Huffman v. State

DeBRULER, Justice,

concurring in result and dissenting.

Appellant and co-defendant Underwood were charged in Count II with murder in that they knowingly killed the victim, Kerry Golden, by striking him, and were charged in Count III with felony-murder in that they killed the victim while committing or attempting to commit robbery. The death penalty count alleged a single aggravating cireumstance, namely that appellant had intentionally killed the victim while committing or attempting to commit robbery,. I.C. 85-50-2-9(b)(1). At the trial on these charges, appellant Huffman requested the court to give his tendered instructions on the lesser included offenses of battery and battery with a deadly weapon. The court refused to so instruct the jury.

Intent to kill is the element which distinguishes the form of murder alleged in Count II from battery with a deadly weapon. Malott v. State (1985), Ind., 485 N.E.2d 879 . The evidence presented at trial going to appellant's state of mind was consistent with an intent only to touch. The testimony of Gerald Loy showed that co-defendant Underwood asked appellant Huffman for the keys to get the tire tool so that Underwood could "knock the man [Golden] out." Underwood told Loy that although he did hit Golden, he didn't mean to strike as hard as he did and did not mean to kill Golden. Underwood further told Loy that after delivering the blow, he checked the victim and, upon discovering that Golden was dead, he asked appellant Huffman to hit the victim one time. Huffman told Loy that he did hit the victim one time with the tire tool. The jury could have believed that Huffman was acting in a ritualistic fashion in so doing. One-time co-defendant Asbury testified that during the attack, Underwood pulled Golden out of the car, Huffman kicked Golden and hit his face twice, Underwood took Golden's clothes off and picked him up by his penis, and Huffman held a knife to Golden's throat saying, "If you know what's good for you, you won't say anything." Asbury testified further that Underwood told him out of Huffman's presence that Underwood had to kill Golden. Huffman testified that when Underwood demanded that he hit the victim with the tire iron, he believed that Golden was already dead. These facts, presented through both State and defense witnesses, confirm that the jury, given the opportunity, could have determined that appellant Huffman did not intend to kill the victim, but intended to batter the dead body. It was therefore error under Indiana law to refuse this lesser and included offense instruction.

This error in instructing the jury is constitutional in dimension and requires that *382 the death sentence be set aside. In Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980), the Supreme Court held that it was unconstitutional to impose a death sentence after a jury verdict of guilty of a capital offense when the jury was not permitted to consider a verdict of guilty of a lesser included non-capital offense. That holding applies here, despite the parallel felony-murder charge. In Beck, the lesser included non-capital offense charge which the jury should have been, but was not, permitted to consider was an avenue by which the defendant could have avoided imposition of the death penalty. In the case at bar, the lesser included non-capital offense of battery with a deadly weapon would have provided a like avenue for avoiding imposition of the death penalty since a verdict of guilty of battery would have acquitted appellant of murder under Count II. This would also have precluded the finding of an intent to kill, which was an essential element of the lone aggravating circumstance upon which the prosecution based its claim for the death penalty.

Appellant also contends that the trial court committed error in refusing to allow the jury to consider his Exhibit O as a mitigating circumstance. It was a copy of a plea offer which was made to him by the prosecutor and which he rejected prior to the filing of the death count. Our statute provides that a mitigating cireumstance is any one which is "appropriate for consideration." 1.C. 85-50-2-9(c)(8). I take this to mean that any fact or event which tends to reflect favorably upon the defendant's character or which tends to diminish in any respect his participation in the offense should be heard. This legislative mandate as well as the Eighth Amendment enjoin a court to listen and consider all of the relevant words of persons who speak to defend themselves from the gallows. Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978). What kind of a verbal standard of relevance is appropriate to apply so as to stop utterances at such a moment? In Magley v. State (1975), 263 Ind. 618, 641 , 335 N.E.2d 811, 825 , we said that, under normal circumstances, "[t]he fact that a piece of evidence makes an inference slightly more probable suffices to show its relevance." Experience dictates that the prosecution, partaking as it does of normal human decency, does not in normal circumstances make plea offers to the most culpable when several are facing charges for a single criminal episode. This plea offer therefore was relevant and appropriate for consideration since it made slightly more probable the inference that appellant's participation in the crime was lesser than that of others. Accord Jeffers v. Ricketts, 627 F.Supp. 1334 (D.Ariz.1986).

The State contends that a rule recognizing such plea offers as relevant for death sentencing purposes should not be declared because it will deter such offers to the detriment of criminal defendants facing capital charges. Such deterrence will not be substantial since the prosecution has the opportunity to diminish the weight of such mitigating circumstances by demonstrating the lack of relationship between the offer and the defendant's nature and offense. I would therefore vacate the conviction for murder and also vacate the sentence of death. In all other respects, I concur in the result.