Attorneys for Appellant Attorneys for Appellee
Steve Carter Monica Foster
Attorney General of Indiana Foster & Long-Sharp
Indianapolis, Indiana
Stephen R. Creason
Section Chief & Deputy Attorney General Brent Westerfeld
Office of Attorney General Indianapolis, Indiana
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__
In the
Indiana Supreme Court
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No. 49S00-0308-DP-392
State of Indiana,
Appellant (Plaintiff below),
v.
Charles Barker,
Appellee (Defendant below).
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On Petition For Rehearing
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May 4, 2005
Dickson, Justice.
The appellee/defendant Charles Barker seeks rehearing following our
decision in State v. Barker, 809 N.E.2d 312 (Ind. 2004). We decline
rehearing as to the issues addressed in our opinion. Barker, however,
asserts that our opinion did not specifically address his claimed violation
of Article 1, Section 19, of the Constitution of Indiana.
Barker raised the Section 19 issue in the trial court in memoranda
supporting his motion to dismiss the death penalty. This issue was not,
however, a basis on which the trial court granted his motion. Barker
nevertheless did reassert and discuss the issue in four paragraphs within
the argument section of his Brief of Appellee in this interlocutory appeal.
Brief of Appellee at 26. We will therefore address this claim.[1]
Barker contends that the United States Supreme Court's decisions in
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L. Ed. 2d 556 (2002),
and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. Ed. 2d 435
(2000), should alter the application of Article 1, Section 19 of the
Indiana Constitution, which provides: "In all criminal cases whatever, the
jury shall have the right to determine the law and the facts." We have
previously held that Section 19 does not apply to sentencing proceedings
and therefore is inapplicable in capital cases at the penalty phase.
Peterson v. State, 674 N.E.2d 528, 541 (Ind. 1996). He argues that now
that Ring and Apprendi treat aggravation and weighing as "elements"
requiring a jury trial, Peterson and prior cases on which it is based
should be overruled and that Section 19 should now be applied in penalty
phase proceedings, thus entitling a capital defendant to a jury
determination of his sentence. Because Indiana Code § 35-50-2-9(f) permits
a death sentence to be imposed by a judge alone in cases where the jury
cannot reach a sentencing decision, Barker claims that the death penalty
statute is facially unconstitutional under Section 19.
In our previous opinion we rejected Barker's claim that Indiana's
amended death penalty statute violates the federal Constitution because it
contains a provision, Ind. Code § 35-50-2-9(f), that permits a death
sentence to be imposed by a judge alone in cases where the jury cannot
reach a sentencing decision. Barker, 809 N.E.2d at 317. We specifically
held that such provision "is not unconstitutional as written, but that it
may not be constitutionally applied to permit a judge to impose a sentence
where a jury has been unable to decide whether the aggravating circumstance
or circumstances have been proven beyond a reasonable doubt." Id. And as
to occasions when a jury finds that one or more aggravators are proven
beyond a reasonable doubt but is unable to reach unanimous agreement on
whether any mitigating circumstances are outweighed by the aggravating
circumstances, such weighing is not a "fact" and thus does not require jury
determination. See Ritchie v. State, 809 N.E.2d 258 (Ind. 2004).
Barker does not present any showing that the framers and ratifiers of
the Indiana Constitution intended Section 19 to guarantee a jury
determination of facts and law with respect to sentencing factors. To the
contrary, it has been recognized for over a century that the right to jury
trial under the Indiana Constitution generally applies only to the finding
of guilt or innocence and not to the determination of punishment. Miller
v. State, 149 Ind. 607, 619, 49 N.E. 894, 898 (1898). To the extent that
our amended death penalty statute, as well as federal constitutional
jurisprudence, now require the aggravating circumstances used in sentencing
to be found by a jury, it may be that such facts are governed by Section
19. See Parker v. State, 698 N.E.2d 737, 742 (Ind. 1998), and Seay v.
State, 698 N.E.2d 732, 733 (Ind. 1998) (applying Section 19 to habitual
offender sentencing decisions that are assigned to juries by statute). We
decline, however, to extend the right of jury trial provided in Section 19
to the determination of "weighing," which is not a "fact" necessarily
requiring a jury decision under Indiana Code § 35-50-2-9(f). We decline
Barker's request that we overrule Peterson and reject his claim that
Indiana's death penalty statute violates Article 1, §19 of the Indiana
Constitution.
Having rejected Barker's claim of Indiana Constitutional violation, we
reach the same conclusion as our previous opinion now challenged by this
petition for rehearing. Accordingly, the trial court's order of June 27,
2003, finding that Indiana code §35-50-2-9 is unconstitutional and
dismissing the state's request for the death penalty, is reversed. We
remand for reinstatement of the State's death penalty request and for
penalty phase proceedings as previously ordered by this Court.
Shepard, C.J., and Sullivan and Boehm, JJ., concur. Rucker, J., concurs
except as to the decision to deny rehearing on the question of whether the
weighing requirement of Indiana's capital sentencing statute is a factor
that must be submitted to jury and proven beyond a reasonable doubt. On
this issue his view is expressed in Barker v. State, 809 N.E.2d 312, 319
(Rucker, J., concurring in result).
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[1] Baker's Brief of Appellee also asserted that the capital
sentencing statute's direction to provide special verdicts violates the
separation of powers doctrine under Article 3, Section 1, of the Indiana
Constitution. Brief of Appellee at 27-28. His petition for rehearing does
not request explicit consideration of this claim, and we deem the claim to
be abandoned and procedurally forfeited.