*1 jacket Gray's in shaver discovery of the resisted, coopera and who those injure a beyond finding any preclude together outnumbered who employees tion of in fact Gray that was doubt be reasonable they that is evidence Gray four-to-one Silver's. Long John gun at with a armed Their belief armed. he lieved was "all of that Judge Barnes agree with robbery, We but armed establish to sufficient in the reasonable all of and the evidence that communicated Gray that it is evidence conclu just one lead to therefrom ferences armed. he was an electric Gray used sion," "namely that and more, statements Gray's Without John Long to rob shaver, gun, not a be sufficient would at both stores conduct at 2008 WL Gray, Silver's." he was find that jury to permit as a insufficient the evidence hold thusWe offenses. time of both at the armed fact enhanced Gray's to sustain of law matter flight following Gray's of events The chain robbery charging the counts on convictions demonstrates Long John Silver's from Silver's. Long John confinement and Gray robbery. was as to otherwise Conclusion leaving immediately after almost arrested Silver's, found police Long John court to the trial remanded cause is This car, or in his Gray's person, on no firearm convic- Gray's to reduce instructions with Under the crime. scene of at the crimes John Silver's Long tions to conclude circumstances, impossible it is II) felony rob- (Counts to Class C I and Gray was reasonable doubt beyond a criminal confine- felony D bery Class Long John of the at the time in fact armed judgment respects, the In all other ment. Compare Common robbery. Silver's is affirmed. trial court of the 432, 326 Mass. Delgado, 367 v. wealth (defendant's 716, 717-19 DICKSON, N.E.2d SHEPARD, C.J., and he prove are sufficient JJ., statements RUCKER, SULLIVAN, concur. armed) v. How with Commonwealth was 1211, 1211-
ard, 386 Mass. threats (1982) (despite defendant's robbery, evidence in street
shoot victim ar was when insufficient
was immediately opportunity without
rested found). none was weapon and dispose of a WARD, Appellant Roy Lee by Officer sum, Gray spotted In was (Petitioner below), Long John exiting the he Durbin as was approximately Silver's, and arrested was only 200 feet later seconds
ten to twelve Indiana, Appellee STATE his Gray and away from the restaurant. below). (Respondent time of at the searched automobile were No. 74S00-0707-DP-263. no found but arrest, money was in the sur- found gun No weapon. of Indiana. Supreme Court shaver area, an electric rounding but 7, 2009. April employees restaurant pocket weapon. a concealing Gray was assumed timeframe, the limited that the believe
We failure arrest, police's
proximity area, gun
to recover
Steven E. Ripstra, IN, Jasper, Lorinda Youngcourt, Huron, IN, Meier Attorneys Appellant. for required by statut accordingly, fendant Zoeller, Attorney General F. Gregory appeals now The defendant e.3 Martin, Attor- Deputy B. Indiana, James (1) IN, Attorneys con sentence,4 challenging: General, Indianapolis, death ney death Indiana's stitutionality of Appellee. for (2) statutory written of a statute; the lack DICKSON, Justice. (3) jury pool; petit selecting plan (4) the admis process; selection Ward, appeals defendant, Roy Lee search; rape for the from a warrantless his death of evidence sion evidence; Payne (5) Stacy photographic fifteen-year-old the admission murder of We affirm of the death County, Indiana. Dale, appropriateness Spencer the sentence. sentence. see- defendant's follows appeal This Constitutionality of Indiana's trial, Spencer His ond trial. first Penalty Statute Death guilty verdicts County, resulted the Indiana contends Deviate Con Murder, Rape, and Criminal unconstitutional penalty statute death *5 jury sentencing-phase duct, by a followed States Constitution the United under both sentence. in a death that resulted support, In the Indiana Constitution. and re were and convictions The sentence each of arguments, seven presents he publici pre-trial prejudicial due
versed rejected: previously has which this Court (Ind. State, 1042 810 N.E.2d v. ty. Ward (1) the death sen- for the allows statute 926, denied, 126 S.Ct. U.S. 2004), 546 cert. jury finding aof in the absence tence (2005). remand, On 395, 273 L.Ed.2d 163 mitigators be- outweigh the aggravators a new sought and obtained the defendant in Rit (rejected doubt a reasonable yond re and, following the defendant's judge, (Ind. 258, State, 264-68 N.E.2d chie v. 809 Spencer from change of venue for a quest 828, denied, 126 S.Ct. 2004), 546 U.S. cert. agreed to select County, parties (2005), State v. and 42, L.Ed.2d 76 163 the trial to County,1 with Clay jury from (Ind.2004), 312, Barker, 314-15 N.E.2d 809 Vanderburgh judge's special be held N.E.2d 648 826 granted, remand reh'g and proceeded The State County courtroom. denied, 1022, 126 (Ind.2005), 546 U.S. cert. charges, rape and murder (2) (2005)); it L.Ed.2d 537 666, 163 S.Ct. penalty A guilty.2 pleaded sentencing make a jury permits then determined jury phase Apprendi in violation circum recommendation statutory aggravating charged 466, 120 S.Ct. a reasonable beyond Jersey, 530 U.S. proven v. New were stances (2000), v. Ring and 2348, 435 147 L.Ed.2d circumstances doubt, that the 2428, 584, 153 Arizona, 122 circumstances, S.Ct. 536 U.S. mitigating outweighed (2002) v. (rejected in Holmes L.Ed.2d 556 im should be a sentence death (Ind.2005); State, 136, 138-39 820 N.E.2d de- court sentenced The trial posed. (Brazil, 35-50-2-9(e)(2) County "If Clay § states: county seat of Code Indiana 1. The sentencing recommenda- Indiana) 100 miles from reaches than is more County. tion, the defendant county Spencer seat of the court shall accordingly." agreement, the State plea to a 2. Pursuant con- criminal deviate count of dismissed the fifty also sentenced defendant was 4. The aggravating circumstance well as the duct as challeng- he is not years Rape, a sentence for devi- during criminal the course of of murder ' ing here. ate conduct.
951
(3)
Ritchie,
266);
Statutory
ed on other
recognized
in Al
State,
741,
len v.
process
737 N.E.2d
743 n. 5 selection
do not normally consti
tute reversible error absent a showing of
(Ind.2000));
it
a ra-
applied
without
tional and
analysis
appellate
uniform
prejudice
substantial
to the defendant's
State,
(rejected
review
in Hough v.
690
State,
rights. Azania v.
1253,
778 N.E.2d
(Ind.1997)
N.E.2d
(citing
277
Bivins v.
(Ind.2002),
1257
superceded on other
State,
(Ind.1994)),
N.E.2d
948
cert.
Azania,
grounds,
State
We decline to revisit these issues. with, of and comply otherwise chapter. 5. The section in effect at the time of the this plan specify following: The must the defendant's second trial read as follows: (1) Source of names for the master list. plan 33-28-5-12. Written for selection of (2) Form of the master list. grand petit jurors. and (3) selecting Method of names the (a) supervision supervising Under the master list. judge, jury prepare the commissioner shall (4) of maintaining Forms and method for plan grand a written for the selection of drawn, records of jurors qualified, names petit jurors county. plan and in the The juror's excuses and reasons to be ex- designed objectives must be to the achieve cused. ju potential a followed selection by which defendant means The exclusive explained The ground the that it Tr. at 1085. Clerk jury a rors. may challenge any conformity with from a jury panel in the is collected not selected Chapter 5 are detailed by her requirements provided dise compact § This see- 83-28-5-21. in Indiana Code of State Supreme Indiana Court Division in a criminal trial court permits tion Names on the dise Administration. Court dismiss an stay proceedings, case to of Revenue come from the Indiana Bureau indictment, appropriate re- grant or other Vehicles, the Indiana Bureau of Motor relief, any such granting lief. But before dupli purged these names are then "that court must determine the trial cates, pers under and deceased people petit a grand jury a or selecting either disc, the used a this Clerk ons.6 With has been a jury there substantial failure jury management system commercial chapter." (empha- with this Id. comply randomly jury pool by se formulate added). sis Fol from the master list. lecting names testimony, lowing the Clerk's ab- timely challenged The prem motion court denied the defendant's a and the trial court plan, sence of written and file a on the failure to establish Clay County a The ised hearing. conducted plan. procedures all were written testified that Clerk (5) jury Jury assem- drawing qualified Indiana Rule directs Method of names of jurors prospective bly process requires administra- service. (6) by prospec- by jury pool annually Procedures to be followed compile the se- tor to jurors requesting to be excused from tive lecting approved names from lists jury service. Supreme In accordance with Indiana Court. petit jurors that constitutes rule, Number of September the Indiana Su- this a panel for civil and criminal cases or approved statewide preme Court the first description in which of the uniform manner records, 4,503,032 a number that close- list of made. this determination ly corresponds to the State's 18-and-older (b) plan placed operation must be into population according the 2000 Indiana judges approval of the courts. after list, (4,506,089). *7 resulting The first Census judges The of the courts shall examine the by was created available for use complies plan to whether it with determine combining Vehicle Indiana Bureau of Motor chapter. plan If the is found not to this Department of Revenue records and Indiana jury comply, the court shall order the com- eliminating duplicates. With assistance necessary changes to missioner to make the University, Supreme Purdue Court from bring plan compliance. into Technology and Automation Commit- Judicial (c) may any plan time The be modified resulting by tee further filtered the list remov- according procedure specified under ing or un- individuals identified as deceased chapter. this deraged moved out of and those who had (d) plan jury The must be submitted to the against Finally, the was validated state. list judges to the commissioner courts. data, stan- U.S. Postal Service address judges approve The of the courts shall or addresses, the form of added dardized plan not later direct modification of the address, flagged county address- for each (60) sixty days receipt. The than after its resulting may The state- es that have errors. go approved plan must into effect not later jury wide was first made available list (60) sixty days approval by than after disc, recently by compact and more counties judges of the courts. becoming electronically over a available (e) plan public The is a document on file in Indiana Judicial extranet website. secure the office of the commissioner and Committee, Technology and Automation inspection must be available for at all rea- http://www.in. Jury Project, Statewide Pool sonable times. gov/judiciary/jtac/programs/jurypool.html was amended in 2007. P.L. 118- section (last 2009). Jan. 2007. visited appeal, On argues dire, voir the trial court's jury selection juror because a selection plan was neither process. He contends that the trial court prepared, approved by any Clay County (a) erred in failing to strike ten prospective judge, submitted to the jury commissioner, jurors cause, (b) by changing the nor filed a public document in the office method of questioning potential jurors of the Clay Court, Circuit the resulting about the death penalty from initially complete failure to abide the statutory speaking with juror one at a time to later requirement for a plan should be deemed discussing the issue with small groups of substantial non-compliance and preju- jurors. To support claims, the de dice presumed. should be fendant argues that he was forced to use his peremptory challenges on prospective Other than the lack of a formal written jurors who should have been removed for plan, and filed the defendant does not cause, thus compelling him to accept other claim any irregularities in the selection jurors who, though not challengeable for and composition of the petit jury venire in cause, held biases favorable to the death his case. In words, other he does not penalty for pleaded-to offenses and point any procedural detail that such a unfavorable to dispassionate consideration plan written might provide that is not al- of his mitigationevidence.7 ready covered the other statutory pro- visions or the Jury Indiana Rules. He Jury selection in this case arose under question does not that the venire pre- unconventional cireumstances. Guilt was pared in exact compliance with all other not at issue. The defendant pleaded guilty statutory provisions and the Indiana Jury to Murder8 and Rape,9 class A felonies. Rules, the specifics of which obviate and Under the plea agreement, the court supplant the function of the statutory re- would determine the sentence for the Rape quirement for a plan. written conviction, but the defendant reserved the right to a penalty phase jury trial on the
The defendant has not established sub- request State's for the death sentence. At stantial non-compliance with the require- the penalty phase trial, the State sought ments for the selection of petit the death penalty asserting venire. three statutory He is not entitled to relief on this issue. cireumstances: the defen dant committed the murder by intentional Jury Selection ly killing the victim while committing *8 (2) Apart from the preceding claim, rape,10 the defendant committed the the de- fendant presents two discrete claims of murder while on probation for committing trial court error regarding the conduct of a felony,11and the victim was mutilated 7. disputes The State the defendant's claimed the trial court's determination and treat the exhaustion of peremptory his strikes. It defendant's claim complete of exhaustion to concedes that the record reflects his exhaus- be accurate. tion of the peremptory two strikes allocated alternates, selecting for but asserts that the 35-42-1-1(1). § 8. Ind.Code record does not establish that the defendant twenty exhausted peremptory challenges § 9. 35-42-4-1(a)(1), (b)(2). Ind.Code selecting the regular twelve jurors. In his Brief, Reply the points defendant out that 10. 35-50-2-9(b)(1)(F). § Ind.Code the trial expressly court noted that the de- fense had exhausted peremptory its chal- 11. 35-50-2-9(b)(9).(C). § Ind.Code lenges regular as to the jurors. accept We
954 not, how- did The defense 87. Appellant's at alive.12 L.Ed.2d still while
or tortured jurors any the of for cause pen ever, challenge the before The issues at 1055. App'x 84, Id. at the case. actually decided who more one or whether were alty phase The at 87. 2276, 101 L.Ed.2d at 108 S.Ct. circumstances aggravating these of that claim any that found Ross Court doubt; so, if a reasonable beyond proven not on focus must partial jury was that circumstances mitigating any whether jurors "on the rather but juror, removed outweighed were exist at S.Ct. Id. at ultimately sat." who consider for appropriate cireumstances stat- The Court at L.Ed.2d a recommend to and, so, ation; if whether ed: or a parole, sentence, life without death required undoubtedly Petitioner was 35-50-2-9(e). § Ind.Code years. term of to challenge peremptory a exercise to Challenges But we (a) court's error. trial Defendant's cure the of Denial per- aof that the loss notion reject for Cause a violation challenge constitutes emptory that contends defendant The impartial to an right the constitutional of his for- grant failing erred court per- that recognized long haveWe jury. arguing jurors, ten as to challenges cause of constitu- are not challenges emptory a showed responses opinions that their means to are a They tional dimension. automatical death recommend tendency to jury. So impartial end of an achieve guilt. defendant's the fact ly upon impartial, that sits as long ineligible them rendered This, urges, he a had to use the defendant fact that due violating his constitutional jurors that re- achieve challenge to Claiming peremptory a fair trial.13 rights process Amend- the Sixth mean not sult does have cause should challenges for his that no conclude We ment was violated. argues defendant granted, been im- to an right petitioner's violation had he because thereby prejudiced he was jury occurred. partial challenges on peremptory his to use all ac at 101 L.Ed.2d thus "forced at and was 108 S.Ct. jurors at Id. chal- although omitted). jurors who The Court cept other (internal citations juror against failing to dismiss cause were biased concluded lengeable deprive error, "did not at 16. Appellant cause, ofBr. while evidence." any jury or impartial an petitioner ad Supreme Court States United Id. at by the State." provided interest in Ross v. Okla claim a similar dressed at 92. L.Ed.2d homa, irrelevant reasoning, it is of this light In in a (1988), appeal an also LEd.2d denying erred the trial court whether trial court After the trial. murder capital challenges for the defendant's any of challenge for-cause the defense's denied Ross's through properly Viewed cause. exercised the defense juror, prospective a ultimately using of whether lens, the issue challenge, peremptory *9 one or focus on jury must impartial had an challenges. peremptory allotted all of its actually sat jurors who of the 2276, more 101 83-84, at 108 S.Ct. at Id. claim for any independent establishing erwise 35-50-2-9(b)(11). § Ind.Code 12. therefore deem We statute. under the relief portions of recites brief The defendant's 13. be to of this statute violation any for claim 35-37-1-5, applies to § cause, Code Indiana defaulted. procedurally argu- presents no but he challenges for or oth- the statute the facts to applying ment
955
judge quickly recog-
trial
jurors. But the
The United States
the decision.
rendered
held,
juror
"A
who will nized that
has
Supreme Court
it
going,
the rate
"[alt
wel'lre
in
penalty
months,
the death
automatically
days,
get
vote for
before we
will be
528,
faith to consid
good
fail in
every
jury picked,"
case will
Tr. at
and modified that
mitigat
er the evidence of
day
lunch recess on the first
plan following
re
the instructions
circumstances as
ing
explained
of
The court
that
voir dire.
do,"
one
and that
even
"only
quire
the
individual voir dire
"[ilf
him to
henceforth
and the death
juror
empanelled
such
pretrial publicity"
be on the issue of
will
the State is disen-
imposed,
sentence is
"everybody
else will be voir dired
Morgan v.
titled to execute the sentence."
penalty questions."
on the death
together
2222,
Illinois,
719, 729, 112 S.Ct.
procedure
imple-
then
Id. This new
was
(1992).
2229-30,
502-03
119 L.Ed.2d
general
ob-
despite
mented
defense's
not, however, assert
The defendant does
jection
process grounds."
Id. at
"on due
jurors
any
as to
of the
who
this claim
529.
phase
trial. Of
penalty
served
his
general
objection
Other than his
trial
to
serve, only
to
jurors who were selected
however,
format,
judge's change
the defen
challenged
one was
cause
any
identify
particular
defendant does not
dant,
challenge
denied
and this
objection
during
ensuing
made
voir
defendant does not
trial court.14 The
asserting improper exposure
pro-
dire
ruling
appeal.
this
on
question
spective jurors
prejudicial
to
statements.
the defendant's re-
therefore decline
We
any
claim
appeal
He does not assert
penalty
of his death
quest
reversal
jurors
permitted to
specific
were
fail-
premised on the trial court's
following a trial court failure to
serve
challenges
to
for cause with
grant
ure
grant
challenge
arising
a defense
for cause
by per-
respect
jurors
he later removed
any
out of
such incidents.
emptory challenge.
A trial court has broad discre
(b) Changing From Individualized
the form and
tionary power
regulate
Group
Dire
Voir
State,
Kalady
substance of voir dire.
v.
The defendant also contends
(Ind.1984).
Individ
462 N.E.2d
1307
by changing
trial
erred
the mode
court
ually sequestered voir dire is not mandat
group ques
from individual to
of voir dire
law,
Indiana
includ
any
ed
case under
jurors.
tioning
prospective
This
cases,
or
ing capital
highly
absent
unusual
generally, "exposed
change, he asserts
circumstances.
potentially
damaging
jury panels
grossly
members
(Ind.
State,
v.
Holmes
Br.
opinions and statements."
prejudicial
denied,
1996), cert.
U.S.
Appellant
(1997),
L.Ed.2d 85
Brown v.
State,
(Ind.1990);
563 N.E.2d
105-06
began,
the trial
days
Two
before
Lowery
that, in light
counsel
judge
informed
(Ind.1989),
cert.
U.S.
publicity regarding
of the broadcast
un-
(1990).
217,
We
observe that the
sweat,
fifteen-year-old Stacy Payne
only
evidence
relevant
to the defendant's
lying
pool
in a
of blood on the kitchen
guilt,
Guilt
not to his sentence.
was not
floor,
down,
nude from the
issue, however,
waist
with
because
body."
abdominal contents "outside her
pleaded guilty,
remaining
and the sole
is-
Tr.
placed
1811. Handcuffed and
sue for trial was his sentence. The chal-
car,
in a police
given
the defendant was
little,
lenged
any,
evidence thus held
if
warnings,
sign
Miranda16
refused to
any penalty phase
relevance to
issues.
form,"
"rights
and asked to talk with a
But
sought
the State
and obtained its ad-
lawyer.
photographing
While
the defen
penalty phase,
mission as evidence in the
scene,
police
dant at the
detective no
appeal challenges
and the defendant's
its
ticed a dark stain on the defendant's shirt
admissibility
grounds
relevancy
not on
police
and removed it from him. The
took
but as the fruits of an unconstitutional
nearby
search
if its
the defendant to a
hospital
and seizure. Even
admission
to col
samples
lect
and there observed more
erroneous,
were to be found
such error
beyond
clothing
ap-
would be harmless
a reasonable
stains on the defendant's
items,
(swab),
challenged
po-
leg
upper right
15. The
identified
# 112
# 113 lower left
(swab),
leg
upper right
numbering system,
leg
#114 back of
lice
are: #101 black
(swab),
shirt,
chains,
shoe,
gold
upper
leg
and #115 back of
left
#102
#103 left
(swab).
sock,
shoe,
Tr. at 147-48.
right
right
# 104
#
#
left
sock,
shorts,
underwear,
# 107 black
#108
leg,
upper
upper
#109 hair from
left
#110
Arizona,
16. Miranda
(swab),
(swab),
(1966).
leg
leg
left
#111 lower
left
957
peared to be blood. Reasonably concerned for one prompted by exigent circum-
potential
evidence could be lost or
stances creating a reasonable police con-
destroyed,
police
items,
collected
cern for the likely
imminent destruction of
as well as hair stuck to the
evidence. No Fourth
defendant's
Amendment viola-
body,
tion
and swabbed dark
occurred.
stain areas of the
defendant's skin. This evidence was ob-
In the defendant's sole argument assert
tained without
the defendant's consent.
ing an independent basis under the Search
15,
As noted in footnote
the defendant
and Seizure Clause of the Indiana Consti
contests
shirt,
the collection of
shorts,
his
tution,
1,
11,
§
Art.
he argues that his
shoes, socks,
chain,
gold
underwear, loose request
counsel,
which occurred after
hairs from leg,
and swabs of suspected
he was in custody, precluded police from
bloodstains on his skin.
searching him. The defendant cites Pirtle
State,
v.
16,
263 Ind.
958 Fentress, N.E.2d 702 (citing at 627 N.E.2d preju- victim, that arguing the
graphs 722). gruesomeness to their at attributable dice probative their outweighed
substantially
challenges the admission
defendant
The
cumulative
were
value,
photos
that some
Exhibits
photographs-State's
of four
were
photos
that some
and
duplicitous,
and
at trial
objections
47-over his
44, 45, and
to save
intervention
gaping
42
medical
Exhibit
shows
after
taken
.17 State's
life,
autopsy.
or after
abdomen,
victim's
her
the
with
the victim's
wound
the
on
Apparent
organs visible.
internal
photographs
admission
resulting
marks
are suture
photograph
an abuse
appeal
on
reviewed
is
life.
the victim's
to save
effort
from the
State,
N.E.2d
834
Pruitt v.
discretion.
that
the wound
contends
The defendant
denied,
(Ind.2005),
548 U.S.
cert.
117
be
gruesome
so
appeared
have
may (2006);
L.Ed.2d 962
165
126 S.Ct.
Appel
Br. of
intervention.
medical
fore
State,
1047, 1049-50
N.E.2d
685
Ealy v.
the
Exhibit 44 shows
at 82. State's
lant
admitting
(Ind.1997).
error
No claimed
abdominal wound
the
continuation
a sub
"unless
permitted
is
photographs
back, and State's
the victim's
around to
is affected."
party
of the
right
stantial
from a
same wound
the
45 shows
Exhibit
Pruitt, 834
103(a), see
R.
Evid.
Ind.
ob
the defendant
angle. Again,
different
State, 764
117;
v.
Corbett
at
N.E.2d
photographs
the
grounds
jected
(Ind.2002).
an
"Whether
628
N.E.2d
State's
cumulative.
and
gruesome
were
are affected
rights
substantial
appellant's
the
portion of
the excised
47 shows
Exhibit
examining
'probable
the
determined
aby
left
marks
displaying
spine,
victim's
jury."
the
upon
evidence
of that
impact
urges that this
also
knife.
Corbett,
(quoting
Pruitt,
N.E.2d at 117
834
the
permitted
possibly
photograph
628). Generally, photo-
N.E.2d
764
in
for the
responsible
defendant
hold the
injuries or
depict a victim's
graphs
And the defendant
autopsy.
dignity of
are
testimony of a witness
demonstrate
lacked
pictures
argues that
further
Corbett,
N.E.2d at 627
764
admissible.
already
he had
because
value
probative
State,
N.E.2d
Fentress
(citing
and,
not at
guilt was
since
guilty
pleaded
401, 402.
(Ind.1998));
R.
Ind. Evid.
trial,
were
phase
issue
have been
autopsy photographs
Though
jury.
to inflame
and used
cumulative
risk
to avoid the
inadmissible
to be
found
photo-
that two
to his claim
As
mistakenly infer
fact-finder could
that the
45)
(State's
are
Exhibits
graphs
autopsy
inflicted
another,
disagree.
we
to one
cumulative
incisions,
Allen v.
ab-
showing the same
photographs,
These
(Ind.1997),
cert.
had
angles,
two
from
laceration
dominal
(1999),
807,
Q59 procedures per- 7(B), nature of the medical revision under Rule but we will nev- describing formed on the victim and separately ertheless address each argu- *13 photograph. relevance of each As Fen- ment. tress, testimony mitigate this served The defendant also a cursory includes jury's an drawing impermissible inference assertion "this Court is required at a responsibility that the defendant bore minimum to consider whether a death sen- Further, autopsy incisions. notwith- appellant's tenced sentence is erroneous." standing guilt the fact that was established Br. of Appellant at 48 (citing Ind.Code by guilty pleas, pho- the defendant's these 35-50-2-9()(8)(B)). § This statutory pro- tographs probative remained and relevant that a vision states death sentence "is sub- charged to the mutilation and torture ject to automatic by review" this Court Proving circumstances. pursuant to our rules must take into nature and extent a gruesome crime (1) consideration all claims that the convic- usually requires gruesome evidence. The tion or sentence violated the federal or relevant, challenged photographs were (2) constitutions, state the sentencing court probative outweighed their value their po- lacked jurisdiction impose sentence, prejudice. tential The trial court did not (3) the sentence "exceeds the maxi- by admitting abuse its discretion mum sentence by authorized law" or is photographs into evidence. § otherwise erroneous. Ind.Code 85-50- Appellate Review for Sentence 2-9). Our consideration of the issues Appropriateness presented in this appeal-including the de- seeks relief under ancillary claims, fendant's which arguably 7(B), Indiana Rule Appellate urging that fall within claims of unconstitutionality un- the death inappropriate light der and "otherwise erroneous" under of his character and the nature of the (38)-satisfies the statutory requirement of addition, offense. In the defendant incor- review this Court.
porates argument into this unrelated claims, including assertions that the sen- (a) Adequacy Sentencing of the Order tencing order was that miti- inadequate, The defendant claims that the trial gating considered, cireumstances were not judge's sentencing statement fails to satis- aggravator the torture and mutilation fy the specificity requirements of Harrison should have been dismissed as unconstitu- v. regime State. This applied to sentences overbroad, tionally and that in- there was of death and life parole without under the sufficient support jury's evidence to statutory framework existing before the finding aggravator. this appellate re- substantial statutory changes in 2002. view authorized Rule 7 allows revision Prior law had placed final sentencing re- of an proper upon otherwise find- sponsibility in judge's hands, the trial fol- ing that "inappropriate the sentence is lowing receipt jury's of the advisory-only light of the nature of the offense and the recommendation, judge which the was not character of the Ind.App. offender." R. obligated contrast, to follow. In the exist- 7(B). But claims court error asso- ing post-2002 procedure places the sen- sentencing ciated with its decision are con- tencing jury. Now, function with the after ceptually distinet claims and are part not receiving jury's sentencing recommen- appellate review-and-revise function. dation, the trial ancillary judge The defendant's are is directed to claims thus "sen- encompassed not in or relevant to his tence the defendant accordingly." Ind. claim for appellate sentence review and Code 35-50-2-9(e). § The trial judge is (2007). Quarterman involved But recom- jury's to follow "obligated
thus
giving
jury
impaired from
a
was
in three situations
whether
except
mendation"
mitigation
evi-
meaningful
consideration
case. Pittman
in this
presented
(Ind.2008).
In
1253-54
dence;
it
not involve an evaluation
did
pro-
mitigation consideration
post-2002
jury's
a
under
whether
operating
cases
final sen-
At issue was
cedure,
sufficiently meaningful.
a
makes a
"When
was
"{atal-
determination,
Harrison-style
sentencing process
was
tencing
whether the
at 1254.
place."
per-
Id.
"not
would be out
because the
ly
order
flawed"
*14
a
meaningful effect or
'rea-
give
to
mitted
sentencing format established
The new
a defendant's
response'
moral
to
soned
to the death
2002 amendments
with the
it is forbid-
mitigating evidence-because
occur-
to a conviction
apply
statute
penalty
a
by
judicial
statute or
doing
den from
so
20, 2002,
a
"entered as
after March
ring
at
a statute."
Id.
interpretation of
of
person, regardless
of a
of a retrial
result
at 608
at
167 L.Ed.2d
80-2002,
P.L.
the offense occurred."
when
added).
here
(emphasis
July
committed on
§ 2. The crime was
jury
penalty phase
claim that his
makes no
2001;
penalty
guilt phase
initial
statute,
judicial interpre-
forbidden
was
2002.
in October
phase trials occurred
instruction,
tation,
or from otherwise
jury
and the
Following reversal and remand
to his
meaningful
full
consideration
giving
pleas,
penalty phase
guilty
defendant's
evidence,
pro-
so Abdul-Kabir
mitigation
9, 2007,
May
and he
beginning
retried
vides no recourse.
penal-
on June
2007. His
was sentenced
retrial and conviction are there-
ty phase
leg
that the
methodology
The
procedure.
governed by
post-2002
fore
adopted in 2002 entrusts
islature
claim that the
reject the defendant's
We
in cases
sentencing determination
jury the
inade-
sentencing
trial court
order was
parole. As
involving death or life without
failing
comport
speci-
with the
quate
statutory
determining
role of
wheth
to its
ficity requirements Harrison.
outweigh
circumstances
er
(and
implicit
mitigating circumstances
(b)
of Miti-
Trial Court Consideration
and to
necessary questions of whether
gating Circumstances
mitigating cireumstances ex
extent
what
The defendant asserts that "the record
ist),
essentially
discretionary
this "is
mitigating
indicates that the
cireumstances
consider
jury
function as to which the
has
Br.
outlined above were not considered."
Pittman, 885 N.E.2d at
leeway."
able
argument
at 55. His
on this
Appellant
legislature
give
intended to
1253. "[The
of the evi-
summary
consists of his
point
in the trial court on
jury
the final word
proved
he claims
that he suffered
dence
under Indiana's death
sentencing
from exhibitionism and "the severe mental
Pruitt,
he tortured evidence, reasonable this In view inflicted intentionally he intercourse, that be- mutilation torture find could punish- or pain period appreciable an doubt. reasonable yond a went injuries her that her, or ment on kill- act of to the those attendant beyond Ap- for Sentence (e) Review Appellate ing. propriateness and, differently the evidence viewWe 7, Rule Appellate Invoking torture the evidence indeed, that find review we that requests overwhelming. defendant mutilation Emphasizing 911 dur- sentence. sister, called his death who revise young victim's cireumstances mitigating observed that she attack, testified his belief ing proceed victim top of the considered the defendant were at- "[when with pleaded argues screamed ings, victim stop," are stop, please "please circumstances tacker quiet." be better "you circum responded, mitigating he against weighed officers enforcement Law at 1271. Tr. [his] clear stances, it *16 the waist from naked Appel the victim found Br. of than death." less be should outside contents down, her abdominal with at 55. lant legs and and her arms flailing body, her however, Rule under review Appellate had The defendant speak. trying weighing such necessarily entail not does her throat, severing the victim's slashed circum mitigating and of vein, jugular internal right and windpipe directs Rather, generally the rule stances. awith abdomen her open cut had and court the trial whether evaluate that we her around long slash inch twenty-four na based on inappropriate is sentence the victim's exposed This wound waist. of the the character and offense ture from concluded One doctor backbone. of case, the nature In this offender.18 had cut defendant that the injuries ac horrendous, expressly as is offense and abdomen of her front through Appel Br. of the defense. knowledged her way through knife all driven then, issue, is whether The at 54. lant The victim spine. her and into midsection the defendant's about something is there attack, during this during alive remained to conclude us persuades that character during care, and EMT on-the-scene inappropriate. is death that the local and care transport ber on this only argument The defendant's of the hand squeezed she hospital, where consider favorably should that we is point if asked nurse when room emergency an from exhibi he suffered that his evidence treated She was understand. could she of defect mental "the severe and tionism then air- and minutes forty-six there discipline poor received psychopathogy," Hospi- Louisville University of to the lifted years, formative in his training and dead. pronounced tal, she was where decision, the sen- finds the Court appeal his a defendant court's permits This rule nature of light in inappropriate is tence review- and authorizes criminal the offender." the character and authorized the offense "revise a sentence ing court to 7(B). Ind.App. R. if, the trial consideration after due statute defendant, character in the self-sufficient, we decline to immature and never safely prison sys- could be housed jury's intervene in the determination argues that his men- tem. the death appropriate sentence is defect, under the laws of Indiana for this defen- tal he him asserts makes incapable pain, genetic, of emotions or ... dant. choice, acquired through conscious and Id. at 766. We conclude likewise in the in impulsiveness
that it results which sub- present case. stantially impaired ability to conform his conduct to the he law when committed Conclusion this murder. We affirm the trial judgment court's In response, argues part the State ordering the death sentence for the defen- that the evidence undermines the reliabili- dant. ty expert opinion of the defense's that the from psychopathy, suffered SULLIVAN, BOEHM, RUCKER, legitimacy significance psychopathy JJ., concur. diagnosis, reliability as a and the scientific SHEPARD, C.J., concurs, continuing to of the defense's claim that the defendant's justification believe that there is less mental alleged necessarily pre- condition appellate alteration of sentence than there controlling vented him from his behavior. (rather was when judges juries) than were experts Tr. at 1958-61. Other did not the final deciders of sentence. See Baer v. diagnosis. reach the same The defen- (Ind.2007) expert acknowledged dant's witness C.J., (Shepard, concurring). "psychopath" "psychopathy" are listed diagnoses neither the nor in DSM-IV its subsequent revision. Id. at 1950-51.
And the evidence revealed other instances *17 defendant was able to control
his violent behavior. conflicting reports,
Given these the de
fendant's mental-health evidence is less compelling. paren
than
And his claims of
Jeffrey
GRAHAM, Appellant
A.
inadequacies
tal
during
years
his formative
(Defendant
below),
particularly significant.
are not
See Rit
chie,
nature of this offense.
In Baer v.
(Plaintiff
below).
(Ind.2007),
court's na- light
ture of the offense the defen- shown ...,
dant's brutal savage slaying
and the lack of demonstrated virtuous