ATTORNEY FOR APPELLANT
Ann M. Sutton
Appellate Public Defender
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
SUPREME COURT OF INDIANA
PAUL VEAL, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0012-CR-785
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9805-CF-785
ON DIRECT APPEAL
March 7, 2003
Paul Veal pleaded guilty to murder, rape, criminal confinement, and cruelty to animals
pursuant to an agreement calling for a sentence from eighty-five years to life
without parole. In this direct appeal, Veal challenges his sentence on the
grounds that the trial court erred in considering victim impact evidence and improperly
found statutory mitigating circumstances to be aggravating. We affirm.
Factual and Procedural Background
Late on the night of May 15, 1998, Veal, armed with a handgun,
went alone to the apartment of Candace Tyler. By his own account,
he first shot Tyler in the face, then raped her and finally killed
her with a shot to the back of the head in order to
prevent her from identifying him. At some point, he also shot and
killed Tylers dog.
Veal pleaded guilty to murder, rape, criminal confinement and cruelty to animals.
He was sentenced by the trial court to life without parole on the
murder charge, the presumptive sentence of one year on the cruelty to animals
charge, and enhanced statutory maximum sentences of fifty years for rape and twenty
years for criminal confinement, all to run consecutively.
Life without parole, like the death penalty, requires a finding of an aggravating
circumstance identified in Indiana Code section 35-50-2-9(b) (2002).
Highbaugh v. State, 773
N.E.2d 247, 251 (Ind. 2002). When this direct appeal was first presented,
this Court determined that the initial sentencing order imposing LWOP had relied on
non-statutory factors. The case was remanded for a new sentencing order, and
this appeal now addresses issues raised under the revised order.
I. Admission of Victim Impact Evidence
Tyler was nineteen years old when Veal murdered her. Tylers maternal aunt,
stepfather, and mother all testified at the sentencing hearing about the niece and
daughter they had lost, the effect of the crime on them, and their
own recommendations regarding Veals sentence.
Veal objected to this testimony on the
ground that it was inadmissible victim impact evidence. Veal cites Bivins v.
State, 642 N.E.2d 928 (Ind. 1994), for the proposition that victim impact evidence
is admissible under the death penalty statute only where it is relevan[t] to
the death penalty statutes aggravating and mitigating circumstances. Id. at 957.
Cases in which life without parole is sought are governed by the same
statute. Pope v. State, 737 N.E.2d 374, 382 (Ind. 2000) (citing Ajabu
v. State, 693 N.E.2d 921, 936 (Ind. 1998)). The trial court overruled
the objection on the ground that Bivins applied to the penalty phase of
a death penalty or LWOP trial, but not to a sentencing hearing.
In the trial courts sentencing order, the only aggravating circumstance relied upon to
impose LWOP was a finding that Veal murdered the victim while committing or
attempting to commit rape. Ind. Code § 35-50-2-9(b)(1)(F) (1998).
that this victim impact testimony would have been inadmissible at the penalty phase
of an LWOP trial because the testimony of Tylers family related solely to
the consequences of this crime and was irrelevant to the sole charged aggravator.
However, this testimony was offered in a sentencing hearing, in which Veal
was sentenced for both the murder and the other counts. Although the
familys opinions are not statutory aggravating factors under section 35-38-1-7.1(b), they are permissible
under subsection (a)(6) as to those counts. I.C. § 35-38-1-7.1(b) and (a)(6)
(2002); Loveless v. State, 642 N.E.2d 974, 978 (Ind. 1994) (expressly approving victim
impact testimony from the victims family). There is a presumption that a
court in any proceeding that is tried before the bench rather than before
a jury renders its decision solely on the basis of relevant and probative
evidence. Coleman v. State, 558 N.E.2d 1059, 1062 (Ind. 1990). The
same is true of a sentencing hearing.
Finally, the sentencing order relied only on the statutory factors in determining eligibility
for LWOP. There is no indication in the order that the trial
court considered the victim impact testimony in making its determination on this point.
Prowell v. State, 687 N.E.2d 563, 565 (Ind. 1997) (the admission of
victim impact evidence was harmless if the sentencing order did not mention the
evidence). Again, we presume that a court in a bench proceeding relies
only on relevant and probative evidence in reaching its decision. Coleman, 558
N.E.2d at 1062. The sentencing order gives no indication of any reason
to challenge that presumption.
II. Aggravating Circumstances on non-LWOP Counts
In order for a trial court to impose enhanced or consecutive sentences, it
must (1) identify the significant aggravating factors and mitigating factors; (2) relate the
specific facts and reasons that the court found to those aggravators and mitigators;
and (3) demonstrate that the court has balanced the aggravators with the mitigators.
Ajabu v. State, 722 N.E.2d 339 at 343 (Ind. 2000) (citing Gregory
v. State, 644 N.E.2d 543, 545 (Ind. 1994)).
The trial court in Veals case enhanced the sentences of rape and criminal
confinement. Because rape is a crime of violence, there is no statutory
limit on the total of the sentences for rape and criminal confinement when
imposed consecutively. I.C. § 35-50-1-2(c) (2001).
In its revised sentencing order, the trial court separated its discussion of the
murder charge from its discussion of the remaining counts and identified the significant
aggravating and mitigating factors that it relied on in sentencing on the remaining
counts. The trial court also supplied a cursory, though sufficient, identification of
specific facts and reasons supporting these aggravators and mitigators and provided a satisfactory
demonstration that it had conducted a balancing of the aggravators with the mitigators.
The trial court also explained that the aggravating circumstances outweigh the mitigating
circumstances and justify the enhanced, consecutive sentences imposed.
Veal also argues that the trial court improperly considered statutory mitigators as aggravators
on the remaining counts. The aggravators considered by the trial court in
its sentencing order are: (1) there was no justifiable excuse for committing the
offense; (2) the victim in no way induced or facilitated the offense; (3)
Veal was not likely to respond affirmatively to probation or short-term imprisonment as
indicated by his history; (4) Veal has a history of criminal offenses as
a juvenile; (5) Veal shows little remorse and takes no responsibility for his
actions; (6) the facts and circumstances of the offense reveal the heinous nature
of the offense. The first three aggravators are essentially the absence of
a potential mitigating circumstance. Under Indiana Code sections 35-38-1-7.1(c)(3), (4), and (6),
the sentencing court may consider as mitigators that there was a justifiable excuse
for the commission of the offense, that the victim induced or facilitated the
offense, or that the accused person is likely to respond affirmatively to probation
or short-term imprisonment.
Although these first three are not proper aggravating circumstances, the trial courts sentence
was nevertheless supported by the record. A trial court may rely upon
only one aggravating circumstance to support an enhanced sentence.
Hollen v. State,
761 N.E.2d 398 (Ind. 2002). That same circumstance may also be used
to justify the imposition of consecutive sentences. Spiller v. State, 740 N.E.2d
1270, 1274 (Ind. 2001) (citing Taylor v. State, 710 N.E.2d 921, 925 (Ind.
1999)). A trial court may find a defendants lack of remorse to
be an aggravating factor. Brooks v. State, 497 N.E.2d 210, 221 (Ind.
1986). And, so long as an element of a crime is not
cited as an aggravating circumstance, the court may consider the nature and circumstances
of the crime committed. I.C. § 35-38-1-7.1(a)(2) (2002); Armstrong v. State, 742
N.E.2d 972, 981 (Ind. 2001). The sentencing courts consideration of the heinous
nature of the offense as an aggravator was permissible, and Veal has no
quarrel with the consideration of the fourth aggravating factor, his juvenile criminal history.
In view of these properly identified factors, and because a single factor
is sufficient, there is no procedural error in imposing the sentences found appropriate
by the trial court. Given the facts of this case, we do
not find the sentence manifestly unreasonable.
The sentencing order of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Tylers aunt testified in part as follows:
Candace was a beautiful child. . . . loving. . . . very
family oriented. . . . very giving. . . . She was concerned
about the homeless on a trip to Washington, D.C. for her school
and for the City of Hammond. . . . She never wanted anyone
to give her anything. She worked. . . . she was always
a pleasure. She always made me very proud. . . . But
I dont think my family wants vengeance or revenge we want justice.
And if justice means that Paul Veal should sit in jail for
the rest of his natural life then I think that is justice.
I think that Candace begged for mercy and he showed her
none. I think by the same token, he should get no mercy.
Tylers stepfather testified in pertinent part as follows:
Candace became that daughter that I didnt have. . . . its been
devastating . . . we just dont feel like we have anything to
live for. . . . She just made life so special. . .
. It was just taken from her and there was no reason for
it. . . . When I went to pay for the funeral .
. . this is the actual change. This is not a replica
. . . and Ill have it the rest of my life.
Sixty-two cents and . . . this is the key to the
casket. What are we going to do with this. What is
this for. We cant go out there and crank it up and
look at it every other on a birthday we just got
a key to the casket. What am I gonna do with this.
What am I supposed to do with this. . . . If
the best he can get is life without parole well take that.
Tylers mother testified in pertinent part as follows:
Candace and I were one. One from one is zero thats
how I am now. She was my everything. I lived, I
breathed for Candace. . . . Now who do I have? He
stole her. He robbed me of my life. . . . I
have no grandkids. We will never. . . . Our blood runs
no more. . . . I have nothing in this world. . .
. I should be dead. . . . she was my best friend.
. . . Im dead. . . . He should get life.
He should never ever walk the streets again. He should not be
allowed to see anything but the sky. He shouldnt be able to
do this to another person to another family to another community.
Life with no parole.
Footnote: The statutory aggravating circumstance is intentional killing in the course of a
felony. I.C. § 35-50-2-9(b)(1)(F) (1998). Although murder can be committed either
knowingly or intentionally, there is no dispute that this killing was intentional so
there is no consequence to the trial courts technically deficient formulation of this
aggravating circumstance as murder.