Attorney for Appellant Attorneys for Appellee
Mark A. Bates Steve Carter
Appellate Public Defender Attorney General
of Indiana
Crown Point, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 45S00-0203-CR-187
Ronald E. Dumas,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Lake Superior Court, No. 45G01-9809-CF-00187
The Honorable Richard W. Maroc, Judge
_________________________________
On Direct Appeal
_________________________________
February 26, 2004
Rucker, Justice.
Case Summary
After a trial by jury Ronald E. Dumas was found guilty of murder,
felony murder, and robbery as a Class A felony. He was also adjudged a
habitual offender. The trial court sentenced Dumas to life without parole
for the murder conviction and to a term of years for the robbery
conviction. The trial court imposed a thirty-year sentence for the
habitual offender adjudication. In this direct appeal Dumas raises the
following rephrased issues: (1) Did the State’s closing argument during the
guilt phase of trial shift the burden of proof to Dumas thus resulting in
prosecutorial misconduct; (2) Did the trial court allow improperly
certified documents to be introduced into evidence at the habitual offender
phase of trial; (3) Did the trial court err by allowing the introduction of
hearsay evidence during the penalty phase of trial; and (4) Was the trial
court’s sentencing order imposing life imprisonment without parole
inadequate as a matter of law? To each issue we answer no and therefore
affirm the judgment of the trial court.
Facts and Procedural History
On July 7, 1998 Sandra Irving, Edrick Wheeler, and Ronald E. Dumas
were present at Irving’s home where Irving consumed a quantity of heroin.
At some point the trio decided to proceed to a car lot. Wheeler drove and
en route Dumas commented that this would be a good “hit,” referring either
to drugs or money. R. at 263-64. Dumas and Irving exited the car
approximately a block away from B & R Motors and walked to that location.
Brian McCarty owns B & R Motors, a used car lot located in Lake
Station. John Fiss worked for McCarty as a salesman and was known for
wearing flashy jewelry, including necklaces and gold and diamond rings. At
approximately one or two o’clock in the afternoon of July 7, both McCarty
and Fiss were present at the car lot. As McCarty was preparing a bank
deposit, which consisted of about $750.00 placed in a small zipper bank
bag, Dumas and Irving walked into the small office located on the lot.
Irving inquired about a car, and when McCarty accompanied her to the lot
Irving produced a handgun and pointed it at McCarty’s head. Realizing
“something was coming down” McCarty ran toward the office to warn Fiss.
Id. at 79. As McCarty did so he heard gunfire. Abandoning the idea of
going inside the office, McCarty then ran toward his truck. Looking over
his shoulder McCarty saw Dumas pointing a handgun in his direction and saw
a flash from the gun. A bullet struck McCarty, and he stumbled to the
ground.
Immediately before shooting McCarty, Dumas was in the office where
two customers had arrived on the scene. Displaying a handgun, Dumas
demanded money from Fiss. The record is unclear whether Fiss responded,
but in any event Dumas fired several shots striking Fiss in the face.
Shortly thereafter Irving entered the office and began rummaging through
desk drawers eventually declaring “I found it. I got the bag.” Id. at
122. Dumas then said, “[G]et those damn rings because they’re worth a lot
of money.” Id. The pair then fled the scene. The record shows McCarty
suffered severe internal injuries from the shooting, was in a coma for
twenty-seven days, and is paralyzed from the waist down. Fiss died as a
result of gunshot wounds to the head and neck.
Dumas was charged with murder, felony murder, and robbery as a Class
A felony. He was also alleged to be a habitual offender. In addition the
State sought life imprisonment without parole alleging that Dumas
intentionally killed Fiss while committing a robbery. Irving was charged
with felony murder and robbery as a Class A felony. Under the terms of a
plea agreement Irving pleaded guilty to felony murder and was sentenced to
fifty years imprisonment. She testified against Dumas at trial. The jury
found Dumas guilty as charged and also adjudged him a habitual offender.
In addition the jury recommended life imprisonment for the murder
conviction. Following a sentencing hearing, in an order dated November 1,
2001, the trial court followed the jury’s recommendation. Also, the trial
court sentenced Dumas to thirty years imprisonment for the robbery
conviction enhanced by an additional thirty years for the habitual offender
adjudication. The sentences were ordered to be served consecutively.
Because of double jeopardy concerns, the trial court vacated the conviction
for felony murder and entered no sentence thereon. Dumas appealed to this
Court raising four issues for review, one of which was that the sentencing
order was deficient. The State conceded the point, and we remanded this
cause to the trial court for a new sentencing order. On October 22, 2002,
the trial court issued a new sentencing order once again imposing life
imprisonment. This direct appeal ensued in due course.
Discussion
I.
Prosecutorial Misconduct
Dumas complains the State engaged in prosecutorial misconduct. His
complaint is based on the following facts. During final argument at the
guilt phase of trial, counsel for Dumas assailed the credibility of Dumas’
accomplice, turned State’s witness, Sandra Irving. He referred to her as a
liar; contended that she and her boyfriend were the actual perpetrators of
these crimes; and argued that she was protecting her boyfriend and falsely
laying the blame on Dumas. In rebuttal the deputy prosecutor commented:
[T]here is no evidence whatsoever that [Irving’s boyfriend] was
involved in this. But put that aside. How and why would she
name [Dumas] if he wasn’t involved? What motive does she have
to lie? Was any motive that she had against Mr. Dumas presented
in this court?
Id. at 557. At that point Dumas objected on grounds that it “suggests I
have a burden of proof. I do not.” Id. The trial court responded, “[t]o
that extent, if that’s how the jury took it, the defense does not have a
burden of proof.” Id. After agreeing that Dumas had no burden of proof
the deputy prosecutor continued her rebuttal: “There must be a reason for
a lie. There must be a reason that she implicated this man. And there is no
reason presented before you.” Id. at 558. Again Dumas objected, to which
the trial court responded “noted.” Id. Dumas contends the State’s
comments shifted the burden of proof to him and thus the State engaged in
prosecutorial misconduct.
When an improper argument is alleged to have been made, the correct
procedure is to request the trial court to admonish the jury. Brewer v.
State, 605 N.E.2d 181, 182 (Ind. 1993). If the party is not satisfied with
the admonishment, then he or she should move for mistrial. Id. Failure to
request an admonishment or to move for mistrial results in waiver. Id.
Here, although Dumas objected to the State’s comments, he did not request
an admonishment[1] nor did he move for mistrial. This issue is thus waived
for review.
Waiver notwithstanding we address the merits of Dumas’ claim. Dumas
did not take the stand in his own defense. The Fifth Amendment privilege
against self-incrimination is violated “when a prosecutor makes a statement
that is subject to reasonable interpretation by a jury as an invitation to
draw an adverse inference from a defendant’s silence.” Moore v. State, 669
N.E.2d 733, 739 (Ind. 1996). However, statements by the prosecutor
concerning the uncontradicted nature of the State’s evidence do not violate
the defendant’s Fifth Amendment rights. Martinez v. State, 549 N.E.2d
1026, 1028 (Ind. 1990). Rather, comment on the lack of defense evidence is
proper so long as the State focuses on the absence of any evidence to
contradict the State’s evidence and not on the accused’s failure to
testify. Id.; see also Timberlake v. State, 690 N.E.2d 243, 254 (Ind.
1997) (observing “[d]uring argument, the prosecutor may argue and comment
upon the evidence presented at trial. . . . A comment based upon
uncontradicted evidence is not equivalent to an impermissible comment upon
a defendant’s decision not to testify”). We conclude the deputy
prosecutor’s statements were well within the permissible range of fair
commentary on the evidence or lack thereof and were not a comment on Dumas’
right not to testify. For this reason alone Dumas’ argument fails.
His argument fails for another reason as well. Prosecutors are
entitled to respond to allegations and inferences raised by the defense
even if the prosecutor’s response would otherwise be objectionable. Brown
v. State, 746 N.E.2d 63, 68 (Ind. 2001). Here, counsel for Dumas argued
vehemently that a key State’s witness was fabricating her testimony and
covering for her boyfriend. The prosecutor was entitled to counter with
argument that the witness was not lying and had no reason to do so.
II.
Habitual Offender Finding
Dumas contends that the habitual offender finding should be reversed
because of error in the admission of certain exhibits. The record shows
that over Dumas’ objection the trial court admitted into evidence State’s
exhibit 54 which is identified as consisting of “name card, repeater cards,
information/identification sheet, finger prints and FBI sheets for Ronald
Dumas, M/B, DOB 11/12/1959, SS# XXX-XX-XXXX, B of I# 44470, FBI # 13256T9.”
R. at 812. Dumas also objected to State’s exhibit 58 which is identified
as consisting of “repeater sheet for Ronald Dumas, 9-22-87, SS# 303-68-
5066, DOB 8-31-58, BOFI # 44470.” Id. at 816.[2] Both documents
originated from the offices of the Lake County Sheriff and purport to be
certified pursuant to Indiana Trial Rule 44(A)(1).
Dumas contends “the documents were certified at the beginning and
stated that the foregoing were true, full and accurate.” Br. of Appellant
at 9. However, as Dumas correctly points out “[t]here were no foregoing
documents attached to the certification.” Id. Thus, according to Dumas,
the documents were not properly certified. We have addressed this precise
issue on more than one occasion. The law is now settled that the admission
of documents is not error where the certification is placed on top of the
papers of an exhibit rather than on the back. See Miller v. State, 563
N.E.2d 578, 584 (Ind. 1990) (“[T]he placement of the certificate on top of
the papers rather than on the back in no way causes any confusion as to the
authenticity of the papers.”); Cavendish v. State, 496 N.E.2d 46, 48 (Ind.
1986) (“[T]he authenticity of the documents was not placed into question by
virtue of the fact that the certification was stapled atop the certified
documents.”). The trial court properly admitted State’s exhibits 54 and
58. Accordingly there was no error.
III.
Hearsay During the Penalty Phase
Dumas complains the trial court erred by allowing into evidence at
the penalty phase of trial hearsay evidence offered by the State. The
facts are these. After the jury returned a verdict of guilty on all counts
and after it adjudged Dumas a habitual offender, the case proceeded to the
penalty phase of trial. The State alleged that Dumas was eligible for life
imprisonment based on the statutory aggravator of intentional killing while
committing or attempting to commit robbery. Outside the presence of the
jury, counsel for Dumas addressed the trial court as follows:
I’m actually going to ask the court to let me read in parts of
some of the depositions . . . . Your [sic] know, from my point
of view, this is essentially a sentencing . . . . And hearsay
would be admissible at sentencing, it is typically in this
state, as long as there is some indicia of reliability connected
with it, and the court acts as a gatekeeper on that. I would
assume these same depositions that have been published would
have that indicia of reliability, as would depositions were
[sic] taken but not published.
R. at 655-57. Over objection by the State and after extended arguments by
both sides, the trial court agreed to allow defense counsel to read
portions of depositions to the jury. The jury was then reconvened. The
State called no witnesses. Rather, it moved to incorporate into the
penalty phase of trial all of the evidence and testimony from the guilt
phase as well as the habitual offender phase. The State then made opening
remarks and passed the jury.
In its presentation, counsel for the defense also called no witnesses.
Rather he proceeded with what the court characterized as a “sentencing
argument” that included reading portions of depositions from several
witnesses. Id. at 676. Through the use of depositions the defense
attempted to advance the argument that because of inconsistencies in the
testimony of various witnesses, the substantial involvement of Irving, and
the State’s lack of physical evidence connecting Dumas to the murder, there
was “residual doubt”[3] that Dumas was the shooter and thus a life sentence
was not appropriate.
Before the State proceeded with its rebuttal argument, and outside the
hearing of the jury, the following exchange occurred:
[Deputy Prosecutor]: I believe before we started [defense
counsel] indicated this was a sentencing phase, therefore
hearsay was admissible, reliable hearsay. Is that accurate?
[Court]: Yes.
[Deputy Prosecutor]: I have two pieces of hearsay I would like
to elicit myself.
Id. at 695. One of the items of hearsay was a statement made by Dumas’
cellmate to a third party. According to the third party, the cellmate
alleged Dumas confessed to the murder and robbery. The second was a
written statement by Edrick Wheeler, the person who was alleged to have
driven Dumas and Irving to the crime scene. Although listed as a witness
in the State’s discovery response, Wheeler could not be located before
trial for questioning by the defense, nor did he testify at trial. However
at some point Wheeler gave a sworn statement to an investigating officer.
Defense counsel objected to both statements on the grounds of hearsay. The
trial court sustained the objection with respect to the cellmate’s
statement but overruled the objection concerning Wheeler’s statement. The
State proceeded with its rebuttal that included reading portions of the
Wheeler statement. In essence his statement corroborated Irving’s guilt
phase testimony that Wheeler drove Dumas and Irving to a location near the
car lot.
Hearsay is a statement made out-of-court that is offered into
evidence to prove the truth of the matter asserted. Ind. Evidence Rule
801(c); Kubsch v. State, 784 N.E.2d 905, 919 (Ind. 2003). It is clear that
Wheeler’s statement was hearsay. As such it was not admissible at trial
unless it fell within some exception to the hearsay rule. Although
technically not an exception to the hearsay rule, Indiana Evidence Rule
101(c) provides in pertinent part:
The rules [of evidence], other than those with respect to
privileges, do not apply in the following situations . . .
[p]roceedings relating to extradition, sentencing, probation, or
parole; issuance of criminal summonses, or of warrants for
arrest or search, preliminary juvenile matters, direct contempt,
bail hearings, small claims, and grand jury proceedings.
(emphasis added); see also Letica v. State, 569 N.E.2d 952, 957 (Ind. 1991)
(observing that “strict rules of evidence do not apply in sentencing
hearings and that hearsay evidence . . . is admissible”). In this case the
trial court apparently accepted Dumas’ argument that the penalty phase of a
life without parole trial was in the nature of a sentencing proceeding and
thus allowed Dumas to introduce hearsay testimony. Although the record is
unclear, apparently the trial court allowed the State to introduce hearsay
for the same reason.
A sentence of life without parole is subject to the same statutory
standards and requirements as the death penalty. Ajabu v. State, 693
N.E.2d 921, 936 (Ind. 1998). Under the death penalty statute, following
the completion of the guilt-determination phase of the trial and the
rendering of the jury’s verdict, the trial court reconvenes the jury for
the penalty phase. Brown v. State, 783 N.E.2d 1121, 1127 (Ind. 2003). As
with capital punishment, before life imprisonment can be imposed, the State
must prove beyond a reasonable doubt at least one aggravating circumstance
listed in subsections (b)(1) through (b)(16) of the statute. See I.C. § 35-
50-2-9; see also Bivins v. State, 642 N.E.2d 928, 955-56 (Ind. 1994). Once
the jury deliberates and has made its recommendation, the jury is
dismissed.
Indiana Evidence Rule 101(c) makes clear that with the exception of
grand jury proceedings,[4] the proceedings in which the rules of evidence
do not apply involve those where evidence is presented to a trial judge
alone without the intervention of a jury. Id. The rationale for exempting
certain proceedings, including sentencing, from the rules of evidence is to
provide the trial judge with the widest range of relevant information in
reaching an informed decision. We presume the trial judge is aware of and
knows the law, and considers only evidence properly before the judge in
reaching a decision. Emerson v. State, 695 N.E.2d 912, 917 (Ind. 1998);
Birdsong v. State, 685 N.E.2d 42, 47 (Ind. 1997). By contrast, where the
guilt-determination phase of a capital trial is presented to a jury, the
penalty phase is also presented to a jury. Like the guilt-determination
phase, the penalty phase of a capital trial requires the introduction of
evidence with the burden on the State to prove its case beyond a reasonable
doubt. Despite the statute’s characterization of the penalty phase as a
“sentencing hearing,” see I.C. § 35-50-2-9(d), this phase is nonetheless in
the nature of a trial to which the rules of evidence apply.
Of course our evidentiary rules are subject to limitations imposed by
applicable provisions of the Indiana Constitution as well as the Federal
Constitution. See, e.g., Green v. Georgia, 442 U.S. 95, 97 (1979)
(declaring that the State’s hearsay rule to the contrary notwithstanding,
the exclusion of certain hearsay testimony offered by the defendant in the
penalty phase of a capital trial violated the Due Process Clause of the
Fourteenth Amendment). However, that is not to say that the rules of
evidence do not apply in the penalty phase of a capital trial. The facts
supporting eligibility for the death penalty or life without parole must be
found beyond a reasonable doubt. And in a jury trial, the jury must find
these facts. See Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New
Jersey, 530 U.S. 466 (2000). In sum, we conclude that contrary to the
trial court’s determination, the rules of evidence are applicable in the
penalty phase of a capital trial. Thus, by allowing the State to introduce
hearsay testimony during this phase, the trial court erred.
However, the error was invited. The court apparently allowed the
introduction of the out-of-court statement based on Dumas’ contention that
the penalty phase of trial was essentially a sentencing hearing in which
hearsay is admissible. A party may not invite error and then later argue
the error supports reversal. Kingery v. State, 659 N.E.2d 490, 494 (Ind.
1995). Error invited by the complaining party is not reversible error.
Id. Accordingly Dumas is entitled to no relief on this issue.
IV.
Life Imprisonment Without Parole
For his last allegation Dumas challenges the trial court’s sentencing
order. As indicated in the Facts section of this opinion, while this case
was pending before us we remanded this cause to the trial court for
issuance of a new sentencing order. In his initial appeal, Dumas contended
the sentencing order was deficient because the trial court “failed to allow
for the disparity of sentences [imposed in Lake County] and did not
properly engage in the weighing of mitigators and aggravators.” Br. of
Appellant at 9. The State challenged both contentions, but agreed the
trial court’s sentencing order was deficient for different reasons: (i) the
statement included non-capital aggravators, see Pope v. State, 737 N.E.2d
374, 383 (Ind. 2000) (noting that whether imposing a death penalty or a
sentence for life without parole, trial courts must “limit the aggravating
circumstances eligible for consideration to those specified in the death
penalty statute, Indiana Code Section 35-50-2-9(b)”) (quoting Bivins, 642
N.E.2d at 955), and (ii) the sentencing order failed to set forth the trial
court’s personal conclusion that life imprisonment was the appropriate
punishment for the offender and the crime. See Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995) (noting a capital sentencing statement must
include, among other things, “the trial court’s personal conclusion that
the sentence is appropriate punishment for this offender and this crime”).
Upon remand the trial court entered a revised sentencing order that
provides in pertinent part:
The court finds that the aggravating circumstance alleged by the
state, namely that the defendant did intentionally kill the
victim in Count I while committing or attempting to commit
robbery was proved beyond a reasonable doubt.
The evidence at trial showed that the defendant and his
accomplice entered the used car business of the victims in
Counts I and III with the intent to commit a robbery. Each was
armed with a handgun. The defendant demanded money from the
victim in Count I, then shot him several times at close range.
The defendant also shot the victim in Count III, who is now
paralyzed. A charge of Attempted Murder was not filed as to
that victim, but could have been sustained by the evidence. The
defendant fired his weapon at another man who was present, but
who escaped.
The evidence proved beyond a reasonable doubt that the defendant
was willing to kill anyone present to facilitate the robbery.
The jury, after being instructed that the state must prove the
aggravating circumstance beyond a reasonable doubt and that any
mitigating circumstances are outweighed by aggravating
circumstance, returned a Verdict that recommends Life
Imprisonment Without Parole be imposed upon the defendant. The
court has examined each of the mitigating circumstances that may
be considered, pursuant to I.C. 35-50-2-9(c) and finds the [sic]
those referred to in (C)(1) throrough [sic] (7) do not exist and
that any mitigation shown in (C)(8) is outweighed by the
aggravating circumstance.
In summary, the court in full consideration of the evidence and
the verdict of the jury does now conclude that Life Imprisonment
Without Parole is the appropriate punishment.
Appellant’s Supplemental App. at 4-5. Dumas contends that even as revised,
the sentencing order is nonetheless deficient because the trial court still
“failed to identify with specificity what mitigating factors were present
and what weight it assigned to those factors.” Supplemental Br. of
Appellant at 3.
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, 361 (Ind. 2001); Pope, 737 N.E.2d at 382; Nicholson
v. State, 734 N.E.2d 1047, 1048 (Ind. 2000); Rawley v. State, 724 N.E.2d
1087, 1091 (Ind. 2000); Ajabu, 693 N.E.2d at 936. We have previously set
forth those requirements as follows:
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, 644 N.E.2d at 1262 (citations omitted). In Holsinger, we vacated
the defendant’s life sentence in part because the trial court’s sentencing
order did not meet the requirements of Harrison. Holsinger, 750 N.E.2d at
363. Dumas argues the sentencing order in this case suffers the same
infirmity.
The trial court in this case specifically found the existence of the
statutory aggravator: intentional killing while committing or attempting to
commit robbery. See I.C. § 35-50-2-9(b)(1)(G) (West 1998). And the trial
court recounted relevant portions of the evidence to support its finding.
The trial court also determined that the statutory mitigating factors set
forth in Indiana Code section 35-50-2-9(c)(1) through (c)(7) did not
exist.[5] Dumas makes no claim that the trial court erred in finding the
existence of the aggravating factor; nor does he challenge the trial
court’s finding that the mitigating factors in (c)(1) through (c)(7) did
not exist. Rather, his complaint concerns the statutory mitigator set
forth in (c)(8), “other circumstances appropriate for consideration.”
According to Dumas, he raised residual doubt as a mitigating factor. Dumas
then argues that by indicating, “any mitigation shown in (c)(8) is
outweighed by the aggravating circumstance,” the trial court identified
residual doubt as mitigating evidence and thus “was duly bound to state how
it arrived at its existence and how it weighed that evidence against the
aggravator.” Supplemental Br. of Appellant at 8. We disagree with this
assessment.
The record shows that at the sentencing hearing Dumas introduced no
evidence of mitigation whatsoever. Instead he argued that the imposition
of a life sentence would be disproportionate to sentences imposed on
similarly situated defendants. More specifically Dumas contended that
there had been instances in Lake County where defendants had committed
offenses more heinous than those in this case, including the commission of
multiple homicides, and the prosecutor sought neither the death penalty nor
life without parole. R. at 729-37. Dumas argued that on this ground the
trial court should impose a term of years. Id. Dumas made no reference to
residual doubt, an argument made to and rejected by the jury nearly two
months earlier at the penalty phase of trial.
We acknowledge the trial court’s sentencing order is not a model of
clarity and explicitness. However, the record makes clear that the trial
court’s reference to “any mitigation shown in (c)(8)” was in direct
response to the claim Dumas presented at sentencing. Cf. Holsinger, 750
N.E.2d at 363 (recounting the mitigating circumstances the defendant
introduced, which included evidence of his youthful age, domination by
another, his troubled childhood, lack of criminal history, intoxication,
his surrender to and cooperation with authorities, and his remorse). It is
apparent the trial court in this case determined that the sole factor Dumas
presented as “mitigating,” namely, the imposition of a life sentence would
be disproportionate to sentences imposed on similarly situated defendants,
was outweighed by the aggravating factor. The finding of mitigating
circumstances is within the discretion of the trial court. Powell v.
State, 769 N.E.2d 1128, 1134 (Ind. 2002); Shields v. State, 699 N.E.2d 636,
639 (Ind. 1998). However, the trial court does not abuse its discretion in
failing to consider a factor that was never raised at sentencing.
Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000). We find no abuse.
The trial court’s sentencing order was sufficient.
Conclusion
The judgment of the trial court is affirmed.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., concurs except as to sentence. Finding the sentencing order
inadequate, he would impose a term of 95 years. See Brown v. State, 783
N.E.2d 1121 (Ind. 2003).
-----------------------
[1] Both Dumas and the State refer to the trial court’s remark, “[t]o that
extent, if that’s how the jury took it, the defense does not have a burden
of proof,” as an admonishment to the jury. However, the record is not at
all clear whether the trial court was actually addressing the jury or
simply responding with commentary to Dumas’ objection. In any event Dumas
does not contend that he was dissatisfied with this supposed admonishment.
And the record is also clear that Dumas never requested a mistrial.
[2] In a footnote Dumas points to a discrepancy between the dates of birth
on the two exhibits. Br. of Appellant at 9 n.3. However he advances no
argument in this regard. Any claimed error is waived.
[3] See Miller v. State, 702 N.E.2d 1053, 1069 (Ind. 1998) (describing
residual doubt as “when a jury finds a defendant guilty beyond a reasonable
doubt, there still may be a measure or residuum of doubt about the
defendant’s guilt”).
[4] A grand jury is an accusatory body whose “primary duty is to
investigate the possibility of and make a determination as to whether or
not probable cause exists to believe that one or more criminal offenses may
have occurred.” Ajabu v. State, 677 N.E.2d 1035, 1040 (Ind. Ct. App.
1997), trans. denied. In that sense its function is similar to that of a
judge in a proceeding relating to the “issuance of criminal . . . warrants
for arrest.” Evid. R. 101(c).
[5] Indiana Code section 35-50-2-9(c) (West 1998) provides:
The mitigating circumstances that may be considered under this section are
as follows:
1) The defendant has no significant history of prior criminal conduct.
2) The defendant was under the influence of extreme mental or emotional
disturbance when the murder was committed.
3) The victim was a participant in or consented to the defendant’s
conduct.
4) The defendant was an accomplice in a murder committed by another
person, and the defendant’s participation was relatively minor.
5) The defendant acted under the substantial domination of another
person.
6) The defendant’s capacity to appreciate the criminality of the
defendant’s conduct or to conform that conduct to the requirements of
law was substantially impaired as a result of mental disease or defect
or of intoxication.
7) The defendant was less than eighteen (18) years of age at the time the
murder was committed.
8) Any other circumstances appropriate for consideration.