Attorneys for Appellant
Attorneys for Appellee
Eric K. Koselke Steve Carter
Brent Westerfeld Attorney General of Indiana
James B. Martin
Deputy Attorney General of Indiana
Appeal from the St. Joseph Superior Court, No. 71D04-0009-CF-00434
The Honorable William T. Means, Judge
May 25, 2004
At trial, the States main evidence against Defendant consisted of testimony from others
involved in the incident, ballistics testimony, and shoeprint testimony. According
to some witnesses, Phillip Stroud, Tyrome Wade, Kerel Seabrooks, and Ronald Carter went
to the Searses residence with the intent to steal from the place.
They learned about the Searses residence from Charity Payne, a former girlfriend of
the Searses son. Ronald Carter, who was also charged for the crimes
and testified pursuant to a plea bargain with the State, said that Defendant
shot the three men.
It appeared that four bullets had been fired, but it could not be
determined conclusively whether all of the bullet fragments found at the scene were
fired from the same gun. It is possible that the bullets were
fired from an Intratec Tec-9 gun. Ronald Carter testified that Defendant carried
a Tec-9 gun.
Shoeprint marks were found on pieces of lumber inside the barn, and they
could have been made by a pair of Nike shoes taken from the
apartment of Defendants girlfriend when he was arrested. These same Nike shoes
had some debris on them, which was compared to debris at the crime
scene. A carpet fiber found on the shoes had the same class
characteristics as carpet from the Searses home. The Nike shoes also had
animal feces on them, and an expert testified that the feces on the
Nike shoes and the feces from the ground at the crime scene were
likely from the same animal.
The defense did not put on any witnesses during the guilt phase of trial.
The jury found Defendant guilty of three counts murder and three counts felony
murder, which the trial court merged; one count burglary, a Class B felony;
two counts robbery, Class B felonies; and one count attempted robbery, a Class
B felony. After the penalty phase of the trial in which the
defense presented evidence of mitigating circumstances, the jury recommended that Defendant receive the
death penalty. Judge Means, in his sentencing order, stated that he believed
Indianas amended death penalty statute required him to follow the jurys recommendation.
If he were not so constrained, however, he said he would be inclined
to judicially override the jury recommendation for death. (Appellants App. at 642.)
He sentenced Defendant to death for each of the murders and to
20 years for each of the other four counts.
Pursuant to Indiana Appellate Rule 4(A)(1)(a), Defendant directly appealed his convictions and sentences
to this Court. We affirm Defendants convictions but vacate his sentences and
remand the case to the trial court for new penalty and sentencing phases.
Defendants final request
See footnote occurred on February 11, 2002, at a hearing where Defendants
counsel filed a Motion to Proceed as Pro Se Counsel on behalf of
Defendant. The court denied the motion because of the grave circumstances of
this particular type of proceeding. (Tr. at 122.) This time, Defendant
appears clearly to have invoked his right of self-representation, and the appropriate course
would have been for the trial court to hold a hearing to determine
if Defendants choice was knowing, intelligent, and voluntary.
Jones, 783 N.E.2d at
1138; Sherwood, 717 N.E.2d at 134-35. Nevertheless, the overall circumstances lead us
to conclude that Defendant waived his right to represent himself because he vacillated
between representing himself and being represented by counsel.
The first time Defendant appeared before Judge Means on the murder case, he
did not request to represent himself. On November 16, 2000, when the
State filed a Request for the Death Penalty and the court stated that
new counsel would be named for Defendant under Criminal Rule 24, Defendant did
not object nor did he ask to represent himself. On December 4,
2000, when James Korpal entered his appearance for Defendant, Defendant did not object.
After that, over a year passed and the court held eight pretrial
hearings before Defendant again requested to represent himself. During this time, he
allowed the appointed attorneys to represent him.
See Sherwood, 717 N.E.2d at
136 (emphasizing in finding a denial of defendants right to represent himself that
defendant explicitly objected to the courts order that appointed counsel appear on his
behalf and represent him at trial and that [t]hroughout the entire trial, [defendant]
at no time acquiesced in the presentation of a defense by appointed counsel).
Several jurisdictions have held that even after its assertion, the right to self-representation
may be waived through conduct indicating that one is vacillating on the issue
or has abandoned ones request altogether. Williams v. Bartlett, 44 F.3d 95,
100 (2d Cir. 1994); United States v. Heine, 920 F.2d 552, 554-55 (8th
Cir. 1990); United States v. Weisz, 718 F.2d 413, 426 (D.C. Cir. 1983),
cert. denied, 465 U.S. 1027 (1984); Brown v. Wainwright, 665 F.2d 607, 610-11
(5th Cir. 1982); United States v. Bennett, 539 F.2d 45, 51 (10th Cir.
1976), cert. denied, 429 U.S. 925 (1976); Spencer v. Ault, 941 F. Supp.
832, 840 (N.D. Iowa 1996). Similarly, some jurisdictions interpret the Supreme Courts
jurisprudence as requiring strict construction of the clear and unequivocal requirement. See
Burton, 937 F.2d at 133; Weisz, 718 F.2d at 425-26. These are
eminently sound policies. The right to counsel is a fundamental constitutional right
and its abandonment should not be held lightly. Johnson v. Zerbst, 304
U.S. 458, 462-65 (1938). The Faretta court, which held that criminal defendants
have a right to represent themselves, imposed the requirements of a clear, unequivocal
request, and a knowing, voluntary waiver of the right to counsel, out of
concern that defendants could conduct [their] own defense ultimately to [their] own detriment.
422 U.S. at 834, 835; see also Martinez v. Court of Appeal
of California, 528 U.S. 152, 161 (2000) (holding there is no constitutional right
to represent oneself on appeal and noting that [o]ur experience has taught us
that a pro se defense is usually a bad defense (quotations and citation
Moreover, courts must be wary of defendants asserting the right to represent themselves
solely to delay proceedings or to create an issue for appeal. In
explaining the requirement that defendants make a clear and unequivocal request, this Court
If the rule were otherwise, trial courts would be in a position to
be manipulated by defendants clever enough to record an equivocal request to proceed
without counsel in the expectation of a guaranteed error no matter which way
the trial court rules.
Anderson v. State, 267 Ind. 289, 294, 370 N.E.2d 318, 321 (1977) (quoting
Meeks v. Craven, 482 F.2d 465, 468 (9th Cir. 1973)), cert. denied, 434
U.S. 1079 (1978). There is some evidence that Defendant requested to proceed
pro se only to create an issue for appeal, though this is largely
speculation. After Judge Means denied his second request, Defendant stated, Lets get
this on the record. You are denying my right to go pro
se? (Tr. at 14.) During his third request, he stated, I
just want it to be on the record. If you deny it,
I understand, but I just want it to be on the record that
Im invoking my constitutional right in Court. (Id. at 122.)
That is not to say, however, that a court should be dismissive of
a defendants requests to proceed without a lawyer. It would be much
easier to evaluate these claims on appeal if trial courts would err on
the side of being cautious and hold a hearing to determine whether a
defendant is waiving the right to counsel, even if such a hearing may
not strictly be required because a defendants request is not clear and unequivocal.
See Dowell v. State, 557 N.E.2d 1063, 1066 (Ind. Ct. App. 1990)
(a defendants clear and unequivocal request within a reasonable time prior to trial
to proceed pro se triggers a duty of the trial court to hold
a hearing to determine the defendants competency to represent himself and to establish
a record of his waiver of his right to counsel), cert. denied, 502
U.S. 861 (1991).
Finally, the reasons Judge Means gave in his Supplemental Findings and Order dated
February 20, 2002, to justify refusing Defendants requests to represent himself are insufficient.
The order stated:
That due to the defendants behavior during prior appearances in Court including spitting upon a deputy prosecuting attorney, resisting authority resulting in him being forcibly removed from the Court room shouting obscenities and by defecating and/or urinating in his clothing while present in the Court said defendant presents a grave security risk to all persons present in the courtroom were he permitted to roam freely in the courtroom in presenting his own defense.
(Appellants App. at 255.) The record reflects only that at a hearing on January 3, 2001, Defendant spit at the Prosecutor and the victims and was removed from the courtroom. In the four rulings on Defendants requests to act pro se, the court never mentioned his behavior or potential security problems resulting therefrom. Defendants conduct cannot be used as an after-the-fact justification for the trial courts denial of Defendants request to represent himself. We also generally agree with Defendant that [e]ven if these things did occur, the remedy would have been to shackle Stroud, not to deny him his constitutional right to self-representation. (Br. of Appellant at 18.) The insufficiency of this order, however, does not change the fact that Defendant waived his right to represent himself.
The police searched the apartment of Defendants girlfriend and found a pair of
Nike shoes that appeared to have dog feces and a red soil substance
on them. Similar substances were found at the crime scene. DNA
testing was done on the shoes and an expert testified that there was
a one in ten billion chance that the feces on the bottom of
the shoes came from an animal different from the one whose feces was
at the crime scene. In addition, Ronald Carter testified that Defendant wore
the shoes on the day of the shootings.
On cross-examination, defense counsel asked Sergeant Ronald Nowicki, the lead evidence technician for the South Bend Police Departments Special Crimes Unit and the person who categorized the evidence at the scene, did you have the opportunity to send the inner soles of these cases to the Indiana State Crime Lab for DNA testing? (Tr. at 802.) The State objected to the line of questioning and argued that it was not designed to lead to relevant evidence and that it had a serious risk of misleading the jury. (Id. at 803.) The defense explained that the DNA testing showed that Stroud was excluded, but the State said that there were three reports total and subsequent reports from the DNA experts said that he could not be excluded as the wearer of those shoes. (Id. at 803-04.) The trial court sustained the objection but told counsel to [l]ook at the reports. . . . if we have to go forward in that area, we will. (Id. at 804.)
To reverse a trial courts decision to exclude evidence, which we review for
an abuse of discretion, there must be (1) error by the court, (2)
that affects Defendants substantial rights, and (3) the defense must have made an
offer of proof or the evidence must have been clear from the context.
Ind. Evidence Rule 103(a); McCarthy v. State, 749 N.E.2d 528, 536 (Ind.
2001); Hauk v. State, 729 N.E.2d 994, 1002 (Ind. 2000). In this
instance, the trial court did err, but that error was harmless.
The trial court erred in excluding the DNA evidence because it was relevant.
Relevant evidence is evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. Ind.
Evidence Rule 401. The defense sought to question Sergeant Nowicki about testing
done on the inner soles of the Nike shoes in an effort to
demonstrate that the testing showed Defendant was excluded. The shoes were a
key piece of evidence linking Defendant to the crime scene. Under Indiana
Evidence Rule 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of . . . misleading the jury .
. . . Given the importance of the shoes, the possibility of
misleading the jury would not substantially outweigh the probative value of a DNA
test on the Nike shoes excluding Defendant.
Nevertheless, the trial court said that if counsel looked at the reports and felt it necessary to present evidence on that issue, the court would allow it. Defense counsel never again sought to question Sergeant Nowicki nor raise the issue of the testing of the Nike shoes. We can only speculate about counsels action. Because the trial court did not foreclose the opportunity to present this evidence and because the defense never sought to introduce it, we cannot conclude that Defendants substantial rights were prejudiced. The error was therefore harmless. And if any error was committed by trial counsel, that should be addressed in post-conviction relief where the issue can be fully briefed and a proper record developed.
The problem here is that the foundation for Sergeant Nowickis testimony was not
laid before he gave his opinion. The prosecution did not ask any
questions of Sergeant Nowicki to ascertain whether he had ever purchased Nike or
Reebok shoes and consequently whether his opinion on their sizings could be rationally
based on his perception of those shoes. Only after defense counsel asked
him how many times he had purchased Nikes and Reeboks could the court
know that his opinion was rationally based on his perception. Because an
adequate foundation was laid immediately after the disputed testimony, however, any error in
the admission of Sergeant Nowickis testimony was harmless. Stephenson v. State, 205
Ind. 141, 215-16, 179 N.E. 633, 667 (1932) (upholding as harmless error the
admission of a dying declaration even though a proper foundation had not been
laid in advance because a proper foundation was later established).
On cross-examination of Lieutenant James E. Clark, defense counsel asked him what an
Affidavit in Support of Probable Cause is, whether it states what the person
is accused of doing, whether it may include the names of others involved,
and whether the defendant normally gets a copy of it. (Tr. at
856-57.) The defense concedes that this line of questioning was an attempt
to explain how jail house informant Diangelo Chick may have been able to
testify to facts surrounding the crime. (Br. of Appellant at 30.)
The State requested that the court take judicial notice of the affidavit and
admit it into evidence, because during Lieutenant Clarks testimony, the issue of what
was public knowledge was raised. (Tr. at 863.) The defense objected,
and the court overruled the objection, stating: you opened the door to it.
The impression was that people had access to this information and that
is how the word could spread. [The State is] entitled to counter
with what exactly was in the supporting affidavit. (Id. at 864.)
It is clear in this context that the affidavit was not offered to
prove the truth of what was stated within it. Hearsay is a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.
Ind. Evidence Rule 801(c). The defense suggested that the informants testimony
could have been based on public knowledge rather than on conversations with the
Defendant. The prosecution then sought to introduce the affidavit so that a
comparison could be made between the information testified to by Chick and the
information contained in the affidavit, and a conclusion could be drawn as to
the source of Chicks information. The trial court therefore did not err
in admitting the affidavit into evidence.
On October 2, 2000, the Defendant requested a speedy trial in this case.
The State later filed a Request for the Death Penalty. Because
Defendants counsel was not qualified under Criminal Rule 24 to handle a capital
case, new counsel had to be appointed. Consequently, at a hearing on
November 16, 2000, the court delayed the trial date previously set. In
doing so, the court said it was relying on a recent Indiana Supreme
Court case holding that when the death penalty is requested, the speedy trial
rule must yield to Criminal Rule 24. (Tr. at 16.)
The Court appears to have relied on Lowrimore v. State, 728 N.E.2d 860 (Ind. 2000), in which we held that the defendants speedy trial right was not violated. The facts of Lowrimore are similar to the facts of this case. In Lowrimore, the defendant filed a motion for an early trial and a trial date was set within 70 days from that motion. Later, however, the State sought the death penalty. The defendants counsel was not qualified to represent Lowrimore in a capital case and so the court, finding an emergency, vacated the original trial date in order to appoint qualified attorneys under Criminal Rule 24. Id. at 864. On appeal, Lowrimore argued that he was entitled to choose his speedy trial right over the rule requiring two Criminal Rule 24 attorneys. Id. (quotations omitted). We stated if [a defendant] chooses to proceed with court-appointed counsel the language of Criminal Rule 24 is mandatory and requires trial courts in death penalty cases to appoint two attorneys meeting the specified educational and experience levels. Id. We did acknowledge two exceptions to Criminal Rule 24 the defendants retaining private counsel or waiving his right to counsel and choosing to act pro se neither of which were applicable in Lowrimore. Id.
Defendant argues that his case falls within one of the exceptions stated in Lowrimore because Defendant sought to represent himself. Defendant, however, did not request to represent himself when the court changed his trial date and stated it would appoint two Criminal Rule 24 qualified attorneys. Neither he nor his attorney objected to the appointment of Criminal Rule 24 attorneys or to the resulting continuance. Since Defendant did not do any of these things when his trial date was postponed, he cannot use his previous requests for self-representation to object under Criminal Rule 4.
Alternatively, Defendant argues that Lowrimore is inapplicable because there was no showing that Crim. R. 24 qualified attorneys were not available who could have prepared Strouds trial adequately. (Br. of Appellant at 37.) Defendant claims that for the three weeks between the time the State filed its request for the death penalty and the original trial date, the trial court allowed Stroud to be unrepresented by counsel. (Id.) Defendant provides no additional information regarding this claim, and without more, we cannot fairly address it.
Defendant also claims that his due process rights were violated because the States
death penalty request contains no allegation that the State is requesting a sentence
of death on any specific count of murder. (Br. of Appellant at
69.) Accordingly, it is unclear whether the State is requesting one death
sentence or multiple death sentences, and if the State is requesting only one
death sentence, it is unclear for which murder count the State is seeking
death. We think that if there was confusion as to the States
request, any clarification or objection to it should have been made before trial.
No such actions were ever taken by Defendants attorneys. Defendants attorneys
did make a Motion to Dismiss the Death Penalty, but they did not
raise in that motion any defect in the States Request for the Death
Sentence. This argument has consequently been waived. Kirts v. State, 689
N.E.2d 756, 757 (Ind. Ct. App. 1997) (The rule that has developed is
that a motion to dismiss a flawed charging instrument must be raised prior
to trial or the error is waived. The rationale for this rule
is to give the prosecution an opportunity to amend the charging instrument before
trial so that the expense and time-consuming efforts in a trial will thus
not be lost. (quotation and citations omitted)).
Defendant also argues that the States Request for the Death Sentence was flawed
because it did not allege the intended felony in the burglary charge.
Neither the charging information nor the request for the death penalty adequately specifies
the intended felony in the burglary charge. See Bays v. State, 240
Ind. 37, 45-47, 159 N.E.2d 393, 396-98 (1959), cert. denied, 361 U.S. 972
(1960). But, again, any defects in these documents should have been addressed
before trial. Because they were not, the issue is waived.
In 2002, Indianas death penalty statute was amended and one of the amendments
altered the jurys sentencing determination from a recommendation to one that is binding
on the court. Ind. Code § 35-50-2-9(e) (1998), amended by 2002 Ind.
Acts 117, § 2. Under the old statute, the jury would make
its sentencing recommendation and the judge would then make a final sentencing determination,
thereby providing a defendant with two different considerations of his sentence. See
Ind. Code § 35-50-2-9(e) (1998). Under the new statute, however, there is
only one sentencing determination, which is made by the jury, and the judge
must apply the jurys determination. See Ind. Code § 35-50-2-9(e) (Supp. 2002).
Defendant argues that, due to this change, the 2002 amended death penalty statute
cannot constitutionally be applied to him because it would operate as an ex
post facto law. He makes this claim under both the United States
Constitution, Article I, § 10, and the Indiana Constitution, Article I, § 24.
Article I, § 10, of the United States Constitution states, No State shall . . . pass any . . . ex post facto Law . . . . Article I, § 24, of the Indiana Constitution similarly states, No ex post facto law . . . shall ever be passed. Ex post facto can refer to several types of laws, but the prohibition applies only to laws affecting rights in the criminal context. The purpose of the prohibition against ex post facto laws is twofold. First, it is to prevent the legislature from abusing its power by enacting arbitrary or vindictive legislation. Miller v. Florida, 482 U.S. 423, 429 (1987). Second, it is to give fair notice of any changes in the law. Id. at 429-30.
For an ex post facto question to arise, the law must be retrospective, that is, it must apply to events occurring before its enactment. Id. at 430 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981), overruled on other grounds, Cal. Dept of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)). The 2002 amended death penalty statute operates retrospectively in Defendants case. The crimes Defendant was convicted of were committed on September 14, 2000. His trial began on July 1, 2002, he was found guilty on July 20, 2002, and he was sentenced to death on September 4, 2002. The amended death penalty statute and the particular provision Defendant contends is ex post facto became effective on March 20, 2002, and states that it applies to a defendant sentenced after June 30, 2002. Ind. Code Ann. § 35-50-2-9(e) (West Supp. 2002) (Historical and Statutory Notes).
Based on the purposes underlying the prohibition against ex post facto laws, the United States Supreme Court has stated what laws will generally be considered ex post facto:
It is settled, by decisions of this Court . . . that any
statute which punishes as a crime an act previously committed, which was innocent
when done; which makes more burdensome the punishment for a crime, after its
commission, or which deprives one charged with crime of any defense available according
to law at the time when the act was committed, is prohibited as
ex post facto.
Beazell v. Ohio, 269 U.S. 167, 169-70 (1925); Collins v. Youngblood, 497 U.S. 37, 43 (1990) (stating that the Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause). This prohibition is not limited to substantive statutes, as some cases have previously held. See, e.g., Dobbert v. Florida, 432 U.S. 282, 292-94 (1977). Rather, it encompasses any law the effect of which is to make innocent acts criminal, alter the nature of the offense, or increase the punishment. Collins, 497 U.S. at 46 (stating that the best way to make sense out of this discussion in the cases is to say that by simply labeling a law procedural, a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause).
Our Court has provided a somewhat different definition of what laws are ex post facto but the concept is the same. A law is ex post facto if it substantially disadvantage[s] [a] defendant because it increase[s] his punishment, change[s] the elements of or ultimate facts necessary to prove the offense, or deprive[s] [a] defendant of some defense or lesser punishment that was available at the time of the crime. Crawford v. State, 669 N.E.2d 141, 150 (Ind. 1996).
Indianas amended death penalty statute is not an ex post facto law as
applied to Defendant. It does not explicitly fall into any of the
categories considered as ex post facto laws. It does not make criminal
an act that previously was not criminal; it does not increase the punishment
for a crime; and it does not eliminate any available defenses or a
lesser punishment. The statute shifts the role of determining a defendants final
sentence from the judge to the jury. The potential punishments remains the
same as well as what must be found in order to impose any
Defendant argues that taking away the judges ability to override the jurys sentencing
recommendation deprives him of another chance at life. That chance at life,
however, is wholly speculative. A jury has the option of sentencing a
defendant to death, life without parole, or a term of years if certain
findings are not made. After the jury has made its recommendation, what
the judge does thereafter cannot be predicted with certainty. The judge could
follow the jurys recommendation or override it either for or against death.
The mere possibility that a judge might override a jury recommendation for death
and impose a lesser sentence instead is not enough to find that the
statute violates the prohibition against ex post facto laws. See Cal. Dept
of Corr. v. Morales, 514 U.S. 499, 509 (1995) (The amendment creates only
the most speculative and attenuated possibility of producing the prohibited effect of increasing
the measure of punishment . . . and such conjectural effects are insufficient
under any threshold we might establish under the Ex Post Facto Clause.).
Related to the question of whether the amended death penalty statute is an
ex post facto law in this case is the question of whether the
jury was properly instructed. Defendant argues that the Eighth Amendment to the
United States Constitution was violated when the jury was given contradictory instructions on
its role in the sentencing process throughout the case.
See footnote Defendant requests that
his death sentence be set aside and the case remanded for a new
Initially during jury selection, the trial court told prospective jurors that their determination as to whether Defendant would receive death or life without parole would be binding on the court: [I]f the jury makes a recommendation, you must understand that the Court is bound to follow the jurys recommendation. (Tr. at 54-55.) I repeat that should the jury recommendation be either for imposition of the death penalty or life without parole, the Judge has no discretion to change the jurys recommendation. ( Id. at 55-56; see also id. at 145.)
In the last two days of jury selection, the trial court told prospective
jurors the opposite. The trial court stated (1) that if the jury
recommends the death penalty, it is a recommendation only and the Court could
sentence the defendant to life without parole, and (2) that if the jury
recommends life without parole, that is also only a recommendation and the Court
could sentence the defendant to a term of years. (Id. at 800.)
In the final instructions, the trial court said the following to the jury:
If you . . . recommend that a sentence of death be imposed,
it is a recommendation only and the Judge will sentence the defendant to
death or life imprisonment without parole. The law does not require that
the Judge must follow your sentencing recommendation.
If you . . . recommend that a sentence of life imprisonment without
parole be imposed, it is a recommendation only and the Judge will sentence
the defendant to life imprisonment without parole or to a term of years.
The law does not require that the Judge must follow your sentencing
If you . . . recommend that a sentence of a term of
years be imposed, the law requires that the Judge must follow your recommendation.
[Y]ou may make no recommendation as to the sentence to be imposed upon
the defendant and the Judge will be required to sentence the defendant to
life imprisonment without parole or to a term of years.
(Id. at 1254-55.)
The trial court did impose on the jury a sense of seriousness about
In your deliberations about the appropriate sentence to recommend in this case, you
should assume that if you recommend the death penalty for Phillip Stroud he
will, in fact, be executed.
. . .
In deciding on the sentence in this case, you must recommend a sentence
that you, in examining your individual consciences, the evidence presented, and the instructions
of this Court, believe that Phillip Stroud should serve, not your belief about
how this Court or some other authority might act on this case at
a later date.
(Id. at 1258-59.)
After the jury pronounced its sentence of death, however, the trial judge stated
that he had reviewed the law and felt that he was bound to
follow the jurys recommendation, in contrast to how he had instructed the jury
In Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985), the U.S. Supreme Court
[I]t is constitutionally impermissible to rest a death sentence on a determination made
by a sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests elsewhere. This 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." California v. Ramos, 463 U.S. [992,] 998-999 [(1983)]. Accordingly, many
of the limits that this Court has placed on the imposition of capital
punishment are rooted in a concern that the sentencing process should facilitate the
responsible and reliable exercise of sentencing discretion.
The Court has limited this general rule, in requiring that To establish a
Caldwell violation, a defendant necessarily must show that the remarks to the jury
improperly described the role assigned to the jury by local law. Dugger
v. Adams, 489 U.S. 401, 407 (1989).
There is a clear Caldwell violation here. And, as required by Dugger, the jury was not properly instructed on the law. A proper instruction would have informed the jury that it would make its sentencing recommendation and the judge would sentence the defendant accordingly. Ind. Code § 35-50-2-9(e) (Supp. 2002). The difference between the instructions that the jury should have received and the instructions that it did receive goes to the precise concern articulated in Caldwell. The jury was told that the judge was not bound to follow its sentencing recommendation if it recommended either death or life imprisonment without parole. In essence, the jury was told that the ultimate responsibility for sentencing the defendant did not rest with it, when in fact it did. We therefore cannot be certain that the sentencing process was responsible and reliable. Caldwell, 472 U.S. at 329.
The State argues that the trial courts instructions, that the jury should assume
Defendant would be executed if the jury so recommended and that the jury
should not consider how the trial court or any other court would act
following the jurys recommendation, cures the Caldwell violation. It does not.
That particular language was not given to the jury in isolation; rather, it
was part of a series of instructions the totality of which made clear
that the jurys sentencing determination was a recommendation only. Moreover, the language,
couched as it is as an assumption, is not an explicit statement that
the jurys determination is binding. When the jury was instructed it should
assume death would be imposed if it so recommended, it might well have
interpreted the instruction as a statement that its task was a serious one
rather than a definitive statement of what would happen. Such vague statements
cannot overcome the overall effect of the instructions telling the jury that its
sentencing decision was only a recommendation.
For this reason, we set aside Defendants death sentence and remand for new
penalty and sentencing phases. Because we have found a Caldwell violation and
are remanding for new sentencing, it is not yet necessary to address Defendants
other constitutional claims. Berwanger v. State, 262 Ind. 339, 345, 315 N.E.2d
704, 707 (1974) (remanding to the trial court for a new sentencing hearing
and stating that because of this disposition, it is not necessary to address
defendants constitutional claim); State v. Darlington, 153 Ind. 1, 4, 53 N.E. 925,
926 (1899) (It is a rule of decision, that courts will not pass
upon a constitutional question, and decide a statute to be invalid, unless a
decision on that very point becomes . . . . absolutely necessary to
a disposition of the cause on its merits.); see also Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) (stating that the
Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case
may be disposed of). Defendant also alleges other defects in the penalty
phase of trial and we similarly conclude that it is unnecessary to address
those claims as any concerns can be addressed by trial counsel at the
new penalty phase.
For the reasons the majority explains, I agree this cause should be remanded
for a new penalty and sentencing phase of trial. However, I am
persuaded that should a new jury return a recommendation of death, the trial
court is not necessarily bound thereby. Therefore I concur in result with
this portion of the majority opinion. In all other respects I fully
Boehm, J., concurs.