Moore v. State

DeBRULER, Justice,

dissenting.

One of the aggravating circumstances upon which the State based its request for the death penalty was Ind.Code § 35-50-2-9(b)(6). That provision provides:

"The victim of the murder was a correction employee, fireman, judge, or law enforcement officer, and either (1) the victim was acting in the course of duty, *1283 or (ii) the murder was motivated by an act the victim performed while acting in the course of duty."

The policy at the base of the exercise of the police power here is to create a special deterrence to the direction of physical force against police officers and others upon whom the security of the community depends. There are at least two essential states of mind referred to in the provision, the one required for murder plus an awareness of the official status of the target. The first is within the meaning of the term "murder" and the second is within the special official status terms. The purpose of the statute restricts it to instances in which the attacker knows he is dealing with one of the enumerated officials. Such knowledge of official status must be actual. Actual knowledge is, I am convinced, intended by the legislature. Moreover, my personal vote as Justice of this court concurring in Resnover v. State (1984), Ind., 460 N.E.2d 922 , was based upon the existence of this statutory requirement of actual knowledge of the official status of the victim and carried with it no implication, as did apparently the votes of the other members of the court, that this statutory provision was intended to permit those committing murder to be subject to the death penalty if they were confronted with circumstances from which a reasonable man could discern official status. I consider the reasonable discernment test applied by the majority to be contrary to legislative intent and basic precepts of criminal law governing standards to select those who deserve death as a penalty for crime.

There is no recitation in the record of the sentencing hearing that the sentencing court did find beyond a reasonable doubt as trier of fact, that appellant, at the time he shot and killed this police officer, did know that he was shooting at a police officer. An application of the above quoted aggravating circumstance provision in my view requires that finding. The recitation of the sentencing court is in fact susceptible of being viewed as one reflecting an inability to find this fact beyond a reasonable doubt. Furthermore, the record discloses that this aggravating circumstance provided part of the total positive value of aggravating circumstances, found to have greater weight than mitigating cireumstances, in the final step of the death sentencing process conducted pursuant to Ind.Code § 35-50-2-9(e). Since the finding on that aggravating circumstance was based upon a false legal premise, ie, that appellant need not have had actual knowledge of official status, it cannot be permitted to provide part of that countervailing weight which may outweigh the net positive value of mitigating cireum-stances. Upon the basis of the foregoing analysis of this case, I would set aside the death sentence and order a new sentencing hearing.