ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin L. Likes Jeffrey A. Modisett
Likes and Kraus Attorney General of Indiana
Auburn, Indiana Indianapolis, Indiana
Michelle Fennessy Kraus Arthur Thaddeus Perry
Schenkel, Tirpak & Kowalczyk Deputy Public Defender
Indianapolis, Indiana Indianapolis, Indiana
INDIANA SUPREME COURT
ZOLO AGONA AZANIA, )
f/k/a RUFUS LEE AVERHART, )
v. ) 02S00-8808-PC-751
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth Scheibenberger, Judge
Cause No. CR-81-401
June 6, 2000
The defendant-appellant, Zolo Agona Azania, formerly known as Rufus Lee Averhart, and two
co-defendants were convicted of murder
and felony murder
for killing Gary police officer
George Yaros during a robbery of the Gary National Bank on August 11,
1981. The jury recommended a death sentence. Treating the two convictions
as a single offense, the trial court sentenced the defendant to death.
On direct appeal, this Court affirmed the defendant's sentence. Averhart v. State,
470 N.E.2d 666 (Ind. 1984). In 1993, on appeal from the denial
of post-conviction relief, we reversed based on the ineffective assistance of trial counsel
in the penalty phase and the failure of the prosecution to provide gunshot
residue test results to the defense. We remanded for either the imposition
of sentence for a term of years or a new penalty phase trial
and sentencing proceeding. Averhart v. State, 614 N.E.2d 924 (Ind. 1993).
On remand, a jury again recommended death, and the trial court entered judgment
ordering the death sentence. Upon receipt of the defendant's appeal, this Court
remanded and directed the trial court to enter an amended sentencing order.
Following the trial court's entry of the revised order, the defendant submitted his
supplemental brief. This appeal now presents the following issues: (1) denial
of the defendant's motion to dismiss; (2) admission of character evidence; (3) presentation
of false testimony at the guilt phase trial; (4) adequacy of the sentencing
order; (5) refusal to admit the State's closing argument as substantive evidence; (6)
communications between the bailiff and the jury; and (7) non-disclosure of exculpatory evidence.
Motion to Dismiss
The defendant contends that the trial court erred in summarily denying his motion
to dismiss the death penalty proceeding on grounds of procedural irregularity. The
defendant was initially charged by information, but the prosecutor dismissed the information and
filed an indictment after the grand jury subsequently returned an indictment including two
counts with identical substantive allegations as the information, plus two counts seeking the
death penalty. On February 12, 1982, the defendant moved to dismiss the
indictment alleging defective grand jury proceedings by reason of certain evidence presented.
Averhart, 470 N.E.2d at 677. The motion was denied, and the issue
was raised and addressed in the defendant's first direct appeal. Id. at
677-79. After we remanded the case for a new penalty phase and
sentence determination, the defendant filed another motion to dismiss challenging the indictment upon
which the first penalty phase and sentencing proceedings had been based. In
the present appeal, the defendant challenges the denial of this second motion to
dismiss that was filed after the conclusion of the first direct appeal and
after his appeal from the denial of post-conviction relief.
In the second motion to dismiss, and now in this appeal, the defendant
argues that the grand jury lacked the power to initiate the death penalty
proceedings by indictment. He contends that a grand jury may only indict
for "an offense" and that the death penalty is not "an offense."
He claims that the indictment was thus a nullity and that his motion
to dismiss the indictment should have been granted. The defendant did not
challenge the legal authority of the grand jury to commence the death penalty
proceedings in his original trial, his first direct appeal, his petition for post-conviction
relief, or his appeal from the denial of post-conviction relief.
Upon motion of the defendant, a court may dismiss an indictment based upon
one of several enumerated grounds or "any other ground that is a basis
for dismissal as a matter of law."
Ind. Code § 35-34-1-4(a)(11).
A motion under subdivision (a)(11) may be made at any time before or
during trial, Ind. Code § 35-34-1-4(b)(2). Upon a motion to dismiss, a
defendant should raise every ground upon which he intends to challenge an indictment,
Ind. Code § 35-34-1-4(c); however, "in the interest of justice and for good
cause shown," the court may entertain and dispose of such a motion on
the merits, Ind. Code § 35-34-1-4(c). Although this was a second motion
to dismiss the indictment, it was filed before the retrial after remand from
this Court. Because of the unique procedural posture of this capital sentencing
proceeding, we find that the interest of justice and good cause requirements are
satisfied and address the defendant's motion on the merits.
The indictment issued by the grand jury was denominated in four counts.
Count I charged the offense of murder. Count II charged the offense
of felony murder. Count III sought a death sentence and alleged the
aggravating circumstance of intentional killing while committing or attempting to commit robbery.
Count IV sought a death sentence and alleged the aggravating circumstance that the
victim was a law enforcement officer acting in the course of his duty.
To support his argument that his death penalty is based on an invalid
indictment, the defendant cites Owens v. State, 659 N.E.2d 466 (Ind. 1995), in
which we observed: "Without deciding the question, we express here our doubt
that the State has the authority to seek an indictment for a 'violation'
of Indiana Code § 35-50-2-9, our death penalty statute." Id. at 472.
Our concern in Owens arose from statutory language authorizing grand juries to
deliberate and to issue an indictment alleging the commission of criminal offenses.
In Owens, the grand jury was not asked to consider whether to issue
an indictment charging a criminal offense. Rather, the prosecutor only presented to
the grand jury the issue of whether to seek the death penalty in
the pending case. In the present case, however, the grand jury issued
an indictment charging two criminal offenses as well as issuing a request for
the death penalty. The additional pages identified as counts III and IV
of the indictment complied with the established statutory procedure.
Although each of
the four counts was drafted on preprinted grand jury forms with preliminary language
containing the word "indictment," we decline to elevate form over substance. The
four counts comprised a single indictment, with counts I and II each charging
a criminal offense and with counts III and IV separately presenting grounds for
seeking the death penalty.
In addition, as pointed out by the State, the defendant's assertion that statutory
language authorizing an indictment for an "offense" precludes a grand jury from seeking
the death penalty by indictment would likewise preclude the State from seeking the
death penalty by information. Applicable statutory provisions provide: "Any crime may
be charged by indictment or information";
"The indictment or information shall be in
writing and allege the commission of an offense . . . .";
"The indictment or information shall be a plain, concise, and definite written statement
of the essential facts constituting the offense charged."
The State was authorized
to institute this criminal prosecution by filing an information or indictment. Ind.
Code § 35-34-1-1. Our legislature could not have created a capital
sentencing procedure and yet prohibited the commencement of such proceedings.
We reject the defendant's claim that the grand jury's commencement of death penalty
proceedings in this case was invalid and a nullity.
Admission of Character Evidence
The defendant contends that a pretrial ruling by the trial court denied him
his right to a fair trial. He argues that the ruling restricted
him "from presenting his mitigation evidence in front of the jury for fear
of the State's rebuttal evidence." Amended Brief of Appellant at 27.
Before the penalty phase retrial began, the defendant filed a motion pursuant to
Indiana Evidence Rule 404 seeking disclosure of the nature of evidence of crimes,
wrongs, or acts that the State planned to present.
In its ruling
on the motion, the trial court stated: "If the defendant raises character
as an issue in his case in chief, the State will be allowed
to present relevant character evidence in rebuttal. It is the courts opinion
that discussing the defendants family history and background places the defendants character in
issue." Record at 1047. Following this ruling, the defendant filed a
motion in limine seeking to prevent the State from disclosing information regarding the
defendants alleged involvement in the killing of a man named Wick.
making its ruling, the trial court characterized its former ruling as prohibiting the
State from presenting such evidence in its case in chief and then explained:
"We are not talking about guilt or innocence here. We are
talking about the balance between the aggravating and the mitigating circumstances, and I
think that that is an appropriate line of inquiry for the State to
do." Record at 2685.
During the penalty phase retrial, the State did not attempt to present character
evidence in its case in chief or on rebuttal, nor did the defendant,
who only presented mitigation witnesses who testified regarding the firearms used in the
robbery and the injuries suffered by Officer Yaros, bolstering the defendant's argument that
any one of the defendant's accomplices might have fired the fatal shot.
After the jury was charged and began deliberations, the trial court permitted the
defendant to make a record showing the mitigation evidence he would have presented
had it not been for the court's ruling that such evidence would open
the door for the prosecutor to discuss the defendant's prior criminal history.
Summarizing the prior proceedings, the defense stated:
And then . . . my understanding is . . . that it
was the court's opinion that any evidence presented on the defendant's family background,
history or childhood would be considered character evidence, and if character evidence were
introduced in the defense case in chief, the State would be allowed to
present appropriate rebuttal character evidence, which includedand this is not in the written
record, but which included certainly this Wick homicide that weve referred to throughout
Record at 3689. The trial court acknowledged this as a fair statement
But it was basically that you opened the doorby putting character evidence in,
thus allowing themstripped of all the fancy dancing we're doing here. It
was my opinion by putting that character evidencethat kind of evidence that you
just characterized in the record, you were putting character at issue, thus allowing
the State to present rebuttal character evidence . . . [w]hich would have,
I assumewith proper foundation and all that, would have allowed this Wick situation
to come in.
Record at 3689. The defendant then presented for preservation in the record
the testimony and a twenty-nine-page report of a sociologist and the deposition of
a neuro-psychologist regarding their investigation of the defendants family and social history and
psychological test results.
The defendant now argues that the evidence he presented in his offer of
proof was evidence of history and not of character. This assertion is
not relevant, however, because the trial courts preliminary, pre-trial ruling is not a
proper issue for appellate review. Significantly, the defense voluntarily elected against presenting
this evidence to the penalty phase jury.
The trial court did not
exclude it and, based on its pre-trial rulings, would likely have admitted it.
We realize that the defendant contends that the trial court erred in
its pretrial ruling announcing that the State would be permitted to rebut such
evidence with evidence of the defendant's other crimes, wrongs, or acts. The
State never offered such evidence, presumably because of the defendant's success in its
motion in limine, and the trial court did not make a trial ruling
thereon. If the defendant had presented the evidence in question, the State
would have then had to choose whether to offer the Wick evidence.
If it did, the trial court would then have had to decide whether
to admit it. From such a ruling, the defendant could have appealed,
and, if successful, a new penalty phase trial would have resulted.
In order to preserve an error for appellate review, a party must do
more than challenge the ruling on a motion in limine.
State, 716 N.E.2d 367, 370 (Ind. 1999). Absent either a ruling admitting
evidence accompanied by a timely objection or a ruling excluding evidence accompanied by
a proper offer of proof, there is no basis for a claim of
error. Ind. Evid. Rule 103(a). The trial court's ruling on the
motion in limine did not prevent the defense from presenting mitigation evidence.
The defense was able to choose between the perceived advantages of social/psychological mitigation
evidence and the disadvantages of prior behavior evidence. The defense successfully obtained
a pretrial ruling preventing the State from presenting evidence it deemed detrimental to
the defendant's interests in the penalty phase and then made a strategic decision
not to risk admission of such excluded evidence on the State's rebuttal.
We find no error presented by these facts.
False Testimony During the Guilt Phase
The defendant contends that his conviction and sentence must be set aside because
the State knowingly used false testimony during the 1982 guilt phase that resulted
in the conviction. He claims that a representative of the State provided
information to a witness, James McGrew, who then provided identification testimony based thereon.
This Court has unequivocally condemned prosecutorial use of perjured testimony or testimony known
to be false.
Gordy v. State, 270 Ind. 379, 381, 385 N.E.2d
1145, 1146 (1979). Such conduct "invokes the highest level of appellate scrutiny"
and requires that any resulting conviction be set aside "if there is any
reasonable likelihood that the false testimony could have affected the judgment of the
During the 1996 penalty phase retrial, McGrew testified that before he took the
stand in the 1982 guilt phase trial, he informed a police officer that
he could not identify the defendant and that someone then advised him where
the defendant would be sitting in the courtroom. In the penalty phase
retrial, McGrew did not present any identification testimony, and his identification of the
defendant was not an issue.
Because consideration of many factors may be appropriate to allow for a full
and fair review of this claim, we find that the record does not
enable us to evaluate fairly this issue in these appellate proceedings. The
record of the 1982 trial is not part of the record on this
appeal, and there has been no post-conviction fact-finding relating to potentially relevant matters,
at a minimum including the nature and extent of the information McGrew had
provided to the State, the exchange that occurred between McGrew and representatives of
the State immediately preceding his 1982 testimony, McGrew's testimony during the 1982 trial,
the totality of the evidence presented in the 1982 trial, and the extent
to which this claim was available to the defendant during his prior post-conviction
In its response to this issue, the State asserts that "[e]ven if this
claim might be appropriately brought via a request to file a successive post-conviction
petition under Ind. Post-Conviction Rule 1(12), it is not properly before this Court
in this proceeding." Brief of Appellee at 10. We agree.
Adequacy of the Sentencing Order
The defendant contends that the sentencing order is defective in two respects:
(1) failing to consider, identify, articulate, and discuss mitigating circumstances; and (2) failing
to set forth the trial judge's personal conclusion that the death sentence is
appropriate. The State, in its Appellee's Brief in response to the defendant's
appeal following the penalty phase retrial and sentencing, acknowledged shortcomings in the trial
court's sentencing order and suggested that "a remand may be required in this
instance." Brief of Appellee at 12. We remanded it to the
trial court with directions to enter an amended sentencing order and directed that
the parties may thereafter file supplemental briefs. This case is now before
us on the resulting revised sentencing order.
The defendant argues that the sentencing statement "fail[s] to identify and articulate any
specific mitigating circumstances" and that this indicates a failure to consider mitigation.
Supplemental Brief of Appellant at 3. However, the defendant does not identify
any claimed mitigating evidence that was presented but not considered by the trial
court. The revised sentencing order clearly acknowledges that the defendant "presented evidence
proving the existence" of the following mitigating circumstances: (1) the defendant was
bright and his death would be a loss; (2) the defendant's neuro-psychology tests
indicated a "neurocognitive dysfunction which caused imperfect or sometimes maladaptive judgment and reasoning
which increased with stress"; (3) the defendant's difficult childhood; and (4) a psycho-social
assessment of the defendant indicated "psychological and physical abuse as a child resulting
in deficits in self-control, impulse control, insight, and development of social judgment."
Second Supplemental Record at 2. The sentencing order expressly states that the
trial court evaluated and balanced the aggravating and mitigating circumstances, that it found
that the aggravating circumstances outweighed the mitigating circumstances, and that it had considered
the jury recommendation favoring the death penalty.
The defendant cites
Harrison v. State, in which we discussed sentencing orders in
capital cases and emphasized that the trial court's statement of reasons for entering
a death sentence is important "to insure the trial court considered only proper
matters when imposing sentence, thus safeguarding against the imposition of sentences which are
arbitrary or capricious, and to enable the appellate court to determine the reasonableness
of the sentence imposed." 644 N.E.2d 1243, 1262 (Ind. 1995).
We are satisfied that in determining the sentence the trial court considered only
proper matters and was not arbitrary or capricious. Although unusually succinct, the
sentencing order identifies the mitigating factors found and the witnesses who provided the
supporting evidence. Further, the order reflects that the trial court, in reaching
its conclusion, evaluated and weighed the mitigators and aggravators and also considered the
recommendation from the jury. We decline the defendant's claim that the trial
court's sentencing statement is defective for failing to consider, identify, articulate, and discuss
The defendant also argues that the trial court failed to set forth "a
personal conclusion" as to the appropriateness of the sentence. We have emphasized
the desirability of a trial courts capital sentencing order including the trial courts
personal conclusion that the sentence is "the appropriate punishment for this offender and
Harrison, 644 N.E.2d at 1263. This criterion "make[s] clear
that the sentencing court has a separate and independent role in assessing and
weighing the aggravating and mitigating circumstances and in making the final determination whether
to impose the death penalty." Williams v. State, 669 N.E.2d 1372, 1389
(Ind. 1996). The revised sentencing statement does not separately articulate the trial
court's personal conclusion as recommended in Harrison. When a similar claim was
presented in Allen v. State, 686 N.E.2d 760 (Ind. 1997), we observed that
the essence of this issue is "whether the judge reached an independent conclusion
that a sentence of death is warranted," id. at 788. Reviewing the
sentencing order in its entirety, we found that "[t]he court's balancing of the
evidence emphatically displays its discrete, individualized sentencing." Id. at 790.
In the present case, the trial court's revised sentencing order reflects that the
judge found the two aggravating circumstances proven beyond a reasonable doubt and that
the defendant proved multiple mitigating circumstances, which the order describes in some detail.
The trial judge expressly noted that he considered the jury's recommendation, but
the revised order clearly reflects that the trial judge also personally evaluated and
balanced the aggravating and mitigating circumstances and concluded that the former outweighed the
latter. In both his initial and revised sentencing orders, the trial judge
ordered the death sentence.
We find that the revised sentencing decision reflects the trial court's "separate and
independent role in assessing and weighing the aggravating and mitigating circumstances and in
making the final determination."
Williams, 669 N.E.2d at 1389. As in
Allen, we are satisfied that the trial judge reached an independent conclusion that
a sentence of death is warranted and that the court's balancing of the
evidence demonstrates its discrete, individualized sentencing. Allen, 760 N.E.2d at 790.
Exclusion of the State's Prior Closing Arguments
The defendant contends that the trial court erroneously prevented him from presenting the
State's closing arguments from the 1982 trial during his case in chief in
the 1996 penalty phase retrial. The trial court refused the defendant's offer
to present, as a party admission, the prosecuting attorney's closing statement from the
During the retrial, both the defendant and the State presented evidence regarding the
defendant's commission of the murder that was not presented in the 1982 trial.
In the penalty phase retrial, the defendant requested that the court admit
the State's prior closing statement and argued that, at the original 1982 trial,
the State's theory was "that the execution style shot by [the defendant] was
to the upper right chest clavicle area. It was not the abdominal
wound. . . [F]rom the evidence they've presented here, . . . they're
[going to] argue to the jury that the close range shot is
now the abdominal wound." Record at 3543. The trial court refused to
admit the prior closing arguments as evidence on grounds of relevancy.
We review a trial court's evidentiary decision for an abuse of discretion and
will reverse only when the decision is clearly against the logic and effect
of the facts and circumstances.
Timberlake v. State, 690 N.E.2d 243, 256
(Ind. 1997). The defendant was not seeking to offer factual evidence from
the 1982 trial but rather the prosecutor's final argument regarding the evidence.
Even if the 1982 closing statements may be relevant to the issue of
the credibility of the State's 1996 argument, they were not relevant to the
1996 evidence in the penalty phase retrial. The mere fact that a
party earlier argued a different theory based on different evidence does not render
the argument relevant to the issues presented in the later proceeding. The
trial court did not err in refusing to admit the prosecutor's prior closing
Communications Between the Bailiff and the Jury
The defendant next claims that the trial court erred in denying his motion
to correct error based on the bailiff's allegedly improper communications with the jury
outside the defendants presence.
Hearing a knock on the inside of the door to the jury room,
the bailiff entered and learned that the jury had reached a verdict.
He ascertained that the verdict forms had been signed, but noticed several jurors
crying. The bailiff then telephoned the judge who instructed the bailiff to
re-enter the jury room, determine whether the verdict was unanimous, and inform the
jurors that they might be individually polled concerning the verdict. Because this
occurred in his absence, the defendant contends that he was deprived of his
right to be present.
To ensure the right of criminal defendants generally to be present at all
stages of a criminal proceeding, Indiana courts have often stated that when communication
between a bailiff and a jury occurs outside the defendant's presence, there is
a presumption of harm to the defendant.
Wilson v. State, 511 N.E.2d
1014, 1018 (Ind. 1987); Driver v. State, 594 N.E.2d 488, 493 (Ind. Ct.
App. 1992); Harrison v. State, 575 N.E.2d 642, 649 (Ind. Ct. App. 1991).
Reversal is not required, however, "unless harm or prejudice result[s] from the
communication." Lott v. State, 690 N.E.2d 204, 210 (Ind. 1997). See
also Wilson, 511 N.E.2d at 1018.
Here the communication occurred after the jury had completed deliberations and after the
verdict forms were signed. There is no indication that the communication between
the bailiff and the jury resulted in any harm or prejudice to the
defendant. The trial court did not err in denying the motion to
Non-disclosure of Exculpatory Evidence
The defendant contends that the death sentence should be reversed because the State
failed to disclose exculpatory evidence to the defendant as required by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The
defendants argument emphasizes his claim of continuous Brady violations, but he only identifies
one incident that has not already been resolved or remedied by this Court
by our 1993 remand
or thereafter by the disclosures ordered by the post-conviction
The defendant claims that the State failed to produce information regarding certain firearm
tests, referred to as "test fires." At the 1996 sentencing hearing, an
officer assigned to the Lake County Police Crime Lab testified regarding a comparison
examination he conducted and stated that he had retrieved the original test fires
generated as a result of the testing and examination conducted in 1981.
In the intervening years, the State had searched for, but had not found,
the test fires. The defense asserts that, because the State failed to
locate and produce the original test fires, his penalty phase retrial counsel "did
not believe that a comparison was possible" and that, "had defense counsel been
aware of the ability to do comparisons, [his ballistic expert] could have provided
a complete examination of the evidence." Amended Brief of Appellant at 38.
The defendant does not, however, contend or demonstrate that his expert's examination would
have resulted in favorable evidence. Reversal on grounds of a
requires the defendant to establish: (1) that the prosecutor suppressed evidence; (2)
that the evidence was favorable to the defense; and (3) that the suppressed
evidence was material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97,
10 L.Ed.2d at 218. We need not address whether the State's failure
to locate and provide the original test fires amounts to suppression because the
defendant has not shown that the evidence was material and favorable to the
defense. In addition, the materiality element under Brady requires the defendant to
establish a reasonable probability that the result of the proceeding would be different
if the State had disclosed this evidence. Kyles v. Whitley, 514 U.S.
419, 433-34, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490, 505-06 (1995).
The defendant is not entitled to reversal on his claim that the State
failed to disclose exculpatory evidence.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur. BOEHM, J., dissents with
ATTORNEYS FOR APPELLANT
Kevin L. Likes
Michelle Fennessy Kraus
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
ZOLO AGONA AZANIA, )
f/k/a RUFUS LEE AVERHART, )
Appellant (Defendant Below ), )
) Indiana Supreme Court
v. ) Cause No. 02S00-8808-PC-751
STATE OF INDIANA, )
Appellee (Plaintiff Below ). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth Scheibenberger, Judge
Cause No. CR-81-401
ON DIRECT APPEAL
June 6, 2000
BOEHM, Justice, dissenting.
I disagree with the majoritys resolution of the Admission of Character Evidence issue.
The majority holds that the issue was not preserved because Azania did
not object at the proper time at trial. I believe that Azanias
raising of the issue in a pretrial motion, renewing the issue again on
the first day of trial, and making of an offer of proof at
trial is sufficient to preserve the issue for our review. I would
reverse the judgment of the trial court and order a new penalty phase.
On July 21, 1995, Azania filed a Motion for Disclosure of Rule 404
Evidence. After a hearing the trial court entered the following order on
December 18: If the defendant raises character as an issue in his
case in chief, the State will be allowed to present relevant character evidence
in rebuttal. It is the Courts opinion that discussing the defendants family
history and background places the defendants character in issue. On February 14,
1996, Azania filed a Motion in Limine requesting an order preventing the State
from presenting evidence relating to another homicide that had occurred several years earlier.
After a jury had been selected but before the State began its
presentation of evidence, the trial court heard argument on the motion. At
that hearing Azania described the nature of the mitigating evidence he planned to
introduce. The State responded that if Azania chose to offer evidence such
as testimony of his disturbed childhood, the State would introduce rebuttal evidence that
Azania had killed another man several years before the murder of Officer Yaros.
The trial court ruled that the State could not present evidence of
a prior killing in its case-in-chief. However, if Azania submitted the planned
evidence of his family history and background the prior killing evidence would be
fair game for rebuttal. Faced with this ruling Azania chose to omit
the evidence he had proposed. After the jury began its deliberations the
trial court permitted Azania to make a formal offer of proof at which
he submitted testimony and a twenty-nine page report about his family history and
background and, by agreement with the State, a deposition of his mental health
I. Preservation of the Error
The majority holds that, because the trial court made only a preliminary ruling
on the admissibility of the evidence of a prior homicide, the issue was
not preserved for appellate review. It reasons that Azania should have presented
his mitigating evidence, allowed the State the opportunity to choose whether to offer
the evidence of a prior homicide, and then allowed the trial court to
decide whether to admit it. Only from such a ruling could Azania
The only case cited by the majority for this requirement is
State, 716 N.E.2d 367, 370 (Ind. 1999). That case stands for the
general principle that a party must do more than challenge a ruling on
a motion in limine in order to preserve an issue for appellate review.
This Court has given two fundamental reasons for the requirement that a
party renew a ruling on a pretrial motion in limine at trial and
make an offer of proof of the excluded evidence in order to preserve
the error. First, an objection at trial gives the trial court the
opportunity to make a final determination of the admissibility of evidence in the
context in which it is offered. See Clausen v. State, 622 N.E.2d
925, 928 (Ind. 1993). Second, the offer of proof establishes a record
on which an appellate court can assess the value of the excluded evidence
and the prejudice resulting from its exclusion. See Taylor v. State, 710
N.E.2d 921, 923 (Ind. 1999) (quoting 12 Robert Lowell Miller, Jr., Indiana Practice
§ 103.113, at 55 (2d ed. 1995)). In the typical case,
these requirements impose a minimal burden on the objecting party. Normally
a party who has incurred an adverse ruling on its motion in limine
faces no adverse consequences from renewing the issue at trial.
be done outside the jurys presence to avoid any appearance of an obdurate
defense, and at worst, the party will get the same ruling.
Although Azania made an offer of proof at trial after raising the issue
both in a pretrial motion and again on the first day of trial,
the majority finds any claim of error waived because the objection came too
early. I see no reason why Azania should have been required to
raise the issue a third time with the trial court. The important
goals furthered by requiring an objection at trial and offer of proof were
satisfied in this case. The trial court was given an opportunity to
reconsider its pretrial ruling on the first day of trial. It knew
the nature of both Azanias mitigating evidence and the States rebuttal evidence at
that time. Azania made an offer of proof on which this Court
can evaluate the prejudice resulting from the trial courts ruling. Finally, unlike
the typical case in which renewing an adverse ruling on a motion in
limine at trial poses no adverse consequences, Azania had a great deal to
lose by waiting to object until the State offered the evidence of a
prior homicide in rebuttal. It is clear that defense counsel viewed this
evidence as very damaging to Azanias case.
Confronted with the option of
either submitting mitigating evidence that would open the door to devastating rebuttal evidence
or submitting no childhood or background evidence at all, Azania reasonably chose the
I see nothing to be gained by the majoritys requirement that Azania wait
to object until after the State sought to admit the prior homicide evidence
in rebuttal. The trial court had been apprised both before and at trial
of the relevant evidence and arguments on the issue. The possibility that
it would have changed its ruling when presented with the issue for a
third time seems remote at best, and the purposes of the
were, in my view, all fully served. In short, I believe Azanias
raising of the issue before trial, renewal of the issue at the beginning
of trial, and making of an offer of proof is sufficient to preserve
the issue for this Courts review.
II. The Merits of Azanias Claim
Consistent with the United States Supreme Courts holding in Lockett v. Ohio, 438
U.S. 586, 604 (1978), Indiana Code § 35-50-2-9(c)(8) allows capitally charged defendants to
present evidence in a penalty phase that supports every conceivable mitigator. Minnick
v. State, 698 N.E.2d 745, 761 (Ind. 1998), cert. denied, 120 S. Ct.
501 (1999). Azania sought to submit evidence regarding his childhood, family background,
and mental capabilities. A licensed social worker had prepared a detailed social
history that included evidence of Azanias difficult childhood, namely, that he grew up
poor in a large family that initially lived in a housing project.
At the age of nine Azania witnessed his father die of a heart
attack. His family then moved into a new house with insurance proceeds,
but his mother soon went to work in Chicago, where she would stay
from Monday morning through Friday, leaving Azania and his younger siblings at home
without adult supervision. When Azanias mother was at home, she sometimes disciplined
the children by whipping them with belts and extension cords. Azania also
sought to offer evidence from Dr. Michael Gelbort, who conducted a series of
tests on Azania and concluded that Azania had problems with concentration, juggling cognitive
information, and working at a normal rate of speed. Dr. Gelbort categorized
Azania in the mild, moderately impaired range.
Although it is clear that this evidence was admissible pursuant to the statute
Lockett, Azania ultimately decided not to offer it solely because of the
trial courts ruling that it would open the door to rebuttal evidence of
a prior homicide. The State contended at trial that evidence of the
prior homicide was proper to rebut whatever character evidence [Azania] put forth to
show that hes such a great guy.
It is well settled that [t]he State may properly introduce rebuttal evidence tending
to disprove mitigating circumstances shown by defendants evidence.
Stevens v. State, 691
N.E.2d 412, 435 (Ind. 1997) (quoting Fleenor v. State, 622 N.E.2d 140, 149
(Ind. 1993)). When the accused offers evidence of her own character, she
opens the door to the subject of her character for the trait placed
in issue. Brown v. State, 577 N.E.2d 221, 232 (Ind. 1991).
Although the scope of rebuttal evidence lies within the trial courts discretion, see
id., it is clear under these authorities that the rebuttal evidence must pertain
to the specific mitigating evidence submitted by the defendant.
Here, Azania sought to submit evidence of a difficult childhood and family background
as well as continuing mental impairments. In my view, this is not
character evidence. Rather, it is presented as evidence of the sources of
a flawed character. Whether that should or should not be given weight
is for the jury to consider. The State would have been entitled
to present evidence rebutting the proffered evidence. But this does not open
the door to evidence dealing with other alleged crimes or bad acts.
None of the proffered evidence suggests that Azania was nonviolent, had no criminal
history, or was otherwise a great guy. Accordingly, under these circumstances evidence
of a prior homicide is not proper rebuttal.
Not every error in the admission or exclusion of evidence is grounds for
reversal. An error will be found harmless if its probable impact on
the jury, in light of all the evidence in the case, is sufficiently
minor that it did not affect the substantial rights of a party.
Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995).
In a death penalty case in which the jury unanimously recommended death,
I believe the required standard for prejudice is whether there is a reasonable
probability that the excluded mitigating evidence would have convinced at least one juror
not to recommend death.
In this case the State alleged two aggravating circumstances: (1) intentionally killing while
committing a robbery and (2) killing a law enforcement officer in the course
See Ind. Code § 35-50-2-9(b)(1)&(6). The jury was properly
instructed that it could recommend death only if it found that the statutory
aggravating circumstances outweighed any mitigating circumstances. See id. § 35-50-2-9(k). The jury
was specifically instructed to consider the following mitigating circumstances: The defendant was
an accomplice in a murder committed by another person and the defendants participation
was relatively minor; or two, any other circumstances appropriate for your consideration.
The evidence presented in the offer of proof is not especially strong in
comparison to the available but unpresented evidence in cases in which this Court
has granted a new penalty phase based on ineffective assistance of counsel.
See, e.g., Rondon v. State, 711 N.E.2d 506, 522 (Ind. 1999); Burris v.
State, 558 N.E.2d 1067, 1075-76 (Ind. 1990). Nonetheless, jurors in a death
penalty case have widely differing views on the significance of mitigating evidence, and
it is difficult if not impossible to know what evidence might sway an
individual juror to vote against a recommendation of death. I believe the
trial courts ruling significantly hampered Azanias ability to argue that the mitigating circumstances
outweighed the aggravating ones. The excluded evidence was in no way cumulative.
Indeed, because of the trial courts ruling, Azania was left to argue
as mitigation only that his co-defendants had not been sentenced to death and
that, in light of the forensic evidence, he may not have fired the
The United States Supreme Court has observed that the sentence imposed at the
penalty stage should reflect a reasoned moral response to the defendants background, character,
Penry v. Lynaugh, 492 U.S. 302, 319 (1989) (quoting California
v. Brown, 479 U.S. 538, 545 (1987) (OConnor, J., concurring) (emphasis omitted)).
Although the jury heard a great deal about Azanias crime, the trial courts
ruling prevented it from hearing anything about Azanias background. Although many or
even most of the jurors may have found the proffered mitigating evidence insignificant
in comparison to the aggravating circumstances, I cannot exclude the possibility that some
would not have arrived at that conclusion. Cf. Smith v. State, 547
N.E.2d 817, 822 (Ind. 1989) (In the absence of any evidence of mitigating
circumstances . . . or of evidence to rebut the existence of the
charged aggravating factors, a death sentence is a foregone conclusion.) Accordingly, the
death sentence should be vacated and this case should be remanded for a
new penalty phase in which a jury may receive the claimed mitigating evidence
of Azanias background without hearing the prior homicide evidence.
Ind. Code § 35-42-1-1(1).
Ind. Code § 35-42-1-1(2).
The State is authorized to seek a death sentence "by alleging, on
a page separate from the rest of the charging instrument, the existence of
at least one of the aggravating circumstances" listed in the statute. Ind.
Code § 35-50-2-9(a).
Ind. Code § 35-34-1-1.
Ind. Code § 35-34-1-2.
Ind. Code § 35-34-1-2(d).
The rule provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.
It may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident,
upon request by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial . . . of the general nature
of any such evidence it intends to introduce at trial.
Ind. Evid. R. 404(b) (emphasis added).
Although neither party refers us to any documentation of this prior conviction,
a review of the argument before the trial court on this issue suggests
that the defendant was convicted of voluntary manslaughter and served a portion of
a sentence before the conviction was overturned on post-conviction review. At the
time of the sentencing phase we consider here, the State had not pursued
the voluntary manslaughter case any further.
This evidence was presented again and admitted during the sentencing hearing before
the trial judge.
The defendant argues that several omissions in the State's disclosures require reversal.
We previously addressed many of these concerns in our consideration of the
defendant's appeal from the denial of his petition for post-conviction relief. In
the course of that appeal, we suspended consideration of the appeal and ordered
that the post-conviction court conduct an in camera review of the police and
prosecution files. Upon review of the resulting findings of the post-conviction court,
we found that the defendant was not entitled to a new guilt phase
trial because the evidence would not have affected the outcome in light of
the State's use of a vicarious liability theory. Averhart, 614 N.E.2d at
928. We did, however, order a new penalty phase trial and sentencing
proceeding, finding that, while the jury need not have determined which defendant fired
the fatal shot in order to find guilt, the penalty phase jury needed
to determine whether the defendant was the person who fired the fatal shot.
Id. at 931. Thus, we found that the failure to release
to the defendant the inconclusive gunshot residue tests undermined confidence in the jury's
recommendation. Id. Our remand for treatment of those claims remedied any
harm to the defendant by the suppression of that evidence, and further review
of those claims is barred by res judicata.
Although Azania pleaded guilty to voluntary manslaughter in that case, the conviction
was set aside pursuant to a petition for postconviction relief and the State
did not pursue the case any further.
Miller, at a pretrial motion in limine hearing the trial court
ruled the defendant's proffered evidence was inadmissible. This ruling was erroneous but
the error was held to have been waived on appeal because no offer
of proof was made at trial. This Court observed, "To raise the
question of error, the evidence must be offered at trial to give the
trial court the opportunity to rule on its admissibility at that time."
Miller, 716 N.E.2d at 370 (quoting Tyra v. State, 506 N.E.2d 1100, 1103
(Ind. 1987)); see also Ind. Evidence R. 103(a) (requiring a timely objection and
offer of proof at trial in order to preserve error).
Vehorn v. State, 717 N.E.2d 869, 872 (Ind. 1999), this Court
repeated the general principle of non-preservation of errors raised in a pretrial motion
in limine but not renewed at trial. However, we noted that "there
are occasional exceptions to this general rule." Id. at 872-73. In
that case, the exception was the trial court's assurance "even if you don't
object, the Court will find . . . that your objections to this
type of evidence have been timely made." Id. at 873.
Counsel described the evidence as "[t]he most prejudicial information that this jury"
could hear. "If [it] comes in, it's over."
Footnote: The State makes no argument on appeal about the merits of the
trial court's ruling. It simply asserts that the issue is not preserved
without making an alternative argument, as it often does, that even if preserved
the issue fails on its merits.
Stevens, the defendant elicited penalty phase testimony regarding his nonviolent and
law-abiding character. 691 N.E.2d at 435. On cross-examination, the State then
asked one of Stevens' expert witnesses about Stevens' prior molestation of children, Stevens'
alleged involvement in another killing, and the expert's opinion regarding Stevens' future dangerousness.
Although this Court found any claim of error waived on appeal because
defense counsel did not object to this cross-examination, we observed that counsel likely
did not object because the cross-examination testimony was relevant to countering Stevens' mitigating
evidence and that Stevens had "opened the door" to this testimony. See
id. Similarly, in response to the defendant's mitigating evidence of a general
lack of aggressiveness, domination by another person, and borderline retardation in Brown, this
Court held that it was proper rebuttal for the State to submit a
videotape from another trial in which the defendant testified that she had willingly
and independently murdered a woman by beating her with a vice grip, pop
bottle, candy dish, and crowbar. See 577 N.E.2d at 231-32.