Appendix — Wilkes v. Indiana

e Court, U.S.

Super LED

091539 JUN 14 2010

No. OFFICE OF THE CLERK

In the Supreme Court of the United States

DANIEL RAY WILKES

Petitioner

STATE OF INDIANA,

Respondent

On Petition for a Writ of Certiorari

To the Indiana Supreme Court

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI

JOHN GOODRIDGE, ESQ.

Counsel of Record

915 Main Street, Suite 208

Evansville, Indiana 47708

rel. 812-426-0482

Counsel for Petitioner

rABLE OF APPENDICES

APPENDIX A — December 10, 2009

Decision of the Indiana Supreme Court

to

APPENDIX B — Trial Court

Chronological Case Summary of

August 27, 2007 — Denying Motion to

OEE TUPI oy cence dcusscenexcvccessbivawicrees 37

APPENDIX C — Sentencing Order

OE FUE EG Bocce ek iwc cn svntandeiscesssusskien 39

APPENDIX D — Trial Court

Chronological Case Summary of

March 18, 2008 — Denying Motion to

CE sa ret a ee ran ise ean Werk Son eee

APPENDIX E — Indiana Supreme

Court Order Denying Rehearing of

aren 16, 2010 ne eeccees. aS Ree rear OD enna. 48

APPENDIX A

IN THE

SUPREME COURT OF INDIANA

No. 10S00-0808-DP-453

DANIEL RAY WILKES, = Appellant (Defendant below)

Vv.

STATE OF INDIANA, Appellee (Plaintiff below).

Appeal from the Clark Circuit Court,

No. 10CO1-0705-MR-158

The Honorable Carl A. Heldt, Special Judge

On Direct Appcal

December 10, 2009

Boehm, Justice.

In this direct appeal, Daniel Wilkes appeals his

murder convictions and death sentence.

We Affirm Wilkes’s murder convictions and death

sentence.

Facts and Procedural History

In the spring of 2006, Daniel Wilkes met Donna

Claspell and Michael Baker while all three were being

treated at a drug rehabilitation center. After discharge,

Wilkes stayed with Donna and her two daughters, eight-

year-old Sydne Claspell and thirteen-ycar-old Avery Pike.

Wilkes told Baker that one night he awoke to find Avery

“hunching on his leg,” and that he and Avery then engaged

in mutual oral sex. Wilkes later admitted to molesting

Avery on a total of three or four occasions. On the evening

of April 23 or the early morning of April 24, Donna found

Wilkes and Avery together and told Wilkes that he would

have to leave the home.

Around eight o'clock the next morning, Donna's

neighbors observed Baker picking up Wilkes at the home,

and one heard Wilkes say something like, “I've got to get

out of here.” That night, according to Baker, Wilkes kept

looking out the windows and expressed concern that the

police would come for him.

On April 26, the bodies of Donna, Sydne, and

Avery were found 1n their home. Donna and Sydne were in

the master bedroom. Donna had sustained multiple injuries,

including a deep cut wound to the neck and blows to the

head from a hanuner and another blunt instrument. A knife

was found under Donna's shoulder. Sydne had died trom at

least twenty-seven blows to the head, back, and shoulders

trom a hammer head and claw. Avery was found in her

bedroom naked and face down on the bed. Her hands were

bound behind her back with a cord, her ankle was tied to

the bedpost, and she had been strangled with a piece of

clothing.

DNA and scrological tests were performed on

several items from Donna's home and also on clothing

Wilkes was wearing at the time of his arrest. Donna's blood

was found on the ball and claw of a hammer and on a level

found at the home, and also on a shirt and hat worn by

Wilkes. Sydne's blood was found on the claw of the

hammer and on Wilkes's shirt and her DNA was found on

Wilkes's shoe. Wilkes confessed to the murders under

circumstances described below.

Wilkes was charged with all three murders. The

State filed a death penalty request alleging as a statutory

agpravating circumstance of cach murder that Wilkes had

committed multiple murders and, as to Sydne, that the

victim was less than twelve years old.

The jury found Wilkes guilty of all three murders.

In the penalty phase, the jury found all four aggravating

circumstances and found = that the = aggravating

circumstances outweighed the mitigating circumstanccs,

but could not agree on a sentencing recommendation. After

discharging the jury, the trial court conducted the

sentencing. The court accepted the jury's findings and

independently found the aggravating circumstances and

that the aggravating circumstances outweighed the

mitigating circumstances. For cach murder, the trial court

sentenced Wilkes to death.

In this direct appeal, Wilkes challenges his

convictions and his sentence, arguing that:

I. The trial court erred in admitting transcripts

and recordings of four interviews in which he

acknowledged his guilt;

I]. The tnal court erred in admitting evidence

of his molesting of Avery, expert testimony

regarding a presumptive test for blood, and opinion

tesuumony on guilt;

HI. Indiana's death pcnalty statute violates the

Indiana Constitution's requirement of separation of

powers and the kederal Sixth Amendment; and

[V. Wilkes was not sentenced properly

I. Admissibility of Wilkes's Interviews

At tna! over Wilkes's objection, the State

introduced transcripts of four interviews in which Wilkes

acknowledged his guilt. A videotape of the first interview

and audio recordings of the other three were also admitted

Wilkes argues that the trial court erred in admitting these

because the interviews were yiven involuntarily in violation

of his right to remain silent.

Unlike the Federal Constitution, Indiana law

imposes on the State the burden of proving beyond a

reasonable doubt that a confession is voluntary. Lego v

Twomey, 404 U.S. 477, 4%8-89, 92 S.Ct. 619, 30 L.Fd.2d

618 (1972); Pruitt v. State, 834 N.b.2d 90, 114-15

(Ind.2005) (plurality); Miller v. State, 770 N.E.2d 763, 767

(Ind.2002); Owens v._ State, 427 N.b.2d &&%O, &XK4

(Ind.1981). In cvaluating a claim that a statement was not

given voluntarily, the trial court 1s to consider the “totality

of the circumstances,” including any clement of police

coercion, the length, location, and continuity of — the

Interrogauon; and = the maturity, education, physical

condition, and mental health of the defendant. Miller, 770

N.E.2d at 767. To determine that a statement was given

voluntarily, the court must conclude that inducement,

threats, violence, or other improper influences did not

overcome the defendant's free wall. Clark v. State, ®OK

not claim that bis intoxication caused him to be unaware of

his statements during the interview, and the detectives who

intcrrogated him testified that he did not appear intoxicated.

The trial court's ruling that Wilkes's interview was not

involuntary due to his intoxication is supported by

sufficient evidence.

2. Psychologically coercive interrogation methods

Wilkes argues that the Apnl 26 interrogation was coercive

because the detective insisted that Wilkes remembered the

crimes and supplied him with details even though Wilkes

repeatedly denied remembering the crimes. Wilkes argues

that his confession was involuntary because he merely

repeated back to the detective facts he learned during the

interrogation.

Certainly a confession in which the defendant

parrots detective-fed details of the crime may be less

reliable than one in which the defendant freely volunteers

his story in its entirety. But under Wilkes's circumstances,

the trial court had sufficient evidence to find that Wilkes

was not psychologically coerced. Because the exchange

was videotaped, the trial court was 1n a position to evaluate

demeanor.' The interrogation lasted five hours, and Wilkes

was provided with three cigarettes and a break for food. It

is true that the detective provided Wilkes with many details

of the crimes, but Wilkes also described details of the

crimes that were not provided by the detective. For

example, he stated that he had a flash of Donna lying on

her bed in a lot of blood before the detective told him that

Donna was found on her bed. Moreover, in the interviews

Wilkes identified instances when he was referring to police

suggestions rather than his own memory. Wilkes cites no

1 - ~ . : .

The videotape of the April 26 interview was admitted in

evidence but was not included in the appellate record

authority for his contention that supplying some facts to a

defendant renders the defendant's statement involuntary.

This Court has previously held that various interrogation

techniques-“good cop, bad cop,” providing a morally

acceptable answer, blaming the victim, and bargaining-do

not necessarily create an involuntary statement. Pierce v.

State, 761 N.E.2d 821, 824 (Ind.2002). Given all of these

considerations, the trial court's conclusion that the

interrogation method did not render Wilkes's interview

involuntary Is supported by more than sufficient evidence

3. Inconsistent statements. Wilkes cites to

inconsistencies in his April 26 interview as evidence that

his statements were not voluntarily given.” Inconsistencies

are a factor to be considered in determining whether a

statement is voluntary. Light v. State, 547 N.E.2d 1073,

1077 (Ind.1989). But inconsistencies can also be the

product of untruthfulness or evasiveness, and are not tn

themselves a strong indication of lack of voluntariness. The

trial court had the opportunity to view the videotape of the

interrogation and make a determination as to whether

Wilkes's will had been overcome. Again, given the

circumstances of this interrogation the trial court had

sufficient evidence to find that Wilkes's responses were

voluntary and that the jury could’ consider the

inconsistencies in determining whether to give the

Interview credit.

“For example, on page 40 of the interrogation transcript, Wilkes

said, “I did it.” On page 44, he said he did not know whether

Michael Baker did it. On page 45, he said he did it and then

claimed, “] don’t remember doing it.” On page 52, when asked

who killed Donna, he responded, ** Me, I guess.”’ Then he said, *

I don’t think I killed her.” ON page 53, he said, “] killed her |

guess. Later he suggested that Baker killed Donna

4. Promise of a_ cigarette. Wilkes requested

cigarettes severa] times during the April 26 interrogation.

Late in the interrogation, after Wilkes had already made

incriminating statements, he again asked for a cigarette.

The following exchange occurred:

WILKES: I need another cigarette, please. And we'll

talk.

* ok *

DETECTIVE: Are you going to tell me the truth if |

gct you a cigarette?

A: Yeah.

Q: Flat out bottom, no more lying. Will you do that?

A: Yes.

Q: Now, all | got to do is give you one more

cigarette?

A: Two

Q: I'll give you one. You tell me, then I'll give you

another one. But | want you to tell me the truth.

A: Ok.

Wilkes was provided with a cigarette, and the interrogation

continued on to topics such as Wlkes's job history, his

daughter, and his expenence with methamphetamine before

returning to the murders. Roughly seven minutes after

receiving the cigarette,’ when asked “what happened that

* Without the interview videotape, we cannot determine exactly

how much time passed between the offer of a cigarette and the

incriminating statements. Based on the transeript's length of 140

pages and the total interview time of 4 hours and 12 minutes,

each page covered an average of 1 1/2 to 2 minutes. The

incriminating statements were made 5 pages after receiving the

cigarette and 8 pages after the detective's offer.

LQ

night,” Wilkes said, “I did it ... [just remember hitting.”

Later, Wilkes was offered food and another cigarette.

[he offer of a cigarette specifically in exchange for

information could be vicwed as an inducement leading to

an involuntary confession. However, given the lapse in

time between the cigaretie and this admission and _ that

Wilkes had already admitted to having flashes of Donna in

a bloody bed and of Avery facedown and bound in her bed,

the tral court had sufficient evidence to conclude that

Wilkes's will was not overcome by the promise of a

cigarette. Sce Anderson v. Terhune. 467 F.3d 1208, 1213

(9th Cir.2006) (statement not involuntary when detectives

withheld cigarettes until defendant agreed to talk) (rev'd en

bane on other grounds, 516 F.3d 781 (9th Cir.2008)).

5. Wilkes's attempt to end the interrogation. Finally,

Wilkes argues that his April 26 interview was involuntary

because he attempted to end it several times before making

admissions. Wilkes points to the following phrases as

attempts to end the interrogation: “Well, I have, I'm still

high and you're going to go away,” “No | can end this

1

today with me, and I don't have to know shit,” and “I don't

want to talk about it no more. | don't want to think about it

Cause right now I'm still high.” After each statement,

Wilkes continued conversing with the detective.”

‘For example, after the latter statement, the dialogue continued

e

DETECTIVE: But, but don't you

WILKES: and I don't ...

Q: | understand that, but the truth 1s there

A: But I don't just don't want to know, that high and |

really don't want to think about it

QO: Ok, don't you want to get if You told me while azo

An assertion of the Miranda right to remain silent must be

clear and unequivocal. Clark, 808 N.E.2d at 1190. In

determining whether a defendant has asserted this right, the

statements are considered as a whole. /d. Mere expressions

of reluctance to talk do not invoke the right to remain

silent. /d@. ‘This Court has held several times that raising

doubts or expressing concern about continuing followed by

continued dialogue do not unambiguously assert the nght to

remain silent. /d.; Griffith v. State, 788 N.E.2d 835, 842

(Ind.2003) (‘I might as well not say anything more,”

followed by disclosure of information, did not invoke the

right to remain silent); Haviland v. State, 677 N.E.2d 509,

514 (Ind.1997) (‘I'm through with this,” followed by

continued dialogue did not unambiguously assert the right

to remain silent). Here, after cach of Wilkes's purported

attempts to end the interrogation, he continued to speak

with the detective. The trial court's conclusions that Wilkes

did not unequivocally assert his right to remain silent, and

that his further statements were voluntary, were supported

by sufficient evidence.

B. April 27 Interview

Wilkes argues that statements made in the course of his

Apnil 27 interview are inadmissible because the interview

was not preceded by a Miranda warning. The April 27

interview began at 2:35 a.m., less than four hours after the

April 26 interview ended.

you wanted to tell the truth, you wanted to get it off your

A: I think this time tomorrow morning, I'll be dead too

A similar claim was made by the defendant in Ogle v.

State, 698 N.E.2d 1146 (Ind.1998). in Ogle, the defendant

signed a waiver of Miranda rights and was questioned.

Questioning stopped for less than an hour, and then

resumed without a sccond Mirandizing. We noted:

Although it might be the better practice to

reiterate such warmminys after an interruption

of questioning, a readvisement 1s_ only

necessary when the interruption deprived the

suspect of an opportunity to make an

informed and intelligent assessment of his

interests. If the interruption is part of a

continual effort to investigate the suspect,

then the suspect's interests remain fairly

clear.

698 N.E.2d at 1149 (internal citations omitted); cf 2

Wayne R. LaFave et al., Criminal Procedure § 6.8(b) (3d

ed. 2007) (‘It is generally accepted that fresh warnings are

not required after the passage of just a few hours.’’).

Although the break in Ogle was shorter than the break here,

the interruption in Wilkes's interrogation was part of a

continuing investigation, and Wilkes's interests remained

clear. The trial court therefore did not err in admitting the

April 27 interview at trial.

C. April 28 Media Interview

After Wilkes was in custody, the media requested

an interview. The police presented Wilkes with a standard

media consent form, which he signed. The consent form

did not advise Wilkes of his right to counsel or of his right

to refuse the interview, although the line above Wilkes's

signature stated: “INMATE MAY WAIVE ATTORNEY'S

SIGNATURE BY SIGNING BELOW.” The officer who

provided the form to Wilkes testified that he did not know

whether Wilkes had a lawyer. Durnng the media interview,

Wilkes confessed to the murders and to molesting Avery.

Wilkes argues that he should have been advised of

his right to counsel before taking the media interview.

Wilkes cites Standard 8-2.1 of Part Il of the ABA

Standards for Criminal Justice, which suggests that officers

should not

exercise their custodial authority over an = accused

individual in a manner that is likely to result in ... the

interviewing by representatives of the news media of a

person in custody except on request or consent by that

person to an interview after being informed adequately of

the right to consult with counsel and the right to refuse to

grant an interview.

Recently in Ritchie v. State this Court discussed

whether Miranda warnings are required before media

interviews. 875 N.E.2d 706, 717 (Ind.2007). We concluded

that Miranda warnings are required only to overcome the

“inherently coercive and police-dominated atmosphere

inherent to a custodial interrogation,” and that “civilians

conducting their own investigation need not give Miranda

warnings.” Id.; see also 2 LaFave, supra, § 6.10(b) (“[I]t 1s

clear that Miranda does not govern interrogation by private

citizens acting on their own. This covers ... a newspaper

reporter....”). The ABA Standards have not been adopted in

Indiana. Unless and until] the ABA Standards have been

adopted and apply prospectively, we reaffirm our holding

in Ritchie and conclude that the trial court did not err in

14

rejecting Wilkes's claim that the media interview must be

excluded from evidence.

D. April 28 Interview

On Apnil 28, approximately thirty-seven hours after

his April 27 interview by police, Wilkes was questioned by

police a third time. This interrogation was preceded by

Miranda warnings. Wilkes argues that statements in this

interview were inadmissible because “the State failed to

prove it was free from the taint of the earlier statements.”

Because we find no taint in Wilkes's earlier interviews, we

conclude that the trial court did not err in admitting the

Apnil 28 interview.

ll. Evidentiary Issues

Wilkes claims three errors in the admission of

evidence at his tnal. As to two of these, we do not agree

that there was error, and as to the third we find that any

error was harmless.

A. Indiana Evidence Rule 404(b)

Indiana Evidence Rule 404(b) prohibits evidence of

other crimes, wrongs, or acts to “prove the character of a

person in order to show action in conformity therewith.”

However, the Rule expressly allows such evidence for

other purposes, including proof of motive. In this case,

Wilkes confessed to sexual activity with thirteen-year-old

Avery, and the State successfully sought to admit these

confessions as evidence relevant to Wilkes's motive for the

murders. Wilkes does not contend that this evidence 1s

irrelevant to motive. Nor does he claim that the prejudicial

effect of this evidence outweighs any probative value.

Rather, he contends that the corpus delicti rule bars proof

of his confession to child molesting.

In Indiana, a crime may not be proven based solcly

on a confession. Admission of a confession requires some

independent evidence that a crime was committed.

Workman v. State, 716 N.E.2d 445, 447 (Ind.1999). Wilkes

points out that there is no evidence other than his

confession that the crime of child molesting was

committed. Wilkes objected generally that his confessions

to sexual activity with Avery were inadmissible as prior

crimes or bad acts, but did not raise the corpus delicti point.

Although the issue 1s not preserved for appeal, we choose

to address It.

The corpus delicti rule docs not apply to evidence

of other crimes permitted by Evidence Rule 404(b). The

purpose of the corpus delicti rule 1s to prevent conviction

for a crime that did not occur. Sweeney v. State, 704

N.E.2d 86, 111 (Ind.1998); 1 Wayne R. LaFave,

Substantive Cnminal Law § 1.4(b) (2d ed.2003). That

purpose does not apply to evidence of crimes offered under

Rule 404(b) to cstablish motive or intent because there 1s

no danger of conviction for those crimes. Moreover, the

corpus delicti rule does not apply here because admission

under Evidence Rule 404(b) does not require proof

sufficient for conviction. Evidence of other wrongs or acts

is admissible if it 1s relevant to establish motive, intent,

identity, and the like, irrespective of whether there has been

a conviction. Prior crimes offered under Rule 404(b) need

not establish the crime beyond a reasonable doubt. See 22

Charles Alan Wnght & Kenneth W. Graham, Jr., Federal

Practice and Procedure § 5249, at 535 (1978) (addressing

16

the same issue under Federal Rule of Evidence 404(b)).

The same reasoning applies to other rules of sufficiency of

evidence, including corpus delicti. Accordingly, the tral

court correctly admitted Wilkes's confessed molestation of

Avery.

B. Indiana Evidence Rule 702(b)

Wilkes argues that it was error to admit

phenolphthalein test results because the State did not lay a

foundation explaining the test's reliability. Indiana

Evidence Rule 702(b) governs the admissibility of expert

scientific testimony. The Rule provides that expert

scientific testimony is admissible only if “the court is

satisfied that the scientific principles upon which the expert

testimony rests are reliable.” Reliability of a test may be

established by judicial notice or by a sufficient foundation

to establish reliability. Malinski v. State, 794 N.E.2d 1071,

1084 (Ind.2003). The trial court's decision to admit

scientific testimony under Rule 702(b) is reviewed for

abuse of discretion. Rondon v. State, 711 N.E.2d 506, 516

(Ind. 1999).

On the third day of a five-day guilt phase, the court

held a hearing on Wilkes's motion in limine to preclude the

State's witness from testifying that a stain from Wilkes's

shoe on April 26, 2006 tested “presumptive” for blood

using a phenolphthalein test. At the hearing, the witness,

who had been trained in the identification of body fluids

and had testified as an expert sixty times, testified that she

performed a phenojphthalein test that indicated the

“possibility” of the presence of blood in the stain. An

additional test would be required to determine whether the

substance was in fact blood. The witness further testified

17

that she had performed hundreds, perhaps thousands of

phenolphthalein tests and that the “majority of the time,” if

a presumptive test was followed by a definitive test for

blood, the latter confirmed the presence of blood. Here, no

additional test was performed to confirm that the stain on

Wilkes's shoe was blood because the quantity was

insufficient to do both a blood test and a DNA test. The

DNA test revealed that the stain was biological matter from

Sydne. After hearing this testimony, the trial court ruled

that the uncertainty of the phenolphthalein test went to its

weight, not its reliability, and allowed the witness to reprise

this testimony at trial.

When the expert did testify and presented her report

that the stain tested “presumptive” for blood, Wilkes made

no further objection. The State argues that Wilkes's failure

waived any error in permitting the expert to testify that the

stain tested presumptive for blood. The State 1s correct that

a failed motion in limine to exclude evidence ordinarily

does not climinate the requirement that a party must object

at the time the evidence is offered at trial to preserve the

issue for appeal. Brown v. State, 783 N.F.2d 1121, 1125

(Ind.2003). But this rule arises from cases where motions in

limine, as is usually the case, were made before trial. The

rule is derived from a desire to give the trial court the

opportunity to reconsider the ruling in light of subsequent

developments at trial. See id. Here the tnal court's ruling on

the motion was made after a mid-trial hearing and the

witness testified immediately after the hearing, so the

issucs were fully developed and fresh in the trial court's

mind. Under these circumstances we find the issue

preserved for apreal.

Although the issue is preserved, we find it without

merit. First, by far the most damaging part of this testimony

ls

<>)

was that Sydne's DNA was found in the stain. Whether it

was from blood or another source, Sydne died from over

twenty blows that left not only her blood but also other

tissue On a weapon found at this horrific scene. Second, and

cqually important, to the extent there was any sipnificance

to whether the stain was blood rather than some other

biological material bearing Sydne'’s DNA, the State's

witness explained that the test was only presumptive and

required confirmation to establish conclusively that the

stain was in fact blood. She also explained that a

presumptive test made it more probable than not that a

definitive test would confirm the presence of blood. The

test was therefore admissible evidence, if not conclusive,

on this point

(). kvidence Rule 704 (b)

Indiana Evidence Rule 704(b) prohibits witnesses

from giving opinions concerning guilt in a criminal case

Wilkes argues that a statement made by the detective

during the April 26 interrogation was an opinion of

Wilkes's guilt and should have been excluded

Before trial, Wilkes requested that the court redact

from the transcript “any statements made by the police that

implicitly or explicitly convey the officer's opinions

concerning Wilkes's intent, guilt or innocence....” The trial

court denied this motion. Wilkes renewed his objection at

trial, and it was overruled. At trial, a transcript of the Apri)

26 interrogation was admitted as an exhibit. The transcript

contained the following conversation

DETECTIVE BROWN: Mmm-hmm. Alricht

am [ bringing up any

Use of the form is necessitated by the Sixth

Amendment right to jury trial as applied to the two-phased

trial required by the death penalty statute. The Indiana

death penalty statute requires that one or more statutorily

identified “aggravating circumstances” be found betore a

defendant is eligible for the death penalty. 1.C. § 35-S0-2-

9(a). In this case, these circumstances were multiple

murders and a killing of a child under twelve years of age

The statutory provision for special verdicts 1s designed to

assure compliance with the federal constitutional

requirements announced in Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and

Ring v. Anzona, 536 U.S. 584, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002). These cases established that the Sixth

Amendment requires that the jury find all matters necessary

to enhance the punishment. Because the Sixth Amendment

to the Federal Constitution requires these jury findings, we

do not regard the statute as conflicting with the general

prohibition against special verdicts. Rather, it provides a

necessary step in determining whether the defendant 1s

eligible for the death penalty. We therefore accept the

provision for special verdicts as a proper means of

implementing the requirement that a Statulory agevravating

circumstance be found by a jury betore a defendant 1s

eligible for the death penalty

Under Indiana's death penalty statute, if the jury

makes a recommendation as to sentence, the trial court ts to

sentence “accordingly.” LC. § 35-S50-2-9(e). The following

- ‘ . ’ i S i+ 7 4s} ‘

subsection, 1.C. § 35-50-2-9(f). provides that 1f a jury is

unable to reach a recommendation as to penalty, the court

ie)

how hae

is to proceed “as if the hearing had been to the court alone.’

Wilkes argues that, as a matter of statutory construction,

this section does not allow the court to rely on the jury

findings as to aggravators or weighing. We agree that the

trial court must make its own determination whether the

aggravating circumstance is_ established beyond a

reasonable doubt and whether the aggravators outweigh the

mitigating circumstances.

We take the quoted language from subsection (f) to

mean the court is to sentence as it would have if the case

had been tried without a jury. We note that this Court

implicitly adopted that view in State v. Barker

It is thus conceivable that a penalty phase

jury could return a verdict finding one o1

more aggravators proven beyond = a

reasonable doubt, but be unable to reach

unanimous agreement on whether = any

mitigating circumstances are outweighed by

the aggravating circumstances. Where a jury

is thus unanimous in finding one or more

aggravating circumstances proven beyond a

reasonable doubt but unable to agree on a

sentence recommendation, Subsection 9%(1)

applics to instruct that the court shall

“discharge the jury and proceed as if the

hearing had been to the court alone.” In this

event the tnal court shall, based upon the

evidence presented to the penalty phase jury,

impose a sentence of death or life without

parole ... or if May Impose a term of years

S09 N.E.2d 312, 316 (Ind.2004). This does not imply that

tl

ae

the jury's findings as to aggravators or weighing are to be

disregarded. To the contrary, Apprendi and Ring require

that the jury find a statutory agyravating circumstance

Without this finding, the defendant's eligibility for the

death penalty is not established. and no _ further

consideration of the death penalty 1s required.

If the jury makes the requisite findings but cannot

agree On a recommended sentence, subsection ({) requires

the trial court to proceed “as 1f the hearing had been to the

court alone.” Subsection (g) requires the trial court to make

the findings identified in subsection (/ ) “[i]f the hearing 1s

to the court alone.” One of the findings described in

subsection (/ ) is that the State has proved beyond a

reasonable doubt that at least one statutory aggravator

exists. Subsection (/ ) also requires the trial judge to find

the aggravating circumstance established beyond a

reasonable doubt. The trial court here properly made these

subsection (/ ) findings. Wilkes thus received the benefit of

the requirement under the Sixth Amendment that the jury

find the aggravating circumstances, and also the Indiana

requirement that the trial judge independently arrive at the

same finding

Amicus curiae Marion County Public Detendet

Agency argues that the directive in subsection (f) to

proceed “as if the hearing had been to the court alone”

limits the trial court to imposing a term of years because

the tnal court is limited to a term of years in non-death

penalty and life without parole cases where it sentences

“alone.” Amicus also argues that the death penalty statute

creates a night to a jury determination of penalty, making a

new penalty phase the proper remedy 1f the jury fails to

make a recommendation. As we have explained, we think

the 2002 amendments were intended to conform Indiana's

7 7 AT 7 . | I 7 7 + ,

\ \ i Ap] a GI a Ll WINS A} LITRE

4 7 ‘ ] e 4 |

is been no waiver < iry trial. a jury must find the

2c Gaon ce ° > ¢ _ } + >? ] t.>

OTavating circumstances, Dut the death penalty statute

uiSO Nem S court sentencing to take place 1l a Jury has

< -\ 4 = ] +

yeen Waived. LC. § 35-50-2-9(d)-(e). We think that if the

y + ? ? 7 7.1 AMPS | + . * rT.

Yy T1inds aggravatl o circumstances but cannot agree on a

commendation, this statute merely permits the court t

ercise its sentencnu function “as if” the entire case had

er ¢ . } , | gat it s t } t the rejiire yent

4 Car VW | \ i iit CNUEIL IS |{ dt tne requirements

} ; si \ aie . . re — 1294 EN } t the

subsection (ft) apply. including the requirement that the

Tr ndenendenths { _— soravatina

a1 LAU LiL} enadentty i 1¢ v aYvVPTAaAVd

. | »S = | Wes Rut J 1CS 4 ‘ . ? vA “ ~~ ~ * ~ AS { \)

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\ le ~ > t is 8+

| ‘ 4 } ¢ ? |

Ol ! defendants e £ tie< ’ I

+. ’ ‘ + ‘ - . L,

atio vhich iC C Stature

tions ease I Ximum punishment. 536 U.S

< > cary } ‘ ; 1 + T

SY ».4 $l Wi1ilKeS TVvUeS | i undael Ring

must tind that ; ravators nitigators anc

leat propriate iddre d thi (

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is | ry tT '

,

( ' es

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» I Ose dcal mac

809 N.E.2d 258, 266 (Ind.2004), cert. denied, 546 U.S.

$28, 126 8.Ct. 42, 163 L.Ed.2d 76 (2005). We reaffirm that

IV. Sentencing Issues

if

A. Counsel S COnceSSION O} feyevravaiors a al

4

{geravators Outweighed Mitigators

Wilkes argues that the trial court erred in finding

that Wilkes conceded that all the aggravators were proved

beyond a reasonable doubt and the aggravators outweighed

the mitigators.

Statements by counsel in closing argument may be

sufficient to constitute admission of an aggravator. Trusley

v. State, 829 N.E.2d 923, 926 (Ind.2005) (counsel's

statement “that the victim of the crime was less than twelve

years of age” was an admission).

In opening statement and closing argument of the

penalty phase, defense counsel made several statements

that could be viewed as concessions. These include

We're not offering excuses or justifications

lor what happened. They're three innocent

people that were brutally murdered and

there's a weighing that the Court has

instructed you to do. When you take those

lives that were taken, there ts no-there ts no

mitigating evidence, there's nothing about

Danny's past or his upbringing that can

possibly ever outweigh those three lives that

rT

were lost

26

We offer no excuse for the conduct that

resulted in their hornfic death ... but you've

found him guilty of that and we acknowledge

that the basis for bringing this charge that

we'll ask you to recommend to the Court that

Danny Wilkes be executed 1s based on the

aggravating circumstances that ... more than

one person and one of those people under the

age of 12, that's what the aggravating

circumstances are in this case, and we think

there 1s nothing worse than that.

[W]e believe that the information that's been

provided to you through these witnesses

should convince you and will convince you

that Mr. Wilkes deserves to spend the rest of

his life in prison....

Like the death penalty, imposition of life without parole

requires a finding of a statutory aggravator and that the

aggravator outweighs mitigators. These statements of

counsel, like those in Trusley, are therefore sufficient to

constitute admissions to both multiple murders and a victim

under twelve years old, and also that the aggravators

outweighed the mitigators. The tnal court did not err in

finding that counsel conceded these issues. The jury found

these aggravators proved beyond a reasonable doubt and

also that they outweighed any mitigators. The trial court in

its sentencing order expressed its mdependent judgment

that the aggravators were proved and that they outweighed

the mitigators. Whether defense counsel conceded these

~

matiers is therefore of no significance.

B. Adjustment to Incarceration as a Mitigating

Circumstance

At his. sentencing hearing, Wilkes presented

evidence that he had adjusted to incarceration, behaved

well in prison, and could safely serve a sentence of life

without parole. Wilkes argues that the trial court was

required to consider this evidence as a _ mitigating

circumstance and that the court did not do so.

Wilkes cites Skipper v. South Carolina, 476 U.S. |,

4,106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) for the proposition

that adjustment to incarceration is a_ mitigating

circumstance that the trial court was required to consider

In Skipper, the trial court cxcluded cvidence of the

defendant's good behavior in prison. The Supreme Court

reversed and held that this evidence could not be excluded

from the sentencer's consideration because itt might have

served as a basis for a sentence less than death. /d. at 5, 106

S.Ct. 1669. The Supreme Court remanded for a new

sentencing hearing in which the defendant could “present

any and all relevant mitigating evidence that 1s available.”

Id. at 8, 106 S.Ct. 1669. We agree that Skipper established

that positive adjustment to incarccration 1s_ relevant

mitigating evidence and may not be excluded from the

sentencer's consideration. As the Court noted, this is an

application of the general rule that “the sentencer may not

refuse to consider ... any relevant mitigation evidence.” /d

at 4, 106 S.Ct. 1669 (quotation omitted) (citing Eddings v.

Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d |

(1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954,

57 L.Fd.2d 973 (1978)). More recently the Supreme Court

reaffirmed that “the sentencer may not be precluded from

considering, and may not refuse to consider, any

constitutionally relevant mitigating evidence.” Weeks v.

Angelone, 528 U.S. 225, 232, 120 S.Ct. 727, 145 L.Ed.2d

727 (2000); see also Tennard v. Dretke, 542 U.S. 274, 285-

87, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (discussing

Skipper with approval).

Unlike the defendant in Skipper, Wilkes was not

prevented from presenting this evidence to the jury.

Although the trial court is obligated to receive and consider

mitigating factors, the trial court 1s not obligated to accept

the defendant's contentions as to what constitutes a

mitigating circumstance or to give the proffered mitigating

circumstances the same weight the defendant dues. Gross v.

State, 769 N_E.2d 1136, 1140 (Ind.2002). Nor is the tria!]

court obliged to accept the opinions of experts. Thompson

v. State, 804 N.E.2d 1146, 1149 (Ind.2004). The trial court

is required to accept as mitigating a circumstance that is

established by the facts and as a matter of law is to be

considered. Anglemyer v. State, 868 N.E.2d 482, 490-91

(Ind.2007), reh'g granted, 875 N.E.2d 218 (Ind.2007). But

it 18 not reversible error to tail to consider a factor that 1s

not significant in relation to all the circumstances of the

case. Anglemyer, 875 N.E.2d at 220-21 (opinion on

rehearing).

Here, the trial court was required to consider all

evidence relevant to mitigation, which, as the Supreme

Court held in Skipper, includes evidence of positive

adjustment to incarceration. The jury heard this evidence

and found that the aggravating circumstances outweighed

the mitigating circumstances as a whole. After the jury was

unable to reach a recommendation as to the sentence, the

trial court independently evaluated the aggravating and

29

mitigating circumstances. With regard to the evidence that

Wilkes adjusted well to incarceration, the court's

sentencing order states:

Defense counsel suggests that a mitigating

circumstance 1s that the defendant can be

safely incarcerated and punished within the

Indiana Department of Corrections. The

Court does not find that this 1s a mitigating

circumstance.

We do not agree with Wilkes's contention that this

language demonstrates that the tnal court failed to consider

Wilkes's adjustment to incarceration as a mitigating

circumstance. The trial court used identical language in

response to the claim that Wilkes had no significant history

of prior criminal conduct, which has long been recognized

as a potential mitigating circumstance. We take these as

statements that the trial court weighed these proffered

mitigating circumstances and determined that in this case

neither was entitled to significant weight.

The court, like the jury, after hearing the proffered

evidence, ultimately concluded that the aggravating

circumstances outweighed the mitigating circumstances.

Under Skipper, this is all that 1s required. The court also

independently determined that the death sentence should be

imposed after considering all of the aggravating and

mitigating circumstances. Under the circumstances of this

case-a triple murder including two children-we cannot say

that the trial court abused its discretion.

30

C. Sydne's Age as an Ageravating Circumstance

Wilkes argues that his Sixth Amendment nghts

were violated because the fourth aggravating circumstance-

that one of the vicums was less than twelve years old-was

not found beyond a reasonable doubt by a jury. Wilkes

contends that the age of the victim was not an element of

murder so that issue was never presented to the jury or

returned in a verdict by proof beyond a reasonable doubt.

But during the guilt phase of trial, the State presented

undisputed evidence that Sydne was eight years old. At the

penalty phase, the jury returned a verdict form finding that

“the State of Indiana has proven beyond a reasonable doubt

the charged aggravating circumstance that ... the victim of

that murder, Sydne Claspell, was Iess than twelve (12)

years of age.” Evidence at the guilt phase may be

considered at the penalty phase. I.C. § 35-50-2-9(d) (“The

jury or the court may consider all the evidence introduced

at the trial stage of the proceedings....”). The evidence of

Sydne's age presented in the guilt phase was sufficient to

support the jury's finding in the penalty phase as to this

aggravating circumstance

D. Consideration of Other Criminal Acts

Wilkes argues that the trial court erred in

considering his molestation of Avery in determining

whether to find Wilkes's lack of scrious criminal history as

a mitigating circumstance. In its scntencing order the trial

court found

that the defendant had no prior felony

CONnVICcltiONS He did have five (5)

misdemeanor convictions, four (4) of which

were alcohol offenses. Ile was also charged

with felony non-support in the Pike Circuit

Court, which case was recently dismissed

because of the defendant's convictions 1n this

case. Finally, the defendant has admitted

that, prior to the date of the murders hercin,

and on one or more occasions, he committed

the crime of child molesting with regard to

victim Avery Pike

Wilkes contends that the corpus delicti” rul

precluded the trial court from considering his sexual

activity with Avery because no evidence other than hi

confession was offered to establish the sexual activity

As explained in Part II.A., supra, the corpus delicti

rule serves to prevent conviction for crimes that never

occurred. I[t does not prohibit consideration in sentencing

of facts admitted by the defendant. Uncharged crimes may

be considered in assessing “lack of criminal history” as a

claimed mitigating circumstance. Rouster_ v. State, 600

N.E.2d 1342, 1348-49 (Ind.1992). Similarly, relevant

evidence of another crime 1s admissible to rebut the

defendant's claimed lack of criminal history even if that

evidence may not be sufficient to support a conviction. The

trial court did not crr in considering Wilkes's admitted

sexual activity with Avery to rebut Wilkes's clammed lack of

criminal] history

Wilkes argues that this Court should remand for

resentencing because the trial court should have considered

as a mitigating factor the jury's inability to arrive at a

unanimous sentencing recommendation. Wilkes notes that

Indiana Code subsection 35-50-2-9(c)(8) permits the tnal

court to consider any other circumstances appropriate for

consideration as miltigators. He contends that the jury's

failure to recommend a sentence is a factor to be considered

in mitigation. The State responds that subsection (f) implics

that the jury's inability to recommend a sentence 1s

irrelevant because in that case sentencing “shall proceed as

if the hearing had been to the court alone.”

This Court has previously divided over this issue. In

Roche v. State, 596 N.E.2d 896 (Ind.1992), the jury was

discharged after being unable to reach a recommendation,

and the trial court imposed a sentence of death. [his Court

held that “[NJo meaning should be interpreted from the

jury's failure to reach a recommendation. Likewise, the

failure to reach a recommendation should not be considered

as a mitigating factor during the penalty phase.” Id. at &99

Justice DeBruler, joined by Justice Krahulik, dissented

reasoning that

the quandary of the jury represents at least

the senument of One conscientious juror,

who survived voir dire, who heard the

shocking evidence of sudden injury and

death, who voted for conviction, and finally

whose conscience could not support

imposition of the dcath penalty. In my

opinion, that sentiment cannot rationally be

rejected as a mitigating circumstance as

falling within the catch-all.... The weight of

itis not great, falling | would say in the low

range

death sentences are inappropriate.

Wilkes presented evidence regarding his character

As the trial court found, Wilkes has no prior felony

convictions. However, he did admit to drug use and to

molesting Avery on multiple occasions. Wilkes presented

evidence of a terrible childhood, including neglect, physical

abuse, sexual abuse, alcoholic parents, removal from the

home. and time in institutions. Wilkes also presented

evidence that he is addicted to several drugs and has

suffered from longstanding depression since th

eleven. Finally, Wilkes argues that he can |

rep

e age

x Safely

incarcerated and that his life has and will continue to show

“redeeming qualities,” such as helping others. We believe

that these factors have some mitigating weight, as does the

fact that the jury could not agree on a_ sentencing

recommendation. As in all sentencing, however, we give

considerable deference to the ruling of the trial court. We

cannot say that the death sentences in this case are

inappropriate. The nature of the offense is a tiple murder

of a mother and her two children. The murders. especially

of Donna and Sydne, were committed in a particularly

gruesome manner. We have upheld death sentences in

similar cases. E.g.. Ward v. State, 903 N.E.2d 946, 962-63

(Ind.2009) (upholding death sentence for “brutal and

savage slaying” and rape of fifteen-year-old girl); Baer \

State, 866 N.E.2d 752, 766 (Ind.2007) (upholding death

sentence for “brutal and savage slaying of a four-year old

and her young mother’)

Conclusion

SHEPARD, C.J., and SULLIVAN and RUCKER, JJ

concur

DICKSON, J., concurs in result with separate opinion

DICKSON, Justice. concurring 1n result

| concur except with respect to the Court's departure

from Roche v. State, 596 N.E.2d 896 (Ind.1992), and its

progeny. | continuc to believe that a jury's inability to reach

a unanimous sentencing recommendation 1s_ logically

unrelated to the defendant's conduct or personal

circumstances and thus is irrelevant as a consideration in

jatar ‘ hp . . +¥) 4 - a »+ +t

determining the appropriate sentence for a defendant

APPENDIX B

STATE OF INDIANA )

y QS

COUNTY OF CLARK

IN THE CLARK CIRCUIT COURT

CAUSE NO.” 10CQ!l-0705S-MR-OOLSS

STATL OF INDIANA

DANIEL RAY WILKES

CHRONOLOGICAL CASE SUMMARY

OF AUGUST 29, 2007

STATE BY STANLEY LEVCO AND DONITA

FARR; BARBAR WILLIAMS AND BILL DENTON

APPEAR ON BEHALF OF THE DEFENDANT

DEFENDANT WAIVES HIS RIGHT TO BE PRESENT

IN PERSON. CONFERENCE IS HELD IN THE GRAND

JURY ROOM, ON THE RECORD. COURT NOW

DENIES DEFENDANT'S MOTION TO SUPPRESS HIS

STATEMENTS. IF DEFENSE HAS ANY MOTIONS TO

SUPPRESS OR REDACT FROM ANY OF THE

DEFENDANT'S STATEMENTS MADE TO ANYONI

WHICH STATES REASONS FOR SUPPRESSION OR

REDACTION, OTHER THAN THE ONES ALREADY

STATED IN THE DENIED MOTIONS, THEY ARE TO

BE FILED ON OR BEFORE SEPTEMBER 14, 2007

7

OPPOSING COUNSEL, ANY PROPOSED

rRANSRIPTS OR ANY STATEMENTS THE

PROPOSE TO INTRODUCE INTO EVIDENC!

rRIAL ON OR BEFORE SEPTEMBER 14, 20)

STATE IS ORDERED TO PREPARE AND S

a

APPENDIX C

STATE OF INDIANA )

) SS

COUNTY OF CLARK )

ME CLARK CIRCUIT COURT

CAUSE NO. 10C01-0705S-MR-OOLSS

STATE OF INDIANA )

VS )

)

DANIEL RAY WILKES

SENTENCING ORDER

The defendant was tried by a jury before this Court

commending with jury selection on December 4, 2007, and

concluding the guilt phase on December 12, 2007. The

jury found the defendant guilty of all three (3) counts of the

charging information (Count I being the murder of Donna

Claspell. Count II being the murder of Av ery Pike. and

Count Ill being the murder of Sydne Claspell). The same

jury reconvened and evidence in support of aggravating

circumstances and mutigi aling circumstances was heard. On

December 14, 2007, the jury returned a unanimous finding

that the four (4) aggravating circumstances alleged by the

State of Indiana in the charging information were proved

beyond a reasonable doubt. The jury also unanimously

found that the ; ravating circumstances outweighed the

(TOT

pg 8

oS

um

stances which were heard. Finally, the

mitigating cire

40

jury was unable to reach a unanimous recommendation to

whether the defendant should be sentenced to death, like

imprisonment without parole, or a term of years. The Court

rescheduled a sentencing hearing and final sentencing

heanng for January 11, 2008, which on the defendant’s

motion was reset to this date, January 25, 2008.

A. AGGRAVTING CIRCUMSTANCES

With regard to aggravating circumstances, the jury

unanimously found by their verdict after the guilt phase of

the trial, that the first three aggravating circumstance set

forth below were proved beyond a reasonable doubt. After

the penalty phase of the trial, the jury unanimously found

all four of the aggravating circumstances set forth below

were proved beyond a reasonable doubt. In addition, the

defense, during the penalty phase of the trial, conceded that

all of the aggravating circumstances set forth below were

proved beyond a reasonable doubt. Finally, the Court,

having heard the evidence presented in both the guilt and

the penalty phase, as well as argument from the attorneys,

independently finds that all of the following aggravating

circumstances were proved beyond a reasonable doubt.

l. The defendant, Daniel Wilkes, committed

another murder other than the murder alleged in Count | of

the information, to wit: the murder of Avery Pike and the

murder of Sydne Claspell,

im The defendant, Daniel Wilkes, committed

another murder other than the murder alleged in Count IT of

the information, to wit: the murder of Donna Claspell and

the murder of Sydne Claspell.

4]

é The defendant, Daniel Wilkes, committed

another murder other than the murder alleged in Count III

of the information, to wit: the murder of Donna Claspell

and the murder of Avery Pike.

4. The defendant, Danic] Wilkes, committed

the crime of murder as alleged in Count III of the

information and the victim of that murder, Sydne Claspell,

was less than twelve (12) years of age.

None of the other aggravating circumstances

enumerated by statute are applicable to this case, and none

other were considered by the Court. Nothing except as

previously indicated in paragraphs 1, 2, 3, and 4, above,

was considered in aggravation.

B. MITIGATING CIRCUMSTANCES

All of the statutory mitigating circumstances and

other mitigating circumstances presented by the defense

were reviewed and considered by the court, and the Court

finds as follows with regard to those circumstances:

l. The defendant has no significant history of

prior criminal conduct.

The Court finds that the defendant had no pnor

felonies. He did have five (5) misdemeanor convictions,

four (4) of which were alcohol offenses. He was also

charged with felony non-support in the Pike Circuit Court,

which case was recently dismissed because of the

defendant's convictions in this case. Finally, the defendant

has admitted that, prior to the date of the murders herein,

and on one or more occasions, he committed the crime of

child molesting with regard to victim Avery Pike, age

fourteen (14). [The Court does not find that this 1s a

mitigating circumstance.

42

2. The defendant was under the influence of

extreme emotional disturbance when the murder was

committed.

The Court finds that the defendant was suffering

some mental and emotional disturbance when the murder

was committed, including depression, alcohol and other

substance dependence, mixed personality disorder, and

psychological stressors. This is a mitigating circumstance

which should be given some weight.

3; The victim was a participant in or consented

to the defendant’s conduct.

There is no evidence to support this mitigating

circumstance. The victims were murdered in their beds,

and were defenseless. The Court finds that this mitigating

circumstance does not exist.

4. The defendant was an accomplice in a

murder committed by another person, and the defendant’s

participation was relatively minor.

There 1s no evidence to support this mitigating

circumstance, and the Court finds that it docs not cxist.

5. The defendant acted under the substantia!

domination of another person.

There is no evidence to support this mitigating

circumstance, and the Court finds that it does not exist.

6. The defendant’s capacity to appreciate the

criminality of the defendant’s conduct or to conform that

conduct to the requirements of the law was substantially

impaired as a result of mental disease or defect or

intoxication.

The Court finds that the defendant was apparently

intoxicated prior to the time that the murders were

committed, and that the defendant had the metal conditions

recited above in paragraph 2. However, the court docs not

A

find from the evidence that any of these conditions

substantially impaired the defendant’s capacity to

appreciate the criminality of his conduct or to conform that

conduct to the requirements of the law. Therefore, this 1s

not a mitigating circumstance.

ae The defendant was less than eighteen (18)

years at the time the murder was committed.

There 1s no evidence to support this mitigating

circumstance, and the court finds that it does not exist.

8. Any other circumstances appropriate for

consideration.

The evidence supports the finding that the

defendant’s developmental upbringing was unstable,

abusive and neglectful. The Court finds that this is a

mitigating circumstance which should be given some

weight.

Defense counsel suggests that a mitigating

circumstance is that the defendant can be safely

incarcerated and punished within the Indiana Department

of Corrections. The Court docs not find that this is a

milgating circumstance.

The court finds no other mitigating circumstances.

The Court has considered the issue of whether the

jury’s inability to arrive at a unanimous decision with

regard to the penalty in this case should be considered by

the Court 1n deciding the defendant’s sentence. In Roche v.

State, 596 N.E.2d 896, 899 (Ind. 1992), the Indiana

Supreme Court held that a jury’s inability to reach a

recommendation “should not be considered as a mitigating

factor during the penalty phase” of a capital trial. In a

concurring opinion in Roche, Justice DeBruler and Justice

Krahulik disagreed, stating that a jury’s indecision could be

a mitigating circumstance because “the quandary of the

44

jury represents at least the sentiment of one conscientious

juror, who survived voir dire, who heard the shocking

evidence of sudden injury and death, who voted for

conviction, and finally whose conscience could not support

the imposition of the death penalty.” This position was

shared by Justice Sullivan:in his concurring opinion in

Burris v. State, 642 N.E.2d 961, 970 (Ind. 1994), wherein

he states “that one or more members of the ‘conscience of

the community’ assembled to review the propriety of the

death penalty believes that it should not be imposed is, in

my view, a circumstance appropriate for consideration .. . .

eee “Justice Sullivan and Justice Rucker, while

concurring and dissenting in Dunlop v. State, 724 N.E.2d

592, 598, 600 (Ind. 2000), found that the inability of a jury

to make a unanimous recommendation should be a

consideration 1n a case involving life imprisonment without

parole.

It is possible that the rule stated in Roche could be

revisited by the Indiana Supreme Court as a result of

certain changes which have occurred with regard to

standards and procedures in capital cases. The first of thee

changes is the narrowing of the trial court’s permitted

considerations in determining an appropriate penalty, to the

point where it is difficult to determine what standard is to

be used. In Bivens v. State, 642 N.E.2d 928, 955 (Ind.

1994), the Supreme Court stated that the only aggravating

circumstances eligible for consideration in a death penalty

case are those specified in the death penalty statute and

alleged by the State of Indiana in the charging information.

The aggravating circumstances required to support a

sentence of death are the same as those required to support

a sentence of life imprisonment without parole. If those

aggravating circumstances are proved, and are proved to

45

outweigh any mitigating circumstances, then a penalty of

death or life imprisonment without parole is permitted. The

issue then becomes how to choose between the two, or

between those two and a term of years. Guidance on this

issue 1s limited.

Secondly, Indiana’s capital sentencing scheme was

modified in 2002, when the legislature amended the

applicable statute to provide that the jury’s

recommendation with regard to the penalty in capital cases

is binding upon the Court, rather than advisory.

In view of both of these developments, it could be

argued that the indecision of a jury on whether the death

penalty should be Imposed should be a consideration for

the Court. However, notwithstanding such possible

arguments to the contrary, the law in Indiana that presently

exists is clearly stated in Roche, which provides that the

inability of the jury to recommend a penalty in a capital

case should not be considered by the Court. Therefore, this

Court cannot and has not considered that fact in making its

decision

The issue that remains is the appropriate sentence 1n

this case, considering the circumstances of the defendant,

his background, and the crimes that he committed, which

crimes were the murders of three (3) people, including an

eight (8) year old child. After consideriny all of the factors,

the Court concludes that the appropriate sentence for the

defendant is the highest penalty provided by Indiana law

for these crimes, that being the sentence of death.

Consequently, for the defendant’s murder of Donna

Claspell under Count I, for the defendant’s murder of

Avery Pike under Count II, and for the defendant’s murde:

of Sydne Claspell under Count III, the Court now sentences

the defendant to death in the manner prescribed by law

46

The court now sets January 25, 2009, as the initial date for

execution of sentence

The Court now remand s the defendant to the

custody of the Indiana Department of Correcuon, which ts

ordered to hold the defendant in an appropriate facility. A

copy of this Sentencing Order shall be forwarded to the

Indiana Supreme Court Administrator’s Office, the

Vanderburgh County Prosecuting Attorney, the defendant

the defendant’s attorney of record, the defendant’s

appellate counsel, the Indiana Attorney General, the

Commissioner of the Indiana Department of Correction, the

warden of the Indiana Department of Correction institution

where the defendant is to be confined, and the Indiana State

Public Defender. The Clerk of this Court 1s ordered to

forward a copy of this order to the Indiana Supreme Court

Admiunistrator’s office with a certification by the Clerk that

the parties listed herein were severed a copy of the same

The court reporter and Clerk are hereby authorized

to begin preparation of the record on appcal

This casc 1s bcing subjcct to automatic appeal, and

the Court having found the defendant js financially unable

to employ an attorney, the Court now appoints John

(Cjoodridge as defendant’s appellant counscl, finding that

said attorney 1s qualificd as appellate counscl in a capital

case pursuant to Rule 24(J) of the Indiana Rules of

Crimina! Procedure.

SO ORDERED, ADJUDGE AND DECREED this

34° day of January, 200%

C'arl A. Heldt

Carl A. Heldt, Special Judge

Clark Circuit Court

7

\PPENDIX |