Wallace v. State

DeBRULER, Justice,

concurring and dissenting.

Appellant was convicted on four counts of felony murder for the killing of the Gilligan family while committing a burglary. The State sought the death penalty based upon two statutory aggravating circumstances, namely, intentional killing in the course of a burglary and the multiple murders. The jury recommended death. The judge found in support of the first aggravator that the State proved that appellant “murdered” the victims, and not that he had “intentionally” killed them, and on this departure from the statutory standard I partially based my dissent in the direct appeal. Wallace v. State (1985), Ind., 486 N.E.2d 445, 464 (opinion of DeBruler, J., concurring in result and dissenting in which Prentice, J., concurred). I also based that dissent on the departure from the statutory standard when the judge found that a sentence of anything less than death would “depreciate the seriousness of the offense,” a factor applicable to ordinary sentencing, but not capital sentencing.

In this post-conviction proceeding, appellant also claims that the trial court considered appellant’s parole status at the time of his crimes and his criminal history as aggravating circumstances, contrary to the death sentence statute.

The statutory menu of aggravating circumstances applicable in non-capital felony sentencing is open-ended. I.C. 35-38-1-7(d). The statutory menu of aggravating circumstances applicable in capital sentencing is now twelve in number (ten in number at time of appellant’s crime) and is closed-ended. I.C. 35-50-2-9(b). Only the weight of one or more of those twelve aggravating circumstances, proved to the satisfaction of the sentencing court beyond a reasonable doubt, can be considered by the court when balancing aggravating and mitigating circumstances in arriving at the decision on whether the death sentence should be given. Minnick v. State (1989), Ind., 544 N.E.2d 471, 485 (opinion of DeBruler, J., concurring and dissenting in which Dickson, J., concurred).

In its sentencing findings and order, the trial court first completed its application of the death sentencing process, concluding with the statement that “any mitigating circumstances that exist within I.C. 35-50-2-9(c)(7) are outweighed by the aggravating circumstances.” This is then followed by three further and unusual concluding paragraphs as follows:

12. In addition to the requirements of I.C. 35-50-2-9 [the death sentence statute], this Court further finds:

A. That Donald Ray Wallace, Jr. has recently violated the conditions of parole:

13. That Donald Ray Wallace, Jr. had a long history of serious criminal conduct:

[Here follows a long list of juvenile court proceedings and three felony convictions for offenses of the theft genre, spanning the years between 1968 and 1979]

11. [sic] The Court finds that not one scintilla of evidence exists on any mitigating circumstances as set forth in I.C. 35-50-1-1 [sic].

I agree with the construction of this order proposed by appellant, namely that the sentencing court utilized these added findings as statutory aggravating circumstances, in a departure from the death sentence stat *475 ute, in addition to the departure noted above from my dissenting opinion. These two additional departures entitle appellant to a new sentencing hearing.

If it should be that the purpose of paragraph twelve of the findings and order, with its references to appellant’s parole status and to his criminal history, is to demonstrate the trial court’s determination that appellant is entitled to no mitigating credit because of the absence in his past of a significant history of prior criminal conduct, a new sentencing hearing is nevertheless constitutionally mandated by the Eighth Amendment. The list in paragraph 12(B) as evidencing a “long history of serious criminal conduct” is made up of multiple juvenile court proceedings and three felony convictions. After appellant was sentenced to death, two of those three felony convictions were set aside. The remaining felony conviction occurred after a waiver of juvenile court jurisdiction when appellant was seventeen years of age. The conviction was for theft of more than $100.00 for which appellant, in 1974, received a sentence of from one to ten years.

In Johnson v. Mississippi, 486 U.S. 578 , 108 S.Ct. 1981 , 100 L.Ed.2d 575 (1988), the defendant was sentenced to death on the basis of three aggravating circumstances, one of which was a prior conviction. After the sentence, that conviction was set aside in the State of New York. The State of Mississippi then denied post-conviction relief on the basis that the New York action had no legal effect on the use of that prior conviction for death sentencing purposes in Mississippi. The United States Supreme Court reversed and ordered a new sentencing hearing. Here, the prior convictions that were set aside after the sentence were, under the last analysis above in this opinion of the sentencing order, used not as an aggravating circumstance, but as grounds for totally discounting appellant’s past conduct as a source of mitigating weight. If the Eighth Amendment commands that the determination of aggravating circumstances upon which a death sentence rests be made free of taint of invalid prior convictions, it requires that the determination of mitigating circumstances upon which a death sentence also rests be made free of the taint of invalid prior convictions, for in either usage there can be no confidence in the reliability and justness of the determination.

For both of the foregoing reasons, I would reverse the judgment of the post-conviction court and order a new death sentencing hearing, or upon agreement by the State, a new felony sentencing hearing for the purpose of setting and imposing sentences of years for the crimes of felony murder. Insofar as the integrity of the convictions is upheld, I concur.

DICKSON, J., concurs.