death sentence overturned because of trial count’s failure to appoint psychologist to examine defendant for mitigating circumstances
How later courts described this case
- death sentence overturned because of trial count’s failure to appoint psychologist to examine defendant for mitigating circumstances
Written by the judges who cited it.
The opinion
GIVAN, Justice,
concurring and dissenting.
I respectfully dissent from the majority opinion's observation that the statement by *1291 Justice DeBruler in his dissenting opinion in Moore v. State (1985), Ind., 479 N.E.2d 1264 , cert. denied, 474 U.S. 1026 , 106 S.Ct. 583 , 88 L.Ed.2d 565 , is the law in Indiana today. In many instances it is virtually impossible to tell what is in the mind of the perpetrator at the time he acts. The only logical basis upon which the State may proceed in such an instance is to establish the fact that the actor either knew or should have known the person he killed was a police officer.
in the case at bar, as pointed out by the majority opinion, FBI agents testified at the trial that they clearly announced to appellant at the time they confronted him that they were FBI agents. This is certainly a factual situation from which any reasonable person could deduce that appellant should have known they were police officers. I know of no scientific method to pry into appellant's mind as to what he actually believed at the time.
I agree with the majority opinion that appellant should have been afforded a psychologist at the penalty phase of the trial to present evidence as to his mental state at the time of the shooting. I agree that his mental state would not be a defense to the shooting but possibly could be a mitigating circumstance which might avoid the death penalty. I therefore agree that we should remand this case to the trial court for a retrial of the penalty phase.
I would delete from the majority opinion the dictum that the State must present absolute proof.that appellant knew he was shooting at a police officer at the time he fired the shot. The statute is satisfied when the State presents evidence that a defendant should have known he was shooting at a police officer at the time he fired the shot.