ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis James B. Martin
Deputy Public Defender Deputy Attorney General
Indianapolis, IN Indianapolis, IN
SUPREME COURT OF INDIANA
STEPHEN M. DEANE, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 24S00-0009-CR-557 ) STATE OF INDIANA, ) ) Appellee, (Plaintiff Below ). )
Deane arrived at about 9:30 p.m., came into the house, and sat at
the kitchen table. After ten minutes of routine conversation, Deane left and
returned a few moments later with two or three cans of beer and
a revolver. Deane told Barbara and Greg that they were crazy and
that when he finished his beer he was going to end all our
pain. Greg then stood up quickly from the table, and Deane shot
him in the head from a few feet away. In response, Barbara
stood up and Deane shot her from approximately the same distance, striking her
in the arm and upper chest.
Paramedics arrived on the scene and found Greg bleeding from the head from
the gunshot wound. He died the following day.
Subsequent investigation yielded no physical evidence to link Deane to the crime. Police found no beer cans at the residence in Laurel, and while a copper jacket from a bullet was recovered from the kitchen table, the gun used in the shooting was never recovered.
Deane was found guilty of murdering his brother and attempting to murder his
mother. The trial court sentenced him to the presumptive fifty-five-year term for
murder, enhanced by ten years due to aggravating circumstances. It also sentenced
him to thirty years for attempted murder and ordered the sentences served consecutively.
Prosecutors References to Deanes Request for Counsel
Deane seeks reversal based on the prosecutors closing argument, during which he twice referred to Deanes request for a lawyer while recounting Deanes statement to police. See footnote Deanes attorney did not object to the prosecutors comments. Failure to object to improper prosecutorial remarks during trial results in a waiver on appeal. Heavrin v. State, 675 N.E.2d 1075, 1082 (Ind. 1996).
Deane attempts to circumvent waiver by alleging fundamental error. He argues that the
federal and state constitutions prohibit a prosecutor from inviting jurors to infer guilt
from an accuseds exercise of his constitutional rights. (Appellants Br. at 11-12.)
The fundamental error doctrine permits an appellate tribunal to address an error not
otherwise preserved for review if the error appears plainly on the face of
the record and is of such consequence that it denied defendant due process.
Rowley v. State, 442 N.E.2d 343 (Ind. 1982). To rise to the
level of 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. Maul v. State, 731
N.E.2d 438, 440 (Ind. 2000)(citations and internal quotations omitted).
In Doyle v. Ohio, 426 U.S. 610, 619 (1976), the U.S. Supreme Court held that the use for impeachment purposes of petitioners silence, at the time of arrest and after receiving Miranda warnings violated the Due Process Clause of the Fourteenth Amendment. Recognizing the rule set forth in Doyle, we prohibit prosecutors from using a defendants post-Miranda silence for impeachment purposes. Jones v. State, 265 Ind. 447, 451, 355 N.E.2d 402, 405 (1976).
As the Seventh Circuit has held, we must look at the circumstances in
which a criminal defendants post-arrest silence or request for counsel is revealed in
court in order to determine whether the purposes underlying the rule in Doyle
have been undermined. Lindgren v. Lane, 925 F.2d 198, 202 (7th Cir.
1991). The rule prevents prosecutors from introducing evidence of a defendants post-arrest
silence [or request for counsel] because permitting such evidence to come before a
jury would serve only to undermine the exercise of a constitutional right. Id.
The rule does not bar any mention of a defendants right to
request counsel, but instead guards against the exploitation of that right by the
Here, the prosecutors comments seemed aimed at showing the jury how much time elapsed before Deane finally inquired about his familys welfare. The reference did not appear directed to Deanes response to a Miranda advisement, but to the priority Deane gave to learning the condition of his immediate family members.
Moreover, Deanes counsel first introduced testimony regarding Deanes request for an attorney.
The reiteration of facts already before the jury does not place a defendant
in grave peril.
Beland v. State, 476 N.E.2d 843 (Ind. 1985).
In sum, the record does not reveal a clear, blatant violation of basic
and elementary principles of due process.
In considering the sentence, the court found two mitigating circumstances: (1) hardship
on Deanes son and (2) Barbara Deanes expression of forgiveness and request for
leniency. The court also found two aggravating circumstances: (1) prior criminal history
and (2) Deanes complete lack of remorse with regard to his demeanor and
his state of disdain for the entire legal system.
We review trial court sentencing decisions only for abuse of discretion, including decisions
to increase the presumptive sentence or to run sentences consecutively due to aggravating
circumstances. Trowbridge v. State, 717 N.E.2d 138 (Ind. 1999). This Court will
not revise a legislatively authorized sentence unless it is manifestly unreasonable in light
of the nature of the offense and the character of the offender.
Gibson v. State, 702 N.E.2d 707 (Ind. 1998).
Deane first argues that lack of remorse is an inappropriate aggravator where such
a finding is based on a defendants denial of guilt and the evidence
against him is uncorroborated testimony. (Appellants Br. at 17-19.) In support
of this argument, he cites Dockery v. State, 504 N.E.2d 291 (Ind. Ct.
App. 1987). In Dockery, however, the finding of lack of remorse was
based solely on Dockerys persistent denial of his guilt. Id. at 297.
In this case, the court based its finding of lack of remorse on
his demeanor today, his reference of record, [and] his state of dis[d]ain for
the whole system, not solely on his denial of the crime. (R.
To support this finding, the court referred to Deanes affront to the prosecutor
and disrespect for the proceedings. Deane called the prosecutor a prick in open
court and stated that he had been persecuted by the trial court.
(R. at 789, 793.) Moreover, while Deane maintained his innocence, as he
is entitled to do, he expressed no regret or appreciation of the tragedy
that had occurred, regardless of who was culpable.
Lack of remorse is a proper factor to consider in imposing a sentence.
Brooks v. State, 497 N.E.2d 210, 221 (Ind. 1986)(citing Mullens v. State,
456 N.E.2d 411 (Ind. 1983)). In light of the circumstances identified by
the court, it was not an abuse of discretion to consider lack of
remorse as an aggravating factor.
Deane next argues that lack of remorse by a defendant who insists upon
his innocence is to be regarded only as a modest aggravator. Bacher
v. State, 686 N.E.2d 791, 801 (Ind. 1997)(citing Owens v. State, 544 N.E.2d
1375, 1379 (Ind. 1989)). Thus, he says, the trial court erred in
granting the defendants lack of remorse great weight. (Appellants Br. at 18.)
The court did not base the sentence upon this aggravator alone. The court also supported its sentencing decision by its finding that Deane had a prior criminal history, including five alcohol-related convictions, four drug-related convictions, resisting law enforcement, and intimidation.
We frequently say a single aggravating circumstance may be sufficient to support the imposition of an enhanced sentence. Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999). This does not mean that any single aggravator will suffice in all situations. A non-violent misdemeanor ten years in the past, for example, would hardly warrant adding ten or twenty years to the standard sentence.
Here, however, Deanes prior criminal record is substantial. Even if we thought
the trial court erred in giving Deanes lack of remorse great weight under
the facts of this case, we would still conclude that imposing the enhanced
and consecutive sentences survives the manifestly unreasonable test.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.