# Petition — DILLON v. INDIANA (No. 83-6136) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1748%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text | 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 “-e \ e*? RICHARO DILLON, Appellant (Defendant below), Vv. No. 282 $ 67 STATE OF INDIANA, ee ee ee ee ee ee ee ee 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 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 . 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 ¢26dGay 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? --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1748%3A1. Public record. Not legal advice.