State v. Azania

Indiana, Appellant STATE of

(Plaintiff below), AZANIA, Agona Appellee

Zolo below).

(Defendant

No. 02S03-0508-PD-364. Court of Indiana.

May Carter, Attorney

Steve General of Indiana, Creason, Stephen Deputy R. At- General, torney Indianapolis, IN, Attor- neys for Appellant. Cook, Defender, Deputy

Jessie A. Public Haute, IN, Deutsch, Terre Michael E. Defender, Deputy Public John L. Stain- thorp, IL, Thompson, Chicago, Erica At- torneys Appellee. for Caucus, Black Indiana Center Con- Rights, stitutional Center for Justice Cases, Capital Charles Hamilton Houston Justice, Institute for Race and Criminal Institute, Justice Illinois Association of Criminal Defense Lawyers, National Con- Black Lawyers, ference of National Law- Guild, yers National Aid Legal & Defender Association, Lyon, IL, Chicago, Andrea D. Foster, Indianapolis, IN, Monica Attor- neys for Amici Curiae. Interlocutory Appeal On SULLIVAN, Justice. prior proceedings, af- Court Agona

firmed Zolo Azania’s conviction for Gary the 1981 murder police of a officer but set aside recommendations two juries that he should receive the death penalty. The trial court has ruled now that, given circumstances caused long delay in this Azania’s constitu- rights tional to a speedy trial and due violated con- State tinues to a death seek sentence. find We neither the nor may that Azania suffer from it violates his rights. constitutional The State con- may tinue to seek the death penalty. vacated, conviction, not his murder Background but we affirmed. We remanded the which killing history began with This case’s case to the trial court for a new Yaros George Lieutenant Gary Police phase. Averhart v. 614 N.E.2d 924 robbery.1 State during 1981 bank (Ind.1993). Azania, Agona Zolo charged Defendant Averhart, trial, At the new Rufus Lee then known as sought again recommended that Azania be sen- men murder and two other again tenced to death and the trial court penalty. request The defendants’ death County newly-imposed did so. affirmed change of venue from Lake for a sentence, County. Azania v. to Allen granted (Ind.2000), subsequently but N.E.2d 646 statute, penalty Indiana’s death Under again successfully Azania vacated it after principal into two capital trial divided post-conviction sought again relief. We (2006). § 35-50-2-9 Ind.Code stages. the for a remanded case to trial court first, the State bears bur- During the State, phase. v. penalty Azania beyond a guilty the accused proving den of (Ind.2002). N.E.2d 1253 If ac- doubt of murder. reasonable murder, proceedings Further at the trial court of a second guilty is found cused followed, including appointment our during again stage follows which Judge David to beyond a rea- Boone Circuit Court Steve proving has the burden Special Judge. case justifying preside over the doubt certain facts sonable to early asked the trial court judge pronounces Azania sentence. The seeking pen- the death stage is bar the state from the sentence after this second alty phase in because of Although penalty refers to the new statute completed. stage” he suffer due stage first as the “trial and granted court “sentencing passage time. The trial hearing,” id. second as 9(d), prohibited as Azania’s motion and the state they commonly § referred to are penalty in the new seeking re- the death “penalty phase,” “guilt phase” appeal penalty phase. It on the State’s the trial and we will use spectively, of case court’s order that Azania’s parlance this decision. again. is before us trial, jury found guilt phase At the Discussion guilty. At Azania and his co-defendants trial, phase recom- I only Azania be sentenced mended that The trial court concluded death; subsequently court did so. the trial of Lt. Yaros killing from the date of and sen- affirmed both the conviction currently “es- pending State, 470 Averhart v. N.E.2d tence. process speedy trial and due tablished (Ind.1984). ¶¶ (Trial 13 & Court Order violations.” 928-29.) It held Appellant’s App. at challenges law collateral permits Indiana principles constitutional by means that “fundamental to convictions and sentences fairness, jus- relief.” Ind. requests “post-conviction continuing State from seek 1. Azania success- tice” bar the Rule Post-Conviction (Trial to death. that Azania be sentenced this with fully employed procedure 930.) sentence, Appellant’s App. which this Court Order to his death Court State, (Ind.1984). particulars 470 N.E.2d 666 crime are detailed hartv. 1. The See, e.g., precede Aver- opinions that this one. previously present- This Court has been But Azania says he makes no rejected Eighth “Lackey” ed claims that Amendment or claim in appeal. this He contends instead that the violated a defendant’s constitutional delay in Speedy his case has violated the from cruel and be free unusual Trial Clause Sixth Amendment2 and punishment Eighth under the Four- Due Process Clause of the Fourteenth teenth Amendments of the United States Amendment3 of the Constitution.4 v. Bieghler Constitution. See appears be a claim capital This novel (Ind.2005); N.E.2d 697-98 Moore litigation. points us to no case (Ind.2002) (noting asserted; where it has been we have found such claims have become known as only two.5 “Lackey claims” from Justice Stevens’s Texas, suggestion Lackey context, put To claim in begin 131 L.Ed.2d awith few observations about the role of (1995) (memorandum respecting denial delay in criminal jurisprudence generally certiorari), such important a claim is capital litigation particular. and would benefit from the attention of viability). and lower state courts to test its question delay There is no but that It appears Lackey that no claim has been infringe upon can trial and due Florida, Knight successful. See v. 528 of process rights individuals accused or 990, 992-93, 459, U.S. 145 120 S.Ct. convicted of committing delay crimes: be (1999) (Thomas, J., concurring L.Ed.2d 370 tween the commission of the crime and certiorari); 993, in of at denial id. 120 indictment;6 delay between indictment J., (Breyer, 459 dissenting arrest;7 S.Ct. from the delay between arrest and certiorari). trial;8 denial of delay between trial and sentenci 2. provides authority, The Sixth presents separate argu- Amendment in relevant tutional no part: prosecutions, specifically "In all criminal ac treating ment analyzing enjoy to a speedy cused shall ... claim under the Indiana Constitution distinct trial....” U.S. Const. VI. It held amend. counterpart, from its federal we resolve the " applicable through to be party's the States claim 'on the of basis federal consti- Klopfer Fourteenth Amendment in v. North express opinion tutional what, doctrine no as to Carolina, 213, 988, 223, 386 U.S. 87 S.Ct. 18 any, may differences there be’ under (1967). State, L.Ed.2d 1 Myers the Indiana Constitution.” v. 1154, (Ind.2005) (citations 1158 omitted) provides cases). 3. (collecting The Fourteenth Amendment in rel part: deprive any evant ... "No state shall life, person liberty, 859, property, or without 5. Both v. Hitchcock 673 So.2d 863 (Fla.1996), 586, due law.” U.S. Const. amend. and Moore v. 263 Ga. XIV, 201, § (1993), 1. 436 S.E.2d 202 denied similar claims with little discussion. delay Azania also contends in his Lovasco, 783, case violates Due Course Law and 6. United v. 431 States U.S. 97 I, 12, 2044, Speedy (1977); § Trial Clauses of art. S.Ct. 52 L.Ed.2d 752 United Marion, 307, 455, provides Indiana It v. Constitution. in relevant States 404 U.S. 92 S.Ct. (1971). part: "[E]veiy person, injury for done to him 30 L.Ed.2d 468 person, property, reputation, in or shall remedy States, 647, Doggett have course law. Justice v. United U.S. 2686, (1992). shall be speedily, administered ... and with- 120 L.Ed.2d 520 However, delay.” sepa- out Azania offers no analysis rate Wingo, of his state constitutional claims. 8. Barker v. 407 U.S. 92 S.Ct. though party, citing (1972). Where a Indiana consti- 33 L.Ed.2d 101 delay large many measure because of the “[I]n processing appeals;10 in delay ng;9 safeguards provided an ac- procedural decision and sub court appellate between cused, ordinary procedures for crim- retrial;11 delay ap between sequent to move prosecution designed inal are subsequent re- pellate court decision A pace. requirement deliberate Nor is this an sentencing proceeding.12 have speed unreasonable a delete- list.13 exhaustive rights of the upon rious effect both side to But there is another ability upon society accused and States delay coin. As the United protect itself.” observed, “may work itself Court Barker, n. 92 S.Ct. 2182 advantage.” Barker the accused’s Ewell, (quoting United States 383 U.S. 92 S.Ct. Wingo, 116, 120, 15 L.Ed.2d 627 (1972). in Barker The Court L.Ed.2d (1966)). continued: relate to foregoing observations an uncommon defense Delay is not Delay is a litigation generally. criminal the com- As the time between tactic. capital litigation. particular fact life lengthens, crime and trial mission of the part to eliminate unwar- large It was may become unavailable witnesses capital litigation that this ranted may fade. If the wit- memories their 1(12), adopted Post-Conviction Rule Court its case support prosecution, nesses requiring petitions post-con- successive weakened, seriously be sometimes will ap- viction relief cases to prosecution which so. And filing. prior this Court So proved Thus, un- proof. the burden of carries Antiterror- Congress adopting too to right counsel or the right like the to Penalty Act of ism and Effective Death compelled self-incrimina- be free Taylor, v. 529 U.S. 1996. See Williams tion, right speedy deprivation 362, 386, 1495, 120 S.Ct. 146 L.Ed.2d 389 the ac- per se trial does J.). (2000) (Stevens, Judge Kosinski and to defend himself. ability cused’s undoubtedly correct Gallagher are Mr. observe, quote its they simple went on to “The fact is the Id. The Barker Court when is a long so because there in an Indiana United takes earlier decision down, and afoot to slow concerted effort v. Ewell: States See, Hawk, 354, States, e.g., v. 474 77 United States Loud v. 352 U.S. 9. Pollard United 481, 302, 648, (1957). L.Ed.2d 640 S.Ct. 1 L.Ed.2d 393 S.Ct. 88 U.S. 106 between, (1986) original (delay dismissal of 204, Smith, 208 v. 94 F.3d 10. United States subsequent and indictment on indictment Mohawk, Cir.1996); (6th 20 United States v. 302, Hawk, 474 U.S. charges); Loud same 1480, (9th Cir.1994); v. Harris F.3d 1483 648, pro- (delay in 88 L.Ed.2d 640 106 S.Ct. (10th Cir.1994); Champion, Al- 15 F.3d 1538 appeals); United States cessing interlocutory Duckworth, Cir.1993); (7th 458 v. 6 F.3d len Fifty Eight Eight v. Hundred & Dol- Thousand Fulcomer, 1431, F.2d 1445-46 v. 951 Burkett ($8,850) Currency, 461 in United States lars Cir.1991). (3d 555, 2005, 76 L.Ed.2d 143 U.S. 103 S.Ct. 1483; Mohawk, (1983) v. (delay F.3d at Latimore action and 20 between forfeiture 60, (D.Mass.1998). MacDonald, F.Supp. Spencer, seizure); 67 994 v. 456 United States 1497, 1, 71 102 L.Ed.2d 696 U.S. S.Ct. Thomas, (6th 167 F.3d 299 12. United States military charges (delay between dismissal of 630, Cir.1999); P.2d 582 Gonzales civilian subsequent indictment 202; 1978); Moore, (Alaska 436 S.E.2d at 633 213, charges); Klopfer, U.S. at 87 S.Ct. 386 572, N.C.App. Avery, 383 S.E.2d State v. 95 trial). (delay mistrial 988 between (1989). 225 1000 II system legal requires scrupu-

because our review before a death sentence can be lous authority There effect that out.” Alex Kozinski & Sean Galla- carried Speedy Trial not apply Clause does to time gher, Death: Run-On The Ultimate Sen- periods sentencing.14 after conviction and (1995). tence, 46 W. Res. L.Rev. Case Here, course, Azania does not assert speedy there was trial violation It is in this context —that those accused respect trial; with original to his claim his enjoy and convicted of crimes constitution- only delay relates thereafter. Never- against delay al but protections theless, reasons, for several we elect to sought is often as a tactical matter proceed theory on the there is a defendants, especially defendants in right implicated trial in this case. cases—that we examine Azania’s claims. First, conceding while not In consequence of this Court’s remand the Speedy applies Trial Clause Aza- order Azania is entitled to a new claim, analyze nia’s using does claim penalty phase trial which a would (non-exclusive) four-factor test convened to consider whether not it v. Wingo,15 Barker Su- United States believes that he should be sentenced to preme leading Speedy Court’s case on the allowing death. He contends that Second, Trial Clause. while claim State seek a death sentence in a new trial, only relates original after his penalty phase trial would violate his he relief penal- seeks to a new speedy trial due process rights be- ty phase trial the sentencing attendant that supports cause evidence his case is no thereto. Were this to original penal- be an longer available and because the jury ty phase sentencing —which likely dangerous- focus on future sense it is—the Speedy Trial Clause would above, ness. As noted the trial judge States, clearly apply. Pollard v. United found these contentions meritorious and L.Ed.2d granted (1957).16 sought. Third, the relief analyzing Azania’s Barker, Doggett, 530-32, 14. See 505 U.S. at the defendant. ("the factors, said, Sixth Amendment of the ac- S.Ct. 2182. These the Court are speedy application only cused to a trial has no "some of the which factors courts should beyond the of a determining confines formal criminal in particular assess whether a Marion, prosecution" (citing United deprived right.” States v. defendant been of his 307, 313-20, 455, 404 U.S. 92 S.Ct. 30 Id. "[N]one of the four factors ... [is] either (1971))); MacDonald, necessary L.Ed.2d 468 a or sufficient condition find- to the 8, ("The at 102 ing deprivation S.Ct. 1497 Sixth right Amendment a speedy of of the of Rather, right speedy primarily to a trial they is thus not trial. are related factors and prevent prejudice intended to together to the defense must be considered with such other time; by passage may caused of that interest is circumstances as 533, be relevant." Id. at protected primarily by the 92 S.Ct. Due 2182. Process limitations.”); by Clause statutes of 16.Pollard, Barker, pre-dated which "as- Ewell, 121, (refusing 383 U.S. at S.Ct. 86 773 arguendo part sume[d] sentence is apply Speedy to the a Trial Clause to retrial purposes trial for of the Sixth Amendment.” following of a reversal conviction on collater- Pollard, at U.S. Over review); al Allen v. 686 N.E.2d time, by this has been taken most courts as ("A (Ind.1997) right appeal a speedy to is authority proposition for Speedy the contemplated the within Sixth Amend- applies sentencing. helpful Trial Clause to A ment.”). authority formulation of this was set forth Souter, factors, writing Justice greater 15. The four as a member of the to be discussed in below, (1) Hampshire Supreme length (2) New delay, detail the Court: are of (3) delay, reason the gone defendant's assertion "If Court has no fur- speedy right, of trial arguendo to ther than to assume is a there relief with granted der conviction but is Trial Clause Speedy claim under n sentence. Azania previous hold- with this Court’s consistent “delay” is adju- period that this offender contends of a habitual that retrial ing in on to him because collateral re- attributable following reversal dication of our this found his sentence to be un- subject requirements Court view is Rule, Rule in on part Ind. Criminal constitutional “based Speedy Trial 4(B).17 withholding prosecution’s 685 N.E.2d of evidence.” Poore 24.) (Ind.1997). (Br. (Our in Lastly, even at Appellee decision based, implicate Speedy acknowledges, case does not Azania was also Clause, clearly implicate the does finding Trial of ineffective assistance of counsel.) States v. Clause. United Due Process (6th Cir.1996) Smith, 204, 94 F.3d (cid:127) segment time runs from second cases); v. Mo- States (collecting United (for our remand (9th Cir.1994); hawk, 1480, 1485 20 F.3d trial) the new 1993 to when Allen, 782-83. And courts at 686 N.E.2d phase trial conducted and was analyze factors to Wingo the Barker use again Azania was sentenced to death. caused delay has whether period “delay” argues that this violation, even when him much is not attributable to because Smith, 94 F.3d at 207 implicated. is not acts of it “was caused State’s Mohawk, cases); 20 F.3d at (collecting law- forcing appointed defendant’s court Allen, 1485; at 783. expert of his wit- yer ... and three nesses, withdraw, though even there that we “balancing test” directs Barker’s (Br. Appellee no this.” delay, basis for delay: “[ljength at look’first 25.) delay,” and Azania’s reason for the (cid:127) right.” [speedy trial] segment time runs from “assertion The third Barker, 530, 92 re-imposition of the death date “delay this case analysis again Azania’s when we sentence attributable to” extraordinary and is not because aside the death sentence set period of time him. He breaks down to our satisfaction Azania demonstrated original trial and of his se- computer program between date used segments. inadvertently today jury pool operated into four lect the (cid:127) right to tried before deny him his runs from segment The first time jury. posi- fairly constituted original trial 1982 to date of the is not period “delay” tion is that this post- denied him this Court when “he had him because respect to his mur- attributable conviction relief assessing analysis appropriate er is sentencing, right speedy v. United Pollard States, federal courts have ... the lower federal claim-" "strong taken this as indica- nonetheless Cavanaugh, 127 N.H. McLellan v. State ex rel. applica- has that the sixth amendment tion” 735, (citations 33, omit- A.2d between conviction tion to the time ted) (Souter, J.). later au- Justice Souter Supreme Court in sentencing.... While the itself, is, except for Barker thored what by asking reviewed the claim Pollard impor- Supreme most Court's United States op- delay purposeful or whether the Dog- opinion. See Speedy tant Trial Clause ..., ap- have pressive, federal cases later 2686, 647, gett, 112 S.Ct. framework, analytical ... plied the Barker L.Ed.2d 520. emphasized on a the burden ... and have demonstrate when- defendant to rights un- makes no claim that 17. Azania implicit in the circum- ever it is ’ 4(B) Thus, violated. have been der Ind.Crim. R. a Bark- conclude that stances.... (6th system Cir.1999); Smith, do nothing picking to with 94 F.3d at jurors 208; the unrepresentative Clark, which led to United States v. 83 F.3d 25.) (Br. Cir.1996). jury.” Appellee (11th at (cid:127) segment The fourth and last time accept Azania’s and the trial court’s (for penal- runs from our remand a new chronology characterizations true as trial) ty phase in 2002 to when but neither of them analyzed this time delay Azania first asserted that the period using legal test mandated point speedy time violated his States United Court Bark- process rights. trial and due His view er Wingo. “delay” period is that this is not at- over-arching The rationale of Bark tributable to him because “has been er is that right “gener trial entirely by litigation almost caused nec- ically different” from other constitutional essary protect the defendant’s consti- rights accused, Barker, of an 407 U.S. at rights tutional repeated State’s in large part because prosecute failures to the case with due defendants frequently deploy delay for diligence comply discovery and to tactical, “strategic, reason[s],” or other Id. (Br. 25.) Appellee orders.” at (citation n. 92 S.Ct. 2182 omit In ruling delay, issue ted), every and have right to do so. aAs court held as follows: consequence, it is not enough to make out In analyzing period delay be- say only constitutional violation to tween Defendant’s 1982 conviction and delay State has caused or that defen currently pending penalty proceed- Rather, dant has not. inquiry must ing, it is clear from the record that the include consideration of the reasons for the responsibility State bears most of the delay assignable to the State and “whether delay. Although blaming for the how” defendant has asserted the analysis State is not the appropriate speedy trial right. following excerpts alone, very the bottom line is that little opinion from the Barker points make these delay overall attributable to the clear: Defendant. Again, the issue is not so much A whether the State is at fault for deliberate attempt the trial hamper should be at fault for the order to the defense should delay, weighted but rather heavily against Defendant be govern- responsible should not be held or faulted ment. A more neutral such reason all, delay. for much of the After it is the negligence or overcrowded courts should seeking impose State the death penal- weighted heavily less but neverthe- ty and the Defendant has the less should be considered since the ulti- defend himself and his life. The record responsibility mate for such circum- of this case reflects that most of the stances rest government must with the delay attributable to Defendant is in rather than with Finally, the defendant. pursuit right. of this reason, a valid such as a missing wit- ¶ (Trial ness, Court Order Appellant’s App. should justify serve to appropriate 928.) delay. In evaluating delay whether has vi

olated a Whether and how rights, defendant’s constitutional a defendant asserts right closely we review of fact a his using issues clear error is related to the other questions standard and of law de novo. factors we have mentioned. The Thomas, See 'United States v. 167 F.3d of strength his efforts will be affected is the to the defendant laid at door- some extent able delay, to of the length the (As above, delay, and most even step for the of the State. noted by the reason personal prejudice, by the will not be particularly delay attributable State identifiable, always readily not which is heavily is a “valid where there weighted The more serious experiences. he that it.) But we believe reason” for likely a defen- more deprivation, the the position should be and is reversed default The defendant’s complain. is to dant defendant, the rather than the when then, speedy right, trial of his assertion the going has the of forward —as burden evidentiary weight strong to is entitled prose- when the defendant defendant does is defendant determining whether the appeal or a for petition either an cutes right. empha- the deprived of being collateral review. right to the will failure assert size that a hold that defen We therefore to prove difficult for defendant make who a violation of his constitu dant asserts trial. speedy he that was denied speedy respect to a trial with tional (footnotes 531-32, Id. at any period during time which the of omitted). prosecuting has the of defendant burden delay analysis of the trial court’s collateral appeal petition either an or a it did because factor was erroneous demonstrating review bears the burden of assigna- delay for the the reasons consider the the part some action on of State and how” State or “whether ble to the delayed or col appeal has the defendant’s trial speedy the defendant asserted will proceeding. In this lateral right. delay any of the not attribute to State Azania contends supra, set forth As periods time described above in the three attribut- delay in the case is most of the during responsibility which Azania had the find this to be to the State. We able by Aza showing of forward absent going overstatement. during nia these of action During period of time much of the hampered ability go periods that his and not the State had question, Azania forward. is, it going of forward. That responsibility regard only contention this (1) prose- responsibility was Azania’s withholding evidence of State’s completion of appeal following cute delay during original trial caused of the original imposition trial and comple- period from 1982 to (2) sentence; re- prosecute his imposition original tion of the trial following quest for collateral review through completion the death sentence af- being sentence conviction and death original of the conviction prose- collateral review appeal; on firmed direct request for collateral hold to the con- subsequent his death sentence. We cute reimposition following withholding review of evidence trary. While death sentence. which Azania grounds one review, any of way it in no caused sought appellate deci Virtually all of the delay during period time. Said right in regarding sions that even if State differently, we hold pro claims volve evidence, there is had withheld burden ceedings in which the State has the that Azania absolutely no reason to believe going forward. Barker prosecution, conviction appealed have would not still just a case. Because Wingo such sought review collateral and sentence this, position in Barker is the default find no they had been affirmed. We specifically attribut- after that is not period of time during re-imposition caused When Azania appealed the of withholding evidence at trial. State’s of death penalty sentence his second And, course, of Azania received relief for trial, phase he did not any raise claim with withholding the State’s evidence at the Azania, to this matter. See respect original original his trial when vacated N.E.2d 646. He subsequently did seek penalty death sentence and ordered a new post-conviction issue, relief on this which phase trial. untimely: we dismissed as any Azania has identified other ac- penalty phase The retrial record indi- during periods tions of the State the three that, year cates more than one and four during of time in this case which he had penalty months phase before retrial going burden of that ham- forward occurred, actually a State filed “Mo- pered ability to do so. More to the tion for Hearing Regarding Conflict point, did argue appeal he direct disclosing Interest” that Azania’s lead requests for post-conviction of his counsel, Swanson, defense Donald was relief that he the victim was of unconstitu- then member of the Sheriffs Merit tional caused the State. Board; investigator Jerry defense brings periods This us to the three Ratajczak Deputy was then a Allen during history time this case when Sheriff; County and that defense foren- had the responsibility the State has pathologist, sic Wagner Scott was then (1) going forward: from the date of the employed by County the Allen Coroner. crime through Azania’s conviction and the motion, In seeking repre- sentence; imposition original death sought sented that it poten- to disclose (2) following our first remand for a new tial conflict of interest information to the penalty through re-imposi- phase defendant and “to obtain a waiver of the sentence; tion of during defendant, upon the indepen- advice of period following current our second hearing dent counsel.” A on the motion remand for new trial. was conducted and the defense waived Azania no of delay makes contention the conflict. Swanson withdrew fifteen of these periods. first days later. After During the periods, second of these Azania phase retrial sentencing proceed- contends the State “forced defen- Azania, se, ings, acting pro filed “Mo- dant’s court appointed lawyer ... tion For Contempt Proceedings Court expert three of his witnesses to withdraw” Against Joseph Sheriff Squadrito” M. (Br. during the 1993 to period. 1996 time which a copy was attached of a newspa- 24-25.) of Appellee accept as true per reporting article Azania’s claims that “changes in defense counsel de- County Allen prevented officials investi- experts fense from the claims result[ed] gator Ratajczak and Dr. Wagner from County the State and the Allen Sheriffs joining team, his defense and that Swan- Department that defense counsel sev- son withdrew from the case “after his (Trial eral experts defense had conflict.” proposed defense team apart.” fell ¶ 928.) Court Appellant’s Order App. These claims were thus available but Azania asserts that “there no basis appeal not raised in the from the retrial. (Br. gives but explanation. this” no The claims are not available here. 25.) Appellee at Trial Court Order suggest (Ind. does not that the State’s motives 2000) (citations omitted). legitimate. were not January that value, so he April the concern at face Taken discovery con- could conduct additional legitimate been appears to have Sheriff process in pro- cerning jury selection used delayed the unduly to have County. Allen ceedings. ac- aside, against balanced own argue did not that When

Merits tions, improper that the State’s unconsti- we find regard in this State’s actions comply discovery failure to with orders did phase tutionally delayed penalty his new phase trial for delay penalty us the new trial court or to on to the trial either analysis. purposes speedy of our trial following reimposition of the appeal requests disqualify Azania’s own failed to contend either Having sentence. to conduct judges request local and his appeal on that he was the trial court or discovery concerning additional delay any victim of unconstitutional delayed the new process selection period during caused longer period phase trial for an even penal- for a following our first remand new independent improprie- time of the State’s through re-imposition ty trial ties. sentence, he has we hold that the death claim now. right to make that

forfeited his summary, we hold that Azania has any delay victim of in this not been the is, period, current fol- During the any case that violates constitutional penal- remand for a new lowing our second may a trial. speedy he have to trial, ty phase Azania contends improper- defense hampered his State Ill failing to proceedings by ly delayed the that, are of the view hav We discovery during comply with orders ing failed to demonstrate unconstitu 30, 2003, July to November from period delay in his Azania is unable to tional it did acknowledges State speedy a trial violation under make out discovery comply, fail to improperly However, also claims Wingo. Barker v. he says “accepts appropriate orders in violated his delay his case has (Br. Ap- for its responsibility actions.” and, su process rights as discussed due 11.) pellant at delay in criminal the law is clear that pra, Azania took During period, the current process can constitute due proceedings delayed the new actions that also several if person’s violation even First, January phase trial. Smith, 94 F.3d at violated. rights are not the case be he that venue in asked Mohawk, cases); F.3d (collecting County. his re- Lake When returned to 1485; Allen, as 686 N.E.2d at 783. Also denied, interlocutory he quest was filed analysis of whether supra, discussed jurisdiction appeal. This Court declined violation is causes Second, September June preju analysis under the identical (while discovery requests mentioned proceed so factor of Barker and we dice pending), Azania initiated above were (collect Smith, 94 F.3d at that basis. in the re- requests resulted series Mohawk, 1485; cases); F.3d at Al ing County in Allen from judges cusal of three len, at 783. February appointment the case and our already the first Having reviewed Judge. Judge Special David II, in part of the Barker test Third, (again, while three factors in March 2004 prejudice. supra, we turn to discovery above were requests mentioned fourth — extent, measure requested that the pending), Azania jeopard- this case would any, the postponed trial date be penalty phase viability given ize of his defense at penalty, the the death will soon be Smith, penalty phase trial.18 released from prison. See F.3d This “future dan- Mohawk, 211; gerousness” very at 20 F.3d issue is relevant. This finding is based in part supported and penalty phase hearing, jury At a new the expert opinion contained would asked to make three determina- affidavit William filed Bowers (1) tions: proved whether the State has support defendant in of his motion which beyond a reasonable doubt existence of upon empirical was based extensive circumstances;19 charged aggravating penalty jury studies on death delibera- (2) whether the aggravating circumstances tions. acknowledges While the Court circumstances; outweigh mitigating under Indiana law that danger- “future (3) and whether Azania should be sen- ousness” is not a jury factor the is al- years. tenced to death or a term of I.C. during lowed to consider death (1982). § 35-50-2-9 contends deliberations, under specific facts of permitted if the State is to seek the death this which facts now include the penalty, prejudice he will be the victim of significant delay time between conviction in violation of his constitutional sentencing, all parties Court and process following in the respects: recognize must that there is no realistic (cid:127) delay The in this case will cause way prevent being issue from prejudice jury in that un- “the jurors they the minds of as deliberate doubtedly take into per- account the delay the case. Thus the has reached dangerousness ceived future of the de- constitutional proportions. fendant.” In addition to dangerous- the “future (cid:127) The in this case has resulted issue, mitigation ness” witnesses who in the unavailability important mitiga- could show the defendant’s “extreme tion witnesses. disadvantage worthy habits and ac- (cid:127) in this case has resulted complishments,” ], [Averhart unavailability witnesses 930-931, died, have including the de- evidence that are needed defend mother, aunt, family doctor, fendant’s against the State’s contention of ex- neighbors, spiritual advisor and co-work- charged istence of the aggravating cir- ers. In mitigation addition other wit- cumstances. nesses are now unable to be located. analyzed The trial court these claims of Further, 11 out prospective of 27 prejudice they and found that established State are witnesses dead or otherwise “speedy trial and due violations”: unavailable. These 11 witnesses consti- There is merit ar- Defendant’s tute the core of the aggravation State’s gument given plus year pas- precludes case and their unavailability sage of time original from trial and jury observing their demeanor and sentence to the most re- evaluating addition, then- credibility. cent death penalty proceeding, challenges defense has raised likely will conclude that the admissibility Defendant if testimony of the prior types Other charged aggravating sometimes found 19. The circumstances appellate delay result from oppres- (1) such intentionally killing were: the victim while sive pending appeal anxiety incarceration committing attempting robbery, to commit and concern of a convicted individual await- 50—2—9(b)(1)(1982); § I.C. 35— ing appeal clearly outcome of the are acting victim was a law enforcement officer Mohawk, applicable here. 20 F.3d at Cf. duty, 9(b)(6). § in the course id. 1485-86. to a death is sentenced instead upon tenced to based witnesses unavailable these position sup- years. term prior cross-exami- inadequacy Dr. J. ported by de- of William nation, fact that 1982 affidavit including the Bowers, provid- professor to have doctorate found counsel was fense director of of counsel who has served as the sociology assistance ed ineffective Jury Project, program cross- co-counsel’s Capital and penalty decision-making conflict to Mr. on the examinations were conducts research in- capital jurors, including interviewing interests. Azania’s jurors in who have served as dividuals Additionally, witnesses on other con- Dr. Bowers’s affidavit capital trials. the defense aggravation issue of cluded that: challenge wish to call would died, case have also aggravation long peri- State’s of such a passage With the including the who conducted crime, coroner from the of the od of time date the deceased. autopsy of jurors’ predispositions believe and the released Further, has will soon be physical evidence that the defendant some rays the X if he is not sentenced including prison disappeared, death, at the choice decedent, mug [moral] shot taken such a reasoned arrest, gun- in fa- and bias impossible, of the defendant’s time becomes test fire evi- un- penalty disks and the becomes shot residue vor of the death overwhelming. dence. avoidable together, the de- Taking these issues 712.) App. at (Appellant’s De- lay significantly compromised has argues “future correctly protections constitutional fendant’s aggravating cir- is not an dangerousness” to the Defendant prejudice result as a penalty under our state’s death cumstance pro- allowing will result such, and, jury cannot consider as law Penalty after the Death so with ceed request for a assessing the State’s it when elapsed. much time such, Azania’s conten- As death sentence. ¶ 14, (Trial App. Appellant’s Court Order case, the facts of this tion is that under the 929.) that a demonstrates science evidence social not be able to jury would evaluating supra, As set forth discharge of its in the the law follow a defendant’s delay has violated whether duties. issues of rights, we review constitutional ques standard using

fact a clear error jury principle It is a foundational tions of law de novo. law and jury will follow the system that a members. of its act on biases to fu- argument respect with Azania’s (Ind. 469, 473 622 N.E.2d Pruitt v. is as follows: because dangerousness ture 1993); 274 Ind. Webster jury prison long, will been so he has (1980). Indeed, very is N.E.2d be released soon that he will afraid could have trial how we hard to conceive death; and him to they sentence unless science evidence at all social by jury on the sentencing to death a defendant jury hypothetical part of a “bias” on is im- dangerousness of such future basis ad- party from the favored preclude of law. Under as matter permissible theory otherwise available vancing legal law in effect Indiana Instead, developed have we party.20 to the crime, person not sen- time of Azania’s rejected defendant's in which Deery, case Compare Jordan (a plaintiff presence of the (Ind.2002), argument malpractice a medical longstanding procedures protecting from any jury bias on account future against through dangerousness such bias largely extensive voir eliminated. dire, restrictions, carefully in limine argument jury tailored instructions. We believe unavailability important mitigation wit- protection these mechanisms afford from nesses follows: might that Azania otherwise Many mitigation of Mr. Azania’s wit- from jury suffer consideration of “future nesses are also deceased or avail- dangerousness.” able. Important people family in his died, have including his mother Furthermore, ultimate sen aunt, though and even his mother tes- tencing is not that of the decision but judge tified before the at the 1982 sen- respect, In this judge. the the law tencing, testimony pre- her was never governing this case differs from the law by pared Mr. Azania’s counsel and governing capital offenses committed to Moreover, lasted less than a minute. 35-50-2-9(e) (1982) (“The day. § I.C. Cf it is that impact obvious tran- a court shall make the final determination of script reading radically will be differ- sentence, considering after the jury’s ent from a mother’s testimony. live recommendation.... The court is not Also prior spiritual the defendant’s ad- recommendation.”) by jury’s bound dead, visor is and many people with (“If jury with id. (Supp.2006) reaches whom Mr. Azania worked the com- recommendation, a sentencing the court munity public around interest issues shall sentence the accordingl defendant prior to his arrest cannot be found. y.”).21 jury While the be must instructed could, they Even if the value of their subject requirements v. Caldwell testimony concerning Mr. Azania’s Mississippi,22 its decision as to whether substantially will achievements re- Azania would be sentenced to death or not passage duced of the because of time. is a recommendation to the judge, trial (Br. 23.) Appellee may years who impose a term notwith standing recommendation of death. think the unavailability See, e.g., 57, v. Jones 697 N.E.2d mitigation 58 of only witnesses is the conse (Ind.1998). the ultimate sentencing quence With that causes Azania preju judge, decision trial hands dice. He has constitutional jury, think we of prejudice vigorous effect mount mitigation case as he young child with palsy cerebral in all four to be followed in pre- such is that palsy extremities and Erb's in the left (1982), arm by § scribed I.C. 35-50-2-9 with such talk, involuntary who could not made move- Ring imposes. limitations as For an examina- sounds, sight impaired, ments and was tion of penalty phase various alternative out- walker) walked with the use of braces and a comes, Barker, 312, see State v. during prejudic- in the courtroom trial risked (Ind.2004). ing jury. constitutionally impermissible "[I]t Arizona, 584, Ring v. 536 U.S. 122 S.Ct. rest a death sentence a determination (2002), 153 L.Ed.2d 556 the United by made a sentencer who been led to jury, States Court held that a not a believe responsibility that the determining for judge, required aggravating find appropriateness of the necessary imposition defendant's death circumstance of the penalty. Mississippi, rests elsewhere.” v. deciding We assume Caldwell without 320, 328-29, Ring apply phase to a new 105 S.Ct. 86 L.Ed.2d However, (1985). trial. procedure we hold that the death”), rants a less than we Lynaugh, 492 U.S. sentence Penry can muster. 106 L.Ed.2d suf prejudice 109 S.Ct. hold Azania would Oklahoma, (1989); 455 U.S. Eddings v. unavailability fer because of of the (1982); 71 L.Ed.2d him mitigating witnesses identified Ohio, 586, 98 Lockett to violate his enough not substantial (1978). Juries can 57 L.Ed.2d 973 process rights. death, judges nor trial not recommend argument Azania’s it, they aggra find that the unless impose unavailability of witnesses and evidence beyond a proven circumstances vating against to defend the State’s that he needs outweigh state doubt reasonable charged of the contention existence I.C. mitigating circumstances. all of the is as follows. aggravating circumstances (1982). 35-50-2-9(e)(2) However, § First, eyewitnesses, four he identifies do that this rises to not find its “upon whom the State based pro Azania of his due depriving level of case,” shooting Lt. Yaros It from the rights. appears record cess longer “no to give who are available live all of witnesses many these Second, says he testimony.” also unavailable at second were “key expert” ballistics is dead. State’s trial, penalty phase at which he advanced Third, says he that at least two “additional im argument unavailability no that their present in- material witnesses who were process rights. See pinged upon his due robbery during side the bank are also Azania, At new N.E.2d at 651. 730 Fourth, he says dead or unavailable.” confident, trial, phase we are Aza penalty him testimony a witness whose linked to highly cred nia will be able to assemble fired aspects weapon of those of State asserts presentation ible community upbringing fifth, and involvement says final And he shot dead. weight. If mitigating that are entitled to physical certain and forensic evidence has evidence, present to this we be he elects including gunshot been lost appropri will make an lieve discs, x-rays taken of Lt. Yaros residue mother, that his ate allowance for fact from the prior autopsy, to and shirts test aunt, no advisor are prior spiritual and expert. fires conducted the ballistics And, course, of Azania will longer living. trial, At penalty phase a new evi opportunity presenting of have proving have burden of again Polk, remorse, 401 F.3d of Jones v. dence beyond a doubt each of the reasonable (4th Cir.2005), testimony of 257 charged aggravating elements of the two spiritual advisor and others any current (1) circumstances, wit, intentionally to kill- and contribu accomplishments as to his ing committing while or at- the victim incarcerated, Skipper v. South tions while § tempting robbery, to commit I.C. 35-50- Carolina, 106 90 476 U.S. 9(b)(1)(1982); victim was a 2— (1986); Coyle, L.Ed.2d Davis acting law enforcement officer Cir.2007). (6th In sum F.3d 9(b)(6). § duty, id. While the course of mary, given provided latitude the wide witnesses and this unavailability of these mitigat in presenting capital defendants it more difficult for may evidence make Dretke, circumstances, Tennard v. ing the State’s against Azania to defend 274, 284, 159 L.Ed.2d difficulty far greater that it creates we find (2004) (in cases, a court must proof. of to meet its burden for the State expansive in “the most define relevance fact, one the witnesses point every of of In terms”; “if is relevant the sen- evidence as not specifically identifies that Azania reasonably find that it war tencer could eyewitnesses four to time was being available—the attributable of failures shooting, expert, the ballistics the wit- justice system. State’s criminal Ultimate- bank, weapon- inside the and the nesses it, as I ly, presents see this case an issue of wit- linking witness —were all State’s punishment. cruel unusual Hawk, In nesses. States Loud United Twenty-five years passed have since said, the United States Court Azania was convicted of this crime “[D]elay two-edged is a It sword. is the explained As below and as the trial court Government bears burden of found, the bulk that time is attributable proving beyond a its case reasonable flaws in justice system, the criminal passage may doubt. The of time make it anything did. the meantime or impossible difficult for the Government Azania has remained a death row inmate. carry out this burden.” U.S. at That at amount time on death row the pre- 106 S.Ct. 648. We think that that is unusual; hands others is not it is ex- cisely unavailability the result of the I traordinary.1 pur- conclude that further these witnesses and this evidence. Azania penalty suit the death vio- this date showing prejudice has not made a lates the Indiana by imposing Constitution unavailability wit- these punishment that is both cruel and unusual. nesses this evidence. Accordingly, I would affirm Judge David’s hold that the resulting dismissing pursuit order further case will not violate Aza- penalty death this case. process rights nia’s due if the State seeks Azania contends that his constitutional of law has been violat- trial. by this passage ed of time. majority The Conclusion responds that to the delay extent is caused We reverse judgment the trial the defense, by the Azania cannot heard to court and remand for a penalty phase complain of I agree. majority it. But the trial. proceeds delays to attribute the in Azania’s to case keystone Azania. The of the ma- SHEPARD, C.J., DICKSON, J., jority’s reasoning is holding its concur. determining the cause “dur- RUCKER, JJ., BOEHM and dissent ing which the defendant has the burden of separate opinions. with prosecuting appeal either an or petition review,” for collateral the defendant bears BOEHM, J., dissenting. burden demonstrating the that the State respectfully I agree dissent. I with Jus- the process. slowed tice Rucker that due can concerns respectfully I submit that proposi- this arise if the passage of time substantially is both tion novel and indefensible. As for impairs opportunity the of a defen- novelty, only I present majority dant note mitigation cites evidence. How- ever, view, my authority, no I solely is not and find none. pas- The facts of sage of long journey substantial amount of that Azania’s through time the criminal concerns, can raise these but whether that processes of this state show the fundamen- petitioner’s Knight The time on death row in length far exceeded the of time in few Florida, cases that then Lackey had addressed claims. L.Ed.2d 370 had twenty-four reached 998-99, J., Id. at (Breyer, S.Ct. 459 dis- years and six months when senting). petition Court denied his for certiorari. This performed up if Azania’s counsel had Azania was been this doctrine. tal unfairness of snuff, obligated and his appealed, He and because State in 1982. convicted counsel, affirmed and conviction were provide sentence effective shortcom- review sought post-conviction State, He 1984.2 ing not to is attributable by post- was denied relief 1985 and short, the Azania. Constitution and in appealed, court. He conviction United States the Indiana Constitution reversed denial 1993 this Court provide system require the State sen- relief as to post-conviction justice that is criminal consistent tence, finding that Azania’s Sixth Amend- process of requirements of due law and had right to counsel been ment effective system fairness. That in- fundamental by present any violated counsel’s failure courts, prosecutors, and public cludes de- phase.3 evidence at the mitigating indigent. If fenders for those who are passage majority attributes post-conviction or relief is success- appeal would have to Azania because he time ful, only time to the defen- attributable post-conviction relief appealed sought dithering in achieving dant’s that result is evi- had not withheld even fairly by deemed caused the defendant. majority is correct Presumably dence. caused whether in The rest is appeal would have launched an that Azania person prosecutor responsible relief whether sought post-conviction mistrial, the commit- judge for a who or State had withheld evidence. not the error, ted or defense counsel reversible of the death The 1993 reversal provided State whose substandard of coun- grounded on ineffective assistance performance produced retry the need to evidence, sel, withholding of but case. purposes. The not matter for these does case, our 1993 noted that In this decision it was a success- point here is whether was “a of amendments long there series wrongful ful based on State’s appeal post-convic- legal maneuvering” in the upon ineffective withholding of evidence proceedings. tion Averhart counsel, attribut- either case (Ind.1993). Presumably N.E.2d provide to the State’s failure able fairly of this was attributable to much necessary working proper element to the by in trial court Azania. maneuvers the prosecution. criminal of a light history of subsequent But in of the terms, if the seeks to kill simple In State case, that at it is sufficient to note this it to it That being, get right. a human has years 1982 and 1993 the five between least trial, provides fair not a means it albeit by appeals the two that were consumed one, by free error perfect of reversible by the defense. cannot be deemed caused prosecution It trial court. also means for a new the case was remanded After and not create plays by the rules does 1993, delays in were first penalty phase exculpato- withholding by error reversible motions to dis- by the State’s occasioned evidence, misleading jury, or other- ry and two defense counsel qualify appointed And, importantly in this wise. Ultimately by counsel. experts retained appointed has that the trial court means A experts resigned. and the counsel adequate provide counsel defense who by conducted penalty phase was second by Sixth guaranteed representation counsel, African-Americans were but know what the We cannot Amendment. excluded inadvertently improperly but phase have penalty of the result (Ind. (Ind. 614 N.E.2d 924 3. Averhart v. 470 N.E.2d 666 Averhart v. 1993). 1984). 1012 jury pool. justice system This was affirmed for which he bears no re- 2000,4 in appeal post- sponsibility. but a second presented

direct Azania has proceeding was authorized grounded conviction in appeal as one discovery based on the of evidence of the rights. Surely trial these bodies In jury pool. problem in the are law relevant and contain instructive again penalty a new ordered before principles. But ultimately, as Indiana jury.5 All nine of properly composed 24, in recognized adopting Criminal Rule years ap- these were attributable to the death is different.6 That is difference of defense counsel who ulti- pointment irreversibility most obvious mately resigned at the State’s insistence death sentence once it is carried out. For county’s jury pool and to errors prosecutors reason must exercise None of this process. selection was at than in selecting more usual care cases defendant, 2002, hands of the so at least sought; which the death twenty years fourteen of the that had precautions courts must take additional to solely conviction passed since Azania’s are see that the case properly; is conducted attributable State. appellate give courts heightened levels remand, in January On Azania moved of review. There is an additional differ- County case transfer the to Lake ence in most cases does not into come and later select Texas, from that coun- 1045, In play. Lackey v. 514 U.S. ty. April These motions were denied in 1421, (1995), 115 S.Ct. 131 L.Ed.2d 304 resulting 2003. The of three months initially Justice Stevens called consid- may properly as caused viewed eration of passage whether the of time years Judge until defense. two years alone—in that case seventeen —is David’s on June dis- decision question sufficient to whether either retri- penalty phase miss the was consumed with bution or justify deterrence continues to ordinary discovery practice. motions Echoing execution. those concerns delays appear Some to be due to the Florida, Knight 528 U.S. 120 S.Ct. responses discovery State’s slow (1999), Brey- 145 L.Ed.2d 370 Justice motions, presumably but there is force er noted that have courts described im- majority’s assertion that the defense prisonment under threat of impending exe- hurry case is in no often reach “horrible,” cution as “dehumanizing,” and only a resolution. When toll,” exacting frightful “a frequently lead- remaining gains issue plau- that contention ing to attempts insanity. suicide Id. I sibility, majority so assume 120 S.Ct. (quoting re Med- time, say passage eighty percent, or ley, years thirty two months from Janu- (1890); Anderson, L.Ed. People ary through 2003 June can be viewed CaLRptr. Cal.3d 100 P.2d 493 by the as caused defendant. (1972); 894 Georgia, Furman v. 408 238, 288-89, The net result this exercise is that 33 L.Ed.2d spent years (Brennan, J., Azania has at least fifteen on 346 concurring)). due death row to flaws the criminal only Azania’s case we have not a longer (Ind.2000). N.E.2d apply prosecu- tal case do that not in criminal Azania generally. tions Normal Lef- generally See (Ind.2002). N.E.2d Azania stein, Representation in Reform of Defense Capital The Experience Cases: Indiana and Its unfortunately 6. Criminal Rule 24 came sever- Nation, Implications Ind. L.Rev. years imposes al after Azania's conviction. It (1996). specific requirements capi- a number on a free- punishment and unusual as either a twenty-five years— on death period row— claim, factor that compounding standing Eighth Amendment also have treatment years of that was in- least fifteen claim that the Fourteenth Amendment is, in my That others. Amendment, to mistakes of Eighth or corporates Thankfully, it is unusual.7 view, cruel. prohib- Indiana Constitution claim today row who on death have inmates penalty. recog- the death I imposing its many years ago, but none were convicted Supreme Court of the United nize that the delays occa- extensive victim of such is the Lackey claim yet States entertain by the State. sioned despite invitations Justices Stevens Breyer do I cannot clear, so. therefore Azania has majority makes As the such a claim is established in terms of the conclude that his claims presented do, Federal Consti- I under the Federal Constitution. Amendment Eighth I, however, of the Section 15 reasoning tution or Article find Justices Constitution, pro- both of which Breyer Indiana to be persuasive Stevens and punishment. cruel and unusual hibit would hold that the Indiana Con- therefore speedy only that his argues Rather prevents pursuit further stitution process rights have been trial and due case. this violated, found a denial judge the trial of law based on the inordi- process RUCKER, Justice,

of due dissenting. by the State. passage of time caused nate given agree I with the trial court that routinely treat acknowledge that we I delay by long caused circumstances presented when an or not claims waived rights in this Azania’s constitutional raise or asserts a them appellant does process to a trial and due support- conclusory terms with no claim continues to seek a violated independent reasoning. authority or ing A of the due part death sentence. however, I maxim invoke the again, Once Eighth Amend- violation includes Azania’s I do not believe that death is different meaningful present ment evidence directly resolve issue we should to do is of mitigation. inability His so validity of death sentence affects the the State from preclude sufficient itself forfeiture, waiver, similar grounds of Therefore I seeking penalty. the death issues, at when the sub- procedural least dissent. fully present- argument stance of the goal The defendant’s length by sides. Here the issue ed both simple: quite of a fully delay about were and how came accomplish To this his or her life. save only question is whether presented. history, social relevant end a defendant’s addressing ourselves we should restrict evi- history, and other psychological implications as an issue relevant are dence the defendant deems due process of Fourteenth'Amendment mem- through family generally introduced from the prejudice resulting reason co-workers, associates, bers, friends, I the claim is passage of time. believe accu- hopes defendant others. The that the result as a claim best understood them stacking facts and mulating relevant impose case is to cruel 1990, Stewart, have and of these before four According to Indiana curred Steven D. Capital appeals, post- Row Punishment relief from their Death 2006: obtained no 2006), 1, only (July six there are Indiana cor- proceedings, or federal habeas conviction currently on death row defendants in Indiana pus petitions. pleas guilty or that oc- based on convictions 1014 (1976) weight aggravating of cir-

against the the 49 L.Ed.2d 929 (plurality opinion); Florida, 242, v. 428 U.S. cumstances of the crime the senteneer will 96 S.Ct. Proffitt 2960, (1976) 49 (plurality opin L.Ed.2d 913 deserving find the defendant is of a term ion); 153, 2909, Gregg, 428 U.S. 96 S.Ct. 49 years of than the ultimate sanction. rather (plurality opinion). Building L.Ed.2d 859 process, the through presenta- It foundation, upon the plurality Woodson mitigation tion of the that an individ- the Supreme of Court held in Lockett v. judgment ualized is attained.1 it is And Ohio, 586, 604-05, 2954, 438 U.S. 98 S.Ct. judgment ultimately the individualized (1978), 57 L.Ed.2d 973 Eighth the and capital punishment saves constitu- require Fourteenth sen Amendments under invalidity Eighth tional and be precluded tencer not to from consider Fourteenth Amendments.2 factor, ing, as a mitigating any aspect of a Plurality opinions penalty five death any defendant’s character or of the circum day cases decided on the same first 1976 of stances the offense that the defendant capital recognized Eighth defendant’s proffers as a basis for a than sentence less present mitigating Amendment ev death. Exclusion of such evidence was Louisiana, v. idence. Roberts 428 U.S. observed to the risk that “create[] 3001, (1976) 325, 96 49 S.Ct. L.Ed.2d 974 imposed will be spite of (plurality opinion); v. Woodson North Car may factors which call for a less severe olina, 280, 2978, 428 U.S. 96 S.Ct. 49 605, penalty.” Id. at 98 S.Ct. 2954. Sub (1976) (plurality opinion); L.Ed.2d 944 Ju sequently, majority clearly of the Court Texas, 262, 2950, rek 428 v. U.S. 96 S.Ct. embraced holding Eddings Lockett’s long recognized 1. The Court requires ... there be taken into account desirability sentencing of this individualized together circumstances the offense Marsh, in capital scheme cases. Kansas v. propensities the character and of the offend- -U.S.-,-, 2525, 2516, 126 S.Ct. 165 er.”). (2006) (“The L.Ed.2d 429 mitigation use of product requirement evidence is a of the Brown, 541, 538, U.S. 479 107 California sentencing.”); Gregg individualized v. Geor- 837, (1987) (Eighth S.Ct. L.Ed.2d 93 934 153, 189, gia, 428 U.S. 96 S.Ct. 49 jurisprudence Amendment establishes that (1976) ("We (plurality opinion) L.Ed.2d 859 capital generally defendant must be al- long recognized have for determina- lowed to mitigating introduce relevant ev- sentences, justice generally requires tion idence.); 193-95, Gregg, 428 U.S. at 96 S.Ct. that there be taken into account the circum- (Mitigating aggravating 2909 factors do together stances of the offense with the char- guidance provide sentencing authority (cita- offender.”) propensities acter of the thereby reduce the likelihood that will omitted); Oklahoma, tions Williams v. impose sentence, capricious arbitrary 576, 585, U.S. 79 S.Ct. 3 L.Ed.2d 516 prohibited Eighth which is under (“In (1959) discharging duty imposing Woodson, Amendments.); Fourteenth sentence, proper thorized, sentencing judge au- ("While pre- required, if not to consider all the vailing practice individualizing sentencing mitigating aggravating circumstances in- generally simply determinations reflects en- crime.”); York, volved in the Williams v. New lightened policy rather than a 241, 247, constitutional 337 U.S. 69 S.Ct. 93 L.Ed. imperative, we believe that in cases ("Highly relevant—if essen- humanity fundamental sentencing under- judge’s] [a tial—to selection anof lying Eighth requires appropriate Amendment consid- possession sentence is the of the possible eration of fullest the character and record of the concerning information characteristics.”); defendant’s life and individual offender and Penn- the circumstances of Ashe, sylvania particular ex constitutionally rel. Sullivan v. offense as a in- (1937) ("For dispensable part L.Ed. inflicting sentences, justice death.”) (citations omitted). determination generally

1015 113-14, advisor, people or with whom Oklahoma, spiritual 455 U.S. (1982). he to his arrest. prior worked corollary- The 71 L.Ed.2d 1 points to nec- mitigation these witnesses as may not refuse to that the senteneer rule essary to “ex- explain his character and precluded considering from be consider or disadvantage worthy treme habits and equally evidence is mitigating relevant Br. of accomplishments.” Appellee Carolina, v. South undisputed. Skipper inconsequential No testi- matter how their 1, 4, 90 L.Ed.2d 1 S.Ct. might against mony seem to Court (1986). now articu The Court killing heinous crime of an officer while jurisprudence part as mitigation its lates committing robbery, that a bank is not for precedents our aggregate, follows: “In The a right us to decide. defendant has to pres upon right to defendants confer evidence, present mitigating all relevant information relevant to sentencers with ent spoken expansive which is of in the most oblige decision and sentenc sentencing to all “evidence terms mean which tends that information in deter to consider ers to fact logically prove disprove or some or Marsh, mining appropriate sentence.” rea- circumstance which a fact-finder could Indiana’s death 126 S.Ct. at 2525. sonably mitigating deem to have value.” provides also for the sentencing scheme Dretke, 274, 284, Tennard v. mitigating consideration individualized (2004) (cita- 2562, 159 L.Ed.2d S.Ct. Eighth and Four required factors omitted). question simply tions comports with Amendments and teenth might whether the evidence serve Supreme Court’s hold the United States basis for a sentence less than death. Id. by allowing sentencing court to ings 124 S.Ct. 2562. “Once this low circum mitigating “any other consider as met, Eighth relevance is threshold for for consideration.” appropriate stance requires able Amendment be Moore to a give consider effect (Ind.1985) § (citing Ind.Code 35-50-2- mitigating Id. at defendant’s evidence.” (1977)). 9(c)(7) (citations omitted). 285,124 presents the unusual situation This case recognizes in its brief The State practical pur- where defendant all unavailability problematic, of witnesses is mitiga- poses precluded presenting from availability prior testi- points but to the passage twenty- tion evidence mony presented that can be the new years since the commission six preju- jury as mechanism lessen experienced judge, crime in 1981. An passage of time. dice suffered acknowledged “supportive that he is who Appellant at 15-16. Amended Br. Penalty and be- of Indiana’s Death law Granted, prevail criminal defendants who Penalty appro- is an that the Death lieves have a delayed appeal ordinarily will appropri- priate imposed sanction to of the full- and reliable record complete circumstances,” nonetheless found ate in which fledged proceeding adversarial “present Azania’s in this case convicted, cir- they have albeit under been severely preju- mitigation case would be requiring reversal. United cumstances by delay diced between his conviction (9th Mohawk, 20 F.3d States were sentencing the State allowed Cir.1994). has this for- appellant Such Penalty.” Appel- proceed Death combating testimony as a means of mer I App. lant’s at 930. would defer any prejudice upon the identifying at least trial court. might arise prospect of retrial Id. To the extent Multiple mitigation passage witnesses are now of time. mother, trial record as pri- refers to the 1982 deceased, including: any mitigation future who helpful Azania er confronts him the flesh. I our phase, given this record is deficient therefore conclude that a de- ruling pre- right present mitigating that counsel was ineffective fendant’s mitigation fully case. Indeed senting the evidence cannot be realized if little more than only observed that counsel did that evidence can be submitted place the stand and through Azania’s mother on let the medium of a rec- paper unguided colloquy in give response her an ord. question any-

to the of whether there was 738, 771, v. Mississippi, Clemons 494 U.S. she wanted to tell the court. Aver- thing 1441, 110 S.Ct. 108 L.Ed.2d 725 (Ind. 924, 614 N.E.2d hart (citations (Blackmun, J. omit- dissenting) 1993). Apparently mitigation some evi- ted). in the presented dence was 1996 trial. See Having the best available information (Ind. 646, Azania v. possible concerning the defendant’s life 2000) (noting presented defendant relevant, and character highly proved evidence and the existence of four essential, to the selection an appropriate not, However, we do mitigators). due to Lockett, 603, sentence. U.S. witnesses, the death of these know what S.Ct. 2954. The consideration of Azania’s more Azania’s witnesses could us tell that mitigation constitutionally evidence is a in- mitigating beyond could have a value what dispensable part of imposing explored Again, in 1996. the thresh- Brown, penalty. the death low, Supreme old is and the Court has 541, Thus, 107 S.Ct. I 837. would affirm “[a]ny made clear that barrier the sen- [to judgment trial court’s that under the mitiga- tencer’s consideration of relevant circumstances of this the State is in capital tion must ... fail.” cases] prohibited from seeking the death Carolina, McKoy v. North 494 U.S. against this Defendant. 108 L.Ed.2d 369 (1990). When the Court held defendant has a constitutional factors, mitigating consideration of “clearly envisioned that that consider- WEST AMERICAN among

ation would occur INSURANCE sentencers who COMPANY, Appellant- present were to hear the evidence and Defendant, arguments and see the witnesses.” Cald- 320, 331, v. Mississippi, well (1985). 86 L.Ed.2d 231 I would Individually CATES, Brenda and as Per- echo the words Justice Blackmun: Representative sonal Estate of More than other decision known Cates, Jr., Dylan Cates, Bernard law, to our the decision whether to By Friend, Cates, His Next Brenda impose the death penalty involves an Appellees-Plaintiffs. himself, assessment of the defendant No. 42A01-0601-CV-26. n simply a determination as to the facts surrounding particular Appeals event. Court of of Indiana. And adequate assessment of the Feb. 2007. procedure defendant —a recog- which Publication April Ordered nizes treating the need for each defen- Transfer May Denied in capital dant degree case with that respect due uniqueness surely requires a sentenc- individual —

Case Details

Case Name: State v. Azania

Court Name: Indiana Supreme Court

Date Published: May 10, 2007

Citation: 865 N.E.2d 994

Docket Number: 02S03-0508-PD-364

Court Abbreviation: Ind.