Overstreet v. State

Attorneys for Appellant

Teresa D. Harper

Bloomington, IN

Jeffrey Baldwin

Indianapolis, IN

Attorneys for Appellee

Steve Carter

Attorney General of Indiana

Timothy W. Beam

Deputy Attorney General

Indianapolis, IN

IN THE

INDIANA SUPREME COURT

MICHAEL DEAN OVERSTREET

Appellant (Defendant below),

v.

STATE OF INDIANA

Appellee (Plaintiff below).

)

) Supreme Court No.

) 41S00-9804-DP-217

)

)

)

)

APPEAL FROM THE JOHNSON SUPERIOR COURT 2

The Honorable Cynthia S. Emkes, Judge

Cause No. 41D02-9711-CF-00158

ON DIRECT APPEAL

February 24, 2003

SULLIVAN, Justice.

Defendant Michael Dean Overstreet was convicted of murder, rape, and

criminal confinement and sentenced to death for abducting, sexually

assaulting, and killing a young woman. The principal aggravating

circumstance supporting the sentence is intentional murder while committing

rape. In this opinion, we review Defendant’s claims that evidence against

him was improperly admitted at his trial, that the evidence was

insufficient to sustain the conviction for rape, and that he should not

have been sentenced to death. Our review finds his claims unavailing and

we affirm the convictions and death sentence.

Background

Many of Defendant’s claims in this appeal relate to the way in which

the evidence against him was obtained or presented at trial. As such, we

begin with a rather detailed review of that evidence.

The facts, presented in the form most favorable to the trial court’s

judgment, indicate that at 10:00 p.m. on September 26, 1997, 18-year old

Eckart finished her shift at Wal-Mart. Her boyfriend, Anthony Evans, and

his mother met her after her shift and the three shopped at the Wal-Mart

for about an hour. Afterward, Eckart decided to go home because it was

late. Evans decided to go home as well.

Eckart and Evans left for their respective homes in separate cars.

Both headed north on U.S. 31 but Eckart turned right onto Earlywood Drive

and Evans continued north on U.S. 31. Evans testified that he did not see

her alive again.

Between midnight and 12:30 a.m., Eckart’s car was found at the

intersection of Graham and Earlywood Drive by two passers-by. The car was

slightly off the road, its lights were on, the keys were in the ignition,

and Eckart’s purse was on the car seat. The police were called to

investigate.

Franklin Police Officer Michael Moore drove to the scene and saw

Eckart’s car on the side of the road. The car’s rear bumper had been

damaged but the car was otherwise still in working order. Eckart’s mother,

Connie Sutton, testified that she had not noticed the mark on the car

before. Police searched the area but did not find Eckart.

Defendant’s brother, Scott Overstreet, testified that Defendant

telephoned him sometime after midnight on September 27, 1997, and asked him

to come to the Franklin Days Inn because his car had broken down and he

needed a ride home. When Scott arrived at the hotel, Defendant approached

him. Defendant said that he and his “girlfriend” had been drinking and

asked Scott to drive him and his girlfriend to Edinburgh in Defendant’s

van. In the periphery of his vision, Scott saw something white in the back

of the van.

Scott further testified that as he was driving southbound on Highway

31 toward Edinburgh, Indiana, Defendant asked him to drive to Camp

Atterbury instead because he had “taken a girl” and was going to take her

into the woods and get her lost. (R. at 3223, 3226, 3229.) Scott followed

Defendant’s directions, finally stopping at a gravel turnaround in Camp

Atterbury. Defendant asked Scott to come pick him up in two hours but

Scott refused. Defendant then told Scott to have Defendant’s wife, Melissa

Overstreet, pick him up at the Atterbury shooting range in two hours.

Scott placed his hands over his face while Defendant got out of the van.

After hearing the sliding door to the van close, Scott drove to

Defendant’s home and gave Melissa Defendant’s instructions. Melissa drove

Scott back to his car at the Days Inn. She then returned home to ask

Scott’s wife to baby-sit while she went to pick up Defendant.

Melissa testified that before driving to the shooting range, she

searched the van and found several empty shell casings and a container of

mace that she had not seen before that night. Melissa then drove to the

shooting range where she found Defendant sweating with his flannel shirt

unbuttoned. He was also carrying a blanket and had a gun strap over his

shoulder.

When Defendant and Melissa arrived home, Defendant immediately went

into the bathroom. He came out, undressed, and went to bed. Later that

night, Scott called Defendant’s home two or three times because he wanted

his wife to come home. After one of these calls, Defendant got on the

phone. Scott told Defendant that he had said “some pretty fucked up

stuff.” (R. at 3234.) Defendant explained that he could not get caught

because he had a child and a wife and that his “girlfriend” had a boyfriend

and lived with her father. Defendant then hung up the phone, got dressed,

and walked out of the house. An hour or so later, Melissa heard the van

return. Defendant came back in the house, and went back to bed.

The following Monday, September 29, 1997, Defendant told Melissa that

he wanted to clean the van. After going to Defendant’s father’s house to

borrow money, Defendant, Melissa, and their children drove to Mike’s

Express Car Wash. Defendant spent about an hour cleaning and vacuuming the

inside rear of the van. When Melissa started cleaning the front of the

van, Defendant told her not to worry about it.

Melissa testified that in the days after Eckart’s disappearance,

Defendant watched the news with increased frequency. He would sit in front

of the television, flipping from channel to channel, watching news

coverage. When a station was airing a story on Eckart, he would watch it

and after the story was finished he would resume switching channels.

Melissa stated that Defendant “got to the point where he knew which channel

was going to have the coverage over Kelly Eckart first.” (R. at 3886.)

Defendant also wanted to read news articles concerning Eckart. When he

finished reading a story on Eckart, he would usually stop reading the

newspaper.

On September 30, 1997, Shelia Woodcock and Pat Burks were looking for

some puppies they had seen on the side of the road in Camp Atterbury.

Instead, Shelia Woodcock found Eckart’s body lying in a ravine. She

reported the discovery to the police.

Indiana State Police Trooper J.D. Maxwell went to the scene. He

found Eckart with her bib overalls down around her ankles. She was wearing

her bra and panties and her white shirt was tucked in the back of her bra.

She also had a ligature around her neck.

On October 18, 1997, Franklin Chief of Police found Eckart’s shoes

and socks stuffed into a pit toilet at Camp Atterbury.

On November 6, 1997, police received a tip that Scott had information

about Eckart’s murder. Scott voluntarily recounted what happened that

night and directed the officers to the gravel turnaround where he had left

Defendant on the morning of September 27, 1997. In a search of the area,

the officers found Eckart’s glasses, hair scrunchie, pager, necklace,

locket, earring posts, and buttons from her overalls.

On November 7-8, 1997, the Franklin Police Department executed search

warrants on Defendant’s home. The police seized a hand-drawn map of Camp

Atterbury and a blanket from the living room. They also seized a carpet

standard from Defendant’s van for analysis. The fibers were found to match

fibers found on Eckart’s shirt and overalls. The officers also measured

the height of the van’s front bumper and found that, at 15-22 inches off of

the ground, it was at the same height as the damaged area of Eckart’s car.

Doctor Michael Allen Clark later conducted an autopsy and discovered

that Eckart’s shoestring and a strap to her bib overalls had been wrapped

around her throat. He also found a circular wound in the forehead

consistent with a gunshot wound. In addition, he discovered numerous post-

mortem abrasions that were caused by dragging her body on the ground. He

concluded that the cause of Eckart’s death was ligature strangulation. The

time of death was estimated to be between 11:00 p.m. on September 26, 1997,

and 6:38 a.m. on September 27, 1997.

Dr. Clark also conducted a sexual assault examination consisting of

taking swabs from Eckart’s mouth, vagina, and anus. He made slides of each

and examined them for the presence of sperm. He identified the presence of

semen in the vaginal test but not in any of the others.

After preparing these slides, Dr. Clark gave them to the evidence

technician, Trooper Maxwell. Trooper Maxwell placed the swabs on

individual envelopes to dry. During the drying process, a lab attendant

moved them across the room. Trooper Maxell then placed the swabs in

different envelopes without knowing whether he placed the swabs in the

corresponding anal, mouth, and vaginal envelopes.

Paul Misner, an Indiana State Police serologist, analyzed the swabs

and slides from Eckart’s sexual assault kit. Based on his evaluation of

the slide and his knowledge, experience, and training, he determined that

Maxwell had placed the vaginal swab in the anal swab envelope and the anal

swab in the vaginal swab envelope. Misner then looked at the slides that

were prepared from the swabs and saw that the vaginal smear slide was

“typical of a vaginal smear slide” and the anal slide was “typical of an

anal slide.” (R. at 4353.) He found no sperm on the anal slide.

Jennie Wood, a DNA analyst, examined a sample of Defendant’s blood and

made a DNA profile using both the polymerase chain reaction (“PCR”) copying

process and short tandem repeat (“STR”) typing system. Using the PCR

process, Wood determined that the sperm found in Eckart’s underwear was

consistent with Defendant’s profile and occurs in approximately 1 in 9

thousand. Using the STR typing system, Wood found that the male fraction

found in Eckart’s underwear was consistent with Defendant’s DNA profile and

occurs in 1 in 12 billion.

Dr. Michael Conneally, a Professor of Medical Genetics and Neurology

at Indiana University, also compared Defendant’s and Eckart’s DNA profiles

with the vaginal slide. He testified that the male fraction in the slide

was a mixture to which Defendant and Eckart could be contributors. He did,

however, compute a statistical significance in that the male fraction

occurs in 1 in 27 million.

Dr. Conneally then compared the DNA profiles with Eckart’s underwear

and found that the male fraction occurred in 1 in 9 thousand using PCR

testing and 1 in 12 billion using STR typing. Dr. Conneally then compared

the DNA profiles with the swabs and found that the male fraction occurred

in 1 in 6 using PCR testing and 1 in 304 million using STR typing. After

Dr. Conneally removed the common gene found in Eckart’s underwear with both

STR and PCR testing, he multiplied the remaining genes to get an overall

chance of this profile that was consistent with Defendant’s profile and

found that it occurs in 1 in 4 trillion.

Due to pre-trial publicity, the jury was drawn from a different

county. The jury found Defendant guilty of murder,[1] felony murder,[2]

rape,[3] class B felony confinement,[4] and class D felony confinement.[5]

Pursuant to the Indiana death penalty statute, the jury then reconvened to

consider the State’s request that Defendant be sentenced to death because

of the following aggravating circumstances:

(1) Defendant committed the murder by intentionally killing Kelly

Eckart while committing or attempting to commit rape;[6]

(2) Kelly Eckart was the victim of a sex crime under Ind. Code § 35-

42-4 (rape) for which Defendant was convicted;[7] and

(3) Kelly Eckart was the victim of criminal confinement under Ind.

Code § 35-42-3-3 for which Defendant was convicted.[8]

The jury recommended that Defendant receive a death sentence. The

trial court subsequently determined that the State established the charged

aggravators beyond a reasonable doubt. After giving weight only to the

first aggravating circumstance listed above, i.e., Defendant’s intentional

killing while committing rape, the court found that this aggravator

outweighed Defendant’s mitigating evidence, and determined death to be the

appropriate sentence. The trial court then entered judgment on the murder,

rape, and Class B confinement counts and sentenced Defendant to death. It

imposed consecutive sentences of 20 years each for the rape and criminal

confinement convictions.

Additional facts will be discussed as necessary.

Discussion

Defendant contends that his convictions should be reversed because

the trial court improperly permitted certain evidence to be used at trial.

We address these claims in parts I and II and IV through VI of this

opinion. He also maintains that there was insufficient evidence to sustain

the convictions, a claim we address in part III. Finally, we address his

claims of sentencing error in parts VII through XII.

I

As described under Background, supra, the State presented DNA

evidence that showed that sperm found in Eckart’s underwear was consistent

with Defendant’s profile. This evidence was derived from a process called

polymerase chain reaction (PCR) and a newer process called short tandem

repeat (STR). Defendant does not contest on appeal the proper admission of

the PCR evidence but does argue that the trial court erred by admitting the

STR analysis.

The results of DNA testing, like any other evidence aided by expert

testimony, must be offered in conformity with the Indiana Rules of

Evidence. Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997); Harrison v.

State, 644 N.E.2d 1243, 1251 (Ind. 1995). Accordingly, DNA testimony

becomes admissible as evidence when the trial court is satisfied that:

“(1) the scientific principles upon which the expert testimony rests are

reliable; (2) the witness is qualified; and (3) the testimony’s probative

value is not substantially outweighed by the dangers of unfair prejudice.”

Ingram v. State, 699 N.E.2d 261, 262 (Ind. 1998) (quoting Harrison, 644

N.E.2d at 1252). Indiana does not recognize a test or specific set of

elements to satisfy reliability of a process under the rules of evidence.

See McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). We review the

trial court’s decision to admit the STR test results for an abuse of

discretion. Ingram, 699 N.E.2d at 262.

Defendant makes no substantial direct attack on the reliability of

the scientific principles supporting STR testing per se.[9] He does not

argue that either Dr. Conneally or Wood, the State’s STR experts, was not

qualified to testify as to the test results. Nor does he argue that the

evidence was unfairly prejudicial. What he does argue, as best we

understand the claim, is this: the only basis that the State arguably gave

the court to pass on the scientific reliability of STR testing was the

testimony of Wood and Dr. Conneally; Wood was not qualified to testify as

to the reliability of the STR process and Dr. Conneally did not; therefore,

the court had no basis to find the evidence scientifically reliable.

While the State might have done more to establish the scientific

reliability of STR testing (Wood does not seem to have been entirely up-to-

speed on the scientific principles upon which STR testing is based), we do

not think Defendant has established reversible error. First, Defendant at

trial made no – and on appeal makes only a modest[10] – argument that STR

testing is unreliable. While the proponent of the evidence bears this

burden at trial, we are now reviewing the trial court’s decision to admit

for abuse of discretion. What we do have here is the testimony of two DNA

experts, the qualifications of whom Defendant does not challenge, and our

own review of STR technology in a recent case. Wood testified that she held

an undergraduate degree in genetics and participated in a year-long

internship-training program dealing with DNA analysis with the Indiana

State Police. She further testified that she worked for four and a half

years as a DNA analyst for the Indiana State Police before she became a

serology analyst for the Greenwood Police Department. She then testified

that based on her education, experience, and training, as well as her

review of relevant scientific literature, STR testing is based on reliable

scientific principles.

And although Dr. Conneally described STR testing as “relatively new,”

he did not question its reliability. He testified that DNA analysts often

rely on STR analysis and that it is a generally accepted technique in the

scientific community.

In Troxell v. State, 778 N.E.2d 811 (Ind. 2002), this court found that

STR testing is generally regarded as reliable – as both the scientific

literature and a multitude of state courts have similarly concluded. Id.

at 815-16 (citing cases).

Under this combination of circumstances, we conclude that the trial

court was within its discretion to admit the STR evidence.

II

Defendant next contends that the trial court erred in admitting the

testimony of Misner, a witness whom Defendant claims “had no expertise or

specialized knowledge in the area of his observation.” (Br. of Appellant

at 23.) The testimony of Misner to which Defendant takes issue was, as

discussed under Background, supra, that swabs taken of Eckart’s vagina were

apparently inadvertently placed in an envelope marked “anal” and swabs

taken of her anus were placed in an envelope marked “vaginal.”[11]

Defendant contends that Misner’s training in serology (the scientific study

of fluid components of the blood) does not qualify him to testify in a

matter relating to the identification of various cells, something which

Defendant contends is the unique specialty of a cytologist.

There is no hard and fast rule as to the quantum of knowledge required

to qualify a witness as an expert in a given field. Fox v. State, 506

N.E.2d 1090, 1095 (Ind. 1987); Reid v. State, 267 Ind. 555, 372 N.E.2d

1149, 1152 (1978). “The witness must be shown to be competent upon the

subject concerning which she is to testify. The extent of the witness’

knowledge affects the weight of her testimony, not its admissibility.”

Burp v. State, 612 N.E.2d 169, 171 n.1 (Ind. Ct. App. 1993) (citing Fox,

506 N.E.2d at 1095). “A witness may be qualified by both training and

practical experience.” Id. (citation omitted).

We disagree with Defendant’s proposition that Misner was required to

have had the expertise of a cytologist in order to have the specialized

knowledge required to observe that the swabs were incorrectly labeled. The

record shows that Misner had substantial experience dealing with matters

relevant to his testimony in this case. He earned a B.S. in biology and

was a serologist for six years before becoming serologist supervisor.

Subsequently, he became a DNA supervisor and later was named the supervisor

of the DNA database at the Indiana State Police Laboratory. As part of his

training, Misner was taught to look at vaginal swabs and to differentiate

between sperm and other types of cells. He also learned to identify and

differentiate vaginal cells from other cell types. At trial, Misner

testified that he had tested several thousand vaginal smears and every one

had vaginal epithelial cells. In light of Misner’s experience, training,

and education, it was not an abuse of discretion for the trial court to

allow his testimony on this matter.

The propriety of the trial court’s admission of Misner’s testimony is

further substantiated by Misner’s other observations supporting his

opinion. Misner testified that the swab labeled “vaginal” contained fecal-

type debris and that the swab labeled “anal” looked “like vaginal swabs.”

(R. at 4352-54.) Misner tested this observation by comparing the

mislabeled swabs with properly labeled anal and vaginal smear slides.

Through this comparison he was able to confirm that the swabs had been

incorrectly identified. We find Misner’s explanation for the discrepancy

in labeling highly plausible. See Jervis, 679 N.E.2d at 881.

III

Defendant contends that the evidence presented at trial was

insufficient as a matter of law to establish that he committed the crime of

rape. This claim is particularly important because the principal

aggravating circumstance supporting Defendant’s death sentence is that he

intentionally killed Eckart while committing or attempting to commit rape.

As such, if the rape conviction does not stand, the death sentence itself

would be in jeopardy.

In reviewing a sufficiency of the evidence claim, the Court neither

reweighs the evidence nor assesses the credibility of the witnesses. See

Garland v. State, 719 N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. We look

to the evidence most favorable to the verdict and draw reasonable

inferences therefrom. See Sanders v. State, 704 N.E.2d 119, 123 (Ind.

1999). A conviction will be upheld if there is substantial evidence of

probative value from which a jury could have found the defendant guilty

beyond a reasonable doubt. See Warren v. State, 725 N.E.2d 828, 834 (Ind.

2000).

Defendant’s contention that there was not sufficient evidence to

establish that he committed rape rests on his claim that “the State relied

solely upon the evidence of sperm being found on specimens taken during the

autopsy of the victim” to prove Defendant raped Eckart. (Br. of Appellant

at 36.) Defendant believes this evidence to be insufficiently “reliable”

to support a rape conviction and, by extension, to show that he

intentionally committed murder during the commission of a rape. (Br. of

Appellant at 38.)

As discussed supra, Defendant was convicted of rape, a Class B

felony. Indiana Code § 35-42-4-1 (1993) defines the crime as follows:

A person who knowingly or intentionally has sexual intercourse with a

member of the opposite sex when:

1) the other person is compelled by force or imminent threat of force;

2) the other person is unaware that the sexual intercourse is

occurring; or

3) the other person is so mentally disabled or deficient that consent

to sexual intercourse cannot be given;

commits rape, a Class B felony.

In this case, three witnesses testified that Defendant’s semen was

found in Eckart’s vaginal region.

Dr. Clark, a forensic pathologist, performed an autopsy on Eckart. As

part of the autopsy he examined the genitals of the decedent and took oral,

vaginal, and anal swabs for future analysis. He made more than one set of

slides from the swabs—giving unlabelled slides he did not intend to keep

for himself to evidence technician J.D. Maxwell during the autopsy. Dr.

Clark marked the slides he kept for himself with the autopsy number, set

them on a cardboard tray meant to hold slides, and placed the tray on a

table where he would know where it was after the autopsy. One of the

technicians then carried the slides to the cytology lab in the hospital

where they were stained and cover slips were affixed. Dr. Clark’s

secretary retrieved the prepared slides for him to examine. Dr. Clark

testified that, upon examination, he “saw sperm in the vaginal smear”

indicating that sperm was in the vagina. (R. at 3641.) He found no

evidence, however, of sperm in the mouth or anus. From this evidence, the

jury could properly infer that Defendant had intercourse with Eckart.

Misner also testified to the presence of Defendant’s semen in Eckart’s

vagina. Defendant’s contention that Misner lacked the specialized

knowledge or expertise to give this opinion is his sole objection to this

testimony. As explained in section II, Misner was qualified to present

this testimony.

We also observe that Eckart’s car was found abandoned on the side of

the road and her body was discovered with a ligature around her neck. An

autopsy revealed the ligature to be the result of Eckart’s having been

strangled to death by a shoelace and the strap from her bib overalls. A

circular wound, consistent with a gunshot wound, was also noticed by

investigators.

In light of these facts, the jury could properly infer that the State

had proved the elements of the crime of rape beyond a reasonable doubt,

i.e., that Defendant had vaginal intercourse with Eckart and that Defendant

had compelled Eckart to comply by force or imminent threat of force or that

she was unaware that the sexual intercourse was occurring.

IV

Defendant maintains that the trial court should have declared a

mistrial when it discovered that the State had failed to disclose to

Defendant that Defendant’s wife had changed her testimony prior to trial.

Instead of declaring a mistrial, the trial court fashioned its own remedy

and barred the State from rehabilitating the witness after Defendant

impeached her testimony with her prior inconsistent statements.

Prior to trial, Melissa gave a statement to law enforcement on three

occasions and testified before a grand jury. She was also deposed once.

On each of these occasions, she stated either that she had no knowledge of

Defendant’s activities on the Monday following the offense or that she had

no further information relevant to the investigation at all. The defense

was apprised of these statements and testimony.

During trial, however, Melissa testified that on the Monday following

the offense, she, Defendant, and their four children took Defendant’s van

to the car wash but did not wash its exterior. She further testified that

Defendant spent close to an hour cleaning the interior of the van from

behind the driver and passenger seats to the bed area in the rear of the

van. She also testified that Defendant showed no interest in cleaning the

front passenger seats or the floorboard.

In a hearing outside the presence of the jury, it was revealed that

Melissa, accompanied by her attorney, had given the prosecution this

version of Monday’s events prior to trial. The prosecutor told the court

that she had said she had not described the Monday happenings in her other

statements because Defendant had physically abused her in the past and she

feared what he might do to her in the future should he be acquitted knowing

she had incriminated him. The State had not notified the defense about

this development.

The trial court found the withholding of this information to have been

improper. While denying the Defendant’s motion for a mistrial, the trial

court prohibited the State from offering any evidence to rehabilitate

Melissa following defense impeachment of her inconsistent statements to

police. This, of course, had the effect of preventing the State from

asking about domestic violence as a reason for the inconsistencies.

Defendant’s first argument for mistrial is that the State’s failure to

share Melissa’s testimony regarding Monday’s events constituted a violation

of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Defendant

particularly focuses on Brady’s language that “the suppression by the

prosecution of evidence favorable to an accused is material either to guilt

or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. In Brady, the prosecution withheld extra-

judicial statements, which, had they been released, would have favored the

defendant. It was not until after trial, conviction, and sentencing that

the withheld statement was revealed. In contrast, the withheld evidence

here was unfavorable to Defendant and was revealed during, not after,

trial. Brady applies to the discovery of favorable evidence after trial

and does not apply here.[12] See Lowrimore v. State, 728 N.E.2d 860, 867

(Ind. 2000).

Defendant’s second argument for a mistrial is that the State’s late

disclosure of Melissa’s statement constituted prosecutorial misconduct.

Defendant maintains that his unawareness of Melissa’s testimony fatally

damaged Defendant’s due process right to an adequate cross-examination by

limiting his tactical options. He says that he “found himself on the

‘path’ and was unable to have prepared or proceeded differently” without

opening the door to “his prior bad acts.” (Reply Br. of Appellant at 18.)

A claim of prosecutorial misconduct requires a determination that

there was misconduct by the prosecutor and that it had a probable

persuasive effect on the jury’s decision. Lowrimore, 728 N.E.2d at 867;

Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998); see also Ind. Professional

Conduct Rule 3.8(d) (“The prosecutor in a criminal case shall: make timely

disclosure to the defense of all evidence or information known to the

prosecutor that tends to negate the guilt of the accused or mitigates the

offense, and, in connection with sentencing, disclose to the defense and to

the tribunal all unprivileged mitigating information known to the

prosecutor, except when the prosecutor is relieved of this responsibility

by a protective order of the tribunal”). Absent clear error and resulting

prejudice, the trial court’s determination of violations and sanctions will

be affirmed. Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). “A

mistrial is ‘an extreme remedy granted only when no other method can

rectify the situation.’” Lowrimore, 728 N.E.2d at 867; see also Williams,

714 N.E.2d at 649.

The parties dispute whether the trial court found the State’s belated

disclosure of Melissa’s impeachment testimony to be misconduct. The trial

court made clear that it viewed the failure to disclose as a “serious”

implication of due process concerns.

Although the State should have disclosed the evidence in question, the

State’s failure to disclose was adequately remedied by the trial court. In

making this determination, we note that the trial court spent considerable

time and effort in addressing Defendant’s legitimate concerns. The trial

court’s remedy placed the parties in the position they would have been in

had the disclosure been properly made.

It is difficult to see how the trial court’s remedy had a probable

persuasive effect on the jury’s decision. Defendant’s claim that his

ability to cross-examine Melissa was oppressively curtailed is without

merit. Defendant was left free to ask the witness a wide range of

questions, such as whether she had been truthful in her statements or

whether she had violated her immunity agreement by not volunteering more

information. Defendant was merely prohibited from asking Melissa why she

had not been consistent, which is a question that Defendant specifically

told the trial court he would not have asked had the State properly

disclosed the inconsistent testimony beforehand. Furthermore, were we to

find in Defendant’s favor on this issue, the State on retrial would no

longer be bound by the order not to reveal Defendant’s history of domestic

violence and the attendant fear of Melissa. Accordingly, we find that the

prosecutorial misconduct here did not require declaring a mistrial in this

case.

V

Defendant maintains that the trial court committed reversible error

when it admitted Melissa’s testimony regarding statements Defendant made to

her when they were married.

Indiana law protects the privacy of marital communications. This

court recognizes the “[s]trong public policy grounds [that] favor promotion

and preservation of marital confidences even if truthful and invaluable

testimony in certain cases is excluded.” Russell v. State, 743 N.E.2d 269,

272 (Ind. 2001) (citations omitted). However, the marital privilege is not

absolute. “[W]here a spouse’s testimony concerns disclosures by the other

spouse not made in reliance upon the marital relationship but because the

disclosing spouse was in need of his mate’s assistance and attempted to

coerce by force and fear, the testimony is not within the spousal privilege

and is admissible.” Id.; see also Carlyle v. State, 428 N.E.2d 10, 12

(Ind. 1981). Also not privileged are “[c]ommunications between spouses

intended to be transmitted to a third person.” Russell, 743 N.E.2d at 272

(citing Perkins v. State, 483 N.E.2d 1379, 1383 (Ind. 1985)).

Defendant specifically contests the admission of two separate pieces

of testimony.[13] First, Melissa testified that when she picked up

Defendant at Camp Atterbury, he told her to say that he had been drinking

with friends if someone asked why he had been there. Second, Melissa told

the jury that, after watching a television news report regarding Eckart in

their bedroom, she asked Defendant if he was somehow involved. He became

angry at the question and said, “I can’t believe that you would think

anything like that.” (R. at 3878.)

Defendant mistakenly relies on Hazelwood v. State, 609 N.E.2d 10

(Ind. Ct. App. 1993), trans. denied, to dispute the propriety of admitting

both statements. In Hazelwood, the defendant’s ex-wife testified that,

when she was married to the defendant, he faked a burglary of their home in

an attempt to make money and, in furtherance of his plan, told her to call

the police to report a burglary. Id. at 14. Defendant understands

Hazelwood to stand for the proposition that “communications intended to be

conveyed to third parties may still have a privileged character” and that

an intent to deceive the police should be considered privileged. (Br. of

Appellant at 40 (citing Hazelwood, 609 N.E.2d at 15 (“Calling the police to

report a burglary seems to be a message intended for the police, but doing

so because Hazelwood asked her reveals the underlying reason she acted,

which in turn, suggests a confidential communication intended to be

transmitted solely between husband and wife.”)).) Dicta notwithstanding,

the Court of Appeals did not decide whether the testimony fell within

marital privilege. Rather, it found that admitting the testimony was not

error because any alleged error was “simply cumulative of evidence that was

properly admitted.” Hazelwood, 609 N.E.2d at 15.

In this case, Defendant’s statement to Melissa instructing her to say

that he had been drinking with friends if someone asked why he had been at

Camp Atterbury was not a disclosure made within the confines of the marital

relationship. It is a reasonable inference from this statement that

Defendant intended Melissa to transmit the comment to a third person. See

Russell, 743 N.E.2d at 272; Perkins v. State, 483 N.E.2d 1379, 1383 (Ind.

1985). We do not find error in permitting this testimony.

The State concedes that Melissa’s testimony regarding Defendant’s

denial that he had anything to do with Eckart’s disappearance falls within

the marital privilege, see Br. of Appellee at 31 (“Melissa’s testimony …

appears to fall within the marital privilege.”), but contends that the

error was harmless. Evidence admitted in error may not require reversal if

the error is found to be harmless. Russell, 743 N.E.2d at 272; Ford v.

State, 704 N.E.2d 457, 460 (Ind. 1998), reh’g denied. Evidence meets this

standard if it does not prejudice the defendant’s substantial rights. Ind.

Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1141-42 (Ind. 1995).

We find the admission of this testimony harmless given that

Defendant’s statement was not incriminating and that there was very

substantial evidence of guilt properly admitted. While we need not

recapitulate it in its entirety, we do note the following. Defendant told

his brother that he “took a girl” just before being dropped off at Camp

Atterbury on the night the crime was committed. (R. at 3226, 3230.)

Following Eckart’s disappearance, Defendant would sit in front of the

television and flip from channel to channel watching news coverage. He

stopped watching the news after all of the Eckart stories were over.

Additionally, Defendant’s sperm was found in the vagina of Eckart. DNA

testing done on his semen samples showed an overwhelming likelihood that it

was Defendant’s semen and no one else’s.

VI

Defendant argues that the trial court committed reversible error when

it denied his motion to suppress the use of several pieces of biological

evidence, of blankets he owned, of a hand-drawn map of Camp Atterbury, and

of carpet from his van as evidence at trial.

A

Defendant first contends that the trial court erroneously denied his

motions to suppress the use of four pieces of biological evidence as

evidence at trial. In particular, Defendant objects to the trial court’s

admission of (1) a blood sample; (2) a saliva sample; (3) a pubic hair

standard and combing; and (4) a head hair standard.

Defendant contends that the seizing and examining of the above-

mentioned biological evidence infringed his right to be free from

unreasonable search and seizure under the Fourth Amendment of the United

States Constitution and Article I, Section 11, of the Indiana Constitution.

Defendant bases this argument on his contention that the warrant affidavit

used to acquire a search warrant “did not contain sufficient facts to

establish the requisite probable cause necessary to justify the intrusion

into [his] body and seizure of his blood, saliva, and hair.” (Br. of

Appellant at 42, 43.)

The federal and state constitutions guarantee that a court will not

issue a search warrant without probable cause. U.S. Const. amend IV; Ind.

Const. art. I, §11. “Probable cause to search premises is established when

a sufficient basis of fact exists to permit a reasonably prudent person to

believe that a search of those premises will uncover evidence of a crime.

The decision to issue the warrant should be based on the facts stated in

the affidavit and the rational and reasonable inferences drawn therefrom.”

Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994) (citations omitted).

The duty of a reviewing court is simply to ensure that the magistrate had a

“substantial basis” for concluding that probable cause existed. Illinois

v. Gates, 462 U.S. 213, 238-239 (1983); Figert v. State, 686 N.E.2d 827,

830 (Ind. 1997). “‘[S]ubstantial basis requires the reviewing court, with

significant deference to the magistrate's determination, to focus on

whether reasonable inferences drawn from the totality of the evidence

support the determination’ of probable cause.” Figert, 686 N.E.2d at 827

(alteration in original) (citing Houser v. State, 678 N.E.2d 95, 99 (Ind.

1997)).

In this case, the information included in the warrant affidavit was

more than adequate to establish the requisite probable cause necessary to

justify the contested search and seizure. The affidavit established that

Eckart had been missing since September 27, 1997, after her car had been

found abandoned on the side of a road. Three days later, on September 30,

1997, her remains were discovered in a rural area of Brown County, Indiana,

instigating a homicide investigation. Semen was present in her vaginal

cavity, samples of which were taken for evidence. An autopsy revealed that

she had been strangled by ligature and her head bore a firearm type wound.

It appeared that a stun device or blank pistol may have been used to shoot

her.

On November 6, 1997, Defendant’s brother, Scott, told police that

shortly after midnight on the night that Eckart disappeared, Defendant

telephoned him and asked to be picked up from the Days Inn hotel in

Franklin, Indiana. Defendant claimed to have had too much to drink. When

Scott arrived at the hotel, Defendant met him in the parking lot and

requested that Scott take him and a girl to Edinburgh, Indiana. Scott then

got into the driver’s seat of Defendant’s van where he saw a person, whom

he assumed to be the girl, laying in back. As Scott was driving,

Defendant, who always carries a gun, said that he intended to take the girl

into the woods and get her lost. He then directed Scott to a specific

location in Atterbury. At Atterbury, Defendant took something white out of

the back of the van. Defendant also instructed Scott to tell Defendant’s

wife, Melissa, to pick Defendant up at the firing range in two hours.

Melissa confirmed that she picked Defendant up at the rifle range after

having received a phone call from Scott after midnight on September 27,

1997.

The facts as presented in the warrant affidavit are sufficient to

establish probable cause to search and seize the contested items. The

trial court did not commit error in denying Defendant’s motion to suppress

the evidence.

B

Defendant second contends that the trial court erroneously denied his

motions to suppress the use of his blankets as evidence at trial.

Defendant argues that the search was invalid because “the warrant did not

give a sufficient description of the blankets to be seized to limit the

officers to items described by the warrant.” (Br. of Appellant at 44-45.)

In support of this view, Defendant points out that Detective Ketchum

testified that the description he had received of the blankets was “real

vague” (R. at 1792) and that, armed with an identical provision in a prior

search warrant, police officers seized the wrong blankets.

Both the United States and Indiana Constitutions proscribe general

search warrants. See U.S. Const. amend. IV; Ind. Const. art. I, § 11.

“[A] warrant must describe the place to be searched and the items to be

searched for.” Phillips v. State, 514 N.E.2d 1073, 1075 (Ind. 1987); see

also Steele v. United States, 267 U.S. 498 (1925). While the items to be

searched for and seized must be described with some specificity, there is

no requirement that there be an exact description. See Phillips, 514

N.E.2d at 1075 (“the purpose for search warrants in cases involving

contraband is not necessarily to seize specified property, but to seize

property of a specified character”); see also Pavey v. State, 764 N.E.2d

692, 702 (Ind. Ct. App. 2002) (upholding validity of seizure of a black

leather jacket when the officer had an understanding that the suspect wore

“biker type clothing”), trans. denied, 774 N.E.2d 516 (Ind. 2002).

In the present case, Defendant argues for an overly restrictive

specificity requirement. The search warrant he contests ordered that “two

quilted blankets” be seized from Defendant’s home at 190 Jordan Street.

(R. at 1712.) By limiting the search to two quilted blankets, the warrant

was sufficiently specific as to remove unbridled discretion from law

enforcement. See Phillips, 514 N.E.2d at 1075 (“there is no requirement

that there be an exact description.”); cf. Hester v. State, 551 N.E.2d

1187, 1190 (Ind. Ct. App. 1990) (finding that a search warrant lacks

sufficient specificity when it orders a search for “[a]ny and all property

which may have been the subject of Theft or Burglary occurring in Union

Township …” and from five different residences on five different days).

In the alternative, Defendant argues that the Franklin Police

Department exceeded the scope of the warrant by seizing three quilted

blankets. The State responds that Melissa consented to the seizure of the

third blanket. Defendant maintains that Melissa’s consent, granted on

November 6, 1997, did not extend to November 8, 1997.

The consent of one who possesses common authority over premises or

effects is valid as against the absent, non-consenting person who shares

the authority. Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999).

Melissa consented to the seizure of the third blanket. On November 6,

1997, she signed a consent form to have her home searched by Franklin

police. The search was effectuated. On November 8, 1997, Melissa went to

the Franklin Police Department and told a police officer that during their

previous search they had failed to pick up the pepper spray and the blanket

Defendant had the morning of the crime. Melissa did not want to sign a

permission form but told the police to “come and get them.” (R. at 1759,

1779.) When the police were at the house, she identified the blanket for

them. This blanket, along with the two authorized by the warrant, were

accordingly seized. Melissa informed the police officers that she wanted

to consult with an attorney after, or as, she gave them the blanket that

she had showed them.

It is certainly true that “there are some cases in which temporal

limits on a defendant's consent must be honored because a late search can

affect his rights.” Elsten v. State, 698 N.E.2d 292, 295 (Ind. 1998)

(citations omitted). We have also found unreasonable searches where the

search warrant was stale. See Ashley v. State, 251 Ind. 359, 367-68, 241

N.E.2d 264, 269 (1968) (search warrant for small amounts of marihuana

becomes stale after eight days because of its transitory nature as a

commodity); cf. Williams v. State, 426 N.E.2d 662, 667 (Ind. 1981) (burned

belongings of a victim are not likely to be moved; therefore, an affidavit

supporting the warrant was not stale after sixty days). In this case,

however, the rights of Defendant did not change between November 6 and

November 8. In both cases, the consent was given when Defendant was a

suspect. Also, the items sought here were not commodities for sale but

items meant to be kept indefinitely. Finally, Melissa renewed her consent

on November 8 and did not revoke it.

The search warrant issued on November 8, 1997, ordered that “two

quilted blankets” be seized from Defendant’s home at 190 Jordan Street.

(R. at 1712.) This description provided enough detail to identify the

sought after blankets properly. Furthermore, in seizing the third quilted

blanket, the police did not exceed the warrant as they were authorized to

do so by Melissa. The trial court did not err in refusing Defendant’s

motion to suppress the blanket as evidence.

C

Defendant third contends that the trial court erroneously denied his

motions to suppress the use of a hand drawn map of Camp Atterbury as

evidence at trial. Defendant argues that there was no consent for the

search that revealed the map and that the warrant authorizing the search

was defective for lack of specificity.

As indicated in the two preceding sections, the police searched

Defendant’s home on November 7 pursuant to search warrant. Melissa had

also given written consent for this search on November 6. During the

search police found in the living room a hand drawn map of the area where

Eckart’s body was recovered.

Defendant claims that Melissa’s consent was improper because it gave

the officers “unfettered discretion.” (Br. of Appellant at 46.) This is

not correct. To the extent that the contested search was authorized by

consent, Melissa could limit or restrict the search as she chose. See

Krise v. State, 746 N.E.2d 957, 964 (Ind. 2001); see also Walter v. United

States, 447 U.S. 649, 657 (1980) (ruling that consent searches are limited

by the terms of authorization).

In addition to the validity of Melissa’s consent, we find that the

hand drawn map was left in plain view. We have held that police do not

need a warrant to seize incriminating evidence under the plain view

doctrine if: “(1) police have a legal right to be at the place from which

the evidence can be plainly viewed; (2) the incriminating character of the

evidence is immediately apparent; and (3) police have a lawful right of

access to the object itself.” See Houser v. State, 678 N.E.2d 95, 101

(Ind. 1997). All these conditions were met in this case. The police, in

the house under a valid warrant and with consent, found a map whose

incriminating character was immediately evident in light of the evidence

contained in the warrant affidavit, and the police had lawful right of

access to the object.

We find that the trial court did not commit error in denying

Defendant’s motion to suppress the hand drawn map as evidence.

D

Defendant lastly contends that the trial court erroneously denied his

motions to suppress the use of carpet taken from his van as evidence at

trial.

Defendant argues that, for essentially the same reasons set forth in

the three preceding sections, that consent was not valid. We have already

addressed this argument and found against Defendant.

Defendant also argues that the warrant lacked specificity, probable

cause, and did not authorize a search of his van.

The Franklin police properly searched Defendant’s van in accord with

the warrant. The warrant sufficiently described Defendant’s van. It

“authorized and ordered” a diligent search of all “vehicles” at 190 Jordan

Drive. Further, it stated that “[a] grey van bearing Indiana license plate

41N4644 is parked in the driveway.” (R. at 1687.) Additionally, for the

reasons explained above, the warrant affidavit established probable cause

to search the van.

We find that the trial court did not commit error in denying

Defendant’s motion to suppress and allowing carpet from Defendant’s van as

evidence.

VII

Defendant’s first claim challenging the validity of his sentence is

that the trial court committed reversible error by refusing his request to

give the jury specific verdict forms. As set forth under Background,

supra, the State alleged three aggravating circumstances to support its

request for the death sentence. Under the terms of our death penalty

statute, before a jury can recommend a sentence of death, it must

unanimously find that one or more of the charged aggravating circumstances

was proven beyond a reasonable doubt. Ind. Code § 35-50-2-9(k) (1996

Supp.); Bivins v. State, 642 N.E.2d 928, 947 (Ind. 1994). At the

conclusion of the penalty phase, Defendant asked that the jury be given a

specific verdict form on which it would indicate whether it had found that

the State had proven beyond a reasonable doubt each of the charged

aggravators. The State objected and the trial court sustained the

objection.

The trial court was on solid ground at the time of its ruling.

Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (rejecting argument that

the Sixth Amendment requires specific findings by the jury that sufficient

aggravating circumstances exist to qualify a defendant for capital

punishment); Wrinkles v. State, 690 N.E.2d 1156, 1168 (Ind. 1997), cert.

denied, 525 U.S. 861 (1998) (“This Court has rejected the requirement of

written findings for juries in capital cases.”). Subsequent to its ruling,

there has been a great deal of ferment in this regard. First, our death

penalty statute was amended to require such special verdict forms. Ind.

Code § 35-50-2-9(d), amended by P.L. 117-2002, § 2. Second, the United

States Supreme Court held in Ring v. Arizona that the Arizona capital

sentencing scheme violated the Sixth Amendment to the extent that it

allowed a “sentencing judge, sitting without a jury, to find an aggravating

circumstance necessary for imposition of the death penalty.” 536 U.S. 584,

122 S.Ct. 2428, 2443 (2002). This was because such a judicial finding

violates a defendant’s right to "a jury determination that [he] is guilty

of every element of the crime with which he is charged, beyond a reasonable

doubt." Id. at 2439 (alteration in original) (citing Apprendi v. New

Jersey, 530 U.S. 466, 477 (2000)).

Picking up on the Ring-Apprendi line of reasoning, Defendant here

maintains that assuring a unanimous jury finding on the aggravating

circumstance requires the court to use specific verdict forms.

We hold that Ring and Apprendi do not require specific verdict forms

in this case. The jury here was instructed that it could only recommend a

sentence of death if it unanimously found, “beyond a reasonable doubt, each

and every material allegation of at least one aggravating circumstance.”

(R. 1233, 1235.) With this explicit predicate to the recommendation

ultimately made by the jury, we find compliance with Ring’s and Apprendi’s

mandate.

Accordingly, we find that the trial court did not violate the Sixth

Amendment by refusing to give the jury specific verdict forms.

VIII

Defendant’s second challenge to the validity of his sentence focuses

on what he terms the “duplicative aggravating circumstances” that the State

alleged in support of its death penalty request. We set forth these

aggravators under Background: (1) intentional killing during the commission

of a rape and (2) the victim was the victim of a sex crime, here rape.[14]

His argument is predicated on the contention that the underlying felony of

rape is impermissibly present in both aggravators. This, he contends,

violates his constitutional guarantees against cruel and unusual punishment

under the federal and state constitutions and double jeopardy under the

state constitution.

When aggravating circumstances share an element, we look to the

policy or policies supporting each aggravator. See Stevens v. State, 691

N.E.2d 412, 434 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). When the

policy behind each aggravator is different, they are not impermissibly

duplicative. See id. (upholding use of two aggravators with overlapping

elements when the policy behind one aggravator goes to the defendant’s

character and the other goes to the status of the victim). Furthermore,

the fact that our death penalty statute involves the weighing, rather than

the counting, of aggravating factors mitigates against the concern that

overlapping elements in distinct aggravators will get too much

consideration. See id.

In the present matter, the felony-murder aggravator addresses

Defendant’s character. See id. (finding that the felony-murder aggravator

focuses on the defendant's character, finding highly culpable “the fact

that the mind of the accused has in the same criminal episode formulated

and held the intent to kill and the intent to commit one of the enumerated

felonies”). The victim of a sex crime aggravator spotlights the policy of

adjusting punishment in accord with the nature and degree of suffering

experienced by the victim. The different policy considerations make the

aggravators distinct. The trial court informed the jury that the penalty

phase involved weighing, not counting, aggravating factors. And in

determining the proper sentence to apply, the judge applied no weight to

the victim-of-rape aggravator. In so doing, the judge accommodated

Defendant’s claim.

The trial court did not commit error by allowing the jury to

consider both aggravating circumstances in this case.

IX

Defendant next maintains that the Cruel and Unusual Punishment

Clauses of the U.S. and Indiana Constitutions[15] require that an

instruction on residual doubt be given in capital cases. Accordingly, he

claims that the trial court violated his rights under the state and federal

constitutions when it did not give a penalty phase instruction he requested

advising the jury that it could take any “lingering doubt” that it had

about his guilt into account in determining his sentence.[16] (Br. of

Appellant at 58.) Defendant points to social science research published in

recent years in the area of capital juries that, he claims, shows that

“lingering doubt is the strongest influence in support of a final life

punishment vote.” (Br. of Appellant at 60 (citing William J. Bowers, Marla

Sandys & Benjamin D. Steiner: Symposium: Foreclosed Impartiality in Capital

Sentencing: Jurors’ Predispositions, Guilt-trial Experience, and Premature

Decision Making, 83 Cornell L. Rev. 1476, 1536 (1998)).) Defendant,

therefore, maintains that a jury instruction on this matter ensures that

the jury’s recommendation is a “reasoned moral response.” (Br. of

Appellant at 60.)

Franklin v. Lynaugh, 487 U.S. 164 (1988), seems to us to control

here. In that case, the Court rejected a claim in a capital case that the

defendant was entitled to a residual doubt instruction. While the Court

stopped short of saying that it would never find a capital defendant

entitled to make a “residual doubt” claim to a jury during a penalty phase,

it did say, in language highly relevant to this case:

Most importantly, even if we were inclined to discern such a

right in the Eighth Amendment, we would not find any violation of it

in this case. For even if such a right existed, nothing done by the

trial court impaired petitioner's exercise of this "right." The trial

court placed no limitation whatsoever on petitioner's opportunity to

press the "residual doubts" question with the sentencing jury.

Moreover, in our view, the trial court's rejection of petitioner's

proffered jury instructions was without impact on the jury's

consideration of the "residual doubts" issue. We reject petitioner's

complaint that the possibility of residual doubt was not "self-

evidently relevant to either of the special issue questions," and that

"[u]nless told that residual doubt . . . could be considered in

relation to [the special issue] question[s], the jurors could

logically have concluded that such doubt was irrelevant." Among other

problems with this argument is the simple fact that petitioner's

requested instructions on mitigating evidence themselves offered no

specific direction to the jury concerning the potential consideration

of "residual doubt." The proposed instructions did not suggest that

lingering doubts about the petitioner's guilt were to be a subject of

deliberations in the sentencing phase. Consequently, it is difficult

to see how the rejection of these instructions denied petitioner the

benefit of any "residual doubts" about his guilt.

Id. at 174-75 (alterations and emphasis in original) (citations omitted).

The exact same thing could be said about this case. There was nothing the

trial court did here to impair Defendant’s ability to argue residual doubt

to the jury; and nothing in Defendant’s penalty phase argument that

directed it to consider residual doubt.

We note that in several cases, we have held that a defendant in a

capital case was not the victim of ineffective assistance of counsel where

his lawyer did not argue “residual doubt” to the jury. This was because

“counsel ought have no obligation to argue to the jury that its just-

returned unanimous determination of guilt ought to be revisited.” Miller

v. State, 702 N.E.2d 1053, 1069 (Ind. 1998), cert. denied, 528 U.S. 1083

(2000). For similar reasons, we think a capital defendant has no

constitutional entitlement to a residual doubt instruction.

X

Defendant claims that the trial court erred when it refused to give

his tendered penalty phase instruction number 12. In relevant portion, it

stated:

However, before you may make a decision that either death or

life without parole is an appropriate sentence, all of you must reach

a unanimous decision that the State has proven beyond a reasonable

doubt the existence of at least one aggravating factor. You must also

reach a unanimous decision that such aggravating factor outweighs any

mitigating factors that any one or more of you may have found to

exist.

(R. at 1217.)

The purpose of an instruction is to inform the jury of the law

applicable to the facts without misleading the jury and to enable it to

comprehend the case clearly and arrive at a just, fair, and correct

verdict. Instruction of the jury is generally within the discretion of the

trial court and is reviewed only for an abuse of that discretion. Lowery

v. State, 547 N.E.2d 1046, 1055 (Ind. 1989), cert. denied, 498 U.S. 881

(1990). A trial court erroneously refuses to give a tendered instruction,

or part of a tendered instruction, if: (1) the instruction correctly sets

out the law; (2) evidence supports the giving of the instruction; and (3)

the substance of the tendered instruction is not covered by the other

instructions given. Dye v. State, 717 N.E.2d 5, 20 (Ind. 1999), cert.

denied, 531 U.S. 957 (2000); Holmes v. State, 671 N.E.2d 841, 852 (Ind.

1996), cert. denied, 522 U.S. 849 (1997).

The trial court refused to give Defendant’s tendered instruction on

the grounds that its substance was covered by other instructions already to

be given. Defendant claims that the trial court was mistaken in its

determination because “no other instruction informed the jury that it must

determine unanimously that aggravating circumstances outweigh mitigating

circumstances.” (Br. of Appellant at 69.) In what largely amounts to a

reprise of his argument regarding specific jury verdict forms, supra,

Defendant argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires

a sentencing jury in a capital case to find each and every essential

element beyond a reasonable doubt. (Br. of Appellant at 71 n.27.)

As we have already explained, the jury was instructed consistent with

Apprendi and Ring. We agree with the trial court that the jury was

adequately instructed on the matters raised by Defendant’s tendered

instruction here:

The law requires that all jurors agree to the existence of at

least one (1) of the charged aggravating circumstances before any

recommendation on death or life imprisonment may be made to the Court.

With respect to mitigating circumstances, your findings need not

be unanimous. Each juror must weigh in the balance any mitigating

circumstance he or she thinks have been established by the evidence,

whether or not other jurors are likewise convinced of those mitigating

circumstances.

(R. at 1235.) (emphasis added).

We find that the trial court properly rejected Defendant’s proposed

penalty phase instruction number 12.

XI

Defendant claims that his sentence in this case violates the Double

Jeopardy Clause of the Indiana Constitution in two respects. See Ind.

Const. art. I, § 14 (“No person shall be put in jeopardy twice for the same

offense.”) Neither claim requires extended treatment.

The application of the Indiana Double Jeopardy Clause is distinct

from its federal counterpart. See Richardson v. State, 717 N.E.2d 32, 49

(Ind. 1999). It “prevent[s] the State from being able to proceed against a

person twice for the same criminal transgression." Id.

Defendant expresses his first argument as follows: “Because the

statutory elements necessary to establish that [he] raped Eckart were

necessary to establish the aggravating circumstance upon which the death

sentence rests, sentences for both Rape and Capital Murder violate the

State double jeopardy prohibitions.” (Br. of Appellant at 83.) He asks

that the 20 year sentence imposed for rape be vacated. It is true that the

“aggravating circumstance” set forth in Ind. Code § 35-50-2-9(b)(1)(F)

(intentional killing while committing rape) used to support the death

sentence here required that the State prove that Defendant committed rape.

But we have held that facts necessary to establish the (b)(1) aggravating

circumstance serve to narrow the eligibility for the penalty and are not

identical to the elements of the crime. West v. State, 755 N.E.2d 173, 186

(Ind. 2001). We hold that it did not violate the Double Jeopardy Clause of

the Indiana Constitution for the trial court to enter sentence on the rape

conviction even if it also entered sentence on the felony-murder

conviction.[17]

Defendant also argues that his Class B felony criminal confinement

conviction should be reduced to a class D felony confinement on the ground

that there is a reasonable probability that the jury utilized the same

facts to find the serious bodily elements of the class D confinement and

the injury that caused Eckart’s death. The State concedes this argument,

noting that “the prosecutor argued that the serious bodily injury had been

established by Eckart’s death.” (Br. of Appellee at 59.) Accordingly, we

reduce Defendant’s class B felony criminal confinement conviction to a

class D felony.

XII

We now review whether Defendant's death sentence is appropriate. The

Indiana Constitution provides, in part, that "[t]he Supreme Court shall

have, in all appeals of criminal cases, the power to review and revise the

sentence imposed." Ind. Const. art. VII, § 4. Although our rules for

appellate review of sentences require that deference be given to the

judgment of the trial court where the sentence is death, those rules "stand

more as guideposts for our appellate review than as immovable pillars

supporting a sentence decision." Spranger v. State, 498 N.E.2d 931, 947

n.2 (Ind.1986), reh’g denied, 500 N.E.2d 1170 (Ind. 1986), cert. denied,

481 U.S. 1033 (1987). Moreover, "this Court's review of capital cases

under article 7 is part and parcel of the sentencing process." Cooper v.

State, 540 N.E.2d 1216, 1218 (Ind.1989).

This special review of death sentences is grounded in the Indiana

Constitution, our state's death penalty statute, and federal death penalty

jurisprudence. Harrison v. State, 644 N.E.2d 1243, 1260 (Ind.1995), after

remand, 659 N.E.2d 480 (Ind. 1995), cert. denied, 519 U.S. 933 (1996). The

United States Supreme Court “has repeatedly said that under the Eighth

Amendment ‘the qualitative difference of death from all other punishments

requires a correspondingly greater degree of scrutiny of the capital

sentencing determination.’” Caldwell v. Mississippi, 472 U.S. 320, 329

(1985) (quoting California v. Ramos, 463 U.S. 992, 998-99 (1983)).

Meaningful appellate review of death sentences plays a crucial role in

ensuring that the death penalty is not imposed arbitrarily or irrationally.

Parker v. Dugger, 498 U.S. 308, 321 (1991).

Our death penalty statute guides our review of death sentences by

providing standards for governing the trial court's imposition of death

sentences. Following the completion of the guilt-determination phase of

the trial and the rendering of the jury's verdict, the trial court

reconvenes for the penalty phase. Before a death sentence can be imposed,

our death penalty statute requires the State to prove beyond a reasonable

doubt at least one aggravating circumstance listed in subsections (b)(1)

through (b)(16) of the statute.[18] See Ind. Code § 35-50-2-9 (1998). As

discussed at several points in this opinion, the State supported its

request for the death penalty with the following aggravating circumstances:

(1) that Defendant committed the murder by intentionally killing the

victim while committing or attempting to commit rape, see id. § 35-50-2-

9(b)(1)(F) (Supp.1996); (2) that the victim was a victim of a sex crime

under Ind. Code § 35-42-4, here rape, for which Defendant was convicted,

see id. § 35-50-2-9(b)(13)(D); and (3) that the victim was a victim of

criminal confinement (Ind. Code § 35-42-3-3) for which Defendant was

convicted, see id. § 35-50-2-9(b)(13)(C).

The death penalty statute requires that any mitigating circumstances

be weighed against any properly proven aggravating circumstances. As

mitigating circumstances, Defendant offered the following: (1) residual

doubt as to Defendant’s guilt; (2) that the Defendant was under the

influence of extreme mental or emotional disturbance because of a past

history of mental health problems as well as his mental condition at or

about the time of the crimes at issue here; (3) that Defendant's capacity

to appreciate the criminality of his conduct or to conform that conduct to

the requirements of the law was substantially impaired, again because of

his mental health history and mental condition at the time; (4) that

Defendant suffered from a deprived and abusive developmental history; (5)

that Defendant had no significant history of prior criminal conduct; (6)

that a sentence of death would result in an undue hardship to the

Defendant's children and loved ones; (7) Defendant's good conduct while

incarcerated; and (8) that the State had the necessary and appropriate

prison facilities and staff to provide secure incarceration for Defendant.

The jury recommended that a sentence of death be imposed.

Once the jury has made its recommendation, the jury is dismissed, and

the trial court has the duty of making the final sentencing determination

at the sentencing hearing. At that proceeding, the trial court sustained

Defendant's objection to victim impact evidence being presented. The trial

court reasoned that a death sentence "must be based exclusively upon

statutorily enumerated capital sentencing aggravating circumstances," and

the victim impact evidence here would not be relevant to any of the alleged

aggravating circumstances. (R. 5382.) Defendant also presented additional

evidence in support of the mitigating circumstances argued to the jury.

Applicable law imposes several requirements on the trial court in

making its sentencing determination. First, the trial court must find that

the State has proven beyond a reasonable doubt that at least one of the

aggravating circumstances listed in the death penalty statute exists. See

Ind. Code § 35-50-2-9(k)(1) (Supp. 1996). Second, the trial court must

find that any mitigating circumstances that exist are outweighed by the

aggravating circumstance or circumstances. See id. § 35-50-2-9(k)(2).

Third, before making the final determination of the sentence, the trial

court must consider the jury's recommendation. See id. § 35-50-2-9(e).

The trial court must make a record of its reasons for selecting the

sentence that it imposes. See id. § 35-38-1-3. We commend Judge Emkes for

a particularly thoughtful and thorough sentencing order.[19]

In imposing the death sentence in the instant case, the trial court

found that the State proved beyond a reasonable doubt the three charged

aggravating circumstances, each of which is listed in the death penalty

statute. The record and the law support this finding. However, the trial

court assigned weight only to the (b)(1)(F) (intentional murder while

committing rape) aggravating circumstance, finding the facts supporting the

other two circumstances to overlap those in the first and that assigning

weight to them would duplicate the weight given the first. We concur with

this approach. The trial court did assign the (b)(1)(F) aggravator

“substantial weight and great consideration.” (R. 1294.)

The trial court provided a particularly careful and detailed analysis

of Defendant's proposed mitigating circumstances. The court gave careful

attention to Defendant’s claim that residual doubt about his guilt should

be considered a mitigating circumstance but found little weight should be

given. After a lengthy discussion of the psychological and psychiatric

evidence, the trial court found that Defendant was under the influence of

extreme mental or emotional disturbance at the time of the crimes and

assigned that mitigator moderate weight. It found some evidence that

Defendant's ability to appreciate the criminality of his conduct or to

conform his conduct to the requirements of law was impaired by mental

disease, defect or intoxication but that there was also extensive evidence

that Defendant was in control of his conduct and aware of its criminality.

As such, the trial court assigned this mitigator low to moderate weight.

The trial court recognized Defendant's deprived and abusive

developmental history as a mitigating circumstance and assigned it low

weight. It also recognized that Defendant had no significant history of

prior criminal conduct, including no felony convictions. The trial court

assigned this circumstance moderate to heavy weight. As to Defendant's

claims that hardship to his family, his good behavior in prison, and the

ability of the State to provide secure incarceration should be considered

mitigating circumstances, the trial court agreed but assigned them only

minimal weight.

In accordance with our death penalty statute, the trial court next

balanced the weight it assigned to the (b)(1)(F) aggravating circumstance

with the weight it assigned the mitigating circumstances. It found the

aggravating circumstance outweighed the mitigating circumstances and that

in its analysis, death was the appropriate sentence for Defendant for this

crime.

In this appeal, Defendant primarily contends that the weight of the

aggravating circumstances do not outweigh mitigating circumstances

attributable to his past history of mental health problems, his upbringing

in and abusive and dysfunctional family environment, and his mental

condition at or about the time of the crimes at issue.[20] After

independent review of the aggravating and mitigating circumstances here, we

assess the weight attributable to the aggravating and mitigating

circumstances in the same manner as the trial court.[21]

Based on our review of the record and the law, we agree with the

trial court's conclusion that the State proved beyond a reasonable doubt

the (b)(1)(B), (b)(13)(D), and (b)(13)(C) aggravating circumstances

promulgated in the death penalty statute. We agree with the trial court

that the (b)(1)(B) aggravating circumstance alone outweighs the mitigating

circumstances.[22] We conclude that the death penalty is appropriate for

Defendant's murder of Kelly Eckart.

Conclusion

We affirm Defendant’s convictions for murder, rape, and criminal

confinement and his sentence of death and sentence of 20 years for rape.

We vacate his sentence of 20 years for criminal confinement as a Class B

felony and remand this matter to the trial court for resentencing as a

Class D felony.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

-----------------------

[1] See Ind. Code § 35-42-1-1 (1993).

[2] See Id.

[3] See Ind. Code § 35-42-4-1 (1993).

[4] See Ind. Code § 35-42-3-3 (1993).

[5] See Id.

[6] See Ind. Code § 35-50-2-9(b)(1)(F) (1996 Supp.).

[7] See Ind. Code § 35-50-2-9(b)(13)(D) (1996 Supp.).

[8] See Ind. Code § 35-50-2-9(b)(13)(C) (1996 Supp.).

[9] Indeed, Defendant made no request, either before or during trial,

for a hearing on the reliability of STR testing.

[10] Defendant cites only an unpublished California trial court ruling

in support of his position. People v. Bokin, SCN: 168461 (Cal. Sup. Ct.

(San Francisco) May 6, 1999) (Order).

[11] The importance of the distinction was that Defendant was charged

with rape, a charge for which proof of vaginal intercourse is essential.

See Ind. Code § 35-42-4-1 (1993).

[12] It is true, as Defendant maintains, that evidence that is

“impeaching” can constitute “favorable evidence” for Brady purposes. U.S.

v. Howell, 231 F.3d 615, 624 (9th Cir. 2000); see also U.S. v. Bagley, 473

U.S. 667, 676-677 (1985). But the challenged testimony of Melissa

Overstreet is not “impeaching” evidence in this sense. The “impeaching”

evidence prong of Brady requires that, if the prosecutor has undisclosed

evidence that would impeach testimony given by a witness in court, the

prosecutor is required under Brady to disclose it. See U.S. v. Reyes, 270

F.3d 1158, 1166 (7th Cir. 2001). That is not what happened here. The

evidence that would impeach Melissa’s testimony given in court (i.e.,

Melissa’s prior deposition testimony, etc.) was known to the defense.

[13] Although Melissa testified as to other statements made to her by

Defendant, they are not challenged in this appeal.

[14] The State also alleged the aggravator set forth in Ind. Code § 35-

50-2-9 (b)(13)(C), that the victim was the victim of confinement.

Defendant makes no objection to the use of this aggravator.

[15] Defendant offers no separate Indiana constitutional analysis.

[16] Defendant’s proffered instruction reads: “The adjudication of

guilt is not infallible and any lingering doubts entertained on the

question of guilt may be considered in determining the penalty.” (R. at

1213.)

[17] As such, we answer the question left open in West, 755 N.E.2d at

186 n.6.

[18] We note that at the time the murders occurred, the effective

statutory aggravators upon which Defendant could have been sentenced to

death or life imprisonment without parole were listed in subsections (b)(1)

through (b)(15). See Ind. Code § 35-50-2-9 (Supp.1996). The legislature

has since then promulgated one more statutory aggravator under subsection

(b). See P.L. 261-1997 § 7.

[19] Indiana lawyers and judges in proceedings under Ind. Code § 35-50-

2-9 will find the sentencing order issued in this case a highly instructive

reference.

[20] Defendant registers two additional brief challenges to the trial

court’s sentencing order.

First, he claims that the trial court’s sentencing order failed to

note what consideration, if any, it gave to the jury’s recommendation. It

is true that the trial court’s sentencing order only mentions the jury’s

recommendation briefly. But unlike those cases where an indication of the

extent to which the trial court took the jury’s recommendation into account

has been of particular importance to us in our review (including the case

Defendant cites as authority here, Roark v. State, 644 N.E.2d 565 (Ind.

1994)), here the jury unanimously recommended that death be imposed. We

find Defendant suffered no detriment from any failure of the trial court to

give greater weight than it did to the jury’s recommendation that he be

sentenced to death.

Second, Defendant complains that the trial court only considered one

of the three charged aggravating circumstances. As discussed in part VIII,

supra, the trial court found that the State had properly proved the

aggravating circumstances of victim of a rape and of a criminal confinement

for which Defendant had been convicted but that it was not going to assign

weight to either of those aggravators. We find Defendant suffered no

detriment from any failure of the trial court to give weight to two

additional properly proven aggravating circumstances. Indeed, as we found

in part VIII, supra, this was effectively what Defendant sought.

[21] The trial court’s careful and comprehensive sentencing statement

in this case causes us to reflect on how far we have come since 1985 when

Justice DeBruler was moved to write:

There is a nagging doubt, arising from this court's frequent

confrontation in reviewing death sentences with the finding of

absolutely no mitigating circumstances, that the mitigating

circumstance search required by the death statute is either being

misunderstood, misapplied, or not reflected in sentencing court

findings. In my opinion it needs to be reiterated and emphasized for

the guidance of judges and lawyers that a finding of the existence of

a mitigating circumstance does not preclude a positive death decision.

Wallace v. State, 486 N.E.2d 445, 465 (Ind. 1985) (DeBruler, J., concurring

in result and dissenting), cert. denied, 478 U.S. 1010 (1986). In this

case, the trial court’s careful analysis identifies the presence of a

number of mitigating circumstances, some of considerable weight, but

nevertheless finds them outweighed by the aggravating circumstance. It is

clear that the Judge Emkes understood, applied, and reflected the

requirements of the statute in her sentencing order and we commend her for

it.

[22] No issue is raised in this case as to whether an aggravating

circumstance under Ind. Code § 35-50-2-9(b)(13) standing alone could be

sufficient to support a sentence of death. Cf. Harrison, 659 N.E.2d at 483

n.7; Id. at 483-84 (DeBruler, J., dissenting).