Petition — DILLON v. INDIANA (No. 83-6136)
Supreme Court brief1983
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| g3-6136 JAM 80 1984
PETITION FOR CERTIORARI
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
NO:
RICHARD DILLON,
Petitioner
Vv
STATE OF INDIANA
PETITION FOR A WRIT OF CERTIORARI
TO THE INDIANA SUPREME COURT
STEVEN E. RIPSTRA
HOWARD B. LYTTON, JR.
LYTTON AND RIPSTRA
416 South Main Street
P. O. Box 767
Jasper, Indiana 47546
Telephone: (812) 482-6414
Attorneys for Petitioner
ov * /
.
PETITION FOR CERTIORARI
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
NO:
RICHARD DILLON,
Petitioner
V.
STATE OF INDIANA
PETITION FOR A WRIT OF CERTIORARI
TO THE INDIANA SUPREME COURT
LYTTON AND RIPSTRA
By 7m
Counsel for Pet oner
416 South Main Street
P. O. Box 767
Jasper, Indiana 47546
Telephone: (812) 482-6414
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1984
RICHARD DILLON, )
Petitioner, '
vs ) CAUSE NO:
STATE OF INDIANA, ;
Respondent )
* PETITION FOR A WRIT OF CERTIORARI TO
THE INDIANA SUPREME COURT
INDEX
Page
OPiNiONS BELOW... cece eerceserregesersersssesseesse 2 ‘
nO Ree. Se ak Ob SE wie wee Honea CCS 2 “F
Questions Presented for REVIEW... .eeeeeeeeeeceeees 2
Constitutional Provisions Involved.....---seeeeees 3
Statement of the CSC... cree eeeeeesereeeeseeseeees 3
Reasons for Granting the Writ.....seeeeeeeceeccces 5 z
DRUM EON. «boc ccs ene ccs ees cep eeee ee sceccscoccoece ll
Dian on bane 66 Gas oes Peovebeceooseceteseedeccovecrve 12-35
AUTHORITIES CITED
Cuyler v. Sullivan, 446 U.S. 335 (1980).....-+-.-. 5
Dunaway v. State, 442 U.S. 200 (1979)... eeeneces 6, 7, 8 9
Johnson v. Zerbst, 304 U.S. 458 (1938)....--eceeee 5
Kemp v. Leggett, 635 F. 2d 453 (Sth Cir. 1981).... 5
Powell v. Alabama, 287 U.S. 45 (1983)......eceeeee . -
Reina v. United States, 364 U.S. 507 (1960)....... 10
Stanley v. Zant, 697 F. 2d 955 (lith Cir. 1983)... 5
Tollett v. Henderson, 411 U.S. 258 (1973)...-++e-- 6
United States v. Mendenall, 446 U.S. 544 (1980)... 9
In re Winship, 397 U.S.358 (1970) ..--eseeeereecees 1]
PETITION FOR A WRIT OF CERTIORARI TO
THE INDIANA SUPREME COURT
The petitioner, Richard Dillon, respectfully prays that
a writ of certiorari issue to review the judgment and opinion
of the Indiana Supreme Court entered in this proceeding on
October 3, 1983, rehearing denied November 22, 1983, wherein
petitioner was sentenced to Death.
OPINIONS BELOW
A. The Opinion of the Indiana Supreme Court (Appendix A
infra. pp- 12-30 ) is reported in 454 N.E. 2d 845. The
denial of petitioner's timely Petition for Rehearing, without
opinion, is reported at (unreported) (Appendix B , infra,
pp. 31 }. The opinion of the Superior Court, Knox County, A
convicting petitioner of four counts of Murder, one count of
Burglary and one count of Conspiracy, (Appendix C infra, pp. 32-34)
@ appears at Rec. Vol. 2, p. 486.
JURISDICTION
A. The judgment of the Indiana Supreme Court was entered
on October 3, 1981 (infra, Appendix A pp. 12-30 }). :
B. The petitioner's timely Petition for rehearing was
denied by the Indiana Supreme Court on November 22, 1983 (infra,
Appendix B , pp. 31 ).
Cc. The jurisdiction of this Court is invoked under the
provisions of 28 U.S.C. 1257 and Rule 17 of the Rules of the
Supreme Court of the United States.
QUESTIONS PRESENTED FOR REVIEW
A. Whether, in a capital case where: petitioner's trial
counsel advised the court of his incompetence to continue petitioner's
defense; the trial court overruled a related continuance motion
because of incompetence; petitioner's counsel filed an affidavit
of incompetence subsequent to trial; and counsel failed to
tender any final jury instructions, petitioner received effective
assistance of counsel as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution?
B. Whether the constitutional prohibition of confessions
taken during an illegal seizure, as enunciated in Dunaway v.
State, 442 U.S. 200 (1979), and related decisions, are abrogated
by the mere assertion of the police officers that a suspect
is free to leave and the suspect's cooperation was obtained
with the intent to obtain a confession, even though all other
incidents of arrest are present? .
C. Whether the Fifth and Pourteenth Amendment guarantee E
against self-incrimination is violated by allowing a defendant's
testimony during the guilt portion of a capital case to be
used during the penalty portion of such bifurcated trial, pursuant r
to a state death penalty statute?
D. Whether the Sixth and Fourteenth Amendment guarantee
FS,
of due process of law is violated by a sentencing judgment
imposing the death penalty under a state's death penalty statute,
without a specific finding that the trial judge was persuaded
beyond a reasonable doubt that aggravating circumstances, enumerated
by statute, had been proved?
CONSTITUTIONAL PROVISIONS INVOLVED “a
é A. The Fourth Amendment to the United States Constitution
provides in pertinent part:
The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches and
seizures, shall not be violated....
B. The Fifth Amendment to the United States Constitution
provides in pertinent part:
No person...shall be compelled in any criminal case to
be a witness against himself, nor be deprived of life, liberty
or property, without due process of law....
The Sixth Amendment to the United States Constitution
provides in pertinent part:
In all criminal prosecutions, the accused shall...have
the assistance cf counsel for his defense.
D. The Fourteenth Amendment to the United States Constitution
provides in pertinent part:
[NJo state shall...deprive any person of life, liberty,
or property without due process of law....
STATEMENT OF THE CASE
This is an action wherein petitioner was convicted of
Murder, Burglary and Conspiracy in the Knox Superior Court,
Knox County, Indiana (Rec. V. 2, pp. 466, 471, 476, 482-86; ©
V. 8, p. 2072). Petitioner was sentenced to death pursuant
to the Indiana Death Penalty Statute, Indiana Code §35-50-2-9
(Burns 1978) (Rec. V.2, pp. 477, 482, 484, 486) (Appendix D
p. 35 , infra).
Petitioner was originally charged in the Pike Circuit
Court, Pike County, Indiana, with multiple counts of Murder,
Burglary and Conspiracy (Rec. V. 1, pp. 21-33; 382-87). The
cause was venued to the Knox Superior Court (Rec. V. 1, pp.
69-80). Two Death Penalty requests were filed by the State
of Indiana (Rec. V.1, pp. 88-89).
Petitioner filed a Motion to Suppress certain statements ae
he made to police prior to trial (Rec. V.l, p- 141). This 2
motion was denied (Rec. V.l, p. 223). The motion to suppress : !
was based upon the manner in which petitioner was detained
and questioned.
The police determined petitioner was not telling the truth
during the early investigation of the crime (Rec. V.3, pp.646-59;
V.4, pp. 782-83, 813-14; V.7, pp.1626-29, 1643, 1705, 1716,
1735; V.8, pp. 1858-59). Petitioner was considered a prime
#uspect (Rec. V.4, p. 787; V.7, p- 1719). Petitioner was taken
by police to the Pike County, Indiana, jail without being placed
under arrest (Rec. V. 3, pp. 643-54). Petitioner was questioned
by the police for four hours (Rec. V.3, pp. 659-63; V.4, p.
778; V.8, pp.1855-56). During questioning he gave incriminating
statements. While questioned petitioner was held in an interrogation
room isolated from his family (Rec. V.4, pp. 872-75, 889-90).
C. While questioning petitioner the police used evidence
they obtained from an alleged accomplice to verify petitioner's
story (Rec. V. 7, pp. 1637, 1640, 1715). Prior to questioning
a police officer had placed petitioner near the crime scene
at the time of the murders (Rec. V.3, p. 655; V. 7, pp. 1605-19).
The police admitted that they knew petitioner was somehow connected
with the crime and they believed prior to the March 12 questioning,
he was close to revealing this connection (Rec. V.8, pp.1858-59).
At least five police officers were at the jail to check petitioner's
statements as he made them (Rec. V.4, pp. 788-89).
Immediately prior to trial, petitioner's attorney informed
the trial court that, for various personal and professional
reasons, counsel was not competent to continue representing
petitioner (Rec. V.3, p. 638). Trial counsel moved to continue
the murder trial. because of his lack of preparation (Rec. V.1l,
p- 211). Trial counsel confirmed to that point petitioner
had been provided with incompetent counsel (Rec. V.3, p. 638). $
The trial court refused to grant a continuance (Rec. V.3, p.
641).
During the trial, petitioner's attorney failed to present
any final jury instructions to the court (Rec. V.2, p- 464).
After trial, petitioner's counsel filed an affidavit stating
he had not been competent to try petitioner's murder case because
of inadequate preparation, personal problems and incompetence 3
(Rec. V.1l, p. 6). The State agreed that trial counsel's problems
were genuine (Rec. V. 1, pp. 16-17; V.3, p. 632-37). >
Petitioner was found guilty. Under the Indiana Death
Penalty Statute, Indiana Code §35-50-2-0 (Burns 1978) the same
jury heard the sentencing portion of the trial. At the sentencing
hearing the State introduced petitioner's trial testimony into
evidence (Rec. V.2, p. 473).
The trial judge accepted the jury's recommendation to
impose the death penalty (Rec. V.2, p. 486). In its finding,
the trial court did not find that statutorily enumerated, aggravating
circumstances existed beyond a reasonable doubt (Rec. V. 2,
p- 486; Appendix A, infra, p. 29 ).
REASONS FOR GRANTING THE WRIT
A. THE PETITIONER WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL
This case presents a novel set of facts with regard to
ineffective assistance of counsel. Although this Court has
left the standard for effective counsel largely to the lower
courts, it has set general standards.
Criminal trials cannot be conducted requiring the accused
to defend without adequate legal representation. Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980). Representation which competently
and zealously presents defenses and safeguards an accused's
rights is deemed effective. Johnson v. Zerbst, 304 U.S. 458
(1938); Powell v. Alabama, 287 U.S. 45 (1932).
Two cases are closely analogous to the instant case.
In Kemp v. Leggett, 635 F. 2d 453 (Sth Cir. 1981), the court
found ineffective counsel where, inter alia, trial counsel
filed an affidavit of incompetency. Id. at 454. This was
also a murder trial.
Citing Kemp, supra, the court in Stanley v. Zant, 697
FP. 2d 955 (llth Cir. 1983), held that where preparation for
a murder trial was not adequate, effective counsel is lacking.
Id. at 966. There are striking similarities between these
latter two cases and the instant case.
Petitioner's trial counsel requested a continuance because
of a lack of preparation. Counsel] informed the trial court,
prior to trial, that he had not done certain necessary things
and was not competent to proceed with the petitioner's defense.
Counsel stated that, "I (petitioner's counsel) realize that
the defendant has not had competent counsel.” (Rec. V.3, p.
638). The petitioner's trial attorney moved for a continuance,
or in the alternative leave to withdraw.
Later, trial counsel filed an affidavit, as did the attorney
in Kemp v. Leggett, supra, admitting to his lack of preparation
and incompetence. The Indiana Supreme Court, in rejecting
“-<«
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o ies
the ineffective counsel argument, pointed to petitioner's acquiescence -
in his attorney's actions and to a weekend continuance granted i
to petitioner for further preparation. Petitioner urges here, |
as he did below, that the mere fact trial counsel would make i
a representation of incompetency to the court and file an affidavit
stating he was not competent, in a case where the ultimate
punishment may be the accused's death, requires a critical
look at the actions of counsel. A defendant's acquiescence,
or a two day continuance, in a murder trial, are not a prima
facia cure for actions such as those of petitioner's counsel.
In examining the trial record it is found that petitioner's
trial attorney failed to submit any final jury instructions
to the court and only generally objected to any of the State's
instructions. The Indiana Supreme Court found that, although
this as a practical matter waives all error, it did not indicate
a lack of effectiveness by trial counsel.
In examining reported cases individually and in a compilation,
see e.g., 3 A.L.R. 4th 601 §§20, 22 (1981), there are many
capital cases where harmles error is found in the omission
of certain instructions in a criminal trial. However, no case
was found where all instructions were omitted by a defense
counsel in a capital case. This Court, in Tollett v. Henderson,
411 U.S. 258 (1973), held that the advice of an attorney to
not submit instructions may be “outside the ‘range of competence
demanded of attorneys in criminal cases'." Id. at 268.
By finding petitioner's trial defense competent, the Indiana
Supreme Court denied petitioner the protection of the Sixth
and Fourteenth Amendments. The burden to recognize incompetent
or ineffective counsel, in the face of statements by an attorney
admitting these defects, is here placed upon a defendant.
This burden is inappropriate in any criminal case and an impossible,
unconscienable burden in a capital case.
B. THE INDIANA SUPREME COURT ABROGATED
PETITIONER'S FOURTH AND FOURTEENTH
AMENDMENT RIGHTS BY CONDONING POLICE s
QUESTIONING APTER AN ILLEGAL DETENTION
MERELY BECAUSE THE DETENTION BEGAN
_.IN A VOLUNTARY, ALBEIT PURPOSEFUL, MANNER.
Petitioner contended that the statements he gave to the
police after his illegal detention should have been suppressed
as the fruits of the illegality pursuant to Dunaway v. State,
442 U.S. 200 (1979). In rejecting this contention, the Indiana
Supreme Court reasoned that the petitioner originally accompanied
the police voluntarily and was not treated as a suspect or
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arrestee. These superficial indices supported the contention é
that petitioner's .statements were voluitary and not the product
of an illegal detention.
In Dunaway, supra, the Court considered the legality of
custodial questioning on less than probable cause for a full
fledged arrest. The police, actingon a source insufficient
in itself as a basis for probable cause, detained the defendant.
Defendant was taken to the police station, placed in an interrogation
room and waived his Miranda rights. The Court held that the
subsequent confession obtained by the police was inadmissible
as evidence because it resulted from an illegal detention.
In effect, the police detention amounted to an illegal seizure
without probable cause. The detention in Dunaway was, on its
face, voluntarily submitted to by the defendant.
The petitioner urges that by making the same finding of
voluntariness the Indiana Supreme Court ignored the purpose
and thrust of the police behavior. The behavior violated
petitioner's Fourthand Fourteenth Amendment rights.
In the instant case, police had questioned petitioner
at his work on March 10, 1981, and at home on March 1l, 1981.
A suspected accomplice was questioned by the police on March
12, 1981, along with a physical search of the suspected accomplices‘
vehicle. This latter search yielded physical evidence prior
to petitioner's detention.
Before March 12, 1981, the police determined petitioner
was not telling the truth and was involved in the crime. The
police investigatimhad focused upon petitioner. A policeman
placed petitioner near the scene of the murders. Further,
the police told the suspected accomplice that they knew of
petitioner's invoivment in the crime (Rec. V.4, pp. 830, 839).
Police had other physical evidence to link petitioner to the
crime (Rec. V.7, pp.1647-58). Prior to the March 12 detention
petitioner was a prime suspect, not a mere witness as the police
contend.
If no probable cause existed for an arrest, then the conduct
of the police amounted:to an illegal detention. If probable
cause did exist prior to the March 12 detention, then a warrant
was necessary and any statements obtained during the detention
are tainted.
The Indiana Supreme Court found the detention to be voluntary.
The police advised petitioner they only wanted to talk to him
in a @uiet place (Rec. V. 4, p. 779). Petitioner's parents
were toid he would be returned home (Rec. V. 4, p. 872). This
conduct dissarmed both petitioner and his parents. This is
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what it was intended to do. Armed with the knowledge of petitioner's _
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complicity, the police formed only one strategy: get the petitioner. ~
alone, isolated, and obtain a confession. One officer states
that, because of the information he had obtained earlier, it
was his feeling that petitioner would ultimately confess.
A reyuest, rather than a demand, to come to the police
Station does not necessarily turn an arrest into a voluntary
trip. This request by the police easily carries with it the
"implication of obligation” to the ordinary citizen Dunaway
v. State, supra, at 207, n. 6. Dunaway established guideposts
in distinguishing arrests from voluntary questioning: (1)
Why was the person not questioned briefly where he was found?;
(2) Was he taken away by the police in a police car?; (3)
Was he taken to a police station, or to jail?; (4) Was he
placed in an interrogation room?; (5) Was he informed that
he was free to leave at any time? Id.
In the instant case petitioner was taken by the police
to jail. He was placed in an interrogation room, isolated
from his family (Rec. V.4, pp. 872-90). A minimum of five
police officers were present during his questioning. Two tape
recorders were waiting to get his confession (Rec. V.3, pp.
657-65). The entire course of conduct prior to his detention,
and once inside the jail, was designed to elicit petitioner's
confession.
Petitioner was accused of lying. The police said they
had incriminating evidence in their possession (Rec. V.4, p.
857; V.8, p. 1868). Subsequent to an initial statement, the
police continued to confront petitioner wit» inconsistencies
and threats of lie detector tests. The police were in a position
to instantly check information petitioner gave them with other
policemen at the jail. Petitioner was confronted by the prosecutor
during his interrogation (Rec. V.3, p. 662, 735-36).
The police conduct surrounding petitioner's statements
clearly fails the Dunaway test. There was sufficient causal
connection between the illegal detention and the statement
to defeat any allegation that the Miranda waiver and voluntary
aspect of the questioning attenuated the unconstitutional
aspect of the search.
The confession followed the detention by approximately
four hours. There were no intervening circumstances, other
than police conduct to gain a confession and a discussion with
the prosecutor. to break the causal connection. Without question,
7
the purpose of the detention was to get a confession from petitioner: ~
an “expedition for evidence” in hope something miyht develop.
Dunaway, supra, at 218. The apparent lack of threats or abuse,
or the protection of Pifth and Sixth Amendment rights by the
police, relied upon by the Indiana Supreme Court only go to
the issue of voluntariness. These factors do not constitute
an intervening event that would take this case out of the purview
of Dunaway.
United States v. Mendenhall, 446 U.S. 544 (1980), and
its associated cases, are easily distinguishable from the instant
case. In Mendenhall the defendant was searched in a public
place, an airport, and was taken to the police station only
after illegal drugs were found. The place of detention was
found to weigh heavily on the issue of whether the defendant
voluntarily submitted herself to the search.
When the petitioner was removed to the police station
this indicia of voluntariness vanished. This course of conduct,
although not comfortably within the traditional concept of
an arrest, is a “serious intrusim upon the sanctity of the
person.” Dunaway, supra. There is nothing that stops the
police from questioning a suspect at home, work, or on the
street if the only motive is police investigation. Id. at
210, on. 12.
There is a traditional hostility to searches and seizures
based upon mere suspicion. The Indiana Supreme Court decision
abrogates petitioner's Fourth and Fourteenth Amendment rights.
Custodial interrogation, no matter what it is called, invokes
these Amendments‘ safeguards. According to the police officers’
testimony, the purpose of the unconstitutional arrest was to
get the petitioner to confess. They had linked petitioner
to the crime prior to this custodial questioning. Therefore,
the applicationof the Fourth and Fourteenth Amendment consideration
in Dunaway is necessary.
C. THE INDIANA DEATH PENALTY STATUTE
AND ITS APPLICATION IN THIS CASE,
VIOLATED PETITIONER'S FIPTH AND POURTEENTH
“AMENDMENT RIGHT AGAINST SELF-INCRIMINATION
The Indiana Death Penalty Statute, Indiana Code §35-50-2-9
(Burns 1978) (Appendix D , infra, p. 35 ) provides, in pertinent
part, that during the sentencing portion of a bifurcated murder
trial: "“The’'jury, or the court, may consider all the evidence
introduced at the trial stage of the proceedings...at the sentencing
hearing." As a matter of practical application, as was the
7 * oD
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problem in the instant case, a defendant's testimony during
the guilt portion of the trial can be introduced during the
equally as critical sentencing portion of a death penalty case.
At trial, petitioner chose to testify during the guilt .
portion of the trial. However, prior to petitioner presenting
any evidence during the sentencing portion, the State's motion
to incorporate all trial testimony in the sentencing hearing
was granted. Subsequently, the petitioner testified. Arguably,
this was in response to the Fifth Amendment waiver that had
been forced upon him by the Indiana Statute and the trial court.
The Indiana Sipreme Court disposes of this constitutional
issue in three ways. The Court found that to avoid the use
of his trial testimony at the sentencing hearing the petitioner
should have refused to testify at the guilt portion. Placing
the burden on the State to prove beyond a reasonable doubt
the existence of aggravating circumstances also, according
to the Indiana Supreme Court, safeguards petitioner's constitutional
rights. The Court further found that fundamental fairness
and due process are protected during the sentencing portion
~ of the trial because the customary evidentiary rules apply
to the sentencing proceeding.
° This interpretation violates petitioner's right to be
secure against self-incrimination. This Court clearly stated
the general principal in Reina v. United States 364 U.S.
507 (1960): The constitutional protection no longer attaches
after an accused testifies because the accused can no longer
be incriminated by the former testimony. This presents no
problem as long as the testimony relates only to the crime
in question. However, in the instant case, the petitioner
is forced to choose during the guilt portion whether he wants
to waive his self-incrimination right. In addition to this
critical decision, the petitioner must also weigh his option
to testify with the added burden of knowing that his choice
will carry a waiver of his Fifth Amendment right with respect
to the death penalty portion of the trial. This is not the
type of incrimination dealt with in Reina.
Forcing the petitioner to waive his Fifth Amendment protection
in the guilt portion violates due process and fundamental fairness.
In a death penalty case an accused, facing a possible death
sentence, should not be hamstrung in his defense by this type
of choice. Contrary to the Indiana Supreme Court's opinion,
Petitioner urges that the constitutional evidenciary protections
do not attach under the Indiana death penalty procedure. The
10
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statute violates the Pifth and Pourteenth Amendments in ‘8
its terms and application.
C. PAILURE TO FIND THAT CERTAIN AGGRAVATING
CIRCUMSTANCES OCCURRED, BEYOND A REASONABLE
DOUBT, VIOLATED PETITIONER'S FIFTH AND
POURTEENTH AMENDMENT DUE PROCESS RIGHT
To prevent the discriminatory and arbitrary imposition
of the death penalty, the Indiana Death Penalty Statute, supra,
provides that the judge shall make the final determination
of whether to impose death “based on the same standards that
the jury waSrequired to consider.” The due process clause
of the Fifth and Fourteenth Amendments prohibits deprivation
of life by the state without proof beyond a reasonable doubt
“of every fact necessary to constitute the crime.” In re Winship,
397 U.S. 358, 364 (1970).
In the trial judge's order and finding of fact sentencing
Petitioner to death, there is no direct statement that the
judge was persuaded beyond a reasonable doubt that the Petitioner
was guilty of murder and intentionally killing either victim
(infra, Appendix A, p.29). The Court's failure to find the
facts necessary to impose the death penalty, beyond a reasonable
doubt, deprived petitioner of his due process rights. A minority
on the Indiana Supreme Court recognized this. Petitioner urges
that to hold otherwise deprives petitioner of the due process
safeguards.
CONCLUSION
For the reasons set forth herein, individually or in the
alternative, it is respectfully requested that a Writ of Certiorari
issue to review and reverse the judgment of the Supreme Court
of Indiana entered herein.
Dated:
Respectfully submitted,
LYTTON AND RIPSTRA
ne EF 3
STEVEN E. RIPSTRA /
416 South Main Street
P. O. Box 767
Jasper, Indiana 47546
Telephone: (812) 482-6414
11
APPENDIX "A"
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
HOWARD 8B. LYTTON, JR. LINLEY E. PEARSON
STEVEN E. RIPSTRA Attorney General of indiana
Lytton and Ripstra PALMER K. WARD
P. 0. Bow 767 Deputy Attorney General
416 South Main Street 219 Stete House
Jasper, Indiana 47546 Indianapolis, indiana 46204
—.
IN THE . .
hey
SUPREME COURT OF INDIANA Re
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RICHARO DILLON,
Appellant (Defendant below),
Vv.
No. 282 $ 67
STATE OF INDIANA,
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Appellee (Plaintiff below).
APPEAL FROM THE KNOX SUPERIOR COURT
THE HONORABLE EDWARD C. THEOBALD, JUDGE
Ss
HUNTER, J.
The defendant, Richard Dillon, was convicted by a jury
of two counts of felony murder, ind. Code § 35-42-1-1 (2) (Burns 1979
Rep!.), one count of burglary, a Class A felony, Ind. Code § 35-43-2-1
(Burns 1979 Repl.), and one count of conspiracy to commit burglary,
a Class A felony, Ind. Code § 35-41-5-2 (Burns 1979 Repl.). The jury
also recommended that a sentence of death be imposed upon defendant,
Ind. Code $ 35-50-2-9 (Eurns 1979 Rep!.), and defendant was thereafter
sentenced to death by the trial court.
His direct appeal challenges the legality of the death
sentence and presents the following issues for our review:
12
1. Whether the defendant was dented effective “
assistance of counsel at trial;
2. Whether the trial court erred in denying defen-
dant'sS motion to suppress bis inculputury statement; and
3. Whether Indiana's death penalty statute is un-
constitutional as violative of due process.
A brief summary of the facts from the record most
favorable to the state shows that William and Mary Hilborn were lout
stabbed to death in their home in Petersburg, Indiana, on March 8, 198).
Defendant was observed walking in the vicinity of the Hilborns' property
around the time of the murders by a deputy sheriff. He was questioned
by the police at work on March 10, 1981, and at his home on March II,
1981. He denied being in Petersburg at the time of the murders and
said he had been in Princeton, Indiana, with a friend, J. R. Thompson.
A knife which was identified as the murder weapon was found in Thompson's
car. On March 12, 1981, the police asked defendant if he would go with
them to the sheriff's office to clear up some discrepancies concerning
his actions on March 8. Defendant voluntarily accompanied the officers
to the sheriff's office. He signed two waiver of rights forms and gave
two statements, the second of which was a confession.
Ss
Defendant first alleges that he was denied the effective
assistance of counsel at his trial. On July 7, 1981, approximately two
weeks prior to the trial, the court held a hearing on defendant's motion
60 suppress. At this time his retained counsel filed a motion for post-
ponement and continuance which reads in pertinent part:
"1. That counsel for the defendant may have not
had the presence of mind to effectively represent
the defendant during the course of the pre-trial
proceedings, due to personal problems, to-wit:
"a. On April 15, 1981, during the course of
pre-trial proceedings, counsel for the defense
was divorced from his wife of eleven (11) years,
which divorce was the desire of counsel's wife,
and against said counsel's wishes.
13
"db. On April 18, 1981, counsel's brother,
Ronald O. Fulcher, was seriously injured
in @ motorcycle accident, in Knox County,
and remains paralyzed in the Veterans
Hospite! in Hines, !)linois at this date.
“ec. That on Sunduy, July 5, 1981, counsel's
Father, Randall R. Fulcher, was rushed to the
Veterans Hospital in Indianapolis, tndiane
and on Monday July 6, 1981 underwent eleven
hours of emergency heart surgery and at this
date remains in an wnconcious [sic] State, in
Serious condition.
"2. That the State continues daily to provide the
defendant with new items of discovery, despite state-
ments prior thereto that discovery is; complete, and
such new discovery has led the defendant to new
avenues of defense which defendant should pursue, to
provide an adequate defense.
"3. That the course of the investigation by defense
has turned up possible new evidence, which could not
have been discovered in the short period of time
allowed for pre-trial 2roceedings.
“WHEREFORE, defendant respectfully submits to this
Court that to proceed with the trial as scheduled, after
such a short period of time for Preparation of its
defense would effectively deprive defendant of its right
to a fair trial, and that to proceed with hearings and
trial as scheduled while defendant's counsel! is having
personal problems, and immediately after defense
counsel’s other personal problems would effectively deny
the defendant of the right to competent counsel."
The hearing was continued on July 8, 1981, and the trial
court specifically asked defendant if he was aware of his attorney's per-
sonal problems and if he wanted his attorney to withdraw. Defendant
answered that he was aware of the circumstances but thet he did not wish
the attorney to withdraw. The court reminded the attorney that it was the
court's duty to determine whether or not an attorney was competent to
represent a defendant. Here the attorney had been hired four months prior
to the trial. The court also said he had considered al! the hours of
preparation which had already been Spent by both parties on this case, the
fact that witnesses had been subpoenaed, jury panel members had been
notified, and the court's calendar for the next six months was extremely
congested so any delay at that time would mean a long postponement for the
trial. After hearing further arguments by both sides, the court denied
both the motion to suppress and the motion for a continuance. However,
the record shows that after the jury had been Selected the court did grant
14
4 continuance so that counse! would have an extra weekend Co prepare
for the trial. The trial proceeded on Monday, July 20, 1981, without BS.
further objection by defendant or his counsel.
At the hearing on the wotion to correct errors the
trial counsel filed an affidavit stating that due to his personal problems
he hud not had time to sdequately prepare for defendant's trial, that he
felt he had not been competent to represent the defendant properly, and
that he felt « new trial should be yranted. The stute Filed counter
affidavits which summarized many of the suctions the attorney had taken In
preparing for this trial, his conduct during the triel itself, and the
times when the various personal problems arose in relation to the time
of the trial. The court denied the motion to correct errors with the
taullowing findings:
"The court finds. that:
"l. There was sufficient evidence before the jury
from which they could find the defendant guilty beyond
@ reasonable doubt."
"2. At the pre-trial hearing on defendant's motion to
Suppress, the court found that the statements of the
defendant were admissible at trial. No new evidence was
presented at trial which would have required a reversal
of that ruling.
"3. The Indiana Supreme Court has upheld the constitution-
ality of the death penalty statute.
"4. On the first day of trial, prior to voir dire of the
jury, defendant's attorney requested a continuance which
was denied. He then offered to withdraw as counsel for
defendant and defendant was given the opportunity to
accept the withdrawal and have other counsel appointed.
The defendant elected to continue with his hired counsel.
Thereafter, defendant's attorney performed adequately during
trial.
"5S. After the evidentiary part of the trial had begun, _
the defendant, outside the presence of the jury, attempted
to enter a plea of guilty which was rejected because the
court, based upon defendant's rendition of the facts,
could not find a factual basis for the plea. The court
immediately thereafter sequestered the jury.
"Upon these findings the court denies defendant's motion
to correct errors."
Defendant's argument of incompetency of counse) is based
primarily upon the allegedly inadequate time his counsel had for preparation
and the fact that counsel! failed to tender any final instructions. Our
law regarding the issue of competency of counsel is well settled. Counsel
15
i$ presumed to have prepared snd vaccuted his client's defense
effectively, and strong and convince iny evidence is required to rebut
the presumption. Limiley v. Stute, (loal) Ind. » 426 W.E. 2g
398; Kinard v. State, (1979) 271 tnd. S84, 394 Nee. 2d 160. Incompetency
ef counse! revulves ground the particular tects of each case and the
Feviewing Court will consider the tutulity of the circumstances Sur round-
ing counsel's pretrial! PreParatiun vid the sctuyl conduct of the trig!.
The standard of review is the mockery of justice test as modified by the
adequate legal representation Standard. Hollon v. State, (1980) ind,
— 398 .N.E. 24 1273; Crisp v. State, (1979) 271 Ind. 534, 394 W.€. 2¢
115; Cottingham vy. State, (1978) 269 Inu. 261, 379 N.E. 24 984.
A careful examination of the record in this case reveals
the following facts: counsel entered his appearance for defendant approxi-
mately four months before the trial; his wife had Filed for divorce one
month prior to his entering his appearance in this céuse; his divorce was
. final eighty-nine days before the trial; his brother's accident occurred
eighty-five dsys before trial; and his futher had been i}} for some time
Prior to trial but did not die until forty-seven days after the trial! began.
Thus, while we sppreciate the fact thet counsel was experiencing unusual
Pressure during that pretrial] Period, his personal problems and trial
Preparation time were spread out over a period of months, and he had a
reasonable amount of time to prepare for this trial.
Defendant also argues that his counsel's failure to tender
any final instructions was an indication of his incompetence. We disagree.
The record shows that defendant's tria] counsel prepared and tendered to
the court eleven proposed preliminary instructions, but these were either
withdrawn or refused as covered by the court's own instructions. The
trial court gave many of its own instructions, both Preliminary and Final,
which were sufficient to cover the necessary points of law. Defendant
ieee Mot point out now any way in which the trig! court's instructions
were improper or inadequate. Tria] counsel's failure to tender instructions
On issues which are adequately covered by the court's own instructions
does not show incompetence. Leaver y. State, (198}) i Sead, —» “lh N.E.
2d 959.
16
aee<iediee
The record further shows many specific actions the "
attorney took on defendant's behalf boca prior to and during the trial.
Prior to trial, the attorney souyht and was granted a change of venue
trom Pike County. He interviewed witnesses prior to trial, requested and
was granted full discovery, viewed all of the state's physical evidence,
read and copied the grand jury testimony, filed several pretrial motions,
attended and offered evidence at pretrial hearings, attended omnibus .
hearings, subpoenaed and presented witnesses on defendant's behalf, con-
sulted with the state's attorney several times prior to trial, viewed the
list of prospective jurors, and consulted with the attorney representing
defendant's accomplice. He visited defendant at least ten to fifteen
times while he was in the Pike County juil and on four or five occesions
in the jury room of the Pike Circuit Court, averaging forty to sixty
minutes on each occasion. DOuring the trial, counsel extensively cross-
examined the state's witnesses, called witnesses on behalf of defendant,
called defendant as a witness in his own behalf, and made timely objections
and a lengthy closing argument to the jury.
In this case, there was evidence to show that defendant's
trial counse! had rendered adequate assistance in both the pretrial phase
and the trial itself and that he had presented a partial alibi defense
for defendant in the face of substantial evidence to the contrary. He
was well prepared for the trial and had an informed basis for making his
trial strategy decisions. Furthermore, defendant has not presented any
specific facts which demonstrate ineffective representétion. The trial as
a whole was not a mockery of justice. in fact, the record shows that
defendant had vigorous representation in the face of overwhelming evidence,
including his own confession, against him. The record does not show that
defendant was denied effective assistance of counsel.
it.
Defendant neat alleges that the trial court erred in ad-
mitting into evidence his inculpatory statements because they were the
product of an unlawful detention. The facts surrounding the giving of
these statements were brought out at the hearing on defendant's motion
17
-
be
to suppress. Ouring the investigation of the instant crime, defendant
had been questioned briefly two ditferent times by police officers,
once at his home and once at work. the pelice thought he might be a
witness to the crime as he had been soen near the scene of the crime.
The police questioned defendant's Iriend, J. R. Thompson, and found
evidence in Thompson's car that indicated defendant might have been
lying to them when he originally answered their questions.
At this point, on Murch 12, 1981, four days after the
murders, two police officers went to defendant's home and saw his brother
Out in the yard. The brother called for defendant to come over to the
car and the officers identified themselves and said they would like to
talk to him. They asked defendant if he would come to the police ‘station
in order to talk about some Of the things he had previously told tiem
concerning events on the day of the murders. Defendant said, "Sure."
Then defendant and one of the officers went into the house and told
defendant's mother where they were going. Defendant got a jacket from his
room. He rode to the station in the back seat of the police car. He was
not handcuffed and was not under arrest or treated as a suspect. Both
officers rode in the Front of the car. The officers specifically testified
that they told defendant he didn't have to come with them if he didn't
want to, but he voluntarily agreed to go with them.
At the police station, defendant was taken to the sheriff's
office which was furnished with a wooden desk, comfortable cheirs, a book-
Case and carpeting. He was given a waiver of rights form which he read and
signed. He then gave a taped statement about his activities on March 8
in which he indicated that he had been with J. R. Thompson but hac not been
in the vicinity of the crimes. The two police officers left the room
and discussed what defendant had told them. They concluded that his state-
ments were not truthful, in light of other information they had which
showed that he had been seen by a deputy sheriff in the vicinity of the
victims’ home near the time the murders occurred. The officers returned
to the room and told defendant they felt his statements were mot truthful.
Defendant was advised that they were discussing the crime of murder and
18
_-_- =
the possible penulties, but that the tinal decision on the cherges
to be filed was up to the Prosecutor. Defendant never asked to have EMS -
aun allorney present but he wanted the Prosecutor to be contacted so he
would know whet Charges tne would be bac tee: One of the officers leftc
the roum ty cull the prosecutor, whe agreed Co come to the sheriff's
office. Then, defendant looked et the officer who was in the room with
him and said, "Well, we did it,"' and started crying. The other officer
returned to the room and defendant was again Seana of his rights and
Signed a second waiver of rights form. He gave a second statement ad-
mitting his part in the murders.
After the second Statement was given, the Prosecutor and
his deputy arrived and advised defendant of the possible criminal] charges
he faced. The entire Period of questioning took approximately two and
one-half hours. Defendant was free to leave at any time during this
period and the doors to the office were not locked. He did not ask for
any food and was given a soft drink. He was never threatened or physically
abused and no promises of leniency were made. Defendant was not arrested
until after he gave his taped confession and the Following day he appeared
before a magistrate al} @s provided by statute.
Defendant contends thut he could not have voluntarily
waived his rights as he had been smoking marijuana and took two Quaaludes
on the day he was questioned. Defendant's mother testified that she and
her husband went to the police Station and asked to see defendant, but
the officers wouldn't let them see him ot den said they would tell them
what happened. in rebuttal, Officer Nelson testified that in his opinion
defendant was not under the influence of drugs at the time the statements
were given. Officer Sibbitt testified that he did not recal| defendant's
parents asking to see their son but only that they inquired where he was
and what was going on and then left the sheriff's office.
As @ court of review, we review the Question of the ad-
missibility of a confession 48 we do other sufficiency matters. We do not
weigh the evidence, but rather determine whether there was substantial evi-
dence of probative value to support the trial court's finding. This is
tree even though conflicting evidence i. presented on the issue of vol
19
Lony v. State, (1981) a 2 ies 422 MLE. 2d 284; Bactle v. State,
(1981) ss tind. og SIS N.E. 2d 39; Arch v. State, (1978) 269 Ind.
450, 381 NE. 20 40S.
bt ts Cleat thot if o confession is the product of un
unlawful detention or un illegal arrest it is inadmissible. Dunaway v-
New York, (1979) 442 U.S. 200, 99 S. Cr. 2248, 60 L. Ed. 2d 824; Brown
v. titinois, (1975) 422 U.S. 590, 95 S. Ce. 2254, 45 L. Ed. 20d 416.
Triplett v. State, (1982) __ Ind. __, 437 N.€. 24 468; Morris v. State,
(1980) __siind. ___, 399 N.E. 2d 740. However, it is also clear that not
every police-citizen encounter amounts to a "seizure" of the person so
that an arrest or unlawful detention has occurred. The test for deter-
mining whether a person has been "'seized'' for Fourth Amendment purposes
is whether, considering all the circumstances surrounding the police-
citizen encounter, the defendant entertained a reasonable belief that he
was not free to leave. Ounaway v. State, (1982) Ind. » 440 N.E.
2d 682; United States v. Mendenhal!, (1980) 446 U.S. 544, 100 S. Cr. 1870,
64 L. Ed. 2d 497 (plurality opinion); Barber v. State, (1981) __ Ind. App.
__, 4IB N.E. 24 563.
In this case, the facts are sufficient to show thet defen-
dant voluntarily accompanied the officers to the police station and gave
two voluntary statements. The officers specifically told defendant he
did not have to come with them if he didn't want to. He was not handcuffed
or Otherwise treated as a suspect or an arrestee and rode by himself in
the back seat of the police car to the police station. He talked to the
officers in the sheriff's private office with both doors unlocked and was
not physically restrained, abused, or threatened. He was not unreasonadly
interrcgated or deprived of food, water, or rest. Defendant admitted
that he had not been threatened or coerced by the police and that he had
signed the waiver of rights forms and given the statements. There was
nu promise af ‘eniency. This was sufficient evidence to support the trial
court's finding that defendant's confession was not the product of an
illeygul detention end was voluntarily given.
20
‘ ian
EE
“oie
> ae ’
See: Rerere
Migs
f= tn?
Defendant finally argues that Indiane's death penalty — aE
ta
Statute violates due process und is unconstitutional in several respects. © ~
He First erques that our statute vests the trial judge with unlimited .
discretion in imposing the death penulty siter a jury triel as the
judye is mot bound by the jury's recommendation or any other objective
standards. There is no merit to this contention since the statute
specifically states: ‘'The court shal! make the final determination of
the sentence, after considering the jury's recommendation, and che sentence
shall be based on the same standards that the jury was required to consider.”
Ind. Code 8 35-50-2-9 (e)(2) (emphasis added). He also argues that due
process is violated because the trial judge can consider al! evidence
introduced during the trial at the sentencing hearing. He alleges that
this allows the judge to consider inadmissible evidence presented to the
court for rulings during the course of the trial as part of the basis for
imposing the death penalty. Contrary to defendant's allegations, the
statute does limit the type of evidence which may be considered during the
sentencing hearing in the following manner: ‘The jury, or the court,
may consider all the evidence introduced at the trial stage of the pro-
ceedings, together with new evidence presented at the sentencing hearing."
ind. Code § 35-50-2-9 (d) (emphasis added). Evidence which is introduced
at trial is not inadmissible evidence. Furthermore, the court's reasons
for imposing the death penalty must be stated in writing and are reviewed
by this court to safeguard against the influence of improper or prejudicial
factors at the trial level and to determine that there were no elements
of arbitrariness or capriciousness in the sentencing decision.
Defendant further argues that his right against self-
incrimination is violated since any testimony he gives during the trial
on the derlying felony is also considered during the sentencing hearing.
However, our statute clearly does not prevent an accused from exercising
his right not to testify during the trial on the underlying felony. When
testimony which defendant gave at trial is used again at the sentencing
hearing, there is no violation of any constitutional right since the issue
of guilt or inmecesce has already been determined. Furthermore, the state
21
bears the burden of proving the eaistence of ut least ome of the
aggravating circumstances beyond a reasonable doubt before the death a
“ae Be ns
penalty can be imposed. Ind. Code § 35-50-2-9 (e). oe j
netieeiiiad also contends that the death penalty con- ee.
stitutes vindictive justice and therefore violates Article 1, Section 18
2 of the Constitution of the Stete of Indiana. He further contends that
the provision for the seme trier of fact to determine both the merits
== of the underlying feluny and the applicability of the death penalty
violates his right to due process. We have dealt with both these arguments
in previous cases. We have consistently held that the death penalty
e- does not offend Article 1, Section 18 of our state constitution and that
: our death penalty sta:ute is not unconstitutional per se, as being in
> derogatior of the Eighth Amendment to the United States Constitution. We
have fourid that Article |, Section 18 of the Indiana Constitution Is an
4 z
admonition to the legislative branch of the state government and is addressed —
to the public policy which the legislature must follow in formulating the Mets
penal code. it applies to the penal laws as a system to insure that these te
laws are framed upon the theory of reformation as well as the protection
ww
of society. Schiro v State, (1983) Ind. __, 451.N.E. 241047; Williams. ba
—_—_—————
“«
v. State, (1982) __ ind. ___, 430 N.E. 2d 759, appeal dismissed, (1982)
U.S. __, 103 S. Cr. 33, 74 L. Ed. 24 47; Brewer v. State, (1981)
Ind. __, 417 N.E. 2d 889, cert. denied, (1982) _ U.S. __, 102 S. Ce, >
3510, 73 L. Ed. 2d 1384; Judy v. State, (1981) ___ Ind.
, SIG N.E. 24 955
French v. State, (1977) 266 Ind. 276, 362 N.E. 2d 834.
The procedural scheme set out in our statute limits the
imposition of death sentences so as to insure that they will not be in-
flicted arbitrarily o- capriciously in accord with the decisions and
es ‘opinions of the United States Supreme Court. Gregg v. Georgia, (1976) 428
F u.s. 153, 96S. Cr. 2909, 49. L. Ed. 2d 859; Proffitt v. Florida, (1976)
>. W28 U.S. 242, 96S. Ct. 2960, 49 L. Ed. 24 913; Jurek v. Texas, (1976)
2am 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929. Although our statute aks
arg provides that the same jury that made the guilt determination hears me \
ea | Sentencing portion of the trial, the adherence to the standard of proof :
ar
.
beyond a reasonable doubt and the customary evidentiary rules insure that
£3
3S i 2
43 22 : Pe Eee aes
ea ae
Bate: > 1
~ Vi aoe quant. = ¥ «Jae o*s
be imposed if the circumstances of the offense and the character of
the offender both warrant; our death sentencing procedures are con-
sistent with and in full compliance with the requirements set forth _
by the Supreme Court in Proffice vy. Florida, supra, and Greqg_v. Georgia,
supra.
~S
We now turn to a review of the imposition of the death |
penalty in the instant case. A careful review of the record reveals
that all of the statutory procedures were followed In the trial of this
defendant. Ouring the guilt determination phase of the Proceedings, the
jury found beyond a reasonable doubt that defendant conspired with another ;
individual to commit burglary in the home of William and Mary Hilborn
because they heard the Hilborns kept a large amount of money in their
home. They contig out this plan by breaking and entering the residence — os
with the intent to commit theft and were Inside the house when the vietioe
feturned home. The testimony showed that achindiode had an opportunity to — che
leave the house before committing the murders, but decided it would be
necessary to kill both the Hilborns so there wouldn't be any witnesses.
Defendant was the person who actually stabbed the victims. The viettos!
were an elderly couple and both were stabbed numerous times. Mrs. Hi lborn ae
was also slashed in several places on her neck and hand apparently in an be
effort to get her to tell where the money was hidden. She had a severe
Stab wound In her stomach and a fatal stab wound In her back which 4
according to the doctor's testimony was received after she had already
fallen to the floor. There was evidence that Wr, HI }born had Struggied
with his assaliant and tried to defend himself with a biny club. He
also had a severe Stab wound to the stomach and apparently racetved 3
fatal wound to his heart when he attempted to go to the aid of his wife. Sat
No money was found in the house even though the victims had cashed their
, Monthly retirement check a few days earlier. The evidence clearly sustalng. ;
the jury's finding that defendant intentional ly killed both victims white ;
committing the burglary. Sat ai es
tea NE A F ; Sy aS git 5 ™
- 23 . = ae. re “ ; ease Bae. Seo Wee
A separate sentencing hearing was held following the
guilt determination at which time defendant presented evidence in his
own behalf. Proper and complete instructions were given at both phases"
of the trial. 6y a written, unanimous verdict, the jury returned a
recommendation that defendant be sentenced to death. The trial judge
then considered all the evidence in the case, the jury's recommendarion,
and the aggravating and mitigating circumstances before imposing the death
penalty. He entered his written statement of findings and reasons for the
imposition of the death penalty in accordance with the requirements of
Ind. Code § 35-50-2-9, This written statement shows that the Judge con-
sidered the specific facts of the instant crimes and the character of
defendant. After a brief summary of the evidence in his written findings
«
the judge stated:
“Accordingly, the ju-y was justified In finding
beyond a reasonable Joubt the existence of the
aggravating circumstances of an intentional killing
of the victims while committing a burglary and that
the defendant committed another murder.
"In reviewing the seven possible mitigating circum
Stances considered by the jury, the court finds:
"I. The defendant had no significant history of prior
criminal conduct. This is a mitigating circumstance
which must be weighed against the aggravating circusr
stances. ‘.
"2. There was no evidence that the dafendant was
under extreme mental or emotional disturbance when he
committed the murders. The defendant's confession re-
vealed that he was somewhat fearful of being apprehended
for the burglary, however, that same confession else.”
revealed that the defendant and his accomplice had ©
nearly left the residence by way of the kitchen ond
then returned to the Tiving room ong agren
killings took place.
¥ -
Si Fw aon ke 3s
ves —
"3. The evidence shows that “the sieves were ccoolaseli
unaware that the defendant and his accomptice were in- -
side the residence when they poh. at.thelr home,
-="Thus, the victims were not participants in nor ‘did they
consent to the defendant's conduct. &
“4, Juvenile proceedings have been instituted against
the defendant's accomplice for his participation in
these crimes. in his confession the defendant stated
that he, the defendant, stabbed both of the victims.
Thus, the defendant's poctichaes ton in the murders was
not minor. ~~
"5. There was no evidence that. the defendant was under
substantial domination of ‘another. esate
¥.
24 ates
= ae os . >
“3 . is 3h, 2 : “5
- rs ri = - a
3 -— : a >¢ gen =
SS eae .~ 2 ~ J shae - Fie
"6. The defendant did not file @ plea of insanity
nor did he file « plea alleging lack of comprehension. -
In his confession the defendant stated that he had ior
consumed a sma!! quantity of controlled substances >
on the day of the murders and that he was high. The 4
testimony of witnesses detailing the defendant's actions
shortly after the killings show that his thinking was
Clear and wa well aware of what had occurred. The
evidence fails to substantiate that the defendant's
capacity to appreciate the criminality of his conduct or
to conform his conduct to the requirement of the law
was substantially impaired as @ result of mental disease
or defect or of intoxication.
"7. As to any other circumstances appropriate for con-
sideration, the only other circumstance which might be
considered is the defendant's age of 18 years. This is
not necessarily to be considered as a mitigating clrcum-
Stance, particularly in view of the obvious torture in-
Flicted upon at least one of the victims prior to the
final fatal blow. The capabllity of such cruelty In the
mind of one that age cannot be considered a mitigating
circumstance.
“In Conclusion the court finds beyond a reasonable doubt
that the aggravating circumstances of the intentional
killing of the victims while committing a burglary and the
defendant having committed two murders Outweigh the mitigating
circumstance of no significant history of prior criminal
conduct. Accordingly, the court finds the jury recommendation
to be proper and tawful and that the court has a duty to
follow such recommendation."
We have reviewed the written findings and reasons along with
the evidence in the case and find that the record clearly Supports the con-
clusion that the imposition of the death sentence was determined by the
nature of the offense and the character of the offender. Two of the Statutory
eggravating circumstances were proved beyond a reasonable doubt and both the
jury and the judge found that these aggravating circumstances Outweighed the
mitigating circumstance of no prior criminal history. We find that the
trial court in all respects Properly followed the required Procedures in
imposing the sentence of death. The evidence in the. record Supports our
conclusion that the sentence of death was not arbitrarily or capriciously
arrived at and is not manifestly unreasonable.
The judgment of the trial court is affirmed in all things;
the cause is remanded to the trial court for the purpose of fixing a date
for the death sentence to be carried out.
GIVAN, C.J., AND PIVARNIK, J., CONCUR,.
DeBRULER, J., CONCURS AND DISSENTS WITH OPINION IN WHICH PRENTICE, J., CONCURS.
“~
25
ES
No. 282 S$ 67
IN THE
SUPREME COURT OF INDIANS
RICHARD DILLON,
Appellant (Defendant below),
Vv.
STATE OF INDIANA,
Appellee (Plaintiff belo.).
APPEAL FROM THE KNOX SUFERIOR COURT
THE HONORABLE EDWARD C. TrEOSSLD, JUDGE
DONALD H. HUNTER, JUSTICE
Judament affirmed; cause Clerk
remanded with instructions. Reporter
West
GIVAN, C.J., AND PIVARNIK, J., CONCUR.
DeBRULER, J., CONCURS AND DISSENTS WITH OPINION IN WHIT”
PRENTICE, J., CONCURS.
RICHARD DILLON,
Vv.
STATE OF
DeBRULER,
Operations required to be performed by the jury
Tes "if
SUPREME COURT OF INODLANA
+ .
P “cA
Appellant, ) 4+ Vad?
) ze ;
) NO. 282 S$ 67 yer
) Ng.
INDIANA, ) ~;.
) ~ ates! !
Appellee. )
APPEAL FROM KNOX SUPERIOR COURT
Honorable Fdward C. Theobald, Judge
J. - Concurring and Dissenting
and judge
after the conclusion of a death sentencing hearing are set forth
in Ind. Code §
35-50-2-9(e) which vrovides:
"(e) If the hearing is by jury, the jury
shall recommend to the court whether the death
penalty should be imposed,
The jury may re-
commend the death penalty only if it finds:
(1) That the state has proved beyond a é
reasonable doubt that at least one of the ag-
gravating circumstances exists; and
(2) That any mitigating circumstances
that exist are outweighed by the aggravating
circumstance or circumstances,
The court shall
make the final determination of the sentence,
after considering the jury's recommendation, and
the sentence shall be based on the same standards
that the jury was required to consider,
The court
is not hound by the jury's recommendation."
According to this statute the "final determination of the sentence"
is to be made by the judge by applying the same standards used by
the jury in reaching its recommendation,
The first standard to be
applied by the judge is the trier-of-fact standard of proof beyond
a reasonable doubt.
One of the major goals of this sentencing pro-
cess is to prevent the discriminatory and arbitrary imposition of
the death penalty. ‘Brewer v. State, (1982)
689.
through the reauirement that the judge,
suaded to a
gravating
essential
ana not a
Ind.
This goal, under this statute,
oy” ee ae ye
is in major part to be ussured
as trier of fact, be per-
moral certainty beyond a reasonable doubt that an ay-
circumstance has been proven, In order to accomplish this
operation, the judge must Le inc trier-of-fuct mindset
rcview or appellate mindsct.
Schiro v, State, (19634)
eg 451 N.E.2d 1047, separate concurring and dissenting opinions
»
ty
:
a
x
“"
He
Ve ies eee ge weg eth BSH A Og tee Ub wingwcbiate: ChholLeoomeng Sg a p
. <5 2
this requirement, the death judgment will be based upon an advisory 2. 5um
jury verdict which is reveiwed for sufficiency of the evidence by
the sentencing judge. That is no judgment at all. That would be
totally at odds with the purpose of the layered statutory scheme to -
prevent the arbitrary and discriminatory imposition of the death Oe
penalty. =
The finding and judament of the sentencing court below is as
follows:
“The Court now enters finding and reasons
for the imposition of the death penalty as re-
commended by the jury in this case as follows:
The defendant, Richard Dillon, was found
guilty of the killings of William Hilhorn and
Mary Hilborn during the commission of a hurgiary
in the guilt determination stage of the trial.
At the sentencing hearing, the burden was
upon the State of Indiana to prove beyond a rea-
sonable Gouht that the murders were intentional .
and committed during the perpetration of a burg-
lary as set forth in Counts VII and VIII of the
charging information. The State moved to incor-
vorate by reference the testimony presented in
the first stage of the trial, which motion was
yranted, The testimony showed that the defen-
dant and another broke and entered the Hilborn
residence with the intent to commit the felony
of theft. While the defendant and his cohort
were inside the residence in the process of com-
mitting the burglary, William and Mary Hilborn
returned to their home. The defendant and his
accomplice, while in hiding inside the house,
determined that it would be necessary to kill
both William and Mary Hilborn in order to escape
criminal prosecution and then carried out that
plan.. Accordingly, the jury was justified in
finding beyond a reasonable doubt the existence
of the aggravating circumstances of an intentional
killing of the victims while committing a burglary
and that the defendant committed another murder.
In reviewing the seven possible mitigating
circumstances considered by the jury, the Court
finds:
1, The defendant had no significant history
of prior criminal conduct. This is a mitigating
circumstances which must be weighed against the
aggravating circumstances.
2. -There was no evidence that the defendant
was under extreme mental or emotional disturbance
when he committed the murders. The defendant's con-
fession revealed that he was somewhat fearful of
being apprehended for the burglary ‘however, that
same confession also revealed that the defendant
and his accomplice had nearly left the residence
by way of the kitchen and then returned to the liv-
ing room and bedroom where the killings took vluce,
3. The evidence shows that the victims were
completely unaware that the defendant and his ac-
complice were inside the residence when they arrived
at their home. Thus, the victims were not partici-
. Agi Fim orn cet ae
—- ~ - P a ge i ee . = ee
parts in nor did tney Consent to the detendant's
conduct,
4. Juvenile proceedings have been instituted
against the cefendant's accomplice for his partici-
pation in these crimes. In his confession the de-
fendant stated that he, the defendant, stabbed
both of the victims. Thus, the defendant's parti-
cipation in the murders was not minor.
5. There was no cvidencs:: that the defendant
was under substantial domination of another per=-
son.
6. The defendant did not file a plea of in-
sanity nor did he file a plea alleging lack of
comprchension. In his confession the defendant
stated that he had consumed a small guantity of
controlled substances on the day of the murders -
and that he was high. The testimony of witnesses
detailing the defendant's actions shortly after
the killings show that his thinking was clear
and was well aware of what had occurred. The evi- .
dence fails to substantiate that the defendant's : ae
capacity to appreciate the criminality of his con- “os
duct or to conform his conduct to the requirement
of the law was substantially impaired as a result
of mental disease or defect or of intoxication,
7. As to any other circumstances appropriate
for consideration the only other circumstance
which might be considered is the defendant's age
of 18 years. This is not necessarily to be con-
sidered as a mitigating circumstance, particularly
in view of the obvious torture inflicted upon at
least one of the victims prior to the final fatal
blow. The capability of such cruelty in the mind
of one that age cannot be considered a mitigating
circumstance,
In conclusion the court finds beyond a reason-
able doubt that the aggravating circumstances of
the intentional killing of the victims while com-
mitting a burglary and the defendant having committed
two murders outweigh the mitigating circumstances of
no significant history of prior criminal conduct. Ac-
cordingly, the court finds the jury recommendation to
be proper and lawful and that the Court has a duty
to follow such recommendation,
DATED: August 21, 1981,
Edward C, Theobald, Judge
Superior Court of Knox County”
There is no direct statement here that the sentencing judge was per-
suaded beyond a:-reasonable doubt that the defendant is guilty of
felony murder and at the time of such offense intentionally killed
one of the victims, the elements of the aggravating circumstance re-
lied upon by the State, Ind. Code § 35-50-2-9(b)(1). Instead,
this record shows a review of the cvidence supporting the cxistence
of the aygravating circumstance. There is no dealing with that evi-
dence «us a trier of fact. It may be that this has occurred again
because of the lack of precision in the languaye of the statute. wee >
Cf. Schiro v. State, supra. It may be because the trial and ~ - eg
sentencing process in a capital ca: has become too complicated SRELE
and demanding. Whatever the difficulty, this Court should stand &
firm and require a Clear demonstration that the essential opera-
tions of the death sentencing process have taken place, I find
no such demonstration here, und therefore must vote to set aside
the penalty of death. I do not, however, find legal or constitu- a
tional dqrowmnds tor reversal and therefore vote to affirm the con-
viction.
Prentice, J., concurs.
30
APPENDIX “B"
CLERK OF THE SUPREME CouURT
AND COURT OF APPEALS
MARIJORIE H. O'LAUGHUN, CLERK
217 STATE HOUSE
pee
s$$2393 aid ¢26<Sv07
No..
Weehie seh SLe aes J
wt. eee 5 a.i nae
You ore hereby notified that the Su,-reme Coure
hes on this doy eppellant's Petitac.. ror Runvaring is hereby DENIED,
woe bdasuct be vatsaulls Ulva, Ge J. Ocuruler aud Prencice, JJ., vote to graut
yeeeddied. + Pecataon [Of ancheuring wavang Gea DENIED, the Motion tor e
wie fe a WU Saye 28 ROW wOL at .~ Chetefore DENIED. Givan, Cc. uJ.
Please acknowledge receipt of this notice in order
thot our records may show that you hove been
,
notified of this action. ‘% 74
-
ee
had dey of — aap o9
31 "
APPENDIX "Cc"
STATE OF INDIANA
vs. : CAUSE NO. SCR81-17
RICHARD DILLON
ENTRY
The court now enters findings and reasons for the |
imposition of the death penalty as recommended by the jury
in this case as follows: |
The defendant, Richard Dillon, was found guilty of the
killings of William Hilborn and Mary Hilborn during the commission
of a burglary in the guilt sotimbnektem stage of the trial.
At the sentencing hearing, the burden was upon the State os
of Indiana to prove beyond a reasonable doubt that the murders ae
were intentional and committed during the perpetration of a oe
burglary as set forth in Counts VII and VIII of the charging
information. The State moved to incorporate by reference the a
testimony presented in the first stage of the trial, which motion |
was granted. The testimony showed that the defendant and another
broke and entered the Hilborn residence with the intent to comit
the felony of theft. While the defendant and his cohort were
inside the residence in the process of committing the burglary, .
William and Mary Hilborn returned to their home. . The defendant
and his accomplice, while in hiding inside the house, determined
that it would be necessary to kill both William and Mary Hilborn
in order to escape criminal prosecution and then carried out that -
plan. Accordingly, the jury was justified 4n finding beyond a
reasonable doubt the existence of. the aggravating circumstances
of an intentional killing of the victins while committing a
burglary and that the defendant committed another murder; ie
In reviewing the seven possible mitigating circumstances is
considered by the jury, the court finds: ,
1. The defendant had no significant history of prior
criminal conduct. This is a mitigating circumstance which must
be weighed against the aggravating circumstances.
2. There was no evidence t
extreme mental or emotional disturbance when he committed the
murders. The defendant's confession revealed that he was
somewhat fearful of being apprehended for the burglary. however,
that same confession also revealed that the defendant and his
accomplice had nearly left the residence by way of the kitchen
and then returned to the living room and bedroom where the killings
took place.
3. The evidence shows that the victims were completely
unaware that the defendant and his accomplice were inside the
residence when they arrived at their home. Thus, the victims
were not participants in nor aid they consent to the defendant's
conduct. .
4. Juvenile proceedings have been instituted against the
defendant's accomplice for his participation in these crimes. In
his confession the defendant stated that he, the defendant, stabbed
both of the victims. Thus, the defendant's participation in the
murders was not minor.
5, There was no evidence that the defendant was under
substantial domination of another person.
6. The defendant did not file a plea of insanity nor did
he file a plea alleging lack of comprehension. In his confession
the defendant stated that he had consumed @ small quantity of
controlled substances on the day of the murders and that he was
high. The testimony of witnesses detailing the defendant's
actions shortly after the killings show that his thinking was
clear and was well aware of what had occurred. The evidence fails
to substantiate that the defendant's capacity to appreciate the
criminality of his conduct or to conform his conduct to the require- |
ment of the law was substantially impaired as & result of mental
disease or defect or of intoxication. 7
7. As to any other circumstances appropriate for consideratior
the only other circumstance which might be considered is the defendan
age of 18 years. This is not necessarily to be considered as &
mitigating circumstance, particularly in view of the obvious torture
330 s
Se ee ee
@eee0°t
inflicted upon at least one of the victims prior to the final
fatal blow. The capability of such cruelty in the mind of one 6
that age cannot be considered a mitigating circumstance. |
In conclusion the court finds beyond a reasonable doubt |
that the aggravating circumstances of the intentional killing of
the victims while committing a burglary and the defendant having
committed two murders outweigh. the mitigating circumstance of no
significant history of prior criminal conduct. Accordingly, the
court finds the jury recommendation to be proper and lawful and
that the court has a duty to follow such recommendation.
Edward C. Theoba Lowa “dge
Superior Court of Knox
DATED: August 21, 1981
ete @
,
APPENDIX “bD"
35-50-2-8. Death sentences. — (u) The state ma ye a death
for murder y by on a page separate from
instrument, existence of at least one of the Le dn
listed in subsection (b). In the sentencing hearing rogue homenet
of murder, the state must prove beyond # reasonable the
at least one of the aggravating circumstances al
(b) The vating circumstances ure as follows:
(1) The defendant committed the murder by intentionally killing the
vicum while committing or attempting to commit arson, child
molesting, criminal deviate conduct, kidna ne. Tape, of on, oF calibers.
(2) The defendant committed the murder by the —
explosive with intent to injure person or
3) The defendant committed the murder ying in =~
(4) The defendant who cummitted the m yee hived to kill
(5) The defendant committed the murder by hiring another person to kill.
(6) The victim of the murder was « corrections judge,
or law enforcement officer, and either (i) the victim was acting in the course
of duty or (ii) the murder was motivated by un act the victim performed
while acting in the course of duty.
(7) The defendant has been envied of another murder.
(8) The defendant has committed another murder, at any time, regardless
of whether he has been convicted of that other murder.
(10) The defendant was serving « term of imprisonment and on the date
of the murder the defendant had twenty [20] or more
served before his earliest possible oa date as ce doined by IC 3548
(c) The od circumstances that may be considered under this sec-
tion are as fol
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emo-
tional disturbance when he committed the murder.
4 (3) The victim was a participant in, or consented to, the defendant's con-
uct.
(4) The defendant was an accomplice in « murder committed by another
person, and the defendant's participation was os minor.
a The defendant acted under the substantial domination of another per-
“(6) The defendant's capacity to appreciate the criminality of his conduct
ccapeised enn Deaghs of mantel Gaus Ge Ge
imgeiend 005 sueats Of mantel Cases Se Saas
sentenci Rearing "Te ry oe eu may coma il tbe iden
introd at the trial stage of the proceed: together with new evidence
delondaus saggy poencet anay ead
—-
———
(1) The ravaling circumstances snacie or
(2) Any npr mitigating circumstances listed in subsection (c).
(e) If the heuring tw by jury, the jury shall recommend to the court
whether the death penalt should be imposed. The jury may recommend the
death ty only if it finds:
wb the state hus proved beyond a reasonable doubt that at least one
the aggravating circumstances exists; and
“2 SERk ONY GEES Cesnanentes Sah Sees eRe we He
circumstance or circumstances.
The court sh aake tho Set Goteaniantion of De seatette, cer com
(p poceeeseaa mes sentence recommendation after reason-
able sly Sete ge tie hace wet amet ac cha
of the aggravating circumstances exists; and
(2) That any mitigating circumstances that exist are outweighed by the
Be FY Scape teeny epee
A death sentence is subject to automatic review by the supreme court.
The review, which shall be heard under rules by the supreme court,
shall be given priority over al! other cases. The sentence may not be
executed until the court has completed its review. (IC 2-9, as
added by Acts 1977, P.L. 340, § 122; P.L.336-1983, § 1.!
35
IN THE SUPREME COURT OF THE fas ng
UNITED STATES . vee
OCTOBER TERM, 1984 é i
83-6136 ima
RICHARD DILLON,
Appellant
STATE OF INDIANA,
Appellee
ON APPEAL FROM THE SUPREME COURT OF INDIANA
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
STEVEN E. RIPSTRA
LYTTON AND RIPSTRA
Attorneys At Law
416 South Main Street
P.O. Box 767
Jasper, Indiana 47546
Telephone: (812) 482-6414
IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1984
RICHARD DILLON,
Appellant
STATE OF INDIANA,
Appellee
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
Appellant, Richard Dillon, moves the Court for an Order
permitting him to proceed in this Court, In Forma Pauperis,
with his appeal from the judgment of the Supreme Court of
the State of Indiana entered in this cause on October 3,
1983, pursuant to the provisions of Title 28, United State
Code, Section 1915, and Rule 46 of the Rules of this
Court, and in support thereof attaches the affidavit of
said Appellant.
Appellant's Petition for Writ of Certiorari is
being filed contemporaneously with this Motion and
Appellant's Affidavit. .
a on
-
LYTTON AND RIPSTRA
f
—
) L& | Mites
. i 3
Counsel for Appellant
LYTTON AND RIPSTRA
Attorneys At Law
P. 0. Box 767
416 South Main Street
Jasper, Indiana 47546
Telephone: (812)-482-6414
PROOF OF MAILING-AFFIDAVIT
I, Steven E. Ripstra, one of the attorneys for Richard
Dillon, Appellant herein, and a member of the Bar of the
Supreme Court of the United States, hereby certifies that,
on the Si Gay of January, 1984, I deposited in a United
States Post Office located at Jasper, Indiana, with first
class postage prepaid and properly addressed to the Clerk
of the Supreme Court of the United States within the
time allowed for filing, the foregoing Motion .For Leave
To Proceed In Forma Pauperis.
SUBSCRIBED AND SWORN to before me a Notary Public
this / Lay of January, 1984. a i /, P
; Y ul
GF, Abril
—
My Commission Expires:
4
IN THE SUPREME COURT OF THE
UNITED STATES
---TERM, 198 ---
RICHARD DILLON,
Appellant
Ve
STATE OF INDIANA
Appellee
AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED AND APPEAL IN FORMA PAUPERIS
1, Pichard Dillon, being first duly sworn, depose and
say that I am the Appellant, in the above-entitled case; that
in support of my Motion To Proceed On Appeal without being
required to prepay fees, costs, or give security therefore,
I state that because of my poverty 1 am unable to pay the costs
of said proceedings or to give security therefore; that I believe
I am entitled to redress; and that the issues which I desire
to present on appeal are the following:
l. That I was denied effective assistance of counsel
at the trial stage of my capital murder case.
2. That I was denied the due process protection of the
fourth and fourteenth amendments to the Constitution when statements
I had made to the police were entered into evidence in my criminal
trial.
3. That the Indiana Death Penalty Statute, Indiana Code
Section 35-50-2-9 (Burns 1978) violates due process and is
unconstitutional both in its terms and application.
4. That my fifth and fourteenth amendment rights against
self-incrimination were violated by the trial court.
5. That my fifth and fourteenth amendment rights against
self-incrimination were violated under the Indiana Death Penalty
Statute as set forth above.
6. That my right to due process of law was abridged in
that there was no finding by the trial court, during the sentencing
portion of my capital murder trial, that I was guilty of felony
murder, and that at the time of the offense I intentionally
killed the victims, beyond a reasonable doubt, as required
by the Constitution of the United States and by the Indiana
Death Penalty Statute.
I further swear that the responses which I have made to
the questions and instructions below relating to my ability
to pay the costs of prosecuting the appeal are true.
1. Are you presently employed?
Answer: NO. 1 have been incarcerated in the Indiana
State Prison since my original sentencing in August, 1981.
2. Have you received within the past 12 months any income
from a business, profession, or other form of self employment,
Or in the form of rent payments, interest, dividends, or other
source?
Answer: NO
3. Do you own any cash or checking or savings) account?
Answer: NO
4. bo you own any real estate stocks, stocks, bonds, notes,
automobiles, or other valuable property, excluding ordinary
household furnishings and clothing?
Answer: NO
S. List the persons who are dependant upon you for support
and state your relationship to those persons.
Answer: NONE
The Knox Superior Court, Knox County, Indiana, appointed
Pauper counsel for purposes of my appeal on September 21, 1981.
Subsequent to the disposition of said appeal by the Indiana
Supreme Court, the Knox Superior Court, Knox County, Indiana,
appointed pauper counsel to represent me in any further proceedings
and appeals as may be appropriate in the discretion of said
counsel. This being done on October 11, 1983. The firm of
Lytton and Ripstra, Jasper, Indiana, was my appointed, pauper
counsel below and remains my appointed, pauper counsel at the
present time.
I understand that a false statement of answer to any questions
in this Affidavit will subject me to the penalties for perjury.
SS 7rI< or or p55 }
) aa : i
Comnrey 0 La fe: fe aie ay Jf Lh,
i CHARD th es
SUBSCRIBED AND SWORN to before me a Notary Public this
2 97>dGay of Ltesn her ‘ 198.
7 fe,
a append fk Jt7. SV rt
NOTARY PUBLIC ~ 4; 7:
. te a sri 5
My Commission Expires:
JD pattie 43 SGF?
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.