ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
David P. Freund Janet L. Parsanko
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
AMY BOSTICK, )
Defendant-Appellant, )
)
v. ) 33S00-9911-CR-651
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________
APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-9807-CF-20
________________________________________________
On Direct Appeal
August 19, 2002
DICKSON, Justice
Following the death of her three children, ages one, two, and four, who
were locked in their room during a house fire, the defendant, Amy Bostick,
was charged with and convicted of three counts of murder and sentenced to
life without parole for the three counts of murder. She was also
convicted on a charge of Arson, but the trial court did not sentence
her on this count because of the Double Jeopardy Clause of the Indiana
Constitution. Upon her additional conviction of sexual misconduct with a minor,
See footnote the
defendant was given a concurrent sentence of fifteen years. In this direct
appeal, the defendant raises three issues: (1) admission of her statements to law
enforcement officers; (2) refusal of her tendered instruction on reckless homicide; and (3)
imposing three sentences to life without parole as manifestly unreasonable.
1. Admission of Statements to Police
As her first argument, the defendant contends that the trial court erred by
failing to exclude her July 28, 1998, statement to law enforcement officers on
grounds that its probative value was substantially outweighed by its danger of unfair
prejudice, confusion of issues, and of misleading the jury. In the course
of making this argument, the defendant also claims that the exhibit contained interrogation
that violated Ind.Evidence Rule 704(b), which prohibits a witness from testifying to opinions
concerning guilt or innocence in a criminal case. The State argues that
she has waived her challenges to the admission of this statement for failure
to object at trial.
Four fire investigators testified that the fire that took the lives of the
defendant's children was deliberately set by pouring and igniting flammable liquid in the
closet of the children's bedroom and along the wall separating the bedroom from
an adjacent room. As the fire consumed the children's bedroom, the children
were locked inside. The doors to the house were also locked.
The only other people in the house were the defendant and her teen-aged
boyfriend. The defendant woke the boyfriend after the fire started. The
defendant gave five statements to law enforcement authorities regarding the fire: March
16th (the night of the fire) at 2:54 a.m. and 9:48 a.m., March
24th, July 24th and July 28th.
At trial, when exhibits consisting of the videotape and transcript of the final
July 28 interview with the defendant were offered in evidence, the defendant objected,
referring solely to "the reasons in the written motion filed with the Court
and heard and determined by the Court previously." Record at 3515.
The trial court overruled the defendant's objection, stating that it "will rule as
it did before." Id.
Approximately six weeks earlier, the defendant had filed a motion to exclude evidence
of her interview by police on July 28, 1998,
See footnote following her polygraph examination,
and after she was advised that she had failed the examination. The
defendant's motion acknowledged that her statements during the interview were knowingly and voluntarily
given, but urged that the statement should be excluded because: (1) it was
"objectionable and tainted" due to the repeated references to and/or inferences based upon
the polygraph results; (2) it is irrelevant and violates Indiana Evidence Rule 401,
and that "the probative value of said evidence is substantially outweighed by the
danger of unfair prejudice;" and (3) even if redacted, the resulting statement "lacks
evidentiary value other than accusation by the interrogators" and the defendant's repeated denial
of memory regarding the incident and her "apparent acceptance of the polygraph results."
Record at 141. Before ruling on the motion, the trial court
heard further argument of counsel and twice reviewed the videotaped statement along with
its transcription in two different formats. Record at 270. The trial court
understood the defendant to claim that the probative value of the evidence in
the statement was outweighed by the danger of unfair prejudice arising from the
defendant's responses being directly affected by the polygraph results, and "the potential of
confusion of issues could exist in that statement,
without reference to the polygraph,
could confuse the jury." Record at 271 (emphasis added). Concluding that
it was not required to exclude a properly redacted statement, the trial court
denied the defendant's motion to exclude the statement based on relevance and unfair
prejudice, ordering forty-five redactions and corrections. Record at 272-79.
We acknowledge that, as to the redacted statement, the objections expressed in the
defendant's motion were less than clear, and that her argument on appeal is
slightly different from the one made in the trial proceedings. However, her
motion did direct the trial court's attention to the requirement in Evid.R. 403
that relevant evidence "may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the
jury . . . ." And the trial court did express consideration
of these issues when it ordered the redaction of numerous parts of the
statement. Under the circumstances presented, we believe that the defendant's appellate claim
was sufficiently presented to the trial court to obviate the purpose of procedural
default on this issue. Further, such grounds were preserved for appeal when
the defendant made a contemporaneous objection at trial expressly referring to the arguments
in her pre-trial motion. Record at 3515. The defendant's appellate claim
that Ind.Evid.R. 704(b)
See footnote was violated, however, was not presented at trial or in
the defendant's pre-trial motion to exclude that was referenced in her trial objection,
and thus procedural default applies to prevent our consideration of this claim.
See Brown v. State, 728 N.E.2d 876, 878 (Ind. 1998).
With respect to her asserted violation of Ind.Evid.R. 403, the defendant now argues
that any probative value of her July 1998 interview was substantially outweighed by
the danger of unfair prejudice from allowing the jury to hear her interrogators
"repeatedly assert their beliefs and opinions that there was absolutely no doubt that
[the defendant] had set the fire that killed her children." Br. of
Defendant-Appellant at 34.
This interview occurred immediately after the defendant had taken a polygraph examination and
had been told that she had lied when asked whether she had set
the fire. The defendant contends that the interrogating officers then used an
"interrogation technique of telling [her] over-and-over again that they already knew that she
did it, and that because they knew she did it, she did remember
what she did and why she did it." Br. of Defendant-Appellant at 29.
Among the examples presented by the defendant's brief and appendix are the
following:
I want you to help me explain why this happened, why you did
this. Not if you did it Amy. Why you did it,
cause that's what's important. [Record at 3519].
Amy, don't tell me you didn't do it. That's not a factor
at this time, okay [Record at 3519].
Listen, Amy, everyone's gonna know that you did this and that's not a
question, that is not a question we're here to discuss at this time.
I can tell you absolutely without any, any reservation whatsoever that if
you did it is not a question. [Record at 3519].
You know you set that fire and you know exactly how you set
that fire. [Record at 3521].
Yeah, you do know you set it Amy. The only question is
why you set it . . . [Record at 3522].
Don't give me I don't know Amy. You know as well as
you know your name is Amy that you got up out of bed
and set the fire. I want you to tell me how you
did it [Record at 3523].
No, that's not the truth Amy. You know that you set that
fire [Record at 3524].
We know the truth Amy and we know you did it [Record at
3526].
No, Amy, you set that fire. You know it and I know
it [Record at 3527].
Oh I believe absolutely no doubt that you did it. That's not
a question. The only question we have to explain to people is
why [Record at 3528].
We know for a fact that Amy set the fire and I know
what's going on in Amy's life [Record at 3540].
Okay, well we all know you did it. . . Okay, well I
think we all know it, and I think you know it too [Record
at 3573].
The interview does not contain any explicit admission of guilt by the defendant.
Throughout the entire interview, despite the interrogators' insistence that she started the
fire, the defendant maintained that she had no recollection of setting the fire
that killed her children. At one point, during her interrogators' inquires regarding
why she committed the crime, the questioner asserted to her that "you did
it, that you wanted to get rid of the kids, so you could
have Jacob [her boyfriend]." Record at 3568. She replied, "I don't
even remember doing it. But if there was a reason for me
to do it, Jacob would not be the one." Id. A
few questions later, responding to further questioning regarding why, the defendant said: "Fine.
I can't remember if I did it or not, but one good
reason why. Jason [her estranged husband]." Record at 3570. A
few questions later, the questioner again asserted, ''Okay, well we all know you
did it" and asked, "Now the reason you just told us is what
I want to make sure is the reason. Was that the reason?
Was that the reason that you did it?" Record at 3573.
The defendant responded:
If that, if there was a reason, that would be it. Jason
pushed me over my limit. I should have killed him is what
I should have done. I should have killed Jason when I had
the chance.
Id.
Despite extensive further intensive interrogation, the defendant consistently maintained that she did not
remember setting the fire. For example, she stated: "And I know why,
okay, but my problem is that I can't remember doing it, okay?
And I don't want to sit here and admit that and say that
I did do it, because I don't remember doing it, okay?" Record
at 3580. Later, when asked to "admit the truth," she said: "Okay,
so what you want me to do is sit here and say I
killed my children because Jason pushed me over the edge." Record at
3583. When her interrogator replied: "Is that the truth?" she responded:
"If I did kill my children then yes, that would be the truth."
Record at 3583. She then stated:
I don't remember killing my children so I have to assume that everything
else is right and that for some reason I just have a block
in my head to where I can't see past that and so I
did kill my children and Jason pushed me over the edge and I
wish I would have killed that son of a bitch first before he
did push me over the edge."
Id.
It is not surprising that, in ruling on the defendant's pre-trial motion to
exclude the statement, the trial court stated:
The Court notes from reviewing the statement that the Defendant repeatedly indicates that
she has no recollection of doing anything which would have started the fire
that caused the deaths. The responses by the Defendant which might be
characterized by the State as acknowledging guilt can be judged by the fact
finders, along with the rest of the evidence, in determining whether she is
truly acknowledging guilt or acquiescing in the conclusions of the questioners.
Record at 272.
The evaluation of whether the probative value of a particular item of evidence
is substantially outweighed by the danger of unfair prejudice is a discretionary task
best performed by the trial court. Dunlap v. State, 761 N.E.2d 837,
842 (Ind. 2002). In our view, the interrogators' accusations and the defendant's
responses have little probative value in establishing her guilt. Likewise, we conclude
that the repeated accusations, in the context of the entire statement, did not
create a substantial risk of unfair prejudice. We are not persuaded that
the trial court abused its discretion in admitting the redacted exhibits.
Before concluding Argument I in the Brief of Appellant-Defendant, the defendant additionally claims
that it was error to admit, individually and collectively, four video and audio
recordings and transcripts of her interrogations, including the one taken on July 28.
Implicitly acknowledging that this claim was not presented to the trial court,
she asserts that it constitutes fundamental error, thereby avoiding procedural default. To
constitute fundamental error, the error "'must constitute a blatant violation of basic principles,
the harm or potential for harm must be substantial, and the resulting error
must deny the defendant fundamental due process.'" Etienne v. State, 716 N.E.2d
457, 462 (Ind. 1999) (quoting Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987));
see also Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)(defining fundamental error
as error "so prejudicial to the rights of the defendant as to make
a fair trial impossible").
The principal thrust of her claims with respect to the other statements is
similar to the defendant's claim as to her July 28 statement, discussed and
rejected above. She argues: "Each one of the interrogations is individually permeated
with the same type of inadmissible statements of belief in Amy's guilt by
the various interrogators that have been discussed in detail concerning the July 28
interrogation." Br. of Defendant-Appellant at 41. The defendant highlights eleven portions
of her statements that she contends are inadmissible hearsay. Considering the consistent
and obvious use of the same interrogation technique, by challenging the defendant with
assertions of her guilt, it is clear that the interrogators' utterances "were not
assertions of fact, but more in the nature of statements designed to elicit
a response." Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999).
Regardless whether each statement is considered individually or whether all the statements are
considered collectively, we decline to find fundamental error. Therefore applying procedural default,
we decline to give any further consideration to these claims.
2. Failure to Give Reckless Homicide Instruction
The defendant next claims that the trial court erred when it refused to
give her tendered instructions on reckless homicide. She argues that reckless homicide
is an inherently included offense of murder, and that there is a serious
dispute in the evidence regarding whether the defendant acted with a knowing or
reckless mens rea.
When a defendant requests an instruction covering a lesser-included offense, a trial court
applies the three-part analysis set forth in Wright v. State, 658 N.E.2d 563,
566-67 (Ind. 1995). The first two parts require the trial court to
determine whether the offense is either inherently or factually included in the charged
offense. Id. If so, the trial court must determine whether there
is a serious evidentiary dispute regarding any element that distinguishes the two offenses.
Id. at 567; see also Brown v. State, 703 N.E.2d 1010, 1019
(Ind. 1998). If, in light of such a dispute, "'a jury could
conclude that the lesser offense was committed but not the greater, then it
is reversible error for a trial court not to give an instruction, when
requested, on the inherently or factually included lesser offense.'" Brown, 703 N.E.2d
at 1019 (quoting Wright, 658 N.E.2d at 567). When a trial court
has made an express finding that there is no serious evidentiary dispute, its
ruling is reviewed for abuse of discretion. Brown, 703 N.E.2d at 1020.
The defendant asserts, and the State agrees, that reckless homicide is an inherently
lesser-included offense of murder. Only the level of culpability required distinguishes the
crimes of reckless homicide and murder. As charged in this case, a
conviction for murder requires that the defendant had a "knowing" level of culpability,
i.e., that the defendant was aware of the high probability that her conduct
would result in the death of another when she engaged in the activity.
Ind.Code §35-41-2-2(b); Ind.Code § 35-42-1-1. Reckless homicide, however, requires a "reckless"
level of culpability, i.e., that the defendant "engage[d] in the conduct in plain,
conscious, and unjustifiable disregard of harm that might result and the disregard involves
a substantial deviation from acceptable standards of conduct." Ind.Code § 35-41-2-2(c); Ind.Code
§ 35-42-1-1. In ruling upon the defendant's tendered instructions on reckless homicide,
the trial court expressly found no serious evidentiary dispute. Record at 3851-52.
Although not presented to the trial court, the defendant argues on appeal that
"there is nothing in what [the defendant told the police investigators] that negates
the possibility that she started the fire recklessly." Br. of Defendant-Appellant at
52. The defense argues:
Nothing she said would preclude a jury finding that she started the fire
with the intent of getting [her husband] (who had threatened just the week
before to burn the house down) in trouble; getting the insurance money from
the house being burned up to solve her financial problems; and that she
and [her boyfriend] would be looked upon as heroes for saving the kids
from the fire that [her husband] started, but the fire got out-of-hand too
quickly.
Id.
We decline to infer the existence of a serious evidentiary dispute based on
speculation from the absence of evidence. The undisputed evidence at trial was
that flammable liquid was poured and ignited around the bedroom in which the
children had been locked. The trial court did not abuse its discretion.
There was no serious evidentiary dispute that these actions were done with
an awareness of the high probability that the actions would result in the
death of the children. See Ind.Code § 35-41-2-2(b).
3. Life without Parole Sentence
For each murder of her three children, ages 1, 2, and 4, the
defendant was sentenced to life without parole. Alleging that her sentence is
manifestly unreasonable, the defendant seeks our review and revision of the sentence pursuant
to Ind. Appellate Rule 17(B).
See footnote We do not reach this issue because
of the relief required by the recent intervening decision of the United States
Supreme Court.
See Ring v. Arizona, --- U.S. ---, 122 S.Ct. 2428,
--- L.Ed.2d --- (2002).
The State in this case sought a sentence of life without parole for
each murder count pursuant to Ind. Code § 35-50-2-9, based on the qualifying
aggravating circumstance that each victim was under the age of twelve. See
Ind.Code § 35-50-2-9(b)(12). The jury during the sentencing phase was unable to
reach a unanimous recommendation, and thus there was no jury determination finding the
qualifying aggravating circumstances beyond a reasonable doubt. The judge then found the
required aggravating circumstances proved beyond a reasonable doubt and sentenced the defendant to
three sentences of life without parole.
The United States Supreme Court, however, has since determined that the Sixth Amendment
to the U.S. Constitution requires that "any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S.
466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000). Ring
v. Arizona, made it clear that Apprendi applies to capital sentencing schemes.
--- U.S. at ---, 122 S.Ct. at 2443, --- L.Ed.2d at ---.
Contrary to Apprendi and Ring, the defendant’s sentences to life without parole pursuant
to Ind. Code § 35-50-2-9, were based on facts extending the sentence beyond
the maximum authorized by the jury’s verdict finding her guilty of murder.
Because of the absence of a jury determination that qualifying aggravating circumstances were
proven beyond a reasonable doubt, we must therefore vacate the trial court’s sentence
of life without parole.
Upon remand for resentencing, unless otherwise directed by an appellate court, a trial
court may order a new sentencing hearing,
See footnote may order additional briefing and then
issue a new order, or may issue a new sentencing order without further
proceedings.
O’Connell v. State, 742 N.E.2d 943, 952-53 (Ind. 2001). In
the present case, if the State elects to dismiss its request for sentencing
to life without parole, the trial court may proceed accordingly and resentence the
defendant to a term of years as authorized by the murder statute, Ind.
Code § 35-50-2-3(a). If the State proceeds with its life without parole
sentencing request, the trial court shall convene a new penalty phase jury and
conduct further proceedings pursuant to Ind. Code § 35-50-2-9.
Conclusion
We affirm the defendant's convictions, we vacate the sentences of life without parole,
and we remand this case to the trial court for further proceedings consistent
with this opinion.
SULLIVAN, Justice, dissenting.
I
I respectfully dissent from the majority's conclusion that the probative value of defendant's
July 28 interview by police outweighed its prejudicial effect. The majority sets
forth in its opinion twelve explicit assertions of the fact of defendant's guilt
made by the police during the interview. In Smith vs. State, 721
N.E.2d 213, 216 (Ind. 1999), we held that two such assertions of fact
made by a police detective during a similar interview constituted error. Here,
the error seems more severe than in Smith. In this regard, I
concur in Justice Boehm’s dissent.
II
I agree with the majority that Ring v. Arizona, 122 S.Ct.2428 (2002), renders
Bostick's sentence unconstitutional. I do not agree, however, that life without parole
is an option on remand.
After declaring Bostick's sentence unconstitutional under Ring, the majority opinion says, "If the
State proceeds with its life without parole sentencing request, the trial court shall
convene a new penalty phase jury and conduct further proceedings pursuant to Ind.
Code § 35-50-2-9." But the jury in Bostick’s case was unable to
agree on a sentencing recommendation. Indiana Code § 35-50-2-9 – the statute
which sets forth the procedure to be followed in cases in which sentences
of death and life without parole are sought – explicitly provides that if
the jury is unable to reach a unanimous recommendation, “the court shall discharge
the jury and proceed as if the hearing had been to the court
alone.” Id., § 35-50-2-9(f). Thus there is no statutory authority to
convene a new penalty phase jury once the original jury has been unable
to reach a recommendation.
Unlike O’Connell v. State, 742 N.E.2d 943 (Ind. 2001), this is not a
situation where there was trial court error in imposing sentence. Rather, the
statutory scheme pursuant to which sentencing was imposed violated the Sixth Amendment in
this circumstance. On remand, the trial court must both follow the statute
(which does not provide for a new penalty phase jury in this circumstance)
and follow the Constitution (which, as interpreted by Ring, does not permit the
imposition of life without parole in this circumstance).
BOEHM, Justice, dissenting.
I agree with Justice Sullivan that the transcript of the July 28 interview
was erroneously admitted into evidence. In my view, the interrogating officers’ statements
were inadmissible under Evidence Rule 704(b) and therefore the interview was inadmissible under
Evidence Rule 403.
In this several hour session, Bostick consistently denied any recollection of setting the
fire. The probative value of the interview, if any, is found in
Bostick’s statement that if she did commit the crime, it was motivated by
animosity towards her husband. The interview contains many statements by the interrogating
officers that “we know” Bostick was guilty of the crime. These were
inadmissible under Evidence Rule 704(b) as opinions as to guilt. In my
view, the minimal probative value of Bostick’s admissible statements does not outweigh the
prejudicial effect of these statements, even giving substantial deference to the trial court’s
discretion on that issue. If Bostick’s response had been disentangled from the
offending statements, presumably they could have been admitted. But that was not
done and accordingly, the interview should have been excluded under Rule 403.
The majority’s rationale that the interrogators’ statements were simply questions in declarative form
does not persuade me. The interrogation in Smith v. State, 721 N.E.2d
213, 216 (Ind. 1999) cited by the majority as an example of an
acceptable statement designed to elicit a response was:
Q: Well, you know, if we . . . anybody we brought
in here who would say in your gut who do you think might
have done this . . .
A: Um-Hum. They would probably said me.
Q: Omond. How does it feel to be, have that kind
of reputation? Everybody wants you.
A: Everybody! That's messing me up.
That is a far cry from the repeated exchanges between Bostick and her
interrogators quoted by the majority. Here the interrogators placed their opinions as
to Bostick’s guilt before the jury, reinforced by their claim that they “knew”
Bostick was guilty. This technique wholly eviscerates Rule 704(b), and does it
in a mode that is more pernicious than permitting a witness to testify
in court as to guilt because the interrogator is not subject to cross
examination as to the source of this claimed “knowledge.”
When Bostick objected to the admission of the videotape and transcript of the
July 28 police interview during the trial, she did so for the reasons
stated in her written motion to exclude evidence, previously filed with the trial
court. These included the argument that even after redaction of the polygraph
references, the resulting statements lacked “evidentiary value other than accusation by the interrogators.”
I think this contention sufficiently raised the 704(b) issue to preserve it
for appeal. Accordingly, I agree with Justice Sullivan that this case should
be remanded for retrial.
SULLIVAN, J., concurs.
Footnote:
Ind.Code § 35-42-4-9. The defendant, age twenty-four, was charged with sexual
intercourse with her fifteen-year-old boyfriend.
Footnote: The text of her motion referred to her statement of "July 29,
1998," Record at 140, based on an incorrect date on the copy of
the statement provided by the prosecutor. The State clarified that the actual
date was July 28, 1998, which the trial court noted and thereafter referred
to the correct date. Record at 1308.
Footnote: Ind.Evid.R. 704(b) states: "Witnesses may not testify to opinions concerning intent,
guilt, or innocence in a criminal case; the truth or falsity of allegations;
whether a witness has testified truthfully; or legal conclusions."
Footnote: This rule is now App.R. 7(B).
Footnote:
In his dissent, Justice Sullivan expresses concern that a new penalty phase
jury should not be convened on remand because Ind. Code § 35-50-2-9(f) calls
for the discharge of a jury unable to agree on a sentence recommendation.
This position is consistent with his separate opinion in Burris v. State,
642 N.E.2d 961, 969-70 (Ind. 1994)(Sullivan, J., concurring in result), but this interpretation
is contrary to established practice. In trials for criminal offenses, it is
not uncommon for juries that are unable to reach unanimous verdicts to be
discharged and new juries convened in their place. See Burris, 642 N.E.2d
at 969 ("In the ordinary situation, the discharge of the jury and a
possibility of retrial with a new jury is the standard procedure."); see also,
e.g., McCarthy v. State, 749 N.E.2d 528, 532 (Ind. 2001); Buell v. State,
668 N.E.2d 251 (Ind. 1996); Hughley v. State, 737 N.E.2d 420, 422 (Ind.
Ct. App. 2000). Likewise, we have remanded for new penalty phase trials
in capital cases where the penalty phase jurors were unable to reach a
unanimous recommendation. Ben-Yisrayl v. State, 738 N.E.2d 253, 267-68 (Ind. 2000)(affirming post-conviction
remand for new penalty phase trial following discharge of jury unable to render
a recommendation); Burris, 642 N.E.2d at 964 ("Common sense and judicial economy
dictate the trial judge should have the latitude to assemble a new jury
. . . ."). New jury penalty phase trials have similarly occurred
in various other death penalty cases where the penalty phase jury was discharged
after rendering a recommendation and the case was thereafter remanded on appeal.
See, e.g., Rondon v. State, 711 N.E.2d 506, 523 (1999); Averhart v. State,
614 N.E.2d 924, 930, 935 (Ind. 1993); Castor v. State, 587 N.E.2d 1281,
1283, 1290 (Ind. 1992). In addition, we have expressly recognized that new
juries may be assembled upon remand in habitual offender cases. Stewart v.
State, 688 N.E.2d 1254, 1258 (Ind. 1997); Funk v. State, 427 N.E.2d 1081,
1088-89 (Ind. 1981); State v. McMillan, 274 Ind. 167, 174-76, 409 N.E.2d 612,
617-18 (1980). In McMillan we declared: "It is in the public interest
that the [S]tate be given another opportunity to secure an enhanced penalty should
the first attempt result in a deadlocked jury." Id. at 176, 409
N.E.2d at 618.