Washington v. State





Attorney for Appellant                       Attorneys for Appellee
William W. Gooden                                  Steve Carter
Mt. Vernon, Indiana                                Attorney General of
Indiana

                                             Ellen H. Meilaender
                                             Deputy Attorney General
                                             Indianapolis, Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 65S00-0209-CR-477

Jeffrey Dean Washington,
                                             APPELLANT (DEFENDANT BELOW),

                                     v.

State of Indiana,
                                             Appellee (Plaintiff below).
                      _________________________________

        Appeal from the Posey Superior Court, No. 65D01-0112-CF-0567
                    The Honorable Donald E. Baier, Judge
                      _________________________________

                              On Direct Appeal
                      _________________________________

                                May 20, 2004

Rucker, Justice.

                                Case Summary

      Based in part on his confession, Jeffrey Dean Washington was convicted
of murder  in  the  stabbing  death  of  his  ex-girlfriend.   Alleging  two
statutory aggravating circumstances,  the  State  sought  life  imprisonment
without parole.  The jury recommended life imprisonment and the trial  court
sentenced Washington accordingly.  In this direct appeal  Washington  raises
the following rephrased issues: (1) did  the  trial  court  err  in  denying
Washington’s motion to suppress his confession; (2) did the trial court  err
by not redacting portions of Washington’s  confession;  (3)  did  the  trial
court err in refusing  to  instruct  the  jury  on  the  lesser  offense  of
voluntary  manslaughter;  (4)  did  the  State  prove  the  existence  of  a
statutory  aggravator  beyond  a  reasonable  doubt;  (5)   was   Washington
sentenced in violation of Ring v. Arizona, 536 U.S. 584 (2002); and (6)  was
the trial court’s sentencing order sufficient.  We affirm the trial  court’s
judgment.

                        Facts and Procedural History

      The recent end of a romantic relationship with the victim Sandra  Bass
apparently upset Washington.  At some point in the  late  evening  hours  of
December 5, 2001, he walked to the apartment complex where Bass  lived  with
her three children and saw  Bass  and  another  man  leaving  the  apartment
complex in Bass’ car.  Bass returned a short time later, parked her  car  in
her assigned spot and was getting out of her car when Washington  confronted
her.  Armed with a butcher knife and  wearing  a  pair  of  socks  over  his
hands, Washington shoved Bass back into the car and  stabbed  her  at  least
thirteen times.  Washington fled the complex  and  hid  the  knife  and  his
clothes in separate locations.  Bass bled to death  from  the  stab  wounds.
The following day, Washington was apprehended and questioned  at  length  by
the police.  After an initial attempt to provide the police  with  an  alibi
for the previous night, Washington admitted stabbing Bass.

      The State charged Washington with murder.  Alleging that he  committed
the murder while lying in wait, Ind. Code § 35-50-2-9(b)(3),  and  while  on
probation,  I.C.  §  35-50-2-9(b)(9)(C),  the   State   also   sought   life
imprisonment  without  parole.   After  a  trial  by  jury  Washington   was
convicted as charged.  At the penalty phase of trial, the  jury  recommended
that a sentence of life imprisonment without parole be imposed.   The  trial
court  thereafter  sentenced   Washington   consistent   with   the   jury’s
recommendation.  This direct appeal  followed.   Additional  facts  are  set
forth below where relevant.
                                 Discussion
                                     I.
                             Motion to Suppress

      Prior to trial Washington filed a motion to suppress  his  confession,
which the trial court denied.  At trial, over  Washington’s  objection,  the
State introduced into evidence a videotape of the  police  interrogation  of
Washington  along  with  a  transcript  of  the  interrogation.   Washington
contends the trial  court  erred  in  failing  to  suppress  his  confession
because: (i)  in  advance  of  questioning,  the  police  failed  to  advise
Washington concerning the nature of the  interrogation  thus  rendering  his
confession involuntary; (ii) the police engaged in deception thus  rendering
his confession involuntary; and (iii) the police continued to  question  him
after he invoked his right to remain silent.  We address each contention  in
turn.


A.    Advisement in Advance of Waiver
      The record shows that after his arrest, Washington was escorted to the
Posey County jail.  While in the interrogation room, Officer Marvin  Heilman
presented Washington with a waiver of Miranda rights form and explained  its
contents in detail.  Washington read the form aloud,  acknowledged  that  he
understood his rights, and signed the document.  At that point  the  officer
informed Washington:  “[I] just wanna talk to you a  little  bit  about  the
events of the last, last few weeks really but especially last night. .  .  .
[S]ome events involving Sandra Bass a former girlfriend . . . .”  Joint  Ex.
1 at 4.  Washington contends that his waiver of Miranda rights was  rendered
involuntary because the officer failed to advise him about  the  subject  of
the interview before questioning began.

      In Colorado v. Spring, 479 U.S. 564 (1987), the United States  Supreme
Court  explained  that  it  had  “never  held  that  mere  silence  by   law
enforcement officials as to  the  subject  matter  of  an  interrogation  is
‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda  rights  .
. . .”  Id. at 576.  The Court went on to note: “Once Miranda  warnings  are
given, it is difficult to see how official silence could cause a suspect  to
misunderstand the nature of his constitutional right—‘his  right  to  refuse
to answer any question  which  might  incriminate  him.’”   Id.   The  Court
observed that additional information given by the police would  only  go  to
the “wisdom of a Miranda waiver, not its essentially voluntary  and  knowing
nature.”  Id. at 577.  Ultimately the  Court  concluded  that  “a  suspect’s
awareness of  all  the  possible  subjects  of  questioning  in  advance  of
interrogation  is  not  relevant  to   determining   whether   the   suspect
voluntarily,  knowingly,  and  intelligently  waived  his  Fifth   Amendment
privilege.”  Id.; see also Allen v. State, 686 N.E.2d 760, 773  (Ind.  1997)
(applying the rule set forth in  Spring  and  noting  “[t]he  constitutional
issue does not concern the tactical wisdom  of  the  defendant’s  choice  to
speak, but only the defendant’s voluntariness in choosing  to  speak”).   In
this case the police officer’s failure to advise Washington  in  advance  of
the purpose of the interrogation did  not  render  involuntary  Washington’s
waiver of his Miranda rights.  Washington cannot prevail on this issue.


B.    Police Deception
      While in custody Washington was interrogated by at least two different
officers, including Heilman and  Gary  Gilbert.   During  the  interrogation
Officer Heilman made the following statements:

           We’ll prove to you her blood’s all over your  clothes  and  I’ll
           prove to you that you were there when she died.


           You got your supposedly your best friend in the world’s blood on
           your clothes.

Joint Ex. 1 at 111.  Officer Gilbert added:

           [W]e’ve got physical evidence from her blood on your clothes.


           Her blood on your clothes Jeff.


           Those are your clothes, that’s her blood on your clothes.

Id. at 112, 119, 133.  In addition Officer Heilman asserted:

           Your sisters, your grandma and your  mother,  they’ve  all  been
           talking to us all night scared to death, what happened to  Jeff.
           What’s he going to do to himself.  You know they all  think  you
           did it.

Id. at 134 (emphasis added).  Washington complains that at the time  of  the
interrogation neither Officer  Heilman  nor  Officer  Gilbert  knew  whether
there was blood on Washington’s clothing nor, obviously,  whether  any  such
blood belonged to Bass.  Washington also complains that at  the  suppression
hearing, Officer Heilman admitted that the  statement  “you  know  they  all
think you did it” was generally  not  true.   According  to  Washington  the
foregoing  conduct  by  the  officers  was  deceptive  thus  rendering   his
confession involuntary.

      When a defendant challenges the admissibility of his  confession,  the
State must prove beyond a reasonable doubt that  the  confession  was  given
voluntarily.  Carter v. State, 730 N.E.2d  155,  157  (Ind.  2000).[1]   The
voluntariness of a confession  is  determined  from  the  “totality  of  the
circumstances.”  Berry v. State, 703 N.E.2d 154, 157 (Ind. 1998).  In  turn,
the  “totality  of  the  circumstances”   test   focuses   on   the   entire
interrogation, not on any single act by police or condition of the  suspect.
 Light v. State, 547 N.E.2d 1073, 1079 (Ind. 1989).  We  review  the  record
for evidence of inducement by way of violence, threats, promises,  or  other
improper influences.  Berry, 703 N.E.2d at 157.

      It is technically true that at  the  time  of  the  interrogation  the
officers did not know whether Washington’s clothing was covered  with  Bass’
blood.  At best this was pure conjecture offered  as  fact.   However,  “not
all police  interrogation  statements  of  conjecture,  presented  as  fact,
constitute police deception.”  Miller v. State,  770  N.E.2d  763,  767  n.5
(Ind. 2002).  Rather, where the police have a “good faith  basis  for  their
technical falsehood, then their action will not be deemed  deceptive.”   Id.
at 768 n.5.  The record shows that at the time  of  the  interrogation,  the
police had recovered clothing that  appeared  to  be  bloodstained  and  had
spoken with a witness who had seen Washington changing out of those  clothes
the previous night.  R. at 18-19, 34-36. The clothing had been submitted  to
the  police  crime  laboratory,  although  the  results  had  not  yet  been
returned.[2]  We conclude the officers had a good faith basis for  asserting
that  Washington’s  clothing  was   stained   with   the   victim’s   blood.
Accordingly, the officers’ statements were not deceptive.

      Concerning Officer Heilman’s statement that “you know they  all  think
you did it” Washington does not explain  how  this  statement  rendered  his
confession involuntary.   In  like  fashion  we  do  not  see  “an  apparent
explanation as to  why  this  comment  would  render  defendant’s  statement
involuntary.”   Heavrin  v.  State,  675  N.E.2d  1075,  1081  (Ind.   1996)
(rejecting a  claim  that  an  officer’s  reference  to  defendant’s  wife’s
infidelities rendered his subsequent statement involuntary).

C.    Invocation of Right to Silence
      In support of his claim that the interrogating officers  continued  to
question him after  he  invoked  his  right  to  remain  silent,  Washington
directs our attention to that portion of the interrogation in  which  he  at
one point declared:  “I’m tired of talking.  I’m listening.”   Joint  Ex.  1
at  109.   He  also  directs  our  attention  to  another  portion  of   the
interrogation in which the following exchange occurred:

           [Washington]:  I’m not gonna say nothing man you’re . . . you’re
           just talking.  What does it look like I’m not going to admit  to
           something I didn’t do.  I’ll let the jury decide that.


           [Officer Gilbert]:  Are you telling us that those are  not  your
           clothes?


           [Washington]:  I’m not saying a thing.

Id. at 114.

      When a person “indicates in any manner, at any time prior to or during
questioning, that  he  wishes  to  remain  silent,  the  interrogation  must
cease.”  Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).   In  Haviland  v.
State, 677 N.E.2d 509 (Ind. 1997) this court described as  “intensely  fact-
sensitive” the analysis of a purported assertion  of  the  right  to  remain
silent.  Id. at 514.  In that  case,  after  waiving  his  right  to  remain
silent, the defendant said several times during the course  of  a  custodial
interrogation, “I’m through with this.”  Id. at 513.  We  acknowledged  that
a defendant “need not declare any particular words of  legal  magic  to  cut
off questioning.”  Id. at 514.  However, in affirming the  trial  court,  we
reasoned  that  the  defendant  “answered  questions  without   pausing   or
indicating in any manner that he would no longer respond.”   Id.   The  same
is true here.
      After declaring that he was “tired of talking” and  that  he  was  not
going to say anything, Washington  continued  to  engage  the  interrogating
officers in conversation.  The record shows that  several  times  Washington
questioned the officers concerning the strength  of  evidence  against  him.
Joint Ex. 1 at 116, 120-28.  And at one point  when  Officer  Heilman  asked
Washington whether he wanted the questioning to stop  Washington  responded,
“I want to see the pictures there.”   Joint  Ex.  1  at  122.   Washington’s
comments do not demonstrate an assertion of his  Fifth  Amendment  right  to
remain silent.  Accordingly, Washington’s claim on  this  issue  fails.   In
sum, the trial court properly denied Washington’s motion to suppress.

                                     II.
                           Redaction of Confession

      Washington next contends the trial court erred in  failing  to  redact
portions of his videotaped interrogation and the  typed  transcript  of  the
interrogation.  The facts are these.  Prior to  trial  Washington  moved  to
redact certain portions  of  the  videotaped  interrogation  and  the  typed
transcription.  The entire transcribed statement consisted of 157  pages  of
singled-spaced type.  To accomplish that end,  Washington  penciled  in  red
those portions of the statement he  sought  to  have  stricken.   Contending
that “maybe higher than ninety-five (95) percent of  the  verbiage  in  this
statement are statements made by  the  detectives,”  R.  at  52,  Washington
moved to redact all, or nearly all, of approximately  twenty  pages  of  the
statement.  Although acknowledging  case  authority  that  would  allow  the
unredacted statement into evidence provided a proper admonishment is  given,
Washington continued:

           My argument is going to be this, this statement is full  of  the
           detectives stating their opinion as to the . . . In  some  cases
           it was wrong, in some cases it was out and out . . .  you  know,
           absolutely wrong, as we established at the hearing we had on the
           motion to suppress, and the detectives acknowledged some of what
           they said was wrong.  So, some of it’s opinion, a  lot  of  it’s
           claiming what . . . a lot of it’s hearsay what other people  had
           said.

Id. at 53.  The trial court denied Washington’s motion; however, before  the
videotape was played in open court, the trial court admonished the  jury  as
follows:

           I also have a brief admonishment that I  want  to  read  to  you
           concerning the contents of the videotape.  On the videotape  you
           will see . . . are some  statements  made  by  Detective  Marvin
           Heilman and Detective Gary Gilbert.   You  are  instructed  that
           what the police officers say in the course of the  interview  is
           not evidence and is not to be considered  by  you  as  evidence.
           Certain  things  that  the  police   officer   say   [sic]   and
           representations that they make during the interview may  or  may
           not be true.  These statements should be considered only as part
           of the questioning of the Defendant for the purpose of eliciting
           or drawing out information from the Defendant.

Id. at 522.

      In Strong v. State, 538 N.E.2d 924 (Ind. 1989), this Court  held  that
an audiotape  of  the  defendant’s  confession  to  police  was  admissible,
including the interrogating officer’s statement, “I want to caution  you  on
one thing.  Physical evidence proof, stuff that Lt. Loy  saw  and  found  in
your house on that night [d]oesn’t match stuff that you tell us  .  .  .  .”
Id. at 928.  Responding to the defendant’s claim of hearsay,  we  found  the
statement to be admissible for two reasons.  First, the  statement  was  not
hearsay because it was not  offered  to  prove  the  truth  of  the  matters
asserted.   Id.   Second,  the  trial  court  thoroughly  explained  in   an
admonishment to the jury that they were to consider the statement  to  be  a
method of questioning intended to elicit information from the defendant  and
not as evidence of guilt.[3]  Id.

      In Smith v. State, 721  N.E.2d  213  (Ind.  1999),  this  Court  found
various statements of the interrogating officer to be inadmissible.  Id.  at
216.   We  reversed  the  judgment  and  remanded  the  cause  for   further
proceedings.  Unlike Strong, the trial  court  in  Smith  gave  no  limiting
instruction or admonishment.  We held that although a  trial  court  has  no
affirmative duty to consider giving an admonishment  in  the  absence  of  a
party’s request, it  is  error  to  admit  statements  by  an  interrogating
officer without any limiting instruction or admonishment.  Id.

      Apparently recognizing that in light of Strong and Smith  his  hearsay
claim  cannot  prevail,  Washington  abandons  this  argument   on   appeal.
Instead, citing Indiana Evidence Rule 704(b), he now  claims  error  because
the interrogating officer made several references  to  Washington’s  alleged
lack of truthfulness during the course of the  interrogation.[4]   The  Rule
provides: “Witnesses may not testify to opinions concerning  intent,  guilt,
or innocence in a criminal  case;  the  truth  or  falsity  of  allegations;
whether a witness has testified truthfully; or legal conclusions.” Id.;  see
also Shepherd v. State, 538  N.E.2d  242,  243  (Ind.  1989)  (“Neither  lay
witnesses nor  expert  witnesses  are  competent  to  testify  that  another
witness is or is not telling the truth.”).

      We first observe that each reference about which Washington  complains
is buried within and scattered throughout the twenty pages  that  he  sought
to have stricken.  Indeed only a careful examination of the transcript  even
reveals their existence.  We  fail  to  see  how  a  jury  could  have  been
persuaded by these comments.  More importantly,  a  trial  court  cannot  be
found to have erred as to  an  issue  or  argument  that  it  never  had  an
opportunity to consider.  Accordingly, as a general rule, a  party  may  not
present an argument  or  issue  on  appeal  unless  the  party  raised  that
argument or issue before the trial court.  Marshall  v.  State,  621  N.E.2d
308, 314 (Ind. 1993).  In such circumstances the argument  is  waived.   Id.
Because Washington did not direct the trial court’s attention to a  possible
Rule 704 violation, he has waived consideration of this argument on  appeal.


                                    III.
                       Refusal of Tendered Instruction

      Washington tendered an instruction on the lesser offense of  voluntary
manslaughter, which the trial court denied.  Washington contends  the  trial
court erred in  refusing  the  tendered  instruction  because  there  was  a
serious  evidentiary  dispute  that  distinguished  murder  from   voluntary
manslaughter.
      In deciding whether  to  give  a  tendered  instruction  on  a  lesser
included offense, the trial court  is  required  to  determine  whether  the
offense is either inherently or factually included in  the  charged  offense
and whether there is a serious evidentiary  dispute  regarding  any  element
that distinguishes the greater offense from the lesser  offense.   Evans  v.
State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (citing  Wright  v.  State,  658
N.E.2d 563, 566-67 (Ind. 1995)).  Voluntary manslaughter  is  an  inherently
included lesser offense of murder.  Wilson v. State,  697  N.E.2d  466,  474
(Ind.  1998).   The  only  element  distinguishing  murder  from   voluntary
manslaughter is “sudden  heat,”  which  is  an  evidentiary  predicate  that
allows mitigation of a murder charge to voluntary manslaughter.  Dearman  v.
State, 743 N.E.2d 757, 760 (Ind. 2001).  “Sudden heat” is  characterized  as
anger, rage, resentment, or terror sufficient to obscure the  reason  of  an
ordinary  person,  preventing  deliberation  and  premeditation,   excluding
malice, and rendering a  person  incapable  of  cool  reflection.   Id.   An
instruction on voluntary manslaughter is supported if there exists  evidence
of sufficient provocation  to  induce  passion  that  renders  a  reasonable
person incapable of cool  reflection.   Id.   Any  appreciable  evidence  of
sudden heat justifies an instruction on voluntary manslaughter.  Id.

      In this case the trial court made an explicit finding that  there  was
an absence of sudden heat.  Thus, we review the  trial  court’s  refusal  to
give Washington’s tendered instruction  on  voluntary  manslaughter  for  an
abuse of discretion.  Culver v. State, 727 N.E.2d 1062,  1070  (Ind.  2000).
Washington insists there was “appreciable evidence  of  sudden  heat.”   See
Dearman,  743  N.E.2d  at  760.   In  support,  Washington  points  to   his
statements to the police that because he saw Bass with another man he  “just
lost it” and that he “just couldn’t deal with it  no  [sic]  more.”   R.  at
546.  In essence Washington seems to contend that he  assaulted  Bass  in  a
fit of jealous rage. First, anger alone is  not  sufficient  to  support  an
instruction on sudden heat. Wilson, 697 N.E.2d at 474.  Second,  the  record
does not support Washington’s claim that he acted out of a burst  of  anger.
Washington first saw Bass and another man earlier in the  evening.  However,
he did not attack her until several hours later  after  he  had  obtained  a
knife, covered his hands with socks, and waited for the  victim  to  return.
This  evidence  shows  a  degree  of  deliberation   and   cool   reflection
inconsistent with sudden heat.  Accordingly we conclude the trial court  did
not  abuse  its  discretion  in  refusing  to  give  Washington’s   tendered
instruction on voluntary manslaughter.

                                     IV.
                                Lying in Wait

      In a murder case, the State may seek either  a  death  sentence  or  a
sentence of life imprisonment without parole by alleging  the  existence  of
at least one  of  the  aggravating  circumstances  listed  in  Indiana  Code
section  35-50-2-9(b).   Here,  the  State  sought  a   sentence   of   life
imprisonment without  parole  by  charging  two  aggravating  circumstances:
murder while lying in wait and murder while on probation.  See I.C. § 35-50-
2-9(b)(3), (b)(9)(C).  Washington contends that the State  failed  to  prove
beyond a reasonable doubt the aggravating circumstance  of  lying  in  wait.
He does not challenge the sufficiency of the evidence with  respect  to  the
(b)(9)(C) aggravator.

      Our standard of review for examining the sufficiency of  the  evidence
to support a statutory aggravator is the same standard for  determining  the
sufficiency of the evidence to convict.  We examine the evidence tending  to
support  the  verdict  and  all  reasonable  inferences  therefrom   without
weighing the evidence or assessing witness credibility.  Matheney v.  State,
583 N.E.2d 1202, 1208  (Ind.  1992).   From  this  viewpoint,  we  determine
whether the evidence constitutes substantial  evidence  of  probative  value
from which a reasonable trier of  fact  could  find  the  existence  of  the
aggravator beyond a reasonable doubt.  Fleenor v.  State,  622  N.E.2d  140,
151 (Ind. 1993).

      “Lying in wait  involves  the  elements  of  ‘watching,  waiting,  and
concealment from the person killed  with  the  intent  to  kill  or  inflict
bodily injury upon that person.’”  Ingle  v.  State,  746  N.E.2d  927,  940
(Ind. 2001) (quoting Davis v. State, 477 N.E.2d 889,  896  (Ind.  1985)  and
Matheney, 583 N.E.2d at 1208).  Contending that the  only  evidence  of  how
the murder was committed comes from his  confession,  Washington  summarizes
the evidence and concludes,  “a  reviewing  court  cannot  conclude  that  a
reasonable jury could infer ‘waiting’ beyond a reasonable  doubt.”   Br.  of
Appellant at 23.  We believe Washington’s summary is incomplete.

      In his confession Washington told the officers that he  observed  Bass
and another man earlier in the evening and became upset.   Joint  Ex.  1  at
138.  A video surveillance camera  located  in  the  parking  lot  of  Bass’
apartment complex showed that  later  that  night,  at  around  10:40  p.m.,
Washington was present at the complex.   R.  at  399-406.   Washington  knew
that Bass and the other man were inside Bass’ apartment.   Joint  Ex.  1  at
147.  Washington then left the parking lot and  retrieved  a  butcher  knife
from his home and tube socks to wear over his hands so that he  would  leave
no fingerprints.  Id. at 144, 151.  An eyewitness  saw  Washington  about  a
block from Bass’ apartment complex walking toward the complex shortly  after
11:00 p.m., and the surveillance video captures Washington  in  the  parking
lot at around 11:24 p.m.  R. at 382-84, 404-07; State’s Ex. 33.   Washington
then saw Bass and the other man leave in Bass’ car.  Joint  Ex.  1  at  148.
When Bass returned to the parking lot a short time  later  Washington  “came
from behind one of the cars, behind her car” and attacked Bass  by  stabbing
her.  Id. at 507.  A neighbor of Bass discovered her body around 11:35  p.m.
 R. at 410-11.

      The evidence makes clear that Washington did watch and wait  for  Bass
in the parking lot  of  her  apartment  complex.   The  closer  question  is
whether he concealed himself from her.  We have held, “The concealment  must
be used ‘as a direct means  to  attack  or  gain  control  of  the  victim,’
creating a nexus between the watching,  waiting,  and  concealment  and  the
ultimate attack.”  Ingle, 746 N.E.2d at 940 (quoting Davis,  477  N.E.2d  at
897).

      In Ingle the defendant was charged with murder and  the  State  sought
the death penalty based on two  statutory  aggravators,  one  of  which  was
lying in wait.  The evidence in that case showed that in the  early  morning
hours of the killing, the defendant threw a brick through the windshield  of
his ex-wife’s car.  He then hid in a nearby tree and watched as his  ex-wife
arrived and talked to the police about the incident.  After the police  left
and his ex-wife went into a nearby pub, the defendant hid  a  handgun  in  a
nearby tree and left.  The defendant then rode to a Goodwill store where  he
purchased clothing to be used  as  a  disguise.   Thereafter  the  defendant
returned to the tree, retrieved the handgun, walked into the pub,  and  shot
his ex-wife.  We determined that while the  defendant  watched,  waited  and
concealed himself in a tree, his concealment did not constitute any part  of
the murder by lying in wait.  Rather, because the defendant left  his  place
of concealment, walked to a nearby campsite, rode  to  the  Goodwill  store,
and walked into the pub where the fatal shooting occurred, we reasoned  that
the concealment was not used as a “direct means to attack  or  gain  control
of the victim.”  Id.  We also observed that a  substantial  amount  of  time
had elapsed between the defendant’s concealment and the killing.  Id.

      The facts in Ingle are also similar to those in Davis, 477  N.E.2d  at
895-97.  In that case we also determined that the defendant did  not  commit
a murder by lying in wait.  There, the defendant watched and waited  from  a
concealed position, but “did not use the concealment as a  direct  means  to
attack or gain control of the victim.”  Id. at 897.  Rather,  the  defendant
went openly into the victim’s tent and forced the victim to go with  him  by
use of a deadly weapon.   We  found  that  “[t]here  was  not  a  sufficient
connection between the concealment and  the  murder  .  .  .  to  support  a
finding that this murder was committed ‘by lying in wait.’”  Id.

      The facts in this case are distinguishable from both Davis and  Ingle.
The record shows that  on  the  night  of  the  killing,  although  slightly
illuminated, the parking lot was dark.  Joint Ex. 1 at  10,  11.  When  Bass
pulled into the parking space, her car was positioned  between  cars  parked
on either side.  Id.  This evidence,  coupled  with  Washington’s  statement
that he “came from behind one of the cars, behind her car”  to  attack  Bass
was sufficient for a jury to reasonably infer that  Washington  was  lurking
in the dark and hiding behind parked cars waiting for the  opportune  moment
to strike.  In sum the evidence demonstrates concealment.  As for the  nexus
between the concealment and  the  attack,  Washington’s  confession  reveals
that the attack occurred almost the moment “[Bass] opened  the  door.”   Id.
at 140. According to Washington, “it went fast . . . I didn’t  give  her  [a
chance].”  Id. at 139-40.  The record also shows that only  a  short  amount
of time elapsed  between  Washington’s  concealment  and  the  killing.   We
conclude that viewed in the light most favorable to the verdict,  there  was
substantial evidence of probative value from which the jury could  find  the
existence of the lying in wait aggravator beyond a reasonable doubt.

                                     V.
                         Constitutional Requirements

      Washington next contends that he was sentenced  in  violation  of  the
United States Supreme Court decisions in Ring and Apprendi  v.  New  Jersey,
530 U.S. 466 (2000).  In Ring, the Court overruled Walton  v.  Arizona,  497
U.S. 639 (1990), to the extent that it allowed the judge, and not the  jury,
to find an aggravating circumstance that supported a  death  sentence.   The
Court also determined that  Apprendi  applied  to  Arizona’s  death  penalty
scheme.  Ring, 536 U.S. at  589.   Apprendi  had  announced  the  rule  that
“[o]ther than the fact of a prior conviction, any fact  that  increases  the
penalty for  a  crime  beyond  the  prescribed  statutory  maximum  must  be
submitted to a jury, and proved beyond a reasonable  doubt.”  Apprendi,  530
U.S. at 490.

      In this case, Washington essentially contends  that  his  sentence  is
invalid because at the time he was sentenced, Indiana’s  capital  sentencing
scheme  allowed  the  judge  to  find  the  existence  of   an   aggravating
circumstance to support  a  death  sentence  or  sentence  of  life  without
parole.  We conclude there is no violation of Ring or Apprendi here.

      The record shows the jury was instructed that  it  may  recommend  the
penalty of life imprisonment without parole only if it finds that the  State
proved beyond a reasonable doubt the  existence  of  at  least  one  of  the
alleged aggravating circumstances and that any mitigating circumstances  are
outweighed  by  any  aggravating   circumstance   or   circumstances.    See
Appellant’s  App.  at  582.    The  aggravating  circumstances   that   made
Washington eligible for a sentence of life without parole were that  he  had
committed the murder while lying in wait, see I.C.  §  35-50-2-9(b)(3),  and
that he had committed the murder while on probation.  See  I.C.  §  35-50-2-
9(b)(9)(C).  Importantly, the record also shows  the  trial  court  provided
the jury with two separate verdict forms explaining:

           [I]n the event that you find that the State has failed to  prove
           either of the aggravating circumstances,  then  you  should  use
           this form and find that a sentence of life imprisonment  without
           parole should not be imposed, and that would have to  be  signed
           and dated by the foreperson.  If on the other hand that you find
           that the State has proven either  or  both  of  the  aggravating
           circumstances beyond a reasonable doubt,  you  should  use  this
           verdict form and on this verdict form you should indicate  which
           one or both of the aggravating  circumstances  has  been  proven
           beyond a reasonable doubt . . . .


R. at 579.  Following the trial court’s instructions, the  jury  returned  a
verdict form specifically finding that the State proved beyond a  reasonable
doubt  that  Washington  committed  murder  by  lying  in  wait  and   while
Washington  was  on  probation  and  that  the   aggravating   circumstances
outweighed the mitigating circumstances.   Appellant’s  App.  at  597.   The
jury then recommended that a sentence of life  imprisonment  without  parole
be imposed.  Id.  It is clear that the constitutional requirements  of  Ring
and Apprendi have been satisfied in  this  case.   Washington’s  claim  thus
fails.

                                     VI.
                     Sufficiency of the Sentencing Order

      For his last allegation of error Washington complains that  the  trial
court’s sentencing order is not sufficient to support  a  sentence  of  life
without parole.  Specifically Washington contends the  sentencing  order  is
deficient in two respects: (i) it fails to  set  forth  specific  facts  and
reasons which lead the court to  find  the  existence  of  both  aggravating
circumstances;  and  (ii)  it  fails  to  set  forth  the  court’s  personal
conclusion that a sentence of life without parole is  appropriate  for  this
offender and this crime.

      A sentence of life without parole is imposed under the same  standards
and is subject to the same requirements as a death sentence.   Holsinger  v.
State, 750 N.E.2d 354, 362 (Ind. 2001); Pope v. State, 737 N.E.2d  374,  382
(Ind. 2000).  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.   Brown  v.
State, 783 N.E.2d 1121, 1127 (Ind. 2003).  The capital sentencing scheme  in
effect at the time of Washington’s trial  made  clear  that  the  sentencing
court had a separate and independent role  in  assessing  and  weighing  the
aggravating  and  mitigating  circumstances  and   in   making   the   final
determination whether to impose a  particular  sentence.   Id.  at  1128.[5]
Accordingly, we have said:

           The trial court’s statement of reasons (i)  must  identify  each
           mitigating and aggravating circumstance found, (ii) must include
           the specific facts and reasons which lead the court to find  the
           existence of each such circumstance, (iii) must articulate  that
           the mitigating and aggravating circumstances have been evaluated
           and balanced in determination of the sentence, and (iv) must set
           forth the trial court’s personal conclusion that the sentence is
           appropriate punishment for this offender and this crime.

Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995) (citations omitted).

      We disagree with Washington’s contention  that  the  sentencing  order
failed to set forth the trial court’s personal conclusion that the  sentence
is appropriate punishment for this offender and this  crime.   Although  not
using the precise language articulated in  Harrison,  the  sentencing  order
provides: “The Court, giving due  consideration  to  the  evidence  in  this
case, the evidence and arguments presented at the  sentencing  hearing,  the
Pre-sentence  Investigation  Report,  and  the  aggravating  and  mitigating
circumstances, finds that a sentence of  life  imprisonment  without  parole
should be imposed.”  Appellant’s App. at 644.  This is sufficient.

      However, we do agree the sentencing order fails to set forth  specific
facts and reasons  that  lead  the  court  to  find  the  existence  of  the
aggravating circumstances.  On  this  point  the  trial  court’s  sentencing
order provides:

           Jeffrey Dean Washington did commit the murder of Sandy Bass by
           lying in wait, and


           Jeffrey Dean Washington did commit the murder of Sandy Bass at a
           time when said Jeffrey Dean Washington was  on  probation  after
           receiving a sentence for the commission of  a  felony,  to  wit:
           serving probation after a  conviction  for  Stalking,  a  felony
           offense, entered in the Posey Circuit Court on January 15, 1997,
           in Cause Number 65C01-9610-CF-00069.

Id. at 641.  We observe that the sentencing order  merely  recites  verbatim
the language of the jury’s verdict form.  There is no  indication  that  the
trial court engaged in a separate  and  independent  assessment  of  why  it
concluded  that  the  State  proved  the  existence   of   the   aggravating
circumstances beyond a reasonable  doubt.   The  sentencing  order  is  thus
deficient.
      When faced with an irregularity in a trial court’s decision to  impose
the death sentence or to impose a sentence  of  life  without  parole,  this
Court has various options: (1) remand to the trial court  for  clarification
or a new sentencing determination; (2) affirm the sentence if the  error  is
harmless;  or  (3)  independently  reweigh  the   proper   aggravating   and
mitigating circumstances.  Brown, 783 N.E.2d at 1129; Bivins v.  State,  642
N.E.2d 928, 957 (Ind. 1994).  In this  case,  we  affirm  Washington’s  life
sentence without parole on grounds of harmless error.   We  do  so  for  the
following reasons.   The  trial  court  found  no  mitigating  circumstances
warranting consideration.  See Bivins, 642 N.E.2d at 957  (finding  harmless
error in a death penalty case  where  trial  court’s  sentencing  order  was
deficient  and  declaring  “significant”  that  the  trial  judge  found  no
mitigating factors).  Washington does not contend the trial court  erred  in
this regard.  And,  although  not  setting  forth  its  specific  facts  and
reasons for so doing, the trial court did expressly find  that  the  charged
aggravators were proven beyond a reasonable  doubt.   Under  section  IV  of
this opinion we have already determined there  was  sufficient  evidence  of
probative value from which a jury could find the existence of the  lying  in
wait statutory aggravator.  As for the  commission  of  a  murder  while  on
probation, the evidence in the record supports the trial court’s  conclusion
that this aggravator was proved beyond a reasonable  doubt,  and  Washington
does not contend otherwise.  The trial court also expressly found  that  the
aggravating circumstances outweighed any mitigating circumstances.

      Examining  the  evidence  before   the   trial   court,   the   jury’s
recommendation in favor of life imprisonment without parole, and  the  trial
court’s sentencing order, we are convinced that the trial court  would  have
sentenced Washington to life imprisonment without parole  despite  the  fact
that the trial court failed to  set  forth  specific  facts  as  to  why  it
concluded  that  the  State  proved  the  existence   of   the   aggravating
circumstances beyond a reasonable doubt.   Thus  although  the  trial  court
erred in failing to set forth specific facts  and  reasons  to  support  its
conclusion, the error was harmless.
                                 Conclusion

      We affirm the judgment of the trial court.

Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] Indiana courts require  the  State  to  prove  the  voluntariness  of  a
confession beyond  a  reasonable  doubt,  unlike  federal  decisions,  which
require only proof by a preponderance of the evidence.  See Henry v.  State,
738 N.E.2d 663, 664 n.1 (Ind. 2000).

[2] The record shows that the officers’ conjectural statements proved to  be
true.  At trial the State introduced forensic evidence that  the  shirt  and
socks Washington wore the night of the  stabbing  were  stained  with  Bass’
blood.  R. at 476-77, 491-95; State’s Exs. 35, 39, 40, 45.
[3] We observe that the admonishment the trial court gave  here  was  nearly
identical to the admonishment the trial court gave in Strong.
[4] Specifically, Officer Heilman remarked, “[W]e  know  what  you’re  lying
about and I understand you know why you wouldn’t just come up  and  want  to
tell the truth from the start. . . . [W]e know you’re lying,”  Joint  Ex.  1
at 109; “You lied of course,” id. at 113; “But that’s not true and you  know
it’s not,” id.; “[Y]ou haven’t told us the truth you  just  keep  going  the
other direction,” id. at 117; “You can’t tell the truth cause you’re  trying
to be untruthful you’re trying to lie around the  issue,”  id.;  “[We]  know
what you’re telling us in [sic] not the truth man,” id.  at  118-19;  “Lying
about everything, where you been,” id. at 119; “You lied,” id. at 136.
[5] Subsequently amended, the statute now provides in pertinent part “For  a
defendant sentenced after June 30, 2002 .  .  .  [i]f  the  jury  reaches  a
sentencing  recommendation,  the  court   shall   sentence   the   defendant
accordingly.”  I.C. § 35-50-2-9(e) (West Supp. 2003).