Attorneys for Appellant                    Attorneys for Appellee
Timothy R. Dodd    Steve Carter
Evansville, Indiana     Attorney General
    
John P. Brinson    Scott A. Kreider
Evansville, Indiana    Deputy Attorney General
    Indianapolis, Indiana

Voir dire commenced on April 24, 2002, and the trial began on April 29 th. On the 29th, McManus displayed symptoms of a panic attack, and the trial court granted him a recess until the following day. The next day, McManus again became ill and moved for a continuance or mistrial. The trial court denied his motions, and the State continued to present evidence. On May 1st, McManus again became ill and renewed his motion for mistrial. The court continued the trial until May 8th so that a psychiatrist could examine him.

On May 6 th, McManus filed a written motion for mistrial, contending that the medications as prescribed rendered him incompetent. After hearing argument, the trial court denied the motion.

On May 9 th, the jury returned guilty verdicts on all three counts. The following day, the jury heard evidence in the penalty phase and returned a recommendation for death. After a subsequent sentencing hearing, the trial court found the existence of aggravating circumstances, found one mitigating circumstance, concluded that the aggravating circumstances outweighed the mitigating circumstance, and sentenced McManus to death.

On July 5, 2002, McManus filed a motion to correct errors, contending that he was incompetent to stand trial. The trial court denied his motion. McManus now appeals.

Under Indiana’s statute as it read at the time of McManus’s trial, a jury could recommend death only if it found the existence of at least one statutory aggravator beyond a reasonable doubt. See footnote All of our post-Ring case law concludes that a defendant whose jury has made such a finding has received what Ring and Apprendi require. Our re-examination of Apprendi and Ring provide us with no reason to change that interpretation. See footnote

McManus makes a very similar contention about how the weighing of aggravators and mitigators must occur. We have previously held that “the determination of the weight to be accorded the aggravating and mitigating circumstances is not a ‘fact’ which must be proved beyond a reasonable doubt, but is a balancing process.” Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994); see also Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998). After examining Apprendi and Ring, we recently re-affirmed the constitutionality of Indiana’s statute against arguments substantially similar to those raised by McManus. Ritchie v. State, 809 N.E.2d 258 (Ind. 2004). See footnote

In Caldwell, the prosecutor urged the jury not to view itself as responsible for determining whether the death penalty was appropriate for the defendant because the death sentence would be reviewed automatically by the state’s highest court. The defendant challenged the validity of his death sentence on the grounds that these statements were inconsistent with the Eighth Amendment’s need for heightened reliability in a capital case. The U.S. Supreme Court held that “it 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.” Id. at 328-29. Quoting Justice Harlan, the Court based its holding on the assumption that “jurors confronted with the truly awesome responsibility of decreeing death for a fellow human will act with due regard for the consequences of their decision . . . .” Id. at 329-30 (quoting McGautha v. California, 402 U.S. 183, 208 (1971)). Belief in the truth of this assumption, the Court said, is “indispensable to . . . the Eighth Amendment’s need for reliability in the determination that death is the appropriate punishment in a specific case.” Id. at 330 (internal quotations omitted).

The Court clarified Caldwell’s holding in Romano v. Oklahoma, 512 U.S. 1 (1994). In Romano, the defendant was found guilty of murder, and during the subsequent penalty phase, the prosecution introduced evidence of a previous conviction and death sentence. The defendant argued that the admission of the prior death sentence undermined the jury’s sense of responsibility for determining the death penalty in violation of the Eighth Amendment. The Court noted that Caldwell was a plurality opinion and because the fifth vote was supplied by Justice O’Connor, who “concurred on grounds narrower than those put forth by the plurality, her position is controlling.” Id. at 9.
Accordingly, we have since read Caldwell as relevant only to certain types of comment – those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision. Thus, 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.

Id. (internal quotations omitted). Consequently, the Court held that admitting evidence about the prior death sentence did not violate Caldwell because the evidence was neither false at the time it was admitted nor pertained to the jury’s role and because the trial court’s instruction emphasized the importance of the jury’s role. Id.
    
    McManus argues that because the jury was instructed that its sentencing recommendation was not binding on the trial judge, it had a diminished sense of responsibility in violation of Caldwell. We dealt with this exact claim in Wisehart v. State, 693 N.E.2d 23 (Ind. 1998). Citing Romano, we said:
This Court previously has held that it is not unconstitutional to instruct the jury that the ultimate sentencing responsibility rests with the trial judge because such an instruction accurately reflects the requirements of Indiana law. An Indiana jury does not impose a sentence, but instead makes a sentencing recommendation to the judge, who in turn decides what sentence to impose.

Id. at 53 (citing Lowery v. State, 640 N.E.2d 1031, 1044 (Ind. 1994)); see also Wrinkles v. State , 690 N.E.2d 1156, 1167 ( Ind. 1997) (“It is not error to inform the jury that its sentencing decision is a recommendation, because this is a correct statement of Indiana law.”) . McManus argues that Wisehart and Wrinkles cannot control this case because an “advisory jury” does not satisfy the Sixth Amendment as interpreted in Ring. This argument cannot survive our holding in the previous section; thus Wisehart and Wrinkles are still good law.
McManus further argues:
It makes no difference if the reason for the diminished sense of responsibility is a result of prosecutor’s misrepresentations, as in Caldwell, or the result of correct jury instructions, as in Wrinkles and in this case. If the jury’s sense of responsibility is less than full, the verdict is unreliable and unconstitutional.

Appellant’s Br. at 16. This argument disregards Romano, however, which states that “a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law” to establish a Caldwell violation. See footnote Romano, 512 U.S. at 9. In addition, we note that the jury in this case not only received a correct instruction but, as in Romano, was impressed with the importance of its role and the gravity of its decision. The court instructed the jury that: its recommendation is a an integral part of the death penalty process and the law requires that the trial judge give it great weight and serious consideration; the jurors “should assume that if you recommend the death penalty for Paul M. McManus, he will, in fact, be executed by the State of Indiana per your decision”; it should not rely on leniency or clemency by another authority; and if it is their unanimous decision to recommend death, “each of you must do so with the fixed assumption in your own mind that the sentence of death will be carried out.” Tr. at 1746-47.

    Because Wisehart and Wrinkles correctly interpret Sixth Amendment law and Eighth Amendment law, they control this case. The jury instruction correctly described Indiana sentencing procedure as it existed at that time and thus did not unconstitutionally lead the jury to “feel less responsible than it should for the sentencing decision.” Romano, 512 U.S. at 9.

In a videotaped deposition played for the jury, the prosecution questioned Dr. Liffick in relevant part as follows: “[Prosecution.] As for the mental depression, the mild mental depression and the not liking to be alone, do you feel like those in any way mitigate his crime in this case?” Tr. at 1307-08. McManus objected to the question. The trial court overruled the objection, and Dr. Liffick responded as follows: “[Dr. Liffick.] You know, I -- I -- I just don't think that that mild degree of difficulty in the big picture to any significant degree would excuse these actions.” Tr. at 1308.
    
Indiana Evidence Rule 704(b) reads as follows: “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.” Dr. Liffick’s testimony was in response to a question calling for a legal conclusion and inadmissible under Rule 704, and the court should have sustained the objection. Of course, an error in the admission of evidence is not ground for setting aside a conviction unless such erroneous admission appears inconsistent with substantial justice or affects the substantial rights of the parties. Ind. Trial Rule 61.
    
Prior to Dr. Liffick, the court called Dr. David Hilton to examine McManus and evaluate his sanity at the time of the offense. Dr. Hilton testified as follows:
[W]hen we reviewed the actual symptoms he was experiencing, they didn't seem to meet the necessary criteria to call it a major depression. It was most consistent with what I would consider an adjustment disorder. He was going through a difficult time. He had an impending divorce. He was under a lot of stress. Adjustment disorders generally are not felt to be severe enough to affect a person's perception to the point of justifying an insanity defense. He also gave a long-standing history of chronic low-grade depression. He basically had described himself as being depressed to some degree all of his adult life, and that is generally felt to be consistent with a disorder called Dysthymic Disorder or Dysthymia. Again, that's not a disorder that affects a person's perception to the point that they would not be able to appreciate the wrongfulness of his or her actions.

Tr. at 1079-80. Dr. Hilton did not attempt to offer a legal conclusion. Both doctors shared the same medical opinion after evaluating McManus, and neither doctor stated that McManus’s condition mitigated his crime.

The likelihood that this question and the reply weighed for much in the jury’s deliberations is minimal. We find the error harmless.

McManus contends (1) that the trial court erred by denying his motion for mistrial because the change in his anti-depressant and the subsequent administration of various drugs rendered him incompetent, (2) that the State was obligated to disclose exculpatory evidence about the medications, and (3) that the trial court erred in refusing to admit a news article discussing jurors’ impressions of his demeanor during trial. We address these contentions in turn.

Tr. at 816-17. On cross examination, the State questioned Dr. Mohammadi as follows:
[Prosecutor.] [I]f he were in the courtroom, would he realize that he was sitting next to his two attorneys? He'd realize those were his attorneys?
[Doctor.] I believe so, yes.
[Prosecutor.] And he would know that we're the prosecution?
[Doctor.] If so advised, yes.
[Prosecutor.] Yeah. And he would know that we're trying to find him – have him found guilty, and he'd know they're trying to help him be found not guilty?
[Doctor.] I believe so.
[Prosecutor.] Now, after you administered the medication to him, did you notice a difference in his demeanor?
[Doctor.] Yes.
[Prosecutor.] And it was what?
[Doctor.] He was calm and forthcoming with more information.

Tr. at 820. Following this testimony, McManus moved for a continuance or a mistrial. The trial court denied both motions and continued with the trial. Before recessing for the day, the State called ten more witnesses to the stand. Tr. at 839-977. That evening, McManus was once again transported to the hospital for treatment.
    
During the morning of May 1 st, jail personnel administered two pertinent medications to McManus, Effexor and Xanax. Tracy Sander, the jail nurse, testified that these drugs would make a person very drowsy, but are routinely prescribed. Tr. at 988. Sanders also testified that she was able to communicate with McManus. McManus then renewed his motion for a mistrial. McManus’s counsel added that McManus was nauseous and lightheaded. Tr. at 989. The trial court denied the motion, finding no evidence suggesting that McManus was unable to assist in his defense or participate in the trial. Tr. at 990.

As the fourth witness of the day began to testify, McManus requested a recess and complained of similar symptoms. During the recess, the trial court questioned Ken Mitz of the Vanderburgh County Sheriff’s Department regarding McManus’s condition. Mitz reported that McManus was in the infirmary and hyperventilating. Tr. at 1059-60. The jail nurse administered a shot to McManus to ease his breathing, rendering him incapacitated for several hours. After brief argument, the trial court ordered a continuance of one week.

On May 2, 2002, Dr. Willard Whitehead changed McManus’s medication regimen. On May 7 th, the trial court held a hearing on McManus’s verified motion for mistrial. As of that date, McManus was taking one milligram of Xanax three times a day, forty milligrams of Popranolol three times a day, and the antidepressant Remeron. The court called Dr. Whitehead, a psychiatrist. He examined McManus on May 2nd and May 7th. The trial court’s direct examination of Dr. Whitehead proceeded in relevant part as follows:
[Court.] Well, if he is having hyperventilation episodes, do you think that the – that the treatment regimen that he is on, including the drugs that he is being – that are being administered to him are going as far as you could possibly go at this point to get him ready to sit through the trial?
. . .
[Psychiatrist.] Well, if you look at treatment for anxiety dis- – anxiety problems or hyperventilation – actually, we got off the Internet a thing on managing hyperventilation. That's something as a psychiatrist I've never seen before. I called some emergency – an emergency room doctor and talked with him about what it looked like. The only way to confirm what it is, apparently, is to check an arterial blood gas, which I don't think we could do here very well, but we got some stuff off the Internet on managing it, and one thing they said to use was a benzodiazepine like Xanax. Xanax is quick. It's effective. Much more often than not you would expect it to work. You wouldn't want to give someone so much that they would become intoxicated with it. When you get into a problem with Mr. McManus, I asked to have him checked for intoxication – and this is the only copy we have of this – but they had a Matt Hill, who is an investigator who is apparently trained in working with intoxication, examine him and he thought that Mr. McManus was not cooperating and trying to skew the findings of the evaluation towards looking intoxicated.
. . .
[Court.] The next question is, if this trial is terminated and we try him again a month from now or two months from now, is there any reason to believe that his situation would be any different then?
. . .
[Psychiatrist.] If it is an anxiety situation related to this stressor and, like he says, he wants to get this taken care of and over with, and on medication, there's a chance he would do better. In fact, that – that could happen by tomorrow. . . . You have two different treatment strategies on board. Now, you have the Xanax, which is relatively fast acting. You're doing a little bit of a tightrope between intoxicating and undertreating. You want to get the right level, but that should be doable pretty rapidly. Unfortunately, it's hard to tell if you're intoxicating him because of his strange findings on examination. You also have a medicine called Propranolol or Inderal going which blocks adrenaline. Again, that's fast acting.
. . .
It blocks adrenaline, so if you start to get afraid, the adrenaline goes out there and just -- your body stays pretty cool. So he's on that, too. That's another one that could be increased and -- in fact, he's on 40 milligrams three times a day now. His blood pressure looks good, so you could increase that to be more aggressive with his treatment. I would say right now, the Xanax is equivocal because of the findings on his neurological exam. If you wanted to increase anything right now that might work quickly, it would be the Propranolol to block the fright response.

Mistrial Hearing Tr. at 12-14, 16-18. Dr. Whitehead also indicated that McManus was being uncooperative.
    
At the conclusion of the hearing, the trial court held as follows:
Okay. I'm going to deny the motion. I'm convinced that it's either self-induced, or if not self-induced, it's something that's caused by this trial. I think these -- this -- these doctors are giving him the optimum treatment he can get. I'm convinced that we're not going to face any better situation the next time than what we're facing right now and I believe we can get through this trial in a proper fashion and that's what I want to do.

Mistrial Hearing Tr. at 69. Following the denial of McManus’s motion, the trial proceeded to its conclusion without incident. At the hearing on McManus’s motion to correct error, Dr. Roger Maickel, an expert in forensic toxicology and pharmacology, testified that the drugs administered to McManus may impair functional cognitive skills. Dr. Maickel based his opinions on medical records.
    
It is apparent that the trial court based its decision on continual reports from medical professionals who maintained contact with McManus throughout the trial. While the testimony was often equivocal, the consensus of the witnesses was that the medications assisted McManus in participating in his trial. Without the medications, McManus proved to be unable to cope with the stress of the proceeding. McManus’s situation is markedly different from the defendant who requires medication to attain competence so that the trial can begin. Before trial, McManus was competent and participated in preparing his case. The administration of medication appeared to manage a sudden onset of stress, rather than to medicate a diagnosed psychosis. Reliance on psychotropic drugs during trial is obviously to be approached with great care, and competency hearings to evaluate the effects on a defendant’s ability to appropriately participate in his or her defense are very important. In the case at bar, we cannot say that the trial court’s competency determination was clearly erroneous and therefore affirm the denial of McManus’s motion for mistrial.

McManus does not contest that the aggravating circumstances were proven beyond a reasonable doubt. He acknowledges that the first aggravator, commission of multiple murders, was proven at the guilt stage when the jury returned guilty verdicts on all three counts of murder. Appellant’s Br. at 18. On the night of the murder, McManus admitted to his sister, his mother, and finally the police that he killed his wife and two children. At trial defense counsel acknowledged that McManus had killed his family but asserted an insanity defense. The two court-appointed psychiatrists testified that McManus was not legally insane at the time of the murders. The defense’s psychiatrist testified that McManus suffered a psychotic break rendering him unable to control his actions while he was at his wife’s home. There was substantial evidence, however, that McManus went to his wife’s home with the intention of killing his family.

McManus further acknowledges that the evidence of the second aggravator, murder of a person under the age of twelve, was “overwhelming and uncontradicted.” Appellant’s Br. at 18. Defense counsel informed the jury at trial that Lindsey was born December 31, 1992, and Shelby was born March 20, 1999.

As for mitigating circumstances, the defense focused on McManus’s capacity to appreciate the criminality of his actions and conform his conduct to the requirements of law and his emotional disturbance. The defense argued that his low I.Q., depression and attention deficit disorder contributed to poor problem-solving abilities, poor internal controls and poor social learning. Tr. 1694-95. The defense also argued that the stressors in McManus’s life, including overwork, financial strains, his disabled child, and impending divorce, combined with these factors, leading him to see only one way out. Id. at 1696. In addition, the defense noted McManus’s lack of a significant criminal history. Finally, the defense argued that the medication administered to McManus affected his demeanor, which may have had a negative impact on the jury and thus should be considered as a mitigating factor.

After finding that the State had proven the aggravating circumstances beyond a reasonable doubt, the trial judge considered each of the statutory mitigating circumstances. He found that McManus “was suffering from some form of depression and other mental abnormalities when these murders were committed” that was a mitigating circumstance that “should be given some weight.” Tr. of Sent. Hr. at 21-22. Based on McManus’s actions and statements before and after the crime, however, the court found that these disturbances did not substantially impair “his capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law.” Id. at 22-23. With regards to McManus’s criminal history, the court found that although the record was not “lengthy,” it was significant in that it included a conviction for battery against one of the victims, Melissa McManus, and therefore was not a mitigating circumstance. Id. at 21. Finally, the court explored whether there were any other mitigating circumstances appropriate for consideration and found that none existed. Id. at 23. The court concluded that the aggravating circumstances outweighed the mitigating circumstances and, giving “great weight and consideration” to the jury’s recommendation and finding that it was both reasonable and appropriate, sentenced McManus to death.

We have usually regarded multiple murder as constituting weighty aggravation, and surely the weight of killing two small children is substantial. The weight of the proffered mitigation is moderate at most. We agree with the trial court’s analysis and find that the aggravators were proven beyond a reasonable doubt and that they outweigh the mitigating circumstances. The sentence was an appropriate one.