Attorneys for Appellee
Attorney General of Indiana
Timothy W. Beam
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA Appellee (Plaintiff below ).
) Supreme Court No.
February 24, 2003
The facts, presented in the form most favorable to the trial courts judgment,
indicate that at 10:00 p.m. on September 26, 1997, 18-year old Eckart fi
her shift at Wal-Mart. Her boyfriend, Anthony Evans, and his mother met
her after her shift and the three shopped at the Wal-Mart for about
an hour. Afterward, Eckart decided to go home because it was late.
Evans decided to go home as well.
Eckart and Evans left for their respective homes in separate cars. Both
headed north on U.S. 31 but Eckart turned right onto Earlywood Drive and
nued north on U.S. 31. Evans testified that he did not
see her alive again.
Between midnight and 12:30 a.m., Eckarts car was found at the intersection of
aham and Earlywood Drive by two passers-by. The car was slightly off
the road, its lights were on, the keys were in the ignition, and
Eckarts purse was on the car seat. The police were called to
Franklin Police Officer Michael Moore drove to the scene and saw Eckarts car
on the side of the road. The cars rear bumper had been
damaged but the car was otherwise still in working order. Eckarts mother,
Connie Sutton, te
stified that she had not noticed the mark on the car
before. Police searched the area but did not find Eckart.
Defendants brother, Scott Overstreet, testified that Defendant telephoned him som
etime after midnight on
September 27, 1997, and asked him to come to the Franklin Days Inn
because his car had broken down and he needed a ride home.
When Scott arrived at the hotel, Defendant approached him. Defendant said that
he and his girlfriend had been drinking and asked Scott to drive him
and his girlfriend to Edinburgh in Defendants van. In the periphery of
his vision, Scott saw something white in the back of the van.
Scott further testified that as he was driving southbound on Highway 31 toward
nburgh, Indiana, Defendant asked him to drive to Camp Atterbury instead because he
had taken a girl and was going to take her into the woods
and get her lost. (R. at 3223, 3226, 3229.) Scott followed
Defendants directions, finally stopping at a gravel turnaround in Camp Atterbury. Defendant
asked Scott to come pick him up in two hours but Scott refused.
Defendant then told Scott to have Defendants wife, Melissa Overstreet, pick him
up at the Atterbury shooting range in two hours. Scott placed his
hands over his face while Defendant got out of the van.
After hearing the sliding door to the van close, Scott drove to Defendants
home and gave Melissa Defendants instructions. Melissa drove Scott back to his
car at the Days Inn. She then returned home to ask Scotts
wife to baby-sit while she went to pick up Defendant.
Melissa testified that before driving to the shooting range, she searched the van
and found several empty shell casings and a container of mace that she
had not seen before that night. Melissa then drove to the shooting
range where she found Defe
ndant sweating with his flannel shirt unbuttoned. He
was also carrying a blanket and had a gun strap over his shoulder.
When Defendant and Melissa arrived home, Defendant immediately went into the bathroom.
He came out, undressed, and went to bed. Later that night, Scott
ndants home two or three times because he wanted his wife to
come home. After one of these calls, Defendant got on the phone.
Scott told Defendant that he had said some pretty fucked up stuff.
(R. at 3234.) Defendant explained that he could not get caught
because he had a child and a wife and that his girlfriend had
a boyfriend and lived with her father. Defendant then hung up the
phone, got dressed, and walked out of the house. An hour or
so later, Melissa heard the van return. Defendant came back in the
house, and went back to bed.
The following Monday, September 29, 1997, Defendant told Melissa that he wanted to
clean the van. After going to Defendants fathers house to borrow money,
Defendant, Melissa, and their children drove to Mikes Express Car Wash. Defe
spent about an hour cleaning and vacuuming the inside rear of the van.
When Melissa started cleaning the front of the van, Defendant told her
not to worry about it.
Melissa testified that in the days after Eckarts disappearance, Defendant watched the news
with increased frequency. He would sit in front of the television, flipping
from channel to channel, watching news coverage. When a station was airing
a story on Eckart, he would watch it and after the story was
finished he would resume switching cha
nnels. Melissa stated that Defendant got to
the point where he knew which channel was going to have the coverage
over Kelly Eckart first. (R. at 3886.) Defendant also wanted to
read news articles concerning Eckart. When he finished reading a story on
Eckart, he would usually stop reading the newspaper.
On September 30, 1997, Shelia Woodcock and Pat Burks were looking for some
ppies they had seen on the side of the road in Camp Atterbury.
Instead, Shelia Woodcock found Eckarts body lying in a ravine. She
reported the discovery to the police.
Indiana State Police Trooper J.D. Maxwell went to the scene. He found
Eckart with her bib overalls down around her ankles. She was wearing
her bra and panties and her white shirt was tucked in the back
of her bra. She also had a ligature around her neck.
On October 18, 1997, Franklin Chief of Police found Eckarts shoes and socks
stuffed into a pit toilet at Camp Atterbury.
On November 6, 1997, police received a tip that Scott had information about
Eckarts murder. Scott voluntarily recounted what happened that night and directed the
officers to the gravel turnaround where he had left Defendant on the morning
of September 27, 1997. In a search of the area, the officers
found Eckarts glasses, hair scrunchie, pager, necklace, locket, earring posts, and buttons from
On November 7-8, 1997, the Franklin Police Department executed search warrants on Defendants
home. The police seized a hand-drawn map of Camp Atterbury and a
blanket from the living room. They also seized a carpet standard from
Defendants van for analysis. The fibers were found to match fibers found
on Eckarts shirt and overalls. The officers also measured the height of
the vans front bumper and found that, at 15-22 inches off of the
ground, it was at the same height as the damaged area of Eckarts
Doctor Michael Allen Clark later conducted an autopsy and discovered that Eckarts shoestring
and a strap to her bib overalls had been wrapped around her throat.
He also found a circular wound in the forehead consistent with a
gunshot wound. In addition, he disco
vered numerous post-mortem abrasions that were caused
by dragging her body on the ground. He concluded that the cause
of Eckarts death was ligature strangulation. The time of death was estimated
to be between 11:00 p.m. on September 26, 1997, and 6:38 a.m. on
September 27, 1997.
Dr. Clark also conducted a sexual assault examination consisting of taking swabs from
Eckarts mouth, vagina, and anus. He made slides of each and examined
them for the pre
sence of sperm. He identified the presence of semen
in the vaginal test but not in any of the others.
After preparing these slides, Dr. Clark gave them to the evidence technician, Trooper
Maxwell. Trooper Maxwell placed the swabs on individual env
elopes to dry.
During the drying process, a lab attendant moved them across the room.
Trooper Maxell then placed the swabs in different envelopes without knowing whether he
placed the swabs in the corresponding anal, mouth, and vaginal envelopes.
Paul Misner, an Indiana State Police serologist, analyzed the swabs and slides from
Eckarts sexual assault kit. Based on his evaluation of the slide and
his knowledge, exper
ience, and training, he determined that Maxwell had placed the vaginal
swab in the anal swab envelope and the anal swab in the vaginal
swab envelope. Misner then looked at the slides that were prepared from
the swabs and saw that the vaginal smear slide was typical of a
vaginal smear slide and the anal slide was typical of an anal slide.
(R. at 4353.) He found no sperm on the anal slide.
Jennie Wood, a DNA analyst, examined a sample of Defendants blood and made
a DNA profile using both the polymerase chain reaction (PCR) copying process and
short tandem repeat (STR) typing system. Using the PCR process, Wood determined
that the sperm found in Eckarts underwear was consistent with Defendants profile and
ccurs in approximately 1 in 9 thousand. Using the STR typing system,
Wood found that the male fraction found in Eckarts underwear was consistent with
Defendants DNA profile and occurs in 1 in 12 billion.
Dr. Michael Conneally, a Professor of Medical Genetics and Ne
urology at Indiana University,
also compared Defendants and Eckarts DNA profiles with the vaginal slide. He
testified that the male fraction in the slide was a mixture to which
Defendant and Eckart could be contributors. He did, however, compute a statistical
significance in that the male fraction occurs in 1 in 27 million.
Dr. Conneally then compared the DNA profiles with Eckarts underwear and found that
the male fraction occurred in 1 in 9 thousand using PCR testing and
1 in 12 billion u
sing STR typing. Dr. Conneally then compared the
DNA profiles with the swabs and found that the male fraction occurred in
1 in 6 using PCR testing and 1 in 304 million using STR
typing. After Dr. Conneally removed the common gene found in Eckarts underwear
with both STR and PCR testing, he multiplied the remaining genes to get
an overall chance of this profile that was consistent with Defendants profile and
found that it occurs in 1 in 4 trillion.
Due to pre-trial publicity, the jury was drawn from a different county.
The jury found Defendant guilty of murder,
class B felony
and class D felony confinement.
Pursuant to the Indiana death penalty
statute, the jury then reconvened to consider the States request that Defendant be
sentenced to death because of the following aggravating circumstances:
(1) Defendant committed the murder by intentionally killing Kelly Eckart while commi
tting or attempting
to commit rape;
(2) Kelly Eckart was the victim of a sex crime under Ind. Code § 35-42-4 (rape) for which Defendant was convicted; See footnote and
(3) Kelly Eckart was the victim of criminal confinement under Ind. Code § 35-42-3-3 for which Defendant was convicted. See footnote
The jury recommended that Defendant receive a death sentence. The trial court su bsequently determined that the State established the charged aggravators beyond a reasonable doubt. After giving weight only to the first aggravating circumstance listed above, i.e., Defendants intentional killing while committing rape, the court found that this aggravator outweighed Defendants mitigating evidence, and determined death to be the appropriate sentence. The trial court then entered judgment on the murder, rape, and Class B confinement counts and sentenced Defendant to death. It imposed consecutive sentences of 20 years each for the rape and criminal confinement convictions.
Additional facts will be discussed as necessary.
The results of DNA testing, like any other evidence aided by expert testimony,
must be offered in conformity with the Indiana Rules of Evidence.
v. State, 679 N.E.2d 875, 881 (Ind. 1997); Harrison v. State, 644 N.E.2d
1243, 1251 (Ind. 1995). Accordingly, DNA testimony becomes admissible as evidence when
the trial court is satisfied that: (1) the scientific principles upon which
the expert testimony rests are reliable; (2) the witness is qualified; and (3)
the testimonys probative value is not substantially outweighed by the dangers of unfair
prejudice. Ingram v. State, 699 N.E.2d 261, 262 (Ind. 1998) (quoting Harrison,
644 N.E.2d at 1252). Indiana does not recognize a test or specific
set of elements to satisfy reliability of a process under the rules of
evidence. See McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).
We review the trial courts decision to admit the STR test results for
an abuse of discretion. Ingram, 699 N.E.2d at 262.
Defendant makes no substantial direct attack on the reliability of the scientific princ
supporting STR testing per se.
He does not argue that either Dr.
Conneally or Wood, the States STR experts, was not qualified to testify as
to the test results. Nor does he argue that the evidence was
unfairly prejudicial. What he does argue, as best we understand the claim,
is this: the only basis that the State arguably gave the court
to pass on the scientific reliability of STR testing was the testimony of
Wood and Dr. Conneally; Wood was not qualified to testify as to the
reliability of the STR process and Dr. Conneally did not; therefore, the court
had no basis to find the evidence scientifically reliable.
While the State might have done more to establish the scientific reliability of STR testing (Wood does not seem to have been entirely up-to-speed on the scientific principles upon which STR testing is based), we do not think Defendant has established reversible error. First, Defendant at trial made no and on appeal makes only a modest See footnote argument that STR testing is u nreliable. While the proponent of the evidence bears this burden at trial, we are now reviewing the trial courts decision to admit for abuse of discretion. What we do have here is the testimony of two DNA experts, the qualifications of whom Defendant does not challenge, and our own review of STR technology in a recent case. Wood testified that she held an undergraduate degree in genetics and participated in a year-long internship-training program dealing with DNA analysis with the Indiana State Police. She further testified that she worked for four and a half years as a DNA analyst for the Indiana State Police before she became a serology analyst for the Greenwood Police Department. She then testified that based on her education, experience, and training, as well as her review of relevant scientific literature, STR testing is based on reliable scientific principles.
And although Dr. Conneally described STR testing as relatively new, he did not question its reliability. He testified that DNA analysts often rely on STR analysis and that it is a generally accepted technique in the scientific community.
Troxell v. State, 778 N.E.2d 811 (Ind. 2002), this court found that
STR testing is generally regarded as reliable as both the scientific literature
and a multitude of state courts have similarly concluded. Id. at 815-16
Under this combination of circumstances, we conclude that the trial court was within
its discretion to admit the STR evidence.
We disagree with Defendants proposition that Misner was required to have had the
expertise of a cytologist in order to have the specialized knowledge required to
bserve that the swabs were incorrectly labeled. The record shows that Misner
had substantial experience dealing with matters relevant to his testimony in this case.
He earned a B.S. in biology and was a serologist for six
years before becoming serologist supervisor. Subsequently, he became a DNA supervisor and
later was named the supervisor of the DNA database at the Indiana State
Police Laboratory. As part of his training, Misner was taught to look
at vaginal swabs and to differentiate between sperm and other types of cells.
He also learned to identify and differentiate vaginal cells from other cell
types. At trial, Misner testified that he had tested several thousand vaginal
smears and every one had vaginal epithelial cells. In light of Misners
experience, training, and education, it was not an abuse of discretion for the
trial court to allow his testimony on this matter.
The propriety of the trial courts admission of Misners testimony is further substant
by Misners other observations supporting his opinion. Misner testified that the swab
labeled vaginal contained fecal-type debris and that the swab labeled anal looked like
vaginal swabs. (R. at 4352-54.) Misner tested this observation by comparing
the mislabeled swabs with properly labeled anal and vaginal smear slides. Through
this comparison he was able to confirm that the swabs had been incorrectly
identified. We find Misners explanation for the discrepancy in labeling highly plausible.
See Jervis, 679 N.E.2d at 881.
Defendants contention that there was not sufficient evidence to establish that he committed
rape rests on his claim that the State relied solely upon the evidence
of sperm b
eing found on specimens taken during the autopsy of the victim
to prove Defendant raped Eckart. (Br. of Appellant at 36.) Defendant
believes this evidence to be insufficiently reliable to support a rape conviction and,
by extension, to show that he intentionally committed murder during the commission of
a rape. (Br. of Appellant at 38.)
supra, Defendant was convicted of rape, a Class B felony.
Indiana Code § 35-42-4-1 (1993) defines the crime as follows:
A person who knowingly or intentionally has sexual intercourse with a me
the opposite sex when:
the other person is co
mpelled by force or imminent threat of force;
the other person is unaware that the sexual inte
rcourse is occurring; or
the other person is so mentally disabled or deficient that consent to sexual
intercourse cannot be given;
commits rape, a Class B fe
In this case, three witnesses testified that Defendants semen was found in Eckarts
Dr. Clark, a forensic pathologist, performed an autopsy on Eckart. As part
of the a
utopsy he examined the genitals of the decedent and took oral,
vaginal, and anal swabs for future analysis. He made more than one
set of slides from the swabsgiving unlabelled slides he did not intend to
keep for himself to evidence technician J.D. Maxwell during the autopsy. Dr.
Clark marked the slides he kept for himself with the autopsy number, set
them on a cardboard tray meant to hold slides, and placed the tray
on a table where he would know where it was after the autopsy.
One of the technicians then carried the slides to the cytology lab
in the hospital where they were stained and cover slips were affixed.
Dr. Clarks secretary retrieved the prepared slides for him to examine. Dr.
Clark testified that, upon examination, he saw sperm in the vaginal smear indicating
that sperm was in the vagina. (R. at 3641.) He found
no evidence, however, of sperm in the mouth or anus. From this
evidence, the jury could properly infer that Defendant had intercourse with Eckart.
Misner also testified to the presence of Defendants semen in Eckarts vagina.
ndants contention that Misner lacked the specialized knowledge or expertise to give this
opinion is his sole objection to this testimony. As explained in section
II, Misner was qualified to present this testimony.
We also observe that Eckarts car was found abandoned on the side of
the road and her body was discovered with a ligature around her neck.
An autopsy revealed the lig
ature to be the result of Eckarts having
been strangled to death by a shoelace and the strap from her bib
overalls. A circular wound, consistent with a gunshot wound, was also noticed
In light of these facts, the jury could properly infer that the State
had proved the el
ements of the crime of rape beyond a reasonable doubt,
i.e., that Defendant had vaginal intercourse with Eckart and that Defendant had compelled
Eckart to comply by force or imminent threat of force or that she
was unaware that the sexual intercourse was occurring.
During trial, however, Melissa testified that on the Monday following the offense, she,
Defendant, and their four children took Defendants van to the car wash but
did not wash its exterior. She further testified that Defendant spent close
to an hour cleaning the interior of the van from behind the driver
and passenger seats to the bed area in the rear of the van.
She also testified that Defendant showed no interest in cleaning the front
passenger seats or the floorboard.
In a hearing outside the presence of the jury, it was revealed that Melissa, accompanied by her attorney, had given the prosecution this version of Mondays events prior to trial. The prosecutor told the court that she had said she had not described the Monday happenings in her other statements because Defendant had physically abused her in the past and she feared what he might do to her in the future should he be acquitted knowing she had incriminated him. The State had not notified the defense about this development.
The trial court found the withholding of this information to have been improper.
While denying the Defendants motion for a mistrial, the trial court prohibited
the State from offering any evidence to rehabilitate Melissa following defense impeachment of
stent statements to police. This, of course, had the effect of
preventing the State from asking about domestic violence as a reason for the
Defendants first argument for mistrial is that the States failure to share Melissas
stimony regarding Mondays events constituted a violation of Brady v. Maryland, 373 U.S.
83 (1963), and its progeny. Defendant particularly focuses on Bradys language that
the suppression by the prosecution of evidence favorable to an accused is material
either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution. 373 U.S. at 87. In Brady, the
prosecution withheld extra-judicial statements, which, had they been released, would have favored the
defendant. It was not until after trial, conviction, and sentencing that the
withheld statement was revealed. In contrast, the withheld evidence here was unfavorable
to Defendant and was revealed during, not after, trial. Brady applies to
the discovery of favorable evidence after trial and does not apply here.
See Lowrimore v. State, 728 N.E.2d 860, 867 (Ind. 2000).
Defendants second argument for a mistrial is that the States late disclosure of Melissas statement constituted prosecutorial misconduct. Defendant maintains that his unawareness of Melissas testimony fatally damaged Defendants due process right to an adequate cross-examination by limiting his tactical options. He says that he found himself on the path and was unable to have prepared or proceeded differently without opening the door to his prior bad acts. (Reply Br. of Appellant at 18.)
A claim of prosecutorial misconduct requires a determination that there was misconduct by the prosecutor and that it had a probable persuasive effect on the jurys decision. Lowrimore, 728 N.E.2d at 867; Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998); see also Ind. Professional Conduct Rule 3.8(d) (The prosecutor in a criminal case shall: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal). Absent clear error and resulting prejudice, the trial courts determination of violations and sanctions will be affirmed. Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). A mistrial is an extreme remedy granted only when no other method can rectify the situation. Lowrimore, 728 N.E.2d at 867; see also Williams, 714 N.E.2d at 649.
The parties dispute whether the trial court found the States belated disclosure of
Melissas impeachment testimony to be misconduct. The trial court made clear that
it viewed the failure to disclose as a serious implica
tion of due process
Although the State should have disclosed the evidence in question, the States failure to disclose was adequately remedied by the trial court. In making this determination, we note that the trial court spent considerable time and effort in addressing Defendants legitimate concerns. The trial courts remedy placed the parties in the position they would have been in had the disclosure been properly made.
It is difficult to see how the trial courts remedy had a probable persuasive effect on the jurys decision. Defendants claim that his ability to cross-examine Melissa was oppressively curtailed is without merit. Defendant was left free to ask the witness a wide range of questions, such as whether she had been truthful in her statements or whether she had violated her immunity agreement by not volunteering more information. Defendant was merely prohibited from asking Melissa why she had not been consistent, which is a question that Defendant specifically told the trial court he would not have asked had the State properly disclosed the inconsistent testimony beforehand. Furthermore, were we to find in Defendants favor on this issue, the State on retrial would no longer be bound by the order not to reveal Defendants history of domestic violence and the attendant fear of Melissa. Accordingly, we find that the prosecutorial misconduct here did not require declaring a mistrial in this case.
Indiana law protects the privacy of marital communications. This court recognizes the
[s]trong public policy grounds [that] favor promotion and preservation of marital conf
if truthful and invaluable testimony in certain cases is excluded. Russell v.
State, 743 N.E.2d 269, 272 (Ind. 2001) (citations omitted). However, the marital
privilege is not absolute. [W]here a spouses testimony concerns disclosures by the
other spouse not made in reliance upon the marital relationship but because the
disclosing spouse was in need of his mates assistance and attempted to coerce
by force and fear, the testimony is not within the spousal privilege and
is admissible. Id.; see also Carlyle v. State, 428 N.E.2d 10, 12
(Ind. 1981). Also not privileged are [c]ommunications between spouses intended to be
transmitted to a third person. Russell, 743 N.E.2d at 272 (citing Perkins
v. State, 483 N.E.2d 1379, 1383 (Ind. 1985)).
Defendant specifically contests the admission of two separate pieces of testimony. See footnote First, Melissa testified that when she picked up Defendant at Camp Atterbury, he told her to say that he had been drinking with friends if someone asked why he had been there. Second, Melissa told the jury that, after watching a television news report regarding Eckart in their bedroom, she asked Defendant if he was somehow involved. He became angry at the que stion and said, I cant believe that you would think anything like that. (R. at 3878.)
Defendant mistakenly relies on Hazelwood v. State, 609 N.E.2d 10 (Ind. Ct. App. 1993), trans. denied, to dispute the propriety of admitting both statements. In Hazelwood, the defendants ex-wife testified that, when she was married to the defendant, he faked a burglary of their home in an attempt to make money and, in furtherance of his plan, told her to call the police to report a burglary. Id. at 14. Defendant understands Hazelwood to stand for the proposition that communications intended to be conveyed to third parties may still have a privileged character and that an intent to deceive the police should be considered privileged. (Br. of Appellant at 40 (citing Hazelwood, 609 N.E.2d at 15 (Calling the police to report a burglary seems to be a message intended for the police, but doing so because Hazelwood asked her reveals the underlying reason she acted, which in turn, suggests a confidential communication intended to be transmitted solely between husband and wife.)).) Dicta notwithstanding, the Court of Appeals did not decide whether the testimony fell within marital privilege. Rather, it found that admitting the testimony was not error because any alleged error was simply cumulative of evidence that was properly admitted. Hazelwood, 609 N.E.2d at 15.
In this case, Defendants statement to Melissa instructing her to say that he
had been drinking with friends if someone asked why he had been at
Camp Atterbury was not a discl
osure made within the confines of the marital
relationship. It is a reasonable inference from this statement that Defendant intended
Melissa to transmit the comment to a third person. See Russell, 743
N.E.2d at 272; Perkins v. State, 483 N.E.2d 1379, 1383 (Ind. 1985).
We do not find error in permitting this testimony.
The State concedes that Melissas testimony regarding Defendants denial that he had anything to do with Eckarts disappearance falls within the marital privilege, see Br. of Appellee at 31 (Melissas testimony appears to fall within the marital privilege.), but contends that the error was harmless. Evidence admitted in error may not require reversal if the error is found to be harmless. Russell, 743 N.E.2d at 272; Ford v. State, 704 N.E.2d 457, 460 (Ind. 1998), rehg denied. Evidence meets this standard if it does not prejudice the defendants substantial rights. Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1141-42 (Ind. 1995).
We find the admission of this testimony harmless given that Defendants statement was not incriminating and that there was very substantial evidence of guilt properly admitted. While we need not recapitulate it in its entirety, we do note the following. Defendant told his brother that he took a girl just before being dropped off at Camp Atterbury on the night the crime was committed. (R. at 3226, 3230.) Following Eckarts disappearance, Defendant would sit in front of the television and flip from channel to channel watching news coverage. He stopped watching the news after all of the Eckart stories were over. Additionally, Defendants sperm was found in the vagina of Eckart. DNA testing done on his semen samples showed an overwhelming likelihood that it was Defendants semen and no one elses.
Defendant contends that the seizing and examining of the above-mentioned biological ev
his right to be free from unreasonable search and seizure under the Fourth
Amendment of the United States Constitution and Article I, Section 11, of the
Indiana Constitution. Defendant bases this argument on his contention that the warrant
affidavit used to acquire a search warrant did not contain sufficient facts to
establish the requisite probable cause necessary to justify the intrusion into [his] body
and seizure of his blood, saliva, and hair. (Br. of Appellant at
The federal and state constitutions guarantee that a court will not issue a search warrant without probable cause. U.S. Const. amend IV; Ind. Const. art. I, §11. Probable cause to search premises is established when a sufficient basis of fact exists to permit a reasonably prudent person to believe that a search of those premises will uncover evidence of a crime. The decision to issue the warrant should be based on the facts stated in the affidavit and the rational and reasonable inferences drawn therefrom. Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994) (citations omitted). The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-239 (1983); Figert v. State, 686 N.E.2d 827, 830 (Ind. 1997). [S]ubstantial basis requires the reviewing court, with significant deference to the magistrate's determination, to focus on whether reasonable inferences drawn from the totality of the evidence support the determination of probable cause. Figert, 686 N.E.2d at 827 (alteration in original) (citing Houser v. State, 678 N.E.2d 95, 99 (Ind. 1997)).
In this case, the information included in the warrant affidavit was more than adequate to establish the requisite probable cause necessary to justify the contested search and seizure. The affidavit established that Eckart had been missing since September 27, 1997, after her car had been found abandoned on the side of a road. Three days later, on September 30, 1997, her remains were discovered in a rural area of Brown County, Indiana, instigating a homicide investigation. Semen was present in her vaginal cavity, samples of which were taken for evidence. An autopsy revealed that she had been strangled by ligature and her head bore a firearm type wound. It appeared that a stun device or blank pistol may have been used to shoot her.
On November 6, 1997, Defendants brother, Scott, told police that shortly after mi
on the night that Eckart disappeared, Defendant telephoned him and asked to be
picked up from the Days Inn hotel in Franklin, Indiana. Defendant claimed
to have had too much to drink. When Scott arrived at the
hotel, Defendant met him in the parking lot and requested that Scott take
him and a girl to Edinburgh, Indiana. Scott then got into the
drivers seat of Defendants van where he saw a person, whom he assumed
to be the girl, laying in back. As Scott was driving, Defendant,
who always carries a gun, said that he intended to take the girl
into the woods and get her lost. He then directed Scott to
a specific location in Atterbury. At Atterbury, Defendant took something white out
of the back of the van. Defendant also instructed Scott to tell
Defendants wife, Melissa, to pick Defendant up at the firing range in two
hours. Melissa confirmed that she picked Defendant up at the rifle range
after having received a phone call from Scott after midnight on September 27,
The facts as presented in the warrant affidavit are sufficient to establish probable cause to search and seize the contested items. The trial court did not commit error in denying Defendants motion to suppress the evidence.
In the present case, Defendant argues for an overly restrictive specificity requirement.
The search warrant he contests ordered that two quilted blankets be seized from
ndants home at 190 Jordan Street. (R. at 1712.) By limiting
the search to two quilted blankets, the warrant was sufficiently specific as to
remove unbridled discretion from law enforcement. See Phillips, 514 N.E.2d at 1075
(there is no requirement that there be an exact description.); cf. Hester v.
State, 551 N.E.2d 1187, 1190 (Ind. Ct. App. 1990) (finding that a search
warrant lacks sufficient specificity when it orders a search for [a]ny and all
property which may have been the subject of Theft or Burglary occurring in
and from five different residences on five different days).
In the alternative, Defendant argues that the Franklin Police Department exceeded the scope
of the warrant by seizing three quilted blankets. The State responds that
nsented to the seizure of the third blanket. Defendant maintains that
Melissas consent, granted on November 6, 1997, did not extend to November 8,
The consent of one who possesses common authority over premises or effects is
valid as against the absent, non-consenting person who shares the authority.
v. State, 717 N.E.2d 138, 144 (Ind. 1999). Melissa consented to the
seizure of the third blanket. On November 6, 1997, she signed a
consent form to have her home searched by Franklin police. The search
was effectuated. On November 8, 1997, Melissa went to the Franklin Police
Department and told a police officer that during their previous search they had
failed to pick up the pepper spray and the blanket Defendant had the
morning of the crime. Melissa did not want to sign a permission
form but told the police to come and get them. (R. at
1759, 1779.) When the police were at the house, she identified the
blanket for them. This blanket, along with the two authorized by the
warrant, were accordingly seized. Melissa informed the police officers that she wanted
to consult with an attorney after, or as, she gave them the blanket
that she had showed them.
It is certainly true that there are some cases in which temporal limits
on a defendant's consent must be honored because a late search can affect
Elsten v. State, 698 N.E.2d 292, 295 (Ind. 1998) (citations
omitted). We have also found unreasonable searches where the search warrant was
stale. See Ashley v. State, 251 Ind. 359, 367-68, 241 N.E.2d 264,
269 (1968) (search warrant for small amounts of marihuana becomes stale after eight
days because of its transitory nature as a commodity); cf. Williams v. State,
426 N.E.2d 662, 667 (Ind. 1981) (burned belongings of a victim are not
likely to be moved; therefore, an affidavit supporting the warrant was not stale
after sixty days). In this case, however, the rights of Defendant did
not change between November 6 and November 8. In both cases, the
consent was given when Defendant was a suspect. Also, the items sought
here were not commodities for sale but items meant to be kept indefinitely.
Finally, Melissa renewed her consent on November 8 and did not revoke
The search warrant issued on November 8, 1997, ordered that two quilted blankets
be seized from Defendants home at 190 Jordan Street. (R. at 1712.)
This description pr
ovided enough detail to identify the sought after blankets properly.
Furthermore, in seizing the third quilted blanket, the police did not exceed
the warrant as they were authorized to do so by Melissa. The
trial court did not err in refusing Defendants motion to suppress the blanket
In addition to the validity of Melissas consent, we find that the hand
drawn map was left in plain view. We have held that police
do not need a warrant to seize incriminating ev
idence under the plain view
doctrine if: (1) police have a legal right to be at the place
from which the evidence can be plainly viewed; (2) the incriminating character
of the evidence is immediately apparent; and (3) police have a lawful right
of access to the object itself. See Houser v. State, 678 N.E.2d
95, 101 (Ind. 1997). All these conditions were met in this case.
The police, in the house under a valid warrant and with consent,
found a map whose incriminating character was immediately evident in light of the
evidence contained in the warrant affidavit, and the police had lawful right of
access to the object.
We find that the trial court did not commit error in denying Defendants
motion to suppress the hand drawn map as evidence.
The trial court was on solid ground at the time of its ruling.
Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (rejecting argument that the
Sixth Amendment requires specific findings by the jury that sufficient aggravating circumstances exist
to qualify a defendant for capital punishment); Wrinkles v. State, 690 N.E.2d 1156,
1168 (Ind. 1997), cert. denied, 525 U.S. 861 (1998) (This Court has rejected
the requirement of written findings for juries in capital cases.).
its ruling, there has been a great deal of ferment in this regard.
First, our death penalty statute was amended to require such special verdict
forms. Ind. Code § 35-50-2-9(d), amended by P.L. 117-2002, § 2.
Second, the United States Supreme Court held in Ring v. Arizona that the
Arizona capital sentencing scheme violated the Sixth Amendment to the extent that it
allowed a sentencing judge, sitting without a jury, to find an aggravating circumstance
necessary for imposition of the death penalty. 536 U.S. 584, 122 S.Ct.
2428, 2443 (2002). This was because such a judicial finding violates a
defendants right to "a jury determination that [he] is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt."
Id. at 2439 (alteration in original) (citing Apprendi v. New Jersey, 530 U.S.
466, 477 (2000)).
Picking up on the Ring-Apprendi line of reasoning, Defendant here maintains that assuring
a unanimous jury finding on the aggravating circumstance requires the court to use
specific verdict forms.
We hold that Ring and Apprendi do not require specific verdict forms in
this case. The jury here was instructed that it could only recommend
a sentence of death if it unanimously found, beyond a reasonable doubt, each
and every material allegation of at least one aggravating circumstance. (R. 1233,
1235.) With this explicit predicate to the recommendation ultimately made by the
jury, we find compliance with Rings and Apprendis mandate.
Accordingly, we find that the trial court did not violate the Sixth Amendment
by refusing to give the jury specific verdict forms.
When aggravating circumstances share an element, we look to the policy or policies
supporting each aggravator. See Stevens v. State, 691 N.E.2d 412, 434 (Ind.
1997), cert. denied, 525 U.S. 1021 (1998). When the policy behind each
aggravator is different, they are not impermissibly duplicative. See id. (upholding use
of two aggravators with overlapping elements when the policy behind one aggravator goes
to the defendants character and the other goes to the status of the
victim). Furthermore, the fact that our death penalty statute involves the weighing,
rather than the counting, of aggravating factors mitigates against the concern that overlapping
elements in distinct aggravators will get too much consideration. See id.
In the present matter, the felony-murder aggravator addresses Defendants character. See id.
(finding that the felony-murder aggravator focuses on the defendant's character, finding highly culpable
the fact that the mind of the accused has in the same criminal
episode formulated and held the intent to kill and the intent to commit
one of the enumerated felonies). The victim of a sex crime aggravator
spotlights the policy of adjusting punishment in accord with the nature and degree
of suffering experienced by the victim. The different policy considerations make the
aggravators distinct. The trial court informed the jury that the penalty phase
involved weighing, not counting, aggravating factors. And in determining the proper sentence
to apply, the judge applied no weight to the victim-of-rape aggravator. In
so doing, the judge accommodated Defendants claim.
The trial court did not commit error by allowing the jury to
consider both aggravating circumstances in this case.
Franklin v. Lynaugh, 487 U.S. 164 (1988), seems to us to control here.
In that case, the Court rejected a claim in a capital case
that the defendant was entitled to a residual doubt instruction. While the
Court stopped short of saying that it would never find a capital defendant
entitled to make a residual doubt claim to a jury during a penalty
phase, it did say, in language highly relevant to this case:
Most importantly, even if we were inclined to discern such a right in
the Eighth Amendment, we would not find any violation of it in this
case. For even if such a right existed, nothing done by the trial
court impaired petitioner's exercise of this "right." The trial court placed no limitation
whatsoever on petitioner's opportunity to press the "residual doubts" question with the sentencing
jury. Moreover, in our view, the trial court's rejection of petitioner's proffered jury
instructions was without impact on the jury's consideration of the "residual doubts" issue.
We reject petitioner's complaint that the possibility of residual doubt was not "self-evidently
relevant to either of the special issue questions," and that "[u]nless told that
residual doubt . . . could be considered in relation to [the special
issue] question[s], the jurors could logically have concluded that such doubt was irrelevant."
Among other problems with this argument is the simple fact that petitioner's
requested instructions on mitigating evidence themselves offered no specific direction to the jury
concerning the potential consideration of "residual doubt." The proposed instructions did not
suggest that lingering doubts about the petitioner's guilt were to be a subject
of deliberations in the sentencing phase. Consequently, it is difficult to see
how the rejection of these instructions denied petitioner the benefit of any "residual
doubts" about his guilt.
Id. at 174-75 (alterations and emphasis in original) (citations omitted). The exact
same thing could be said about this case. There was nothing the
trial court did here to impair Defendants ability to argue residual doubt to
the jury; and nothing in Defendants penalty phase argument that directed it to
consider residual doubt.
We note that in several cases, we have held that a defendant in
a capital case was not the victim of ineffective assistance of counsel where
his lawyer did not argue residual doubt to the jury. This was
because counsel ought have no obligation to argue to the jury that its
just-returned unanimous determination of guilt ought to be revisited. Miller v. State,
702 N.E.2d 1053, 1069 (Ind. 1998), cert. denied, 528 U.S. 1083 (2000).
For similar reasons, we think a capital defendant has no constitutional entitlement to
a residual doubt instruction.
However, before you may make a decision that either death or life without
parole is an appropriate sentence, all of you must reach a unanimous decision
that the State has proven beyond a reasonable doubt the existence of at
least one aggravating factor. You must also reach a unanimous decision that
such aggravating factor outweighs any mitigating factors that any one or more of
you may have found to exist.
(R. at 1217.)
The purpose of an instruction is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.
Instruction of the jury is generally within the discretion of the trial
court and is reviewed only for an abuse of that discretion. Lowery
v. State, 547 N.E.2d 1046, 1055 (Ind. 1989), cert. denied, 498 U.S. 881
(1990). A trial court erroneously refuses to give a tendered instruction, or
part of a tendered instruction, if: (1) the instruction correctly sets out
the law; (2) evidence supports the giving of the instruction; and (3) the
substance of the tendered instruction is not covered by the other instructions given.
Dye v. State, 717 N.E.2d 5, 20 (Ind. 1999), cert. denied, 531
U.S. 957 (2000); Holmes v. State, 671 N.E.2d 841, 852 (Ind. 1996), cert.
denied, 522 U.S. 849 (1997).
The trial court refused to give Defendants tendered instruction on the grounds that
its substance was covered by other instructions already to be given. Defendant
claims that the trial court was mistaken in its determination because no other
instruction informed the jury that it must determine unanimously that aggravating circumstances outweigh
mitigating circumstances. (Br. of Appellant at 69.) In what largely amounts
to a reprise of his argument regarding specific jury verdict forms, supra, Defendant
argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a sentencing
jury in a capital case to find each and every essential element beyond
a reasonable doubt. (Br. of Appellant at 71 n.27.)
As we have already explained, the jury was instructed consistent with Apprendi and Ring. We agree with the trial court that the jury was adequately instructed on the matters raised by Defendants tendered instruction here:
The law requires that all jurors agree to the existence of at least
one (1) of the charged aggravating circumstances before any recommendation on death or
life imprisonment may be made to the Court.
With respect to mitigating circumstances, your findings need not be unanimous. Each
juror must weigh in the balance any mitigating circumstance he or she thinks
have been established by the evidence, whether or not other jurors are likewise
convinced of those mitigating circumstances.
(R. at 1235.) (emphasis added).
We find that the trial court properly rejected Defendants proposed penalty phase instruction
The application of the Indiana Double Jeopardy Clause is distinct from its federal
counterpart. See Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999).
It prevent[s] the State from being able to proceed against a person twice
for the same criminal transgression." Id.
Defendant expresses his first argument as follows: Because the statutory elements necessary
to establish that [he] raped Eckart were necessary to establish the aggravating circumstance
upon which the death sentence rests, sentences for both Rape and Capital Murder
violate the State double jeopardy prohibitions. (Br. of Appellant at 83.)
He asks that the 20 year sentence imposed for rape be vacated.
It is true that the aggravating circumstance set forth in Ind. Code §
35-50-2-9(b)(1)(F) (intentional killing while committing rape) used to support the death sentence here
required that the State prove that Defendant committed rape. But we have
held that facts necessary to establish the (b)(1) aggravating circumstance serve to narrow
the eligibility for the penalty and are not identical to the elements of
the crime. West v. State, 755 N.E.2d 173, 186 (Ind. 2001).
We hold that it did not violate the Double Jeopardy Clause of the
Indiana Constitution for the trial court to enter sentence on the rape conviction
even if it also entered sentence on the felony-murder conviction.
Defendant also argues that his Class B felony criminal confinement conviction should be
reduced to a class D felony confinement on the ground that there is
a reasonable probabi
lity that the jury utilized the same facts to find the
serious bodily elements of the class D confinement and the injury that caused
Eckarts death. The State concedes this argument, noting that the prosecutor argued
that the serious bodily injury had been established by Eckarts death. (Br. of
Appellee at 59.) Accordingly, we reduce Defendants class B felony criminal confinement
conviction to a class D felony.
This special review of death sentences is grounded in the Indiana Constitution, our
state's death penalty statute, and federal death penalty jurisprudence. Harrison v. State,
644 N.E.2d 1243, 1260 (Ind.1995), after remand, 659 N.E.2d 480 (Ind. 1995), cert.
denied, 519 U.S. 933 (1996). The United States Supreme Court has repeatedly
said that under the Eighth Amendment the qualitative difference of death from all
other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing
determination. Caldwell v. Mississippi, 472 U.S. 320, 329 (1985) (quoting California v.
Ramos, 463 U.S. 992, 998-99 (1983)). Meaningful appellate review of death sentences
plays a crucial role in ensuring that the death penalty is not imposed
arbitrarily or irrationally. Parker v. Dugger, 498 U.S. 308, 321 (1991).
Our death penalty statute guides our review of death sentences by providing standards
for governing the trial court's imposition of death sentences. Following the completion
of the guilt-determination phase of the trial and the rendering of the jury's
verdict, the trial court reconvenes for the penalty phase. Before a death
sentence can be imposed, our death penalty statute requires the State to prove
beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1)
through (b)(16) of the statute.
See Ind. Code § 35-50-2-9 (1998).
As discussed at several points in this opinion, the State supported its request
for the death penalty with the following aggravating circumstances: (1) that Defendant
committed the murder by intentionally killing the victim while committing or attempting to
commit rape, see id. § 35-50-2-9(b)(1)(F) (Supp.1996); (2) that the victim was
a victim of a sex crime under Ind. Code § 35-42-4, here rape,
for which Defendant was convicted, see id. § 35-50-2-9(b)(13)(D); and (3) that the
victim was a victim of criminal confinement (Ind. Code § 35-42-3-3) for which
Defendant was convicted, see id. § 35-50-2-9(b)(13)(C).
The death penalty statute requires that any mitigating circumstances be weighed against any
properly proven aggravating circumstances. As mitigating circumstances, Defendant offered the following:
(1) residual doubt as to Defendants guilt; (2) that the Defendant was under
the influence of extreme mental or emotional disturbance because of a past history
of mental health problems as well as his mental condition at or about
the time of the crimes at issue here; (3) that Defendant's capacity to
appreciate the criminality of his conduct or to conform that conduct to the
requirements of the law was substantially impaired, again because of his mental health
history and mental condition at the time; (4) that Defendant suffered from a
deprived and abusive developmental history; (5) that Defendant had no significant history of
prior criminal conduct; (6) that a sentence of death would result in an
undue hardship to the Defendant's children and loved ones; (7) Defendant's good conduct
while incarcerated; and (8) that the State had the necessary and appropriate prison
facilities and staff to provide secure incarceration for Defendant.
The jury recommended that a sentence of death be imposed.
Once the jury has made its recommendation, the jury is dismissed, and the
trial court has the duty of making the final sentencing determination at the
sentencing hearing. At that proceeding, the trial court sustained Defendant's objection to
victim impact evidence being presented. The trial court reasoned that a death
sentence "must be based exclusively upon statutorily enumerated capital sentencing aggravating circumstances," and
the victim impact evidence here would not be relevant to any of the
alleged aggravating circumstances. (R. 5382.) Defendant also presented additional evidence in
support of the mitigating circumstances argued to the jury.
Applicable law imposes several requirements on the trial court in making its sentencing
determination. First, the trial court must find that the State has proven
beyond a reasonable doubt that at least one of the aggravating circumstances listed
in the death penalty statute exists. See Ind. Code § 35-50-2-9(k)(1) (Supp.
1996). Second, the trial court must find that any mitigating circumstances that
exist are outweighed by the aggravating circumstance or circumstances. See id. §
35-50-2-9(k)(2). Third, before making the final determination of the sentence, the trial
court must consider the jury's recommendation. See id. § 35-50-2-9(e). The
trial court must make a record of its reasons for selecting the sentence
that it imposes. See id. § 35-38-1-3. We commend Judge Emkes
for a particularly thoughtful and thorough sentencing order.
In imposing the death sentence in the instant case, the trial court found
that the State proved beyond a reaso
nable doubt the three charged aggravating circumstances,
each of which is listed in the death penalty statute. The record
and the law support this finding. However, the trial court assigned weight
only to the (b)(1)(F) (intentional murder while committing rape) aggravating circumstance, finding the
facts supporting the other two circumstances to overlap those in the first and
that assigning weight to them would duplicate the weight given the first.
We concur with this approach. The trial court did assign the (b)(1)(F)
aggravator substantial weight and great consideration. (R. 1294.)
The trial court provided a particularly careful and detailed analysis of Defendant's proposed
mitigating circumstances. The court gave careful attention to Defendants claim that residual
doubt about his guilt should be considered a mitigating circumstance but found little
weight should be given. After a lengthy discussion of the psychological and
psychiatric evidence, the trial court found that Defendant was under the influence of
extreme mental or emotional disturbance at the time of the crimes and assigned
that mitigator moderate weight. It found some evidence that Defendant's ability to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was impaired by mental disease, defect or intoxication but that
there was also extensive evidence that Defendant was in control of his conduct
and aware of its criminality. As such, the trial court assigned this
mitigator low to moderate weight.
The trial court recognized Defendant's deprived and abusive developmental history as a mitigating
circumstance and assigned it low weight. It also recognized that Defendant had
no significant history of prior criminal conduct, including no felony convictions. The
trial court assigned this circumstance moderate to heavy weight. As to Defendant's
claims that hardship to his family, his good behavior in prison, and the
ability of the State to provide secure incarceration should be considered mitigating circumstances,
the trial court agreed but assigned them only minimal weight.
In accordance with our death penalty statute, the trial court next balanced the
weight it assigned to the (b)(1)(F) aggravating circumstance with the weight it assigned
the mitigating circumstances. It found the aggravating circumstance outweighed the mitigating circumstances
and that in its analysis, death was the appropriate sentence for Defendant for
In this appeal, Defendant primarily contends that the weight of the aggravating circumstances
do not outweigh mitigating circumstances attributable to his past history of mental health
problems, his upbringing in and abusive and dysfunctional family environment, and his mental
condition at or about the time of the crimes at issue.
dent review of the aggravating and mitigating circumstances here, we assess the weight
attributable to the aggravating and mitigating circumstances in the same manner as the
Based on our review of the record and the law, we agree with
the trial court's concl
usion that the State proved beyond a reasonable doubt the
(b)(1)(B), (b)(13)(D), and (b)(13)(C) aggravating circumstances promulgated in the death penalty statute.
We agree with the trial court that the (b)(1)(B) aggravating circumstance alone outweighs
the mitigating circumstances.
We conclude that the death penalty is appropriate for
rder of Kelly Eckart.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.