Corcoran v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

P. Stephen Miller Karen M. Freeman-Wilson

Fort Wayne, Indiana Attorney General of Indiana

John C. Bohdan Priscilla J. Fossum

Glasser and Ebbs Deputy Attorney General

Fort Wayne, Indiana Indianapolis, Indiana

In The

INDIANA SUPREME COURT

JOSEPH E. CORCORAN, )

Defendant-Appellant, )

)

v. ) 02S00-9805-DP-293

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Frances C. Gull

Cause No. 02D04-9707-CF-465

________________________________________________

On Direct Appeal

December 6, 2000

DICKSON, Justice

A jury found the defendant, Joseph E. Corcoran, guilty of four counts

of murder.[1] In the subsequent penalty phase, the jury recommended the

death penalty, and the trial court ordered the death sentence imposed.

Appealing from the trial court judgment, the defendant does not challenge

the guilt phase proceedings or his resulting convictions. His appellate

claims concern only the penalty and sentencing proceedings and his death

sentence.[2] The defendant's appeal presents eight claims, which we

rearrange as follows: (1) the Indiana death penalty statute violates the

United States Constitution because a death sentence and a sentence of life

without parole (LWOP) are governed by the same eligibility requirements;

(2) the death penalty/LWOP statute is ambiguous and therefore must be

construed against the state; (3) the selection phase of the death

penalty/LWOP statute violates the federal and state constitutions as it

permits the arbitrary imposition of the death penalty; (4) the death

penalty/LWOP statute violates the Indiana Constitution's proportionality

provision; (5) the death penalty/LWOP statute violates the defendant's

right to a jury trial because it allows the State to penalize its exercise;

(6) the prosecutor committed misconduct in the closing argument during the

penalty phase; (7) the judge improperly considered a non-statutory

aggravator when sentencing; and (8) the death sentence in this case is

manifestly unreasonable.

Constitutionality of the Death Penalty / Life Imprisonment Statute

In the first four claims enumerated above, the defendant contends that

the Indiana capital sentencing statute facially violates the federal and

Indiana constitutions because it permits the sentencer to impose a sentence

of death or life imprisonment without parole based on the same aggravating

circumstances.

First, the defendant contends that the eligibility provision of the

Indiana sentencing system for the crime of murder violates the Eighth

Amendment to the Constitution of the United States, "because the Indiana

legislature has not deemed any murder such an affront to society that the

only appropriate penalty may be death." Brief of Appellant at 22. He

argues that, because those persons eligible for the death penalty are also

eligible for a sentence of life imprisonment without parole, the Indiana

death penalty "constitutes nothing more than purposeless and needless

imposition of pain and suffering." Id. at 37.

Second, the defendant contends that in the absence of mitigating

circumstances, there is no basis under the Indiana system to decide between

life imprisonment and the death penalty. He argues that this constitutes

an ambiguity that must be strictly construed against the State.[3]

Third, the defendant contends that the Indiana statute materially

misguides the sentencer in the selection phase because it permits the

sentencer to choose life imprisonment without parole because of retribution

if the sentencer believes that death would be a more merciful sentence. He

argues that this results in a potential for substantial unreliability and

bias in favor of death sentences.

We address these claims together because we conclude that they are

governed by the same principles. Indiana statutes prescribe that the

penalty for the crime of murder may be either (a) a determinate term of

imprisonment for forty-five to sixty-five years, (b) life imprisonment

without parole, or (c) a death sentence. To be eligible for possible

imposition of the death penalty or life imprisonment without parole, an

offender must have committed a murder accompanied by at least one of

several prescribed aggravating circumstances. Ind. Code § 35-50-2-9(b).

Under the Indiana statutory scheme, the aggravating circumstances that make

an offender eligible for the death penalty are the same that define

eligibility for life without parole. If the State seeks the death penalty

or life without parole, upon finding one of the prescribed aggravating

circumstances proven beyond a reasonable doubt and finding mitigating

circumstances outweighed by the aggravating circumstance(s), the trial

court, after considering the recommendation of the jury, may impose a

sentence of death or life imprisonment without parole.

The defendant contends that Indiana's death penalty statute is

unconstitutional because it fails to delineate between those crimes for

which the death penalty is proportional and all other murders and thus

fails to reserve the death penalty for the most severe class of crimes.

Citing Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123

L.Ed.2d 188, 200 (1993), he argues that this violates a requirement that a

capital sentencing statutory scheme must provide a principled basis for

differentiating those persons for whom the death penalty is appropriate

from those for whom it is not.

In Arave, however, the issue was not whether the class of murderers

eligible for the death penalty might alternatively be sentenced to

imprisonment. The United States Supreme Court instead addressed whether an

Idaho statutory aggravating circumstance that "the defendant exhibited an

utter disregard for human life" adequately channeled sentencing discretion

for imposition of a death sentence. 507 U.S. at 465, 113 S.Ct. at 1538,

123 L.Ed.2d at 194. The Court reasserted as a "fundamental principle"

that:

to satisfy the Eighth and Fourteenth Amendments, a capital sentencing

scheme must suitably direct and limit the sentencer's discretion so as

to minimize the risk of wholly arbitrary and capricious action. The

State must channel the sentencer's discretion by clear and objective

standards that provide specific and detailed guidance, and make

rationally reviewable the process for imposing a sentence of death.

Id. at 470-71, 113 S.Ct. at 1540, 123 L.Ed.2d at 197-98 (internal quotation

marks and citations omitted).

The Indiana capital sentencing scheme satisfies this requirement by

prescribing particular aggravating circumstances that narrow the class of

murderers eligible for the death penalty. Judy v. State, 275 Ind. 145, 416

N.E.2d 95, 105-08 (1981). We recognize that the Indiana capital sentencing

statute "must 'genuinely narrow the class of persons eligible for the death

penalty and must reasonably justify the imposition of a more severe

sentence on the defendant compared to others found guilty of murder.'"

Wrinkles v. State, 690 N.E.2d 1156, 1165 (Ind. 1997)(quoting Zant v.

Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50

(1983)). Even with the addition of life without parole as an alternative

punishment for death-eligible murderers, however, the Indiana system

"rationally distinguishes between those individuals for whom death is an

appropriate sanction and those for whom it is not." Stevens v. State, 691

N.E.2d 412, 429 (Ind. 1997)(quoting Spaziano v. Florida, 468 U.S. 447, 460,

104 S.Ct. 3154, 3162, 82 L.Ed.2d 340, 352 (1984). Just as there is no

constitutional defect under the Indiana death penalty statute, which gives

the Indiana sentencer discretion to choose between death and imprisonment

for a term of years, so also there is no defect in permitting the sentencer

to choose the alternative of life imprisonment without parole. Wrinkles,

690 N.E.2d at 1165.

We conclude the Eighth Amendment is not violated by the Indiana

statute's inclusion of life imprisonment without parole as a sentencing

alternative using the same aggravating factors as a death sentence.

In the fourth claim of facial unconstitutionality based on the

inclusion of the life imprisonment alternative with the death penalty, the

defendant contends that the statute violates Article I, Section 16 of the

Indiana Constitution, which provides in relevant part: "All penalties shall

be proportioned to the nature of the offense." He argues that, because the

statute does not identify whether death or life imprisonment is the more

severe punishment, it is impossible to assure that the penalty imposed is

proportional to the crime committed. Because death or life imprisonment

are each grave and extreme punishments and are reserved for only the most

extreme murders, in contrast to sentences for a discrete term of years in

all other murders, the proportionality provision of the Indiana

Constitution is not offended by their equivalent availability under the

statute.[4]

Impingement on Right to Jury Trial

The defendant contends that Indiana's death penalty scheme

impermissibly infringes, facially and as applied, upon the right to jury

trial. He argues that, because identical factors may support a

prosecutor's decision to seek either death or life imprisonment, the

statute enables prosecutors to seek the death penalty "to coerce an

individual who refuses to plead guilty to relinquish a constitutional

right" to jury trial. Brief of Appellant at 46. The defendant asserts that

in his case he declined the State's offer to accept a guilty plea or try

his case to the bench and thereby avoid the death penalty. He urges that

because the prosecutor thus believed that life imprisonment was the

appropriate penalty, the request for the death penalty had no basis except

to provide "a strategic advantage . . . to force the defendant to abdicate

a basic right." Id. at 47.

We disagree. Prosecutors are traditionally given wide discretionary

power in our criminal justice system to select the persons to be prosecuted

and to plea-bargain with them. The Supreme Court has recognized the

benefits of efficiency and speedy dispositions that plea-bargaining offers,

and has fully approved its use as long as it is accompanied by safeguards

that insure full knowledge on the part of the defendant offering a guilty

plea as to his rights, his consequent waiver of those rights, the crime to

which he is pleading guilty, and the maximum penalty or the extent to which

he places himself at risk. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct.

663, 54 L.Ed.2d 604 (1978). In the context of plea-bargaining, we do not

see a material distinction in the discretionary powers of the prosecutor in

offering to agree to a lesser sentence for a guilty plea or for a bench

trial. Our case law, which proscribes the imposition of a harsher sentence

because a defendant exercised his right to jury trial, is rightly focused

on the actions of the judge as sentencer and not the prosecutor as charger.

See Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986)("Whether the severity

of a particular sentence was improperly influenced by a defendant's jury

trial election requires an individualized consideration." Id. Factors to

be considered are (1) the role the judge played in the plea negotiations;

(2) whether the judge encouraged the defendant to plead guilty; (3) the

presence of threats from the judge of a more severe sentence if convicted

following a jury trial; and (4) any evidence that the trial judge penalized

the defendant for going to trial. Pauley v. State, 668 N.E.2d 1212, 1213

(Ind. 1996); Hill, 499 N.E.2d at 1107 (Ind. 1986)).

The defendant did not waive his right to jury trial and fails to

point to anything in the record that indicates he received a more severe

sentence from the court because he exercised his right to jury trial.

Absent a specific showing that a particular sentence was improperly

influenced by the defendant's exercise of his right to jury trial, which is

not presented here, we decline to reverse.

Prosecutorial Misconduct

The defendant contends that his death sentence should be reversed

because some of the prosecutor's remarks during closing arguments in the

penalty phase constituted prosecutorial misconduct. The defendant urges

that the prosecutor's rhetoric was excessively inflammatory and that it

concentrated on aggravating circumstances not authorized by the Indiana

death penalty statute. The defendant did not object at trial.

Appellate recourse is not available for the review of alleged trial

misconduct when the complaining party failed to timely object at trial.

Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). The defendant argues

that the misconduct constituted "fundamental error," a doctrine under which

an appellate claim may be considered notwithstanding the failure of

contemporaneous trial objection. For this exception to apply, however, we

must find that the alleged misconduct so prejudiced the defendant's rights

as to make a fair trial impossible. Id.

Not unlike Stevens, the penalty phase jury instructions here

emphasized that, in order to recommend a sentence of death or life without

parole, the jury must first unanimously conclude that the State proved

beyond a reasonable doubt the existence of the charged aggravating

circumstance (that the defendant committed another murder), that this

aggravating circumstance was not outweighed by any mitigating

circumstances, and that only evidence "which bears directly upon the

mitigating factors, or the aggravating factor" could be considered. Record

at 2462-65, 2468-69, 2472. We conclude that the defendant's allegations of

prosecutorial misconduct in final argument do not show improper prejudice

to the defendant's rights thereby making a fair trial impossible. This

claim does not qualify for the "fundamental error" exception, and it was

forfeited by procedural default.

Consideration of Non-statutory Aggravator

The defendant contends that the trial court's imposition of a death

sentence violated the Eighth and Fourteenth amendments of the United States

Constitution and Article 1, Section 16 of the Indiana Constitution because

the trial court considered future dangerousness of the defendant, a

circumstance not among the aggravating circumstances authorized by the

Indiana death penalty statute.

In deciding whether to order a death sentence, a court must limit its

consideration of aggravating circumstances to those specified in the death

penalty statute. Ind. Code § 35-50-2-9(b); Bivins v. State, 642 N.E.2d

928, 955 (Ind. 1994). Indiana Code Section 35-38-1-3(3) requires that if

the trial court finds aggravating or mitigating circumstances, its record

must include "a statement of the court's reasons for selecting the sentence

that it imposes." The statement of reasons should contain three elements:

a) identification of all significant mitigating and aggravating

circumstances found, b) specific facts and reasons which lead the court to

find the existence of each such circumstance, and c) articulation

demonstrating that the mitigating and aggravating circumstances have been

evaluated and balanced in determination of the sentence. Hill v. State,

499 N.E.2d 1103, 1107 (Ind. 1986); Hammons v. State, 493 N.E.2d 1250, 1254

(Ind. 1986); Jones v. State, 467 N.E.2d 681, 683 (Ind. 1984).

The requirement for sentencing findings are more stringent in capital

cases than in non-capital sentencing situations, and the statement must

also set forth the trial court's personal conclusion that the sentence is

appropriate punishment for this offender and this crime. Harrison v.

State, 644 N.E.2d 1243, 1262 (Ind. 1995). "We require such specificity in

a sentencing order or statement of reasons for imposing a sentence to

insure the trial court considered only proper matters when imposing

sentence, thus safeguarding against the imposition of sentences which are

arbitrary or capricious, and to enable the appellate court to determine the

reasonableness of the sentence imposed." Id.; Daniels v. State, 561 N.E.2d

487, 491 (Ind. 1990); see also Schiro v. State, 451 N.E.2d 1047, 1053 (Ind.

1983)(finding that a written sentencing statement "guard[s] against the

influence of improper factors at the trial level and [makes] sure that the

evils of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346

(1972), 'arbitrary and capricious application' of the death penalty, were

not present in the sentencing decision"). It is usual practice for a trial

judge to comment when the sentence is announced in open court. When a

trial judge's oral comments refer to factors not included in the court's

separate written findings, the issue may arise as to whether such remarks

demonstrate impermissible use of a nonstatutory aggravating factor.

Bellmore v. State, 602 N.E.2d 111, 129 (Ind. 1992).

In this case, in which the defendant had been found guilty on each of

four counts of murder, the judge in her written sentencing order found

that, as to State's application for the death sentence on each count of

murder, the State proved beyond a reasonable doubt that the defendant

committed another murder.[5] The court's sentencing statement reflects

that the trial judge thoughtfully considered the nine mitigating

circumstances asserted by the defendant and concluded that the following

were shown: the defendant was under the influence of a mental or emotional

disturbance at the time the murders were committed; the defendant

cooperated fully with investigating authorities, reducing the potential for

additional harm and furthering the State's case against himself; the

defendant lacked a significant criminal history; and the defendant

indicated remorse. The trial court articulated its evaluation that each of

the mitigating circumstances was of medium or low weight. It concluded:

Pursuant to I.C. 35-50-2-9(k) the Court has balanced the

aggravating circumstances proved by the State against the mitigating

circumstances proved by the Defendant. The Court finds that the

knowing and intentional murders of four (4) innocent victims to be

particularly heinous crimes. [sic] The Court weighs this aggravating

circumstance very high. The Court, having evaluated and balanced

these circumstances finds that the aggravating circumstances outweigh

the mitigating circumstances. The Court again finds that the mental

or emotional disturbance suffered by the Defendant did not affect his

capacity to appreciate the criminality of his conduct or to conform

his conduct to the requirements of the law.

The Court, having considered the jury's recommendation that the

death penalty be imposed now finds that such a sentence is supported

by the facts and the evidence, and the character of the Defendant, and

therefore orders that the Defendant be executed pursuant to Indiana

law . . . .

Record at 2577-78.

In her oral remarks in open court at the time of sentencing, the

trial judge stated in part:

Pursuant to the law, Indiana Code 35-50-2-9(k), I'm required to

balance aggravating circumstances proved by the State of Indiana

against mitigating circumstances proved by the Defense. That has been

a very difficult process, and not a process that I have ever taken

lightly, and certainly would never take lightly, Mr. Corcoran. Your

emotional and mental disturbance is of concern to this Court. Also of

concern to this Court is that none of the experts can seem to give me

a straight answer, Mr. Corcoran, of what is really going on inside

your head. And maybe it is as [the prosecutor] argued in his closing,

that society just cannot begin to comprehend why you would do what you

did, so we've got to say, there's got to be something wrong with this

guy to have done what he did. I'm not going to say that, Mr.

Corcoran, because I don't know. I do know, however, that the knowing

and intentional murders of four innocent people is an extremely

heinous and aggravated crime. That makes you, Mr. Corcoran, a mass

murderer. [The prosecutor] is right. I don't think in the history of

this county we've had a mass murderer such as yourself. It makes you,

Mr. Corcoran, a very dangerous, evil mass murderer. And I am

convinced in my heart of hearts, Mr. Corcoran, if given the

opportunity, you will murder again.

Id. at 2915-16. After this passage, the judge goes on to weigh the

aggravator and the mitigators. The defendant argues that the above passage

demonstrates that, in making her determination, the judge considered future

dangerousness, which is not one of the enumerated aggravating circumstances

permitted under the Indiana death penalty statute.

In addition to the Court's oral remarks regarding future

dangerousness, we also observe that the sentencing statement itself

suggests that, in balancing aggravating and mitigating circumstances, the

trial court may have also considered that there were "four innocent

victims" and that the crimes were "particularly heinous," neither of which

are among the prescribed statutory aggravating circumstances that may be

weighed in deciding whether to impose the death penalty. Id. at 2577-78.

Because the circumstances of a crime often provide "an appropriate

context for consideration of the alleged aggravating and mitigating

circumstances," we recognize that reference to the nature and circumstances

of the crime in the sentencing statement "does not necessarily compel a

conclusion that such matters were improperly considered and weighed as

aggravating circumstances." Prowell v. State, 687 N.E.2d 563, 567 (Ind.

1997). When the judge's oral remarks at sentencing refer to matters not

included in the written sentencing statement, a reviewing court must

evaluate the degree to which the judge may have relied upon the non-

statutory factor. Bellmore, 602 N.E.2d at 128 n.6. The same consideration

is likewise appropriate in evaluating the role of non-statutory aggravating

matters noted in the written sentencing statement. In the absence of clear

contrary indications in the record, however, we will assume the sentencing

order fully discloses the factors considered by the sentencing judge.

Prowell, 687 N.E.2d at 567-68.

From the combination of the trial court's remarks in open court that

she was "convinced in her heart of hearts" that the defendant, "if given

the opportunity, would murder again," Record at 2916, and of the court's

written references in the sentencing statement to the innocence of the

victims and the heinousness of the murders, we find a significant

possibility that the trial court may have relied upon non-statutory

aggravating factors in deciding whether to impose the death penalty. We

therefore remand this cause to the trial court to redetermine from the

evidence already presented whether to impose the death sentence, life

without parole, or a term of years, based only upon mitigating and proper

aggravating circumstances, and to issue a new sentencing statement.[6]

Conclusion

The judgment of the trial court is affirmed except as to the death

sentence,[7] which is vacated, and this cause is remanded to the trial

court to reconsider its sentencing determination and to enter a new

sentencing statement and judgment, in accordance with this opinion.

SULLIVAN, BOEHM, and RUCKER, JJ., concur.

SHEPARD, C.J., concurs with separate opinion.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

P. Stephen Miller Karen M. Freeman-Wilson

Fort Wayne, Indiana Attorney General of Indiana

John C. Bohdan Priscilla J. Fossum

Fort Wayne, Indiana Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JOSEPH E. CORCORAN, )

)

Appellant (Defendant Below), )

)

v. ) Cause No. 02S00-9805-DP-293

)

STATE OF INDIANA, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE ALLEN SUPERIOR COURT

The Honorable Frances C. Gull

Cause No. 02D04-9707-CF-465

December 6, 2000

SHEPARD, Chief Justice, concurring.

I join in the Court’s decision to remand, largely because meticulous

attention to capital cases at an early stage saves a good deal of effort

later on.

I read Judge Gull’s statements about Corcoran’s multiple murders as

explanations about why she gave high weight to the (b)(8) aggravator and I

would be willing to affirm her on that basis, as it takes little analysis

to conclude that four killings make for a weighty aggravating circumstance.

Nevertheless, I agree that it is worth clarifying now that only statutory

aggravating circumstances are being considered.

-----------------------

[1] Ind. Code § 35-42-1-1.

[2] The defendant, by counsel and personal affidavit, filed a written

waiver of his right to appeal his convictions but retained the right to

appeal his sentence.

[3] As part of this argument, the defendant also claims that the

Indiana statute impairs his right to present evidence of mitigating

circumstances because, by choosing to present mitigation evidence, a

capital defendant runs the risk that the sentencer "may decide that the

mitigating circumstances are insufficient," thus "lowering his 50/50

opportunity with only the aggravating circumstances." Brief of Appellant

at 38. He argues that, by presenting mitigation, a defendant may provide

"a rational basis to decide between LWOP and the death penalty," thus

potentially increasing instead of limiting the possibility of a death

sentence. Reply Brief of Appellant at 10. We find this argument

unpersuasive.

[4] In this section of his argument, the defendant also includes the

claim that the statute violates Article I, Section 18, of the Indiana

Constitution, which provides: "The penal code shall be founded on the

principles of reformation, and not vindictive justice." He argues that, by

declaring that every murderer eligible for the death penalty may receive

life imprisonment, the legislature has established that reformation is the

appropriate penal remedy and that the death penalty, based on vindictive

justice, should not be permitted. This argument would require that, even

without the equivalent availability of life without parole, the death

penalty procedure would be unconstitutional because a sentencer would still

have the option of imposing death or a term of years. See Wrinkles, 690

N.E.2d at 1165. This Court has clearly held this Indiana capital

sentencing procedure does not violate Section 18. Saylor v. State, 686

N.E.2d 80, 88 (Ind. 1997); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.

1995)(citing Fleenor v. State, 514 N.E.2d 80, 90 (Ind. 1987), reh'g denied,

cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Driskill

v. State, 7 Ind. 338, 342, (1855); Rice v. State, 7 Ind. 332, 338 (1855)),

aff'd after remand, 659 N.E.2d 480 (Ind.1995), reh'g denied, cert. denied,

517 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996); Lowery v. State, 478

N.E.2d 1214, 1220 (Ind. 1985);

Smith v. State, 465 N.E.2d 1105, 1113 (Ind. 1984). We decline to hold to

the contrary.

[5] One of the aggravating circumstances enumerated in the death

penalty statute is: "The defendant has committed another murder, at any

time, regardless of whether the defendant has been convicted of that

murder." Ind. Code § 35-50-2-9(b)(8). This subsection is only available

in cases involving double or multiple murders for which the defendant is

being tried in one proceeding. Williams v. State, 669 N.E.2d 1372, 1389

(Ind. 1996).

[6] In the event the trial court sentences the defendant to death or

life without parole, its statement of reasons "(i) must identify each

mitigating and aggravating circumstance found, (ii) must include the

specific facts and reasons which lead the court to find the existence of

each such circumstance, (iii) must articulate that the mitigating and

aggravating circumstances have been evaluated and balanced in determination

of the sentence, and (iv) must set forth the trial court's personal

conclusion that the sentence is appropriate punishment for this offender

and this crime." Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995).

[7] We therefore decline to address the defendant's contention that

the death sentence should be revised as manifestly unreasonable.