Lockhart v. State

DeBRULER, Justice,

concurring and dissenting.

In this instance, the trial judge concluded that there were two aggravating circumstances proved, namely, 1) that the killing occurred while committing a robbery, (b)(1); and 2) the conviction of another murder, (b)(7); and that the weight of each was greater than the weight of mitigating circumstances in that there were no mitigating circumstances to be weighed.

In alleging the (b)(1) aggravator, the State argued. that appellant "intentionally killed Windy Gallagher during the commission or attempted commission of a robbery." There was no more specific allegation, and the trial court correctly instructed the jury pursuant to the robbery statute that the state must prove a taking of property "by" threat, force, or fear. I.C. 35-42-5-1. "By," within the robbery statute, does not signify close proximity in time, place, and continuity of action, as does "while" or "during" in the case of the felony-murder statute, or the death sentence statute in (b)(1), but signifies instead the means or agency by which the taking is accomplished. Payton v. State (1965), 246 Ind. 401 , 206 N.E.2d 143 ; Cross v. State (1956), 235 Ind. 611 , 137 N.E.2d 32 ; Rains v. State (1893), 137 Ind. 83 , 36 N.E. 532 . The cireumstantial evidence here is not sufficient to warrant the inference beyond a reasonable doubt that the violence against the victim was the means or agency of the taking of the victim's purse and photo. There is but a suggestion that the victim's fear and suffering, as severe and as horrible as it must have been, was related to the taking of her small things. The (b)(1) ag-gravator consists of an intentional killing during the taking or attempt at taking property by violent means. There is some circumstantial evidence of all of the elements of this aggravator. While circumstantial evidence can have sufficient substance to warrant the conclusion of a rea *1104 sonable trier of fact beyond a reasonable doubt that this aggravator exists, in my view this circumstantial evidence does not have that quality. Appellant does not specifically raise this issue; however, it is part and parcel of this Court's independent assessment of the appropriateness of the ultimate penalty. Consequently, I find that the penalty is not appropriately rested upon this aggravator.

In alleging the (b)(7) aggravator, the State argued that "the defendant has been convicted of another murder." I construe this aggravator to have three essential elements: (1) that the conviction be final in the sense that the determination of guilt was affirmed on direct appeal, or that the direct appeal of the conviction was waived; (2) that the conviction occurred prior to the act of killing upon which the present charge is based; and (8) that the conviction was for an intentional or knowing murder rather than a felony-murder. The majority opinion rejects the finality requirement of (1), above; the requirement of (2) above was rejected in Hough v. State (1990), Ind., 560 N.E.2d 511 ; and the requirement of (8) above is satisfied. I respectfully dissent to the construction placed upon this aggravator in the majority opinion. Since the State did not prove that the Texas conviction was affirmed on appeal, or appeal therefrom was waived, the penalty of death is not appropriately rested upon this aggravator. Consequently, I would set aside the sentence of death and order a new sentencing hearing before the court to permit the State to prove the (b)(7) aggravator, or in lieu thereof, the imposition of a sentence of sixty years. I do, however, vote to affirm the conviction.