, of however between best worst penalty aggravating cir- provided death terms, measured in human is miniscule required at a minimum are rea- cumstances when measured on absolute scale. sufficiently pro- sonably prescribed and too, Recognition, given must be that scribed; provided that a state is con- impoverished is human char- however our in similar factual situations em- sistent acter, change, by each of us can if no other penalty; ploying employing the death means, religious by than at least conver- provided legal procedures are and further totally sion. can never be Rehabilitation approach adopted to assure a studied discounted. possible mitigating are wherein all factors arbitrary, capri- considered rather than an (b) But, hand, on the other in this area is society approach imposi- importance protection of the of cious and emotional only penalty. by tion of the deterrance of acts of violence not death jury's B. The decision thougtful was a if death comes that the basis directly on non-emotional determination. [sic] will be others system through the some C. The Supreme United States Court (and similar acts commit not to convinced recognized has juries that can be a reliable of extent the full as to goes on debate index of contemporary they values as re- directly, effect); also less but deterrent late to the employment penal- of the death means effectively, as a more perhaps but ty generally and the prop- Court believes a of the com- repulsion of the expression of jury particular er in a case can be a reliable violence, by large acts munity at index of those values in a factual of socie- the fabric tightening of part of the situation. increasing de- ty and a reflection must cease. violence senseless mand that The jury in this case has determined that And, too, protection killing senseless from a societal of a law enforcement officer outrage exaspera- and utter under all standpoint, the facts and cireumstance- regard exists to senseless vio- es this case tion warrants the death penalty. the increased im- lence-which it does-is 6. In analysis, final with all other consid- system responsive, portance of a which is mentioned, erations persuaded Court is actually by appearance, to calm both jury's recommendation and accepts generally fear and to reveal a viable and it. It is the Court's recommendation as accepted help. alternative to self well. I anyone fully capa- do not is believe Therefore, based on all the foregoing, it life-death; making ble this kind indi- has been adjudged that the defendant suf- presented vidual-societal choice a case of fer the penalty death in the provid- manner thing, this nature. For one the choice is ed law. example, never black and white. For no might society's matter what said about DeBRULER, Justice, concurring and dis- protection by penalty, use of the death it is senting: important society that neither the com- rigid, hard, munity system nor the be so so The trial court must find that the state appropriate compassion so inflexible proven has circum- and attention to the human condition is stance beyond exists a reasonable doubt. In is, If quality eliminated. it of life in addition, the trial court must find that the society depreciated and the communi- defendant intentionally killed the victim. ty ultimately suffers. The aggravating cireumstances here was In making " the final determination ... the victim of the murder was a here, the Court has looked at all we have ... law enforcement officer acting ... commented on and carefully, has looked the course duty ..." I.C. 35-50-2- jury the Court told would; this case it 9(b)(6). (Burns Under 35-41-1-2 jury's at the recommendation. The Court suppl.; now 85-41-1-17 as *23 by added P.L. receives this case in slightly different 811-1983, 18), "Law enforcement § officer posture than did jury. applicable the The means." requires statute among that the Court all (1) A police officer, sheriff; constable, other factors jury's consider the recommen- marshal, or prosecuting attorney: dation. (2) deputy A any of persons; of those or A. In evaluating jury's the recommen- (3) investigator An for a prosecuting at- dation, the Court first looked at the mem- torney. bership and up the make of the jury. The process of jury slow, selection pains- I point hasten to out appellant has not - taking, and careful. This was challenged not a death- the sufficiency of evidence of oriented jury. fact, In in opinion the of the the However, circumstance. Court, this jury was disinclined generally it is appropriate to consider such issues sua toward death. sponte in a death case. Marshal Town as the magistrate, justice peace status of the of this The victim's testimony state, the by may any part be executed there- established Avilla was
of Board. Town the Avilla by deputy of the marshal or President of marshal of the en- a law victim govern- the Consequently, subject to the laws of this state However, attempt- the officer. forcement dep- arrest and bail. The marshal or the subse- and perpetrators of the arrest ed uty power, marshal shall the it have and Marshal occurred Town killing of the quent duty, process shall their to serve all be Avilla. limits of town the outside issuing They from the town court. shall town, peace in the be conservators the acting in the course of Was the victim arrest, process, per- and shall without all action oc- duty the law enforcement when their commit sons who within view pow- limits? outside the town curred contrary crime or misdemeanor Marshal are set ers and duties of a Town statutes of this state or ordinances of the in 1.C. 86-5-7-4. forth § town, and take them before the court duties,-The and 36-5-7-4. Powers having jurisdiction of the offense with police is the chief officer marshal person charged is and retain powers of law enforce- town and has custody of such them until cause executing the orders of ment officers in investigated, arrest has been and shall enforcing legislative body and laws. peace suppress all breaches of the within deputy: The marshal or his knowledge. Authority hereby their (1) him process all directed to Shall serve them to call to their aid legislative body: by court or the town power pursue and to town and (2) process per- arrest without all Shall felons, jail persons guilty all commit to an offense within his sons who commit misdemeanors or crimes in violation of having view, a court take them before the statutes of this state or the ordi- custody jurisdiction, and detain them nances of the town. marshal shall cause of the arrest has been until the power, duty and it shall be his have investigated; , process by the to serve all issued town (8) peace; suppress breaches of the Shall 1969, 257, of trustees. ch. board [Acts (4) necessary, power call the May, 8305,p. § 987.] aid; the town to his (5) and ar- May execute search warrants 17-4-86-5 throughout Acts [49-8407]. warrants; county-Citizens rest to aid. Constables in the discharge of duty, their (6) persons power shall have May pursue jail who throughout to act 18-8-1-20, their respective commit an 18- coun- offense. [I.C. ties, unless 3-1-82, by specially law, as 1.0. 36-5-7-4 restrained recodified whenever necessary, may upon Acts P.L. call § 4.] any number of citizens to assist them in In Ind.App., Warner v. State discharge duties, of their who shall N.E.2d the Second District of the not refuse such assistance under such Appeals Court of construed the former penalty may prescribed statute LC. 18-8-1-82 which delineated § criminal law. R.S. p. ch. [2 powers and duties of a town marshal. 480]. 18-8-1-82 Marshal-Powers [48-218]. examining statutes, After executing duties. these the orders of the Court Appeals concluded, "And, town enforcing regard, trustees and the ordi- since nances of the constables power town and the laws of the 'have the to act state, throughout duly appointed dep- respective counties, marshal or their I.C. *24 uty marshal possess shall all the com- 17-4-86-5, fortiori town marshals have § power mon-law and statutory powers con- to effect throughout an arrest stables, except in relation county to the service respective which their towns process; of civil any warrant of are 972, State, located. supra Warner v. arrest, search or by any judge, issued or replaced I.C. 86-5-7-4 I.C. 18-3- § §
957
1980,
1-82 in
and it was
applicable
this case as to whether the
proved
State
statute at the time of this offense which the aggravating circumstance beyond a
occurred in 1983.
phrase
"the marshal
reasonable doubt. Consequently, it must
.
possess
shall
all the common-law and
be strictly
against
construed
the state.
statutory powers of constables" contained
Warner,
the Court of Appeals also
in 1.0.
18-8-1-82
§
is absent
from IC.
relied on IC.
85-1-21-1 for authority
§
36-5-7-4. A change
§
in legislative pur
that a Town Marshal could arrest
someone
pose
presumed
will be
from a change in the
anywhere in the county.
IC.
385-1-21-1
§
wording
a statute.
See State v. Beal
(Burns
Ed.,
Code
Supp.1978)
(1916),
provides:
185
Ind.
225;
113 N.E.
Hasely
(1907),
v. Ensley
40
Ind.App.
82
All judges, coroners,
N.E.
and law enforce-
809, 26 I.L.E. Statutes
161.
§
ment
may
officers
arrest and detain any
person found violating any statute of this
There is a presumption that a statutory
state,
legal
until a
warrant
can be ob-
amendment was intended to change exist
tained
169, 142,
ch.
p. 584;
[Acts
§
ing law. Ware v.
(1982),
State
Ind.App.,
2, 8514,
P.L.
p.
§
597.]
20;
N.E.2d
Gingerich v.
(1950),
State
The Court of Appeals
Ind.
construed this stat-
the existence of the circum- aggravating circum- mitigating and the stance there is no evidence that because crucial,. separate valuation stances is The deputized by the Town Marshal had been Sheriff, mitigating circumstances must be of the County See I.C. 86- Noble § so that the trial court will be maintained 2-16-2(b) (Oath office), 86-2-16-8 LC. § light, the defendant in his best able to view (Power duties) (Sher- L.C. 86-2-16-6 § impact at that moment undistorted (Appoint deputies), iff's I.C. 86-8-10-6 § In this aggravating circumstances. of the deputies or assistants in ment additional being worth as a human way, defendant's (Powers emergencies), 86-8-10-9 IC. § fairly valued to the extent that such can be department), IC. and duties of sheriff's humanly possible. a valuation (Special deputies). The fact 36-8-10-10.5 § separation of the valuations arrangement that an existed between maintained; consequently, it is not case County Board and the Noble Sheriff's town said that the valuation of cannot be is not evidence which would Department mitigating not distorted circumstances was lead a reasonable trier of fact to find be- aggravating circum- impact yond the Town a reasonable doubt gives sentencing statement stance. appointed dep- duly Marshal was a sheriff's rise to the inference that uty acting duty course of in- within the did distort the valuation of circumstance volved therein. mitigating circumstances of lack of a II conduct, significant history of criminal youth. 35-50-2-9(e) trial) (Jury and I.C. I.C. § following trial) The trial court alluded (Bench forth 35-50-2-9(g) set what age, lack of a mitigating circumstances: im- it can trial court must find before criminal conduct significant history prior pose a death sentence: *26 1.C. 85-50-2-9(c)(1), This § state of was improper, intoxication gives and it rise to an
at the time of offense, the acting inference that under an this mitigating cireumstance emotional or situation, stressful given any no weight advance in the most crit- plan or kill, scheme to cooperation stage ical with when the aggravating circum- authorities, prospects for stances weighed rehabilitation. were against mitigat- the cireymstances. In dealing appellant's with lack sig- of a In dealing appellant's history with nificant prior of age, the trial conduct, criminal the trial court reasoned court reasoned as follows: follows: "This is positive a "The mitigating youth Defendant's certainly factor." adds to "It is depreciated, however, tragedy of by this the fact whole affair. age, because of lack record, can, Youth in the proper circumstances, comparative minor nature of the defend- be a definite mitigating factor .. [19] way person in such ly from the response of the ordinary clined otherwise to act out in a criminal the situation by killing under all cireum- ishment if he had submitted. Avoiding stances of this case deviates substantial- more when ant from the standpoint of ant's criminal act which brought the Mar- shal to the compared aggravated scene, to the risk of the defend- situation, make the killing even and disproportionate criminal even one in- pun- ing the officer making the evidence establishes ous voked flashlight, the butt of the weapon, jump- exiting the scene ... would seem more up weapon no provocation other than that that exist- ed in this case But for one so young to be back; alternatives with defending by the defendant and with numer- an and officer who he himself in a fracas that wherein a shoot a respect two on police had been police able to knew; to use of a officer in one, officer pick pro- of a reflection of deficient character than The given reasons depreciate this miti- misjudgment youth. gating circumstance are irrelevant to the Youth under these cireumstances be- determination that particular this mitigat- comes almost more' aggravating than ing circumstance exists and to the determi- mitigating." nation of weight given to be it. This mitigating circumstance is established Youth's status as a mitigating circum
the actual significant absence of a history stance has recognized been by the United prior criminal conduct. weight The to States Supreme Court, Robert v. Louisi assigned be this circumstance must take ana 431 U.S. 97 S.Ct. into account type, if any, prior crimi- 1995, 52 L.Ed.2d and it would fall nal conduct and be diminished accordingly, under 85-50-2-9(c)(7). 1.C. rationale otherwise this mitigating circumstance supports youth's mitigat status as a should be appropriate its full value ing circumstance is a corollary gen and added to other mitigating cireum- eral view that criminal liability premised is stances, and then it can be balanced on rational actors who make blameworthy against the aggravating circumstances that choices and who responsible are thus for proven are beyond a reasonable doubt to consequences of their acts. Immaturi exist. so far as an aggravating cireum- ty presumed to diminish the rational impacts stance on the value of mitigating capacity of the actor, criminal thereby circumstance, it does so when they are lessens his moral culpability for criminal weighed together, not when the initial val- Furthermore, acts. responsibility for ue of mitigating being circumstance is youthful may misconduct widely be distrib determined. uted because obligations socialize, Here, the trial court diminishes the value young educate persons, and to teach them of this mitigating circumstance with erimi- moral values and respect law, for the are conduct, nal including killing, that oc- shared their families and communities. curred at the time of the instant offense. Another reason youth's status as a "special weight". deserving of are cumstance is youths is that circumstance mitigating conclusion, court To this to rehabilitation. susceptible more enforce- vulnerability of law discusses the mitigating assigned weight to duty in the course ment officers into account take must cireumstance representation of officer's law enforcement develop- physical mental offender's He authority and order. community, life pertinent education, prior ment, law kills a that one who further discusses *27 whether on light shed which experiences a more dan- represents officer enforcement actor rational type of the is offender the many oth- than do of violence gerous level respon- fully deems law the criminal that policy legislative are reasons ers. These his actions. for sible exist- account for the which considerations old at years eighteen Here, appellant in circumstance aggravating ence of the court did trial The offense. of the time the They proper not all. are statute the men- physical appellant's consider not "special" give added or to considerations not did court trial The development. tal aggravating circumstance. weight to the back- educational appellant's consider motivation, at- manner, and other the The report reveals pre-sentence The ground. are of the offense circumstances tendant The grade. eighth completed the he that aug- may which type of considerations the life pertinent surface not court did trial aggravating circum- of this ment the value experience he have i.e. did experiences used two other The trial court also stance. home away from living firearms?, he conclusion its to considerations himself? supporting de- aggravating circumstance this that court used to The factors which First, the sense- "special weight." serves mitigating circum- youth as discount that all killing: it is true of the lessness courts im- support the trial not stance do senseless, this murder was but murders are mitigating cir- this that plicit conclusion many other than the more senseless no The in this case. has no value cumstance mur- The fact that occur. murders which shooting the picking up a revolver and of judg- reflects a capital offense der can be a ample time police when he had officer that legislature part of the ment on the support the inference escape does not however, senseless; fact the murders are result of the not the appellant's action was here was of the officer the murder Rather, given the misjudgment youth. of rational basis provide does senseless fight, the the the arrest and excitement of circumstance aggravating giving this shooting act relatively instantaneous Finally, trial court weight." "special deliberation, gross with little time for aggravating circumstance this deemed that used appellant disproportion of the means ap- weight" "special because have should escape compared to the his to effectuate during the murder pellant committed initially appellant was for which offense might of a minor offense commission appellant re- fact stopped, and the guard. to lower his the officer have caused family, it is clear that to his turned home augment proper consideration This is a youth played a role misjudgment circum- aggravating weight of the erred in not The trial court killing. one of the at- its status as due to stance cireumstance sub- giving mitigating this offense; how- tendant cireumstances stantial value. whether ever, question as to is some there cireum- aggravating of the The valuation ag- promote this would consideration this flawed. is also in this case stance "spe- level of gravating circumstance that "... here is circumstance aggravating determined what weight" if it could be cial law was a ... murder victim of the Nevertheless, the val- weight" is. "special course acting officer enforcement circumstance aggravating of this uation 85-50-2-9(b)(6). tri- duty IC. ..." considerations; there- improper contains aggravating cir- stated that al court fore, impossible tell whether it it out-
weighed mitigating circumstances. Terry WALLACE, Appellant (Defendant Below), weighing
The trial court's actual of the mitigating aggravating circumstance is v. example unreliability one more but Indiana, Appellee STATE of the death sentence determination in this (Plaintiff Below). case. No. 984S371. possible mitigating
"'The factors which when, have been discussed in detail Supreme Court of Indiana. context, weighed against aggra- are factor, context, vating causes the Oct. beyond Court find and conclude a rea- sonable doubt factor
outweighs possible mitigating " *28 factors."
The use of the "possible" word modify
the word "mitigating" gives rise to two
inferences. The first inference is that the
trial court did not find that mitigating
circumstances existed. Given the trial disposition
Court's mitigating cir
cumstances, may have been what the
trial was, court meant. If it then the trial
court erred because there was certainly
evidence in the record to the exist
ence of several mitigating circumstances.
The second inference is that the trial court
assumed that all mitigating cireum- presented
stances appellant con
tained possible value, their full but never
theless were outweighed by aggravat
ing circumstance. Given the mitigating cir presented,
cumstances this is tantamount
to concluding quantity that no quality
mitigating equal cireumstances could
weight of this "special" aggravating cir
cumstance. case, If this is the
court's equivalent action is the of a manda
tory death sentence for the murder of a
law enforcement officer which in its statu
tory form was held unconstitutional Rob Louisiana,
erts v. supra; see also Wood
son v. North Carolina 428 U.S. 96 S.Ct. 49 L.Ed.2d 944.
Having reviewed pursuant this sentence
to Article 4 of the Indiana Constitution
I judge that it is manifestly unreasonable
and would order it reversed to a sentence
of imprisonment appropriate to the crime
of murder.