Article 1, Section 18 “applies to the penal laws as a system to insure that these laws are framed upon the theory of reformation as well as the protection of society.”
How later courts described this case
- Article 1, Section 18 “applies to the penal laws as a system to insure that these laws are framed upon the theory of reformation as well as the protection of society.”
- “The failure to properly raise issues in the Motion to Correct Errors generally results in a waiver of the claimed errors. . . . Since the death penalty was imposed in this case, however, we will review the state of the record concerning these questions”
- witness who refused to testify after contempt order was found unavailable and the State was permitted to read the transcript of the witness's testimony at a previous trial
- “It is well settled that any error in admission of evidence is harmless if the 13 same or similar evidence has been admitted without objection.”
Written by the judges who cited it.
The opinion
DeBRULER, Justice,
concurring and dissenting.
The death sentence statute, and particularly LC. § 35-50-2-9(e), sets forth the final essential step for the jury to take in arriving at its recommendation, and for the judge to take in arriving at the sentence. The jury and the judge must place the total positive value of the alleged, enumerated and proven aggravating circumstance or cireumstances on one side of the scale, and place the net positive value of any mitigating circumstances on the other side of the scale, and thereby establish whether or not the latter is outweighed by the former. A recommendation of death, and the death sentence itself can only be made when the net positive value of any mitigating circumstances is less than the total positive value of the alleged, enumerated and proven aggravating circumstance or circumstances. At this final stage, no other values are relevant.
It was laid down in Judy v. State (1981), 275 Ind. 145 , 416 N.E.2d 95 , that in the death sentencing situation there are "aggravating factors" followed by Schiro v. State (1983), Ind., 451 N.E.2d 1047 that there are "counter arguments to any possible mitigating circumstances available to *1233 the defendant," which factors or counter arguments operate to negate the existence of or negate the positive value of possible mitigating factors, as for example where a gross history of prior dangerous criminal conduct negates the possible mitigating circumstance which exists when the "defendant has no significant history of prior criminal conduct," under I.C. § 35-50-2-9(c)(1). However, to use a gross history of prior dangerous criminal conduct to diminish the net positive value of other legitimate mitigating cireumstances, would be to transform it into an "enumerated" aggravating circumstance, contrary to the statute. That would be tantamount to placing such history on the one side of the scale with the alleged, enumerated and proven aggravating circumstance or cireumstances. As I read this statute that would be contrary to the command of the statute that the net positive value of alleged, enumerated and proven "aggravating circumstances" be determined, and then the net positive value of any mitigating cireumstances be determined, and then the two values compared. This comparison as contemplated by the statute can only exist and be enforced where we restrict "aggravating factors", and "counter arguments to any possible mitigating circumstances available to the defendant" to their office of demonstrating the absence of particular, express, and discrete mitigating cireumstances.
The trial court in its record of sentencing procedures evaluated aggravating circumstances as follows:
a L * u * *
The aggravating cireumstances that I am going to find in this case, find (1) that you committed these murders intentionally killing victims while attempting to rob them and that you acted out of motives for pecuniary gain. Doing that, committing a crime for pecuniary gain is a, an especially aggravated offense and that is an offense that is particularly subject to principles of law that I will find later on.
I will find also that the victim in this crime, the victims in this crime were porticularly helpless and defenseless people.
I will find that you have been convict ed of another murder.
I have to look at mitigating cireum-stances also. The law says that I need to find that you have no particular history of prior criminal conduct. This is not true. The Pre-Sentence Investigation indicates that since the age of 16 you have only been on the outside approximately three years.
#k # * # # *
This excerpt is followed by a continued retailing and consideration of the mitigating circumstances expressly set forth in the statute. It is starkly clear here that the trial court found what it considered to be three aggravating cireumstances, and places them on one side of the life-death scales. One of these is the fact that the unfortunate victims of this homicide were two helpless and defenseless people. While true, that fact, and the manner in which it reflects appellant's dangerous character, is not an aggravating circumstance upon which the death sentence may rest. Such finding is surely error, and requires a remand for a new sentencing hearing.
Furthermore, according to the uncontra-dicted evidence before the court on sentencing, appellant was committed by due course of law to two separate psychiatric hospitals ' between the ages of 16 and 18. I can find no basis at all for not giving this fact some positive weight as a mitigating circumstance. That confinement was followed by immediate and continuous anti-social and criminal behavior. This is not to say that there is an excuse or justification in this prior time in mental hospitals for appellant's crimes. It is rather to say that such hospitalization cannot simply be declared benign in arriving at the sentence of death. For this reason also, I would set aside the death sentence and remand for a new sentencing hearing. I concur however in affirming the convictions.