STATE of Indiana, Appellant, v. William P. ALCORN, Appellee.
No. 49S00-9305-DP-585
Supreme Court of Indiana.
Aug. 12, 1994.
Rehearing Denied Dec. 2, 1994.
Appellant contends the habitual offender determination was insufficient because the State failed to identify him during the habitual offender proceeding. He bases this contention on the fact that he was not present at the habitual offender proceeding and that Petty‘s testimony that the person whom he fingerprinted identified himself as William Perry was hearsay.
We find there was sufficient evidence furnished by the State to support the habitual offender determination. It was appropriate for the State to utilize a fingerprint examiner to match appellant‘s various fingerprints in his absence. Since appellant was the defendant during the trial, the statement he made to Petty was not hearsay and therefore admissible.
Appellant claims the evidence is insufficient to support the convictions. On review of a question of sufficiency of the evidence, we will not reweigh the evidence nor judge the credibility of the witnesses. Miller v. State (1990), Ind., 563 N.E.2d 578. We will consider only that evidence which supports the verdicts and all reasonable inferences to be drawn therefrom. Id. The findings made by the trier of fact will not be disturbed where there is substantial evidence of probative value to support the conviction. Id.
The State presented evidence to show that appellant agreed to sell аn “eight-ball” or 3.5 grams of cocaine to Gasper which later was delivered to Gasper by, Faceson, appellant‘s girlfriend. Faceson subsequently was arrested and the police seized from the car she was driving a plastic bag that contained coсaine. Faceson informed the police that appellant instructed her to deliver the cocaine to Gasper. Upon searching the house where appellant resided, the police found four bags of cocaine and two bottles of Inositol. This evidence is sufficient to support the convictions.
Appellant contends the evidence is insufficient to support the convictions for dealing in cocaine and possession of cocaine because they are based substantially on illegаl evidence seized by the police in their search of appellant‘s residence. Appellant states that the convictions cannot be sustained without the use of the tainted evidence. As mentioned earlier in the opinion, the evidence obtainеd by the police was not seized illegally; and, therefore was admissible in appellant‘s trial.
The trial court is affirmed.
SHEPARD, C.J., and DeBRULER, DICKSON and SULLIVAN, JJ., concur.
David E. Cook, Samper, Hawkins, Atz & Cook, Indianapolis, David L. Byers, Holwager & Holwager, Beech Grove, for appellee.
GIVAN, Justice.
This cause comes to us on an interlocutory appeal from the Marion Superior Court. This Court has jurisdiction to resolve the appealable matter pursuant to Ind.Appellate Rule 4(A). The interlocutory appeal challenges the constitutionality of a saving clause in
On December 10, 1991, appellee was charged by informatiоn of Murder, Felony Murder and Robbery, a Class A felony. The State subsequently filed an information for the death penalty and later an amended information for the death penalty.
On July 1, 1993, amendments to the Indiana death penalty statute took effect. As amended,
On September 8, 1993, appellee made a pretrial motion for the court to instruct the jury concerning the sentencing alternative of life imprisonment without parole in thе event he was found guilty of murder. The State objected to appellee‘s motion; however, after a hearing on the matter, the court granted the motion. In reaching its decision to grant appellee‘s motion, the trial court ruled that
Appellant claims the trial court erred when it granted appellee‘s motion to instruct the jury concerning the sentencing alternative of life imprisonment without parole. Appellant contends the saving clause is not an unconstitutional denial of appellee‘s equal protection rights.
Appellant correctly points out that every enactment of the General Assembly stands before the appellate court cloaked with a presumption of constitutionality, Eddy v. McGinnis (1988), Ind., 523 N.E.2d 737, and that a saving clause is presumed to be constitutional until that presumption is rebutted. Gee v. State (1987), Ind., 508 N.E.2d 787.
In addressing an equal protection challenge, we must first determine which level of scrutiny is applicable: the traditional “rational basis” analysis or the more stringent “strict scrutiny” analysis. We will apply a rational basis analysis except where the classification is suspect or involves fundamental rights. Collins v. Day (1992), Ind. App, 604 N.E.2d 647. Strict scrutiny applies
Appellee claims that strict equal protection scrutiny should apply in this case. He asserts that the saving clause distinguishes between murders committed after June 30, 1993 and those committed before that date. He argues that since he has a “fundamental interest in life“, the classification must further a compelling state interest. We do not agree. The interest that appellee has in life is curtailed by the procedures laid out in the death penalty statute. Further, there is no suspect class affected by the saving clause. Accordingly, the appropriate level of scrutiny to apply is the rational basis analysis, which merely requires the classification to bear some rational relationship to a legitimate state interest or goal. Collins, supra.
As mentioned above, the saving clause wаs designed to apply to those murders committed after June 30, 1993. In doing this, the legislature created a nexus between the date of the murderous conduct and the implementation of the amended death penalty statute. The saving clause does not violate appellee‘s equal protection right because it is rationally related to the state‘s interest in determining under what circumstances the alternative sentence will be available. The manner in which the legislature made its determination was highly appropriatе. We find no reason to interfere with the province of the legislature.
Appellee claims the application of the saving clause violates principles of reformation and may result in vindictive justice in violation of the Indiana Constitution.
We have held that if a defendant is found guilty of an offense, he shall be sentenced under the statute in force at the time the offense was committed. Gee, supra; Bonner v. State (1979), 271 Ind. 388, 392 N.E.2d 1169. The time of a crime is selected as an act of free will by the offender. Gee, supra. Penal consequences are frozen as of that event. Id. Alteration of them through subsequent events by the offender or thе State is foreclosed. Id.
At the time of the alleged offense of which appellee is charged, the sentence of life imprisonment without parole was not an available option under the statute. Accordingly, appellee‘s trial must be governed by the law that was in effect when the crime was committed. We believe the application of the saving clause in this matter will not violate any principle of reformation; and neither is it an exercise of vindictive justice.
Appellee‘s brief asserts three additiоnal issues pertaining to the saving clause. Appellant has pointed out that appellee failed to advance these issues during the trial court‘s hearing on the pretrial motion, and the court did not rely on them in ruling on the motion. The trial court‘s order granting apрellee‘s motion to instruct the jury on the alternative sentence of life imprisonment was based solely on equal protection grounds. Notwithstanding this, the Court will address these issues since this appeal involves a substantial question of law and appellee is chargеd with a serious crime that may result in a death penalty.
Appellee contends the application of the saving clause may result in a disproportionate sentence in violation of both the Indiana and United States Constitutions. He claims the possibility of him reсeiving the death penalty is grossly disproportionate to all future death penalty cases where the defendants will have at least an opportunity to receive the sentence of life imprisonment without parole.
Article I, § 16 of the Indiana Constitution provides in part: “All penalties shall be proportioned to the nature of the offense.” The United States Supreme Court has held that the Eighth Amendment to the United States
In an attempt to рrove the disproportionate affect of the saving clause, appellee makes a comparison of his possible sentence with the possible sentences of future offenders convicted of murder. This Court and the United States Supreme Court have held in a similar situation that there is no constitutional requirement for an appellate court to compare the sentence in the case before it with the penalty imposed upon others convicted of the same crime. Pulley v. Harris (1984), 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29; Roche v. State (1992), Ind., 596 N.E.2d 896. Likewise, the review of аppellee‘s possible sentence is not governed by the sentences imposed in future murder cases, but rather by the correlation between the penalty imposed in his case and the nature of his offense. As mentioned above, penal consequenсes are frozen as of the time the offense was committed. Gee, supra. The application of the saving clause in the present case would not result in a disproportionate sentence.
Appellee contends the application of the saving clаuse in his case may result in cruel and unusual punishment. He argues that denying jury instructions on life imprisonment without parole would be based simply on an arbitrary fact that the crime occurred before June 30, 1993. We repeatedly have rejected claims that this version of the Indiana death penalty procedures in effect before the recent amendments resulted in arbitrary or capricious application of the death penalty and thus cruel and unusual punishment. See e.g. Evans v. State (1990), Ind., 563 N.E.2d 1251; Woods v. State (1989), Ind., 547 N.E.2d 772; Wisehart v. State (1985), Ind., 484 N.E.2d 949. The mere application of the saving clausе will not result in cruel and unusual punishment.
Appellant contends the application of the saving clause in his case will deprive him of his right to trial by jury and to have the jury determine the facts and law of his case. While a jury has the right to determine the law, it does not mean that the jury is frеe to ignore the law or make new law. Cox v. State (1985), Ind., 475 N.E.2d 664. The law regarding sentencing is not to be determined by the jury. Taylor v. State (1981), Ind., 420 N.E.2d 1231. It is the province of the court rather than the jury to select or focus upon the statutes which are intended to govern in a particular case. McClain v. State (1980), 274 Ind. 250, 410 N.E.2d 1297.
As mentioned abovе, appellee‘s trial is governed by the death penalty statute that was in effect at the time of the offense. The jury has no authority to apply the amended statute in this case since the saving clause makes the statute inapplicable to murders that werе committed before June 30, 1993. As stated in Dobbert v. Florida (1977), 432 U.S. 282, 301, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344, 361, the state legislature “had to draw the line at some point[,]” and there is nothing irrational about relegating Alcorn to the class not governed by the new statute since it was not in effect when the murder with which he is charged was committed.
The trial court is reversed.
SHEPARD, C.J., and SULLIVAN, J., concur.
DICKSON, J., concurs in result.
DeBRULER, J., dissents with separate opinion.
DeBRULER, Justice, dissenting.
The dеath statute amendment would, in the absence of the savings clause, be applied in all death sentence hearings occurring after its effective date. The death sentence for murder was the maximum sentence for murder before the amendment and remained the maximum sentence for murder after the amendment. All who face a death sentence hearing after the amendment became law fall within the same class. The object of the amendment is to provide a better way for the jury and judge to determine whether а criminal defendant, convicted of murder and for