Opinion

Schiro v. State

  • 533 N.E.2d 1201
  • 1989 Ind. LEXIS 34
  • 1989 WL 10869
Court
Indiana Supreme Court
Filed
Feb 8, 1989
Status
Published
Author
DeBRULER
On the bench
Pivarnik, Shepard, Givan, Debruler, Dickson
Cited by
69 cases
Authority
More cited than 9.4%

no ineffective assistance of counsel where, because an insanity defense was raised, the defendant was able to present evidence, typically considered mitigating, during the guilt phase without reintroducing the same evidence during the penalty phase

How later courts described this case

  • no ineffective assistance of counsel where, because an insanity defense was raised, the defendant was able to present evidence, typically considered mitigating, during the guilt phase without reintroducing the same evidence during the penalty phase
  • refusing to imply acquittal of intentional murder from jury's silence where jury convicted of felony murder
  • disadvantageous trial strategy does not constitute ineffective assistance

Written by the judges who cited it.

The opinion

DeBRULER, Justice,

dissenting.

In this case appellant was charged in three separate counts. Count I charged murder as a knowing killing of the victim. Count II charged murder as a killing in the course of a rape of the same victim. Count III charged murder as a killing in the course of deviate sexual conduct. The jury was charged on all counts, and returned but a single verdict, namely guilty on Count II. As to the other counts, the verdict was entirely silent in regard to guilt or innocence of appellant. The law requires that the jury verdict be deemed the legal equivalent of verdicts that the defendant is not guilty of the felonies charged in Counts I and III. Buckner v. State (1969), 252 Ind. 379 , 248 N.E.2d 348 . Smith v. State (1951), 229 Ind. 546 , 99 N.E.2d 417 . Cichos v. State (1965), 246 Ind. 680 , 208 N.E.2d 685 , which appears to hold to the contrary, is not, but is a waiver case. There, this Court held that the double jeopardy claim against retrial was waived by filing a motion for new trial. Even if Cichos is valid law today, it does not apply here because appellant took no action between the silent jury verdict on the murder charge of knowingly killing and the judge’s sentencing finding of the aggravating circumstance that appellant had intentionally killed in the course of the rape, which one might deem a waiver.

*1209 At the trial, the prosecution used every resource at its disposal to persuade the jury that appellant had a knowing state of mind when he killed his victim. It failed to do so. At the sentencing hearing before the jury it had an opportunity to persuade the jury that appellant had an intentional state of mind when he killed his victim. The jury returned a recommendation of no death. At the sentencing hearing before the judge, the prosecution had yet another opportunity to demonstrate an intentional state of mind, and finally succeeded. In my view, the silent verdict of the jury on Count I, charging a knowing state of mind, must be deemed the constitutional equivalent of a final and immutable rejection of the State’s claim that appellant deserves to die because he had an intentional state of mind. That verdict acquitted appellant of that condition which was necessary to impose the death penalty under this charge. Bullington v. Missouri, 451 U.S. 430 , 101 S.Ct. 1852 , 68 L.Ed.2d 270 (1981). The difference in the two states of mind is insignificant and too esoteric in this instance. In the one, a person- acts with awareness that he is so acting. In the other, a person acts with an objective to so act. I.C. 35-41-2-2. To accord the difference, one would have to believe that a person can be presently unaware that he is strangling another, while at the same time having a goal presently in mind to strangle such other person.

I would reverse the judgment and remand with instructions to grant post-conviction relief in the form of a new sentence of years upon the conviction for felony murder.

DICKSON, J., concurs.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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