Attorneys for Appellant Attorneys for Appellee
Monica Foster Steve Carter
Foster & Long- Sharp Attorney General of Indiana
Robert J. Hill Arthur Thaddeus Perry
Gilroy Kammen & Hill Deputy Attorney General
Indianapolis, Indiana Office of the Attorney General
Appeal from the Elkhart Superior Court, No. 20D01-0111-CF-241
The Honorable Stephen Platt, Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-0208-CR-281
December 23, 2003
Almost one and a half years after the robbery, Witmer, who had turned
eighteen picked up Jason Powell and drove to the Pierre Moran Mall.
Witmer had a .22 caliber rifle in his car. As they rode
about town, Witmer and Powell discussed shooting an African American to earn a
tattoo of a spider web. Witmer told Powell that one earns the
tattoo by killing a black person. Powell expressed an interest in earning
the tattoo, and Witmer called him on it, meaning put up or shut
up. (GPR at 24.)
As they drove around the mall, Witmer and Powell noticed seventeen-year-old Sasezley Richardson
walking through the Sears parking lot. (GPR at 25.) Neither of
them knew Richardson. Powell told Witmer to drive towards Richardson. Witmer
drove close to the victim as Powell picked up the rifle and began
to shoot. Powell fired ten to twelve shots at Richardson. As
they abandoned the scene, Witmer looked into the mirror and saw the victim
fall to the ground. Witmer and Powell drove away, without rendering any
aid. Richardson died from a gunshot wound to the head.See footnote
Witmer drove Powell home and then returned to his house. He later took the rifle used in the shooting to his younger brother, who dismantled the gun and threw it in the river behind his fathers house.
The State requested the death penalty against Witmer but later agreed to drop the request in return for a plea of guilty. (GPR at 29.) The trial court sentenced Witmer to twenty years for robbery and sixty-five years for murder, to be served consecutively. (App. at 136.) It found several aggravating circumstances: Witmers history of criminal or delinquent activity,See footnote his need for rehabilitative treatment best provided by commitment to a penal facility, that imposition of a reduced sentence would depreciate the seriousness of the crime, and the nature and selection of the victim--including the racial motivation of the perpetrators. It also found three mitigators: Witmers age, his upbringing, and his psychological conditions.
On appeal, Witmer (1) challenged the correctional need and depreciate the seriousness aggravators,
(2) claimed there were several mitigators that should have been found and that
the court gave inadequate weight to some it did find, and (3) contended
the resulting sentence was unreasonable. The Court of Appeals agreed that the
depreciate finding was inappropriate, but otherwise rejected Witmers claims and affirmed the sentence.
Witmer v. State, No. 20A03-0208-CR-281 (Ind. Ct. App. 2003). We grant
transfer and summarily affirm its resolution of these points. Ind. Appellate Rule
Where a trial court has used an erroneous aggravator, as occurred here, the
court on appeal can nevertheless affirm the sentence if it can say with
confidence that the same sentence is appropriate without it. Day v. State,
560 N.E.2d 641, 643 (Ind. 1990).
Although we have never explicitly held that choosing a victim based on race
could be an aggravating circumstance, we have affirmed the notion that characteristics of
the victims can support an enhanced sentence. In Ajabu v. State,
722 N.E.2d 339 (Ind. 2000), for example, the defendant was convicted of three
murders. We stated that Ajabus brutal method of killing and the number
and ages of the victims absolutely manifested a need for correctional treatment to
deal with the heinous conduct and reckless disregard for human life. Id.
at 343. As in Ajabu, the trial judge in this case determined
that the evidence detailed the extreme viciousness of the murders.
The sentencing statutes list of enumerated aggravating circumstances is not exclusive, of course, and we say without hesitation that racially motivated crimes are intolerable and may constitute an aggravating circumstance.
It is a conclusion embraced elsewhere. In Barclay v. State, 343 So.2d
1266 (Fla. 1977), five men picked up a white hitchhiker and took
him to a remote location where Barclay stabbed him repeatedly before shooting him
twice in the head. Barclay later sent tapes to the victims mother
and local television stations declaring a race war. He was found guilty,
and the judge sentenced him to death. Id. The U.S. Supreme
Court later granted certiorari and stated, [t]he United States Constitution does not prohibit
a trial judge from taking into account the elements of racial hatred in
this murder. The judge in this case found Barclays desire to start
a race war relevant to several statutory aggravating factors. The judges discussion
is neither irrational nor arbitrary. Barclay v. Florida, 463 U.S. 939, 949
State v. McKnight, 511 N.W.2d 389 (Iowa 1994), the Iowa Supreme
Court determined that racial animus could be a factor without violating U.S. constitutional
rights. In that case, two white males swerved at and hit the
car of a black person, causing him to lose control of his vehicle.
Id. at 390. The white men stopped and began to assault
the black man and scream racial slurs at him. Id. The
Iowa Supreme Court affirmed McKnights conviction and upheld the hate crime statute that
enhanced his sentence, rejecting a claim that the enhancement violated McKnights First Amendment
rights. Id. at 396-97.
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.