Stroud v. State

that a the fact by not shown harm is of STROUD, Appellant Phillip A. Id. ultimately convicted. defendant (Defendant below), de- whether Rather, upon depends trial was detrimen- to a fair fendant's procedural the denial of tally affected of Indiana, Appellee the ascertainment for of

opportunities STATE below). enti- (Plaintiff would have been truth to which Id. tled. No. 71S00-0011-DP-00642. of funda- Here, no claim Ritchie makes support the record nor does error mental of Indiana. Court Supreme cireum- aggravating As claim. such a May25, alleged the State stances Ritchie's that the victim of trial phase act- officer enforcement a law

murder was murdered, duty when in the course 35-50-2-9(b)(6)(A); Rit- and that

see 1.C. pro- murder while

chie committed 35-50-2-9(b)(9)(C). The See I.C.

bation. introduced evidence incorporated

State its alle- support trial to phase of guilt Ritchie, who was mitigation In

gation. at the time of years age

twenty-two difficult

murder, of his introduced evidence bonding lack of included his

childhood closing During of two. age

before mitiga- highlighted his Ritchie

argument passionately argued

tion evidence more than or at least no years

a term Tr. at parole. without of life

sentence argu- rejected Ritchie's

2839-54.

ment, proved the State had found existence of doubt the

beyond a reasonable cireumstances, found aggravating

both cireumstances were aggravating circum- mitigating outweighed pen- death

stances, and recommended Ritchie has the cireumstances

alty. Under he was denied

failed to demonstrate error no fundamental trial. In sum

fair this issue.

occurred on I dissent expressed,

For the reasons majority opinion. part VI I concur. respects

all other in a September

the afternoon and There- of Arthur property on the barn Shumaker, Lakeville, Indiana. sa Sears building a Myers had been Ganger, and found They were in the barn. loft Searses' floor, their face down on the barn lying duct their backs with hands tied behind gunshot and all had died tape, September to the head. On wounds Stroud, A. Phillip charged the State time, with age 21 at the approximately murder; three counts of counts of three murder; burglary, felony one count three counts of rob- felony; A Class bery, all B felonies. Class trial, main evidence At the State's testimony consisted of against Defendant incident, in the ballis- from others involved testimony. testimony, shoeprint and tics witnesses, Phillip to some According Seabrooks, Stroud, Wade, Kerel Tyrome went to the Searses' and Ronald Carter the intent to steal from residence with Koselke, Westerfeld, In- Eric K. Brent They learned about Searses' place. IN, Attorneys Appellant. for dianapolis, Charity Payne, a former from residence Carter, Attorney of General Steve son. Ronald girlfriend of the Searses' Indiana, Martin, Deputy B. Attor- James Carter, charged also for who was Indiana, IN, ney Indianapolis, of General plea to a pursuant crimes and testified Attorneys Appellee. State, said that Defen- bargain with the the three men. dant shot SULLIVAN, Justice. had been appeared It that four bullets A. was convict- Phillip

Defendant Stroud fired, con- but it could not be determined murders, burglary, jury ed of three frag- bullet clusively whether all of the attempted robbery. The robbery, and were fired from ments found at the seene a sentence of death and jury recommended gun. possible It the same imposed the trial court a death sentence Intratec Tec-9 were fired from an bullets twenty murders and for each of the three that Defen- gun. Ronald Carter testified years for each of the other crimes. Defen- gun. dant carried Tec-9 appeals his convictions and sentences. dant affirm Defendant's convictions but va- We pieces found on Shoeprint marks were the case to cate his sentences and remand barn, they and could lumber inside the and sen- penalty the trial court for new pair of Nike shoes have been made tencing phases. of Defendant's apartment taken from the Background arrested. These girlfriend when he was them, Shumaker, debris on Wayne Lynn same Nike shoes had some The bodies of to debris at the crime Corby Myers compared found on which was Ganger, and were self-representation is carpet implicit A fiber found on the shoes the Sixth scene. characteristics as car- the same class Amendment to the United had States Constitu Nike tion, 1, the Searses' home. The pet 13, from and Article of the Indiana them, had animal feces on and shoes also guarantees Constitution also right. A that the feces on the expert testified request proceed pro is a se waiver ground shoes and the feces Nike counsel, consequently, likely seene were from the at the crime requirements there are several to invoking animal. same self-representation succeessful ly. A "request defendant's must be clear on put The defense did wit- during guilt phase unequivocal, of trial. and it must be [made] nesses within a reasonable time prior to the first jury guilty found Defendant State, day of trial." Russell v. 270 Ind. counts murder and three counts felo- three (1978); 383 N.E.2d accord murder, ny merged; trial court which the State, v. 717 N.E.2d Sherwood felony; B burglary, one count a Class two (Ind.1999). addition, a defendant's felonies; robbery, counts Class B and one proceed pro choice to se must be "know attempted robbery, felony. a Class B count ing, intelligent, voluntary." Jones of the trial penalty phase After the (Ind.2003); presented the defense evidence of which Sherwood, accord 717 N.E.2d at 134-35. circumstances, mitigating recom- that Defendant receive the death mended occasions, separate On three De Means, sentencing penalty. Judge requested fendant to represent himself. order, stated that he believed Indiana's request Sep made first required amended death statute tember hearing the initial be jury's him to follow the recommendation. a At magistrate. fore the time Defendant constrained, however, If he were not so he case, charged was this two other cases judicially said he would "be inclined to involving drug dealing pending were override the recommendation for 642.) against him. Defendant that he stated (Appellant's App. death." He go pro "would like to se on these matters sentenced Defendant to death for each of (Tr. years the murders and to 20 for each of standby (magis with counsel." at 6 trate).) the other four counts. magistrate told Defendant being assigned Judge that his was to case Appellate Pursuant to Indiana Rule Means, suggested that Defendant could 4(A)(1)(a), directly appealed Defendant his then, that "revisit issue" and stated he convictions and sentences to this Court. (Id.) public would a defender. De appoint affirm We Defendant's convictions but va- (Id.) Here, responded, "Okay." fendant De to cate his sentences and remand the case right self-representation fendant's was the trial court for new and sen- violated, did magistrate not because tencing phases. Rather, deny right to Defendant. Discussion Defendant to raise the issue a told I forum, appropriate more in front of the Defendant that he was judge preside over his case. who would improperly right represent denied the objection to expressed Defendant no this himself under the United States and procedure. Faretta v. Indiana Constitutions. Califo rnia, 2525, 806, 821, appeared Judge Defendant before U.S. When 2, 2000, (1975), he did not raise L.Ed.2d 562 held that the of Means on October Moreover, sincerity of Defendant's re himself. At that representing the issue appears for it delay questionable, a requested quest seems hearing, Defendant speedy request and a trial made the to stall the dealing only cases that he drug trial,. Collins, A trial date of De- case. Burton v. upcoming in the murder See (5th Cir.1991) (affirming 133-34 4, 2000, F.2d for the murder was set cember Defen- made on ruling and no was request case of a for self- trial court's denial delay in the other request dant's for finding representation based cases. was unclear request defendant's because response of "simply spontaneous request his second Defendant made point at a when Petitioner realized fered hearing in himself at the next represent going get lawyer"), a new he was not Means, on October 2000. Judge front of denied, 1006, 112 S.Ct. cert. court, time, lawyers, the At the (1991). Judge Means was 116 L.Ed.2d 660 the various discussing Defendant were position in the best to evaluate Defendant's against him. Defendant pending cases clarity request. of his sincerity and the delayed his other two cases asked to have ruling in this situation We find conchided. until the murder case was was not unreasonable. that at least as to one of Judge Means said cases, July, whichwent back those request1 final oc Defendant's and the case deny he would a continuance February hearing at a curred on then proceed to trial. Defendant would Defendant's counsel filed a Motion where ready. "I'm not If it's like responded, as Pro Se Counsel on behalf of to Proceed that, my appearance as I'd like to enter The court denied the motion Defendant. (Tr. 11-12 my on all of matters." pro se "grave circumstances of this because (trial Defen judge).) Judge Means denied (Tr. at particular type proceeding." trial request, explaining dant's time, appears clear This case set for particular date this was. self-repre ly to have invoked context, it is November sentation, appropriate course going on the case clear the focus was for the trial court to hold would have been following to trial the week and not on Meansg's hearing to determine if Defendant's Judge re of the other cases. knowing, intelligent, choice was and volun alone, and he sponse was to case Jones, 1138; at tary. 783 N.E.2d Sher lack properly request denied that for wood, at Neverthe Sherwood, 134-35. 717 N.E.2d at timeliness. See less, the overall cireumstances lead us to 135; Russell, 63-64, Ind. at 270 383 right context, conclude that Defendant waived his to the N.E.2d at 315. Given this represent to himself because he vacillated asking repre extent that to case, all, representing being himself and sent himself in the murder at between unequivocal. clear counsel.2 request represented was not and waiving appeal. onlyWe the issue on mean attorneys sent a letter to his 1. Defendant also 18, 2002, requesting they on June with- agree We avoid a "[to the former here. representation draw their of him. His attor- right previously-invoked waiver of a to self- attention, neys brought this to the court's but representation, required not defendant is request the court denied the because both continually request to renew a once it is con attorneys Stroud's and the Prosecutor were clusively or to 'make fruitless motions denied ready proceed to to trial. forego cooperation or with defense counsel preserve appeal."" to the issue on Ora order important distinguish between waiv It is to 1508, (11th Dugger, 1512 Cir. v. 876 F.2d zio ing right represent to oneself at trial and

281 appeared be strict construction of the clear and un time Defendant The first case, Burton, he requirement. on the murder Judge equivocal Means See 937 fore represent 133; himself. On request to did not F.2d at 718 F.2d at 425-26. Weiss 2000, eminently policies. 16, These are sound filed a when the State November Penalty for the Death and Request right to counsel a fundamental is constitu counsel would be stated that new court right tional and its abandonment should Rule Defendant under Criminal named for Zerbst, lightly. not held Johnson v. 304 24, object nor did he Defendant did 458, 462-65, 1019, U.S. 58 S.Ct. 82 L.Ed. 4, On December represent ask to himself. (1938). court, 1461 The Faretta which 2000, Korpal ap entered his when James right held that criminal defendants have a Defendant, Defendant did not pearance themselves, represent imposed the re to that, year and object. passed After over a clear, of a quirements unequivocal request, hearings be eight pretrial the court held voluntary knowing, and a waiver of the again requested to repre fore Defendant counsel, right to out of concern defen time, allowed During himself. sent dants could "conduct own defense [their] to him. appointed attorneys represent ultimately to own detriment." 422 [their] Sherwood, (empha 717 at 136 See N.E.2d 834, 835, 2525, 45 U.S. S.Ct. L.Ed.2d 95 finding a denial of defendant's sizing 562; Appeal see Martinez v. Court also represent to himself that defendant right California, 528 U.S. 120 S.Ct. objected the court's order "explicitly to 684, (holding 145 L.Ed.2d 597 there appear counsel on his be appointed right to represent is no constitutional one him and that represent half and at trial" "(olur appeal noting expe self on trial, "(throughout [defendant] the entire taught pro rience has us that a se defense acquiesced presentation time in the no usually (quotations a bad defense" is counsel"). by appointed of a defense omitted)). citation jurisdictions Several have held Moreover, wary courts must be of defen- assertion, after its "the that even asserting represent dants self-representation may through be waived solely delay proceedings themselves indicating vacillating that one conduct explain- an appeal. to create issue for request the issue or has abandoned one's requirement that defendants make Bartlett, 44 altogether." v. F.3d Williams unequivocal request, this Court a clear (2d 95, Cir.1994); States v. United has said: (8th Heine, Cir.1990); 920 F.2d 554-55 otherwise, If rule trial courts were Weiss, F.2d United States position manipulated in a to be would be (D.C.Cir.1983), denied, cert. enough to record by defendants "clever (1984); 79 L.Ed.2d 688 equivocal request proceed without F.2d Wainwright, Brown v. 610- guaran- of a expectation counsel (5th Cir.1982); 11 United States v. Ben way the trial teed error no matter which (10th melt, 45, Cir.1976), cert. 589 F.2d 51 court rules." denied, 925, 327, 50 429 U.S. 97 S.Ct. State, 289, 294, Ault, 370 Anderson v. 267 Ind. (1976); Spencer L.Ed.2d 298 v. 941 (N.D.Iowa 1996). 832, F.Supp. 318, 840 Simi (quoting 821 Meeks N.E.2d (9th Craven, 465, Cir.1973)), 482 F.2d 468 larly, jurisdictions interpret the Su some denied, 1079, 1273, requiring cert. 434 U.S. 98 S.Ct. preme jurisprudence Court's as 951, 1616, 1989) L.Ed.2d 801 (quoting Wainwright, 107 S.Ct. 94 Dorman v. 798 (1987)). 1358, Cir.1986), denied, (11th cert. F.2d 1367 282 in the Court said clothing present while (1978). There is some

55 L.Ed.2d security risk pro presents grave to a requested defendant that Defendant evidence an issue for in the courtroom only persons present to create to all pro ceed se in the largely speculation. freely this is to roam appeal, though permitted were he re Means denied his second his own de- Judge presenting After courtroom in stated,; get this on "Let's quest, Defendant fense. my right to denying You are

the record. 255.) at The record re- (Appellant's App. 14.) (Tr. third During at his go pro se?" 8, January hearing that at a on only flects stated, just it to be on "I want request, and spit at the Prosecutor Defendant understand, it, you deny If I the record. victims and was removed from just I it to be on the record but want rulings on Defen- In the four courtroom. invoking my right constitutional I'm se, pro to act the court requests dant's (Id. 122.) Court." potential never mentioned his behavior however, say, not to that a court That is security resulting therefrom. problems aof defendant's re should be dismissive conduct cannot be used as Defendant's lawyer. It proceed to without a quests justification for the trial after-the-fact to evaluate these would be much easier request to court's of Defendant's denial if trial would err appeal claims on courts represent generally himself. also We being cautious and hold a on the side of "(elven if these agree with Defendant hearing to determine whether a defendant occur, remedy would have things did counsel, waiving right to even such Stroud, deny not to him been to shackle may strictly required hearing a not right self-representa- to his constitutional clear request because a defendant's is not (Br. Appellant at The insuf- tion." Dowell v. unequivocal. and See order, however, ficiency of this does (a (Ind.Ct.App.1990) de N.E.2d his change the fact that Defendant waived unequivocal request fendant's "clear right represent to himself. prior to trial" to within a reasonable time II triggers duty of the trial pro se proceed hearing to determine the "to hold right of cross- court competency represent to him defendant's evidence, present to examination and - to establish a record of his waiver self and and Fourteenth guaranteed the Sixth counsel"), denied, of his cert. Consti- Amendments the United States U.S. 116 L.Ed.2d 143 I, tution Article (1991). Constitution, Indiana were violated when prohibited the trial court defense counsel Finally, Judge the reasons Means cross-examining a witness about Findings gave Supplemental testing DNA of shoe evidence. February justify Order dated refusing requests represent Defendant's apartment searched police himself are insufficient. The order stated: girlfriend pair and found a Defendant's dog appeared Nike shoes that to have

That due to the defendant's behavior on them. prior in- feces and a red soil substance during appearances Court upon deputy Similar substances were found cluding spitting prosecut- attorney, resisting testing result- crime scene. DNA was done authority being forcibly expert in him removed from the shoes and testified chance that shouting room and there was a one ten billion the Court obscenities on the of the shoes came by defecating urinating the feces bottom and/or probable proba- of the action more or less from the one an animal different from seene. In without the the crime ble than it would be evidence." was at whose feces Ind. Evidence Rule 401. The defense De- addition, Ronald Carter testified day the of the the shoes on Sergeant wore to Nowicki about sought question fendant shootings. testing done on the inner soles of the Nike in an effort to demonstrate that the shoes cross-examination, defense counsel On excluded. testing showed Defendant was Nowicki, the lead Ronald Sergeant asked key piece The shoes were a of evidence for the South Bend technician evidence linking to the erime seene. Un- Defendant Unit Department's Special Crimes Police Evidence Rule relevant der Indiana the evi- categorized person and the who "may probative exeluded if its evidence be scene, the you "did have at the dence substantially outweighed by the value is the inner soles of to send opportunity jury...." ... the danger misleading of to the Indiana State Crime cases these shoes, 802.) the (Tr. importance the of the Given at testing?" DNA Lab for misleading would not questioning possibility objected to the line State to designed substantially outweigh probative "not value argued that it was and excluding and that it had a DNA on the Nike to relevant evidence" test shoes lead jury." misleading the risk of Defendant. "a serious 808.) (Id. explained that The defense Nevertheless, trial court said "was testing DNA showed Stroud reports that if counsel looked at the excluded," said that there but the State necessary present it to evidence on felt "subsequent total and reports

were three issue, De the court would allow it. experts said that he from the DNA reports sought ques again fense counsel never wearer of exeluded as the could not be the issue Sergeant tion Nowicki nor raise 803-04.) (/d. The trial those shoes." Nike can testing of the shoes. We told objection but court sustained counsel's action. Be only speculate about .... if reports we counsel to at the "[llook did not foreclose the cause the trial court area, in that we will." go have to forward present this evidence opportunity (Id. at intro sought defense never because the court's decision To reverse a trial it, cannot conclude that Defen duce we evidence, we review for to exclude which rights prejudiced. were dant's substantial (1) discretion, there must be an abuse of harmless. And The error was therefore (2) court, that affects Defen error counsel, by trial any error was committed the de rights, dant's substantial post-conviction that should be addressed proof an offer of fense must have made fully can briefed the issue relief where have been clear the evidence must developed. and a record proper 108(a); Rule context. Ind. Evidence State, 749 N.B.2d McCarthy v. IH (Ind.2001); Hauk v. trial court contends (Ind.2000). instance, the trial Evidence Rules erred under Indiana err, was harmless. court did but that error allowing Sergeant Nowicki and 702 in excluding The trial court erred run shoes give opinion Reebok relevant. DNA evidence because was shoes. smaller than Nike any "having is evidence Relevant evidence Now- Sergeant questioned The defense fact

tendency to make the existence shoes and of the Nike icki about the size to the determination consequence that is of clothing goes in expert that were also officer is not an Reebok shoes the size of . weight admissibility and not the of his from Defendant. He testified taken and the (citation omitted)). were size eleven the Nike shoes testimony." eleven and a half. shoes were size Reebok foun problem The here is examination prosecution

The on redirect Nowicki, Sergeant testimony Nowicki's a consumer dation Sergeant "As asked opinion. not laid his and was before gave person bought and a who has of shoes buying any questions of not ask process prosecution on shoes did tried shoes, it, no, yes your experience Nowicki to whether Sergeant ascertain shoes manufactured the Reebok Shoe ever Nike or Reebok purchased he had run than manufac- Company smaller shoes consequently opin shoes and whether his companies?" tured other athletic shoe rationally ion on their could be sizings (Tr. perception based on his of those shoes. objected, Defense counsel Only him how objection. after defense counsel asked and the court overruled yes to Sergeant Nowicki then answered many purchased times he had Nikes and recross-examination, On de- question. Reeboks could the court know that his many counsel asked him how times rationally fense opinion percep was based on his shoes, purchased he had Reebok Nike an adequate tion. Because foundation was shoes, responded He and Adidas shoes. immediately disputed laid after testi bought twenty however, that he had each about mony, any error in the admission Sergeant testimony Nowicki's was times. State, Stephenson harmless. v. 205 Ind. lay, may A non-expert, or witness (1932) 141, 215-16, (up 179 N.E. if testify opinions they as to or inferences holding as harmless error the admission of "(a) rationally perception are based on the dying though proper declaration even a (b) helpful of the witness and clear foundation had not been laid advance understanding testimony of the witness's proper foundation later because was es or the determination of a fact in issue." tablished). Testimony Ind. Evidence Rule 701. re garding helpful shoe size is this case IV because, fit the Nike shoes did not De fendant, there would be no scientific evi I, linking

dence him to the scene of the confrontation under Article And, Sergeant crime. since Nowicki had Indiana Constitution and the Sixth and purchased ap both Nikes and Reeboks Fourteenth Amendments to the United times, proximately twenty opinion Constitution was violated when States sizings rationally their different trial court copy about admitted into evidence a perceptions. on his own Vasquez based the Affidavit of Probable Cause Support (Ind.2001) State, 1214, 1217 charges against 741 N.E.2d that was filed with the Specifically, him. Defendant claims that (affirming admission of two officers' testi mony that the substance at issue was tolu the admission violated his constitutional ene, based on the officers' "observations because the affidavit contained hear say prosecuting statements from the attor and experience"); Hill v. cf. ney Ind. and from witnesses for the State. The ("This responds State the affidavit did Court has held witness may testify appearance hearsay as to the of an contain because "it was not of object The fact that police prove observed. fered to the truth of the statements (Br. Appellee at tion. The trial court therefore therein." did not err contained in admitting the affidavit into evidence. of Lieutenant On eross-examination V Clark, E. defense counsel asked James Defendant claims that to a Support an Affidavit in of Proba- him what violated, speedy trial was trial because the is, it "states what ble Cause whether place days took more than 70 from the doing," person is accused of whether date of Early his Motion for Trial. involved, may include the names others 4(B)(1) Indiana Criminal Rule requires normally gets and whether "the defendant discharged a defendant "be if not (Tr. 856-57.) at The de- copy" of it. (70) brought to trial seventy within calen- questioning this line fense concedes that days early dar from the date of [an trial] jail how house attempt explain "was an motion, except where a continuance within Diangelo may informant Chick have been motion, said is period had on his or the testify surrounding the able to to facts delay act, by is otherwise caused or 30.) (Br. Appellant crime." at The where there was not try sufficient time to judicial requested that the court take State him during seventy such calendar and admit it into notice of the affidavit days congestion because of the of the court evidence, during because Lieutenant calendar." The rule also states that "a testimony, Clark's "the issue of what was may trial congestion court take note of or (Tr. knowledge at public was raised." emergency necessity without the aof 863.) objected, The defense and the court motion, upon may finding so order a objection, stating: "you overruled the continuance." opened impression the door to it. The was 2, 2000, On October the Defendant re- people had access to this information quested speedy trial this case. The spread. and that is how the word could Request State later filed a for the Death entitled to counter with what [The is] State Penalty. Because Defendant's counsel exactly supporting was in the affidavit." qualified was not under Criminal Rule (Id. 864.) case, capital to handle a new counsel had appointed. Consequently, to be at a hear- It is clear this context that the affida- ing on November the court de- prove the truth of vit was offered to layed previously the trial date set. In Hearsay what was stated within it. is "a so, doing relying the court it was on a said statement, by other than one made Supreme recent Indiana Court case hold- testifying trial declarant while at the request- that when the death hearing, prove offered evidence to ed, speedy yield trial rule "must to" truth of the matter asserted." Ind. Evi- (Tr. Criminal Rule 24. 801(c). suggested dence Rule The defense testimony that the informant's could have relied on appears The Court to have public knowledge rather been based (Ind. Lowrimore v. 728 N.E.2d 860 than on conversations with the Defendant. 2000), in which held that the defen we prosecution sought then to introduce not violated. speedy dant's trial comparison the affidavit so that a could be The facts of Lowrimore are similar to the Lowrimore, made between the information testified to facts of this case. the de early Chick and the information contained fendant filed a motion for an trial days and a trial date was set within 70 affidavit, conclusion could be Later, however, the drawn as to the source of Chick's informa- from that motion. unrepre- The de- trial court allowed Stroud to be sought penalty. the death State (Id.) rep- pro- qualified fendant's counsel was not sented counsel." capital regarding in a case and so information resent Lowrimore vides no additional court, claim, more, finding emergency, an vacated we cannot the this and without to appoint trial date order original fairly the it. address attorneys Rule qualified under Criminal VI at Lowrimore appeal,

24. Id. 864. On that he was "entitled to choose his argued Defendant claims that the State's right requiring rule speedy trial over the did not Request for the Death Sentence attorneys." 24 Id. two Criminal Rule identify aggravating circumstances which omitted). "if We stated de- (quotations [a to which counts of murder corresponded proceed chooses to with court- fendant] right violated his to have and language counsel the of Crimi- appointed of him under charges against notice trial mandatory requires nal Rule 24 is and I, § Article of the Indiana Constitution penalty appoint in death cases to courts process and his to due under the attorneys edu- meeting specified two Fifth and Fourteenth Amendments to the Id. experience cational and levels." We We find this United States Constitution. exceptions to acknowledge did two Crimi- contention meritless. In the State's death retaining pri- nal Rule 24-the defendant's penalty request, aggravating each of the waiving counsel or to counsel vate alleged specifically cireumstances identifies choosing pro to act se-neither It the victim to which it refers. is there Id. applicable which were Lowrimore. fore clear to which murder count each of aggravating applies. cireumstances argues Defendant that his case exceptions falls within one of the stated Defendant also claims that his due sought to Lowrimore because Defendant process rights were violated because the Defendant, however, himself. represent penalty request State's death contains "no request represent himself when did allegation requesting that the is State changed the court his trial date and stated any specific sentence of death on count of appoint it would two Criminal Rule 24 69.) (Br. murder." Ac Appellant attorneys. Neither he nor his qualified it cordingly, is unclear whether the State is attorney objected appointment to the requesting multiple one death sentence or attorneys Rule 24 or to the Criminal re sentences, if death the State is re sulting continuance. Defendant did Since sentence, only it questing one death is any things not do of these when his trial unclear for which murder count the State cannot use postponed, date was seeking is death. think that there We previous requests self-representation request, was confusion as to the State's object under Criminal Rule objection any clarification or to it should Alternatively, argues Defendant have been made before trial. No such inapplicable actions were taken Defendant's Lowrimore "is because there ever showing qualified attorneys. attorneys was no that Crim. R. Defendant's did a Motion attorneys were not available who could make to Dismiss the Death Pen prepared adequately." alty, they have Stroud's trial but did not raise that motion (Br. Appellant Request Defendant claims defect in the for the State's argument that for the three This has con weeks between time Death Sentence. request sequently filed its for the death been waived. Kirts v. State ("The date, penalty original (Ind.Ct.App.1997) and the trial "the N.E.2d jury, judge and the developed apply is that a motion to must that has rule must charging jury's instrument determination. See 35- dismiss a flawed Ind.Code 50-2-9(e) to trial or error prior (Supp.2002). raised be for this rule is to rationale waived. The that, due to this opportunity give prosecution change, the 2002 amended death tri- charging instrument before amend the constitutionally applied statute cannot expense time-consuming al so that the to him operate because would as an ex thus not be lost." in a trial will efforts post law. He makes this claim under facto omitted)). and citations (quotation Constitution, both the United States Arti- I, 10, Constitution, § the cle and the Indiana Defendant also I, § for the Death Sentence Article 24. Request State's allege it did not the was flawed because I, 10, § Article of the United burglary charge. felony intended the states, States Constitution "No State shall the charging information nor Neither any ... ... pass post ex facto Law...." request penalty adequately for the death I, 24, § Article of the Indiana Constitution felony burgla intended specifies the states, similarly post "No ex ... facto law State, 37, 240 Ind. ry charge. Bays See v. can passed." post shall ever be Ex facto 393, (1959), 45-47, 159 396-98 cert. N.E.2d laws, types refer to several but denied, 972, 605, 4 80 S.Ct. 361 U.S. prohibition applies only affecting to laws (1960). But, again, any de- L.Ed.2d 551 rights pur in the criminal context. The should have feets these documents been pose prohibition against post ex they addressed before trial. Because were First, pre is it is to laws twofold. facto not, the issue is waived. legislature abusing power vent the its by "enacting arbitrary legisla or vindictive VII Florida, 423, 429, tion." Miller v. 482 U.S. argu Defendant makes numerous (1987). 2446, 107 S.Ct. 96 L.Ed.2d 351 challenging constitutionality ments Second, fair give it is to notice of penalty Indiana's amended death statute. 429-30, changes in the law. Id. at 107 applying claim that We first address his 2446. S.Ct. to him the amended violates statute against post laws. prohibition ex facto post question For an ex facto 2002, arise, penalty retrospective, death statute "the law 'must be Indiana's is, occurring apply and one of the amendments it must to events before was amended " 430, 107 2446 jury's sentencing altered the determination its enactment." Id. at S.Ct. Graham, 24, (quoting is v. from a recommendation one Weaver U.S. § on court. 35-50- binding (1981), Ind.Code 29, 960, 67 L.Ed.2d 17 grounds, Dep't Cal. 2-9(e) overruled on other (1998), 2002 Ind. Acts amended Morales, 499, 3, 117, statute, § n. the old Corr. v. Under (1995)). 1597, sentencing recommenda- 131 L.Ed.2d 588 would make its S.Ct. penalty final statute judge tion and the would then make a The 2002 amended death determination, sentencing thereby provid- operates retrospectively Defendant's Defendant was convict ing a defendant with two different consid- case. The crimes September on erations of his sentence. See Ind.Code ed were committed 1, 2002, July began the new 2000. His trial on 35-50-2-9(e) (1998). § Under however, statute, guilty July on and he only there is one sen- was found determination, September tencing is made was sentenced to death which 288% provided Our Court has a some penalty death statute

2002. The amended definition of what laws are what different provision Defendant particular and the concept post ex but the the same. is effective post became contends is ex facto facto "substantially if it post A law is ex ap- that. it and states on March facto disadvantage[s] defendant because after June [a] plies to "a defendant sentenced 35-50-2-9(e) change[s] punishment, increase[s] Ann. 2002." Ind.Code necessary ultimate facts elements of or (Historical (West Statutory Supp.2002) offense, prove deprive[s] [a] defen Notes). punishment dant of some defense or lesser underlying the the‘purposes Based on the time of the that was available laws, the prohibition against post ex facto crime." Crawford Supreme Court has stated United States (Ind.1996). 141, be considered ex generally what laws will Indiana's amended death statute post facto: post applied not an ex law as facto settled, by of It is decisions this Court explicitly Defendant. It does not fall into any punishes ... which as a that statute any categories post considered as ex of the committed, previously crime an act criminal an laws. It does not make facto criminal; done; previously act that was not it which was innocent when which punish- makes more burdensome the a punishment does not increase the crime, commission, ment:for a after its crime; any and it not eliminate does avail- charged one with deprives or which punishment. or a The able defenses lesser any according crime of defense available determining of a statute shifts the role act to law at the time when the was judge final from the defendant's sentence committed, prohibited post is as ex jury. potential punishments the The facto. as well as what be remains the same must Ohio, 167, 169-70, 269 46 Beazell v. U.S. impose any punishment. found in order to 68, 70 216 S.Ct. L.Ed. Collins (1925); argues taking that 43, Youngblood, 110 S.Ct. (1990) (stating away judge's ability 111 L.Ed.2d 30 the to override the jury's sentencing the "Beazell formulation is faithful to our recommendation de knowledge original prives him of another chance at life. That best of the understand life, however, wholly specula Clause"). chanee at of the Ex Post Facto This A of a prohibition jury option sentencing is not limited to substantive tive. has the statutes, death, previously parole, as some cases have defendant to life without See, Florida, years of e.g., findings held. Dobbert v. 432 term certain are not 282, 292-94, jury U.S. 53 L.Ed.2d made. After the has made its recom (1977). Rather, mendation, encompasses any judge the 344 what does thereafter predicted certainty. law the effect of which is to "make inno cannot be with judge jury's could follow recommenda the criminal, cent alter the acts nature offense, punishment." against or increase the Col tion or override it either for or possibility judge death. The mere that a lins, (stating 497 U.S. at 110 S.Ct. 2715 way might jury that "the best to make sense out of override a recommendation for say impose this discussion the cases is death and a lesser sentence instead labeling 'procedural, enough a law is not to find that the statute vio simply legislature thereby prohibition against post does not immunize it lates the ex facto Morales, serutiny Dep't under the Ex Post Facto laws. See Corr. v. Cal. of Clause"). U.S. S.Ct. could the defendant to life sentence with- (1995) ("The amendment cre- L.Ed.2d 588 speculative and attenu- only the most ates parole," jury out if the recom- producing prohibited the possibility parole, ated mends life without is also punish- increasing the measure "only effect of a recommendation the Court conjectural effects are ... and such ment could the defendant to a term of sentence might under threshold we insufficient (Id. years." Post Facto under Ex

establish instructions, In the final the trial court Clause."). following jury: said question Related to the you If ... that a recommend sentence stat the amended death whether imposed, of death be it is a recommen- in this case is post ute is an ex law facto only Judge dation and the will sentence jury prop was question whether imprison- the defendant to death or life erly instructed. Defendant parole. ment The law without does Eighth Amendment United require Judge your must follow Constitution was violated when States sentencing recommendation. contradictory instructions jury given you If ... recommend that sentence sentencing process role in the on its imprisonment parole of life without requests throughout the case.3 Defendant imposed, only it is a recommendation aside and that his death sentence be set Judge and the will sentence the defen- for a new sentenc the case remanded imprisonment parole dant to life without ing. years. or to a term of The law does not selection, Initially during jury the trial Judge your require that the must follow jurors that their prospective court told sentencing recommendation. Defendant as to whether determination you If ... recommend that a sentence parole or life would receive death without years imposed, of a term of be the law the court: the binding "[I]f would requires Judge the must follow recommendation, you must jury makes a your recommendation. the Court is bound to understand may make no recommendation [¥lou (Tr. jury's recommendation." at follow the imposed upon to to be as the sentence 54-55.) jury "I should the rec- repeat that Judge and the will be the defendant imposition for ommendation be either defendant required to sentence the parole, penalty the death or life without parole without or to a imprisonment life Judge change the has no discretion to the years. term of (Id. 55-56; at jury's recommendation." 1254-55.) (Id. at also id. at see impose jury did on the a The trial court selection, days jury In the two last its delibera- sense of seriousness about jurors the prospective the trial court told tions: (1) that if The trial court stated opposite. your appro- In about the jury penalty, the death deliberations

the recommends to recommend in this priate "the sentence only" is "a recommendation Court regard. proper instructions to use in this State that Defendant did not the 3. The contends preserve appeal objected he did points, this issue for because to the At several object to the trial court's instructions on not (See, eg., jury judge's proposed instructions. jury's sentencing accompany- role. As the 781-85, 954-56, 965-66.) We find the Tr. at describes, a number of text there were adequately preserved appeal. issue for during the course of the trial as to discussions jury improp show that the remarks case, you you ree- should assume Phillip assigned jury the death for role to the erly ommend described the will, fact, Adams, he be executed. Stroud Dugger local law." 489 U.S. 103 L.Ed.2d 435 S.Ct. (1989). in this deciding In on the sentence case, you must recommend a sentence violation here. There is clear Caldwell your you, examining individual And, jury required Dugger, as was consciences, presented, the evidence properly instructed on the law. A Court, the instructions of this believe proper instruction would have informed serve, not Phillip Stroud should jury sentencing that it make its would your belief about how this Court judge recommendation and the would authority might act on this some other accordingly." "sentence the defendant case later date. at 85-50-2-9(e) (Supp.2002). Ind.Code (Id. 1258-59.) The difference between the instructions jury pronounced After the its sentence jury that the should have received and the death, however, judge the trial stated goes instructions that it did receive to the had reviewed the law and felt that precise concern articulated in Caldwell. jury's recom- he was bound follow jury judge was told that the was not mendation, in- in contrast to how he had sentencing bound to follow its recommen- jury previously. structed if it dation recommended either death or Mississippi,

In Caldwell v. imprisonment parole. life without es- 328-29, 86 L.Ed.2d 231 sence, told that ultimate was (1985), Supreme the U.S. held: Court responsibility sentencing the defendant constitutionally impermissible

[IJt it, did not rest with when in fact it did. rest death sentence on a determination therefore cannot be certain that We aby made sentencer who has been led sentencing process “responsible responsibility to believe that the for de- Caldwell, reliable." U.S. termining appropriateness the of the de- S.Ct. 2633.

fendant's death rests elsewhere. This repeatedly

Court has said that under The State the trial Eighth qualitative Amendment instructions, the "the jury court's the should all pun- difference death from other if assume Defendant would be executed requires correspondingly a ishments jury jury the so and that the recommended greater degree serutiny capital of the should not consider how the trial court or sentencing determination." act following other court would the California Ramos, [992,] 998-999, v. 463 U.S. 1083 recommendation, jury's cures the Caldwell (1983) 77 L.Ed.2d 1171 [ ]. S.Ct. violation. It not. That particular does Accordingly, many of the limits language given jury was not to the in placed has imposition Court isolation; rather, part it was of a series of capital punishment are rooted in a con- totality instructions the of which made that the sentencing process cern should jury's clear that sentencing determina responsible facilitate the and reliable ex- only. tion was a recommendation More sentencing ercise of discretion. over, the couched as it is as an language, rule, general assumption, explicit The Court has limited this is not statement requiring jury's binding. that "To establish a Caldwell determination is violation, a necessarily jury defendant must When the was instructed it "should imposed penalty it so the trial court for new and death would be assume" recommended, might sentencing phases. well have inter- a statement the instruction as preted SHEPARD, C.J., DICKSON, J., rather than a was a serious one its task RUCKER, J., concur. concurs result happen. of what would definitive statement BOEHM, separate opinion with a in which cannot overcome vague statements Such J., concurs. telling effect of the instructions overall jury sentencing that its decision was RUCKER, J., concurring in result. only a recommendation. fully I majority opinion concur with the except for section VII with which I concur reason, For this we set aside Defen in result. presented by One issues and remand for new dant's death sentence this case is whether the trial court is sentencing phases. Because penalty jury's sentencing bound recommen- have found a Caldwell violation and are we According majority dation. to the trial remanding sentencing, yet for new it is not . ("In Op. court is so bound. See necessary to address Defendant's other death Indiana's statute was Berwanger claims. constitutional amended and one the amendments al- 339, 345, 262 Ind. jury's sentencing tered the determination (1974) court a (remanding to the trial from a recommendation to one that sentencing hearing stating new court."). However, binding on the I am disposition, because of this it is not neces not so sure this is correct. The amended sary to address defendant's constitutional actually provides pertinent part, statute 1, 4, claim); Darlington, State v. 153 Ind. "If reaches a sentencing recom- (1899) ("It 53 N.E. is a rule of mendation, the court shall sentence the decision, pass upon that courts will not accordingly." defendant 85- Ind.Code question, constitutional and decide a stat 50-2-9(e). question of course is what invalid, ute to be unless decision on that "accordingly" does mean this context? very absolutely .... point becomes neces agree I with the view expressed Justice sary disposition to a of the cause on its Boehm: merits."); see also Ashwander v. Temm. imposed "accordingly" [A] sentence Auth., Valley means a sentence that takes into account (Brandeis, J., 80 L.Ed. 688 jury's imple- recommendation and concurring) (stating that the "Court will it, subject to im- ments the constraints upon question pass constitutional posed by law.... [The instruction record, although properly by the presented "accordingly" sentence includes the need present ground if there is also some other to set aside a recommendation it is not of"). upon may disposed which the case be power to supported evidence and the alleges Defendant also other defects if, impose consid- decline to death after phase similarly of trial and we penalty aggravating mitigating of all eration unnecessary conclude that it is to address factors, including sentencing those in the those claims as concerns can ad report, judge concludes that death is penalty dressed trial counsel at the new inappropriate. phase. 68800-0303-CR-103, Helsley v. No. Conclusion WL result) (Ind.2004) (Boehm, J., concurring We affirm Defendant's convictions. We (footnote omitted). case, believing vacate Defendant's sentences and remand accept than to choice other it had no recommendation, sentence

jury's death lamented, frankly, "quite court

trial to override the be inclined

Court would Tr. at 173. If indeed the

jury if it could." that a sentence

trial court concludes then it seems to appropriate, not

death is statute, the amended

me that even under obligated impose

the trial court is without years imprisonment or life

term

parole. majority I explains,

For the reasons for a cause should be remanded

agree this trial. sentencing phase of

new

However, that should a persuaded I am a recommendation of

new return

death, necessarily the trial court thereby. I concur re-

bound Therefore majority opin- portion of the

sult with this fully I coneur. respects In all other

ion.

BOEHM, J., concurs. HELSLEY, Appellant

Christopher M.

(Defendant below), Indiana, Appellee

STATE of

(Plaintiff below).

No. 63S00-0303-CR-103.

Supreme of Indiana. Court

May

Case Details

Case Name: Stroud v. State

Court Name: Indiana Supreme Court

Date Published: May 25, 2004

Citation: 809 N.E.2d 274

Docket Number: 71S00-0011-DP-642

Court Abbreviation: Ind.