Petition — DILLON v. INDIANA (No. 83-6136)

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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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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

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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 . .

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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.

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