Wrinkles v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Michael C. Keating Pamela Carter

Keating, Bumb & Vowels, P.C. Attorney General of Indiana

Evansville, Indiana

James D. Dimitri

Michael J. Danks Deputy Attorney General

Danks & Danks Indianapolis, Indiana

Evansville, Indiana

ABD

INDIANA SUPREME COURT &

MATTHEW ERIC WRINKLES, ) Supreme Court No.\®\

Appellant (Defendant below), ) 82S00-9408-DP-741

)

v. )

)

STATE OF INDIANA, )

Appellee (Plaintiff below). )

)

APPEAL FROM THE VANDERBURGH CIRCUIT COURT

The Honorable Richard L. Young, Judge

Cause No. 82C01-9407-CF-447

ON DIRECT APPEAL

SULLIVAN, Justice.

Defendant, Matthew Eric Wrinkles, appeals his convictions and death sentence for the

murders of Debbie Wrinkles, Mark Anthony Fulkerson, and Natalie Fulkerson. We review and

affirm the murder convictions and death sentence.

wae

Background

On June 30, 1994, Matthew Eric Wrinkles (defendant) filed for divorce from Debbie

Wrinkles. Prior to the institution of divorce proceedings, Debbie and the couple’s two children,

Lindsey and Seth, had moved into the home of Mark Fulkerson, and his wife, Natalie; Mark was

Debbie’s brother.

At a provisional divorce hearing on July 20, 1994, defendant and Debbie agreed that Debbie

would retain custody of Lindsey and Seth, and that defendant would have reasonable visitation

rights. Defendant and Debbie agreed to meet later that day at a local fast-food restaurant so

defendant could see his children. Because Debbie was tired, she and the children did not show up at

the arranged meeting place and time. Later that night, defendant tried to reach Debbie at the

Fulkersons’ home, but was unsuccessful. Debbie likewise tried to arrange another meeting with

defendant, but to no avail.

In the early morning of July 21, 1994, defendant climbed over a fence into the Fulkersons’

back yard, cut the phone lines, unlawfully entered their home, and shot and killed Debbie, Mark, and

Natalie.

Defendant was charged with three counts of Murder, the knowing killings of Debbie, Mark

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and Natalie! The State also sought the death penalty, alleging as an aggravating circumstance that

defendant had committed another murder.’ A jury found defendant guilty on all counts and

recommended that the death penalty be imposed. The trial court, following the jury’s recommenda-

tion, sentenced defendant to death.

We will cite additional facts as necessary.

Issues on Appeal

|. Evidentiary Claims

Defendant challenges the trial court’s admission of evidence in two respects. We review the

admission of evidence for an abuse of discretion by the trial court. Ross v. State, 676 N_E.2d 339,

345 (Ind, 1996); Kindred v_ State, 524 N.E.2d 279, 298 (Ind. 1988}, We find error reversible only

if admitting the evidence affected a substantial right of the party. Ind. Trial Rule 61, Fleener_v. State,

656 N.E.2d 1140, 1141-42 (Ind. 1995); Hardin v. State, 611 N-E.2d 123, 131-32 (Ind. 1993).

Hearsay. Defendant argues that the trial court erroneously admitted testimony from Lisa

Ind. Code § 35-42-1-1(1) (1993). Unless otherwise indicated, references to Ind. Code § 35-

42-1-1 refer to the version published in the 1993 Edition of the Indiana Code, the murder statute in

effect at the time the crimes at issue were committed.

Ind, Code § 35-50-2-9(b)(8) (Supp. 1994). Unless otherwise indicated, references to Ind,

Code § 35-50-2-9 refer to the version published in the 1994 Supplement to the Indiana Code, the

death penalty statute in effect at the time the crimes at issue were committed.

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Shadnick regarding a telephone call Shadrick had received from Debbie Wrinkles a few days prior to

Debbie’s murder. Shadrick testified, over defendant’s objection, as follows (prosecutor question-

mp):

Q: An [sic] in that conversation, did Debbie Wrinkles tell you . . .

BY MR. DANKS [defense counsel}: Show my objection, Your

Honor, That’s hearsay.

BY MISS LLOYD [prosecutor]: Your Honor, if I could finish the

question at least before the answer.

BY THE COURT: All right.

Q. ... about her then existing state of mind?

BY MISS LLOYD: Which is an exception to the hearsay rule under

the Indiana Rules of Evidence. In addition, it is where the declarant’s

unavailability is not in issue. If she answers yes that she mentioned

how she was feeling basically at that time, that would be her state of

mind present. State of mind and an exception to the hearsay mule.

BY THE COURT: You need some foundation as to how she knew

who she was talking to.

BY MISS LLOYD: Okay.

When you received the phone call, did you recognize the voice?

Yes.

Whose voice was il?

Debbie Wrinkles.

How many times had you talked to Debbie before that?

Lots.

And you knew that was Debbie's voice?

Yes[.]

BY THE COURT: Any further objection?

BY MR. DANKS: Yes, Your Honor. It still goes to the truth of the

matter asserted. And it’s still hearsay. I don’t believe the state of

mind of Debbie Wrinkles is at issue.

BY THE COURT: Objection overruled. Go ahead.

>OPOrO>O

Q. What did Debbie tell you about how she felt at that time?

A. She said that she was a nervous wreck, and that she was on medication. And

every time she heard a noise she would jump ‘cause she was scared. And that she

had to sleep with a gun underneath her pillow now. And, uh, she was just scared.

Q. Did she say of what?

A. Of Ene [defendant].

(R. at 2517-19.)

Defendant contends that Shadrick’s testimony is inadmissible hearsay not falling within the

present state of mind exception, because Debbie Wrinkles’ state of mind at the time of her murder

was not an issue at trial. He further argues that Shadrick’s testimony was not relevant to any issue

introduced at trial and that, regardless of its relevance, the prejudicial impact of the testimony far

outweighed any probative value.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or

hearing, offered to prove the truth of the matter asserted. Ind Evidence Rule 801(c). Hearsay is

generally inadmissible. Evid.R. 802. However, a statement of a declarant’s then existing state of

mind is not excluded by the hearsay rule. Evid.R. 803(3). The State claims that Shadrick’s testi-

mony, to the extent it is hearsay, falls within this exception, and that defendant placed Debbie

Wrinkles’ state of mind at issue by claiming in his opening statement that she was the initial aggres-

sor after he entered the Fulkersons’ home. Defendant testified that after he entered the house, he

saw Debbie in the hallway; she said to him, “Die, you bastard, die,” and then shot at him, The State

argues that Shadrick’s testimony about Debbie’s telephone call tends to show that Debbie feared for

her life and that it was highly unlikely that she attacked defendant first. See Dunaway v_ State, 440

N.E.2d 682, 686 (Ind. 1982) (The [hearsay] statements indicate a fearful state of mind which would

circumstantially explain her later action of attempting to hit defendant.”).

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Shadrick’s testimony qualifies as hearsay to the extent it was offered to prove that Debbie

was fearful of defendant, and we are unable to conclude that her state of mind was relevant to an

issue in this case. Cf. Angleton v_ State, 686 N.E.2d 803, 809 (Ind. 1997), Lock v. State, $67

N.E.2d 1155, 1159 (Ind. 1991). However, any error resulting from the trial court’s admission of

Lisa Shadrick’s testimony is harmless, because her testimony was merely cumulative of other

evidence demonstrating the stormy and often violent nature of the relationship between defendant

and Debbie Wrinkles.* We find that the admission of Shadrick’s testimony did not prejudice defen-

dant’s substantial rights.

Chain of Custody. Defendant’s other argument regarding erroneously admitted evidence is

that the State failed to establish an adequate chain of custody for the ballistic and serological

evidence it introduced at trial. The State introduced several shell casings and bullets retrieved from

the murder scene and victims and it introduced blood evidence linking defendant to the crime scene

and establishing his movements through the house on the night of the murders.

“The State's burden in an attack on the validity of a chain of custody is to

show the continuous whereabouis of the evidence. The mere possibility the evidence

could have been tampered with or that an alteration or substitution could have been

accomplished does not make the evidence inadmissible. The State is not required to

exclude every possibility of tampering. However, when the evidence is fungible, . .

_ the importance of a proper chain of custody is enhanced. The proper showing of a

chain of custody must give reasonable assurance that the property passed through the

Debbie had moved out of the house she shared with defendant, Debbie and defendant were

getting a divorce and she had sought a protective order against him; defendant argued with Debbie

and fired a shot from a pistol into the floor when she left with their children after she and defendant

had argued: and Debbie made a voluntary statement to the police concerning the marital and financial

stress she and defendant were under prior to their divorce.

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chain of custody must give reasonable assurance that the property passed through the

hands of the parties in an undisturbed condition.”

Gorman v. State, 463 N.E.2d 254, 256 (Ind. 1984) (citations omitted), See also Kennedy v. State,

578 N E.2d 633, 639 (Ind. 1991). Non-fungible evidence, such as the ballistics samples, requires a

less stringent foundation, because any tampering with the evidence is more likely to be noticed due

to the unique character of the evidence. Hough y. State, 560 N.E.2d $11, 517 (Ind. 1990) (citing

Dier v. State, 442 N.E.2d 1043, 1046 (Ind. 1982)). The proponent of the evidence does not have

to establish a perfect chain of custody; any gaps in the chain of custody go to the weight of the

evidence, not its admissibility. Bell v. State, 610 N.E.2d 229, 233 ({nd, 1993), Kennedy, 578 N.E.2d

at 639,

We first examine the chain of custody the State established for the ballistics evidence

admitted over defendant’s objection.’ Officer Taylor, the crime scene technician, collected the shell

casings, sealed them in packages, and initialed the packages. Officer Ford observed Dr.

Heidingsfelder, the pathologist, remove the shell casings from the bodies of Debbie Wrinkles and

Mark Fulkerson during their autopsies. Officer Ford placed those casings in separate containers and

marked them with his initials. To perform ballistics testings on the samples, Sergeant Wessel

removed them from the sealed containers; he resealed the containers after testing. Sergeant Wessel

testified at trial that he could recognize and identity the exhibits because his initials were on them.

‘Defendant objected to admission of the following exhibits: shell casing found in hallway,

bullet found in Fulkersons’ bedroom: mutilated projectile found on front porch; shell casings found

on the front porch and in the hallway, projectile imbedded in nightstand in Fulkersons’ bedroom,

projectiles imbedded in the Fulkersons’ bed; and bullets removed from the bodies of Debbie Wrinkles

and Mark Fulkerson.

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Defendant objected to the introduction of the shell casings as follows:

Well, this officer testified those particular iterns he looked at and

tested, I haven’t heard anything else about what he did after the

except put them in the bags. I don’t know what happened to those

bags after that was done,

Again, I have no particular objection except for foundational reasons.

And my understanding is that whomever [sic] collected these items

and put them in bags then I don’t know how they got from Evansville

into the Indiana State Police Post, uh, and then he examined the

items, they were sealed in the bag, and I don’t know how they got

from there to here, and then from there to Court. It’s just the chain,

Your Honor.

(R. at 2438-39.)

By objecting in this manner, defendant did not rebut the presumption of repularity in the

handling of the exhibits, nor did he do more than raise a mere possibility of tampering. Sergeant

Wessel readily identified the exhibits at trial, which establishes an adequate chain of custody for

nonfungible ballistics evidence. Defendant did point to possible gaps in the chain of custody, but

such gaps go to the weight to be accorded the evidence, not to its admissibility. Kennedy, 578

N_E.2d at 639. As such, we cannot find that the trial court abused its discretion in admitting the

ballistics evidence over defendant’s objection.

Now we turn to the chain of custody established for the serological evidence. As stated

above, fungible evidence, such as blood samples, requires a more stringent foundation. The State

bears an enhanced burden of showing the continuous whereabouts of the evidence. Hughett v. State,

$57 N.E.2d 1015, 1019 (End. 1990).

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Defendant objected separately on foundational grounds to the introduction of several exhibits

subjected to serological testing.’ The State offered the following to establish its continuous chain of

custody for the serological evidence: Officer Taylor collected the serological evidence at the crime

scene, placed all exhibits in packages, and sealed and initialed each package. Officer Ford collected

blood scrapings from Debbie Wrinkles’ back and legs; he placed the back and leg scrapings in

separate pill boxes, which he gave to Officer Taylor, who sealed and initialed them. In addition,

Officer Ford observed Dr. Heidingsfelder draw blood samples from each victim at their autopsies.

Officer Ford then sealed one blood sample, marked it, and placed it in refrigeration at police

headquarters before sending it off for testing, he marked the other two samples. Officer Ford also

witnessed Officer VanCleave draw blood from defendant; the blood was stored in an Indiana State

Police suspect evidence collection kit. The forensic serologist received all samples in sealed pack-

ages, which he resealed after testing,

Defendant’s contention appears to be that the State should account second by second for

each piece of serological evidence. He points to the lack of testimony regarding where the exhibits

were taken after being marked by Officer Ford but before being sent to the forensic serologist for

testing. Here, the State accounted for the evidence at each stage from its acquisition, to its testing,

and to its introduction at trial. This is an adequate foundation establishing a continuous chain of

‘Defendant objected to the following exhibits: one bedsheet used as a curtain and one fitted

bedsheet from the Fulkersons’ bedroom; blood samples taken from the storm door, living room

carpet, hall carpet, and bedroom carpet; blood drawn from Debbie Wrinkles and Mark and Natalie

Fulkerson during their autopsies; blood sample taken from defendant and kept in an Indiana State

Police suspect evidence kit, and samples of dried blood scraped from the back and legs of Debbie

Wrinkles.

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custody, even for fungible evidence. Defendant again did no more than raise the mere possibility of

tampering, and his objections as 10 gaps in the chain of custody go only to the weight of the evi-

dence, which is to be evaluated by the jury. Once more, we cannot find that the trial court abused

its discretion in admitting over defendant’s objection the serological evidence.

2. Instruction Claims

Defendant next argues that the trial court erroneously refused his tendered instructions on the

defenses of accident and mistake of fact and, at the guilt phase of the trial, erroneously instructed the

jury on two matters over his objections. The manner of instructing the jury lies within the sound

discretion of the trial court, Tanner v. State, 471 N.E.2d 665, 667 (Ind. 1984), and we will find error

reversible only if the instructions, taken as a whole, incorrectly state the law or otherwise mislead the

jury. Reaves y. State, 586 N.E.2d 847, 855 (Ind, 1992). When reviewing a trial court’s refusal of

tendered instructions, we will find error only if (1) the tendered instruction correctly states the law;

(2) evidence in the record supports giving the instruction; and (3) no other instruction adequately

covers the substance of the tendered instruction, Griffin v. State, 644 N.E.2d 561, 562 (Ind, 1994).

Accident. We first address defendant’s tendered instruction on the defense of accident:

The defense of accident has been raised as an issue in this

case. In general, prohibited conduct may be excused when It Is a

result of accident.

This defense contains three elements:

1. The conduct must have been unintentional, or without unlawful

intent or evil design on the part of the accused;

2. The act resulting in injury must not have been an unlawful act,

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3. The act must not have been done recklessly, carelessly or in wan-

ton disregard of the consequences.

The State has the burden of disproving this defense beyond a

reasonable doubt.

(R. at 134-135.)

Defendant argues that this tendered instruction correctly states the law, that no other

instruction given by the trial court covered the defense of accident, and that evidence in the record

exists to support giving the instruction. The State does not dispute defendant’s first two conten-

tions: therefore, we address only the issue of whether evidence in the record supports giving the

instruction. Defendant refers us to his own testimony at trial that he accidentally killed Natalie

Fulkerson. Defendant testified that while running through the Fulkersons’ home, he ran into Natalie

in the living room and his gun automatically discharged, killing her.

The third element of the defense of accident, as set forth in defendant’s requested instruction,

requires that the defendant not have been acting recklessly, carelessly, or in wanton disregard of the

consequences of his actions. Here defendant testified that he was carrying a loaded firearm while

running through the Fulkersons’ home. Defendant's testimony does not support a conclusion that

he was acting in a manner sufficient to establish the defense of accident. Furthermore, forensic

evidence disputed defendant’s claim that he shot Natalie from inside the house. For these reasons,

we cannot say that the trial court erred in refusing defendant’s tendered instruction on the defense

of accident.

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Mistake of Fact. We next address defendant’s tendered instruction on the defense of

mistake of fact’

The defense of mistake of fact is defined by law as follows:

It is a defense that the person who engaged in the prohibited

conduct was reasonable [sic] mistaken about a matter of fact, if the

mistake negates the culpability required for the commission of the

offense.

The reasonable mistake about a fact must have prevented the

Defendant from acting intentionally, knowingly, or recklessly as those

terms are defined by law.

The State has the burden of disproving this defense beyond a

reasonable doubt.

(R. at 130-131.)

Defendant argues that this insiruction correctly states the law because it is based on Ind.

Code § 35-41-3-7 (1993); that no other instruction given by the trial court covered the defense of

mistake of fact; and that evidence in the record exists to support giving the instruction. Again, the

State does not dispute defendant’s first two contentions, so we address only the evidentiary issue.

To support the giving of this instruction, defendant relies on his testimony at trial that he unlawfully

entered the Fulkersons’ home on July 21, 1994, only to take his children, Lindsey and Seth, and that

he did not intend to kill anyone that night. He testified that he believed at that time that, due to the

missed visitation on July 20, 1994, he would never see his children again. Defendant contends that

this mistaken belief negates his intent to kill.

Mistake of fact is a valid defense if three elements are satisfied: (1) the mistake is honest and

reasonable, (2) the mistake concerns a matter of fact: and (3) the mistake negates the required

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culpability, Ind. Code § 35-4-1-3-7 (1993), Smith v. State, 477 N.E.2d 857, 863 (Ind. 1985) (citing

Stoner v. State. 442 N.E.2d 983 (Ind, 1982)). “[TThe burden is upon the defendant to establish an

evidentiary predicate of his mistaken belief of fact which is such that it could create a reasonable

doubt in the jury’s mind that the accused had acted with the requisite mental state.” Hoskins v.

State, $63 N.E.2d $71, 575 (Ind. 1990) (citing Stoner, 442 N.E.2d 983), Here, defendant was

charged with the “knowing” murders of Debbie Wrinkles and Mark and Natalie Fulkerson. The

culpability required was an awareness of the high probability that defendant was killing the victims.

Ind, Code § 35-41-2-2 (1993). It is unclear how defendant’s behef that he would never see his

children again could negate an awareness of the high probability that his actions would result in the

deaths of three people.

None of the evidence adduced at trial, other than a portion of defendant’s testimony,

supported an instruction on the defense of mistake of fact. Defendant testified at trial that he

intended to hit Mark Fulkerson when he shot at Mark, and that he knew it was possible that Debbie

would die from his shooting her. Ina similar context, this Court has held that such a mistaken belief

“does not satisfy the requirement that [defendant’s] culpability be negated because even if beheved,

it would not have created in the jury’s mind a reasonable doubt that [defendant] was unaware that

he pointed his gun at [the intended victim] and pulled the trigger [multiple] times or that he was

unaware of the probable consequences that his conduct could have.” Hoskins, 563 N.E.2d at 576°

‘The defendant in Hoskins was charged with attempted murder, he argued that “the acts of

the three victims created in him the mistaken belief that one of the women had a gun and that he was

in more danger than he actually was.” Hoskins v. State, 563 N.E.2d 571, 576 (Ind. 1990).

-]4-

We conclude that the trial court could find that there was no evidentiary basis for defendant's

tendered instruction on the defense of mistake of fact.

Reckless Homicide Instruction. Defendant also challenges the court’s final instruction

number erght:

The crime of Reckless Homicide is defined by statute as

follows:

A person who recklessly kills another human being commits

Reckless Homicide, a Class C felony.

To convict the Defendant, the State must have proved each of

the following elements in each Count:

The Defendant

1. recklessly

2, killed

3. Debra Wrinkles in Count I, Natalie Fulkerson in Count II

and Mark A Fulkerson in Count IE.

If the State failed to prove each of these elements beyond a

reasonable doubt, you should find the Defendant not guilty.

If the State did prove each of these elements beyond a reason-

able doubt in each Count, you should find the Defendant guilty of

Reckless Homicide, a Class C felony, in that Count.

(R. at 148.) Defendant objected to this instruction on the grounds that it misled the jury as to the

State’s burden of proof.’ Defendant argues that, while lawyers would “know what the trial court

meant[,]. . . the instruction is highly confusing as to when a verdict of guilty of Reckless Homicide

could be returned... [and] the jury could have easily believed that a verdict of guilty of Reckless

™ And with Instruction number 8, it would be the second, third sentence I guess, It says, to

convict the Defendant - it should have said, in each Count - the State must have proved each of the

following elements. ... And then it says, if the State failed to prove each of these elements beyond

a reasonable doubt, you should find the Defendant not guilty - in each Count. And finally, if the

State did not prove each of these elements beyond a reasonable doubt you should find the Defendant

guilty of Reckless Homicide, a Class C felony, in each Count. That's the record !'d like to make at

this time.” (R. at 220-21) (emphasis added).

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Homicide could not be returned with reference to the death of [one of the victims] . . . since the

evidence did not establish the essential elements of that offense as to the other two victims.” Br. of

Appellant at 73.

Whatever the merits of defendant’s claim that the jury could have been misled by this

instruction, we conclude that the record demonstrates that it was not misled. The trial court’s

preliminary instructions to the jury clearly delineated the charges against defendant. The language

in the Reckless Homicide instruction to which defendant objects also adequately distinguished among

the three separate charges.’ Furthermore, the jury received separate verdict forms for each count

with which defendant was charged to aid in its deliberations. Each verdict form contained four

options: The jury could find defendant guilty of Murder, Voluntary Manslaughter, or Reckless

Homicide, or not guilty with respect to each victim. These separate verdict forms would have

allayed any possible confusion that might have resulted from the court’s instruction on Reckless

Homicide. Accordingly, we find that the trial court did not abuse its discretion in giving the instruc~

tion on Reckless Homicide over defendant’s objections.

Prior Inconsistent Statements. Defendant next argues that the trial court's instruction on

prior inconsistent statements incorrectly states the law because it informs the jury that it may

consider prior inconsistent statements as substantive evidence:

Prior inconsistent statements are defined as statements made by the

“Tf the State did prove each of these elements beyond a reasonable doubt in each Count, you

should find the Defendant guilty of Reckless Homicide, a Class C felony, in that Count.” (R. at 148)

(emphasis added).

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witness out of Court which differ from his or her testimony during

this trial. Prior inconsistent statements may be considered by you for

two purposes. You may use them to impeach the capacity for truth-

fulness of the witness who made the inconsistent statement. You may

also consider the out-of-Court statements as evidence in determining

the guilt or innocence of the Defendant of the crime charged.

(R. at 153.)

Defendant objected to the giving of this instruction as follows:

With respect to the Court's Final Instruction number 13 in the guilt

phase, this instruction is an incorrect statement of the law in that

impeachment evidence may be considered as substantive evidence of

guilt only in limited circumstances not set out in the instruction.

(R. at 223.)

The given instruction is a verbatim recitation of Indiana Criminal Pattern Jury Instruction

(2.19, which was superseded by Evid.R. 801(d) and Modesitt v. State, 578 N.E.2d 649 (Ind. 1991).

See Cooley v. State, 682 N.E.2d 1277, 1281 (Ind. 1997} (discussion of reasons for replacing rule of

Patterson v. State, 263 Ind. $5, 324 N.E.2d 482 (1975), with that of Evid.R. 801(d) and Modesitt).

The instruction incorrectly stated the law, and the trial court committed error when it instructed the

jury in this manner, Johnston v. State, 230 Ind. 571, 575, 105 N_E.2d 820, 821 (1952) (error to give

instruction which incorrectly states the law); Beneks v, State, 208 Ind. 317, 328, 196 N.E. 73, 77

(1935) (same). However, it is not clear to us that defendant’s objection was on this basis. More-

over, error in a particular instruction will not justify reversal where, as here, there has been no

showing that the defendant’s rights were substantially prejudiced. Hensley y. State, 499 N.E.2d

1125, 1127 (ind. 1986). Here, defendant does not set forth any prior inconsistent statement in the

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record which the jury could have considered improperly as substantive evidence. “(I]t is the

responsibility of [defendant] to support his argument on appeal with appropriate citations to legal

authonities as well as to appropriate sections of the record.” Marshall v. State, 621 N.E.2d 308, 318

(Ind. 1993) (citing Bieghter_v. State, 481 N.E.2d 78 (Ind. 1985)). See also Ind Appellate Rule

8.3(A)(7). Without a demonstration by defendant of prejudice in general, and with no citation to any

prior inconsistent statement in particular, we consider this error harmless.

Constitutionality of the Death Penalty

Defendant attacks the constitutionality of Indiana’s death penalty statute, Ind. Code § 35-50-

2-9, on several grounds: (1) the jury impermissibly decides arbitraniy between recommending a

sentence of death or life imprisonment without parole for a given defendant; (2) the death penalty is

impermissibly disproportionate punishment for “knowing” murders, (3) the entire capital sentencing

structure violates due process because it misleads the jury as to its role in the sentencing process; (4)

the mitigating circumstance of “no significant history of prior criminal conduct” is unconstitutionally

vague; and (5) the sentencing judge impermissibly cannot review meaningfully the jury’s sentencing

recommendation because the jury is not required to make specific written findings of the aggravating

and mitigating circumstances it relied on in reaching its decision.

Lack of Discretion, From its enactment in 1977 until 1993, the Indiana death penalty statute

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authorized a death sentence to be imposed when specific criteria in the statute had been satisfied.’

in 1993, the statute was amended to authorize either a sentence of death or a sentence of life without

parole to be imposed when those c: .eria have been satisfied."” The 1993 amendment created no

additional criteria to be used to determine when death rather than life without parole 1s appropmiate.

Relying on language in the Furman v. Georgia and Gregg v. Georgia opinions" condemning

as unconstitutional “unfettered discretion” in death sentencing statutes, defendant argues that the

1993 amendment rendered the Indiana death penalty statute unconstitutional by giving the Indiana

sentencer “unfettered discretion” to choose between death and life without parole.

Assessing slightly different arguments, we reject a similar constitutional claim today in

Stevens v. State, No. 79S00-9507-DP-828 (Ind. Dec. 31, 1997). Pnor to the 1993 amendments,

while a death sentence was authorized to be imposed when the criteria specified in the statute were

Ind. Code § 35-50-2-9, enacted by 1977 Ind. Acts P_L. 340, § 122; as amended by 1983 Ind.

Acts PL. 336, § 1; as amended by 1986 Ind. Acts P.L. 212, § 1, as amended by 1987 Ind. Acts P.L.

320, § 2; as amended by 1989 Ind. Acts P_L. 296, § 2, as amended by 1989 Ind. Acts P.L. 138, § 6;

as amended by 1990 Ind. Acts P.L. 1, § 354.

101993 Ind. Acts P.L. 250 § 2. The statute has been amended subsequently in ways not

material to the analysis of this issue. See 1993 Ind. Acts P.L. 230 § 5, 1994 Ind. Acts P.L. 158 § 7;

1995 Ind, Acts P.L. 306 § 1, 1996 Ind. Acts P-L. 228 § 1, 1996 Ind. Acts P.L., 216 § 25. As noted

in note 2, supra, Ind. Code § 35-50-2-9 as amended in 1994 governs this case.

"Defendant cites to Furman v. Georgia, 408 U.S. 238, 309-10 (1972) (Stewart, J., concur-

ring); id, at 314 (White, J., concurring), Gregg v. Georgia, 428 U.S. 193, 189, 195 (1976) (opinion

of Stewart, J., with two other justices concurring).

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met, a death sentence was not required to be imposed,’ the sentencer had (and still has) discretion

to impose imprisonment for a term of years. If there was no constitutional defect prior to the 1993

amendment, as defendant appears to contend, in the sentencer having the discretion to impose a term

of years rather than death, then we see no new defect occasioned by the sentencer having the

additional discretion to impose life without parole rather than death. See Furman v. Georgia, 408

U.S. 238 (1972).

For a death penalty statute to be constitutional in this context, the statute must “establish a

threshold below which the [death] penalty cannot be imposed.” Romano v, Oklahoma, 512 US. 1,

6 (1994) (quoting McCleskey v. Kemp, 481 U.S. 279, 305 (1987))." To meet this threshold, the

statute must contain “rational criteria that narrow the decisionmaker’s judgment as to whether the

circumstances of a particular defendant’s case meet the threshold.” McCleskey, 481 U.S. at 305.

The 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.” Zant v. Stephens, 462 U.S. 862, 877 (1983). The statute must limit the

decisionmaker’s discretion “so as to minimize the risk of wholly arbitrary and capricious action.”

Zant, 462 U.S. at 874.

(Indeed, a sentencing scheme that would require death to be imposed would be uncon-

stitutional. Sumner v, Shuman, 483 U.S. 66 (1987); see also Woodson y. North Carolina, 428 U.S.

280, 305 (1976) (opinion of Stewart, J., with two other justices concurring).

34 second requirement is that the statute ensure that the sentencing body bases its decision

on the character of the individual defendant and on the nature of the offense(s) he or she committed.

Romano v. Oklahoma, 512 U.S. 1, 7 (1994) (citing McCleskey v. Kemp, 481 U.S. 279, 302

(1987)). Defendant also challenges this facet of Indiana’s death penalty statute, and we address the

issue intra.

~20-

The Indiana death penalty statute, Ind. Code § 35-50-2-9, meets these requirements. After

a defendant is convicted of Murder, the State must prove beyond a reasonable doubt the existence

of at least one aggravating circumstance listed in the statute before that defendant becomes eligible

for the death penalty. ind. Code § 35-50-2-9%a) & (b). After the jury determines that the State has

met its burden of proof, it must balance the aggravating and any mitigating circumstances and find

that the aggravating factors outweigh the mitigating factors before it can recommend a sentence.

Ind. Code § 35-50-2-9(i). In deciding whether to follow the jury’s recommendation, the trial court,

which has the authority to impose the sentence, must follow the same process as did the jury in

reaching its recommendation. Ind. Code § 35-50-2-9(g), (i).

The additional sentencing option of life without parole merely affords the jury another

opportunity to narrow the class of defendants eligible for the death penalty, and “[o]nce the jury finds

that the defendant falls within the legislatively defined category of persons eligible for the death

penalty, . . . [it] then is free to consider a myriad of factors to determine whether death is the

appropriate punishment.” California v. Ramos, 463 U.S, 992, 1008 (1983). Accordingly, we find

that Indiana’s death penalty statute constitutionally permits a sentence of death or life imprisonment

without parole.

Proportignality. Defendant was charged with and convicted of the “knowing” murders of

Debbie Wrinkles, Mark Fulkerson, and Natalie Fulkerson. “A person engages in conduct ‘know-

ingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind.

Code § 35-41-2-2(b) (1993). The trial court sentenced defendant to death based on its finding that

-21-

the State proved beyond a reasonable doubt the existence of the multiple murder statutory aggrava-

tor,'* thus making defendant eligible for the death penalty. Ind. Code § 35-50-2-9(a). As such,

neither the jury nor the judge was called upon to make a discrete determination that any of the

killings were “intentional.”’> Defendant argues that imposing the death penalty for “knowing,” as

opposed to “intentional,” murder is unconstitutional under the Eighth Amendment to the United

States Constitution and Article I, Section 16, of the Indiana Constitution.

Defendant does not ground his state constitutional claim in an analysis of the text or history

of Article I, Section 16. Instead, he contends that the legislature, from passage of the state constitu-

tion until 1977, only authorized the imposition of the death penalty for “intentional” murders and

felony murders.!° This indicates, he argues, that imposition of the death penalty for “knowing”

murders (a mental state less culpable than “intentional”) must have been considered to violate the

Article I, Section 16, requirement that “[alll penalties shall be proportioned to the nature of the

offense.”

Whatever we may properly infer from legislative enactments in conducting constitutional

The defendant has committed another murder, at any time, regardless of whether the

defendant has been convicted of that other murder.” Ind, Code § 35-50-2-9(b)(8).

'S¢A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

conscious objective to do so.” Ind. Cade § 35-41-2-2(a) (1993).

“Br. of Appellant at 32-33. Defendant broadly traces the history of Indiana’s death penalty

statute, starting with Chapter XXXVII, § 3 of General Laws of the State (1881) (Whoever,

purposely and with premeditated malice, or in the perpetration of [certain felonies] . . .”), continuing

to Ind, Stat. Ann. § 10-3401 (Michie 1941) (same), and finishing with Ind. Code § 35-13-4-1 (1973)

(same),

~22-

exegesis, we do not find the statutes cited here to support defendant’s claim. As defendant acknow!l-

edges, those statutes all permitted the imposition of the death penalty in cases of felony murder. But

in felony murder, there is no culpability requirement at all, i¢,, a mental state less culpable than

“knowing.”

We addressed a similar claim brought under the federal constitution in Baird v. State, 604

N.E.2d 1170 (Ind. 1992). There we held that imposing a sentence of death for the commission of

multiple “knowing” murders was not unconstitutional. We reasoned in Baird that the defendant's

“death sentence rest{ed] on the multiple formations of a highly culpable ‘knowing’ state of mind

resulting in multiple murders... .” Baird, 604 N_E.2d at 1184. The defendant in Baird did not

receive the death penalty simply because he had committed “knowing” murders, but because he had

committed multiple murders, thus making himself eligible for the death penalty. See Ind. Code § 35-

$0-2-9(b)(8).

Our decision in Baird comports with the Supreme Court’s treatment of the issue of the

degree of culpability necessary to support a death sentence in Tison v. Arizona, 481 U.S. 137

(1987). The defendants in Tison were two brothers convicted of capital murder under Anzona’s

felony-murder and accomplice-liability statutes.'’ The Tison brothers challenged their death sen-

The Tison brothers actively participated in engineering their father’s and his cell mate’s

escape from prison; flagging down and stealing a getaway car, and kidnaping the car's driver and

three passengers, The father and his cell mate shot and killed the four kidnap victims while the

brothers stood by and did nothing to halt the murders.

= 323 -

tences on the ground that the Supreme Court’s holding in Enmund v. Florida, 458 U.S. 782 (1 982),'*

required a finding of intent to kill before a court could impose the death penalty. The Court stated

that “{a] narrow focus on the question of whether or not a given defendant ‘intended to kill,’

however, is a highly unsatisfactory means of definitively distinguishing the most culpable and

dangerous of murderers.” Tison, 481 U.S. at 137, The Court went on to hold that the “reckless

disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave

risk of death represents a highly culpable mental state, a mental state that may be taken into account

in making a capital sentencing judgment when that conduct causes its natural, though also not

inevitable, lethal result.” Id, at 157-58.

Here, defendant does not argue that he was convicted wrongly of “knowing” murders.

Rather, he challenges the constitutionality of Indiana’s death penalty statute as it applies to “know-

ing” murders. Tison holds that a death sentence is permissible where, despite no finding of intent to

kill. the defendant nonetheless has demonstrated a highly culpable mental state. Such is the case

here, where the court imposed the death sentence based on the State’s proving beyond a reasonable

doubt the existence of the multiple murder statutory aggravator.

Jury Role. Defendant contends that [ndiana’s capital sentencing structure unconstitutionally

misleads the jury into believing its role in the sentencing process 1s merely advisory in violation of the

'Enmund drove the getaway car in an armed robbery that resulted in a double murder.

Enmund was convicted and sentenced to death under Florida’s felony-murder rule. The Supreme

Court reversed Enmund’s death sentence, finding a lack of intent to kill because Enmund’s role in the

robbery was too remote in relation to the murders, and the culpability of those who committed the

murders and robbery was not attributable to him.

-24-

Supreme Court’s holding in Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell, the prosecu-

tor implied to the jury that its decision to impose the death penalty carried little import because the

death sentence was immediately reviewable by an appellate court. The Court held that it is unconsti-

tutional for a judge to follow the sentencing recommendation of a jury who believes its role is merely

advisory and that the defendant's fate ultimately rests elsewhere. Caldwell, 472 U.S. 320.

This Court has addressed previously the issue defendant raises today—that the language of

Indiana’s death penalty statute confuses the average Jay juror as to his or her role in the sentencing

process. In Miller v. State, 623 N.E.2d 403 (Ind. 1993), this Court distinguished a claim similar to

defendant's from the Caldwell holding by noting that “we are not dealing with comments made by

the prosecuting attomey but are dealing with the structure of a statute which delegates to the jury the

role of examining the evidence and making a recommendation to the trial judge concerning the

sentence, In Caldwell, the actual responsibility for the death penalty, although reviewable on appeal,

was a final determination at the trial level by the jury. In Indiana, all concerned are fully advised that

the jury’s examination of the evidence and recommendation is for the edification of the trial judge

who has the ultimate responsibility in imposing the sentence.” Miller, 623 N E.2d at 410-11. An

Indiana jury does not determine a sentence, but only makes a sentencing recommendation. The trial

court decides whether to impose a sentence of life imprisonment without parole or the death penalty.

{t is not error to inform the jury that its sentencing decision is a recommendation, because this is a

correct statement of Indiana law. See Holmes v. State, 671 N.E.2d 841, 855 (Ind. 1996), cert,

denied, 118 S.Ct. 1137 (1997). Ind, Code § 35-50-2-9 is not susceptible to a Caldwell claim of the

sort defendant advances, and we accordingly reject defendant’s contention.

-25-

Prior Criminal History Mitigator. Defendant attacks the “no significant history of prior

criminal conduct” mitigator!” as “failling] to adequately guide the sentencer’s discretion because it

is vague and meaningless, allows consideration of unreliable information, and precludes consideration

of relevant mitigation evidence.”“’ Br. of Appellant at 39. Before analyzing defendant's claim, we

note that the trial court specifically found this mitigating factor to exist and used it in the statutory

balancing process required by Ind. Code § 35-50-2-9(i} before deciding to follow the jury’s recom-

mendation to impose the death sentence.

The Supreme Court expressly approved the use of this mitigating factor in Proffitt v. Florida,

428 U.S. 242 (1976)? The petitioner in Proffitt argued that the aggravating and mitigating factors

in Florida’s capital sentencing scheme were overly broad, and that neither judge nor jury could

determine whether a defendant had a “significant history of prior criminal activity.”"* The Court

acknowledged that making this decision is difficult, but that it “require[s] no more line drawing than

is commonly required of a factfinder in a lawsuit.” Proffitt, 428 U.S. at 257 (rejecting petitioner's

challenge to several statutory aggravating and mitigating factors). Under this statutory scheme, the

“trial court’s sentencing discretion is guided and channeled by a system that focuses on the circum-

Ind. Code § 35-50-2-9(c)(1) (1993).

We previously rejected a similar claim against the statutory provisions generally concerning

aggravating and mitigating factors. Harrison v, State, 644 N.E.2d 1243, 1258 (Ind, 1995).

1The Florida death penalty statute upheld in Proffitt v. Florida, 428 U.S. 242 (1976), is

substantially similar to Indiana’s death penalty statute, See Brewer v. State, 417 NE 2d 889, 897

(Ind. 1981) (comparative analysis of Florida and Indiana death penalty statutes), Judy v. State, 416

N.E.2d 95, 107 (Ind. 1981) (same).

2F\a Stat, Ann. § 921.141(6) (Supp. 1976-1977).

- 26 -

stances of each individual homicide and individual defendant in deciding whether the death penalty

is to be imposed.” Id, at 258.

Based on the Supreme Court’s upholding of a similar mitigating factor in Florida’s capital

sentencing scheme, and on the trial court’s finding this mitigator to exist in defendant’s case, we hold

that the “no significant history of prior criminal conduct” is not unconstitutionally vague, and that

defendant was prejudiced in no way by the trial court’s consideration of that mitigator during the

sentencing process.

Jury Findings. Defendant’s final constitutional argument is that Indiana's capital sentencing

structure is unconstitutionally unreliable in violation of the Eighth Amendment of the United States

Constitution because the jury is not required to produce written findings of the specific aggravating

and mitigating factors it relied on in reaching its decision to recommend the death penalty. To

support this argument, defendant analogizes the heightened role of a jury ina capital case to the role

of the sentencing judge who is required to make specific written findings of aggravators and

mitigators before imposing an enhanced sentence, Defendant contends that the trial court judge

cannot review meaningfully, and decide whether to follow, the jury’s recommendation unless the jury

has made specific written findings regarding the balancing process in which it engaged.

This Court has rejected the requirement of written findings for juries in capital cases. “While

2Battles v. State, 49$00-9608-CR-532, 1997 WL 729099, at *5 (Ind. Nov. 24, 1997), Jones

v. State, 675 N_E.2d 1084, 1087 (ind, 1996}.

-27-

the trial court must consider the jury's recommendation and its sentence must be based on the same

standards that the jury was required to consider, we perceive nothing of a constitutional dimension

that would require the trial court to have the details of the jury’s deliberations before it in discharging

these statutory obligations.” Harrison y. State, 644 N.E.2d 1243, 1259 n.28 (Ind. 1995). See also

Martinez Chavez v, State, 534 N_E.2d 731, 734 (Ind. 1989). We decline to revisit further this issue.

Death Sentence Review

The Indiana Constitution provides 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 great deference be given to the

judgment of the trial court, e.g., Ind. Appellate Rule 17, 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). In fact, we have made it clear

that “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, 644 N.E.2d at 1260. 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. at 329 (quoting Califor-

~ PR -

nia v. Ramos, 463 U.S. at 998-99). 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), Gresg v. Georgia, 428 U.S. 153, 204-06 (1976).

Penalty Phase. Our death penalty statute guides our review of death sentences by setting

forth standards governing trial court imposition of death sentences. Following completion of the

guilt 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 (6)(1)

through (b)(12) of the statute. Ind. Code § 35-50-2-9. Here the State supported its request for the

death penalty with the aggravator listed in subsection (b)(8): “The defendant has committed another

murder, at any time, regardless of whether the defendant has been convicted of that other murder.”

Id. To prove the existence of this aggravating circumstance at the penalty phase of the trial, the

State incorporated by reference all of the evidence from the earlier guilt phase of the trial (with

respect to which the jury had found defendant guilty of the three murders).

The death penalty statute requires that any mitigating circumstances be weighed against any

properly proven aggravating circumstances. In addition to mitigating circumstances supported by

the guilt phase evidence (in particular, the extensive testimony of clinical psychologist Dr. Eric 8.

4 We have held that this aggravator is available only in cases in which the defendant is tried

in the same proceeding for the multiple murders alleged in the aggravating circumstances, Williams

v. State, 669 N.E.2d 1372, 1389 (Ind. 1996), ceh’g denied, cert. denied, 117 S.Ct. 1828, (1997):

State v. McCormick, 272 Ind. 272, 278, 397 N.E.2d 276, 280 (1979).

29.

Engum as to defendant’s personality disorders and drug abuse), defendant offered the testimony of

four witnesses during the penalty phase. Three — Mary Winnecke (the mother of Natalie Fulkerson

and Jegal guardian of the Fulkersons’ children, Matthew and Kim), Carolyn Casper (a relative by

marriage of Debbie Wrinkles and guardian of the Wrinkles’s children, Lindsey and Seth) and Lindsey

Wrinkles (defendant’s fourteen-year-old daughter) — testified from their perspectives as victims of

defendant's crimes that they did not desire defendant to be sentenced to death.

Defendant argues that during this phase of the trial, the court erroneously admitted victim

impact evidence over his objection. This Court has held that victim impact evidence is admissible in

the penalty phase of a trial only if it is relevant to one or more of the statutory aggravating factors

argued by the State. Bivins v. State, 642 N.E.2d 928 (Ind. 1994).

The victim impact testimony which defendant contends was admitted in error consisted of the

testimony of Mary Winnecke regarding the effect of the murders on Matthew Fulkerson (prosecutor

questioning):”°

Q. What effect has this had on Matthew?

BY MR. VOWELS [defense counsel]: To which I would object. [

believe that if the jury is allowed to consider that information that

they may be so prejudiced that they will not render a fair trial to my

client, denying him of his due process rights, his right to a fair trial.

Can you think of anything else 1 should add to that? That’s my objec-

tion.

BY THE COURT: Mr. Levco?

BY MR. LEVCO [prosecutor]: I don’t wish to argue.

BY THE COURT. Objection overruled.

2>Testimony from Lindsey Wrinkles and defendant tends to show that Matthew witnessed

defendant shooting Mark Fulkerson, Matthew's father.

-30-

Q. You can answer the questions.

A. How 1s Matthew?

Q. How has this affected Matthew, if at all?

A. Uh, Matthew won't stay in a room and watch television alone. If walk

into the kitchen to fix supper and Matthew’s watchin’ cartoons and is just

right around the wall, uh, he'll yell, Granny, there’s nobody here with me.

And I’ll say, well, honey, I’m right her [sic] cookin’ supper. And Matthew

will say, but ’'m all by myself. And he won’t stay in a room by himself. And

gets up every night and he gets in bed with us, or else he sleeps on a pallet.

Some nights, I just — I have a pallet right by my bed and hell lay there and

(ll have my hand right on him. Uh, he woke up one night and he came in our

room and he just — that child shook. And he said, Granny .. . (WITNESS

CRYING)... | thought IJ heard Eric [defendant] in the house. And I said,

baby, you're all night, I held him and I put him between me and Bob. Be-

cause, when he gets in bed with us, he just kinda climbs over me and lays

right there. And he laid — I had my arm like this (WITNESS INDICAT-

ING) and Bob scooted over against him and we both held him and he just

shook, And then he said he had to go to the bathroom and he had diarrhea.

It’s like I sat there by him and | held him, while he’s sittin’ on the pot, and he

just shook and he cried. And so J put him back in bed and he still shook and

he cried. And I said, Matthew, do you wanna go talk about it? And I said,

let’s go out in the living room. So, we went out and we turned on the lights

and I sat in my rocker and I held him and we talked, And he cried and I just

—and I said, Matthew, do you wanna go back in the bedroom by grandpa?

So, we did. He, uh, if] got to put him to bed, and he shares a room with my

21-year old son, uh, and if Adam goes out of the room or if I put him on the

pallet to go to sleep and Bob’s in there and Bob gets up to go get a drink of

water and Matthew’s not asleep, Matthew will come right back out. I mean,

he just -—- Matthew won’t stay in a room by himself. Uh, I’ve gotten him so

he'll go outside. Uh, last year we couldn’t get him -~ it’s been over the

winter that Matthew will even go out in the yard and see outside by himself.

He’s confident enough for that.

(R. at 321}-3214.)

We might well find this testimony violative of Bivins had the prosecutor presented it on direct

examination. However, we find no error in its admission here because the State elicited the test-

mony from Mary Winnecke on cross-examination after defendant called her to testify at sentencing

_31-

on his behalf, Winnecke’s testimony against the death penalty for the defendant after he had killed

her daughter and after she had witnessed firsthand the effects of the murder on her grandson was in

effect an argument that death should not be imposed because of a lack of victim impact (or, at least,

because of a lack of victim support for the penalty).*° This the State was entitled to rebut.

The fourth witness called by the defendant at the penalty phase was a mitigation specialist

engaged on defendant's behalf. The witness testified as to defendant’s upbringing in a violent and

otherwise dysfunctional family and as to the adverse impact of drug and alcohol abuse on defendant's

mental condition. Following the presentation of this evidence, both sides made closing arguments.

At the conclusion of this phase of the trial, the trial court instructed the jury. Defendant

claims that the trial court erred in failing to give an instruction on all of the available statutory

penalties for Murder, Le., that defendant could be sentenced to a term of years as an alternative to

death or life without parole. Defendant did not object to the court’s failure to instruct the jury, and

he further posits that he was not required to have tendered a competing instruction because it is the

affirmative duty of the trial court to instruct the jury in this manner, See Ind. Code § 35-50-2-9(d)

(1993) (“The court shall instruct the jury concerning the statutory penalties for murder and any other

offenses for which the defendant was convicted, the potential for consecutive or concurrent sentenc-

ing and the availability of good time credit and clemency.” (emphasis supplied). )”’

26Winnecke testified that her categorical opposition to the death penalty is rooted in her

religious belief system.

"In addition to the duty imposed by Ind. Code § 35-50-2-9(d), the trial court must also

instruct the jury on all matters of law necessary for their information in reaching a verdict. Ind. Code

-32-

Generally, a defendant waives a claim of instructional omission if he fails to object and tender

a competing instruction at trial, Mitchem v. State, 685 N.E.2d 671, 674 (Ind. 1997), unless the

alleged error constitutes fundamental error. Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996), “In

order to rise to the level of fundamental error, the error must constitute a clearly blatant violation of

basic and elementary principles, and the harm or potential for harm therefrom must be substantial and

apparent, A claim of fundamental error is not viable absent a showing of grave peril and the possible

effect on the jury’s decision. We consider the jury instructions as a whole, and in reference to each

other.” Isom v. State, 651 N.E.2d 1151, 1152 (Ind. 1995), reh’g demied (citations and internal

quotation marks omitted),

Upon our examination of the instructions as a whole, we agree with defendant that the trial

court did not instruct the jury on all of the statutory penalties for Murder and other matters required

by Ind. Code § 35-50-2-9(d)."" However, we find no reversible error for four reasons. First, we

cannot say that counsel’s failure to object to the absence of such an instruction was not tactical,

inasmuch as appellants in capital cases have claimed error in the past in giving such instructions.

See, e.g., Timberlake v. State, No. 49500-9305-DP-577, slip op. at 18 (Ind. Dec. 30, 1997);

§ 35-37-2-2(5) (1993), Speaking to the predecessor to § 35-37-2-2, this Court held that the statute

“does not relieve a patty from submitting desired instructions, if the court, through oversight or

otherwise, fails to instruct as fully as a party desired. Counsel, knowing the court is omitting the

instruction upon some point in the case, may not remain quiet and tender no instruction and after-

wards claim the court erred. Such practice would be wrong and mischievous.” Barker v. State, 238

Ind. 271, 277, 150 N.E.2d 680, 683 (1958).

"During the penalty phase, the trial court instructed the jury on penalties as follows: “You

are to consider both aggravating and mitigating circumstances and recommend whether the death

penalty, life imprisonment without parole, or neither, should be imposed.” (R. at 173, 189.)

_33-

Holmes, 671 N.E.2d at 856: Fleenor v. State, 622 N.E.2d 140, 145 (Ind. 1993). Second, during

their closing arguments during the penalty phase, both the prosecutor and defense counsel referred

to the trial court’s authority to impose imprisonment for a term of years as a sentence in this case and

both indicated that if the court elected that option, it was unlikely that the defendant would ever be

released from prison. Third, prior to the legislature requiring instruction on the range of penalties,”

we held it within the discretion of the trial court to refuse a defendant’s request for such instruction,

Burris, 465 N.E.2d at 188. Fourth, the jury was instructed that it had the option of recommending

life without parole as an alternative to a sentence of death. Having recommended death notwith-

standing the life without parole option, we reject defendant’s argument that the jury might have

recommended imprisonment for a term of years had it been instructed on its availability. We believe

this omission does not rise to the level of fundamental error.

The jury subsequently returned a unanimous recommendation that a sentence of death be

imposed.

Trial Court Sentencing Determination. Once the jury has made its recommendation, the jury

is dismissed, and the trial court has the duty of making the final 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. Ind. Code § 3$-50-2-9(1)(1).

Second. the trial court must find that any mitigating circumstances that exist are outweighed by the

The legislature added this provision to the death penalty statute in 1993. 1993 Ind. Acts

PL. 250 § 2.

_34-

aggravating circumstance or circumstances. Ind. Code § 35-50-2-9(i)(2). Third, before making the

final determination of the sentence, the trial court must consider the jury's recommendation. Ind.

Code § 35-50-2-9(e), The trial court must make a record of its reasons for selecting the sentence

that it imposes. Ind. Code § 35-38-1-3.

These statutory provisions make clear that the sentencing court has a separate and independ-

ent role in assessing and weighing the aggravating and mitigating circumstances and in making the

final determination whether to impose the death penalty. Benirschke v. State, 577 N.E.2d 576, 379

(Ind. 1991). In arriving at its own separate determination as to whether the death penalty is an

appropriate punishment, the sentencing court is to point out its employment of this process in

specific and clear findings, Id. The trial court's statement of reasons (1) must identify each mitigating

and aggravating circumstance found, (ii) musi 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

avgravating circumstances have been evaluated and balanced in determination of the sentence,

Benirschke, 577 N.E.2d at 579; Evans v. State, 563 N.E.2d 1251, 1254 (Ind. 1990), and (iv) must

set forth the trial court's personal conclusion that the sentence is appropriate punishment for this

offender and this crime. Benirschke, 577 N.E.2d at 579: Woods v. State, 547 N.E. 2d 772, 793

(Ind. 1989). The requirements for sentencing findings are more stringent in capital cases than in

non-capital sentencing situations. Evans, 563 N.E.2d at 1254.

In imposing the death sentence, the trial court found that the State proved beyond a reason-

able doubt one of the aggravating circumstances listed in the death penalty statute — that the

~35-

defendant had committed another murder, to wit, the three murders in this case. The record and the

law supports this finding.

The trial court found four mitigating circumstances to exist: (1) defendant had no significant

history of prior criminal activity, (ii) defendant was under the influence of extreme mental and

emotional disturbance at the time the three murders were committed, (iii) defendant’s capacity to

appreciate the criminality of his conduct and to conform his conduct to the requirements of the law

may have been substantially impaired at the time of the murders because of his abuse of meth-

amphetamines; and (iv) defendant grew up in a dysfunctional family which may have been responsible

for mental or emotional disturbance.

As required by our death penalty statute, the trial court found that the mitigating circum-

stances that existed were outweighed by the aggravating circumstance. The trial court also gave

consideration to the jury’s recommendation and set forth its personal conclusion that the sentence

was appropriate punishment for this offender and this crime. We find that the sentencing order

entered by the trial court here suffices to meet the requirements imposed by statute and case law.*°

In doing so, we reject defendant’s contention that the sentencing order is deficient in four

respects.

First, defendant argues that the trial court provided insufficient support for its conclusion that

the multiple murder aggravator had been proved beyond a reasonable doubt. We find such support

in the trial court’s finding that the jury convicted the defendant of the three murders listed in the

aggravator,

Second, defendant argues that the four mitigating circumstances found by the trial court were

supported only with “bare-boned” conclusions. While these findings could have been supported in

greater detail, they did refer to specific aspects of defendant’s upbringing and drug abuse. We find

them adequate.

Third, defendant appears to argue that the trial court failed to articulate the specific weight

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Based on our review of the record and the law. we agree that the State has proven beyond

a reasonable doubt an aggravating circumstance authorized by our death penalty statute and that the

mitigating circumstances that exist are outweighed by the aggravating circumstance. We conclude

that the death penalty is appropriate for defendant’s murder of Debbie Wrinkles, Natalie Fulkerson

and Mark Anthony Fulkerson."' We further find this sentence to be proportionate not only to the

nature of the offenses and the character of the defendant, but also to the sentences approved for

capital Murder in other Indiana cases. See, e.g, Matheney vy. State, 45800-9207-PD-584, 1997 WL

731610 (Ind. Nov, 25, 1997); Prowell v, State, 82500-9407-DP-666, 1997 WL 684071 (Ind. Nov.

4, 1997); Baird, 604 N.E.2d 1170; Conner v, State, 580 N.E.2d 214 (Ind. 1991).

Conclusion

Detendant’s convictions and death sentence are affirmed.

SHEPARD, C.J, and DICKSON, SELBY, and BOEHM, JJ.. concur.

it assigned to the aggravating circumstance and the mitigating circumstances. While such an

articulation is welcome, it is sufficient for purposes of both the statute and our review for the trial

court to indicate that it has engaged in the weighing of the aggravators and mitigators as required by

statute and that the aggravators outweigh the mitigators. That standard was met here.

Lastly, defendant argues that the trial court did not set forth its personal conclusion that the

death sentence was appropriate for this offender and this crime. We find such a conclusion in the

following excerpt from its findings: “The Court... now . . . finds that the imposition of the death

penalty as to the Defendant, Matthew E. Wrinkles, is appropriate and proper...”

In reaching this conclusion, we have considered the arguments made to us in this appeal ta

the effect that the death penalty is not appropriate in light of the nature of the offense and the

character of the defendant. Br. of Appellant at 80-85.