Clark v. State

Attorney for Appellant Attorneys for Appellee
Stephen Gerald Gray Steve Carter
Indianapolis, Indiana Attorney General of
Indiana

Zachary J. Stock
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________

In the
Indiana Supreme Court
_________________________________

No. 48S00-0205-CR-270

Derrick Daron Clark,
Appellant (Defendant below),

v.

State of Indiana,
Appellee (Plaintiff below).
_________________________________

Appeal from the Madison Superior Court, No. 48D01-0104-CF-184
The Honorable Dennis D. Carroll, Judge
_________________________________

On Direct Appeal
_________________________________

May 19, 2004

Boehm, Justice.

In this direct appeal, Derrick Clark appeals his conviction of murder
and sentence to life without parole. We affirm the trial court.

Factual and Procedural Background

Jeff Phillips lived with his fiancée, Kimberly Hester at the
Courtyard Apartments in Anderson, Indiana. Between 10 and 11 p.m. on April
11, 2001, Hester reported to Phillips that two people were loitering in the
parking lot near Phillips’s car, and one of them was sitting on the car.
Phillips went outside, and after a brief exchange one loiterer returned to
a group about twenty to twenty-five feet away and the second drove off.
Clark, who was among the group, then approached Phillips, and an argument
broke out. After a brief exchange Phillips returned to his apartment, and
Clark retrieved his hooded jacket from the woman who had been holding it
and told the group to go inside the apartment building.

After Phillips had turned off most of the lights in the apartment,
Phillips and Hester peeked out of their bedroom window. Phillips saw
someone with a hood approach their apartment building and fire three shots
into the apartment. One of the bullets struck Hester and she died a short
time later. Clark was identified as the shooter by one member of the
group. Two other witnesses, an adult and a nine-year-old boy, also
implicated Clark in the shooting, and Clark confessed to the shooting in
police interviews under circumstances set forth below.

Clark was charged with the Murder of Hester, Attempted Murder of
Phillips, and handgun violations. The State requested that Clark be
sentenced to life without parole based on the charge that he discharged a
firearm into a residence. The jury found Clark guilty of Murder, Attempted
Murder, and Carrying a Handgun Without a License.[1] The jury recommended
a sentence of life without parole, and the court imposed that sentence.

In this direct appeal, Clark contests the admission of statements he
made while in custody at the police station and other statements made
during an encounter with a police officer in a parking lot. He also
contests the admission of a witness’s statement, arguing that the witness
was incapable of making a statement at the time he made it, and that the
admission of the witness’s statement violated his constitutional Right to
Confrontation. Finally, Clark challenges the sentence as inappropriate,
based on an improper consideration of aggravating and mitigating
circumstances, and based on an unconstitutional statute.

I. Witness’ Statement

The State called Michael Watson as a witness. Before Clark was
arrested, Watson had been interviewed under oath by the prosecutor about
the events of the night of the shooting. In this interview, Watson
testified that he was at the Courtyard apartments with Clark and others
when Clark got into an argument with Phillips and told everyone to go
inside. Shortly after that, Watson heard shots. At trial, when asked about
these facts, Watson asserted that he did not remember being at the scene
and did not recall whether anyone else was there. The State then asked
Watson to read the transcript from his interview, and Watson testified that
nothing in it was true. The prosecutor then asked Watson if specific
statements in his interview were lies, and Watson said they were. The
prosecutor said, “And you’re telling this jury under oath here today that
everything in here that you’ve said about Derrick Clark was a lie?” Clark
unsuccessfully objected to this line of questioning as an effort to get
Watson’s prior statements before the jury as impeachment without Watson’s
having made any inconsistent statements.

The State then offered the transcript of Watson’s statement into
evidence and the court admitted it. Clark argues that Watson’s statement
was improperly admitted because, at trial, Watson claimed he was under the
influence of medication at the time of the statement and denied having
knowledge of the facts presented in the statement at the time he made it.
The trial court ruled the transcript admissible under Evidence Rule 803(5),
which provides:

(5) Recorded Recollection. A memorandum or record concerning a matter
about which a witness once had knowledge but now has insufficient
recollection to enable the witness to testify fully and accurately,
shown to have been made or adopted by the witness when the matter was
fresh in the witness’s memory and to reflect that knowledge correctly.
If admitted, the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an adverse
party.

The State concedes the statement was not properly admitted as an
exhibit pursuant to Rule 803(5) because the Rule permits it to be read to
the jury, but not admitted as an exhibit. However, the State points out
that an appellate court may affirm a trial court’s judgment on any theory
supported by the evidence. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.
2002) (citation omitted). The State argues that Watson’s statement was
nevertheless admissible under Evidence Rule 801(d)(1)(A) as substantive
evidence as a prior inconsistent statement made under oath. That Rule
provides:

A statement is not hearsay if: . . . [t]he declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is inconsistent with the declarant’s
testimony and was given under oath subject to the penalty of perjury
at a trial, hearing or other proceeding, or in a deposition.

In order for a prior inconsistent statement to be admissible under
this Rule: “(1) the statement must have been given under oath subject to
penalty for perjury at a trial or other proceeding and (2) the declarant
who made the prior statement must both testify and be subject to cross-
examination concerning the statement at the trial where the statement is
sought to be introduced.” See United States v. DiCaro, 772 F.2d 1314, 1321
(7th Cir. 1985). Here, Watson’s statement satisfied both requirements. It
was given under oath subject to penalties for perjury in the course of the
prosecutor’s investigation of the case. If a declarant has not been cross-
examined, his availability for recall for cross-examination satisfies the
requirement that he be available for cross-examination. Kielblock v. State,
627 N.E.2d 816, 821 (Ind. Ct. App. 1994). Clark thus had the opportunity
to cross-examine Watson at trial even though he chose not to use it.

Clark also argues that admission of Watson’s prior statement violated
his right to confront witnesses under both the state and federal
constitutions. For the same reason, this contention is unavailing. The
federal right of confrontation has not been denied when the witness is
available for cross-examination. United States v. Valdez-Soto, 31 F.3d
1467, 1470 (9th Cir. 1994).[2] Under the Indiana constitution, although
the accused must have an opportunity to cross-examine the witness during
the face-to-face confrontation, the “opportunity does not have to be seized
or successful and the right can be waived.” Pierce v. State, 677 N.E.2d 39,
50 (Ind. 1997) (citation omitted). Clark argues that because Watson’s
statement was admitted after Watson left the stand, Clark had no
opportunity to cross-examine Watson, but he gives no reason why he could
not have recalled Watson. He has not established a violation of his right
to cross-examine.

II. Statements to Police While in Custody

Seven days after the shooting, Anderson police executed a warrant for
the limited purpose of taking Clark’s photographs and fingerprints. After
Clark was brought to the police station, Detective Randy Tracy interrogated
Clark and ultimately Clark confessed to the shooting. Clark argues that
his Miranda rights were violated because Tracy ignored his request to end
the questioning. He also contends that his confession was not voluntary,
and that the custodial interrogation was improper because police did not
have probable cause to arrest him and the interrogation exceeded the scope
of the limited warrant used to bring Clark into custody.

Review of a trial court’s denial of a motion to suppress is similar to
other sufficiency matters. Goodner v. State, 714 N.E.2d 638, 641 (Ind.
1999). The record must disclose substantial evidence of probative value
that supports the trial court’s decision. Id. We do not reweigh the
evidence and we consider conflicting evidence most favorably to the trial
court's ruling. Id.

A. Requests to End Questioning

Clark first argues that the statements made in police custody should
have been excluded because they were taken in violation of his Miranda
rights after four requests that the interview end. Clark argues each of
the following statements constituted an assertion of his right to remain
silent:

“This is crazy. Y’all might as well send me across the street
(referring to jail).”

“Please, man, you might as well take me across the street.”

“You already tryin’ to charge me with this. So leave me alone and
take me over here.”

When the officer agreed to take Clark to jail, he said to Clark,
“Okay. That’s what we’ll do. We’re going to end the tape. Anything
else you want to say?” and Clark responded “No.”

An assertion of Miranda rights must be clear and unequivocal, and in
determining whether a person has asserted his or her rights, the
defendant’s statements are considered as a whole. Simmons v. Bowersox, 235
F.3d 1124, 1131 (8th Cir. 2001). A person must do more than express
reluctance to talk to invoke his right to remain silent. Taylor v. State,
689 N.E.2d 699, 705 (Ind. 1997). A statement that “I’m through with this,”
followed by continued dialogue without pausing or indicating that the
defendant would no longer respond, did not unambiguously assert the right
to remain silent. Haviland v. State, 677 N.E.2d 509, 514 (Ind. 1997).
Clark’s statements here did not expressly invoke his right to remain
silent, or request an attorney. As in Haviland, Clark continued to speak
after making these statements, and after being advised that he was not
required to continue with the interview. The trial court’s conclusion that
Clark did not invoke his Miranda rights is supported by the record.

B. Involuntariness of Confession

Clark next argues that his confession made while in police custody was
not given voluntarily and therefore was inadmissible because it was taken
in violation of the Indiana and United States constitutions. Under the
United States Constitution, the State must prove by a preponderance of the
evidence that the defendant’s confession was voluntary. Lego v. Twomey, 404
U.S. 477, 489 (1972). The State’s burden under the Indiana Constitution is
to show voluntariness beyond a reasonable doubt. Miller, 770 N.E.2d at 767
(citing Schmitt v. State, 730 N.E.2d 147, 148 (Ind. 2000)). On appeal, the
trial court’s determination is reviewed in the same way as other
sufficiency matters. Griffith v. State, 788 N.E.2d 835, 842 (Ind. 2003).

Voluntariness is determined in light of the totality of the
circumstances surrounding the interrogation. Miller v. State, 770 N.E.2d
763, 767 (Ind. 2002) (citing Kahlenbeck v. State, 719 N.E.2d 1213, 1216
(Ind. 1999)). Relevant factors include the length, location, and
continuity of the interrogation, and the maturity, education, physical
condition, and mental health of the defendant. Id. (citations omitted).
To determine that a confession was given voluntarily, the court must
conclude that inducement, threats, violence, or other improper influences
did not overcome the defendant’s free will. Ellis v. State, 707 N.E.2d 797,
801 (Ind. 1999) (citations omitted).

In this case, the record supports the trial court’s conclusion that
Clark’s confession was voluntary. Clark points to statements by Tracy that
“there’s a way you can work around this”, Clark would not have a future
unless he was honest about what happened, he believed Clark did not intend
to kill anyone, and multiple people had identified him as the shooter.
Clark argues that comments like these and others constituted promises of
leniency, lies, and intimidation and overcame his will because, through
these statements, Tracy conveyed to him that the only way to work out of
his murder charge was to give a statement.

A confession is inadmissible if obtained by promises of mitigation or
immunity; but, vague and indefinite statements by the police that it would
be in a defendant’s best interest if he cooperated do not render a
subsequent confession inadmissible. Collins v. State, 509 N.E.2d 827, 830
(Ind. 1987). Further, “[s]tatements by police expressing a desire that a
suspect cooperate and explaining the crimes and penalties that are possible
results are not specific enough to constitute either promises or threats.”
Kahlenbeck v. State, 719 N.E.2d 1213, 1217 (Ind. 1999). Here, Clark cites
no specific promises. Detective Tracy explained the varying offenses of
homicide and suggested that Clark would be better served by telling the
truth. These statements are an attempt to induce Clark to comply with
Tracy’s requests, but they did not constitute promises of benefits,
threats, or inducements that rendered Clark’s confession involuntary.

Clark also argues that Detective Tracy’s comments constituted
deceptive practices that rendered his confession involuntary. Clark argues
that Tracy’s statements to Clark that multiple people had identified Clark
as the shooter and that Tracy believed Clark did not intend to kill were
intentional falsehoods meant to elicit a statement from Clark. Assuming
Clark is correct that Tracy’s statements were not factual, police deception
does not automatically render a confession inadmissible. Rather, it is
only one factor to consider in the totality of the circumstances. Miller,
770 N.E.2d at 767 n.5 (citing Kahlenbeck v. State, 719 N.E.2d at 1217.
Further, if the police have a good faith basis for a statement, even if
technically false, it does not rise to the level of deception. See Ellis,
707 N.E.2d at 801 (police who told defendant that they had his shoeprint at
a crime scene had a good faith basis in the statement when there were
footprints similar to defendant’s size, but had not been conclusively
established to be defendant’s). In asserting that multiple people had
identified Clark as the shooter, Tracy was referring to three witnesses
whose information had implicated Clark in the crime. Two of these
witnesses had given information about the events occurring just before the
shooting, including Clark’s argument with Phillips and Clark’s instruction
that everyone else go inside. The third statement was given by a nine-year-
old boy who witnessed the shooting, but did not testify at trial and
arguably expressed reluctance and confusion as to the facts. Although none
of these witnesses’ versions was airtight, their accounts were enough to
form a good faith basis for Tracy to assert that he had witnesses to the
shooting. In addition, regardless of what Tracy personally thought of
Clark’s intent in shooting through the window, that he believed Clark did
not intentionally kill was a permissible interpretation of the facts. The
trial court’s conclusion that Clark’s confession was voluntary is supported
by the evidence.

C. Scope of Warrant

Clark argues that his detention was illegal and therefore the
statements he made in custody should not have been admitted because he was
taken into custody on the basis of a warrant executed for the limited
“purpose of obtaining photos, fingerprints, and palm prints,” but was
detained at the police station and questioned beyond the permissible scope
of the warrant. The State refers to this warrant as “a so-called Davis-
Mississippi warrant.” The United States Supreme Court in Davis v.
Mississippi, 394 U.S. 721, 726-28 (1969), held that individuals might be
detained for limited purposes, such as obtaining fingerprints, on a showing
of less than probable cause. In Baker v. State, 449 N.E.2d 1085, 1090
(Ind. 1983), this Court, citing Davis, concluded that warrants issued for
limited purposes, such as fingerprinting or photographing, are appropriate
if police act pursuant to and within the scope of such warrants.

The warrant supported only fingerprinting and photographing Clark, and
did not justify his interrogation. The State counters that Clark’s
detention was nevertheless lawful because the police had probable cause to
arrest Clark at the time he was taken into custody. Because the warrant
was limited Clark is correct that his arrest was warrantless, and the State
must establish probable cause to arrest Clark. Probable cause to arrest
exists when, at the time of the arrest, the officer has knowledge of facts
and circumstances that would warrant a reasonable person to believe that
the suspect has committed the criminal act in question. Berger v. New York,
388 U.S. 41, 55 (1967); See also Henderson v. State, 769 N.E.2d 172, 176
(Ind. 2002) (citing Ortiz v. State, 716 N.E.2d 345, 348 (Ind. 1999)). The
amount of evidence necessary to meet the probable cause requirement is
determined on a case-by-case basis. Ortiz v. State, 716 N.E.2d 345, 348
(Ind. 1999). It is grounded in notions of common sense, not mathematical
precision. Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998) (citing
Illinois v. Gates, 462 U.S. 213, 235 (U.S. 1983)).

The State points out that at the time Clark was detained Detective
Tracy knew of the statement given under oath by Michael Watson in which he
reported that Clark had argued with Phillips on the night in question,
after the argument Clark instructed everyone to go inside, and Watson heard
gunshots shortly after he and the others complied with Clarks directions.
Tracy also had statements from other witnesses who also placed Clark at the
scene and described the argument between Clark and Phillips, and reported
Clark’s admonition that everyone go inside. This information, in the
aggregate, was enough to give Tracy probable cause to arrest Clark.

III. Statements to Police in Parking Lot

Five days after the shooting, Officer John Branson of the Anderson
Police Department, who had been investigating the shooting in question and
had learned that Clark was a possible suspect encountered Clark in the
parking lot of the Village Pantry and told him to remove his hands from his
pockets and questioned Clark about his whereabouts at the time of the
shooting. Clark told Branson that he was with his girlfriend at the time.
Clark argues that although the statement was not in itself prejudicial, the
State made frequent use of it to paint Clark as a liar. Clark argues that
this statement was inadmissible because he was “in custody” for purposes of
the Fifth Amendment to the United States Constitution and was not given
Miranda warnings. The trial court overruled Clark’s objection on the
ground that Clark was not in custody. That decision is reviewed as a
question of sufficiency of the evidence. Goodner, 714 N.E.2d at 641.

A person is in custody for purposes of Miranda if a reasonable person
under the same circumstances would have believed that he was under arrest
or not free to resist the entreaties of the police. West v. State, 755
N.E.2d 173, 178-79 (Ind. 2001) (citing Joyner v. State, 736 N.E.2d 232, 241
(Ind. 2000); Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995) (citing Florida
v. Bostick, 501 U.S. 429, 433-34 (1991)). This issue has often been
resolved based on whether the defendant was read his Miranda rights or
physically restrained in any way. Torres v. State, 673 N.E.2d 472, 474
(Ind. 1996). Also relevant is the length of the detention and the police
officer’s perception as to the defendant’s freedom to leave. Cooley v.
State, 682 N.E.2d 1277, 1279 (Ind. 1997). Here, Clark was not physically
restrained and although he was subjected to a pat-down search for weapons,
the search was minimal and did not indicate that he was under arrest. The
conversation between Johnson and Clark was relatively short. Once Clark
answered Johnson’s question as to his whereabouts at the time of the
shooting, the questioning ended and Clark was free to go. This was not
enough to render Clark in custody for purposes of Miranda. See, e.g.,
United States v. Wyatt, 179 F.3d 532, 536 (7th Cir. 1999) (Miranda warnings
not required when defendant, who was a suspect in a bank robbery, was asked
to exit a bar with officers, subjected to a pat-down search, and
questioned).

IV. Imposition of Sentence

Clark next challenges the imposition of the sentence of life without
parole, arguing that the sentence was inappropriate, the trial court failed
to weigh aggravators and mitigators properly, and that the life without
parole statute is facially unconstitutional. Clark was found guilty by a
jury of Murder, Carrying a Handgun Without a License, and Attempted Murder.
Following the presentation in the penalty phase, the jury found beyond a
reasonable doubt that Clark intentionally discharged a firearm into an
inhabited dwelling. The jury recommended that Clark be sentenced to life
without parole. After a sentencing hearing, on April 9, 2002, the court
imposed the sentence of life without parole as recommended by the jury.
The trial court cited as aggravators to the murder charge the fact that the
killing was intentional and the fact that Clark discharged a firearm into
an inhabited dwelling. On July 2, 2003, this Court remanded the case for
resentencing because the original sentencing order did not comply with the
statutory requirements for a sentence of life without parole, which is
governed by the death penalty statute. Ind. Code § 35-50-2-9 (2003). An
amended sentencing order was issued and that order is now under review.

In 2002, the statute was amended to require that, for sentences
imposed on or after July 1, 2002, the jury is to “recommend” a sentence and
the trial court is to sentence “accordingly.” The original sentencing
order and the amended sentencing order in this case were both issued based
on the earlier statute that gave a court the discretion to impose a
sentence recommended by the jury or its own sentence. Neither Clark nor
the State raises any contention based on the 2002 amendments to the
statute.

A. Inappropriateness

An appellate court may review a sentence if it is found to be
“inappropriate in light of the nature of the offense and the character of
the offender.” Indiana Appellate Rule 7(B). Clark argues that his sentence
is inappropriate because maximum possible sentences are to be reserved for
the “worst offenders.” He argues that he does not fit into this category
because he was nineteen years old at the time of the shooting, had no
juvenile delinquency adjudications, and had only a misdemeanor handgun
conviction. He points to his pastor’s testimony that Clark was a
respectful person who showed remorse for his actions. He also argues that
the Court should consider that there was some inference of sudden heat from
his actions because, although he was convicted of murder, the jury was
instructed on reckless homicide and voluntary manslaughter. In the amended
sentencing order, the trial court pointed out that in addition to the
finding that Clark intended to kill and intended to discharge a firearm
into an inhabited dwelling, the shooting was “premeditated, calculated, and
utterly without provocation.” The trial court also pointed to Clark’s
criminal history that included probation violations and the fact that Clark
failed to show remorse after the shooting. Although, as discussed in Part
IV.B, there are problems in the sentencing order Clark has not established
on this record that the sentence is inappropriate.

B. Trial Court’s Consideration of Aggravating and Mitigating
Circumstances

This Court’s order remanding for a new sentencing order instructed the
trial court to amend its sentencing order to comply with the requirements
of Indiana Code section 35-50-2-9 (2002). Because both penalties are
governed by the same statute, a sentence of life without parole is held to
the same standards as a death sentence. Ajabu v. State, 693 N.E.2d 921, 936
(Ind. 1998). A court sentencing under the death penalty statute may
consider only the aggravating factors listed in that statute. Bivins v.
State, 642 N.E.2d 928, 953 (Ind. 1994). The trial court must also find
that any aggravating factor used to determine eligibility for the sentence
has been proven beyond a reasonable doubt and must find that the
aggravating circumstances outweigh the mitigating circumstances and make a
record of the reasons supporting the sentence. Greer v. State, 749 N.E.2d
545, 549 (Ind. 2001). As explained in Harrison v. State, 644 N.E.2d 1243,
1262 (Ind. 1995) (citations omitted):

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.

The trial court’s amended sentencing order did not conform to these
requirements. First, the trial court cited the fact that the murder was
intentional as an aggravating factor.[3] Neither intentional nor, as the
trial court found, “premeditated,” killing is a statutory aggravating
factor under the death penalty statute. I.C. § 35-50-2-9(b). Accordingly,
it was not proper for the trial court to identify that factor as relevant
to the decision to impose life without parole.

Clark further argues that the court should have considered as a
mitigating circumstance that Clark had no significant criminal history as
required by the life without parole statute. The finding of mitigating
factors is within the trial court’s discretion. Graham v. State, 535 N.E.2d
1152, 1155 (Ind. 1989). However, “[w]hen the trial court’s sentencing
statement fails to discuss or evaluate the mitigating circumstances and
fails to make a finding that mitigating factors were not present, it would
be proper to remand with instructions to reconsider the sentence if
significant mitigating circumstances are clearly supported by the record.”
Id. “Significance varies based on the gravity, nature and number of prior
offenses as they relate to the current offense.” Wooley v. State, 716
N.E.2d 919, 929 n.4 (Ind. 1999). In sentencing, the trial judge expressed
the view that, “any criminal history is an aggravator and the issue is the
strength of that aggravation. The mitigator is that you have no criminal
history.” Lack of prior significant criminal history is a mitigating
factor, I.C. § 35-50-2-9(c)(1), but as the trial court found, Clark had a
significant criminal history. Clark’s juvenile history includes runaway
and incorrigibility charges. Clark has three documented parole violations,
has been arrested twice for illegal handgun possession, and a deferred
prosecution on the second possession had not yet expired when he committed
the murder. These findings establish that the trial court carefully
considered Clark’s criminal background.

A second aggravating factor, which could properly establish Clark’s
eligibility for life without parole, was that Clark fired a handgun into an
inhabited dwelling. However, in its amended sentencing order the trial
court found an improper aggravating factor, and the balance of aggravators
and mitigators without the improper aggravator is unknown. Accordingly,
the amended sentencing order failed to meet the requirements for a sentence
of life without parole. This case is again remanded for a new sentencing
order that does not include the intentionality of the murder as an
aggravating factor.

C. Constitutionality of Statute

At the time of the original sentencing, the life without parole
statute provided that, “[t]he court shall make the final determination of
the sentence, after considering the jury’s recommendation . . . .” I.C. §
35-50-2-9(e) (2002). Clark argues that under the United States Supreme
Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v.
Arizona, 536 U.S. 584 (2002), the life without parole statute applicable at
the time of his conviction is unconstitutional. Apprendi holds, “[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
the jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
Ring applied Apprendi to capital sentencing and requires that an
aggravating circumstance supporting a capital sentence be found by the jury
beyond a reasonable doubt. Ring, 536 U.S. at 609. Clark proceeds from this
framework to the conclusion that because the trial court could choose to
reject the jury’s recommendation, the sentencing statute applied was
facially unconstitutional. Clark asserts that even though the trial judge
in this case accepted the jury’s unanimous recommendation, the fact that
the statute can be applied in an unconstitutional manner renders the entire
statute unconstitutional. Here, the jury found beyond a reasonable doubt
the statutory aggravating circumstance that increased the penalty for
murder: Clark intentionally discharged a firearm into an inhabited
dwelling. This satisfies Ring and Apprendi. Williams v. State, 793 N.E.2d
1019, 1028 (Ind. 2003) (finding Ring inapplicable to a death sentence where
the “guilt phase verdict necessarily shows that the jury unanimously found
that Williams had committed two murders, and thus, shows that the multiple-
murder aggravating circumstance was proved beyond a reasonable doubt);
Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003) (citing Wrinkles v.
State, 776 N.E.2d 905, 907-08 (Ind. 2002) (jury’s verdict in the guilt
phase, finding the defendant guilty of the two murders, necessarily means
that the jury found, beyond a reasonable doubt, that Defendant had
committed more than one murder).

Clark contends “[i]f the jury knew the law was applied in such a way
as to bind the trial court, the jury might feel more solemn in its
deliberations.” This is not a claim that the jury was incorrectly
instructed as to its role, which is an error that violates the Eighth
Amendment as interpreted in Caldwell v. Mississippi, 472 U.S. 320, 330
(1985). Rather, Clark’s contention boils down to a claim that the pre-2002
version of the Indiana Death Penalty statute was inherently defective
because the jury did not consider its determination to be binding on the
judge. If the jury believed its recommendation to be binding, it might
“feel more solemn in its deliberations.” At the time of the jury
deliberation, Indiana law provided that the recommendation was not binding,
and the jury was so instructed. There was no error in the instructions,
and there is no authority for the proposition that a nonbinding
recommendation is inherently unconstitutional. See Harris v. Alabama, 513
U.S. 504, 512 (1995) (a capital sentencing statute that provides for a
sentence recommendation by a jury and does not describe the weight to be
given the recommendation by the trial court judge is constitutionally
permissible); Fleenor v. Anderson, 171 F.3d 1096, 1100 (7th Cir. 1999) (it
was not error for the prosecution to emphasize to the jury that its
recommendation is not binding on the judge).

Conclusion

This case is remanded for entry of a corrected sentencing order
consistent with this opinion.

Shepard, C.J., and Dickson, and Sullivan, JJ. concur.

Rucker, J., concurs except for the majority’s resolution concerning the
sentence. Rather than remand this cause for a second time to cure an
inadequate sentencing order, he would impose the maximum terms of 65 years
for the murder conviction. He would further order the sentence to be served
consecutive to the sentences the trial court has already imposed for
attempted murder and carrying a handgun without a license.

-----------------------
[1] Clark was also charged with Carrying a Handgun Without a License with a
prior handgun conviction. He waived his right to a jury trial on that
charge and the court found him guilty after the jury returned its verdict.

[2] The very recent decision of the United States Supreme Court in Crawford
v. Washington, 124 S.Ct. 1354 (2004), does not affect this case because
Watson testified at trial. The Supreme Court may have called into question
settled evidentiary rulings on a number of related issues. Certainly it
made clear that rules of evidence do not trump the Confrontation Clause.
However, the Court expressly noted that, “where the declarant is not
absent, but is present to testify and to submit to cross-examination, our
cases, if anything, support the conclusion that the admission of his out-of-
court statements does not create a confrontation problem.” California v.
Green, 399 U.S. 149, 162 (1970). Crawford addressed the admission of prior
statements to police by a witness who was unavailable at trial and held
that admission of her statements as declarations against penal interest
violated the Confrontation Clause. The state supreme court had held the
statements admissible even though she was never available for cross-
examination, reasoning that the statement “bore guarantees of
trustworthiness.” The United States Supreme Court held that the right to
cross-examine either at the time the statement is made or at trial is
required and its admission violates the defendant’s right to confront
witnesses if the witness is not available for cross-examination. After
conducting a thorough examination of the history of Confrontation Clause
jurisprudence, the Court explained, “[o]ur cases have thus remained
faithful to the Framers’ understanding: Testimonial statements of witnesses
absent from trial have been admitted only where the declarant is
unavailable, and only where the defendant has had a prior opportunity to
cross-examine.” Crawford, 124 S.Ct. at 1369. The Court specifically noted
that its holding does not alter the rule that “when the declarant appears
for cross-examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial statements.” Id. n.
9 (citing Green, 399 U.S. at 162).
[3] Clark argues that it was improper for the trial court to find as an
aggravator the fact that the killing was intentional because a material
element of a crime may not be used as an aggravating factor to support an
enhanced sentence. See, e.g., Bradley v. State, 770 N.E.2d 382, 388-89
(Ind. Ct. App. 2002). The mens rea element of Clark’s murder conviction
was that he acted “knowingly or intentionally.” Clark argues that it was
improper to cite an intentional murder as an aggravator. Because this
aggravating factor was improperly applied for the reason given, we do not
address the issue whether this doctrine would also invalidate the
aggravator given that a “knowing” killing is sufficient for a murder
conviction.