Wilkes v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

John Andrew Goodridge Gregory F. Zoeller

Evansville, Indiana Attorney General of Indiana

William Wayne Gooden Stephen R. Creason

Mt. Vernon, Indiana Deputy Attorney General

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

MARION COUNTY PUBLIC DEFENDER

FILED

AGENCY

Joel M. Schumm

Indianapolis, Indiana

Dec 10 2009, 9:41 am

Ann M. Sutton

Indianapolis, Indiana

CLERK

______________________________________________________________________________

of the supreme court,

court of appeals and

tax court

In the

Indiana Supreme Court

_________________________________

No. 10S00-0808-DP-453

DANNY RAY WILKES,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

_________________________________

Appeal from the Clark Circuit Court, No. 10C01-0705-MR-158

The Honorable Carl A. Heldt, Special Judge

_________________________________

On Direct Appeal

_________________________________

December 10, 2009

Boehm, Justice.

In this direct appeal, Daniel Wilkes appeals his murder convictions and death sentence.

We affirm Wilkes’s murder convictions and death sentence.

Facts and Procedural History

In the spring of 2006, Daniel Wilkes met Donna Claspell and Michael Baker while all

three were being treated at a drug rehabilitation center. After discharge, Wilkes stayed with

Donna and her two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike.

Wilkes told Baker that one night he awoke to find Avery ―hunching on his leg,‖ and that he and

Avery then engaged in mutual oral sex. Wilkes later admitted to molesting Avery on a total of

three or four occasions. On the evening of April 23 or the early morning of April 24, Donna

found Wilkes and Avery together and told Wilkes that he would have to leave the home.

Around eight o’clock the next morning, Donna’s neighbors observed Baker picking up

Wilkes at the home, and one heard Wilkes say something like, ―I’ve got to get out of here.‖ That

night, according to Baker, Wilkes kept looking out the windows and expressed concern that the

police would come for him.

On April 26, the bodies of Donna, Sydne, and Avery were found in their home. Donna

and Sydne were in the master bedroom. Donna had sustained multiple injuries, including a deep

cut wound to the neck and blows to the head from a hammer and another blunt instrument. A

knife was found under Donna’s shoulder. Sydne had died from at least twenty-seven blows to

the head, back, and shoulders from a hammer head and claw. Avery was found in her bedroom

naked and face down on the bed. Her hands were bound behind her back with a cord, her ankle

was tied to the bedpost, and she had been strangled with a piece of clothing.

DNA and serological tests were performed on several items from Donna’s home and also

on clothing Wilkes was wearing at the time of his arrest. Donna’s blood was found on the ball

and claw of a hammer and on a level found at the home, and also on a shirt and hat worn by

Wilkes. Sydne’s blood was found on the claw of the hammer and on Wilkes’s shirt and her

DNA was found on Wilkes’s shoe. Wilkes confessed to the murders under circumstances

described below.

Wilkes was charged with all three murders. The State filed a death penalty request

alleging as a statutory aggravating circumstance of each murder that Wilkes had committed

multiple murders and, as to Sydne, that the victim was less than twelve years old.

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The jury found Wilkes guilty of all three murders. In the penalty phase, the jury found all

four aggravating circumstances and found that the aggravating circumstances outweighed the

mitigating circumstances, but could not agree on a sentencing recommendation. After

discharging the jury, the trial court conducted the sentencing. The court accepted the jury’s

findings and independently found the aggravating circumstances and that the aggravating

circumstances outweighed the mitigating circumstances. For each murder, the trial court

sentenced Wilkes to death.

In this direct appeal, Wilkes challenges his convictions and his sentence, arguing that:

I. The trial court erred in admitting transcripts and recordings of four interviews in

which he acknowledged his guilt;

II. The trial court erred in admitting evidence of his molesting of Avery, expert

testimony regarding a presumptive test for blood, and opinion testimony on guilt;

III. Indiana’s death penalty statute violates the Indiana Constitution’s requirement of

separation of powers and the Federal Sixth Amendment; and

IV. Wilkes was not sentenced properly.

I. Admissibility of Wilkes’s Interviews

At trial, over Wilkes’s objection, the State introduced transcripts of four interviews in

which Wilkes acknowledged his guilt. A videotape of the first interview and audio recordings of

the other three were also admitted. Wilkes argues that the trial court erred in admitting these

because the interviews were given involuntarily in violation of his right to remain silent.

Unlike the Federal Constitution, Indiana law imposes on the State the burden of proving

beyond a reasonable doubt that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 488–

89 (1972); Pruitt v. State, 834 N.E.2d 90, 114–15 (Ind. 2005) (plurality); Miller v. State, 770

N.E.2d 763, 767 (Ind. 2002); Owens v. State, 427 N.E.2d 880, 884 (Ind. 1981). In evaluating a

claim that a statement was not given voluntarily, the trial court is to consider the ―totality of the

circumstances,‖ including any element of police coercion; the length, location, and continuity of

the interrogation; and the maturity, education, physical condition, and mental health of the

defendant. Miller, 770 N.E.2d at 767. To determine that a statement was given voluntarily, the

court must conclude that inducement, threats, violence, or other improper influences did not

overcome the defendant’s free will. Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004).

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On appeal, the trial court’s determination of voluntariness is reviewed as other

sufficiency matters. Id. We do not reweigh the evidence, and we affirm the trial court’s finding

if it is supported by substantial evidence. Miller, 770 N.E.2d at 767.

A. April 26 Interview

Wilkes’s first interview by police took place on April 26 from approximately 6:00 to

11:00 p.m. and was videotaped. Before making any statements, Wilkes was advised of his

Miranda rights and signed a written waiver. Wilkes was provided dinner and cigarettes at a half-

hour break around 9:30 p.m. In the course of the interrogation, Wilkes admitted to killing

Donna, Avery, and Sydne. Wilkes claims that any statements in the April 26 interview were

involuntary because of the convergence of the following factors: (1) he was under the influence

of drugs during the interview; (2) police used a psychologically coercive interrogation method;

(3) the statements in his interview contained inconsistencies; (4) police promised Wilkes a

cigarette in exchange for information; and (5) Wilkes attempted to end the interrogation before

admitting to the crimes.

1. Influence of drugs. At five points in the April 26 interrogation Wilkes claimed to be

under the influence of drugs. Statements are inadmissible due to intoxication only when an

accused is intoxicated to the point that he is unaware of what he is saying. Pruitt, 834 N.E.2d at

115 (plurality opinion) (citing Williams v. State, 489 N.E.2d 53, 56 (Ind. 1986)). Intoxication to

a lesser degree goes only to the weight to be given the statement. Id. Here, Wilkes does not

claim that his intoxication caused him to be unaware of his statements during the interview, and

the detectives who interrogated him testified that he did not appear intoxicated. The trial court’s

ruling that Wilkes’s interview was not involuntary due to his intoxication is supported by

sufficient evidence.

2. Psychologically coercive interrogation methods. Wilkes argues that the April 26

interrogation was coercive because the detective insisted that Wilkes remembered the crimes and

supplied him with details even though Wilkes repeatedly denied remembering the crimes.

Wilkes argues that his confession was involuntary because he merely repeated back to the

detective facts he learned during the interrogation.

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Certainly a confession in which the defendant parrots detective-fed details of the crime

may be less reliable than one in which the defendant freely volunteers his story in its entirety.

But under Wilkes’s circumstances, the trial court had sufficient evidence to find that Wilkes was

not psychologically coerced. Because the exchange was videotaped, the trial court was in a

position to evaluate demeanor.1 The interrogation lasted five hours, and Wilkes was provided

with three cigarettes and a break for food. It is true that the detective provided Wilkes with

many details of the crimes, but Wilkes also described details of the crimes that were not provided

by the detective. For example, he stated that he had a flash of Donna lying on her bed in a lot of

blood before the detective told him that Donna was found on her bed. Moreover, in the

interviews Wilkes identified instances when he was referring to police suggestions rather than

his own memory. Wilkes cites no authority for his contention that supplying some facts to a

defendant renders the defendant’s statement involuntary. This Court has previously held that

various interrogation techniques—―good cop, bad cop,‖ providing a morally acceptable answer,

blaming the victim, and bargaining—do not necessarily create an involuntary statement. Pierce

v. State, 761 N.E.2d 821, 824 (Ind. 2002). Given all of these considerations, the trial court’s

conclusion that the interrogation method did not render Wilkes’s interview involuntary is

supported by more than sufficient evidence.

3. Inconsistent statements. Wilkes cites to inconsistencies in his April 26 interview as

evidence that his statements were not voluntarily given.2 Inconsistencies are a factor to be

considered in determining whether a statement is voluntary. Light v. State, 547 N.E.2d 1073,

1077 (Ind. 1989). But inconsistencies can also be the product of untruthfulness or evasiveness,

and are not in themselves a strong indication of lack of voluntariness. The trial court had the

opportunity to view the videotape of the interrogation and make a determination as to whether

Wilkes’s will had been overcome. Again, given the circumstances of this interrogation the trial

1

The videotape of the April 26 interview was admitted in evidence but was not included in the appellate

record.

2

For example, on page 40 of the interrogation transcript, Wilkes said, ―I did it.‖ On page 44, he said he

did not know whether Michael Baker did it. On page 45, he said he did it and then claimed, ―I don’t

remember doing it.‖ On page 52, when asked who killed Donna, he responded, ―Me, I guess.‖ Then he

said, ―I don’t think I killed her.‖ On page 53, he said, ―I killed her I guess.‖ Later he suggested that

Baker killed Donna.

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court had sufficient evidence to find that Wilkes’s responses were voluntary and that the jury

could consider the inconsistencies in determining whether to give the interview credit.

4. Promise of a cigarette. Wilkes requested cigarettes several times during the April 26

interrogation. Late in the interrogation, after Wilkes had already made incriminating statements,

he again asked for a cigarette. The following exchange occurred:

WILKES: I need another cigarette, please. And we’ll talk.

***

DETECTIVE: Are you going to tell me the truth if I get you a cigarette?

A: Yeah.

Q: Flat out bottom, no more lying. Will you do that?

A: Yes.

Q: Now, all I got to do is give you one more cigarette?

A: Two.

Q: I’ll give you one. You tell me, then I’ll give you another one. But I want you

to tell me the truth.

A: Ok.

Wilkes was provided with a cigarette, and the interrogation continued on to topics such as

Wilkes’s job history, his daughter, and his experience with methamphetamine before returning to

the murders. Roughly seven minutes after receiving the cigarette,3 when asked ―what happened

that night,‖ Wilkes said, ―I did it . . . I just remember hitting.‖ Later, Wilkes was offered food

and another cigarette.

The offer of a cigarette specifically in exchange for information could be viewed as an

inducement leading to an involuntary confession. However, given the lapse in time between the

cigarette and this admission and that Wilkes had already admitted to having flashes of Donna in

a bloody bed and of Avery facedown and bound in her bed, the trial court had sufficient evidence

to conclude that Wilkes’s will was not overcome by the promise of a cigarette. See Anderson v.

3

Without the interview videotape, we cannot determine exactly how much time passed between the offer

of a cigarette and the incriminating statements. Based on the transcript’s length of 140 pages and the total

interview time of 4 hours and 12 minutes, each page covered an average of 1½ to 2 minutes. The

incriminating statements were made 5 pages after receiving the cigarette and 8 pages after the detective’s

offer.

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Terhune, 467 F.3d 1208, 1213 (9th Cir. 2006) (statement not involuntary when detectives

withheld cigarettes until defendant agreed to talk) (rev’d en banc on other grounds, 516 F.3d 781

(9th Cir. 2008)).

5. Wilkes’s attempt to end the interrogation. Finally, Wilkes argues that his April 26

interview was involuntary because he attempted to end it several times before making

admissions. Wilkes points to the following phrases as attempts to end the interrogation: ―Well, I

have, I’m still high and you’re going to go away,‖ ―No I can end this today with me, and I don’t

have to know shit,‖ and ―I don’t want to talk about it no more. I don’t want to think about it.

Cause right now I’m still high.‖ After each statement, Wilkes continued conversing with the

detective.4

An assertion of the Miranda right to remain silent must be clear and unequivocal. Clark,

808 N.E.2d at 1190. In determining whether a defendant has asserted this right, the statements

are considered as a whole. Id. Mere expressions of reluctance to talk do not invoke the right to

remain silent. Id. This Court has held several times that raising doubts or expressing concern

about continuing followed by continued dialogue do not unambiguously assert the right to

remain silent. Id.; Griffith v. State, 788 N.E.2d 835, 842 (Ind. 2003) (―I might as well not say

anything more,‖ followed by disclosure of information, did not invoke the right to remain silent);

Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997) (―I’m through with this,‖ followed by

continued dialogue did not unambiguously assert the right to remain silent). Here, after each of

Wilkes’s purported attempts to end the interrogation, he continued to speak with the detective.

4

For example, after the latter statement, the dialogue continued on:

DETECTIVE: But, but don’t you . . .

WILKES: and I don’t . . .

Q: I understand that, but the truth is there.

A: But I don’t just don’t want to know, that high and I really don’t want to think about it.

Q: Ok, don’t you want to get it . . . You told me while ago you wanted to tell the truth,

you wanted to get it off your . . .

A: I think this time tomorrow morning, I’ll be dead too.

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The trial court’s conclusions that Wilkes did not unequivocally assert his right to remain silent,

and that his further statements were voluntary, were supported by sufficient evidence.

B. April 27 Interview

Wilkes argues that statements made in the course of his April 27 interview are

inadmissible because the interview was not preceded by a Miranda warning. The April 27

interview began at 2:35 a.m., less than four hours after the April 26 interview ended.

A similar claim was made by the defendant in Ogle v. State, 698 N.E.2d 1146 (Ind.

1998). In Ogle, the defendant signed a waiver of Miranda rights and was questioned.

Questioning stopped for less than an hour, and then resumed without a second Mirandizing. We

noted:

Although it might be the better practice to reiterate such warnings after an

interruption of questioning, a readvisement is only necessary when the

interruption deprived the suspect of an opportunity to make an informed and

intelligent assessment of his interests. If the interruption is part of a continual

effort to investigate the suspect, then the suspect’s interests remain fairly clear.

698 N.E.2d at 1149 (internal citations omitted); cf. 2 Wayne R. LaFave et al., Criminal

Procedure § 6.8(b) (3d ed. 2007) (―It is generally accepted that fresh warnings are not required

after the passage of just a few hours.‖). Although the break in Ogle was shorter than the break

here, the interruption in Wilkes’s interrogation was part of a continuing investigation, and

Wilkes’s interests remained clear. The trial court therefore did not err in admitting the April 27

interview at trial.

C. April 28 Media Interview

After Wilkes was in custody, the media requested an interview. The police presented

Wilkes with a standard media consent form, which he signed. The consent form did not advise

Wilkes of his right to counsel or of his right to refuse the interview, although the line above

Wilkes’s signature stated: ―INMATE MAY WAIVE ATTORNEY’S SIGNATURE BY

SIGNING BELOW.‖ The officer who provided the form to Wilkes testified that he did not

know whether Wilkes had a lawyer. During the media interview, Wilkes confessed to the

murders and to molesting Avery.

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Wilkes argues that he should have been advised of his right to counsel before taking the

media interview. Wilkes cites Standard 8-2.1 of Part II of the ABA Standards for Criminal

Justice, which suggests that officers should not

exercise their custodial authority over an accused individual in a manner that is

likely to result in . . . the interviewing by representatives of the news media of a

person in custody except on request or consent by that person to an interview after

being informed adequately of the right to consult with counsel and the right to

refuse to grant an interview.

Recently in Ritchie v. State this Court discussed whether Miranda warnings are required

before media interviews. 875 N.E.2d 706, 717 (Ind. 2007). We concluded that Miranda

warnings are required only to overcome the ―inherently coercive and police-dominated

atmosphere inherent to a custodial interrogation,‖ and that ―civilians conducting their own

investigation need not give Miranda warnings.‖ Id.; see also 2 LaFave, supra, § 6.10(b) (―[I]t is

clear that Miranda does not govern interrogation by private citizens acting on their own. This

covers . . . a newspaper reporter . . . .‖). The ABA Standards have not been adopted in Indiana.

Unless and until the ABA Standards have been adopted and apply prospectively, we reaffirm our

holding in Ritchie and conclude that the trial court did not err in rejecting Wilkes’s claim that the

media interview must be excluded from evidence.

D. April 28 Interview

On April 28, approximately thirty-seven hours after his April 27 interview by police,

Wilkes was questioned by police a third time. This interrogation was preceded by Miranda

warnings. Wilkes argues that statements in this interview were inadmissible because ―the State

failed to prove it was free from the taint of the earlier statements.‖ Because we find no taint in

Wilkes’s earlier interviews, we conclude that the trial court did not err in admitting the April 28

interview.

II. Evidentiary Issues

Wilkes claims three errors in the admission of evidence at his trial. As to two of these,

we do not agree that there was error, and as to the third we find that any error was harmless.

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A. Indiana Evidence Rule 404(b)

Indiana Evidence Rule 404(b) prohibits evidence of other crimes, wrongs, or acts to

―prove the character of a person in order to show action in conformity therewith.‖ However, the

Rule expressly allows such evidence for other purposes, including proof of motive. In this case,

Wilkes confessed to sexual activity with thirteen-year-old Avery, and the State successfully

sought to admit these confessions as evidence relevant to Wilkes’s motive for the murders.

Wilkes does not contend that this evidence is irrelevant to motive. Nor does he claim that the

prejudicial effect of this evidence outweighs any probative value. Rather, he contends that the

corpus delicti rule bars proof of his confession to child molesting.

In Indiana, a crime may not be proven based solely on a confession. Admission of a

confession requires some independent evidence that a crime was committed. Workman v. State,

716 N.E.2d 445, 447 (Ind. 1999). Wilkes points out that there is no evidence other than his

confession that the crime of child molesting was committed. Wilkes objected generally that his

confessions to sexual activity with Avery were inadmissible as prior crimes or bad acts, but did

not raise the corpus delicti point. Although the issue is not preserved for appeal, we choose to

address it.

The corpus delicti rule does not apply to evidence of other crimes permitted by Evidence

Rule 404(b). The purpose of the corpus delicti rule is to prevent conviction for a crime that did

not occur. Sweeney v. State, 704 N.E.2d 86, 111 (Ind. 1998); 1 Wayne R. LaFave, Substantive

Criminal Law § 1.4(b) (2d ed. 2003). That purpose does not apply to evidence of crimes offered

under Rule 404(b) to establish motive or intent because there is no danger of conviction for those

crimes. Moreover, the corpus delicti rule does not apply here because admission under Evidence

Rule 404(b) does not require proof sufficient for conviction. Evidence of other wrongs or acts is

admissible if it is relevant to establish motive, intent, identity, and the like, irrespective of

whether there has been a conviction. Prior crimes offered under Rule 404(b) need not establish

the crime beyond a reasonable doubt. See 22 Charles Alan Wright & Kenneth W. Graham, Jr.,

Federal Practice and Procedure § 5249, at 535 (1978) (addressing the same issue under Federal

Rule of Evidence 404(b)). The same reasoning applies to other rules of sufficiency of evidence,

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including corpus delicti. Accordingly, the trial court correctly admitted Wilkes’s confessed

molestation of Avery.

B. Indiana Evidence Rule 702(b)

Wilkes argues that it was error to admit phenolphthalein test results because the State did

not lay a foundation explaining the test’s reliability. Indiana Evidence Rule 702(b) governs the

admissibility of expert scientific testimony. The Rule provides that expert scientific testimony is

admissible only if ―the court is satisfied that the scientific principles upon which the expert

testimony rests are reliable.‖ Reliability of a test may be established by judicial notice or by a

sufficient foundation to establish reliability. Malinski v. State, 794 N.E.2d 1071, 1084 (Ind.

2003). The trial court’s decision to admit scientific testimony under Rule 702(b) is reviewed for

abuse of discretion. Rondon v. State, 711 N.E.2d 506, 516 (Ind. 1999).

On the third day of a five-day guilt phase, the court held a hearing on Wilkes’s motion in

limine to preclude the State’s witness from testifying that a stain from Wilkes’s shoe on April 26,

2006 tested ―presumptive‖ for blood using a phenolphthalein test. At the hearing, the witness,

who had been trained in the identification of body fluids and had testified as an expert sixty

times, testified that she performed a phenolphthalein test that indicated the ―possibility‖ of the

presence of blood in the stain. An additional test would be required to determine whether the

substance was in fact blood. The witness further testified that she had performed hundreds,

perhaps thousands of phenolphthalein tests and that the ―majority of the time,‖ if a presumptive

test was followed by a definitive test for blood, the latter confirmed the presence of blood. Here,

no additional test was performed to confirm that the stain on Wilkes’s shoe was blood because

the quantity was insufficient to do both a blood test and a DNA test. The DNA test revealed that

the stain was biological matter from Sydne. After hearing this testimony, the trial court ruled

that the uncertainty of the phenolphthalein test went to its weight, not its reliability, and allowed

the witness to reprise this testimony at trial.

When the expert did testify and presented her report that the stain tested ―presumptive‖

for blood, Wilkes made no further objection. The State argues that Wilkes’s failure waived any

error in permitting the expert to testify that the stain tested presumptive for blood. The State is

correct that a failed motion in limine to exclude evidence ordinarily does not eliminate the

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requirement that a party must object at the time the evidence is offered at trial to preserve the

issue for appeal. Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003). But this rule arises from

cases where motions in limine, as is usually the case, were made before trial. The rule is derived

from a desire to give the trial court the opportunity to reconsider the ruling in light of subsequent

developments at trial. See id. Here the trial court’s ruling on the motion was made after a mid-

trial hearing and the witness testified immediately after the hearing, so the issues were fully

developed and fresh in the trial court’s mind. Under these circumstances we find the issue

preserved for appeal.

Although the issue is preserved, we find it without merit. First, by far the most damaging

part of this testimony was that Sydne’s DNA was found in the stain. Whether it was from blood

or another source, Sydne died from over twenty blows that left not only her blood but also other

tissue on a weapon found at this horrific scene. Second, and equally important, to the extent

there was any significance to whether the stain was blood rather than some other biological

material bearing Sydne’s DNA, the State’s witness explained that the test was only presumptive

and required confirmation to establish conclusively that the stain was in fact blood. She also

explained that a presumptive test made it more probable than not that a definitive test would

confirm the presence of blood. The test was therefore admissible evidence, if not conclusive, on

this point.

C. Evidence Rule 704(b)

Indiana Evidence Rule 704(b) prohibits witnesses from giving opinions concerning guilt

in a criminal case. Wilkes argues that a statement made by the detective during the April 26

interrogation was an opinion of Wilkes’s guilt and should have been excluded.

Before trial, Wilkes requested that the court redact from the transcript ―any statements

made by the police that implicitly or explicitly convey the officer’s opinions concerning

Wilkes’s intent, guilt or innocence . . . .‖ The trial court denied this motion. Wilkes renewed his

objection at trial, and it was overruled. At trial, a transcript of the April 26 interrogation was

admitted as an exhibit. The transcript contained the following conversation:

DETECTIVE BROWN: Mmm-hmm. Alright, am I bringing up any . . .

WILKES: No

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Q: Memories. for Danny, Danny

A: I’m freaking out.

Q: Danny look at me buddy. Danny . . . any cords used to hold somebody down?

A: Yeah . . .

Q: Get mad. Put something around their throats . . . this is what happened didn’t

it. Danny, it happened . . .

A: I believe it happened.

Q: It happened. And you were there, you were there and we know it, and you

know it, or we wouldn’t be up here.

Wilkes argues that Detective Brown expressed his opinion of Wilkes’s guilt when he stated, ―It

happened. And you were there, you were there and we know it, and you know it, or we wouldn’t

be up here.‖

In Smith v. State, 721 N.E.2d 213, 217 (Ind. 1999), we held that admission of an officer’s

statement ―I thought it was you‖ was error under Rule 704(b). We also found that the Rule

prohibited admission of the following statement by an interrogating detective: ―Something

stinks. So basically all we’ve got is your word that Boogie shot this guy. Is that what you’re

telling us . . . I think you was looking out for Boogie.‖ Lampkins v. State, 778 N.E.2d 1248,

1251 (Ind. 2002). The detective’s statement here is similarly problematic under Rule 704(b), and

the trial court erred in admitting it. However, admission of the detective’s statement in this

case—one line in an over one-hundred-page interview transcript and several days of evidence—

was relevant only to guilt, not the penalty, and was harmless in view of the forensic evidence and

confessions supporting Wilkes’s guilt.

III. Constitutionality of Indiana’s Death Penalty Statute

A. Use of “Special Verdict” Forms

Wilkes challenges the provision in Indiana’s death penalty statute that a penalty phase

jury ―shall provide a special verdict form for each aggravating circumstance alleged.‖ Ind. Code

§ 35-50-2-9(d) (2004). Wilkes contends this provision is invalid because it conflicts with

Indiana Trial Rule 49, which abolished ―special verdicts,‖ and therefore violates the separation

of powers required by Article 3 of the Indiana Constitution by invading the province of the

Judiciary.

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The findings required by the statute to be reflected in the document referred to by the

statute as a ―special verdict form‖ are qualitatively different from the special verdicts to which

Trial Rule 49 refers. In a conventional trial contemplated by Trial Rule 49, the jury must resolve

all matters submitted to it. Special verdicts were abolished to eliminate the confusion and lack of

finality generated by a maze of potentially confusing subsidiary questions. But the form required

by the death penalty statute does not ask for preliminary or subsidiary findings leading to the

ultimate verdict. Rather, it sets out the jury’s findings as to the ultimate facts required to be

resolved by the jury in a death penalty case. The jury may, but is not required to, reach a

recommendation as to the penalty. The form thus documents whether the jury finds the

defendant eligible for the enhanced penalty.

Use of the form is necessitated by the Sixth Amendment right to jury trial as applied to

the two-phased trial required by the death penalty statute. The Indiana death penalty statute

requires that one or more statutorily identified ―aggravating circumstances‖ be found before a

defendant is eligible for the death penalty. I.C. § 35-50-2-9(a). In this case, these circumstances

were multiple murders and a killing of a child under twelve years of age. The statutory provision

for special verdicts is designed to assure compliance with the federal constitutional requirements

announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584

(2002). These cases established that the Sixth Amendment requires that the jury find all matters

necessary to enhance the punishment. Because the Sixth Amendment to the Federal Constitution

requires these jury findings, we do not regard the statute as conflicting with the general

prohibition against special verdicts. Rather, it provides a necessary step in determining whether

the defendant is eligible for the death penalty. We therefore accept the provision for special

verdicts as a proper means of implementing the requirement that a statutory aggravating

circumstance be found by a jury before a defendant is eligible for the death penalty.

B. Sentencing by the Court

Under Indiana’s death penalty statute, if the jury makes a recommendation as to sentence,

the trial court is to sentence ―accordingly.‖ I.C. § 35-50-2-9(e). The following subsection, I.C. §

35-50-2-9(f), provides that if a jury is unable to reach a recommendation as to penalty, the court

is to proceed ―as if the hearing had been to the court alone.‖ Wilkes argues that, as a matter of

statutory construction, this section does not allow the court to rely on the jury findings as to

14

aggravators or weighing. We agree that the trial court must make its own determination whether

the aggravating circumstance is established beyond a reasonable doubt and whether the

aggravators outweigh the mitigating circumstances.

We take the quoted language from subsection (f) to mean the court is to sentence as it

would have if the case had been tried without a jury. We note that this Court implicitly adopted

that view in State v. Barker:

It is thus conceivable that a penalty phase jury could return a verdict finding one

or more aggravators proven beyond a reasonable doubt, but be unable to reach

unanimous agreement on whether any mitigating circumstances are outweighed

by the aggravating circumstances. Where a jury is thus unanimous in finding one

or more aggravating circumstances proven beyond a reasonable doubt but unable

to agree on a sentence recommendation, Subsection 9(f) applies to instruct that

the court shall ―discharge the jury and proceed as if the hearing had been to the

court alone.‖ In this event the trial court shall, based upon the evidence presented

to the penalty phase jury, impose a sentence of death or life without parole . . . or

it may impose a term of years.

809 N.E.2d 312, 316 (Ind. 2004). This does not imply that the jury’s findings as to aggravators

or weighing are to be disregarded. To the contrary, Apprendi and Ring require that the jury find

a statutory aggravating circumstance. Without this finding, the defendant’s eligibility for the

death penalty is not established, and no further consideration of the death penalty is required.

If the jury makes the requisite findings but cannot agree on a recommended sentence,

subsection (f) requires the trial court to proceed ―as if the hearing had been to the court alone.‖

Subsection (g) requires the trial court to make the findings identified in subsection (l) ―[i]f the

hearing is to the court alone.‖ One of the findings described in subsection (l) is that the State has

proved beyond a reasonable doubt that at least one statutory aggravator exists. Subsection (l)

also requires the trial judge to find the aggravating circumstance established beyond a reasonable

doubt. The trial court here properly made these subsection (l) findings. Wilkes thus received the

benefit of the requirement under the Sixth Amendment that the jury find the aggravating

circumstances, and also the Indiana requirement that the trial judge independently arrive at the

same finding.

Amicus curiae Marion County Public Defender Agency argues that the directive in

subsection (f) to proceed ―as if the hearing had been to the court alone‖ limits the trial court to

imposing a term of years because the trial court is limited to a term of years in non-death penalty

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and life without parole cases where it sentences ―alone.‖ Amicus also argues that the death

penalty statute creates a right to a jury determination of penalty, making a new penalty phase the

proper remedy if the jury fails to make a recommendation. As we have explained, we think the

2002 amendments were intended to conform Indiana’s statute to the requirements of Apprendi

and Ring. If there has been no waiver of jury trial, a jury must find the aggravating

circumstances, but the death penalty statute also permits a court sentencing to take place if a jury

has been waived. I.C. § 35-50-2-9(d)-(e). We think that if the jury finds aggravating

circumstances but cannot agree on a recommendation, this statute merely permits the court to

exercise its sentencing function ―as if‖ the entire case had been tried without a jury. The result is

that the requirements of subsection (f) apply, including the requirement that the trial court

independently find the aggravating circumstances. But it does not convert the entire case to one

tried free of the death penalty provisions.

C. Violation of Ring v. Arizona

The United States Supreme Court held in Ring v. Arizona that capital defendants are

entitled to a jury determination of any fact on which the legislature conditions an increase in

maximum punishment. 536 U.S. at 589. Wilkes argues that under Ring, a jury must find that

aggravators outweigh mitigators and that death is appropriate. This Court addressed this issue in

Ritchie v. State, holding

the federal constitution requires that eligibility for the death penalty be

determined by the jury beyond a reasonable doubt, but it does not require that the

decision whether to impose death be made by the jury, and it does not require the

weighing, whether by judge or jury, to be under a reasonable doubt standard.

809 N.E.2d 258, 266 (Ind. 2004), cert. denied, 546 U.S. 828 (2005). We reaffirm that view.

IV. Sentencing Issues

A. Counsel’s Concession of Aggravators and that Aggravators Outweighed Mitigators

Wilkes argues that the trial court erred in finding that Wilkes conceded that all the

aggravators were proved beyond a reasonable doubt and the aggravators outweighed the

mitigators.

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Statements by counsel in closing argument may be sufficient to constitute admission of

an aggravator. Trusley v. State, 829 N.E.2d 923, 926 (Ind. 2005) (counsel’s statement ―that the

victim of the crime was less than twelve years of age‖ was an admission).

In opening statement and closing argument of the penalty phase, defense counsel made

several statements that could be viewed as concessions. These include:

We’re not offering excuses or justifications for what happened. They’re three

innocent people that were brutally murdered and there’s a weighing that the Court

has instructed you to do. When you take those lives that were taken, there is no—

there is no mitigating evidence, there’s nothing about Danny’s past or his

upbringing that can possibly ever outweigh those three lives that were lost . . . .

....

We offer no excuse for the conduct that resulted in their horrific death . . . but

you’ve found him guilty of that and we acknowledge that the basis for bringing

this charge that we’ll ask you to recommend to the Court that Danny Wilkes be

executed is based on the aggravating circumstances that . . . more than one person

and one of those people under the age of 12, that’s what the aggravating

circumstances are in this case, and we think there is nothing worse than that.

....

[W]e believe that the information that’s been provided to you through these

witnesses should convince you and will convince you that Mr. Wilkes deserves to

spend the rest of his life in prison. . . .

Like the death penalty, imposition of life without parole requires a finding of a statutory

aggravator and that the aggravator outweighs mitigators. These statements of counsel, like those

in Trusley, are therefore sufficient to constitute admissions to both multiple murders and a victim

under twelve years old, and also that the aggravators outweighed the mitigators. The trial court

did not err in finding that counsel conceded these issues. The jury found these aggravators

proved beyond a reasonable doubt and also that they outweighed any mitigators. The trial court

in its sentencing order expressed its independent judgment that the aggravators were proved and

that they outweighed the mitigators. Whether defense counsel conceded these matters is

therefore of no significance.

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B. Adjustment to Incarceration as a Mitigating Circumstance

At his sentencing hearing, Wilkes presented evidence that he had adjusted to

incarceration, behaved well in prison, and could safely serve a sentence of life without parole.

Wilkes argues that the trial court was required to consider this evidence as a mitigating

circumstance and that the court did not do so.

Wilkes cites Skipper v. South Carolina, 476 U.S. 1, 4 (1986) for the proposition that

adjustment to incarceration is a mitigating circumstance that the trial court was required to

consider. In Skipper, the trial court excluded evidence of the defendant’s good behavior in

prison. The Supreme Court reversed and held that this evidence could not be excluded from the

sentencer’s consideration because it might have served as a basis for a sentence less than death.

Id. at 5. The Supreme Court remanded for a new sentencing hearing in which the defendant

could ―present any and all relevant mitigating evidence that is available.‖ Id. at 8. We agree that

Skipper established that positive adjustment to incarceration is relevant mitigating evidence and

may not be excluded from the sentencer’s consideration. As the Court noted, this is an

application of the general rule that ―the sentencer may not refuse to consider . . . any relevant

mitigation evidence.‖ Id. at 4 (quotation omitted) (citing Eddings v. Oklahoma, 455 U.S. 104,

114 (1982); Lockett v. Ohio, 438 U.S. 586, 604 (1978)). More recently the Supreme Court

reaffirmed that ―the sentencer may not be precluded from considering, and may not refuse to

consider, any constitutionally relevant mitigating evidence.‖ Weeks v. Angelone, 528 U.S. 225,

232 (2000); see also Tennard v. Dretke, 542 U.S. 274, 285–87 (2004) (discussing Skipper with

approval).

Unlike the defendant in Skipper, Wilkes was not prevented from presenting this evidence

to the jury. Although the trial court is obligated to receive and consider mitigating factors, the

trial court is not obligated to accept the defendant’s contentions as to what constitutes a

mitigating circumstance or to give the proffered mitigating circumstances the same weight the

defendant does. Gross v. State, 769 N.E.2d 1136, 1140 (Ind. 2002). Nor is the trial court

obliged to accept the opinions of experts. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.

2004). The trial court is required to accept as mitigating a circumstance that is established by the

facts and as a matter of law is to be considered. Anglemyer v. State, 868 N.E.2d 482, 490–91

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(Ind. 2007), reh’g granted, 875 N.E.2d 218 (Ind. 2007). But it is not reversible error to fail to

consider a factor that is not significant in relation to all the circumstances of the case.

Anglemyer, 875 N.E.2d at 220-21 (opinion on rehearing).

Here, the trial court was required to consider all evidence relevant to mitigation, which,

as the Supreme Court held in Skipper, includes evidence of positive adjustment to incarceration.

The jury heard this evidence and found that the aggravating circumstances outweighed the

mitigating circumstances as a whole. After the jury was unable to reach a recommendation as to

the sentence, the trial court independently evaluated the aggravating and mitigating

circumstances. With regard to the evidence that Wilkes adjusted well to incarceration, the

court’s sentencing order states:

Defense counsel suggests that a mitigating circumstance is that the defendant can be

safely incarcerated and punished within the Indiana Department of Corrections. The

Court does not find that this is a mitigating circumstance.

We do not agree with Wilkes’s contention that this language demonstrates that the trial court

failed to consider Wilkes’s adjustment to incarceration as a mitigating circumstance. The trial

court used identical language in response to the claim that Wilkes had no significant history of

prior criminal conduct, which has long been recognized as a potential mitigating circumstance.

We take these as statements that the trial court weighed these proffered mitigating circumstances

and determined that in this case neither was entitled to significant weight.

The court, like the jury, after hearing the proffered evidence, ultimately concluded that

the aggravating circumstances outweighed the mitigating circumstances. Under Skipper, this is

all that is required. The court also independently determined that the death sentence should be

imposed after considering all of the aggravating and mitigating circumstances. Under the

circumstances of this case—a triple murder including two children—we cannot say that the trial

court abused its discretion.

C. Sydne’s Age as an Aggravating Circumstance

Wilkes argues that his Sixth Amendment rights were violated because the fourth

aggravating circumstance—that one of the victims was less than twelve years old—was not

found beyond a reasonable doubt by a jury. Wilkes contends that the age of the victim was not

an element of murder so that issue was never presented to the jury or returned in a verdict by

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proof beyond a reasonable doubt. But during the guilt phase of trial, the State presented

undisputed evidence that Sydne was eight years old. At the penalty phase, the jury returned a

verdict form finding that ―the State of Indiana has proven beyond a reasonable doubt the charged

aggravating circumstance that . . . the victim of that murder, Sydne Claspell, was less than twelve

(12) years of age.‖ Evidence at the guilt phase may be considered at the penalty phase. I.C. §

35-50-2-9(d) (―The jury or the court may consider all the evidence introduced at the trial stage of

the proceedings . . . .‖). The evidence of Sydne’s age presented in the guilt phase was sufficient

to support the jury’s finding in the penalty phase as to this aggravating circumstance.

D. Consideration of Other Criminal Acts

Wilkes argues that the trial court erred in considering his molestation of Avery in

determining whether to find Wilkes’s lack of serious criminal history as a mitigating

circumstance. In its sentencing order the trial court found

that the defendant had no prior felony convictions. He did have five (5)

misdemeanor convictions, four (4) of which were alcohol offenses. He was also

charged with felony non-support in the Pike Circuit Court, which case was

recently dismissed because of the defendant’s convictions in this case. Finally,

the defendant has admitted that, prior to the date of the murders herein, and on

one or more occasions, he committed the crime of child molesting with regard to

victim Avery Pike.

Wilkes contends that the corpus delicti rule precluded the trial court from considering his sexual

activity with Avery because no evidence other than his confession was offered to establish the

sexual activity.

As explained in Part II.A., supra, the corpus delicti rule serves to prevent conviction for

crimes that never occurred. It does not prohibit consideration in sentencing of facts admitted by

the defendant. Uncharged crimes may be considered in assessing ―lack of criminal history‖ as a

claimed mitigating circumstance. Rouster v. State, 600 N.E.2d 1342, 1348–49 (Ind. 1992).

Similarly, relevant evidence of another crime is admissible to rebut the defendant’s claimed lack

of criminal history even if that evidence may not be sufficient to support a conviction. The trial

court did not err in considering Wilkes’s admitted sexual activity with Avery to rebut Wilkes’s

claimed lack of criminal history.

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E. The Jury’s Failure to Recommend a Sentence

Wilkes argues that this Court should remand for resentencing because the trial court

should have considered as a mitigating factor the jury’s inability to arrive at a unanimous

sentencing recommendation. Wilkes notes that Indiana Code subsection 35-50-2-9(c)(8) permits

the trial court to consider any other circumstances appropriate for consideration as mitigators.

He contends that the jury’s failure to recommend a sentence is a factor to be considered in

mitigation. The State responds that subsection (f) implies that the jury’s inability to recommend

a sentence is irrelevant because in that case sentencing ―shall proceed as if the hearing had been

to the court alone.‖

This Court has previously divided over this issue. In Roche v. State, 596 N.E.2d 896

(Ind. 1992), the jury was discharged after being unable to reach a recommendation, and the trial

court imposed a sentence of death. This Court held that ―[N]o meaning should be interpreted

from the jury’s failure to reach a recommendation. Likewise, the failure to reach a

recommendation should not be considered as a mitigating factor during the penalty phase.‖ Id. at

899. Justice DeBruler, joined by Justice Krahulik, dissented, reasoning that

the quandary of the jury represents at least the sentiment of one conscientious

juror, who survived voir dire, who heard the shocking evidence of sudden injury

and death, who voted for conviction, and finally whose conscience could not

support imposition of the death penalty. In my opinion, that sentiment cannot

rationally be rejected as a mitigating circumstance as falling within the catch-all

. . . . The weight of it is not great, falling I would say in the low range.

Id. at 902.

The view of the Roche majority was upheld in Burris v. State, 642 N.E.2d 961 (Ind.

1994), despite Justice Sullivan’s separate opinion, which agreed with Justice DeBruler’s dissent

in Roche. The Roche and Burris majority opinions were also upheld in Holmes v. State, 671

N.E.2d 841 (Ind. 1996), where Justice DeBruler wrote for the majority:

this court has twice held over vigorous dissent, including that of the author of this

opinion, that a jury’s inability to reach a recommendation need not be considered

as a mitigating circumstance and has no effect upon subsequent court sentencing

procedure.

Id. at 851. Finally, in Dunlop v. State, 724 N.E.2d 592, 600 (Ind. 2000), Justice Sullivan’s

dissenting opinion, joined by Justice Rucker, mentioned the jury’s inability to reach a unanimous

21

recommendation as a mitigating circumstance in a life without parole case, but this issue was not

addressed by the majority.

In this case, the trial court considered itself bound by Roche and concluded that it could

not consider the jury’s lack of recommendation in selecting a penalty. The trial court noted that

subsequent statutory amendments and case law could be viewed as relevant to the issue, but

appropriately left any change in the law to this Court.

We last visited this issue in 1996. In 2002, the General Assembly amended the death

penalty statute to make the jury’s sentencing recommendation binding on the judge in most

circumstances. I.C. § 35-50-2-9. We think this increased emphasis on the role of the jury

provides a reason to reconsider the Roche line of cases. The lack of unanimity among the jurors

does not bear on the defendant’s conduct or any facts that tend to lessen his culpability. It does,

however, demonstrate a level of uncertainty among the citizens who considered the evidence as

to the appropriate penalty. It is therefore more properly considered a relevant consideration than

a mitigating circumstance, but it is a factor the trial court should be permitted to consider in

determining the appropriate sentence. We therefore reach the same result as the Roche and

Burris dissenters and hold that it is ―appropriate‖ for the trial court to consider the fact that the

jury—whose recommendation would otherwise be binding—could not agree. We do not find the

trial court’s adherence to then-existing precedent to be error, much less reversible error. The

trial court expressly stated its independent conclusion that the aggravating circumstances

outweighed the mitigating circumstances and thus the death penalty was appropriate.

F. Appellate Rule 7(B) Claim

Article 7, Section 4 of the Indiana Constitution gives this Court power in all criminal

appeals ―to review and revise the sentence imposed.‖ Indiana Appellate Rule 7(B) provides that

this Court may revise a sentence ―if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.‖ Wilkes requests this Court to consider all of his arguments and his

individual characteristics and determine that his death sentences are inappropriate.

Wilkes presented evidence regarding his character. As the trial court found, Wilkes has

no prior felony convictions. However, he did admit to drug use and to molesting Avery on

22

multiple occasions. Wilkes presented evidence of a terrible childhood, including neglect,

physical abuse, sexual abuse, alcoholic parents, removal from the home, and time in institutions.

Wilkes also presented evidence that he is addicted to several drugs and has suffered from long-

standing depression since the age of eleven. Finally, Wilkes argues that he can be safely

incarcerated and that his life has and will continue to show ―redeeming qualities,‖ such as

helping others. We believe that these factors have some mitigating weight, as does the fact that

the jury could not agree on a sentencing recommendation. As in all sentencing, however, we

give considerable deference to the ruling of the trial court. We cannot say that the death

sentences in this case are inappropriate. The nature of the offense is a triple murder of a mother

and her two children. The murders, especially of Donna and Sydne, were committed in a

particularly gruesome manner. We have upheld death sentences in similar cases. E.g., Ward v.

State, 903 N.E.2d 946, 962–63 (Ind. 2009) (upholding death sentence for ―brutal and savage

slaying‖ and rape of fifteen-year-old girl); Baer v. State, 866 N.E.2d 752, 766 (Ind. 2007)

(upholding death sentence for ―brutal and savage slaying of a four-year old and her young

mother‖).

Conclusion

Wilkes’s convictions and death sentence are affirmed.

Shepard, C.J., and Sullivan and Rucker, JJ., concur.

Dickson, J., concurs in result with separate opinion.

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Dickson, Justice, concurring in result.

I concur except with respect to the Court’s departure from Roche v. State, 596 N.E.2d

896 (Ind. 1992), and its progeny. I continue to believe that a jury’s inability to reach a

unanimous sentencing recommendation is logically unrelated to the defendant’s conduct or

personal circumstances and thus is irrelevant as a consideration in determining the appropriate

sentence for a defendant.