Laux v. State

Attorney for Appellant Attorneys for Appellee
C. Robert Rittman Steve Carter
Marion, Indiana Attorney
General of Indiana

Nicole M. Schuster
Deputy Attorney General
Office of Attorney General
Indianapolis, Indiana

In the
Indiana Supreme Court
_________________________________

No. 27S00-0303-CR-104

Frederick A. Laux,
Appellant (Defendant below),

v.

State of Indiana
Appellee (Plaintiff below).
_________________________________

Appeal from the Grant Superior Court, No. 27D01-0202-MR-28
The Honorable Gary L. Thompson, Judge
_________________________________

Direct Appeal
_________________________________

February 2, 2005

SHEPARD, Chief Justice.

A jury found appellant Frederick A. Laux guilty of murder, felony
murder and burglary resulting in bodily injury. The court sentenced him to
life without parole, plus twenty additional years for the burglary count.
On appeal, Laux makes one claim warranting relief: that a no-contact order
was improperly incorporated into his sentence. We otherwise affirm.

Facts and Procedural History

In June 2001, Heidi Laux separated from her husband Fred Laux, moved
with her two daughters from Anderson to Marion, and began divorce
proceedings. Soon thereafter, Laux also relocated to Marion, and moved
into a house situated less than one mile from Heidi. On November 19, 2001,
the divorce became final. On the following Valentines Day, February 14,
2002, Laux personally delivered a rose and card to Heidi at her place of
work. Heidi gave the rose to a friend, disposed of the card, and told Laux
what she did with his offerings.

The next day, Heidi and Laux agreed to attend a dance sponsored by
Heidi’s employer. Laux had the daughters for weekend visitation and
brought them with him to the dance. During the dance, Laux became
increasingly suspicious that Heidi was involved with a co-worker. Laux
left the dance around 8:00, went home, and played cards with his daughters
before going to bed. Around 3 a.m. the following morning, Laux awoke and
decided to “fix” Heidi. He dressed in two pairs of sweatpants, a
sweatshirt, gloves, a hat, and a ski mask. He collected a flashlight and a
crowbar and ran to Heidi’s house.

Upon arrival, Laux used the crowbar to pry open a coal chute and gain
entrance to Heidi’s house. He entered the basement through the chute and
made his way upstairs. Laux proceeded to Heidi’s bedroom, struck her three
times with the crowbar, strangled her, and left. She died from her
injuries within twenty minutes.

The State charged Laux with murder,[1] felony murder,[2] and burglary
resulting in bodily injury.[3] It later requested a sentence of life in
prison without parole. After a three-day trial, the jury found Laux guilty
on all counts and recommended life in prison without parole. The trial
court merged Laux’s murder and felony murder convictions and sentenced him
to life in prison without parole for the murder and a consecutive term of
twenty years for the burglary. It also ordered that Laux was to have no
contact with Heidi’s family.

I. Constitutional Questions

In an assortment of arguments, Laux contends that Indiana’s death
penalty statute is unconstitutional because the jury need not find all
elements of the alleged crime. More specifically, he contends that Ring v.
Arizona, 536 U.S. 584 (2002), and the Sixth Amendment require the jury to
find beyond a reasonable doubt that the aggravating factor(s) outweigh any
mitigating factors before death or life without parole (LWOP) may be
imposed. Recently, we directly addressed his contention in Ritchie v.
State, 809 N.E.2d 258, 268 (Ind. 2004):

[T]he Indiana Death Penalty Statute does not violate the Sixth
Amendment as interpreted by Apprendi and Ring. Once a statutory
aggravator is found by a jury beyond a reasonable doubt, the Sixth
Amendment as interpreted in Ring and Apprendi is satisfied. Indiana
now places the weighing process in the hands of the jury, but this
does not convert the weighing process into an eligibility factor. The
outcome of weighing does not increase eligibility. Rather, it fixes
the punishment within the eligible range. It is therefore not required
to be found by a jury under a reasonable doubt standard. And as a
matter of Indiana state law, under the Indiana death penalty statute
the weighing process is not subject to a reasonable doubt standard.
That second step, consistent with the view we expressed in Bivins,
is in part a determination whether to impose the maximum sentence
allowed. That is an exercise in judgment that is not capable of
evaluation beyond a reasonable doubt, and our statute properly omits
any standard by which it is to be measured.

Laux’s constitutional arguments failed on these grounds.

II. Appropriate Procedures for No-Contact Order

As a part of Laux’s sentence, the trial court ordered him to cease
contact with Heidi’s family, including Heidi’s parents and Heidi and Laux’s
children. Laux contends that the inclusion of the order was improper and
contravenes Indiana statutory law. We agree.

Indiana’s statutory sentencing scheme specifies the penalties for
various classes of offenses and grants trial judges some discretion.
“While the judge is vested with broad discretion in sentencing, he must act
within statutorily prescribed limits.” Douglas v. State, 464 N.E.2d 318,
320 (Ind. 1984).

The trial court sentenced Laux in accordance with the statutes
governing the crimes he committed. The general penalty for murder is “a
fixed term at fifty-five (55) years, with not more than ten (10) years
added for aggravating circumstances or not more than ten (10) years
subtracted for mitigating circumstances; in addition, the person may be
fined not more than ten thousand dollars ($10,000).” Ind. Code Ann. § 35-
50-2-3(a) (West 1998). Indiana’s death penalty statute, Indiana Code § 35-
50-2-9, authorizes either a sentence of death or life in prison without
parole upon satisfying the requirements of the statute. Similarly, the code
declares that the penalty for burglary as: “a fixed term of ten (10) years,
with not more than ten (10) years added for aggravating circumstances or
not more than four (4) years subtracted for mitigating circumstances; in
addition, he may be fined not more than ten thousand dollars ($10,000).”
Ind. Code. Ann § 35-50-2-5 (West 1998). By their own terms, these statutes
do not authorize imposition of a no-contact order as part of an executed
sentence. Had the court suspended part of the sentence for either crime,
of course, it could certainly have conditioned that suspension on no
contact.

To be sure, the trial court was hardly without the power to grant
protection for Heidi’s family and the children. Indiana’s statutes
provide a mechanism by which a victim may obtain a no-contact order. The
legislature has created a variety of protective arrangements, recently
revised to meet the various circumstances where a court order may be
useful. See Ind. Code Ann. § 5-2-9-5 (West 1998) (listing various forms of
protection, along with statutory cites.)

III. Double Jeopardy

After the jury returned guilty verdicts on all three counts, the
trial court merged the murder and felony murder counts and sentenced Laux
to life without parole for murder. It imposed a consecutive term of twenty
years for burglary as a class B felony. Laux contends that this sentence
violates double jeopardy principles.

The Double Jeopardy Clause states that no person shall be “subject
for the same offence to be twice put in jeopardy of life or limb.” U.S.
Const. amend. V. This clause “yields three protections: (1) protection
from reprosecution for the same offense after an acquittal; (2) protection
from reprosecution for the same offense after conviction; and (3)
protection from multiple punishments for the same offense.” Kennedy v.
State, 674 N.E.2d 966, 967 (Ind. 1996) (citing North Carolina v. Pearce,
395 U.S. 711, 717 (1969) (overruled on other grounds)).

Laux makes what we understand to be two separate arguments under the
rubric of double jeopardy.

First, Laux argues that his conviction for both felony murder and the
underlying felony violates double jeopardy because it effectively punishes
him twice for the same conduct. (Appellant’s Br. at 28-30). Quoting from
Kennedy, Laux argues that “a conviction and sentence for both felony murder
and the accompanying felony violates double jeopardy because the conviction
for murder while in the commission of a felony could not occur without
proof of the accompanying felony.” Id. at 967.

Had Laux in fact been convicted and sentenced for felony murder, he
would be entitled to relief. This is not what occurred. The trial court
merged the felony murder conviction and the intentional murder conviction
and entered judgment only for the latter. Under these circumstances, there
is no double jeopardy violation. Carter v. State, 750 N.E.2d 778, 781
(Ind. 2001) (stating that “a jury verdict on which the court did not enter
judgment for one reason or another (merger, double jeopardy, etc.) is
unproblematic.”); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (citing
to six other cases reaching the same conclusion); Moore v. State, 652
N.E.2d 53, 59-60 (Ind. 1995).[4]

Second, Laux argues that his sentence violates double jeopardy because
the burglary was considered as an aggravating circumstance in the
sentencing under Ind. Code § 35-50-2-9 (West 1998). (Appellant’s App. 28-
30). We disagree.

In Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), we observed that
the “facts necessary to establish the (b)(1) aggravating circumstance serve
to narrow the eligibility for the penalty and are not identical to the
elements of the crime.” Id. at 1165 (citing West v. State, 755 N.E.2d 173,
186 (Ind. 2001)). Because the felonies listed in Ind. Code § 35-50-9-
2(b)(1) are not elements of the crime, but rather a list of permissible
aggravators, they essentially serve a function analogous to sentencing
enhancements. The statute thus indicates only what felonies are
permissible to consider in imposing life without parole.

We have already implicitly accepted that sentencing aggravators do not
constitute double jeopardy violations. In Bivins v. State, 642 N.E.2d 928
(Ind. 1994), we let stand both a death sentence, and a conviction and
sentence for robbery that was used as an aggravator in sentencing Bivins
under the death penalty statute. Id. at 949. In Bivins, the only double
jeopardy violation we found to exist was the sentence and conviction for
theft that was, itself, a lesser charge contained in the robbery
conviction. Id.

The Supreme Court has repeatedly held that courts may consider past
and concurrent criminal conduct in enhancing sentences. In Witte v. United
States, 515 U.S. 389 (1995), the Court reiterated that the “use of evidence
of related criminal conduct to enhance a defendant’s sentence for a
separate crime within authorized statutory limits does not constitute
punishment for that conduct within the meaning of the Double Jeopardy
Clause.” Id. at 399. In so doing, the Court upheld the “taking [of] the
circumstances surrounding a particular course of criminal activity into
account in sentencing for a conviction arising therefrom.” Id. at 400.
Similarly, the Court has upheld the consideration in sentencing of conduct
underlying criminal charges of which the defendant was acquitted. See,
e.g., United States v. Watts, 519 U.S. 148, 152-54 (1997) (per curiam).[5]
In the context of double jeopardy, then, Ind. Code § 35-50-9-2(b)(1) does
nothing more than restrict the scope of the trial court’s discretion in
considering the circumstances surrounding a crime to the examination of
those specifically listed in the statute.

We acknowledge that Woods v. State, 547 N.E.2d 772 (Ind. 1989)
concluded that a sentence for robbery violated double jeopardy when it was
used as an aggravator to sentence the defendant to death. Id. at 795.
However, Woods reached this conclusion based on the premise that the
“commission of a robbery is an essential element of the aggravating
circumstance of committing an intentional killing in the course of
committing a robbery.” Id. We have since rejected this view of the
aggravating factors listed in Ind. Code § 35-50-2-9, see, Overstreet, 783
N.E.2d at 1164-65, and therefore believe that insofar as it relates to
double jeopardy, Woods was flawed.

Because “taking into account conduct related to the offense of
conviction in sentencing is not the same thing as holding the defendant
criminally culpable for that conduct,” United States v. Dawn, 129 F.3d 878,
884 (7th Cir. 1997), and because the (b)(1) aggravators are not elements of
a crime, we conclude that the use of the class B burglary conviction as an
aggravating factor in sentencing Laux to life without parole, as well as
the sentencing of Laux to life without parole and twenty years for the
burglary, did not violate the principles of double jeopardy.[6]

IV. Laux’s Request for Sentencing Revision

On October 24, 2003, we remanded this case to the trial court for a
new sentencing order that complies with the requirements of Indiana Code §
35-50-2-9. (Appellant’s Supp. App. at 18-20). See, Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995) (section 9 requires judicial sentencing order
specifying aggravating and mitigating circumstances and articulating facts
in support of each); Ajabu v. State, 693 N.E.2d 921, 940 (Ind. 1998) (same
requirements apply for LWOP sentencing order). Our order read in relevant
part: “The appellant is also to file any supplemental brief raising new
claims of error associated with the revised sentencing order within forty-
five days from the date the revised sentencing order is entered.”
(Appellant’s Supp. App. at 19).

In his supplemental brief, Laux requests that we revise his sentence
of life in prison. (Appellant’s Supp. Br. at 8-9). In 2002, the General
Assembly altered in important ways the relative roles of judge and jury
under Indiana Code § 35-50-2-9, effective for sentencings conducted after
June 30, 2002. We have not yet resolved the effect of these amendments on
the sentencing role of the trial judge, the present requirements for
sentencing orders, or the standard of appellate review. The parties have
not argued any issues arising from the 2002 amendments. We thus reserve
judgment on such questions and pursuant to paragraph number 3 of our remand
order, we review Laux’s claim on the merits.

Indiana Code § 35-50-9-2(l) provides that before life imprisonment
without parole may be imposed as a sentence the jury must find that: “(1)
the state has proved beyond a reasonable doubt that one (1) of the
aggravating circumstances listed in subsection (b) exists: and (2) any
mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances.”

On remand, the trial court’s sentencing order clearly identifies that
one of the aggravating factors listed in subsection (b) was proven beyond a
reasonable doubt. Specifically, the trial court found that the state had
proven the aggravating factor provided in Ind. Code § 35-50-9-2(b)(1)(B):
that the “defendant committed the murder by intentionally killing the
victim while committing or attempting to commit . . . . Burglary.”
(Appellant’s Supp. App. at 7)(the court specifically found “[t]hat the
state proved beyond a reasonable doubt that the Defendant committed the
murder while committing burglary.”).[7] The trial court further stated
that the State had proven that the killing was intentional. (Appellant’s
Supp. App. at 8-9). This is sufficient to satisfy the general requirement
that the state prove beyond a reasonable doubt the existence of at least
one aggravating factor.[8]

As for the court’s finding that the aggravating factor outweighs any
mitigating factors, Laux contends that the single aggravator charged was
insufficient to support his sentence given the finding of a mitigating
factor.[9] (Appellant’s Supp Br. at 5-8). Specifically, Laux argues that
his lack of significant prior criminal history outweighs the sole
aggravator. Id. We do not agree.

Although the trial court did find as a mitigating factor that Laux
lacked a significant prior criminal history (Apppellant’s Supp. App. at 9),
the court was under no obligation to assign that factor any particular
weight. As we have previously held, it is “the decision of the trial court
to decide what weight mitigating factors are to be given.” Kingery v.
State, 659 N.E.2d 490, 498 (Ind. 1995). See also Bunch v. State, 697
N.E.2d 1255, 1258 (Ind. 1998). In this case, the trial court considered
Laux’s lack of prior criminal history, but in balancing the aggravating
factor with this mitigating factor concluded that “the breaking and
entering of the victim’s home at approximately 3:00 a.m. with the intent to
commit battery with a deadly weapon, is so onerous that it completely
outweighs the mitigating circumstance.” (Appellant’s Supp. App. at 9). In
short, as Justice Boehm once wrote, the trial court did what “it was
entitled to do,” it “considered [Laux’s] lack of prior criminal history but
declined to accord it significant weight.” Bunch, 697 N.E.2d at 1258.

The record supports the trial court’s conclusion that the aggravator
outweighed any mitigating circumstances. Laux woke up in the middle of the
night believing that he had to “fix” – murder – his ex-wife. In order to
accomplish that goal, he dressed himself in dark clothes and a put on a
dark face mask. He then ran to his ex-wife’s home and broke into her home
through the basement in the dead of night. Laux entered her bedroom where
she was sleeping and struck her three times in the head with a crowbar
before he finally strangled her. Laux then returned home and took steps to
conceal his crime, both from his daughters, whom he had left alone in order
to commit the murder, and the police.

Given the brutality of the crime, a brutality which Laux’s counsel
appropriately acknowledges, (Appellant’s Supp. Br. at 8), we are not
persuaded that the trial court and the jury were wrong in concluding that
the high culpability embodied in the single aggravator outweighed Laux’s
lack of prior criminal history.

Laux also requests that we reduce his sentence in order to “bring it
into line with the interests of justice.” (Appellant’s Supp. Br. at 9).
Indiana Appellate Rule 7(B) permits this Court to “revise a sentence
authorized by statute if, after due consideration of the trial court's
decision, the Court finds that the sentence is inappropriate in light of
the nature of the offense and the character of the offender.”

In making this request, Laux points out that he has “no prior record
of any criminal offenses or history of violent acts,” that he has been
“consistently employed since of the age of 15,” that he performed well in
school and received a degree from Purdue University, and that this “crime
is an aberration on an otherwise responsible, caring, peaceful,
hardworking, and honest life.” (Appellant’s Supp. Br. at 9). Laux requests
that we give consideration to his expression of remorse at the sentencing
hearing. Id.

Although we agree that Laux’s lack of criminal history, work ethic,
educational achievement, and remorse have value; we cannot ignore the
brutality of the crime that he committed. In light of all of the
circumstances surrounding Laux’s crime, we are not persuaded that the
sentence is inappropriate.

Conclusion

We vacate the no-contact order, but affirm in all other respects.

Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., dissents from Part I of the majority opinion
for the reasons expressed in Ritchie v. State, 890 N.E.2d
258, 271-74 (Ind. 2004) (Rucker, J., dissenting in part).
In all other respects I fully concur.
Sullivan, Justice, dissenting.

I respectfully dissent in two respects from the Court’s opinion.

I

I believe the trial court acted within its discretion in entering an
order prohibiting Laux from contacting Heidi’s family, including Heidi’s
parents and Heidi’s and Laux’s children. Under the Indiana Civil
Protection Order Act, Ind. Code § 34-26-5-1 (2004) et seq., and
particularly Ind. Code § 34-26-5-9(b)(2), a court is authorized to order
the relief that the trial court ordered here. Indeed, the Act specifically
contemplates that its relief can be entered in conjunction with a criminal
case. Ind. Code § 34-26-5-6(1) & (4) (2004). The Court’s rationale
appears to be that the persons protected by the order here did not request
it in the form specified in the Act. However, there is no question but
that they sought the protection granted (after sentencing, Heidi’s father
expressed his gratitude to the trial court for the order (Tr. at 597)) and
also no due process concerns; the evidence that caused the trial court to
enter the order was presented in open court and Laux had a chance to defend
against it. (Tr. at 503, 505, 528, 529, 530-31, 533-34.) Given that the
parties benefiting from the relief granted desired the relief and that
Laux’s due process rights were not violated, I believe the trial court
acted within its discretion in entering an order prohibiting Laux from
contacting Heidi’s family.

II

The Court reviews Laux’s request that the sentence of life without
parole be revised. The Indiana Constitution provides that “the Supreme
Court shall have, in all appeals of criminal cases, the power to review and
revise the sentence imposed.” Ind. Const. art. VII, § 4. Our rules
authorize revision of a sentence “if, after due consideration of the trial
court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.”
Ind. Appellate Rule 7(B). Unlike the Court, I would grant limited relief.

I turn first to “consideration of the trial court’s decision.”

When imposing a sentence of life without parole, the same heightened
standards used in death penalty cases apply. Ajabu v. State, 693 N.E.2d
921, 936 (Ind. 1998) (“The statute provides that life without parole is
imposed under the same standards and is subject to the same
requirements.”), after remand, 722 N.E.2d 339 (Ind. 2000); see also
Ind.Code § 35-50-2-9 (2004). Because a sentence of life in prison without
parole is imposed under the same standards as the death penalty, we require
the same specificity from a trial court sentencing a defendant to life in
prison without parole as we would a court sentencing a person to death.
Ajabu, 693 N.E.2d at 936. Neither Ring v. Arizona, 536 U.S. 584 (2002),
and Apprendi v. New Jersey, 530 U.S. 466 (2000) nor recent statutory
changes1 lessen these requirements. Brown v. State, 783 N.E.2d 1121, 1127
(Ind. 2003).

As the Court points out, after briefing on this case was completed, we
remanded this case to the trial court for a new sentencing order because
the one originally entered by the trial court did not comply with these
requirements. As the Court also points out, the trial court’s revised
sentencing order is sufficient to satisfy the general requirement that the
trial court find that the state prove beyond a reasonable doubt the
existence of at least one aggravating circumstance. It is certainly the
case that a proper statutory aggravating circumstance was charged and
submitted to the jury (“the defendant committed murder by intentionally
killing the victim while committing burglary”). The jury found that the
State had met its burden of proof beyond a reasonable doubt. I conclude
that the State has proven beyond a reasonable doubt that at least one of
the aggravating circumstances listed in the statute exists. See Ind. Code
§ 35-50-2-9(k)(1) (1998). As such, I believe the sentence imposed is
authorized by law. Furthermore, given the nature of Laux’s attack on
Heidi, I would assign this aggravating circumstance weight in the highest
range.

However, in my view, the mitigating circumstances present in this case
are such as to warrant a sentence less than life without parole. The trial
court itself found that Laux had “no significant history of prior criminal
conduct.” Indeed, there is absolutely nothing of record to suggest that
Laux ever had any difficulty with the law whatsoever—either as a juvenile
or an adult. In my view, absence of criminal history is the weightiest of
all mitigating circumstances. One who has conformed his or her conduct to
the dictates of our society is entitled to consideration upon committing a
first offense. Laux maintained a blemish-free legal history throughout his
childhood and adulthood. The record indicates that following graduation
from high school and Purdue University, Laux was hard-working, honest, and
responsible. Under these circumstances, I would assign weight to the
absence of any prior criminal history in the highest range.

Laux clearly was unable to deal with the separation from Heidi and
must face severe consequences as a result of his terrible, violent
behavior. It appears that he recognizes that fact and has expressed
sincere remorse. The aggravating circumstance here is weighty indeed but
in my view does not outweigh the mitigating circumstance. In light of the
nature of the offense and character of the offender, I would revise the
sentence imposed to 65 years in prison.

-----------------------
[1] Ind. Code Ann. § 35-42-1-1 (West 1998).

[2] Ind. Code Ann. § 35-42-1-1(2) (West 1998).

[3] Ind. Code Ann. § 35-43-2-1 (West 1998).

[4] The Court of Appeals recently held otherwise, declaring that a trial
court must “vacate” a jury finding on a felony murder charge that was
merged into a separate murder charge. Wilder v. State, 813 N.E.2d 788, 793-
94 (Ind. Ct. App. 2004). To the extent that Wilder indicates that vacating
a jury verdict is the appropriate remedy rather than merger and entering a
judgment of conviction only on the merged count, we disapprove it.
[5] It has been noted that the recent case Blakely v. Washington, -- U.S. --
, 124 S.Ct. 2531 (2004) might call into question Watts. See, United States
v. Olivera-Hernandez, 328 F.Supp.2d 1185, 1187 (D. Utah, 2004)(speculating
that a “Blakely-type holding striking down the Sentencing Guidelines would
arguably require the Supreme Court to strike down [Watts as well as other
cases].” While this may be true, we are as yet unsure of the reach of
Blakely. Moreover, we believe that in the narrow context of the
application of Indiana’s death sentence/life without parole statute to
Laux, Blakely poses no problem since the sentencing aggravators must be,
and were, found by a jury beyond a reasonable doubt.
[6] Indeed, logic requires that we reach this conclusion because if we
found that consideration of criminal conduct in enhancing sentences
violated double jeopardy, we would necessarily invalidate all habitual
offender enhancements. This is an approach plainly rejected by the Supreme
Court. See, e.g., Witte v. United States, 515 U.S. 389, 409 (1995); Schiro
v. Farley, 510 U.S. 222, 230-31 (1994).
[7] At the original sentencing portion of the trial, the jury also found
that the murder was intentional, committed during a burglary, and that the
aggravator outweighed the mitigating circumstances. (TR. at 580).

[8] In Clark v. State, 808 N.E.2d 1183, 1194-95 (Ind. 2004) we stated that
“[n]either intentional nor, as the trial court found, ‘premeditated’
killing is a statutory aggravating factor under the death penalty statute.”
The issue in Clark, however, was whether or not intentionality standing
alone was an aggravating factor. In this case, the plain language of Ind.
Code § 35-50-2-9(b)(1) indicates that intentionality is a partial factor if
the murder occurred during the commission or attempted commission of one of
the enumerated felonies.
[9] Laux also contends that he was under the influence of extreme mental or
emotional distress at the time he murdered his ex-wife. (Appellant’s Supp
Br. at 6-8). The trial court, however, gave careful consideration to the
psychological pre-sentencing reports submitted by Dr. George M. Parker,
M.D., and Dr. Velma Jean Atkinson, Ph.D. The court concluded that the
contradictory reports did not establish that at the time of the murder Laux
was under extreme emotional or mental distress. (Appellant’s Supp. App. at
8-9). The court reached this conclusion even after accepting,
hypothetically, the diagnosis of Dr. Parker who concluded that at the time
of the murder Laux was suffering from “moderately severe major depression.”
Id. The court also noted that Dr. Parker’s report concluded that there was
“no evidence the depression impaired the Defendant’s functional ability.”
Id. at 8.
Given the evidence in the record, and the evaluation of the trial
court of that evidence, we cannot say that the trial court erred in finding
that Laux was not under the influence of extreme mental or emotional stress
at the time of the murder. See, Clark v. State, 808 N.E.2d 1183, 1195 (Ind.
2004) (the “finding of mitigating factors is within the trial court’s
discretion.”); Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (“the
trial court is not required to regard the defendant’s evidence as
mitigating simply because the defendant does.”).
1 “If the jury reaches a sentencing recommendation, the court shall
sentence the defendant accordingly.” Pub. L. No. 117-2002, § 35-50-2-9(e)
(2004).