Prowell v. State

SULLIVAN, Justice,

dissenting.

I agree with the majority that the trial court’s decision to sentence defendant Vincent J. Prowell to death for the terrible murders of Denise Powers and Christopher Fillbright was in accordance with Indiana law. But Article VII, § 4, of Indiana Constitution provides that “[t]he Supreme Court shall have, in all appeals of criminal cases, the power to review and revise the sentence imposed.” This Court’s review of capital eases under Article VII is part and parcel of the sentencing process. Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989).

The approach we take in reviewing death sentences was well illustrated in the recent case of Peterson v. State where, after analyzing the trial court sentencing determination for error and finding none, we proceeded with our “duty under the Constitution and statutes of Indiana to determine whether in our judgment the death penalty is appropriate for the defendant under the circumstances of th[e] case. Ind. Const. art. VII, § 4; Ind.Code § 35-50-2-9(j) (Supp.1996); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.1989), ce rt. denied, 498 U.S. 881 , 111 S.Ct. 217 , 112 L.Ed.2d 176 (1990).” Peterson v. State, 674 N.E.2d 528, 542 (Ind.1996), reh’g denied.

In this case, the trial court found the aggravating circumstance alleged, that the defendant committed two murders, Ind.Code § 35-50-2-9(b)(8) (Supp.1992), to have been proven beyond a reasonable doubt. 1 Based on my review of the record and the law, I agree with this conclusion and would further conclude that the murders were intentional. In most circumstances, I consider this so-called “multiple murder” aggravator, where the murders were intentional, to be entitled to the highest weight. Accord, Roche v. State, 596 N.E.2d 896, 902 (Ind.1992) (concurring op. of DeBruler, J., in which Krahu-lik, J., concurred). However, with only one exception (Potts v. State, involving an individual no longer subject to a death sentence), every death penalty case we have reviewed on direct appeal where the (b)(8) “multiple murder” aggravator was alleged either has involved more than two murders or has relied on one or more additional aggravating circumstances. 2 That is, there is no person *571 currently subject to a death sentence in Indiana for whom the sole aggravating circumstance supporting the death sentence was the commission of two murders. And the circumstances of this crime appear to be such that none of the other statutory aggravating circumstances were available to be alleged. 3 Thus, while the intentional killing of the two victims in this case is entitled to weight in the high (if not highest) range, it is nevertheless the case that had one of the victims been fortunate enough to survive the attack, this could not have been a death penalty case at all. The fact that this case differs from all but one (Potts) of the death penalty eases we have reviewed involving the (b)(8) multiple murder aggravator does not mean that the death penalty is inappropriate in this case. But it may mean that the weight given the aggravating circumstance here should differ from that given the aggravating circumstances in those other cases.

The' trial court in this case found two mitigating circumstances to exist. The trial court’s sentencing order in this regard read as follows:

.The Court finds that the mitigating circumstances contained in [Ind.Code §] 35-50-2-9(c)(l) and (e)(8) apply to the defendant in that he has no significant history of prior criminal conduct and grew up in a dysfunctional family and may have been subjected to physical and emotional abuse.

(R. at 271.) As the majority notes, there was no elaboration by the trial court on these findings in its order.

Based on my review of the record and the law, I analyze the mitigating circumstances entitled to weight in this case as follows.

First, the defendant pled guilty to the crimes charged. A guilty plea demonstrates a defendant’s acceptance of responsibility for the crime and at least partially confirms the mitigating evidence regarding his character. Scheckel v. State, 655 N.E.2d 506, 511 (Ind.1995). A guilty plea further extends a benefit to the state and the victim or the victim’s family by avoiding a full-blown trial. Id. Thus, a defendant who pleads guilty deserves to have some mitigating weight extended to the guilty plea in return. Id. Accord, Widener v. State, 659 N.E.2d 529, 534 (Ind.1995); Hardebeck v. State, 656 N.E.2d 486, 493 (Ind.Ct.App.1995), *572 tran s. denied. See also Duvall v. State, 540 N.E.2d 34, 35 (Ind.1989); Davis v. State, 477 N.E.2d 889, 899 (Ind.1985) (death penalty ease); Lang v. State, 461 N.E.2d 1110, 1112-1113 (Ind.1984); Singer v. State, 674 N.E.2d 11, 14 (Ind.Ct.App.1996). Under the circumstances of this case, I would assign weight to this mitigating circumstance in the low range.

The trial court found that defendant grew up in a dysfunctional family and may have been subjected to physical and emotional abuse. The evidence presented at the sentencing hearing tended to show that defendant grew up in Chicago with his mother and brother. When the defendant was two years old, his mother was involved in an abusive relationship with a man named Raymond Edwards. From the time defendant was seven years old until the time he moved out at age eighteen, an individual named Tony Johnson lived with defendant’s mother. Their relationship was characterized by periodic violence, some of which affected the two children. There was also evidence that while Tony Johnson insisted that he be considered a man and presented himself to the world as a man, he was in fact a woman (or at least had the external physical characteristics of a woman). This situation created tension in the home and resulted in the children being taunted by other children in the neighborhood. On the other hand, the defendant had the regular care and affection of two grandmothers. And his mother, a college graduate, made arrangements for him to attend a variety of public and private schools in order to meet his educational needs. Defendant graduated from high school and attended some college.

Dr. Dill, a psychologist, administered certain tests to the defendant. Dr. Dill testified at the sentencing hearing that the defendant suffered from “Paranoid Personality Disorder.” Dr. Dill illustrated manifestations of this disorder in defendant’s reclusiveness and his unwarranted barricading of himself in his room at home; wearing a flak jacket; quitting a job out of fear after a co-worker had been killed; and other instances of suspi-ciousness of others and fear of danger generally.

I find that defendant’s unwarranted heightened suspiciousness of others and unwarranted heightened fear of danger generally are attributable to, and should be considered in support of, the claim of difficulties of his upbringing. I do not find Dr. Dill’s testimony supportive of a separate claim that defendant suffered from a mental impairment that is entitled to mitigating weight. As to the proffered mitigating circumstance of the defendant’s difficult upbringing, I would assign it weight in the low range.

The trial court found that the defendant had “no significant history of prior criminal conduct.” (R. at 271.) In fact, the record suggests this to be an understatement. There is absolutely nothing of record to suggest that defendant ever had any difficulty with the law whatsoever — either as a juvenile or an adult. The section of the pre-sentence investigation report prepared by the probation department dealing with prior legal history contains the following entries: (a) Juvenile: “The defendant denied any juvenile record, and this investigator was unable to locate any evidence of a juvenile record for the defendant;” (b) Adult: “The defendant is currently charged with two counts of murder. He has no prior record.” (c) Criminal Orientation: “The defendant has no prior involvement with the legal system. His driver’s license is current and has never been suspended.” (R. at 259.)

In my view, absence of criminal history is the weightiest of all mitigating circumstances. One who has conformed his or her conduct to the dictates of our society is entitled to consideration therefor upon committing a first offense. The defendant here, age 30, maintained a blemish-free legal history both in Chicago where he lived for most of his adulthood and in Evansville where he had lived for a short period of time. 4 Given the *573 absence of any criminal history whatsoever, even the prosecutor expressed bewilderment over these crimes: “I don’t think anyone would have suspected that he was likely to commit this crime before he committed this.” (R. at 886.) In these circumstances, I would assign weight to the absence of prior criminal history in the highest range.

The multiple murder aggravator is entitled to great weight and because it is, I agree that the trial court’s sentencing determination is in accordance with Indiana law. But in the exercise of this Court’s “duty under the Constitution and statutes of Indiana to determine whether in our judgment the death penalty is appropriate for the defendant under the circumstances of th[e] case,” Peterson, 674 N.E.2d at 542 , I am unable to find that the aggravating circumstances outweigh the mitigating circumstances. The law requires that aggravating circumstances outweigh mitigating circumstances for a death sentence to be imposed. Ind.Code § 35-50-2 — 9(g)(2) (Supp.1992). . I would remand this ease to the trial court with instructions to vacate the sentence of death and impose the maximum term of years prescribed by the legislature for these offenses.

. Before a death sentence can be imposed, our death penalty statute requires the State to prove beyond a reasonable doubt at least one aggravating circumstance (often referred to as an "ag-gravator”) listed in subsections (b)(1) through (b)(12) of the statute. Ind.Code § 35-50-2-9 (Supp.1992).

The (b)(8) aggravator provides: "The defendant has committed another murder, at any time, regardless of whether the defendant has been convicted of that other murder.” Id. We have held that this aggravator is available only in cases in which the defendant is tried in the same proceeding for the multiple murders alleged in the aggravating circumstances. Williams v. State, 669 N.E.2d 1372, 1389 (Ind.1996), reh'g denied, cert. denied, - U.S. -, 117 S.Ct. 1828 , 137 L.Ed.2d 1034 (1997); State v. McCormick, 272 Ind. 272, 278 , 397 N.E.2d 276, 280 (1979).

Other aggravators cited in note 2 below are set forth in subsections' (b)(1)(B) ("The defendant committed the murder by intentionally killing the victim while committing or attempting to commit ... Burglary.”); (b)(Z )(G) ("The defendant committed the murder by intentionally killing the victim while committing or attempting to commit ... Robbery."); (b)(3) ("The defendant committed the murder by lying in wait.”); (b)(6) (“The victim of the murder was a ... law enforcement officer, and either: (A) the victim was acting in the course of duly; or (B) the murder was motivated by an act the victim performed while acting in the course of duty.”); and (b)(7) ("The defendant has been convicted of another murder.”). Ind.Code § 35-50-2-9 (Supp.1992).

. We have reviewed death sentences on direct appeal in the following cases where the (b)(8) "multiple murder” aggravator was the only aggravating circumstance alleged: Baird v. State, 604 N.E.2d 1170 (Ind.1992) (three murders; death sentence affirmed); Potts v. State, 594 N.E.2d 438 (Ind.1992) (two murders; death sen *571 tence affirmed; death sentence later modified to 210 years by agreement of the parties); Conner v. State, 580 N.E.2d 214 (Ind.1991) (three murders; death sentence affirmed).

We have reviewed on direct appeal death sentences imposed in reliance on the (b)(8) "multiple murder” aggravator and one or'more additional aggravating circumstances in the following cases: Peterson v. State, 674 N.E.2d 528 (Ind.1996) (two murders; also (b)(7) (defendant convicted of another murder (two)) aggravator; death sentence affirmed); Williams, 669 N.E.2d at 1372 (three murders; also (b)(1) (intentional killing during robbery) aggravator; death sentence affirmed); Holmes v. State, 671 N.E.2d 841 (Ind.1996) (two murders; also (b)(1) (intentional killing during robbery) aggravator; death sentence affirmed), reh’g denied, cert. denied, - U.S. -, 118 S.Ct. 137 , - L.Ed.2d - (1997); Roark v. State, 644 N.E.2d 565 (Ind.1994) (three murders; also (b)(ll) (victim (two) under age twelve) aggravator; death sentence modified to 200 years); Rouster v. State, 600 N.E.2d 1342 (Ind.1992) (two murders; also (b)(1) (intentional killing during robbery) aggra-vator; death sentence affirmed); Williams v. State, 600 N.E.2d 1342 (Ind.1992) (same); Roche v. State, 596 N.E.2d 896 (Ind.1992) (same); True blood v. State, 587 N.E.2d 105 (Ind.1992) (three murders; also (b)(ll) (victim (two) under age twelve) aggravator; death sentence affirmed); Hough v. State, 560 N.E.2d 511 (Ind.1990) (two murders; also (b)(1) (intentional killing during robbery) aggravator; also (b)(7) (defendant convicted of another murder) aggravator; death sentence affirmed); Townsend v. State, 533 N.E.2d 1215 (Ind. 1989) (two murders; also (b)(1) (intentional killing during robbery) aggravator; death sentence affirmed); Fleenor v. State, 514 N.E.2d 80 (Ind.1987) (two murders; also (b)(1) (intentional killing during burglary) aggravator; also (b)(3) (murder by lying in wait) aggravator; death sentence affirmed); Thompson v. State, 492 N.E.2d 264 (Ind.1986) (two murders; also (b)(1) (intentional killing during burglary) aggravator; also (b)(7) (defendant convicted of another murder) aggravator; death sentence affirmed); Wallace v. State, 486 N.E.2d 445 (Ind.1985) (four murders; also (b)(1) (intentional killing during burglary) aggravator; death sentence affirmed); Bieghler v. State, 481 N.E.2d 78 (Ind.1985) (two murders; also (b)(1) (intentional killing during burglary) aggravator; death sentence affirmed); Moore v. State, 479 N.E.2d 1264 (Ind.1985) (three murders; also (b)(6) (victim was law enforcement officer) aggravator; death sentence affirmed).

. Cf. Harrison v. State, 644 N.E.2d 1243 (Ind.1995) ((b)(8) multiple murder aggravator apparently available but not alleged), cert. denied, - U.S. -, 117 S.Ct. 307 , 136 L.Ed.2d 224 (1996).

. Defendant had moved to Evansville in January, 1993, in order to be near his mother who had moved there two years earlier. He moved in with his mother and her then-current companion, unaware that they were drug-dealers. Two months later, his mother and her companion were arrested. His mother testified that she kept any knowledge or evidence of their cocaine enterprise from the defendant (prosecutor questioning):

*573 Q. [I]t’s your testimony that Vincent was not aware that any of that [dealing cocaine] was going on?

A. No, Vincent was not, no, he was not. That was not Vincent’s business.

Q. You didn’t share any of that with him?

A. No, I didn’t, no, I didn’t want Vincent involved in that.

(R. at 731.)