*1 the recommen- under the belief phase Indiana, Appellant STATE might well advisory only will be
dation (Plaintiff below), phase in guilt from the evidence withhold present sentencing will that the the belief mat- to opportunity an additional Chijoike BEN-YISRAYL, Bomani f/k/a judge. to the ters Davis, Appellee agree do not I therefore below). (Defendant harmless error necessarily every instance No. 49S00-0308-PD-391. ruling as to reverses its if the trial court jury's recommen- binding effect of Indiana. Supreme Court a continu- dation, the defendant and denies May25, 2004. newly announced adjust to to ance Helsley point not to But standard. present- have he claims he would
anything given if developed he had been
ed or
continuance, he has not established so in denial of the continuance. error
versible identify any matter was does he
Nor jury, have been to the but would
presented adjust to the new if he had time
omitted any show He thus fails to
procedure. For that from the confusion.
prejudice alone,
reason, agree I with reason and that Helsley has not estab- majority error.
lished reversible J., part. portion expressing for that
Exeept aggrava- weight given
view subject to a mitigators
tors and standard, fully I concur I Boehm's
with Justice capital pun- that before
continue to believe imposed must be
ishment can be beyond a reasonable doubt convinced outweigh mitigating cireumstances. See Ritchie No. 49800-0011- 2004) (Rucker, May
DP-638
dissenting part).
310
the defendant's motion to dismiss the
penalty
request, concluding
death
the
penalty
death
statute is unconsti
Indiana
it
a
permits
tutional because
of
sentence
requiring
jury
death without
the
to find
beyond
aggra
a
the
Carter, Attorney
Steve
General of
vating circumstance or cireumstances out
Creason,
Indiana, Stephen
Deputy
R.
At-
cireumstances,
weigh any mitigating
which
General,
IN,
torney
Indianapolis,
Attor-
the trial court believed violated Apprendi
neys
Appellant.
for
Jersey,
v. New
U.S.
S.Ct.
Johnson,
Gray
Russell A.
Johnson
& 2348,
(2000),
Ring
The trial court certified
order for
DICKSON, Justice.
interlocutory appeal. Because the Court
Appeals
jurisdiction
of
has
over interlocu-
brings
interlocutory ap-
The State
this
14(B)(1),
tory appeals, Ind.App. R.
peal
holding
of the trial court's order
the
granted
petition
the State's
to transfer
Statute,
Penalty
Death
Indiana Code
Ap-
before consideration
the Court of
35-50-2-9,
unconstitutional,
dis-
56(A),
peals,
R.
App.
accepted ap-
and we
for
death
pellate jurisdiction
interlocutory
over the
penalty,
remanding
and
for a
14(B)(1).
R.
appeal.
App.
The
hearing
years
only
where a term of
is the
dismissing
court's order
option.
available
We reverse and remand
holding
and
for
of
penalty
reinstatement
the death
unconstitutional
on
was issued
the same
quest.
day
similarly
trial court
same
defendant, Chijoike
Bomani Ben-
ruled
the case of
which
Yisrayl, formerly
known
today.
we also decide
Davis,
murder, burglary,
was convicted of
ment" sections of the State's briefs in Ben- sections of its brief in Barker. decision, Ben-Yisrayl present any any fact doubt a reasonable yond a result different from requiring for the basis eligible defendant makes a murder Barker.2 only applies Indiana scheme under the circumstances only arguments Having presented cireumstances, not the these because *3 Barker, Ben-Yisrayl's appeal in advanced factor, that determines "outweighing" in Barker. governed by opinion our be consid eligibility to defendant's murder sentence. for the death ered the trial order of We reverse court's 27, 2003, finding that Indiana Code June Ben-Yisrayl's section of argument § and dis- 35-50-2-9 is unconstitutional declaration consists of his brief appellate for the death argu- incorporates the "adopts that he for reinstatement of penalty. We remand Barker, in by appellee" ment advanced penalty request and for additionally em- except that previously phase proceedings as case, that of in unlike his phasizes by this Court. ordered Barker, jury could not penalty phase Appellee Br. at 4. reach a decision. SHEPARD, C.J., and SULLIVAN and today in in our decision As we discussed BOEHM, JJ., concur.
Barker, recently held that "the this Court does not Penalty Statute Indiana Death in concurs result with interpret- as Amendment violate the Sixth Ritchie v. Ring." Apprendi ed 258, 268, 2004 WL RUCKER, J., in result. Because the beyond a reason- need not be found factor in for the reasons ex I concur result require- omission of such able Barker, No. 49S00- pressed statute, ment in the Indiana 312, 0308-DP-8392, 809 N.E.2d 2004 WL 85-50-2-9(F), (Ind.2004) (Rucker, J., concurring § does not render Ritchie, 809 unconstitutional. result). at 2004 WL N.E.2d conclusion to the court erred
contrary. Barker, we set forth
For the reasons arguments urging
reject alternative dismissal of the death
affirmance As to grounds. on other
the fact that Barker's death, Ben-Yisrayl's but
recommended to reach a
jury was unable Barker, stated that wherein the court today date in affect our decisions 2. While it does not 9F), "although improper, does not Ben-Yisrayl, note that subsection in Barker or constitutionality of I.C. 35- jeopardize the removing subsection trial court found statutory framework 9(f) operative inasmuch complete and 50-2-9 leave a "does not viable, intact, in the absence of by Brady remains required [v. statute as offending subsection." (Ind.1991) Appellant's ]." N.E.2d 984-85 appears WL Appendix 236. This inconsistent at N.E.2d 316 n. on the same trial court's order with the same