*1 Ray WILKES, Danny Appellant
(Defendant below), Indiana, Appellee
STATE
(Plaintiff below).
No. 10S00-0808-DP-453.
Supreme Court Indiana. 10, 2009.
Dec. *4 Evansville, IN, Goodridge,
John Andrew Gooden, Vernon, Wayne IN, William Mt. Attorneys Appellant. for Schumm, Sutton, Joel M. M. Ann India- IN, napolis, Attorneys for Amicus Curiae County Marion Public Agency. Defender Zoeller, Gregory Attorney F. General of Indiana, Creason, Stephen R. Deputy At- General, IN, torney Indianapolis, Attor- neys for Appellee.
BOEHM, Justice. appeal,
In this ap- direct Daniel Wilkes peals his murder convictions and death sentence. We affirm Wilkes's murder con- victions and death sentence. History home,
Facts and Procedural hammer and on a level found at the and also on a shirt and hat worn spring In the Daniel met Sydne's Wilkes. blood was found on the Claspell Donna Baker and Michael while claw of the hammer and on Wilkes's shirt being all three were treated at a drug and her DNA was found on Wilkes's shoe. discharge, rehabilitation center. After Wilkes confessed to the murders under stayed with Donna and her two cireumstances described below. daughters, eight-year-old Sydne Claspell thirteen-year-old Avery Pike. Wilkes charged Wilkes was with all three mur- told Baker that he night one awoke to find ders. The State filed a death re- Avery "hunching leg," on his and that he quest alleging statutory as a Avery then engaged mutual oral cireumstance of each murder that Wilkes sex. Wilkes later admitted to molesting and, had multiple committed murders as to Avery on a total of three or four occasions. Sydne, that the victim was less than twelve On the evening April 23 or the early years old. morning April Donna found Wilkes *5 and Avery together jury and told Wilkes that found guilty Wilkes of all three he would have to leave the home. In penalty phase, murders. jury found all four circumstances eight Around o'clock the next morning, and found that the aggravating circum- neighbors Donna's observed Baker picking stances outweighed the mitigating cireum- home, up Wilkes at the and one heard stances, but agree could not on a sentenc- like, say something got Wilkes "I've get ing recommendation. After discharging out night, of here." That according to jury, the trial court conducted the Baker, kept looking Wilkes out the win- sentencing. The court accepted jury's expressed dows and po- concern that the findings independently and ag- found the lice would come for him. gravating cireumstances and ag- that the Donna, April On the bodies of Sydne, gravating outweighed cireumstances Avery and were in found their home. mitigating cireumstances. For each mur- Donna and Sydue were in the master bed- der, the trial court sentenced Wilkes room. Donna multiple inju- had sustained death. ries, including a deep cut wound to the neck and blows to the head from a ham- appeal, this direct challenges Wilkes mer and another blunt instrument. A sentence, his convictions and his arguing knife was under found Donna's shoulder. that: Sydne twenty-seven had died from at least I. The trial admitting court erred in head, back, blows to the and shoulders transcripts and recordings of four from a hammer Avery head and claw. was in interviews which he acknowl- found in her bedroom naked and face down edged guilt; his on the bed. Her hands were bound behind II. The trial in admitting court erred cord, her back with a her ankle was tied molesting Avery, evidence of his of bedpost, strangled and she had been expert testimony regarding pre- piece with a clothing. sumptive blood, opin- test for and DNA and serological tests were per- ion testimony guilt; on formed on several from items Donna's home and clothing also on Wilkes II. was Indiana's death statute vi- wearing at the time of his arrest. Donna's olates the Indiana Constitution's blood was found on the ball and claw requirement separation of a pow- Miller, 770 N.E.2d Federal Sixth Amend-
ers and evidence. substantial at 767. ment; and proper- not sentenced
IV. Wilkes 26 Interview April A. ly. by police first interview took Wilkes's April approximately on 26 from 6:00 place Admissibility Interviews of Wilkes's I. videotaped. Before p.m. to 11:00 and was trial, objection, At over Wilkes's statements, making any Wilkes was ad- four inter- transcripts of State introduced signed a rights vised of his Miranda acknowledged his views which provided written waiver. Wilkes was din- interview videotape of the first guilt. A a half-hour break cigarettes ner and at recordings of the other three audio In the course of the pm. around 9:30 were also admitted. killing admitted to interrogation, Wilkes admitting these erred the trial court Donna, Avery, Sydne. Wilkes claims given involun- interviews were because the inter- any April statements right of his to remain tarily in violation involuntary because of the con- view were silent. (1) following factors: he vergence of drugs during was under the influence of Constitution, the Federal Unlike (2) interview; psychologi- police used on the State the bur imposes Indiana law (3) method; cally interrogation coercive beyond a reasonable doubt proving den of interview the statements his contained voluntary. Lego that a confession *6 (4) inconsistencies; police promised Wilkes 477, 488-89, 92 S.Ct. Twomey, 404 U.S. information; exchange for cigarette State, (1972); 619, v. 618 Pruitt 30 L.Ed.2d (5) attempted to end the inter- and Wilkes (Ind.2005) 90, (plurali 114-15 834 N.E.2d admitting before to the crimes. rogation State, 763, 770 N.E.2d 767 ty); Miller v. State, (Ind.2002); v. 427 N.E.2d Owens drugs. 1. At five Influence of (Ind.1981). 880, In evaluating a claim 884 points April interrogation in the 26 Wilkes voluntarily, given was not that a statement drugs. claimed to be under the influence of "totality to consider the of the trial court is are due to Statements inadmissible intoxi circumstances," including any element only cation when an accused is intoxicated coercion; location, the length, police that he unaware of point to the is what he interrogation; and the continuity Pruitt, N.E.2d at saying. (plu 834 115 education, condition, maturity, physical State, rality (citing v. opinion) Williams of the defendant. Mil and mental health (Ind.1986)). 53, 489 N.E.2d 56 Intoxi ler, 767. To 770 N.E.2d at determine degree goes only cation to a lesser given voluntarily, was a statement Here, given be Id. weight to statement. inducement, must conclude court does not claim that his intoxication Wilkes violence, threats, other influ improper him caused to be unaware his state not overcome the defendant's ences did interview, during the and the detec ments State, free will. 808 N.E.2d Clark interrogated who him testified that tives (Ind.2004). he intoxicated. The trial appear did not ruling that Wilkes's interview was court's the trial court's deter appeal, On involuntary to his intoxication is not due mination of voluntariness is reviewed evidence. supported by sufficient sufficiency other matters. Id. We do not evidence, coercive inter Psychologically we affirm the 2. reweigh the that the finding supported by rogation trial court's if it is methods. April interrogation was coercive be- create an involuntary statement. Pierce v. cause the detective insisted that (Ind.2002). 761 N.E.2d remembered the supplied crimes and him considerations, Given all of these the trial with details even though Wilkes repeatedly court's conclusion that the interrogation denied remembering the crimes. Wilkes method did not render Wilkes's interview argues that his involuntary confession was involuntary supported by more than suf merely repeated because he back to the ficient evidence. detective facts he learned during the inter- rogation. 3. Inconsistent statements.
Certainly a confession in which the de Wilkes cites to April inconsistencies his parrots fendant detective-fed details of the 26 interview as evidence that his state may crime be less reliable than one in ments were voluntarily given.2 Incon which the freely defendant volunteers his sistencies are a factor to be considered in story in entirety. its But under Wilkes's determining whether a statement is volun circumstances, the trial court had suffi tary. Light cient evidence find that Wilkes was not (Ind.1989). But inconsistencies can psychologically coerced. Because the ex also be the product of untruthfulness or change videotaped, was the trial court was evasiveness, and are not themselves position to evaluate demeanor.1 The strong indication of lack of voluntariness. interrogation hours, lasted five and Wilkes The trial court had the opportunity to view provided cigarettes three and a the videotape of the interrogation and break for food. It is true that the detec make a determination as to whether tive provided many Wilkes with details of Wilkes's will had been Again, overcome. crimes, but Wilkes also described de given the circumstances of this interroga tails of the provided crimes were not tion the trial court had sufficient evidence by the detective. For example, he stated to find that responses Wilkes's were volun that he had a flash of Donna lying on her tary and that the jury could consider the bed in a lot of blood before the detective *7 inconsistencies determining whether to told him that Donna was found on her bed. give the interview credit. Moreover, in the interviews Wilkes identi fied instances when he was referring to 4. cigarette. Promise a police suggestions rather than his own requested Wilkes cigarettes several times memory. authority Wilkes cites no for his during April interrogation. Late in contention that supplying some facts to a the interrogation, after Wilkes had already defendant renders the defendant's state statements, made incriminating again he ment involuntary. This Court previ has cigarette. asked for a The following ex ously held that interrogation various tech change occurred: niques-"good cop, cop," bad providing a morally answer, acceptable blaming the WILKES: I need cigarette, another victim, and bargaining-do not necessarily please. And we'll talk. videotape 1. The April of the 26 interview was claimed, did it and then "I don't remember 52, admitted in evidence but was not doing page it." On included in when asked who appellate record. Donna, "Me, killed responded, guess." he I said, Then he "I don't think I killed her." On example, page
2. For on interroga- 40 of the said, page guess." he "I killed her I Later said, transcript, tion Wilkes "I did it." On suggested he that Baker killed Donna. page he said he did not know whether Michael Baker did page it. On he said he See cigarette. promise
come 1208, 1213 Terhune, F.3d Anderson me to tell you going Are DETECTIVE: Cir.2006) (statement involuntary (9th you cigarette? get Iif the truth until cigarettes withheld when detectives A: Yeah. talk) (rev'd banc on en agreed to defendant bottom, lying. no more out Q: Flat (9th F.3d 781 Cir. grounds, other that? you do Will 2008)). Yes. A: end the attempt to 5. Wilkes's one give you Now, to do is got Iall Q: argues that Finally, Wilkes interrogation. cigarette? more involuntary be interview was April his A: Two. times it several attempted to end cause he me, then You tell one. Q: give you I'll points Wilkes admissions. making before But I want one. you another give I'll to end attempts following phrases the truth. tell me you to "Well, have, I I'm still interrogation: A: Ok. "No I go away," you're going and high and cigarette, with a provided Wilkes me, I don't today this with ean end topics on to continued interrogation shit," "I don't want know have to history, daughter, his job Wilkes's such as I don't want to it no more. talk about methamphetamine experience and his I'm still right now about it. Cause think Roughly the murders. returning to before statement, con After each high." receiving cigar after minutes seven conversing with the detective.4 tinued happened "what ette,3 asked when said, ... I just "I did it night," the Miranda An assertion of Later, of Wilkes was hitting." remember be clear and silent must right to remain cigarette. and another fered food Clark, at 1190. unequivocal. a defendant has determining whether in In cigarette specifically of a The offer are con the statements right, be viewed asserted information could exchange for expressions a whole. Id. Mere involuntary sidered as leading to an as an inducement not invoke reluctance to talk do However, lapse in of given the confession. Id. This has to remain silent. Court right this admis- cigarette time between the raising doubts several times already admitted held had sion and that Wilkes continuing fol concern about bloody expressing bed of Donna in having flashes dialogue do not unam by continued bound in her lowed Avery facedown and and of *8 to remain silent. right assert the biguously bed, evidence sufficient the trial court had Id.; State, 835, 842 v. will was not over- that Wilkes's to conclude Griffith But, you ... don't DETECTIVE: but videotape, we cannot interview 3. Without the passed time be- ... exactly much WILKES: and I don't determine how Q: that, cigarette the incrimi- the offer of a the truth is tween but I understand transcript's the nating Based on statements. there. total interview length pages and the know, of 140 just want to But I don't don't A: minutes, page each time of 4 hours and 12 really to think high I don't want The average to 2 minutes. an of covered 1% about it. pages made 5 incriminating were statements Q: Ok, you get ... You want to it don't cigaretie pages receiving and 8 after the after ago you to tell the wanted told me while offer. the detective's truth, your get ... you it off wanted to morning, time tomorrow I think this A: statement, the example, after the latter 4. For I'll be dead too. dialogue continued on: just of ("I required passage not after (Ind.2003) say any- not are might as well hours."). in Although Ogle the break more," in- few by disclosure of followed thing here, formation, right to re- was shorter invoke the inter- did not than the break part interrogation silent); ruption Wilkes's Haviland main ("I'm continuing investigation, and Wilkes's (Ind.1997) of a through N.E.2d The trial court interests remained clear. this," dialogue by continued followed admitting April did not err to therefore right assert unambiguously not did at trial. interview silent). Here, after each remain to end the attempts purported Wilkes's April 28 Media Interview C. speak with he continued to interrogation, custody, was in After Wilkes court's conclusions The trial the detective. police an interview. The requested media unequivocally assert that Wilkes did with a standard media presented Wilkes silent, that his remain right his form, signed. he The econ- consent which voluntary, were were further statements advise Wilkes of his sent form did not evidence. supported by sufficient right of his to refuse right to counsel or interview, although the line above April B. 27 Interview "INMATE signature stated: Wilkes's argues statements ATTORNEY'S SIGNA MAY WAIVE 27 inter April of his made in the course BY BELOW." The offi TURE SIGNING inter inadmissible because the view are provided who the form to Wilkes testi cer by a preceded view was not Miranda that he not know whether Wilkes fied did began 27 interview at warning. April inter lawyer. During had a media am., than four hours after 2:35 less view, to the murders and Wilkes confessed April 26 interview ended. molesting Avery. by made the defen- A similar claim was that he should have been N.E.2d 1146 Ogle dant before tak- right of his to counsel advised (Ind.1998). signed the defendant Ogle, Wilkes cites ing the media interview. rights ques- and was a waiver of Miranda of Part II of the ABA Standard 8-2.1 for less than Questioning stopped tioned. Justice, sug- Standards for Criminal which hour, an and then resumed without see- that officers should not gests Mirandizing. noted: ond We authority their over exercise custodial prac- it the better Although might be in a manner that is an accused individual warnings after tice to reiterate such interviewing ... likely to result in questioning, a read- interruption an of the news media of by representatives necessary when the only visement request on person custody except suspect of an interruption deprived to an interview person consent an to make informed and opportunity being adequately informed after of his interests. intelligent assessment with counsel and the right to consult part of a continu- interruption If the *9 an interview. right grant to refuse to suspect, investigate al effort remain suspect's then the interests Recently in Ritchie v. State this Court fairly clear. are warnings whether Miranda discussed omitted); interviews. 875 before media required (internal N.E.2d at 1149 citations 698 (Ind.2007). al., concluded 717 We 2 R. LaFave et N.E.2d Wayne Crim cf . required only are warnings (3d 2007) ("It Miranda 6.8(b) § ed. inal Procedure warnings generally accepted "inherently that fresh coercive to overcome police-dominated atmosphere thirteen-year-old inherent to a Avery, and the State suc- interrogation," cessfully sought custodial and that "civilians admit these confessions own as evidence conducting investigation their need relevant to Wilkes's motive for Id.; the murders. give warnings" not Wilkes does not Miranda see contend that this evidence is irrelevant to motive. LaFave, 6.10(b) ("[I]t § supra, also Nor does he claim that the prejudicial clear that does govern Miranda not inter- effect of this outweighs any evidence rogation by private pro- acting citizens on their Rather, bative value. he contends that own. This covers ... a newspaper report- er...."). corpus rule proof delicti bars of his confes- The ABA Standards have not sion to child molesting. adopted been in Indiana. and until Unless the ABA Standards have been adopted and Indiana, may crime not be apply prospectively, we reaffirm our hold- proven solely based on a confession. Ad ing in Ritchie and conclude that the trial mission of a requires confession some inde court did not err in rejecting Wilkes's pendent evidence that a crime was com claim that the media interview must be mitted. Workman 716 N.E.2d from excluded evidence. (Ind.1999). 445, 447 points out that there is no evidence other than his confes April D. 28 Interview sion the crime of child molesting was April On approximately thirty-seven committed. Wilkes objected generally April hours after his by interview po- that his activity confessions to sexual lice, Wilkes questioned was by police a Avery were inadmissible prior crimes or third time. interrogation This preced- acts, bad but did not corpus raise the by ed Miranda warnings. point. delicti Although the issue is not that statements in this interview were in- preserved appeal, for we choose to address admissible because "the State failed to it. prove it was free from the taint of the The corpus delicti rule not apply does earlier statements." Because we find no evidence of permitted other crimes Evi interviews, taint Wilkes's earlier we con- 404(b). dence Rule purpose of the clude that the trial court did err in corpus delicti rule prevent is to conviction admitting April 28 interview. for a crime that did not Sweeney occur. Evidentiary II. Issues (Ind.1998); Wilkes claims three errors in the admis- LaFave, Wayne R. Substantive Criminal trial, sion of evidence at his As to two of 1.4(b) (2d ed.2003). § Law purpose That these, we agree do not there was apply does not to evidence of of crimes error, and as to the third any we find that 404(b) fered under Rule to establish mo error was harmless. tive or intent because there is danger no conviction Moreover, for those crimes. 404(b)
A. Indiana Evidence Rule corpus delicti rule apply does not here 404(b) because admission under Evidence Rule Indiana Evidence Rule pro crimes, hibits 404(b) evidence of other wrongs, or does not require proof sufficient for "prove acts to the character person of a in conviction. Evidence of wrongs other order to show action in conformity there acts is admissible if it is relevant to estab However, with." expressly Rule al motive, intent, lish identity, like, and the lows such evidence purposes, for other in irrespective of whether there has been a cluding proof case, of motive. In this conviction. Prior crimes offered under *10 Wilkes confessed to sexual activity with Rule 404(b) need not establish the crime
685 hundreds, perhaps thousands of doubt. See formed a reasonable beyond phenolphthalein "majori- tests and that the Gra- Wright & Kenneth W. Alan Charles time," ty presumptive of the if a test was Ir., ham, Practice and Procedure Federal blood, by a test for the followed definitive (1978) 5249, (addressing same § at 535 presence of blood. latter confirmed Rule of Evidence under Federal issue Here, performed no additional test was to 404(b)). reasoning applies to The same evidence, confirm that the stain on Wilkes's shoe in- sufficiency of of other rules quantity was blood because the was insuffi- Accordingly, delicti. cluding corpus cient to do both a blood test and a DNA con- correctly admitted Wilkes's trial court test. The DNA test revealed that Avery. of fessed molestation Sydne. matter from biological
stain 702(b) hearing testimony, After this the trial Evidence Rule B. Indiana uncertainty court ruled that of the er argues that it was phenolphthalein weight, test went to its phenolphthalein test results ror to admit reliability, not its and allowed the witness lay the State did not a foundation because reprise testimony to at trial. reliability. explaining the test's Indiana expert testify 702(b) present When did the admissi governs Evidence Rule testimony. scientific The bility expert report "pre of ed her that the stain tested blood, expert that scientific testi provides sumptive" Rule for Wilkes made no fur only if "the court is mony objection. is admissible ther The State upon principles satisfied that the scientific any per Wilkes's failure waived error expert testimony rests are reli mitting expert testify which to that the stain Reliability may of a test be estab presumptive able." tested for blood. State is a sufficient by judicial lished notice in limine correct that a failed motion reliability. foundation to establish Malin ordinarily exclude evidence does not elimi (Ind. a requirement party State, 1071, nate the must v. 794 N.E.2d ski object at the time the evidence is offered 2003). The trial court's decision to admit 702(b) preserve appeal. at trial to the issue for testimony scientific under Rule Brown N.E.2d for of discretion. Rondon reviewed abuse (Ind.1999). (Ind.2003). But this rule from cases arises limine, usually where motions as is five-day guilt day On the third case, were made before trial. The rule phase, hearing the court held a on Wilkes's give from a desire the trial derived preclude motion in limine to the State's court opportunity reconsider testifying from that a stain from witness ruling light subsequent developments on April Wilkes's shoe 2006 tested at trial. See id. Here the trial court's using phenol- "presumptive" for blood on the after a ruling motion was made hearing, test. At the the wit- phthalein hearing mid-trial and the witness testified ness, who had been trained in the identifi- immediately hearing, after the so the is body cation of fluids and had testified as fully developed sues were and fresh in the times, sixty an expert testified she trial court's mind. Under these cireum- performed phenolphthalein test that indi- preserved stances we find the issue for "possibility" presence cated the of the appeal. in the An blood stain. additional test required Although preserved, be to determine whether the issue is we find would First, by it without merit. far the most the substance was fact blood. The wit- per- damaging part testimony ness further that she had of this was that testified *11 Q: Danny DNA was found in the stain. Sydne's buddy. Danny look at me any . somebody it was from blood or another cords used to hold Whether source, twenty over down? Sydne died from blows only that left not her blood but also other A: Yeah ... weapon tissue on a found at this horrific Q: Get mad. Put something around Second, equally and important, seene. their ... happened throats this is what any significance the extent there was Danny, happened didn't it. it ...
whether the stain was rather blood than A: I believe it happened. biological bearing some other material Q: there, It happened. you And were DNA, Sydne's the State's ex- witness you it, were there and we know you plained only presumptive test was it, up know or we wouldn't be here. required confirmation to establish con- Wilkes that Detective Brown ex- elusively that the stain was fact blood. pressed opinion guilt his of Wilkes's when explained presumptive She also that a test stated, he "It happened. you And were probable made it more than not that a there, you it, were there and we know definitive test presence would confirm the it, you know or we up wouldn't be here." of blood. The test therefore was admissi- evidence, conclusive, ble if not this on Smith v. point. (Ind.1999), we held that admission of
an officer's thought statement "I it was 704(b). 704(b) you" was error under Rule C. Evidence Rule We also found prohibited that the Rule admis 704(b) Indiana pro Evidence Rule following sion of the by statement an inter hibits giving opinions from con witnesses rogating detective: "Something stinks. So cerning guilt a criminal case. Wilkes basically all got your we've word that argues that a by statement made the de Boogie shot guy. you're Is that what during tective the April interrogation ... telling you us I think looking out was an opinion of guilt Wilkes's and should Boogie" for Lampkins v. have been exeluded. (Ind.2002). N.E.2d The detec trial, Before requested that the tive's statement here similarly proble court transcript redact from the "any 704(b), matic under Rule and the trial police statements made implic- However, court in admitting erred it. ad itly or explicitly convey opin- the officer's mission of the detective's statement in this concerning intent, ions Wilkes's guilt or case-one line in an over one-hundred- innocence...." The trial court denied this page transcript interview days and several motion. objection Wilkes renewed his only guilt, evidence-was relevant at trial, trial, and it was overruled. At the penalty, and was harmless in view of transcript April of the 26 interrogation was the forensic evidence and confessions sup admitted as an transcript exhibit. The porting guilt. Wilkes's following contained the conversation: Constitutionality IH. of Indiana's DETECTIVE BROWN: Mmm-hmm. Penalty Death Statute
Alright, am I
...
bringing up any
A.
"Special
Use
Verdict" Forms
WILKES: No
challenges
provision
Q: Memories, for Danny, Danny
Indiana's death
pen-
statute that a
A:
I'm freaking out.
alty phase jury
provide
special
"shall
*12
466,
2348,
But Sentencing by B. the Court preliminary not ask for or ty statute does penalty Indiana's Under death leading to the ultimate subsidiary findings statute, jury if the makes a recommenda Rather, jury's find- it sets out verdict. sentence, the trial court is to tion required to be ings as to the ultimate facts § "accordingly." 35-50-2- sentence IC. penalty in a death jury resolved 9(e). subsection, § following 35- The I.C. jury may, required case. The but is 50-2-9(f), jury if a is unable provides that to, pen- as to the reach a recommendation penalty, as to to reach a recommendation alty. The form thus documents whether if proceed hearing the court is "as jury eligible finds the for defendant been to the court alone." Wilkes ar had penalty. enhanced that, statutory gues as a matter of con by the Use of the form is necessitated struction, section does not allow the right jury Sixth Amendment trial as as to rely jury findings court to on the required by trial applied two-phased aggravators weighing. agree We penalty the death statute. The Indiana the trial must make its own determi court that one or requires death statute aggravating circum nation whether statutorily "aggravating more identified beyond stance is reasonable established cireumstances" be found before a defen- out aggravators doubt and whether the eligible penalty. is for the death IC. dant weigh mitigating cireumstances. 35-50-2-9(a). case, § In this these cir- from sub- quoted language murders and a take the multiple cumstances were We years age. (£) under killing of a child twelve is to sentence section to mean court special as it have if the case had been tried statutory provision for verdicts would jury. without a note that this Court compliance with the We designed to assure in State v. implicitly adopted an- that view requirements federal constitutional Jersey, v. New 530 Barker: Apprendi nounced that a penalty requirement thus conceivable under the
It
Sixth Amendment
finding
could return a verdict
phase jury
jury
that the
find the aggravating cireum-
*13
aggravators proven beyond
stances,
one or more
and also the Indiana requirement
doubt, but be unable to
judge
that the trial
a reasonable
independently arrive at
agreement on whether
reach unanimous
finding.
the same
any mitigating circumstances are out-
County
Amicus
curiae Marion
Public
aggravating
the
weighed
circum-
Agency argues
Defender
that the directive
jury
a
stances. Where
thus unani-
(£)
in
if
proceed
subsection
"as
the hear-
finding
in
one or more aggravating
mous
ing had been to the court alone" limits the
proven beyond a reason-
cireumstances
trial court to
a
imposing
years
term of
but unable to agree
able doubt
on a
the trial
because
court is limited to a term
recommendation,
sentence
Subsection
years
in
penalty
non-death
and life with-
9(f)
to instruct
that
the
applies
court
out parole cases where
it
sentences
"discharge
jury
proceed
the
shall
"alone." Amicus also argues that
the
hearing
if the
had been to the court
penalty
death
statute
right
creates a
to a
alone."
this event
the trial court
jury
penalty,
determination of
making a
shall,
upon
presented
the evidence
based
penalty phase
new
proper
the
if
remedy
phase
penalty
jury, impose
a sen-
the jury fails to make a recommendation.
parole
tence of death or life without
...
As we have explained, we think the 2002
may impose
years.
or it
a term of
amendments were intended to conform
(Ind.2004).
This does
Indiana's statute to
requirements
the
imply
jury's
that
findings as to
Apprendi
Ring.
If there has been no
aggravators
weighing
are to be disre
trial,
waiver
jury
jury
must find the
garded.
contrary,
Apprendi
To
cireumstances,
aggravating
but the death
Ring require that the jury find a statutory
penalty
permits
statute also
a court sen-
aggravating circumstance.
Without
tencing
place
to take
if a jury has been
finding,
eligibility
defendant's
for the
35-50-2-9(d)-(e)
§
waived.
I1.C.
We
penalty
established,
death
is not
and no
think that
if
jury
aggravating
finds
further consideration of the
penalty
death
but
agree
cireumstances
cannot
on a ree-
required.
ommendation, this
merely permits
statute
If the jury
requisite
makes the
findings
the court to exercise
sentencing
its
func-
but
agree
eannot
on a recommended sen-
tion
if"
"as
the entire case had been tried
tence,
(f)
subsection
requires
the trial
without a jury. The result
is that
proceed
court to
if
"as
the hearing had
(£)
requirements of
apply,
subsection
in-
been to the court alone."
(g)
Subsection
cluding
requirement
the trial
requires the trial court to make the find-
independently
court
find the aggravating
(F)
ings
identified
subsection
"[ilf
circumstances. But it does not convert the
hearing is to
court alone." One of the
entire case to one tried free of the death
(1)
findings described
subsection
is that
penalty provisions.
proved beyond
State has
a reasonable
doubt that at least one statutory aggrava-
Ring
C. Violation of
v. Arizona
(F)
tor exists.
Subsection
requires
also
the trial
judge to
Supreme
find
United States
Court held
circumstance
beyond
Ring
established
v. Arizona
capital
reason-
defendants
able doubt. The trial court
properly
jury
here
are entitled to a
determination of any
(F)
fact on
legislature
which the
conditions an
made
these
findings.
subsection
Wilkes thus received the benefit of the
punishment.
increase
maximum
there is no-there
is no mitigating
evi-
at
jury, to be under a reasonable doubt circumstances ... that more than one standard. person people and one of those under 258, (Ind.2004), 809 N.E.2d 266 cert. de 12, age that's what the aggrava- nied, 828, 42, 546 126 U.S. S.Ct. case, ting circumstances are in this and (2005). L.Ed.2d 76 We reaffirm that view. we think there is nothing worse than that. Sentencing IV. Issues
A. Counsel's Aggravae- Concession of believe that [We information that's Aggravators
tors and that Out- provided you been to through these wit- weighed Mitigators nesses should you convince and will con- argues Wilkes that the trial court you vince that Mr. Wilkes deserves to in finding erred that Wilkes conceded that spend the rest of his life in prison.... all aggravators proved beyond were reasonable doubt and the Like aggravators out the death penalty, imposition of life weighed mitigators. parole requires without a finding of a stat- utory aggravator aggravator and that the closing Statements counsel in outweighs mitigators. These statements argument may be sufficient to constitute counsel, like in Trusley, those are there- admission of an aggravator. v. Trusley fore sufficient to constitute admissions to (Ind.2005) 923, 829 N.E.2d both multiple murders and a victim under (counsel's statement "that the victim of the old, years twelve aggra- and also that the crime years was less than twelve of age" outweighed the mitigators. vators The tri- admission). was an al court did not err in finding that counsel In opening statement and closing argu- jury conceded these issues. The found ment of the phase, defense counsel aggravators proved beyond these a reason- made several statements that could be able doubt and also they outweighed that viewed as concessions. These include: any mitigators. The trial court in sen- its
We're
offering
justifica-
not
excuses
tencing
expressed
order
independent
its
tions for what happened. They're three
judgment
aggravators
that
were
people
innocent
that were brutally
proved
they
mur-
outweighed
the miti-
weighing
dered and there's a
gators.
Whether defense counsel con-
you
Court has instructed
to do. When
ceded these matters is therefore of no
taken,
you take
lives that
significance.
those
were
Dretke,
274,
542 U.S.
as a
see also Tennard
to Incarceration
Adjustment
B.
285-87,
124 S.Ct.
159 L.Ed.2d
Circumstance
Mitigating
(2004) (discussing
approval).
Skipper
sentencing hearing, Wilkes
hisAt
adjusted
had
to
that he
evidence
presented
defendant
Unlike
prevented
incarceration,
prison,
was not
from
well in
Skipper, Wilkes
behaved
a sentence of life with
safely
jury.
could
serve
presenting this evidence
the trial
parole.
obligated
out
the trial court is
Although
evi
factors,
to consider this
required
mitigating
court
and consider
receive
mitigating circumstance
obligated
accept
as a
dence
the trial court is
did not do so.
to what
that the court
the defendant's contentions as
cireumstance or
mitigating
constitutes a
Carolina,
v. South
Skipper
cites
circum
proffered mitigating
give
1, 4,
90 L.Ed.2d
106 S.Ct.
476 U.S.
weight
stances the same
defendant
(1986)
adjustment
proposition that
for the
does. Gross
*15
circum
mitigating
is a
to incarceration
(Ind.2002).
the trial court
1140
Nor
to
required
trial court was
stance that the
accept
opinions
to
of ex
obliged
the trial court ex
In Skipper,
consider.
v.
perts. Thompson
good
the defendant's
cluded evidence of
(Ind.2004).
1146,
The trial court
1149
Supreme
The
prison.
in
Court
behavior
accept
mitigating
as
a cir
required
held that this evidence could
reversed and
that
cumstance
is established
from the sentencer's con
not be excluded
of
facts and as a matter
law is to be
might
it
have served as
sideration because
Anglemyer
considered.
868
than death.
Id.
for a
less
basis
sentence
482,
(Ind.2007),
reh'g
N.E.2d
490-91
5,
Supreme
1669. The
Court
at
106 S.Ct.
(Ind.2007).
granted,
Id. at 902.
E.
Jury's
Failwre to Recommend
The view of the
majority
Roche
a Sentence
upheld in Burris v.
tence is irrelevant because that case Finally, Id. at 851. in Dunlop v. sentencing proceed "shall ifas the hearing (Ind.2000), N.E.2d Justice Sulli- had been to the court alone." van's dissenting opinion, joined by Justice Rucker, mentioned jury's inability This previously Court has divided over reach a unanimous recommendation as a this issue. In Roche v. mitigating circumstance in a life without (Ind.1992), the jury discharged was case, parole but this issue not ad- being after unable to reach a recommenda- by majority. dressed tion, imposed trial court a sen- tence of case, death. This Court held that "[NlJo the trial court considered meaning interpreted should be from the itself bound by Roche and concluded that it jury's failure to reach a jury's recommendation. could not consider the lack recom Likewise, the failure to reach a recommen- mendation in selecting penalty. The tri dation should not be considered as miti- al court noted that subsequent statutory gating factor during penalty phase." amendments and law case could be viewed issue, appropriately relevant to the but this Court to consider all of arguments his any change left the law to this Court. and his individual characteristics and de- termine that death his sentences are inap- We last visited this issue in 1996. In propriate. Assembly the General amended the jury's death statute to make the presented Wilkes evidence regarding his sentencing binding recommendation on the character. found, As the trial court § judge most circumstances. 1.C. 35-50- prior Wilkes has no felony convictions. 2-9. We think this emphasis increased on However, he did admit to drug use and to jury provides role of the a reason to molesting Avery multiple on occasions. reconsider the Roche line of cases. The presented evidence of a terrible lack of unanimity among jurors does childhood, including neglect, physical not bear on the defendant's conduct or any abuse, abuse, sexual parents, alcoholic re facts that tend to lessen his It culpability. home, moval from the and time in institu does, however, demonstrate a level of un tions. presented Wilkes also evidence that certainty among the citizens who consid he is addicted to several drugs and has appropriate ered evidence as to the suffered from longstanding depression It penalty. properly is therefore more age since the Finally, eleven. considered relevant consideration than a argues that he safely can be incarcerated circumstance, mitigating but it is a factor and that his life has and will continue to the trial permitted court should be to con show "redeeming qualities," help such as in determining appropriate sider sen ing others. We believe that these factors tence. We therefore reach the same result have some mitigating weight, as does the as the Roche and Burris dissenters and fact jury agree could not on a "appropriate" hold that it is for the trial sentencing recommendation. inAs all court to jury- consider the fact that the however, sentencing, whose recommendation would otherwise be give we considerable deference ruling of the trial court. binding-could not agree. We do not find say the trial We cannot that the court's adherence to death then-existing sentences error, precedent to be much this case are inappropriate. less reversible The nature of error. The trial expressly court stated its the offense a triple murder of a mother independent conclusion that murders, and her two children. The espe *18 cumstances outweighed mitigating cially of Sydne, Donna and were commit cir rcumstances and thus the death pen ted in a particularly gruesome manner. ci alty appropriate. upheld haveWe death sentences similar E.g., State, cases. Ward v. 903 N.E.2d 7(B)
F. Appellate Rule Claim (Ind.2009) 946, 962-63 (upholding death sentence for savage "brutal and slaying" Article Section of the Indiana rape gives fifteen-year-old girl); Constitution power this Court in all Baer v. appeals criminal "to review (Ind.2007) and revise the (up imposed." sentence Indiana Appellate holding death sentence for "brutal and sav 7(B) provides Rule may this Court age slaying of a four-year old and her mother"). "if, revise a sentence after due consider young decision, ation of the trial court's the Court Conclusion finds that the sentence is inappropriate light of the nature of the offense and the Wilkes's convictions and death sentence character of requests the offender." Wilkes are affirmed. C.J.,
SHEPARD, and SULLIVAN
RUCKER, JJ, concur.
DICKSON, J., with concurs result
separate opinion. Justice,
DICKSON, in result. concurring except respect
I concur from Roche departure
Court's (Ind.1992), progeny. I and its
N.E.2d 896 jury's inability that a to believe
continue recommen- sentencing a unanimous
reach the defen- logically unrelated to
dation personal cireumstances conduct
dant's is irrelevant a consideration
and thus for a
determining appropriate sentence
defendant. HARDEBECK, Appellant-
Anna Mae
Respondent, HARDEBECK,
James A.
Appellee-Petitioner.
No. 48A04-0904-CV-212. Appeals of Indiana.
Court
Nov. 2009.