Thompson v. State

THOMPSON, Jay R.

(Defendant below), Indiana, Appellee

STATE of

(Plaintiff below).

No. 882S303.

Supreme Court of Indiana.

April 1986.

Rehearing July Denied

DICKSON, Justice. Defendant-Appellant Jay Thompson R. guilty by was found a jury in the Harrison Cireuit Court two counts of intentional killing committing while the crimes of bur- glary and robbery. The requested imposition the death but the jury declined to imposed. recommend it be judge, however, The trial found aggra- two vating present: circumstances intentionally killing during the commission of burglary robbery and and conviction of another mur- der. Accordingly, he imposi- ordered the tion of penalty. the death The fifteen is- presented sues by the defendant for our review in appeal this direct are as follows: 1. denial of Defendant's motion to se- quester jury during trial; imposition 2. of the death sentence after it; had declined to recommend 3. unconstitutionality of Indiana scheme; death penalty 4. the trial court's failure properly find aggravating supporting factors sentence; 5. failure of the trial court judg- to enter prior sentencing; ment 6. denial of Defendant's motion to strike panel; venire 7. voir dire of the jury during trial judge; trial 8. admission into photo- evidence of graphs scene; and slides of the crime overruling 9. objections Defendant's to the State's amendment of its wit- list; ness improper 10. examination of a witness re- garding employment Defendant's record; . improper 11. cross examination of De- regarding prior fendant inconsistent statements; 12. denial of Defendant's motion for a psychiatric examination of a State's Timothy Dodd, Evansville, R. appel- for witness; (defendant below). lant 13. denial of tendered verdict forms on offenses; lesser included Pearson,

Linley Gen., E. Atty. Michael Worden, Gen., Gene Deputy Atty. Indi- 14. ruling error of the court on Defend- anapolis, appellee (plaintiff below). motions; objections ant's and ard pierced wound which infliction of the back newly discovered evidence. 15. The size of the wound her aorta. at testimony and evidence smaller the use of a knife indicated back Dillon and that Richard showed on her knife. The blood the "buck" than burglarize the Thompson planned to Jay R. shoulders, the of her dress around the back in Pe- Mary Hilborn home William carpet immedi- her neck and on the back Indiana, about County, tersburg, Pike shoulders, adjacent to her back ately On March days prior to three the neck onto the she bled from indicated Thomp- 8, 1982, Dillon Sunday, March position of up. face carpet lying while the area Petersburg, observed son drove to her she was rolled body her indicated passed the church home and of the Hilborn being in her back. stabbed prior left Apparently pre- attended. the Hilborns any complicity first denied Dillon at were still the Hilborns suming later testified for crimes but these Thompson's green Pin- church, parked they Thompson in two implicated from the Hil- blocks to automobile some testimony corrobo- there on foot. was proceeded Dillon's murders. born residence investigation revealed police which by Hil- rated arrived, found the they they When Thompson's Defendant by on entry human blood they so obtained at home borns vie- similar to the looking for one Eddie human blood jeans and pretending to be gloves. the being to use Defendant's admitted one of Beadles. After tim's on (17) year-old to obtain the Hilborns a seventeen phone, they Thompson accosted by crimes, Hil kept known to be these money that was he committed juvenile when a possessed Dillon home. jurisdiction borns their waived juvenile court but the adult,. folding pock- a Thompson jury "buck" knife and The an was tried as and he During the confrontation et knife. murders but guilty of the found the Hilborns each of scuffle Dillon stabbed penalty. The the death not recommend did knife, Af- injuring them. his "buck" with however, ag- statutory found judge, trial Hilborn, Dillon and stabbing Mr. both ter and im- to exist gravating circumstances Hilborn, by holding Mary Thompson forced on Defendant the death posed chin, money for to obtain knife under her Thompson. line telephone then cut the them. Dillon she fell After Mrs. and stabbed Hilborn: I floor, throat with the Dillon cut her to the Thompson Appellant leaving the claims they knife. As were "buck" by deny error reversible court committed kitchen house, stopped near the Thompson citing jury, Sequester the ing to his Motion they not leave Dillion could door and told 434 N.E.2d Lowery v. State were sure the Hilborns they were until Pivarnik, C.J., denied, (Givan, 868, reh. Hil- both Thompson then stabbed dead. that on record shows J., dissenting). they dead. Accord- ensure were borns 1982, and the 28, January both Pless, the fatal pathologist, the ing to Dr. and alternates accepted jurors the chest and heart to William Hilborna's wound Appellant's case and try selected by a knife but by "buck" not made by sworn were jurors alternates folding as the or the same knife similar to judge then admon The trial judge. trial knife's Thompson. The knife carried releasing it jury preparatory ished the chest indicated angle entry into the point Appellant evening. At this kneeling right side on the the assailant was jury se have the motion to an oral made size of Hilborn and of William judge The trial trial for the questered defend- inflicted indicated time wound and then al jury was the motion. denied to the the wound Thompson inflicted ant following a night each separate lowed to with the Hilborn heart of William chest and judge trial by the admonition detailed testified further Dr. Pless folding knife. to read anyone nor case with to discuss indicated back in Mrs. Hilborn's the wound of the trial accounts any news or listen to at the time lying on her side she was 268% midway through trial,

About the State therefore find no reversible error on this requested the court to voir dire jury issue. determine whether of them had been exposed to a program certain TV that dis- II cussed the penalty. death judge The trial Appellant claims the trial court did voir dire the members of the jury who erred in imposing the death sentence not they demonstrated point had not to that withstanding jury recommendation that exposed been to extrancous sources of in- the death sentence not imposed. This concerning formation the trial and their issue already has been determined

judgment had not been affected in that Court Appellant's adverse to position. on, manner. From point however, the Schiro v. State judge sequester did jury until a 1047, denied, cert. 464 U.S. 104 S.Ct. verdict was 5, 1982, reached. On March 78 L.Ed.2d 479 N.E.2d 556 cert. against recommended - denied, -, U.S. penalty. sentencing At on March L.Ed.2d this Court held that imposed trial court a sentence of death. decision on a death sentence merely is recommendation and the trial court may It is true Lowery, supra, a majority of impose the death sentence even if this Court held that when a motion to se- against recommends it. Ind.Code 35-50- § quester timely capital case, made in a 2-9(e) (Burns 1982) expressly provides that sequestration is mandatory and failure to the trial court is to set the sentence and is sequestration order is reversible error. not bound jury's the recommendation. Further, Appellant required is not to dem- The United Supreme States Spazi Court in prejudice onstrate by the seques- failure to ano 447, v. Florida 468 U.S. 104 ter jury. In Lowery, supra, the motion 3154, S.Ct. 82 upheld L.Ed.2d a death for of jury sequestration was made imposed by sentence judge the trial over prior to trial and clearly Here, timely. riding jury's a recommendation of life. the motion was made timely. not as It was Finding nothing suggested that that made after the jury had been chosen and jury-override procedure resulted in arbi sworn and was about to be released for the trary or discriminatory application of the day. This restricted the opportunity for penalty, death general either in or in that prospective jury members of the to be particular case, opinion noted that the questioned and considering selected the ef- judge required is to conduct an inde sequestration fect the might have on their pendent review of the evidence and to ability to trial, serve in an extended and it make written findings regarding aggravat hampered the court's advance preparations ing mitigating cireumstances, and and fur to accommodate sequestered a jury. More ther that Supreme the State Court must important here is the fact jury every capital review sentence to ensure against recommended the death penalty. penalty that the imposed has not been arbi In all cases other capital offenses, than trarily capriciously. or No reversible error sequestration is not mandatory. Corder v. presented is on this issue. (1984), Ind., State 467 N.E.2d 409. The purpose jury sequestration capital in a III primarily

case is prevent to outside influ- reaching ence from juror the individual Appellant attacks the constitutional affecting the life or death choice. ity Since of the Indiana Penalty Death Statute on fury this against recommended the death grounds. several He first filed motions to penalty, the refusing error in sequester to counts, dismiss the death penalty claiming jury is harmless. The life recommenda- there were support no facts to them and tion of this demonstrates ju- that the it was charge unconstitutional to rors subjected were not to influence if juvenile with the penalty. death At trial they were, they were able to resist the defendant renewed his to dis- it. We motions

269 required. proportionality is This Court no aggravating miss, there were no arguing that the Indi penalty held on several occasions has support factors reveals, is not unconstitu clearly penalty how- death statute The record ana counts. ever, charge IX De- death XVII and and that the use that Counts tional killing while at- intentionally pun constitute cruel and unusual fendant with does not robbery burglary (1984), Ind., to commit tempting ishment. Smith v. State of the clearly falls within one this denied; Resnover v. reh. pursuant statutory aggravating factors (1984) Ind., 460 N.E.2d cert. State - 35-50-2-9(b)(1). further There denied, -, Ind.Code § U.S. killed showing people that two were awas further held that L.Ed.2d 160. We have pur- crime, falls within which in this is proportionality review of death sentences pursuant aggravating factor of an view required. v. constitutionally Burris not 85-50-2-9(b)(8). Ind.Code § cert. - -, denied, U.S. S.Ct. statutory or constitu Nothing in the State, supra; Schi L.Ed.2d Smith it is indicates provisions of this State tional ro, supra. penalty on a death impose the improper to the time Thompson, at juvenile. crimes, was these commission of of the IV juvenile code age. years seventeen argues appeal on that since De juvenile of that a expressly provides the death sentence did not recommend charged with homicide age is

fendant's who jury that finding by virtually juvenile from shall be waived aggravating factors and the were no there the best unless it is in as an adult tried improperly im- penalty therefore was death safety and child and of the interest Appellant further claimed posed. re community him to welfare are for the death sentence reasons court's justice system. juvenile main within re- With supported the evidence. not 1982). 31-6-2-4(d)(8) (Burns Ind.Code § contention, as we first spect Appellant's challenge the waiver Defendant does above, in Issue II indicated have Furthermore, there case. in this order for and it is the sentence only recommends any other provision this statute no appropriate the trial court to determine the a excludes referring juveniles that to accept need not The trial court sentence. penalties any of the juvenile from waived may jury and of the recommendation the to an adult felon. meted out may be regardless of impose the death sentence permit the statute does death The Spaziano, su- recommendation. jury's the the mitigating factors consider as court to Schiro, supra. pra; appreciate his con capacity to defendant's the law his conduct to to followed statutory procedure conform be duct or to circumstances. of the appropriate imposition any other the State seeks and when 85-50-2-9, 35-50-2-9(c)(6), (7). of re- sentence, Both Ind.Code Ind.Code death § § defend allege could include a least one to at quires these circumstances the State agree aggravating the State age. We with specific ant's denominated several crime, Legisla clearly charging indicate when these statutes cireumstances prove be- sentence statute to requires the death the State ture intended and then as juveniles as well existence apply to "the Indiana to a doubt yond reasonable offender circum- youth aggravating of the adults. Since at least one mitigating possible a as may considered Among aggravating be alleged." stances may properly be are: factor, sentence in the statute the death listed circumstances juvenile. a upon imposed the murder (1) committed The defendant victim while intentionally killing the the Indiana death also claims ar- commit attempting to committing or in that it is unconstitutional penalty statute molesting, criminal son, burglary, punishment child unusual imposes cruel and conduct, deviate kidnapping, rape, or rob- while committing or attempting to com- bery. arson, mit burglary, child molesting, (7) The defendant has been convicted of criminal conduct, deviate kidnapping, rape (7) or robbery. He has been con- another murder. victed of another murder. (8) The defendant has committed another murder, any time, regardless of Omitted from the court's final instructions at to the whether he has been convicted of that aggravating cireum- other murder. (8) stance regarding commission of another any time, murder at regardless of whether (e) Section of the death sentence statute convicted. requires court, in making the final de- usage, normal term sentence, "conviction"is termination of the consider jury's recommendation, synonymous with to base the return of guilty a verdict, sentence on but "the same rather standards that means the entry of a required to consider." judgment conviction. McMinoway (1973), State 803; Ind. 294 N.E.2d charging information filed (1977), Carter v. State requested sentence, alleg- N.E.2d 145 cert. denied 434 U.S. ing only following as aggravating cir- S.Ct. 54 L.Ed.2d However, accompanying cumstances the murders: legislature arguably used a broader defini committing a. While or attempting to tion of the term in the enactment of IC burglary; commit 35-50-2-9. In addition using the term b. committing While or attempting to "convicted" in aggravating circumstance robbery. commit (7), the term "convicted" is used at IC Excluded from the death sentence requests 85-50-2-9(d): was any express (7) mention of factors If the defendant was convicted of mur- (8) However, above. both murders were trial, der in jury a the jury shall convene charged separate as counts and were tried sentencing hearing; (Empha- ... at the same time. added). sis It has permissible been held for the State This would support the contention that the charge but one aggravating circum term "convicted" in aggravating circum- stance at filing the time of the charging (7) stance was intended to signify the re- instrument, but then prove additional guilty turn of verdict, requiring without aggravating during circumstances the sen entry judgment. However, if this tencing hearing. Davis v. State meaning assumed, then there would Stephens Zant v. apparent no reason for separately specify- 462 U.S. 77 ing aggravating both cireumstances L.Ed.2d 235. (8). In jury the final instructions for the Furthermore, unlike aggravating penalty phase, death jury was instruct (8), circumstance which clearly states that ed as follows: the other may murder have been committed The seeking State is the death penalty in any time," "at legislature did not so by this alleging upon case separate designate in aggravating (7). circumstance page from criminal information the the. Thus it may also argued that for convic existence following cireumstances, tion of another murder ag to serve as an as follows: gravating warranting circumstance consid The provides law for the of eration of a sentence, death prior con upon death conviction for the crime of viction must have existed at the time of murder following under the cireumstanc- commission of the principal murder

es. charged. interpretation Such would be © (1) defendant committed the mur- consistent with our rule that eriminal and by der intentionally killing penal victim statutes strictly must be construed charging clearly in nature. The documents the de favor of against the State found, alleged, that the De- necessary. construction fendant where (1954), 234 Ind. Short committed another murder. If fendant had Therefore, at the time of and the trial court the final instructions sentence, the death jury's deliberation of findings ag- expressed had recited judge's defendant, not strictly speaking, had (8) gravating regarding com- circumstance murder; of another yet "convicted" been murder at time mission of another verdicts, found jury, by guilty their but the not, of cir- convicted or instead whether actually "commit had that the defendant | (7), of another mur- ecumstance conviction murder. ted" another findings der, judge's had based if the [or aggravating solely on the death sentence IC 35-50-2- previously, As noted (7) (1) mention of or circumstance without 9(e) the trial expressly demands that (8) court's final determination of then the sentence determination of ] court's final have been "based on the sentence would on the same standards must be based jury was re- In the the same standards required to consider. was consider," required by statute. quired to as findings extremely thorough and extensive decision, court the trial supporting his (1979), 272 Ind. v. McCormick he found the expressly stated that judge circum aggravating only aggravating circum presence of two (8) unconstitutionally held to be stance was stances: alleged prior murder applied because murder (1) committed the The defendant principal to the there related intentionally killing the victim while bar, However, at charge. in the case attempting ... committing or to commit aggravating circum as an murder claimed robbery. burglary ... or been committed was found to have stance (7) The defendant has been convicted of the defendant in the trial murder. another charges. Thus McCor upon principal however, court, ag prevented use Judgment of the trial not have mick would ag- instant any reference to the in the gravating failed to contain circumstance (8). Thus, using case. gravating cireumstance meaning the term narrow the traditional reviewing the with are here faced "conviction," his sen- judge based death society's maximum imposing propriety of upon aggravating an circumstance tence sentence. penalty, and ultimate jury to for the had not been available which compelled is further extreme caution Our time of their death consider at the properly of death judge's sentence because the trial sentence deliberations. jury recommendation. contrary to the from distinguishable The instant case is certainly common sense logic and While Judy v. State both to overlook decision support this Court's and Davis here, when seen deficiencies the technical in- cases Both of these 477 N.E.2d 889. prefer me- we reviewing a death sentence for the request for death sentence volved a procedural obedience. ticulous multiple murders. But commission charge of specific there was a both cases y (8), commission circumstance aggravating convicted murder whether of another claims case, aggravating this instant In the not. on the judgment formally enter failed to the final omitted from both circumstance is sentencing him prior to jury of the verdict the trial jury and from to the instructions sentencing is void. and that therefore the death sen- findings supporting court's po his authority for presents no tence. the issue. waived therefore has sition and (1984), foregoing de- State that the recognized is It Ashford (1978), 268 Ind. only technical 1298; are v. State fects and inconsistencies Guardiola 1105; Ind.R.App.P. They told, tion. were general a way, 8.3(A)(7). However, we note Appel- that some of that might them become involved position lant's presents no error any in capital a case. Defendant does not claim event. judgment Failure to enter prior to panel venire was representative not a sentencing does not constitute error where cross-section of the community or that the defendant is otherwise properly sen- there was any effort to limit or restrict the tenced. (1979), Schalkle v. State 272 Ind. general makeup of the jury. Appellant's 134, 396 N.E.2d 384. argument does not show there was a lack of a fair impartial jury consisting of a VI fair cross-section of the community. There Prior to voir jury, dire of the is no merit to his contention on this issue. Appellant moved to strike the jury entire Mays v. State 469 N.E.2d 1161. panel, claiming venire jury panel venire during jury advised orientation that VII one of the cases with which some of them During the prosecution trial the re might become involved capital was a case. quested a voir dire of jury seeking to He claimed this right denied him his to a determine any whether of the members of fair impartial jury prospective because the jury particular had seen a television jurors, given time to consider the nature of program night broadcast the before about dire, a case before voir will find reasons or the death penalty. program The discussed having excuses for in, themselves included a case in Florida and examined certain as from, or excluded jury. trial It was the pects of the death penalty. prosecu The practice of judge in the Harrison tion asked the court to determine whether Circuit Court to have an orientation service any jurors might have been influenced by with a panel new prospective jurors, program. Appellant claims having that acquainting them with the system, jury placed voir dired undue emphasis duties, and attorneys parties in on the contents of the television program. volved, to make them more comfortable in The judge trial indicated to counsel for all their duties. The State contends that if parties that he would jurors first ask the jurors are notified in advance that they which, any, if had seen program may face capital case, selection on a then with whom jurors these had discussed its on voir they may dire be better able to contents. Then judge would send out provide full and honest ques answers room jurors all who had not tions concerning their ability to impartially program seen the and who had not heard try capital case, having opportuni had an anything about it. judge indicated he ty to more fully examine their feelings true then would examine remaining each juror subject. on the purpose Since the of voir alone to if program determine had af dire is to potential determine if the juror fected any of them. Appellant objected to can impartially try case, the State con this objection voir dire but his was over tends that procedure followed ruled. He now claims the trial court com case tends to achieving facilitate goal. that mitted reversible error proceeding as We see no error or prejudice Appellant above outlined. by the procedure orientation used judge procedure Inquiry here. This similar indicated only furnishing questionnaires one pamphlets, actually had seen the pro- television generally describing gram jury duty, and he pro stated it would not affect his spective jurors. Poindexter decision in the case at bar. Six ju- other 268 Ind. rors had heard some mention of the news program jury room, in the Brown v. but all main- N.E.2d 830. jury panel given no tained nothing they heard would in identification case, nor any details of in way affect their Ap- consideration of cluding one, the instant during pellant's the orienta- case.

273 any resulting preju demonstrate the does not did follow the trial court appears It fewer exhibits of the dice. He states attempting in to deter procedure proper the have been sufficient. How fact, due to would if, any prejudice in scenes mine ones Lindsey ever, v. State not indicate which were story occurred. he does had news It 351, 819. 295 N.E.2d ones thereafter be (1973), 260 Ind. and which sufficient court to determine He mere wheth and cumulative. repetitive was for the came and determine the voir dire that there general er to conduct statement ly makes the resulting course, to be appeared This, there makes it many. whether of too were party. Bruce v. State to either prejudice to review this virtually impossible for us 1042, cert. 375 N.E.2d of a crime scene are Photographs issue. denied, 439 U.S. they are com generally admissible because men mere Appellant claims L.Ed.2d 662. jury by which the petent and relevant aids his prejudice the show would tend tion of understand the itself to best can orient However, correctly points the State cause. presented to it. Grimes evidence by the trial procedure used out that the v. 450 N.E.2d Stewart of the expose the contents Ind., did not (1982), N.E.2d 1026. More State or heard who had not seen to those show repe over, photographs are fact that the deter judge further it. The trial about scene of the crime or cumulative titious had seen it and juror who mined that the inadmissi necessarily render them does not something about it heard who had those if They admissible are prejudicial. ble as to by the show such influenced were not aids to the competent and relevant they are Appellant parties. any of prejudice and under orienting themselves jury he position his authority for cites no evidence, is a unless there standing the demonstrate does he prejudiced nor prejudicial value of showing sequestered any prejudice. outweighed their clearly exhibits additional conclusion of point on until from utility. Lloyd relevance guilty of a verdict trial and returned denied; Ind., reh. (1983), not be a death but recommended Ind., (1983), Strange v. State presents no therefore imposed. Appellant depict here exhibits reh. denied. error on this issue. reversible scene, showing general ed the crime distances, angles and area from different VIH they were victims, showing where and the to intro was allowed The State by them. suffered the wounds found and Appel objection of over duce into evidence visualizing aids to These were depicting photographs slide numerous lant understanding the tes scene and the crime of the vicinity the scene general of The admission timony of other witnesses. crime, and outside of inside both the discre the sound photographs is within occurred, the vie- dwelling the crime where not be dis and will trial court tion of the they injuries with the of the crime tims discretion. except for abuse turbed Ap by the path traveled received and Ind., 441 N.E.2d Paige v. State house. the victim's approaching pellant indi nothing to us here presents admission of to the objected admis in the for reversal cating grounds irrele claiming they were these exhibits Dresser exhibits. sion of these Appel vant, and cumulative. immaterial denied. reh. here. He objections same makes the lant exhibits large number of argues that the IX under jury's little to admitted added prosecution be During trial the tending to im standing case while as not listed people of two came aware large volume press the with with involved had been who witnesses investigation of gathered materials samples concerning blood Exhibits again State's Unfortunately, Appellant crime. the chain part of and were therefore position and authority for his to no cites us custody of objection these to examine the exhibits. State regarding witness moved to add these two individuals to its his knowledge of an incident in Gibson witness list. The objected defendant County, to the Indiana years ago three in which addition of witnesses, these claiming Appellant sur- and Michael Dillon were fired for prise, and that the having defense had allegedly not had the stolen from their employ Appellant er. opportunity to interview claims this cross-examina these witnesses. Defendant concedes the State did tion supply should not permitted have been since point at this Appellant vast amount discovery of had not taken the information and that these two witnesses stand and reputation were not his known for truthfulness to prosecutor until point general and his reputation the communi ty were not at issue. trial. clearly appears The State contends It mistake was part unintentional on the cross-examination prosecu- proper was since the tion. The witness grant opened court did had the door recess to on the subject give appellant's good defendant to counsel employment time reputa to interview tion these and it witnesses. therefore Following proper was to recess the cross- examine him regarding defense still objected specific on the basis acts of of sur- bad prise. character relating permitted trial to that subject. State to agree. amend its witness list and call (1974), the wit- Robertson v. State nesses. Defendant Ind. 319 N.E.2d offered no additional defendant Robert son called a objection psychologist to the who testimony testified to of the two wit- the effect that the nesses. defendant passive was a person and type person who would not The trial court is in the position best to likely commit the sort of act for which he determine sanction, what any, if appro is was on Arterburn, trial. Justice speaking priate in a discovery situation such as this for a unanimous Court in Jordan v. State and his decision will not be overturned ab (1953), 232 Ind. 110 N.E.2d reh. showing sent a of abuse of discretion that denied, observed that guise under amounts to clear error. Murray v. State psychology Defendant put had in issue (1982), Ind., 442 N.E.2d 1012. The appro what the law calls reputation his for char priate action in an instance such as this is acter particular and in the traits of belliger for the defense request a continuance to ence and troublemaking which are the interview the witnesses and determine if traits relevant to the charged. crime Hav additional discovery required. Jackson ing done so it proper for the State to (1984), State 63; 462 N.E.2d Ar offer evidence character, of his bad includ nold (1984), Ind., v. State 460 N.E.2d 494. ing specific prior acts of misconduct. The That was done here appears and it same presented circumstance is here. De defense did not indicate a need for addition fense presented witness Clark was give al time. Exclusion of the evidence is re favorable testimony Appellant's work quired only where the failure comply performance as a reliable employee. This with the discovery order is grossly mislead put Appellant's into issue general moral ing or demonstrates bad faith on part and, character particular, ability his as a of the State. Jackson, supra; Hovis v. worker and the State was entitled to rebut 577; 455 N.E.2d Mur impression favorable Appellant had ray, supra. No abuse of discretion presented to jury by cross-examining amounting to reversible presented. error is regard witness with particular unfa vorable performance. work See also Bond X 403 N.E.2d presented The defense witness Mi denied; reh. Eguia chael Clark whose testimony was to the App., Ind. Parrish v. State effect good reputation had a (1983), Ind.App., 453 N.E.2d 234. The as a worker. On cross-examination the scope of cross-examination is within the prosecution permitted over defense's discretion of judge and reversal is testimony. De consistent with his of that showing an abuse only merited make such a responded fendant he did Robertson, Pinkston v. supra; discretion. telling the truth statement but he was not (1972), State N.E.2d proper It on cross-exami at the time. was here. abuse is shown No such to Defendant's direct testimo nation rebut ny prior inconsistent statements with his XI for the polygraph examination from argues appeal that on Defendant prior state not informed that the was stipulation that had been a there because during polygraph ments were made during polygraph made he statements any way or were related examination trial, any not be used examination would (1983), Ind., 448 it. v. State Lambert permit court to for the trial it was error Ind., 288; N.E.2d Pounds v. State made dur to the statements any reference the circumstances 443 N.E.2d 1193. Under inconsistent which were ing polygraph court did not act presented here testimony. No mention of the with his trial permitting prosecution improperly made at trial examination was polygraph previous defendant on the question the to cross-exam permitted was the State but incon made him that were statements to his statements defendant as ine the testimony. his trial sistent with were inconsistent that time which made at issues. testimony on material his trial with XII prior made to trial stipulations were the trial court At trial Defendant moved being contem- plea negotiations were when Richard Dillon to submit to order witness State, sides and the before plated by both in order to psychiatric examination to a offer, as one of its any firm wanted making the truth if Dillon knew what determine negotiations a truthful plea conditions for De psychopathic liar. if he was a was or hap- to what from Defendant as statement Defend motion was overruled. fendant's The State the Hilborn residence. pened at nor argument on this issue makes no ant prosecution agreed to contends that the authority support does he cite us the de- the condition that stipulation with the statement merely He makes his claim. Subsequent tell the truth. fendant would it court to rule as was error for the that it filed an stipulation, the defendant to this issue therefore consider did. We ap- made it which notice to the State alibi will consider by the defendant and waived telling the Defendant was not parent that 8.3(A)(7);Ash Ind.R.App.P. further. it no his statements time he made truth at the ford examination. When polygraph Guardiola, supra. trial, admitted Defendant questioned at July on in his statements that he had lied XIII 13, 1981, polygraph examination when trial court claims the Defendant that contention made. It is the State's with refusing to instruct erred stand and made got on the Defendant when on less forms tendered verdict Defendant's that the materially inconsistent statements De appears first offenses. It er included complying with the from was relieved since the this error fendant has waived fraudulent- it had been stipulation because be submitted without forms were verdict agreed per- The trial ly made. signature of ing numbered and without agree cross-examination. mitted the Harding his counsel. Defendant or either claim unfair- cannot now that Defendant 1098; Ind. (1984),Ind., contrived state- purposely he ness when (Burns Supp.1984). 35-37-2-2 Code § into a to enter induce the State ments to not submit Furthermore, did made of No mention was stipulation. alleged lesser defining the any instructions Defendant was polygraph examination Therefore, included offenses. statement if he had made a merely asked whether upon to determine materially in- be called would July 1981 which on Defendant had committed the lesser includ statement of (1) the facts showing that burglary ed offense of trespass or criminal the evidence has been discovered since lesser included offense tions in ing of U.S. mandates lesser included offense instruc holding in verdict claims the (1983), Ind., 444 N.E.2d 1190. Defendant tion or not err in present strated support a lesser included offense instruc charged. Thus, there was no evidence to out the trial Defendant maintained his inno State's cence of Hilborn murders and claimed he was not cluded offense instructions cantly, court refused the tendered instructions and without gave his own instructions. More signifi of the elements of these crimes. The trial given 625, Beck. Beck verdict there is no all Defendant's evidence forms. See Holland v. State at any explanation in view of the any 100 S.Ct. capital refusing Beck v. Alabama United States the time of the crimes. The wrongdoing concerning the form cases. This is a misread overwhelmingly showing requires and the trial court did guilt instructions evidence. give or understanding of the crimes as 65 L.Ed.2d Supreme would the tendered giving Through lesser properly in capi demon Court in presents an pletely changed his testimony, but it does not state when the evidence was discover Defendant's motion to cireumstances of the case. State, would weight which a reasonable would also evaluate its new siding judge may properly consider the result. In Ind. that it worthy it is not that due duced in time for vant; that deciding trial; it [450], trial in upon produce (8) that give is not will Cansler v. diligence affidavit privileged (2) credit; (8) 281 N.E.2d trial; (7) probably produce it, whether a a retrial of 238 Ind. merely that light shown at the a different result and while it probable is not was used to discover it it is material and rele indicating of all the facts and correct error impeaching; or incompetent; that the evidence is State, 48, piece 881; 147 N.E.2d 232. cumulative; so it can be case; impact on a original trier of fact (1972) doing, may of evidence Dillon com Tungate v. a different (5) merely ^[258] trial that pre pro (9) (4) ed, diligence if due was used to discover only tal it cases where there is evidence to support trial, in time for such instructions. There is no or whether probably it produce would upon such different result evidence here. re Spaziano, See also Although trial. supra. Dillon's testimony at trial pre-trial and his police statements to the XIV implicated extent, large Defendant to a oth er testimony regarding With his facts and motion to circum correct error strongly Defendant filed stances by an affidavit corroborated this Richard testimo ny. Dillon in agree which Dillon We analysis recanted his with the State's testimony pre-trial is, and his best, that Dillon's merely statements to affidavit at police implicated impeaching this Defendant. and that it is unlikely a differ Since testimony Dillon's primary was the ent result upon would be reached a retrial. implicating direct evidence In motions such as this we will reverse the crimes; these it position is Defendant's judgment of the trial only court if find we this newly discovered evidence that it has its determining abused discretion in entitled him to a new trial. The standard whether a different result would have been reviewing a motion for a new trial possible upon very retrial. In cases of on newly based discovered evidence was similar circumstances we have found that set out in Emerson v. State the trial courts did not abuse their discere 867, 871, 287 N.E.2d in determining as follows: tion a different result was probable upon not retrial. Smith v. State application trial, An for a new made on ground newly evidence, discovered (1983), Ind., 455 N.E.2d Harden supported must by affidavit and such State cert. denied, affidavit or affidavits must contain a 459 U.S. presented for review this The issue circumstances In view of the

L.Ed.2d statute, finding Court, is whether or justified in pursuant here, judge was imposing the sen- erred in not the court merely impeaching, affidavit was Dillon's upon the Defendant. of death tence little likeli- worthy and had of belief not connection, required to the court is upon result a different producing hood of trial, may upon touch all issues that review find no abuse therefore new imposition of death propriety of the denial of in the trial court's discretion including pertaining issues upon new- penalty, for a new trial based application Defendant. The conviction of the evidence. ly discovered duty to review has an affirmative XV error, Transcript for the entire identified, argued raises three Finally, Appellant just that error mind, he that in Appellant. claims of error With additional which following in the fashion: presents for review as the issues states follows. 16, 17 & 19 "ISSUE the follow- point counsel makes At another TRIAL COURT THE Brief: ing ISSUE in the statement CERTAIN IN OVERRULING ERRED performing in In to assist the court order THE DEFENDANT. OF OBJECTIONS duty, Appellant the would statutory its COURT TRIAL THE by the following 17 errors believed list the ISSUE MO- by DENYING CERTAIN the ERRED IN committed appellant to have been THE DEFENDANT. there TIONS OF To the extent Trial Court. itemized may reversible error THE TRIAL be ISSUE COURT the by Appellant, the DE- herein THE ERRED IN OVERRULING presenta- the expressly does not waive CORRECT MOTION TO FENDANTS error, upon the and relies of such THAT tion FOR THE REASON ERRORS any record for duty search the THE Court's EFFECT OF THE CUMULATIVE such error. THE TRL MADE BY ERRORS TOTAL THE TRIAL OF DURING

AL COURT totally misunder apparent counsel It is WAS PREJUDICIAL. THIS CAUSE Court imposed on this duties stands the Brief, Defendant Throughout this the 85-50-2-9(h) pro to Ind.Code pursuant § it errors which pointed out numerous has sen of death review viding for automatic by Trial Court. made the were believes responsibility corresponding his tences and specifically errors counsel, to those In addition Ind., Lowery, In appellate as Defendant, may there by Pivarnik, identified C.J., 871, (Givan, and at by this errors discovered well be other grounds), Justice J., dissenting on other statutorily of its during the course Court Court: for the expressed DeBruler sen- the death duty to review required by presented question There is another any one capital case. While in a tence directly to be needs appeal which herein, except complained of error extent addressed, and it involves may be deemed Sequestration issue repre- counsel appellate obligation of (sic) ef- harmless, the cummulative to be received the has senting defendant who here- enumerated of all of the errors fect arguments marshal of death to sentence prejudicial, substantially operate be sen- the death application of against has consequently and po- takes Appellant's counsel tence. guaran- constitutionally his denied gition been mandatory review that this Court's trial, the con- impartial teed fair outside conducted sentences of death must be reversed. viction upon our relying process, the adversarial Ind., State, (1981), Judy opinion beginning of that at the further note has that he 95, and has concluded makes Brief counsel Appellant's in the participate obligation to minimal following observations: process on behaif of his client. alleged error specifically in the motion to case, Judy appeared per- defendant correct error and set forth therein the com sonally voluntarily before this Court and plained questions objections; and he knowingly right cogent appeal must make waived all arguments in his brief convictions, Ind.R.App.P. from his and instructed his specific on the allegations of error. lawyers to take no regard action (A)(7); 8.3 Ashford on his appeal in the and notified Survance behalf personally court that he would take (1984), Ind., 465 general N.E.2d 1076. A no appeal. action on his own behalf in the by statement Defendant in his brief that There right was a waiver of the to coun- may there improper rulings by the trial responded sel. The by shouldering court regarding objections by made De normally the burden to be assumed fendant or may there be a cumulative ef appellant. present In the appel- case errors, presents fect of no appeal issue on lant Lowery given has ap- no waiver of requiring response by this Court. peal and no waiver of counsel. He there- fore, XVI unlike the defendant in the Judy case, is entitled to the fullest assistance Because of our determination in Issue every of counsel stage at critical of this IV, finding technical pro- deficiencies appeal, including stage at which we cedure followed the court in imposing review the death sentence under our sentence, we need not make fur- mandatory obligation to Appel- do so. separate ther review to ascertain whether capital late counsel in present cases must process imposing the death penalty arguable legal points on behalf of his upon this defendant was arbitrary, discrim- client facilitative of our review of the inatory, capricious. death sentence. Having allegations reviewed all of error again remind counsel here that this by defendant, raised this we find no error duty Court's automatically review the requiring reversal of his convictions. How- imposition of a death sentence does not ever, procedural because of the deficiencies remove the responsibility of counsel to ful in imposition found the of the death sen- ly present issues, brief and all whether by judge, tence we now vacate the they are trial issues or involving those the death sentence and remand this case to the propriety of imposition the of the death trial court to make a new final determina- penalty. misinterprets respon Counsel his tion following of sentence jury recommen- by suggesting sibilities delegate he can dation, in 35-50-2-9(e): accordance with IC them to Court, this requiring us to search If hearing by jury, the is jury the shall the page by entire page record to seek out recommend to the court whether the if any error there By be. statute it is the * * * penalty death should imposed. responsibility of this Court to review the The court shall make the final determina- death sentence. Ind.Code 35-50-2-9(b). § sentence, tion of the after considering However, this Court is required not to re jury's recommendation, the and the sen- possible view the record for trial errors and tence shall be based on the same stan- may such errors be waived as in any other dards that the required to con- appeal if Judy not raised. sider. The court by is not bound 145, 95, 102. With jury's recommendation. respect issues, to trial evidentiary review purposes redetermination, For the of this penalty of a death case is no different from the trial court commence from the review of other appeal: criminal shall jury's against recommendation preserve order to appellate error for review sentence, complete the final determina- proper must make objec trial required tion of sentence as by law. (1985), Ind., tions. Bowens v. State 481 1289; judicial We further take (1984), Ind., Tabor v. State notice of 461 N.E.2d 118. Defendant must raise the presiding fact that the judge trial court

279 Miller, 447, herein, 468 Honorable Scott T. has since ano v. Florida U.S. 104 3154, 340, Prosecuting Attor- S.Ct. 82 L.Ed.2d and this Court assumed the office of Finding State, ney for the 77th Judicial District. held so in Schiro v. 451 denied, of the duties and further that nature cert. U.S. performance responsibilities required in the 78 L.Ed.2d S.Ct. 699. The reason ing in these cases was that the deci poten- prosecutorial of the function could prejudice merely on a tially give rise to or other- sion death sentence a recom bias may impose mendation and the trial court capacity judge wise diminish the said sentence if the death even recom proper of death make redetermination 35-50-2-9(e) against mends it. Ind.Code § herein, penalty remand this case we now expressly provides that the court is to by for final determination of sentence Hon- by set the sentence and is not bound Wilson, Judge, orable S. Morris Harrison Furthermore, jury's recommendation. it Circuit Court. permissible has been held for the State to charge aggravating but one circumstance SHEPARD, JJ., concur. DeBRULER and filing charging the time at instru PIVARNIK, J., concurs and dissents prove aggravat ment but then to additional GIVAN, C.J., opinion with in which con- ing during sentencing circumstances curs. hearing. Stephens Zant v. 462 U.S. PIVARNIK, Justice, concurring and dis- 862, 77 L.Ed.2d Davis senting. (1985), Ind., 477 N.E.2d cert. - -, denied, U.S. S.Ct. majority I concur wherein it with Davis, charged L.Ed.2d 475. affirms the convictions of the defendant that two murders were committed de However, I for both of these murders. committing fendant Davis child mo while judgment majority dissent lesting by lying while wait. setting aside the death sentence charge aggravating cir State did not fact, I the trial court. As a matter of am having cumstance of committed another attempting at a total loss in to discern on During sentencing stage, murder. grounds majority what finds that the specifically found that an addi trial court death should be set aside. Their sentence having aggravating circumstance tional findings regard supported are proved by committed another murder was by the decisions of the United States Su- in and recounted this factor the State preme many Court or the decisions on this imposing of reaching judgment its subject by contrary, To the Court. Furthermore, this Court penalty. death Supreme decisions of United States support did not found that the evidence clearly support and this Court Court lying of in wait. aggravating circumstance findings judgment and of the trial court. Nonetheless, held in Davis that even we imposing The trial reasons for court's aggra had used the though the trial court overwhelmingly sup- death sentence are wait, circumstance, lying in vating of ported by the The trial court evidence. evidence, by the supported was not findings proving any without made detailed sup penalty imposition was still death doubt Defendant committed both murders ported properly entered. We based and intentionally perpetration and in of a rob- holding fact the court found at our on the bery burglary. and The trial court found circumstance which aggravating least one beyond this to be true a reasonable doubt. by the evi clearly supported in fact was out, beyond it is majority points

As the well existed a reason dence and which namely, court need not that the murder was established that the trial able doubt: perpetration of child mo accept the recommendation of the and committed in the found the trial regardless lesting. This Court further may impose the death sentence aggra properly used the additional jury's The United of the recommendation. multiple killing of a vating in circumstance Supreme provided Spazi so States Court though charged even this had by not been (8) this Court held that unconstitutionally applied when it referred Davis, the State. found in N.E.2d at 893: prior to a murder that had not been re

"We find in the finding no error Court's that, duced to a conviction. view of of the additional circumstance in this very (8) there very little use for little specific case since defendant did (7). have difference between It has aggravating notice of the two clearly established, cireum- been aggravat that an stances alleged the State had and the ing properly applied circumstance is when prove beyond state's burden a reason- multiple murders are committed the de able doubt existence of these two (1985),Ind., fendant. Wallace v. State aggravating cireumstances did Lowery change. During sentencing phase - denied, cert. U.S. proceeding, prop- trial court was -, (1986); 89 L.Ed.2d 900 erly specific to consider the cireumstanc- Davis, supra; Judy, supra. es of the instant offenses and the nature fully agree I majority with the that when of the defendant. The court had before reviewing a death sentence we follow me- guilty it pleas defendant's to the commis- procedural obedience, however, ticulous I sion of the two murders and the two problem cannot discern a in this area. The attempted Therefore, murders. it could clearly evidence and unquestionably sup- properly consider the conviction of the ports the findings trial court's first murder aggravating count as an purposely defendant here did and intention- deciding circumstance in to recommend ally murder the elderly people two here penalty on the other murder their own home perpetration while count. Judy See burglary robbery. and a It is further our 145, 416 N.E.2d 95. duty judiciary recognize as the apply spe- Defendant did have notice of the the law as we find it. It is within the filing cific reasons for the of the death province Legislature of the and not this penalty obviously information fix punishment Court to the terms of aware that the court would consider all fixing crimes. This includes the death pen- surrounding during facts the crimes alty for murder when circumstances such sentencing hearing. There was no as those found this case exist. The error in finding the court's of the addi- government, executive branch through aggravating tional circumstance of the Governor, the office of the has the authori- commission of another murder under the ty to commute give pardons. sentences or circumstances of this case." This Court does not. This defendant was give majority fails to reasons for properly found to have committed these rejecting imposition the trial court's crimes and was sentenced death view the fact that it judge to suffer the I penalty. death would aggravating was based on the circum judgment. affirm that stance of commission of murder in the perpetration burglary robbery.

Rather, goes lengthy it into a discussion on GIVAN, C.J., concurs. specific meanings of Ind.Code 35-50- § 2-9(7) (8). problem, according to majority, is the trial court used the language "convicted" as stated rather (8).

than "had committed" as recited in findings here,

view of the court's this is

only question of semantics and has no findings

effect whatever on the of the trial support judgment.

court to its In State v.

McCormick

Case Details

Case Name: Thompson v. State

Court Name: Indiana Supreme Court

Date Published: Apr 25, 1986

Citation: 492 N.E.2d 264

Docket Number: 882S303

Court Abbreviation: Ind.