Lambert v. State

*356 DeBRULER, Justice,

concurring in result and dissenting.

1. Over objection at trial the judge admitted a videotape in which appeared a male officer whose hands were handcuffed behind his back. This officer moved and tossed about and managed to position his hands and body in a manner which would have permitted him to remove a handgun from the back of his pants, place it on the driver's head rest and yell "bang, bang." This ruling was error. The standard governing the admissibility of such matter given in Peterson v. State (1987), Ind., 514 N.E.2d 265 , was not met. First, there was no necessity for the employment of this method by the prosecution in proving its case. The jury was in a perfect position to judge whether appellant was able to draw, point, and fire the fatal shots while handcuffed. Such judging is everyday fare for triers of fact. Second, this visual portrayal is pure theater. It was written, produced, directed, and casted by the prosecuting agents of the government. It has emotional content and impact upon the viewer far beyond the abstract message it carried that appellant could have drawn, pointed and fired. The film was manufactured outside the courtroom. It was shown to the jury on a screen using expensive and technologically sophisticated machinery. There was undoubtedly a hushed atmosphere in the courtroom. The attention of the jury was undoubtedly focused in that special manner which accompanies theater and television viewing. It is impossible to conceive of a process posing a greater threat to the fairness of judicial proceedings. This particular film and its genre, as evidence, have no part in court and must be condemned in the strongest terms.

As has oft been noticed, it is not every error which requires remedy. Under the unique cireumstances of this case, the error admitting this film was harmless at the guilt/innocence stage of the trial, Additional facts supporting the verdict show that when deputy sheriff Scroggins and deputy Ellison reached the car, the motor was running, the car was in drive, and the victim Winters was behind the wheel with his foot still on the accelerator. Appellant was in the back with the murder weapon. Winters was dying of multiple bullet wounds. Winters' gun was still secure in its holster. The risk that the jury gave significant weight to the erroneous ly admitted film in determining guilt or innocence is de minimus. Since I regard the ruling of the trial court to be error, I concur in result only in that part of the majority opinion affirming the conviction.

2. With respect to sentencing, I dissent and vote to set aside the sentence of death and order the imposition of a term of years. The trial court was in error in permitting Chief Scroggins over an Eighth Amendment objection to testify that as a direct result of the murder of Officer Winters he was unable to function at an appropriate level as chief, and had to seek medical help and take prescription drugs. He also testified that some officers as a direct result of the murder of Officer Winters began acting in a violent and illegal way in dealing with the public in the course of their duties.

The holding of the Supreme Court in Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), does not write the Eighth Amendment out of the issue of whether victim impact evidence is admissible during the penalty phase of a capital trial. After Payne, some victim impact evidence is admissible and some is not. In Payne the Supreme Court approved the prosecutor's use of a grandmother's testimony describing the sense of loss of her grandchild who himself managed to survive the same murderous attack which had taken the lives of his mother and sister. 'The child was a survivor of the very crime for which the death penalty was sought. I do not believe the Eighth Amendment, as interpreted by the Supreme Court in Payne, would permit a state to include a police chief or a police department among the survivors of erime for the purpose of admissibility. Clearly, only three Justices in Payne regard such large entities and the community as a whole as survivors for this purpose.

In its final order, the trial court added weight to the death aggravator based upon the "terrible effect" which this killing had on other officers. In so doing, it is evident that the trial court was moved by the testimony of *357 Chief Seroggins and inferences therefrom to add weight on the aggravator side of the seales. This was federal constitutional error and contrary to law.

8. In its final order, the trial court's final reason for choosing death was that under the circumstances of the case the "... imposition of the death penalty is supportable and the Court now accepts the recommendation of the jury." I continue to regard this type of reasoning as inconsistent with the requirement that the judge adjudicate the propriety of the sentence of death.

4. Finally, it is fimportant to consider the distinctions between the cireumstances of this case and those present in Johnson v. State (1992), Ind., 584 N.E.2d 1092 , cert. denied, - U.S. -, 113 S.Ct. 155 , 121 L.Ed.2d 105 (1992) and Woods v. State (1989), Ind., 547 N.E.2d 772 , cert. denied, 501 U.S. 1259 , 111 S.Ct. 2911 , 115 L.Ed.2d 1074 (1991), in which the death penalty was affirmed by this Court on appeal. In both those cases, as in this case, the defendant was under the lawful drinking age, and killed while intoxicated. There the similarities end. Both Johnson and Woods planned to rob a lone elderly person at home, and in executing such plans held weapons for use against the intended victims. Appellant did not plan to kill officer Winters and arm himself for that purpose. His design to kill and escape was made under a high state of intoxication, after having been handcuffed and confined in a small space. The weight of the aggravators in Johnson and Woods is greater.

SULLIVAN, J., concurs.