*1 lаwyer. He and judge disregarded sumed that inadmis- trial examined testimony deter- weighed only proper sible and the witnesses in a cross-examined manner, including evidence in those capable whether the State mined and therefore, its proving béyond cannot, say carried burden of a rea- question here. We sonable doubt that the defendant commit- question actions one that his State, crime. Misenheimеr v. (1978) ted in- psychiatrist asked of each showed such State, Ind., 523, 528; 374 N.E.2d Fletcher so competence inadequacy, and and further (1976) 264 Ind. 340 N.E.2d prejudiced appellant, proceedings that State, 773; Kleinrichert v. 260 Ind. justice shocking to the mockery were 297 N.E.2d 826. find Accordingly, we do not conscience. show- appellant that carried his burden of Appellant insanity, a defense of and think error the issue. We reversible one of the court-appointed psychiatrists was there sufficient evidence from was Dr. Patrick H. Weeks. he testified After appel- could have found he appellant examined was repre- adequately competently lant was opinion appellant at the time was sane sented. act, of the commission of this Dr. Weeks was asked hypothetical question. This error, affirm no Finding reversible we question set out shooting the facts of the judgment of the trial court. asked, on reasonable based shooting certainty, spon- medical if the was concur. All Justices taneous so as preclude premeditation. doctor answered that he did not think appellant object did. Counsel for did not question
to this answer move to
strike. On this appellant basis inad-
equacy in the lack of his action counsel. addition, court-appointed psy- the second chiatrist, Gutierrez, Dr. Peter G. was asked Indiana, Appellant, STATE of by appellant’s counsel:
Q: “You person don’t feel can or could immediately spontane- react McCORMICK, Appellee. A. Jesse ously?” No. 879S210. person A: “A could. I do not feel that this one was.” Supreme Court of Indiana. Appellant argues Record 338. that his Dec. counsel should have strike the moved to second оf the answer because it
was a and not re- volunteered statement
sponsive question. also Dr. Gutierrez
testified that opinion appellant in his
not insane at the time of this crime. involving
Like the question windshield, appellant
bullet holes in the has
taken out of questions context two asked of expert witnesses, his and claims counsel inadequate questions because the were responded appellant to in the manner they
felt deserved. The shows that record
appellant’s lawyer great had a deal of
experience in the criminal court and was very proficient capable
considered a
PIVARNIK, Justice. originated in a infor- two-count
This case Vanderburgh Circuit Court. filed in mation venue to change of obtained a Defendant Court, сhange of and a Vigo Superior filed a motion judge. then Defendant The the information. II of dismiss Count interlocutory granted, and this was motion Ind.R.App.P. Pursuant appeal follows. first to the 4(B), appeal was taken Ind.R.App.P. Appeals. Under then 4(A)(8) 15(M), cause transferred to this Court. seeks the death prosecution
The 35-50-2-9 Code § in this case Ind. establishes (Burns This statute Repl.). to be used impose the death whether to rea- prove beyond a allege and State must least one of at doubt the existence sonable listed “aggravating circumstances” pro- further statute. The statute listed on a is to be allegation vides that charging the rest of page separate from has been guilty If a verdict instrument. charge, proof of principal obtained oc- alleged aggravating hearing hearing. This curs at a рrincipal the trial of from bifurcated charge has been charge. principal If the hearing is jury, tried to a jury. same before the conducted are as follows: the mur- committed The defendant killing the victim intentionally by
der attempting to com- committing or while molesting, arson, burglary, child mit conduct, kidnapping, deviate rape, robbery. or the mur- committed (2) The defendant detonation by the unlawful der injure person intent to explosive with damage property. Lantz, R. Atty., Pros. Scott Jeffery L. the mur- committed (3) The defendant First Bowers, Deputy Atty., Pros. Ju- Chief in wait. Circuit, Evansville, by lying L. der Theodore dicial Sen- Blowers, dak, Gen., Deputy Atty. Phillip R. committed (4) The defendant who Gen., appellant. for Atty. Indianapolis, to kill. was hired mur- (5) The defendant Bunner, Standley, L. Ev- Barry John G. kill. person hiring another der ansville, appellee. (6) The victim of pertinent disposition the miirder was a cor- The facts employee, fireman, rections judge, or law appeal January are as follows. On officer, enforcement (i) and either Vanderburgh County prosecutor acting victim was duty in the course of against Jesse two-count information (ii) the murder motivated A. McCormick. Count I under Ind. *3 performed victim acting while in the (Burns Repl.) Code 35-42-1-1 1979 § course of duty. strangled Douglas Overby McCоrmick (7) The defendant has been convicted of 5,1978, causing October him to die on Janu- another murder. 35-50-2-9, ary su- Pursuant § (8) The defendant has committed anoth- pra, allegation Count II sets forth an which murder, er time, any regardless of allegedly constitutes one of whether he has been convicted of that This count other murder. alleges that Ha- McCormick murdered one (9) The defendant was under a sentence Mаy rold Lewis on 1977. As stated in of imprisonment life at the time of the information, prosecution alleges murder. that “the murder said of Harold Lewis [is] Ind. Code 35-50-2-9(b) (Burns § 1979 circumstance of the crime Repl.). The statute provides also for the ” charged murder as in Count I. . . introduction of following evidence of the brought This count subsection mitigating circumstances: (bX8) statute, supra, of the death (1) The significant defendant has no his- providеs may prove, that the State tory prior criminal conduct. circumstance, that “the de- (2) The defendant was under the influ- fendant has committed another ence of extreme mental or emotional dis- time, any regardless of whether he has been turbance when he committed the murder. convicted of that other murder.” (3) The in, victim was participant a to, consented cause, defendant’s conduct. separate In a defendant McCor- (4) The accomplice defendant was an mick charged also stands in the Vander- a murder person, Court, burgh re- Circuit an indictment participation defendant’s was rel- 24,1978, turned October with the murder of atively minor. Harold Lewis. McCormick has not been (5) The defendant acted under the sub- tried on charge, although charge stantial person. domination of another still pending. The State and defendant (6) The capacity appreci- defendant’s stipulated killings have that these two ate criminality of his conduct or to not any way. They related or connected in conform his conduct requirements to the have stipulated: further of law substantially impaired as a “The alleged evidence of the homicide result of mental disease or defect оr of of Harold Lewis or evidence of Jesse intoxication. McCormick’s conviction if in fact he (7) Any other appropriate should be convicted of said homicide for consideration. would be admissible in the State’s 35-50-2-9(c). addition, In plurality relating case in chief in the trial the United States Court has held homicide Overby any pur- of Doublass for that the sentencer must be allowed to con pose intent, including proof knowledge, sider, factor, mitigating as a “any aspect of motive, scheme, design, identity, common a defendant’s character any or record and plan, gestae, res or mistake. of the circumstances of the offense that the alleged The evidence of the homicide of proffers as a basis for a sentence Douglass of Jesse Overby or evidence less than Ohio, (1978) death.” Lockett v. 586, 604, McCormick’s conviction if in fact he L.Ed.2d (opinion Burger, J.) should be convicted of said homicide C. (footnotes omitted). would not be admissible State’s prescribed by legis- within the limits relating chief in any purpose Lewis lature. homicide of Harold for intent,
including proof knowledge, mo- tive, scheme, identity, design, common intervening years there have been plan, gestae, res or mistakе.” developments two constitutional Record at 45. capital- us to require scrutinize closely than sentencing procedures more Defendant McCormick a motion to in, 1949. necessary II, claiming dismiss Ind. Count Code 35-50-2-9(b)(8) have on its is unconstitutional five members of the recognized face his death is and as case. While now any punishment from motion raised several alterna- different kind of defendant’s . grounds impоsed other which finding tive the statute unconstitutional, disposed of *4 only ground. According-
the motion on one to the defendant importance It vital is of ly, this issue before question one is the any decision community and to the that this Court. The trial court held that sub- be, ap- impose to the death sentence case, (b)(8), section as to denies be, pear rather than to based reason process the defendant of law. due or caprice emotion. State, appellant, as the trial contends Second, it the sentenc- is now clear that ruling. urged in It is erred satisfy . the ing process . . must the has Supreme ap- United States Court Process Clause. requirements of the Due proved procedures which allow the sen- of
tencer to consider other crimes the defend-
357-58,
1204,
at
51
430
97
U.S.
S.Ct.
allegedly
ant
for which
omitted).
(footnotеs
L.Ed.2d
401-02
there
in
have been no convictions
determin-
Thus,
v. New York
we do not find Williams
impose
or
whether
not to
the death
present
of
issue.
to be determinative
the
York, (1949)
penalty. Williams v. New
337
A
and recent
of our statute
consideration
241,
1079,
U.S.
69 S.Ct.
“[W]hen significant no difference any constitutional statuto- between and lesser 35-50-2- ry mitigating 9(d). require- for crime had been to these addition punishments recognized by ments, Supreme Court this Court. At time the United States principles general that after a assumed has established other offense, hearing in capital like govern convicted of a pen- the death any offense, imposition had other a trial com- case where plete impose any alty sought. discretion to 280 essence,
It is clear
be tried for the murder of Harold
that due
considerations
play
important
role in the
hearing
Lewis. This
will be before the
aspect of a criminal trial. Presnell v. Geor
just
recently
same
will have
gia, (1978)
439 U.S.
another, unre-
convicted
the defendant
236-37,
curiam);
58
(рer
L.Ed.2d
211
noted that if
lated murder. The trial court
Florida, (1977)
Gardner v.
McCormick were tried
an actual
L.Ed.2d 393. The
Lewis, any
trial for the murder of Harold
that,
Court held in Gardner
as a matter of
Overby killing
relating
evidence
process,
given
the defendant must be
in the
case in
would be inadmissible
opportunity
deny
explain
any infor
Likewise,
Lewis
chief.
no
evidence
mation which
used
the sentencer
in the
killing
in this case
may be admitted
deciding
whether
impose
the death
I,
killing.
Overby
trial of Count
obviously
stringent
This is
a more
statutory procedure
effect of the
procedural
required
standard than is
in a
McCor-
present case is obvious: defendant
non-capital sentencing situation. This clos
separate,
fully
mick would be
tried on two
scrutiny
er
capital
found in
cases is de
jury.
same
charges
unrelated
before the
Eighth
manded
Amendment’s ban of
the second count to a
He would be tried on
punishments
cruel and unusual
and the Due
prejudiced
undeniably
which has been
Process Clause of the Fourteenth Amend
by having
him of an unrelated
convicted
Florida,
ment. Gardner
supra;
Woodson
pointed
As
out in
murder.
Carolina, (1976)
v. North
428 U.S.
*5
ruling:
its
dence which the State introduced.
it
principal charge. Very likely, the evidence
that,
seems clear
when
alleges,
the State
as
proves any
aggravating
of these six
the aggravating circumstance under
35-
circumstances will have come before
50-2-9(b)(8), that the defendant committed
in
part
as
of the
case in chief
murder,
nothing short of a full trial
principal charge.
prej-
the trial of
must result.
impact resulting
udicial
from the introduc-
We
35-50-2-9(b)(8)
hold that Ind. Code §
subsequent
sen-
tion
this evidence at the
is
applied
unconstitutional as
to this defend-
tencing hearing
virtually non-existent.
is
ant. Thе
to be utilized in this
Similarly,
prove
evidence introduced to
provided
case as
statute and case law
(7)
(9)
carry with
subparts
and
also does not
be,
fact,
will
in
two trials. The defendant
prejudicial
impact
the emotional and
will first
killing
be tried to a
for the
penalty to be
which would cause the death
Douglass
convicted,
Overby.
If he is
a sen-
Georgia,
tencing hearing
imposed capriciously. Gregg place.
will take
At this
will,
sentencing hearing,
(1976)
in
96 S.Ct.
U.S.
9(b)(8)
this
as
(7)
(9)
denies
Subparts
L.Ed.2d 859.
concern
been convict-
XIV. The
whether
defendant has
U.S.Const. Amend.
defendant.
“[t]he
stipulated
ed of another murder” and whether
defendant have
State and
“[t]he
a
of life
defendant was under
im-
not
in this case are
alleged murders
prisonment at
the time of the murder.”
holding is
confined
related.
our
Evidence of these
circumstanc-
those
in which the murder
cases
always
will
es
almost
in the form of
is
related
prison
complete
court or
records.
a
Unlike
charge.
to the principal murder
presentation
of evidence
an unre-
dismiss-
judgment
court
evidence, in the
lated
this
context
affirmed,
ing
II of the information
Count
sentencing procedure,
of this
would not be
to the trial
and this cause is remanded
inflammatory
improperly prejudi-
of an
сonsistent with
proceedings
for further
Texas,
Spencer
cial nature.
See
opinion.
“The shall the final determi- make will be a sentence, multi-step process there considering nation of the after under this recommendation, will jury’s and the sen- that the substantial risk capricious arbitrary tence shall be based on the same stan- be inflicted in an circum jury required dards that the to con- manner where the Gregg v. Geor sider. The court is not bound is an act of murder. stance jury’s trial recommendation.” of a gia, supra. The conduct of murder at alleged act judge As I trial can provision read this the decisional hearing would not render only sentence death if he too is сonvinced judge without processes of beyond aggra- that the reasonable doubt Id., direction, 428 U.S. limit vating circumstance has shown. And been not vitiate and would S.Ct. finally by both thereafter determinations the defendant requirement that mandatory subject to auto- mitigating opportunity have an matic review this Court. I process cannot fathom how this fails be reversed The trial court should satisfy sentencing even where ordered reinstated. Count II should be prior circumstance is a not reduced a conviction. If against prejudice there is a taint or time of the
defendant in the at the
sentencing hearing because of its knowl-
edge
charged
of the
crime of
facts of the
defendant,
just
which it has
convicted the
HINTON, Appellant
Darryl Lynn
the level
with due
thereof is consistent
below),
(Defendant
process for several reasons.
prejudice against
taint
Indiana, Appellee
sentencing hearing
defendant at the
flow-
STATE
below).
immediately preceding
from the
(Plaintiff
partakes
flowing
of the same nature as that
579S122.
No.
prior
from the
conviction
introduction of
of Indiana.
Supreme Court
regular
of an accused for murder at a
trial.
Such
taint does not offend due
collateral
12, 1979.
Dec.
process.
Texas, (1967)
Spencer v.
385 U.S.
Rehearing Denied Feb.
Second,
the determination out is should be meted
advisory judge and does not dictate Fourth, judge
the death sentence. the trial hearing,
who has conducted the trial, previously must determine in independent judicial aggra- that the
vating act of murder occurred to a moral
certainty beyond a reasonable doubt before
the sentence of death be ordered. This
operates as a check determi- fifth,
nation. And the determinations subject
both
immediate review and automatic