Petition for Writ of Certiorari — Thomas N. Schiro v. Indiana

y

85-5972 |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

PP PPP PPS SSO OSS OO SOOO SSS OSS — . — 2 2 2 2 2 2

THOMAS N. SCHIRO,

Petitioner,

* ¥8. =

STATE OF INDIANA,

Respondent.

PETITION FOR WRIT OF CERTIOKARI TO

THE SUPREME COURT OF {INDIANA

PAUL LEVY

Deputy State Public Defender

309 West Washington Street,

Suite 301

Indianapolis, Indian 46204

Telephone: (317) 232-2475

ATTORNEY FOR PETITIONER

iL! '

Or wt oF THE 3

——

—

QUESTION PRESENTED

Whether imposition of the death penalty violates the

constitutional requirement of reliability in capital sentencing

under the Eighth Amendment of the Constitution of the United

States, where a trial judge overrides a jury recommendation

against the death penalty and relies upon personal observations

of the defendant made by the judge outside of the courtroom

proceedings?

TABLE OF CONTENTS

Question Presente

Table of Authorities

Citation to Opinions dello

Ju isdiet e444

Constitutional and Statutory Provisions Involved ----------

Statement of the Cage e e

Reasons for Greating the WEit se «sesso ocessesocosoescesse

CERTIORARI SHOULD BE ED TO DETERMINE

WHETHER, AFTER SPAZIANO V. FLORIDA, A STATE

MAY ALLOW ITS JUDGES UNGUIDED DISCRETION TO

OVERRIDE A UNANIMOUS JURY RECOMMENDATION AGAINST

IMPOSITION OF THE DEATH PENALTY WITHOUT OFFEND-

ING THE CONSTITUTIONAL REQUIREMENT OF RELIABILITY

IN CAPITAL SENTENCING PROCEDURES <<-<<e<e<-e*%*o*%"%"---"°

conelus io «k

Appendices

Appendix A - Opinion of the Supreme Court of Indiana,

Cause No. 1084 8 423, reported at 479

N.E.26 556 (Ind. 1965) ——44«ͤ%

Appendix B - Order Denying Petition for Rehearing ----

Appendix C - Statutory Provisions Involved ---<-<---<----

li

TABLE OF AUTHORITIES

Page

Cases

Barclay v. Florida, U.S. „ 103 S.Ct. 3416, 77 T. 28. 20

1134 (1983) ——ͤũ——„4„4«„%„% „!0r. „ A „ nnn 12

Brewer v. State, 417 N. E. 2d 8869 (Ind. 1981) --------------- 12

Caldwell z. Mississi ° U.S. „ 105 S.Ct. 2633,

6 . 4. 44 23] „ „4„4„4„4„„4„%v±%7nã.T¾„„4„46„1ß»% g —— 19

Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290,

L. Ed. 2d 344 (1977) nnn nnn nnn nn nn „„ 12

Gardner v. Florida, 4306 U.S. 349, 97 S.Ct. 1197,

1 L. Ed. 4d 7134444646 «444 „4„éͤw 11

Judy _v. State, 416 N. B. 2d 95 (Ind. 19811————— 12

Proffitt v. Florida, 128 U.S. 242, 96 S.Ct. 2960,

49 — . 0 913 (1976) 4 „%„%„%„%„%r„6„ꝶ:v]i?dũ nnn ee- 12

Scniro v. State, 45] K. E. 2d 1047 (Ind. 1963),

cert. denied, U.S. „ 103 &.Ct. 510, 76 L.E4.26 699 = 9,13

Schiro v. State, 479 R. B. 2d 556 (Ind.1985) --<-<<<----<-<---<-=- 9

Spaziano v. Florida, 466 U.S. » 163 8.Ct. .

Bc L.bd.04 240 (1964) ------5 ~~ =a 55 eo eee ee eee ene sees ——— 10, 11

12.11

Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 346,

T, LE 11

Tedder v. State, 322 80. 2d 908 (14975 —— „444444 12,33

Williams v. State, 430 N.E.2d 759 (Ind. 1962) -<--<---<-<-<---=- 12

Woodson v. North Carolina, 426 U.S. 280, 96 S.Ct. 2976,

— we he y OY Oo YY era ./ cee

$9 L.ed.cd 964 (1976) ----------------------------------- 10

Rules

Supreme Court Rule 20.2 44 &

Statutes

20 U.8.C. 87 „ „K„%:ͤ . œðGal!!h!“!. 7

20 U.8.C. 6210 te-! „“„ͤ%“bt — 8

adi ann Cage 024% 8 8

Constitutions

Eighth Amendment to the Constitution of the United States - 6,9

121

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

THOMAS N. SCHIPO,

Petitioner,

- vs. -

STATE OF INDIANA,

Respondent.

EE 1. H 0

PETITION FOR WRIT Of CERTIORARI TO

THE SUPREME COURT OF INDIANA

— ———— — — — ..: ww H —nhin

Petitioner prays that a eit of certiorari issue to review

the judgment of the Supreme Court of Indiana filed on June 26,

1965.

The opinion of the Supreme Court of .ndiana, Cause No. 1064

S 423, is reported at 479 N.E.3¢ 556 (Ind. 1965) and is annexed

as Appendix A.

JUBISD CTION

The judgment of the Supreme Court of Indiana was filed on

Jene 26, 1965, and rehearing was denied on September 4, 1965.

See Appendix 8. Jurisciction of this Court in invoked pursuant

to 26 U.S.C. 512570, Petitioner having asserted below and

assetting herein deprivation of rights secured by the

Constitution of the United States. This action is brought

Within the time limitations set forth in Supreme Court Ruie

20.2, and 26 U.S.C. §210lic), as the decision of the Supreme

Court of Indiana affirming the denial of the petition for

post-conviction relief in this case is @ judgment in „ civil

action.

This case involves the E.ghth Amendment to the Constitution

of the United States:

APENDMENT 6

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The case also involves indiana Code 35-509-2-9, which is

annexed as Appencix Cc.

TAT NT 2 7

On September 12, i961, following @ trial dy jury, Thomas

Schiro was convicted of murder in Brown County, Indiana.

cause the State had slleged the emistance of an aggravating

circumstance pursuant to the death penalty statute, Ind. Code

35-50-2-9, on September 15, 1961 the jury reconvened for the

penaity phase of trial and returned „ nantes verdict

recommending that the death penalty not be imposed upon Schiro.

Thereafter, the trial ju@ce conducted a sentencing hearing on

October 2, 1961. The judse die not follow the jury's

recommendation, and included the following statement in his

write order imposing the death penalty:

This Court personally observed the Defendant,

while the jury was present, making continual

rocking motions, which did not stop throughout

the trial except when the jury left the

Courtroom. In the Cour: s outer chambers, out of

the presence of the jury, in the eight days of

trial, the Court frequentiy observed) the

Defendant sitting calmly and not rocking. it is

apparent to the Court that this may well have

influenced and isles = the jury an its

recommencation.

Before issuinc a written opinion on the direct appeal of the

conviction and sentence, the Supreme Court of Indiana ordered

the trial judge to make a nunc pro tunc entry to set forth new

reasons for imposing the death penalty because leide original

findings in this action did not set out clearly and properly the

trial court's reasons for imposing the death penalty.° Schiro

WV. State, 45] . f. 26 1067, 1056 (Ind. 1963), cert. denied, __

v. s. . 103 S.Ct. S10, 76 . K. 23 699. On February 22, 1963,

the trial court certified to the Supreme Court of indiana a new

*Pronouncement of Sentence, which included verbatim the passage

quoted above from the original sentencing order. On August 5,

1963, the Supreme Court of indiana affirmed the conviction and

Geath sentence, and on Novetber 26, 1963 the Supreme Court of

the United States denied a petition for writ of certiorari. 9.

On May 10, 1964, Schiro filed an amended petition for

post-conviction relief alleging that the death sentence viclated

the Sixth, Eighth anc Fourteenth Amendments to the Constitution

of the United States because the trial judge improperly

considered Schiro*’s conduct dase upon the judge's view of

Schire outside of the court in the judge's outer chambers, and

because of evidence that the judge was biased in favor of

amposing the death penalty regardless of the jury's

recommendation [TF.96). An evidentiary hearing was held on the

post-conviction relief petition, and testimony was offered

concerning a statement made by the trial judge just prior to the

verdict in the guilt phase of trial which presupposed that the

death penalty would se imposed if Schiro were found guilty of

murder. Following the denial of the petition for

pos=-conviction relief in the trial court before a new judge,

Schiro raised his same constitutione]l claims on appeal in the

context of “wnether the post-conviction court erred in finding

the death penalty was proper in light of [the] allegations that

the trial judge was biased ans improperly considered appellant's

behavior during the course of the trial in his sentencing

detertination.® Schir> v. State, 479 .. 2 556, 550 (ind.

1965). In affirming the judgment denying post-conviction

relief, the Supreme Court of Indiana addressed Schiro’s claims

on the merits and concluded that lelde post-conviction court

aig not ert in finding it was not improper for the trial judge

to consider appellant's behavior and that the death sentence did

not result from a loss of objectivity on the part of the

judge.* Id., 479 N...24, at 561.

REASONS FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED TO DETERMINE

WHETHER, AFTER St — STATE MAY

ALLOW ITS JUDGE + TO OVERRIDE

* UNANIMOUS JURY RECOMMENDATION AGAINST

IMPOSITION OF THE DEATH PENALTY WITHOUT OFFENDING

THE CONSTITUTIONAL REQUIREMENT OF RELIABILITY iN

CAPITAL SENTENCING PROCEDURES.

This Court hes long recognized that “°iblecause of the

qualitative difference [of the death penalty, there is a

corresponding difference in the need for reliability in the

determination that @eath is the appropriate punishmenc in a

specific case.. Woodson v. North Carolina, 426 U.S. 260, 305, 6

s. ct. 2976, 2991, 49 . 4. 20 944 (1976). Thus, “many of the

limits that this Court has placed on the imposition of capital

punishment are rooted in s concern that the sentencing process

should facilitate the responsible and reliable exercise of

sentencing discretion.° Caldwell v. Mississippi, ___U-S._.

105 S.Ct. 2633, 2639, 66 . 60. 2 231. In Spaziano v. Florida,

466 v. s. . 103 S.Ct. 3154, 62 T. 44. 28 340 (1964), this Court

wrote that “‘[wle reaffirm our commitment to the demands of

reliability in decisions involving deatn,* at 10 S.Ct., at

3160, while also establishing that “there is no constitutional

requirement that the jury's recommendation of life be fins.“

2. . at , 104 S.Ct., at 3157. The question raised by the

present case is whether, in accordance with the Eighth Amendment

requirement of reliability in capital sentencing, a state may

allow its judges unguided discretion to override @ unanimous

jury recommendation against imposition of the death penalty.

In the present case the judge overturned s unanimous jury

recommendation against the death penalty and cited his

impressions that the jury had been misled by Schiro’s rocking

motions in court which stopped when the jury waz absent from the

court room. But the observations which lead the judge to

conclude that the jurors had deen pisled in their

recommendations were based upon the judge's view of Sets

outside of the court in the judge’s outer chambers. The

observations were made over an eight day period of time when

counsel may or may not have been present and with no formal

procedsral safeguards to assure reliability and validity in the

observations. in particular, because the fact that the

observations made by the judge became — only after the

completion of sentencing proceedings when the judgment of

sentencing was pronounced, there was no meaningful opportunity

to challenge the observations cited by the judge as evidence

that the jury may have been misled by Schiro’s rocking motion

which had accompanied lengthy and contested evidence regarding

the question of his sanity. Uniise information contained in a

presentence report which a defendant ‘as an opportunity to

explain ot deny, 2 v. F „ £30 9. s. , $7 8. et.

1197, 351 . 8. 20 393, or unlike demeanor evidence gatherec in a

public courtroom where there is full judicial protection of the

defendant's right ot confrontation, of cross-examinstion, and of

counsel,® Turner v. Louisiana, 379 U.S. 466, 473, 65 S.Ct. 546,

550, 13, L.Ed.2¢ 424, the observations cited by the trial judge

permitted him to exercise free-wheeling discretion in overriding

the unanimous recommecdation of the jury.

This Court's decision ‘nm Spaziano v. Florida Goes not settle

the importen: issse of whetner @ state may give its judges

unguided discretion to override 4 er recommendation against

the death penalty. in that decision, the Court found that the

Florida standaris for overriding a jury’s recommendation were

not 80 poard and vague as to violate the constitutional

requirement of reliability in capital sentencing.® Id., at __.»

104 §.Ct., t 43157. In paertticular, the Court cited the

“significant safeguard® established by the standards in Tedder

Ma State, 322 $0.26 908 (1975), which the Court nad recognized

in the past 2 an important component of the Florida capital

sentencing procedures. See Proffitt v. e U.S. 242,

249-250, 96 S.Ct. 2960, 2965-2966, 49 . 8.23 913 (1976);

Dobbert v. Florida, 432 U.S. 262, 295, 97 S.Ct. 2290, 2299, $3

L.Ed.2¢ 344 (1977); ¢ v. F © . s. . 103 S.Ct.

3416, 3427, 77 . E. 24 1134 (1963). Under tne Fiorida standerd,

the override of a jury recommendatior against the death penalty

is permitted only where the evidence favoring death is “so clear

and convincing that virteslly no reasonable person could

@iffer.° Tedder v. State, supra, 322 8. 20, at 910. in

no Uv. 6 „ the Court rejected the cleim that the

judge's override in thet case violated the constitutional

requirement of reliability because “isle are satisfied that the

Florida Supreme Court takes [the Tedder) standerc seriously anc

has not hesitated to reverse a trial court if it derogates the

jury’s tole. id., at „ 104 &.Ct., at 3166.

The decision of the Supreme Court of indiana in the present

case makes it clear that in Indiana trial judges are accorded

unguided discretion to override a jury recommendation against

imposition of the death penalty. Insofar as the Supreme Court

of tindiena has articulated any tales for the meaningtul

appellate reviews ot death sentences, the court has adopted a4

rule applicable to any type of sentence whereby the court 111

only disturb sentences that are “manifestly unreasonable,° which

means that no reasonable person could find such sentence

appropriate to the particilar offense and offender for which

such sentence was imposed.® Judy v. State, 416 %.£.24 95, 197

(Ima. 1981); Brewer v. State, 417 N.£.2¢ 689, 899 (Ind. 1961);

Williams v. State, 430 N.E.2¢ 759, 765 (Ind. 1982). The

“manifestly unreasonacle® standard does not yield under the

circumstance where a judge overrides a Jury recommendation

against the death penalty. See Schiro v. State, 45) . . 20

1047, 1052 (ind. 1983). The “manifestly unreasonable® standard

sets up a presumption in favor a judge's decision to override a

juty recommendation, which is in sharp contrast to the

“significant safeguara® established by the Tedder standard that

gives careful scrutiny to tne override decision. The decision

in the present case demonstrates that the discretion accordes a4

trial judge in overriding @ jury recommendation in iIndiena runs

so far afield as to permit reliance upon ost of court persona:

observations of a defendant by the judge which counsel fave no

opportunity to explein of contest. This unguided discretion is

contrary to the procedures required in Florida under the Tedder

standard. To the extent that the existence of the Tesder

Standard was essential to satisfy the Court that there was no

violation of the constitutions! requirement of reliability in

the Spaziano case, those principles cannot be reconciles with

the manner in #hich the trial judge arrived at his decision to

reject the jury's recommendstion against the death penaity in

chiro’s case. This Court, therefore, should grant certiorar:

to determine whether, after Spaziano v. Florida, 2 state may

allow its judges unguided discretion to override @ unanimous

juty recommendation agains* imposition of the death penalty

without offending the constitutional requirement of reliability

in capital sentencing procedures.

— 7

CONCLUSION

Based upon the foregoing reasons, Petitioner Thomas

Schiro requests this Court to grant certiorari to review the

Supreme court of Indiana decision on the important federal

constitutional question presented here.

Respectfully submitted,

au y

Deputy Puol Defender

Attorney for Record

—— —

ol

as

556 Ind 479 NORTH EASTERN REPORTER. 2¢ SERIES

counsel was inadequate because he did not must be shown that such evidence existed

submit such an instruction and was reasonably available. Defendant's

In deciding whether to give a lesser m. elam of ineffective assistance of counsel is

cluded offense instruction. the trial court not borne out by the inaction cited ¢

apples the following test We find no error. hence the judgment of

“In determining whether to instruct the the trial court is affirmed

jury that they may return verdicts on 2

lesser-included offenses, the tra! court GIVAN. CJ. and DeBRULER and Pl.

must apply a two-part test First. by VARNIk. JJ. concur 4

— —

examining the statutes defining greater

and lesser-included offenses and the

charging strument, the court deter

mines whether the lesser-included of N

fenses to be instructed are inherently .

included in the greater charge, or factu >

ally’ included im the charging instru- 7

ment 's allegations of the means by which

the greater crime allegedly was commit:

HUNTER. J. not participating

ted Second, the court must make a de- : —

termination of whether, assuming that Thomas N SCHIRO, Appellant, :

an offense was committed. ihe evidence v.

would, prma facie, warrant a conviction STATE of Indi — N

for a lesser-included offense. or could

oniy warrant a conviction for the princr- No. 10848423.

pal charge. in which case the lesser-in- Supreme Court of Indiana.

cluded offense instructions should not be

given.” (citations omitted) June 28, 1985

Henning v State (1985), Ind, 477 N E 2d

547, 550-551. In this case the evidence Rehearing Demed Sept 4, 18885

conclusiwwely demonstrated that Officer Defendant, . for ~~ 7

Bauner obtained phencyclidine from some bon relief * 0 * q ö

one The issue at trial was whether or dot County James M D J. denied the

he obtained phencyclidine from the Defend- petition Defendant led The Su

ant Thus, there is no question that e preme Court Givan, CJ. held tat (1)

transaction involving phencyclidine did oc. trial judge's finding that def „1 4

eur An instruction that the jury could base misied jury by his continual rocking

convict Defendant of the lesser offense of motions during trial did not constitute basis

“possession,” thus, would not have deen for imposition of death penalty; (2) defend-

warranted under the evidence, would have int had opportunity to challenge wa

invited a compromise verdict, and would judge's observations regarding his conduct

properly have been refused Defendant o that defendant's due process richts were

has demonstrated no error by counsel iM not violated: (3) the tral judge's observa:

failing to submit such instructions. tons regarding defendant's conduct were

{9.10} Finally, Defendant presents a not directed toward defendant's exercising

general attack upon trai counsels per of his constitutional rights, (4) defendant

formance. arguing in particular that he vas not denied his Sixth Amendment richt

should have called character witnesses or to effective representation under theory

presented other evidence on Defendants that sentence was based on information

behalf However, before a claim of inef- which he had no opportunity to deny oF

fective assistance of counsel can be prem- explain: (5) judge's remark regarding whet

ised upon his failure to present evidence. m er defendant was going to lve or de was

— ~

APPENDIX A

Page 1

v. STATE Ind 557

cue as 479 N E24 % (Ind 1985)

insufficient evidence from which to con-

clude that judge was so biased as to make

sentencing determination arbitrary or ca-

prcous and (6) instruction regarding en.

compassing applicability of guilty but men-

tally ili verdicts cured potentially preju

dicia! impact of omission of verdict forms.

Affirmed.

DeBruler, J, dissented and filed an

vpinion

1. Criminal Law 11581)

In reviewing denial of postconviction

petition. Supreme Court does not weigh

evidence or judge credibility of witnesses

2. Criminal Law 115811)

On review of denial of postconviction

petition. petitioner must satisfy Supreme

Court that evidence as whole leads unmis-

takably to decision in his favor

3. Criminal Law 1208.14)

Although trial judge's observations of

defendant's behavior during course of trial

were germane to his consideration of jury s

recommendation that death penalty not be

imposed, trial judge's finding that defend

ant might have misied jury by his continua

rocking motions during tral when jury was

present, but which did not occur when de-

fendant was out of jury s presence. did not

constitute basis for imposition of death

penalty

4 Criminal Law 1208.11 4)

Trial court within its discretion, can

der defendant's behavior in court

tom, regardless of whether jury ts pr t

6. Constitutional Law 2702)

Defendant's due process mghts were

not violated under theory that death sen-

tence was imposed on basis of information

which defendant had no opportunity to

deny or explain where, at sentencing hear-

ing. judge expressly stated his observztions

of defendant's behavior and its relevance to

sentencing determination, and thus defend-

ant had opportunity to challenge observa-

tions and judge's conclusions based there-

on, and where testimony was introduced to

trial by both sides in reference to defend

an s prior rocking behavior so that defense

counse! could have presented add:tiona! evi

dence at sentencing hearing pertaining to

Statutory mitigating circumstances. IC

35-50-2-9dN1982 Ed: USCA. Const

Amends. 5, 14

7. Criminal Law 39311)

Trial judge's observations about de

fendart’s rocking motions during trial were

directed toward possible mitigating factors

and jury s recommendation that death pen.

alty not be imposed, not to defendant's

exercising of his constitutional mghts, and

thus. trial court s consideration of defend-

ant’s behavior did not violate his right

against self-incrimination IC 35-50-2-%d)

(1982 Ed), Const. Art 1, § 14 USCA.

Const.Amend 5

8. Criminal Law 641.1317)

Defendant was not denied his Sixth

Amendment richt to effective representa:

tion under theory that sentence was based

on information which he had no opportunr

ty to deny or explain where, at sentencing

hearing. trial judge specifically stated his

observations of defendant's behavior and

and thus. judge in capital case u not pre.

cluded from considering defendant's behav

vor during course of trial even if evidence

of such behavior is not admitted into evr

dence

* Criminal Law €°956.216). 986.4(1)

Trial court can properly consider such

“nonevidentiary” information as presen

tence investigation report and its percep

bon of defendant s remorse or lack thereof

AP

jury's p. and relevance of those ob-

servations to sentencing determination so

that counsel had opportunity to contempo-

raneously object to or rebut judge's obser-

vations LUS CA Const Amend 6.

9. Criminal Law =

Judge's remark regarding whether de.

fendant was going to live or de made in

emotionally charged atmosphere preceding

return of verdict. was insufficient evidence

from which to conclude that judge was so

PENDIX A

Page 2

ts Wee ore

558 Ind

biased as to make sentencing determination

arbitrary or capricious

10. Criminal Law 1144.10

In addressing issue of competency of

counsel, Supreme Court indulges strong

presumption that counsel's conduct falls

within wide range of reasonable profession-

al assistance

11. Criminal Law 641.133)

Under “performance component” of

test employed in addressing issue of com

petency of counsel, defendant must show

that counsel's alleged acts or omissions fell

outside of wide range of ressonable profes-

siona! assistance, if defendant satisfies

that step, he must then establish under

“prejudice component that counsel's er

rors had adverse effect upon judgment

12. Criminal Law € 641.1311)

In appiying two-step test employed in

addressing issue of competency of counsel.

it is Mot necessary to address both compo

nents if defendant makes insufficient show-

ing as to one.

13. Criminal Law 641.1312)

Instruction regarding encompassing

applicability of guilty but mentally ill ver.

dicts cured potentially prejudicial impact of

omission of verdict forms for “guilty of

murder while committing and attempung

to commit rape but mentally ill” and

“guilty of murder while committing and

attempting to commit criminal deviai« con-

duct but mentally ill and thus, defendant

was unable to establish that his trial coun-

sels failure to assure that jury received al!

necessary verdict forms had adverse effect

on judgment. USCA. Const Amend 6

Susan K Carpenter, Public Defender,

Frances Watson Hardy, Deputy Public De

fender. Indianapolis, for appellant

Linley E Pearson. Atty. Cen. Joseph N

Stevenson, Deputy Atty Cen, Indianapo

us. for appellee

APPENDIX

Page 3

479 NORTH EASTERN REPORTER. 24 SERIES

GIVAN, Chief Justice

Appellant was convicted by a jury of

Murder While Committing or Attempting

to Commit Rape The trial court sentenced

appellant to death The conviction and

death sentence were affirmed by this Court

on direct appeal Schiro v State (1983),

Ind. 451 N E.2d 1047 (DeBruler, J., and

cert denied, — US. —, 108 SCt £10,

78 LEd 2d 699. Appellant's Petition

Post Conviction Relef was denied

now appeals

The facts of this case were set out

‘ength in the opinion on direct appeal

Schiro supra at 1049-50. They will not

be repeated here.

Appellant raises two issues in this ap

peal whether the postconviction court

erred in finding the death penalty was

proper in light of his allegations that the

trial judge was biased and improperly com

sidered appellant's behavior during the

course of the trial in his sentencing deter

minaticn, and whether the post-convicuon

court erred in finding appellant was not

denied effective assistance of counsel. ail

[1,2] In reviewing the denial of a pot

conviction petition, this Court does not

weigh evidence nor judge the credibility of

witnesses. Owens v. State (1984), Ind. 464

N Ed 1277. The petitioner must satisfy

this Court that the evidence as a whole

leads unmistakably to a decision in his fa

vor Bran v. State (19s4), Ind, 467 N EA

671

Appellant's first issue is divided into four

Subissues In the first three subissues.

which address the trial court's considera

tion of his behavior during the trial, appel

lant alleges: 1) that the information

not be relied upon because it was not intro

duced into evidence. 2) that because he did

not testify, reliance on observations of hs

behavior violated his Fifth Amendment

nights, and 3) that he was denied his mem

to effective assistance of counse! because

defense counsel was not afforded an oppor

tunity to comment on facts influencing the

sentencing decision The fourth subsssue

A

SCHIRO e STATE

1% 339

cue a0 479 N £24 %, 1985)

concerns a comment made by the trial

judge which appellant argues demonstrates

the judge was biased and therefore unable

to objectively render the sentencing deter

mination

Upon review of appellant's direct appeal.

this Court found the trial court's orginal

findings pertaiming to the sentencing did

not set out clearly and properly the court's

reasons for imposing the death penalty

Schiro. supra at 1056. We ordered the

court to make written findings setting out

the aggravating circumstance proved be.

yond a reasonable doubt ani the mitigating

circumstances, if any, as specified in Ind

Code § 35-50-2-9. Id In its nunc pro

tune entry the court found that the aggra-

vating circumstance set out in Ind Code

§ 35-50-2-Mbw1) was proved beyond a rea

sonable doubt

The court then stated that it found no

mitigating circumstances, and addressed

each of the possible mitigating circum:

stances delineated in Ind Code § 35-50-2-

9 In reference to the statutory mitigating

circumstances concerning a defendant's

menta! or emotional condition, subsection

(cn and impairment of a defendant's ca

pacity to appreciate the criminality of his

conduct. subsection (eng,, the court made

the following finding

“This Court personally observed the De-

fendant, while the jury was present,

making continual rocking motions. which

did not stop throughout the trial except

when the jury left the Courtroom In

the Court's outer chambers. out of the

presence of the jury, in the eight days of

trial. the Court frequently observed the

Defendant sitting calmly and not rock-

ing It is apparent to the Court that this

may well have influenced and misied the

jury in its recommendation *

Appellant contends this finding const)

tutes the court's primary basis for sentenc-

ing tom to death after the jury had recom

mended the death penalty not be imposed

He argues that “obviously” the court based

its death penalty judgment on its observa-

tions. representing an “absolute denial of

due process.”

{3} We cannot agree with appellant's

conclusory assertion that the court based

its judgment on observations of his behav-

jor. The court, as prescribed by the death

penalty statute, found the existence of an

aggravating circumstance proved beyond a

reasonable doubt Schiro, supra at 1058

It addressed each of the possible mitigating

circumstances delineated in the statute.

Regarding appellant's mental state, the

ccurt made additiona! findings which cited

testimony by psychiatric experts and evi.

dence of appellant's attempt to conceal his

crime. Id at 1059 While the court's ob-

servations were certainly germane to its

consideration of the jury s recommenda

tion. it cannot be said its finding that appe

lant may have misled the jury constituted

the basis for imposition of the death penal-

ty

[4.5] Neither can we agree with appel-

lant’s contention that consideration of his

behavior was impermissible because it was

information not admitted into evidence. It

is axiomatic that a tria! court within its

discretion, can consider a defendant's be.

havior in the courtroom, regardless of

whether the jury is present. The court can

properly consider such “non-evidentiary”

information as the pre-sentence investiga:

tion report and its perception of a defend.

ant s remorse or lack thereof We find no

authority to support the conclusion appel:

lant would have us draw, that a judge ina

capital case is precluded from considering a

defendant's behavior during the course of

the trial if evidence of such behavior ts not

admitted into evidence

Appellant nevertheless argues that un-

der Gardner t Flonda (1977), 430 US

349, 97 SCt 1197, 51 LEd2d 393, the

death penalty is invalid In that case a

Florida jury recommended a life sentence

The trial judge, as im the instant case.

overrode the jury's recommendation and

sentenced the defendant to death. In im-

posing the death penalty the judge stated

that his decision was based im part on @

presentence report which contained a confi-

dential portion not available to the defense

—

APPENDIX A

Page 4

560 Ind

Id. at 353 97 8 Ci at 1202. 51 L.Ed 2d at

398-99

The United States Supreme Court vacat

ed the death sentence The Court conciud

ed the petitioner was demed due process

because the death sentence was imposed.

at least in part. on the basis of information

which the petitioner had no opportunity to

deny or explan Id a. 362. 97 SCt at

1207, 51 L Ed ad at 404. The Court found

that because the confidentia! portion of the

report was not part of the record on appeal.

the Florida Supreme Court was unable to

consider “the total record” in its review

Id at 361, 97 S.Ct. at 1206, 51 LEd 2d at

404

[6] The instant case is distinguishable

At the sentencing hearing the judge ex-

pressiy stated his observations of appel-

lant’s behavior and its relevance to the

sentencing determination Appellant thus

had an opportunity to challenge the obser.

vations, and the judge's conclusion based

thereon. either contemporaneous!s or upon

filing his motion to correct error Further.

this Court explicitly considered the contro:

verted finding on review of appellant's d.

rect appeal. Schiro. supra at 1057, 1059

We also note that testrmony was intro

duced at trial by both sides in reference to

appellant's prior rocking behavior Appel

lant introduced testimony that he rocked in

the presence of witnesses Despite ape

lant’s contention of lack of notice of the

court s conclusion based on such behavior.

defense counse!, who was certainly aware

of the continua! rocking motions referred

to by the court could have presented add.

tional evidence at the sentencing hearing

pertaining to the Statutory mitigating cir

cumstances. See Ind Code § 35-50-2-%d)

The due process violation found in Gard.

ner, supra is not present here.

Appellant contends that because under

the Fifth Amendment of the United States

Constitution and Art 1, § 14 of the Indiana

Constitution the general trial demeanor

and manner of a defendant who does not

take the stand cannot be considered

against him and no inference can be drawn

from his fasiure to testi the trial court s

479 NORTH EASTERN REPORTER, 2d SERIES

consideration of his behavior violates his

right against self incrimination

{7] This argument is without ment

The sole case cited by appellant. People r.

Ramirez (1983), 98 Hl 2d 439, 75 In Dee

241, 457 N Ed 31, is mapposite to the

circumstances of the instant case In Ra-

mire: the State's attorney commented to

the sentencing jury that the defendant had

“sat silent” and offered no explanation for

the crime The Supreme Court of I'lino:s’

decision to vacate the death sentence was

based on the prosecutor s comment and the

trial judge s refusal to properly instruct the

jury not to consider the defendant's deer

sion not to testify at the sentencing hear

ing Id at 472-73, 457 X E 2d at 47.

Although the impermissible comment un

Ramirez was couched in terms of the de

fendant's conduct the crux of the constr

tutional vielation was the impropriety of

commenting on the defendant's decision

not to testify Here, the tru! judges ob

servations were directed to two of the pos

sible mitigating factors and to the jury's

recommendation, not to appellant's exercis-

ing of his constitutional richts The

does not reveal any comment by the prose

cution or by the court made in reference to

appellant's decision not to testify at the

sentencing hearing.

In an argument related to his contention

that the trial court erred in considering

non-evidentiary information. *

serts he was denied his Sixth Amendment

right to effective representation upon the

sentence being based on information which

he had no opportunity to deny or explain.

{8} This argument is also without merit

At the sentencing hearing the tral judge

Specifically stated his observations

their relevance to the sentencing determr

nation Counsel thus had the opportunity

to contemporaneously object to or rebut

the judge's observations. As the finding

was stated explicitly and openiy, we cannot

conclude that the court's reference to

observations of appellant's demeanor pre

cluded defense counsel from commenpink

on facts influencing the sentencing deer

— —

APPENDIX A

Page 5

**

a

<4

SCHIRO + STATE

Ind 561

che on t % 850 (ind 1985)

son See Gardner. supra. 430 US at 360,

97 S Ct at 1206. 51 L Edd at 404

In his fourth subsssue appellant alleges

the trial zudge was biased This allegation

is premised on a comment made by the

judge to a newspaper reporter which appel-

lant argues supports the conclusion the

judge had predetermined that the death

penalty would be imposed

The newspaper reporter, Jocelyn Win-

necke of the Fransrr/ie Sunday Couner

and Press. tesufied at the post-conviction

hearing that the judge The Honorable

Samue! R Rosen. remarked to her after

the guilty verdict was returned that “we re

going to fry the boy.” Judge Rosen testi

fied that before entering the courtroom to

receive the guilty verdict he said “soon

well know whether he'll live or de

Judge Rosen also testified that he would

never use the word “fry” in that context

and that he did not make up his mind until

the date of sentencing whether the death

penalty would be imposed. Vanderburgh

County Deputy Prosecutor Jerry Atkinson.

who prosecuted the case. was privy to the

conversation between Winnecke and Judge

Rosen His recollection at the he ing was

that Judge Rosen stated “I dun the boy ts

going to die”

te Appellant argues that the judge's

statement, coupled with the judges re-

lance on his personal observations. conciu-

sively reflects bias and a predetermination

of the death sentence As Stated infra. the

observations were properly relied upon by

the yudge and in no way represent a loss of

objectivity The comment made by Judge

Rosen. in the emotionally charged atmo-

sphere preceding the return of the verdict,

„ insufficient evidence from which to con-

clude the judge was so biased as to make

the sentencing determination arbitrary or

capricious The post-conviction court did

not err in finding it was not improper for

the tral judge to consider appellant's be-

havior and that the death sentence did not

result from a loss of objectivity On tte part

of the judge

Appellant also alleges he was dened his

Math Amendment nght to effective assist-

ance of counse! because hus trial counsel

failed to assure that the jury received ai!

the necessary verdict forms

110. 11 In addressing the issue of com-

petency of counsel, this Court indulges a

strong presumpuon that counsel's conduct

falls within the wide range of reasonable

professional assistance Barley rv) State

(1985), Ind. 472 XN. Ed 1260, Elliott v.

State (1984), Ind. 465 X Ed 707. We

apply a two-step test comprised of a per

formance component” and a “prejudice

component” Under the first step, a de

fendant must show counse!s alleged acts

or omissions feli outside the wide range of

reasonable professiona! assistance If the

defendant satisfies the first step of the

test, he must then establish that counsel s

errors had an adverse effect upon the juag-

ment Richardson t State (1985), Ind.

476 N.E.2d 497 Lawrence State (1954),

Ind, 464 X E.2d 12

Trial counsel did not submit verdict

forms for the offenses of guilty of murder

while committing and attempting to commit

rape but mentally ill and guilty of murder

while committing and attempting to commit

ermina! deviate conduct but mentally ul.

Schiro. supra at 1062 Appellant contends

that because the jury returned a felony

murder guiliy verdict on a count for which

they were not supplied with a guilty but

mentally ill verdict form confidence in the

outcome of his trial was undermined

This issue was raised in app-lart s direct

appeal in the context of trial court error in

failing to supply the jury with all the neces-

sary verdict forms. Jd We determined

that appellant's Instruction No. 2. which

informed the jury that the possible verdict

of guilty but mentally ill was submitted to

them on all counts of the imformation, suf.

ficiently informed the jury that the mental:

ly ill verdict “apphed to Guilty of Mur.

der Rape and Guilty of Murder Deviate

Conduct, as well as Guilty of Murder Id

at 1063 As appellant failed to show any

prejudice. there was no reversible error on

that issue Jd

APPENDIX A

Page 6

‘

}

i

!

1

t

i

t

*

——— — ——

562 Ine

11. 13) In aner the aforemennoned

stet test of = Net necessary to address

both components if the defendant makes an

imsufficent showing as to one Rene

son. supra at SO] tcnation omitted) Be

Cause the instruction regarding the encom

passing real; of the guilty but men

tally oll verdicts cured the potent pre

dc impact of the omission of the verdict

forms appellant s unabie to un that

counse s omission had an adverse effect

upon the judgment The post-conviction

court dd not err im finding that appe lant

Was not dened effective assistance of coun

—

The tra! court = mm all things affirmed

PRENTICE and PIVARNIK. JJ. concur

DeBRULER. J. Gn with separate

Gd not stop througnrout the tra. except

when the jurw left the Courtroom ir

the Court's outer chambers. out of the

presence of the , im the eght days of

tral the Court frequent observed the

b NORTH EASTERN REPORTER. 2¢ SERIES

Defendant stung caimiy and not mock

ing «ft & apparent to the Court that de

Mai ee have nfiuvenced and maied the

Wry „ d recommendation ©

‘Thos is the justificanon of the judge's ree

thon of the jury s recommendation of life

By chs revelation the pud@e discloses that

he deemed tirmself by reason of hus obser

eee to be = a better posmon thar the

jer’ to make the bfedeath decsson | be

ewe (he was error

in Gerdne> + Plonde (977) Go US

Set 1197. Si LEd 2d 399 the sen

tencng judge casted that he selected

death om part because of mformanon com

tamed in a presenterce report which er

ator had not been disclosed to the de

fendant or hu counsel and to wiech the

defendant had no opportumt, to respond

The LS Supreme Court set the sentence

aside Here the opportun:ts to respond

Judge Roser s statement dd not arse unt!

after he hac made anc formally announced

hus decison to erb the jum recommen

dation of life ana impose death

The standaras of due process are fende

anc dictated by the cwrcumstances and com

peting interests wwolved A hearmng must

be “approprate to the nature of the case”

Mullane © Central Hanover Tr Co.

(1950), 398 US 306 TOS Cr 652, „ LES

865. kh „ fundamenw! that the un

Retire and an opportunity to be

“must be granted at a meanngfu: ume and

i a meanngiul manner” Armstrong t

Manzo (1965) 380 US 545, 8c 187.

14 LEG 2462 The interests of the defend

ant and the state m an accurate asc r..

ment of facts upon which a sentence of

death may be gwen are at the mghest

leve, We are bound to adopt and adhere

te procedures which insure against the oF

berary deprivation of life

In these crcumstances. the opportutty

te respond to the factual informauen SUP

pled by the judges dete observations.

came after that factual informanon ©@®

used and the life or death decom e

opp » *as not meer

ingful n ome The opportunity to respond

_

*

*

—

STO T + STATE

int 563

Cue on 278 S £26 08 ine feet

“as Testricted lo a request to reconsider a

dectswn whech had alread: beer reached

ant pubhcly announced Much judicai

tom. and energy. fad already heen invested

„ arrmg at that decision One need only

compare the process of reaching 3 decision

with the process of retreating from a deer

son to appretiate the reality of the reste.

tor resulting from the procedure empinved

here In sum to permet the personal ob

servations of the judge the new matter to

be swept i at the last moment. without

pror notice. and to be used a« a erica!

part of the base for the sentencing court s

ce ee, & Contrary to my sense of far-

Jerry Lee STOUT. Appetiant

(Defendant Below)

STATE of Indiana. Appetice

(Plasntff Below)

Ne 783 8 259.

Supreme Court of Induna

July 1. 1985

Defendant was convicted in the Curcurt

Court Jennings County Larry J Great

house J. of burglary and theft and he

appealed The Supreme Court. Prentice. J

d that «li error m gn mstruction on

flight as ewsence of guilt was harmiess.

\2) protographs of recovered stoien items

were admasible (3) testimony of aceom

ü as te defendant » partewpation im pror

cowid testf\ regarding statements of third

Parte. wtoch caused hum to take certan

j Oh theft of gems from wetim s

home ond of gutomotule from wom s es

Page constituted only singe theft offense

and ©) consecutive sentence. were war

ranted

Affirmed m part. vacated im part. anc

remanded

Para J concurred m part and d

sented in part

1. Crememal Lew Gelb id). 11726

Trai court should not have gwen jury

instruction on fight as evdence of gen n

Ent of uncontradicted ewdence showing

that defendant surrendered to police and

Ghd not attempt te flee error was harm

less. however. m light of direct testemony

Question to be determ ned on case-Dy case

Search unless he produces other evidence

to show that Ne maintains degree of cor

over premses USCA Const Amend 4

4 Searches and Sesures 7:26)

Evidence that defendant stayed at res:

Gence of hus girifmenc “once m a while

was insufficent to bet de legitimate

expectation of privacy m reswence suff.

cent to give him standing to challenge

constituuonahts of t> search. defendant

Made no show ing that he had anv degree of

control over residence of amy part teren

USCA Const Amend 4

3 Cremenal Law Saas

Victom s dentification of photographs

* pictures of items er to those taken

from his home was effort te establish

velexancy and materulit, of photographs

m burglary prosecution fect that wenn

APPENDIX A

Page &

Coren oF Tee Nee Cocet

ano Count of Apresis *

O = er Clee

27 Sem Oust

wo 10845423

_ Thomas N.SMMA Schiro V. State of Indians

reme ©

— r

* 2 e

fi- |

ney os amy Appellants petition for Rehearing is hereby DENIED, without Opinion.

Givan.

Givan, C. J.. Prentice and Pivarnik. J., vote to deny. DeBruler, J.. votes to

grant. Hunter, J.. not participating.

Please acknowledge recep! of tha notce «© Order

thor ow record: may show thot you hove beer

netted of Hs. actor

WITNESS my come end the seo! of sod Court

on! doy or __ Sept 6 85

> Ww Fo iden

— A ⏑ ꝓ ——— —

APPENDIX B

Page 1

xX ¢ - SiA RY v

35-50-2-9. Death —— ~~ (a) The state may seek a

death sentence for mur by allecing, on a page separate from

the rest of the charging instrument, the existence of at least

one of the aggravating circumstances listed in the subsection

(>). Im the sentencing hearing after a person is convicted of

murder, the state must prove beyond a reasonable doubt the en-

istence of at least one of the aggravating circumstances alleged.

(>) The aggravating circumstances are as follows:

ti) The defendant committed the murder by intentionally

killing the victim while committing or attempting to commit

arson, burgiery, child molesting, criminal deviate conduct,

kidnapping, repe, of robbery.

(2) The 4efendant committed the murder by the unlawful

detonation of an explosive with intent to injure person or dam-

age property.

(3) The defendant committed the murder by lying in wait.

(4) The defendant who committed the murder was hire to

1111.

(S$) The defendant committed the murder by hiring another

person to 111.

(6) The victim of the murder was a corrections enployee,

fireman, judge, or law enforcement officer, and either (i) the

victim was acting in the course of duty or (ii) the murder was

motivated by an act the victim performed eme acting in the

course of duty.

(7) Tne defendant sas been convicted of another murder.

(6) The defendant has committed another murder, at any

time, regardless of whether he has deen convicted of that other

murder.

(9) The defendant was under a sentence of life imprisonment

at the time of the murder.

(10) The defendant was serving a term of imprisonment and on

the date of tne murder the defendant had twenty [25] or more

years remaining to be served before his earliest possible re-

lease date as defined oy IC 35-38.

(ec) The mitigating circumstances that may be considered

anger this section ere as follows:

1 The @efendant has no significant history of prior crim-

inei conduct.

(2) The defendan: was under the infleence of extreme mental

or emotional disturbance when he committed the murcer.

(2) Tne victim was a participant in, or consented to, the

def endant s conduct.

(4) The defendant was an accomplice in a murder committed

by another person, and the defendant's participation was rela-

tively minor.

15 The defendant acted under the substantial domination of

another person.

C-3

(6) The defendant's capacity to appreciate the criminality

of his conduct or to conform his conduct to the requirements of

law was substantially impaired as a result of mental disease or

defect or of intoxication.

6% Any other circumstances appropriate for consideration.

(6) If the defendant was convicted of murder in a jury

trial, the jury shall reconvene for the sentencing hearing; if

the trial was to the court, or the judgment was entered on a

ee the court alone shall conduct the sentencing bear-

ng. jury or the court may consider all the evidence intro-

duced at the trial stage of the proceedings. together with new

evidence presented at the sentencing hearing. The defendant may

present any additional evidence relevant to:

(1) The aggravating circumstances alleged; or

(2) amy of the mitigating circumstances listed in sub-

section (ic).

tel If the hearing is by jury, the jury shall recommend to

the court whether the death penalty should be imposed. The jury

may recommend the death penalty only if it finds:

(1) That the state has proved beyond a reasonable d@oubt

that at least one of the aggravating circumstances exists; and

(2) That any mitigating circumstances that exist are out-

weighed by the aggravating circumstance or circumstances.

The court shall make the final determination of the sentence,

after considering the jury’s recommendation, end the sentence

shall be based on the same standards that the jury was required

to consider. The court is not bound by the jury's recommenda-

tion.

(f) If a jury is unable to agree on a sentence recommenda-

tion after reasonable deliberations, the court shall discharge

—— jury and proceed as if the hearing had been to the court

alone.

(9g) rt the hearing is to the court alone, the court shall

sentence the defendant to death only if it finds:

(1) That the state has proved beyond a reasonable doubt

that at least ome of the aggravating circumstances exists; and

(2) That any mitigating circumstances that exist are out-

weighed by the aggravating circumstance of circumstences.

(h) dest sentence is subject to automatic review by the

supreme court. The review, which shall be heard under rules

adopted by the supreme court, shall de given priority over ali

other cases. The death sentence may not be executed until the

supreme court has completed its review.

[IC 35-50-2-9, as added by Acts 1977, . . 340, 6122 . . 336-

1983, 81.