Overstreet v. State

Attorneys for Appellant

Teresa D. Harper
Bloomington, IN

Jeffrey Baldwin
Indianapolis, IN

Attorneys for Appellee

Steve Carter
Attorney General of Indiana

Timothy W. Beam
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

MICHAEL DEAN OVERSTREET
Appellant (Defendant below),

v.

STATE OF INDIANA
Appellee (Plaintiff below).

)
) Supreme Court No.
) 41S00-9804-DP-217
)
)
)
)

APPEAL FROM THE JOHNSON SUPERIOR COURT 2
The Honorable Cynthia S. Emkes, Judge
Cause No. 41D02-9711-CF-00158

ON DIRECT APPEAL

February 24, 2003

SULLIVAN, Justice.

Defendant Michael Dean Overstreet was convicted of murder, rape, and
criminal confinement and sentenced to death for abducting, sexually
assaulting, and killing a young woman. The principal aggravating
circumstance supporting the sentence is intentional murder while committing
rape. In this opinion, we review Defendant’s claims that evidence against
him was improperly admitted at his trial, that the evidence was
insufficient to sustain the conviction for rape, and that he should not
have been sentenced to death. Our review finds his claims unavailing and
we affirm the convictions and death sentence.

Background

Many of Defendant’s claims in this appeal relate to the way in which
the evidence against him was obtained or presented at trial. As such, we
begin with a rather detailed review of that evidence.

The facts, presented in the form most favorable to the trial court’s
judgment, indicate that at 10:00 p.m. on September 26, 1997, 18-year old
Eckart finished her shift at Wal-Mart. Her boyfriend, Anthony Evans, and
his mother met her after her shift and the three shopped at the Wal-Mart
for about an hour. Afterward, Eckart decided to go home because it was
late. Evans decided to go home as well.

Eckart and Evans left for their respective homes in separate cars.
Both headed north on U.S. 31 but Eckart turned right onto Earlywood Drive
and Evans continued north on U.S. 31. Evans testified that he did not see
her alive again.

Between midnight and 12:30 a.m., Eckart’s car was found at the
intersection of Graham and Earlywood Drive by two passers-by. The car was
slightly off the road, its lights were on, the keys were in the ignition,
and Eckart’s purse was on the car seat. The police were called to
investigate.

Franklin Police Officer Michael Moore drove to the scene and saw
Eckart’s car on the side of the road. The car’s rear bumper had been
damaged but the car was otherwise still in working order. Eckart’s mother,
Connie Sutton, testified that she had not noticed the mark on the car
before. Police searched the area but did not find Eckart.

Defendant’s brother, Scott Overstreet, testified that Defendant
telephoned him sometime after midnight on September 27, 1997, and asked him
to come to the Franklin Days Inn because his car had broken down and he
needed a ride home. When Scott arrived at the hotel, Defendant approached
him. Defendant said that he and his “girlfriend” had been drinking and
asked Scott to drive him and his girlfriend to Edinburgh in Defendant’s
van. In the periphery of his vision, Scott saw something white in the back
of the van.

Scott further testified that as he was driving southbound on Highway
31 toward Edinburgh, Indiana, Defendant asked him to drive to Camp
Atterbury instead because he had “taken a girl” and was going to take her
into the woods and get her lost. (R. at 3223, 3226, 3229.) Scott followed
Defendant’s directions, finally stopping at a gravel turnaround in Camp
Atterbury. Defendant asked Scott to come pick him up in two hours but
Scott refused. Defendant then told Scott to have Defendant’s wife, Melissa
Overstreet, pick him up at the Atterbury shooting range in two hours.
Scott placed his hands over his face while Defendant got out of the van.

After hearing the sliding door to the van close, Scott drove to
Defendant’s home and gave Melissa Defendant’s instructions. Melissa drove
Scott back to his car at the Days Inn. She then returned home to ask
Scott’s wife to baby-sit while she went to pick up Defendant.

Melissa testified that before driving to the shooting range, she
searched the van and found several empty shell casings and a container of
mace that she had not seen before that night. Melissa then drove to the
shooting range where she found Defendant sweating with his flannel shirt
unbuttoned. He was also carrying a blanket and had a gun strap over his
shoulder.

When Defendant and Melissa arrived home, Defendant immediately went
into the bathroom. He came out, undressed, and went to bed. Later that
night, Scott called Defendant’s home two or three times because he wanted
his wife to come home. After one of these calls, Defendant got on the
phone. Scott told Defendant that he had said “some pretty fucked up
stuff.” (R. at 3234.) Defendant explained that he could not get caught
because he had a child and a wife and that his “girlfriend” had a boyfriend
and lived with her father. Defendant then hung up the phone, got dressed,
and walked out of the house. An hour or so later, Melissa heard the van
return. Defendant came back in the house, and went back to bed.

The following Monday, September 29, 1997, Defendant told Melissa that
he wanted to clean the van. After going to Defendant’s father’s house to
borrow money, Defendant, Melissa, and their children drove to Mike’s
Express Car Wash. Defendant spent about an hour cleaning and vacuuming the
inside rear of the van. When Melissa started cleaning the front of the
van, Defendant told her not to worry about it.

Melissa testified that in the days after Eckart’s disappearance,
Defendant watched the news with increased frequency. He would sit in front
of the television, flipping from channel to channel, watching news
coverage. When a station was airing a story on Eckart, he would watch it
and after the story was finished he would resume switching channels.
Melissa stated that Defendant “got to the point where he knew which channel
was going to have the coverage over Kelly Eckart first.” (R. at 3886.)
Defendant also wanted to read news articles concerning Eckart. When he
finished reading a story on Eckart, he would usually stop reading the
newspaper.

On September 30, 1997, Shelia Woodcock and Pat Burks were looking for
some puppies they had seen on the side of the road in Camp Atterbury.
Instead, Shelia Woodcock found Eckart’s body lying in a ravine. She
reported the discovery to the police.

Indiana State Police Trooper J.D. Maxwell went to the scene. He
found Eckart with her bib overalls down around her ankles. She was wearing
her bra and panties and her white shirt was tucked in the back of her bra.
She also had a ligature around her neck.

On October 18, 1997, Franklin Chief of Police found Eckart’s shoes
and socks stuffed into a pit toilet at Camp Atterbury.

On November 6, 1997, police received a tip that Scott had information
about Eckart’s murder. Scott voluntarily recounted what happened that
night and directed the officers to the gravel turnaround where he had left
Defendant on the morning of September 27, 1997. In a search of the area,
the officers found Eckart’s glasses, hair scrunchie, pager, necklace,
locket, earring posts, and buttons from her overalls.

On November 7-8, 1997, the Franklin Police Department executed search
warrants on Defendant’s home. The police seized a hand-drawn map of Camp
Atterbury and a blanket from the living room. They also seized a carpet
standard from Defendant’s van for analysis. The fibers were found to match
fibers found on Eckart’s shirt and overalls. The officers also measured
the height of the van’s front bumper and found that, at 15-22 inches off of
the ground, it was at the same height as the damaged area of Eckart’s car.

Doctor Michael Allen Clark later conducted an autopsy and discovered
that Eckart’s shoestring and a strap to her bib overalls had been wrapped
around her throat. He also found a circular wound in the forehead
consistent with a gunshot wound. In addition, he discovered numerous post-
mortem abrasions that were caused by dragging her body on the ground. He
concluded that the cause of Eckart’s death was ligature strangulation. The
time of death was estimated to be between 11:00 p.m. on September 26, 1997,
and 6:38 a.m. on September 27, 1997.

Dr. Clark also conducted a sexual assault examination consisting of
taking swabs from Eckart’s mouth, vagina, and anus. He made slides of each
and examined them for the presence of sperm. He identified the presence of
semen in the vaginal test but not in any of the others.

After preparing these slides, Dr. Clark gave them to the evidence
technician, Trooper Maxwell. Trooper Maxwell placed the swabs on
individual envelopes to dry. During the drying process, a lab attendant
moved them across the room. Trooper Maxell then placed the swabs in
different envelopes without knowing whether he placed the swabs in the
corresponding anal, mouth, and vaginal envelopes.

Paul Misner, an Indiana State Police serologist, analyzed the swabs
and slides from Eckart’s sexual assault kit. Based on his evaluation of
the slide and his knowledge, experience, and training, he determined that
Maxwell had placed the vaginal swab in the anal swab envelope and the anal
swab in the vaginal swab envelope. Misner then looked at the slides that
were prepared from the swabs and saw that the vaginal smear slide was
“typical of a vaginal smear slide” and the anal slide was “typical of an
anal slide.” (R. at 4353.) He found no sperm on the anal slide.

Jennie Wood, a DNA analyst, examined a sample of Defendant’s blood and
made a DNA profile using both the polymerase chain reaction (“PCR”) copying
process and short tandem repeat (“STR”) typing system. Using the PCR
process, Wood determined that the sperm found in Eckart’s underwear was
consistent with Defendant’s profile and occurs in approximately 1 in 9
thousand. Using the STR typing system, Wood found that the male fraction
found in Eckart’s underwear was consistent with Defendant’s DNA profile and
occurs in 1 in 12 billion.

Dr. Michael Conneally, a Professor of Medical Genetics and Neurology
at Indiana University, also compared Defendant’s and Eckart’s DNA profiles
with the vaginal slide. He testified that the male fraction in the slide
was a mixture to which Defendant and Eckart could be contributors. He did,
however, compute a statistical significance in that the male fraction
occurs in 1 in 27 million.

Dr. Conneally then compared the DNA profiles with Eckart’s underwear
and found that the male fraction occurred in 1 in 9 thousand using PCR
testing and 1 in 12 billion using STR typing. Dr. Conneally then compared
the DNA profiles with the swabs and found that the male fraction occurred
in 1 in 6 using PCR testing and 1 in 304 million using STR typing. After
Dr. Conneally removed the common gene found in Eckart’s underwear with both
STR and PCR testing, he multiplied the remaining genes to get an overall
chance of this profile that was consistent with Defendant’s profile and
found that it occurs in 1 in 4 trillion.

Due to pre-trial publicity, the jury was drawn from a different
county. The jury found Defendant guilty of murder,[1] felony murder,[2]
rape,[3] class B felony confinement,[4] and class D felony confinement.[5]
Pursuant to the Indiana death penalty statute, the jury then reconvened to
consider the State’s request that Defendant be sentenced to death because
of the following aggravating circumstances:

(1) Defendant committed the murder by intentionally killing Kelly
Eckart while committing or attempting to commit rape;[6]

(2) Kelly Eckart was the victim of a sex crime under Ind. Code § 35-
42-4 (rape) for which Defendant was convicted;[7] and

(3) Kelly Eckart was the victim of criminal confinement under Ind.
Code § 35-42-3-3 for which Defendant was convicted.[8]

The jury recommended that Defendant receive a death sentence. The
trial court subsequently determined that the State established the charged
aggravators beyond a reasonable doubt. After giving weight only to the
first aggravating circumstance listed above, i.e., Defendant’s intentional
killing while committing rape, the court found that this aggravator
outweighed Defendant’s mitigating evidence, and determined death to be the
appropriate sentence. The trial court then entered judgment on the murder,
rape, and Class B confinement counts and sentenced Defendant to death. It
imposed consecutive sentences of 20 years each for the rape and criminal
confinement convictions.

Additional facts will be discussed as necessary.

Discussion

Defendant contends that his convictions should be reversed because
the trial court improperly permitted certain evidence to be used at trial.
We address these claims in parts I and II and IV through VI of this
opinion. He also maintains that there was insufficient evidence to sustain
the convictions, a claim we address in part III. Finally, we address his
claims of sentencing error in parts VII through XII.

I

As described under Background, supra, the State presented DNA
evidence that showed that sperm found in Eckart’s underwear was consistent
with Defendant’s profile. This evidence was derived from a process called
polymerase chain reaction (PCR) and a newer process called short tandem
repeat (STR). Defendant does not contest on appeal the proper admission of
the PCR evidence but does argue that the trial court erred by admitting the
STR analysis.

The results of DNA testing, like any other evidence aided by expert
testimony, must be offered in conformity with the Indiana Rules of
Evidence. Jervis v. State, 679 N.E.2d 875, 881 (Ind. 1997); Harrison v.
State, 644 N.E.2d 1243, 1251 (Ind. 1995). Accordingly, DNA testimony
becomes admissible as evidence when the trial court is satisfied that:
“(1) the scientific principles upon which the expert testimony rests are
reliable; (2) the witness is qualified; and (3) the testimony’s probative
value is not substantially outweighed by the dangers of unfair prejudice.”
Ingram v. State, 699 N.E.2d 261, 262 (Ind. 1998) (quoting Harrison, 644
N.E.2d at 1252). Indiana does not recognize a test or specific set of
elements to satisfy reliability of a process under the rules of evidence.
See McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997). We review the
trial court’s decision to admit the STR test results for an abuse of
discretion. Ingram, 699 N.E.2d at 262.

Defendant makes no substantial direct attack on the reliability of
the scientific principles supporting STR testing per se.[9] He does not
argue that either Dr. Conneally or Wood, the State’s STR experts, was not
qualified to testify as to the test results. Nor does he argue that the
evidence was unfairly prejudicial. What he does argue, as best we
understand the claim, is this: the only basis that the State arguably gave
the court to pass on the scientific reliability of STR testing was the
testimony of Wood and Dr. Conneally; Wood was not qualified to testify as
to the reliability of the STR process and Dr. Conneally did not; therefore,
the court had no basis to find the evidence scientifically reliable.

While the State might have done more to establish the scientific
reliability of STR testing (Wood does not seem to have been entirely up-to-
speed on the scientific principles upon which STR testing is based), we do
not think Defendant has established reversible error. First, Defendant at
trial made no – and on appeal makes only a modest[10] – argument that STR
testing is unreliable. While the proponent of the evidence bears this
burden at trial, we are now reviewing the trial court’s decision to admit
for abuse of discretion. What we do have here is the testimony of two DNA
experts, the qualifications of whom Defendant does not challenge, and our
own review of STR technology in a recent case. Wood testified that she held
an undergraduate degree in genetics and participated in a year-long
internship-training program dealing with DNA analysis with the Indiana
State Police. She further testified that she worked for four and a half
years as a DNA analyst for the Indiana State Police before she became a
serology analyst for the Greenwood Police Department. She then testified
that based on her education, experience, and training, as well as her
review of relevant scientific literature, STR testing is based on reliable
scientific principles.

And although Dr. Conneally described STR testing as “relatively new,”
he did not question its reliability. He testified that DNA analysts often
rely on STR analysis and that it is a generally accepted technique in the
scientific community.

In Troxell v. State, 778 N.E.2d 811 (Ind. 2002), this court found that
STR testing is generally regarded as reliable – as both the scientific
literature and a multitude of state courts have similarly concluded. Id.
at 815-16 (citing cases).

Under this combination of circumstances, we conclude that the trial
court was within its discretion to admit the STR evidence.

II

Defendant next contends that the trial court erred in admitting the
testimony of Misner, a witness whom Defendant claims “had no expertise or
specialized knowledge in the area of his observation.” (Br. of Appellant
at 23.) The testimony of Misner to which Defendant takes issue was, as
discussed under Background, supra, that swabs taken of Eckart’s vagina were
apparently inadvertently placed in an envelope marked “anal” and swabs
taken of her anus were placed in an envelope marked “vaginal.”[11]
Defendant contends that Misner’s training in serology (the scientific study
of fluid components of the blood) does not qualify him to testify in a
matter relating to the identification of various cells, something which
Defendant contends is the unique specialty of a cytologist.

There is no hard and fast rule as to the quantum of knowledge required
to qualify a witness as an expert in a given field. Fox v. State, 506
N.E.2d 1090, 1095 (Ind. 1987); Reid v. State, 267 Ind. 555, 372 N.E.2d
1149, 1152 (1978). “The witness must be shown to be competent upon the
subject concerning which she is to testify. The extent of the witness’
knowledge affects the weight of her testimony, not its admissibility.”
Burp v. State, 612 N.E.2d 169, 171 n.1 (Ind. Ct. App. 1993) (citing Fox,
506 N.E.2d at 1095). “A witness may be qualified by both training and
practical experience.” Id. (citation omitted).

We disagree with Defendant’s proposition that Misner was required to
have had the expertise of a cytologist in order to have the specialized
knowledge required to observe that the swabs were incorrectly labeled. The
record shows that Misner had substantial experience dealing with matters
relevant to his testimony in this case. He earned a B.S. in biology and
was a serologist for six years before becoming serologist supervisor.
Subsequently, he became a DNA supervisor and later was named the supervisor
of the DNA database at the Indiana State Police Laboratory. As part of his
training, Misner was taught to look at vaginal swabs and to differentiate
between sperm and other types of cells. He also learned to identify and
differentiate vaginal cells from other cell types. At trial, Misner
testified that he had tested several thousand vaginal smears and every one
had vaginal epithelial cells. In light of Misner’s experience, training,
and education, it was not an abuse of discretion for the trial court to
allow his testimony on this matter.

The propriety of the trial court’s admission of Misner’s testimony is
further substantiated by Misner’s other observations supporting his
opinion. Misner testified that the swab labeled “vaginal” contained fecal-
type debris and that the swab labeled “anal” looked “like vaginal swabs.”
(R. at 4352-54.) Misner tested this observation by comparing the
mislabeled swabs with properly labeled anal and vaginal smear slides.
Through this comparison he was able to confirm that the swabs had been
incorrectly identified. We find Misner’s explanation for the discrepancy
in labeling highly plausible. See Jervis, 679 N.E.2d at 881.

III

Defendant contends that the evidence presented at trial was
insufficient as a matter of law to establish that he committed the crime of
rape. This claim is particularly important because the principal
aggravating circumstance supporting Defendant’s death sentence is that he
intentionally killed Eckart while committing or attempting to commit rape.
As such, if the rape conviction does not stand, the death sentence itself
would be in jeopardy.

In reviewing a sufficiency of the evidence claim, the Court neither
reweighs the evidence nor assesses the credibility of the witnesses. See
Garland v. State, 719 N.E.2d 1236, 1238 (Ind. 1999), reh’g denied. We look
to the evidence most favorable to the verdict and draw reasonable
inferences therefrom. See Sanders v. State, 704 N.E.2d 119, 123 (Ind.
1999). A conviction will be upheld if there is substantial evidence of
probative value from which a jury could have found the defendant guilty
beyond a reasonable doubt. See Warren v. State, 725 N.E.2d 828, 834 (Ind.
2000).

Defendant’s contention that there was not sufficient evidence to
establish that he committed rape rests on his claim that “the State relied
solely upon the evidence of sperm being found on specimens taken during the
autopsy of the victim” to prove Defendant raped Eckart. (Br. of Appellant
at 36.) Defendant believes this evidence to be insufficiently “reliable”
to support a rape conviction and, by extension, to show that he
intentionally committed murder during the commission of a rape. (Br. of
Appellant at 38.)

As discussed supra, Defendant was convicted of rape, a Class B
felony. Indiana Code § 35-42-4-1 (1993) defines the crime as follows:

A person who knowingly or intentionally has sexual intercourse with a
member of the opposite sex when:

1) the other person is compelled by force or imminent threat of force;

2) the other person is unaware that the sexual intercourse is
occurring; or

3) the other person is so mentally disabled or deficient that consent
to sexual intercourse cannot be given;

commits rape, a Class B felony.

In this case, three witnesses testified that Defendant’s semen was
found in Eckart’s vaginal region.

Dr. Clark, a forensic pathologist, performed an autopsy on Eckart. As
part of the autopsy he examined the genitals of the decedent and took oral,
vaginal, and anal swabs for future analysis. He made more than one set of
slides from the swabs—giving unlabelled slides he did not intend to keep
for himself to evidence technician J.D. Maxwell during the autopsy. Dr.
Clark marked the slides he kept for himself with the autopsy number, set
them on a cardboard tray meant to hold slides, and placed the tray on a
table where he would know where it was after the autopsy. One of the
technicians then carried the slides to the cytology lab in the hospital
where they were stained and cover slips were affixed. Dr. Clark’s
secretary retrieved the prepared slides for him to examine. Dr. Clark
testified that, upon examination, he “saw sperm in the vaginal smear”
indicating that sperm was in the vagina. (R. at 3641.) He found no
evidence, however, of sperm in the mouth or anus. From this evidence, the
jury could properly infer that Defendant had intercourse with Eckart.

Misner also testified to the presence of Defendant’s semen in Eckart’s
vagina. Defendant’s contention that Misner lacked the specialized
knowledge or expertise to give this opinion is his sole objection to this
testimony. As explained in section II, Misner was qualified to present
this testimony.

We also observe that Eckart’s car was found abandoned on the side of
the road and her body was discovered with a ligature around her neck. An
autopsy revealed the ligature to be the result of Eckart’s having been
strangled to death by a shoelace and the strap from her bib overalls. A
circular wound, consistent with a gunshot wound, was also noticed by
investigators.

In light of these facts, the jury could properly infer that the State
had proved the elements of the crime of rape beyond a reasonable doubt,
i.e., that Defendant had vaginal intercourse with Eckart and that Defendant
had compelled Eckart to comply by force or imminent threat of force or that
she was unaware that the sexual intercourse was occurring.

IV

Defendant maintains that the trial court should have declared a
mistrial when it discovered that the State had failed to disclose to
Defendant that Defendant’s wife had changed her testimony prior to trial.
Instead of declaring a mistrial, the trial court fashioned its own remedy
and barred the State from rehabilitating the witness after Defendant
impeached her testimony with her prior inconsistent statements.

Prior to trial, Melissa gave a statement to law enforcement on three
occasions and testified before a grand jury. She was also deposed once.
On each of these occasions, she stated either that she had no knowledge of
Defendant’s activities on the Monday following the offense or that she had
no further information relevant to the investigation at all. The defense
was apprised of these statements and testimony.

During trial, however, Melissa testified that on the Monday following
the offense, she, Defendant, and their four children took Defendant’s van
to the car wash but did not wash its exterior. She further testified that
Defendant spent close to an hour cleaning the interior of the van from
behind the driver and passenger seats to the bed area in the rear of the
van. She also testified that Defendant showed no interest in cleaning the
front passenger seats or the floorboard.

In a hearing outside the presence of the jury, it was revealed that
Melissa, accompanied by her attorney, had given the prosecution this
version of Monday’s events prior to trial. The prosecutor told the court
that she had said she had not described the Monday happenings in her other
statements because Defendant had physically abused her in the past and she
feared what he might do to her in the future should he be acquitted knowing
she had incriminated him. The State had not notified the defense about
this development.

The trial court found the withholding of this information to have been
improper. While denying the Defendant’s motion for a mistrial, the trial
court prohibited the State from offering any evidence to rehabilitate
Melissa following defense impeachment of her inconsistent statements to
police. This, of course, had the effect of preventing the State from
asking about domestic violence as a reason for the inconsistencies.

Defendant’s first argument for mistrial is that the State’s failure to
share Melissa’s testimony regarding Monday’s events constituted a violation
of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Defendant
particularly focuses on Brady’s language that “the suppression by the
prosecution of evidence favorable to an accused is material either to guilt
or to punishment, irrespective of the good faith or bad faith of the
prosecution.” 373 U.S. at 87. In Brady, the prosecution withheld extra-
judicial statements, which, had they been released, would have favored the
defendant. It was not until after trial, conviction, and sentencing that
the withheld statement was revealed. In contrast, the withheld evidence
here was unfavorable to Defendant and was revealed during, not after,
trial. Brady applies to the discovery of favorable evidence after trial
and does not apply here.[12] See Lowrimore v. State, 728 N.E.2d 860, 867
(Ind. 2000).

Defendant’s second argument for a mistrial is that the State’s late
disclosure of Melissa’s statement constituted prosecutorial misconduct.
Defendant maintains that his unawareness of Melissa’s testimony fatally
damaged Defendant’s due process right to an adequate cross-examination by
limiting his tactical options. He says that he “found himself on the
‘path’ and was unable to have prepared or proceeded differently” without
opening the door to “his prior bad acts.” (Reply Br. of Appellant at 18.)

A claim of prosecutorial misconduct requires a determination that
there was misconduct by the prosecutor and that it had a probable
persuasive effect on the jury’s decision. Lowrimore, 728 N.E.2d at 867;
Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998); see also Ind. Professional
Conduct Rule 3.8(d) (“The prosecutor in a criminal case shall: make timely
disclosure to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates the
offense, and, in connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known to the
prosecutor, except when the prosecutor is relieved of this responsibility
by a protective order of the tribunal”). Absent clear error and resulting
prejudice, the trial court’s determination of violations and sanctions will
be affirmed. Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). “A
mistrial is ‘an extreme remedy granted only when no other method can
rectify the situation.’” Lowrimore, 728 N.E.2d at 867; see also Williams,
714 N.E.2d at 649.

The parties dispute whether the trial court found the State’s belated
disclosure of Melissa’s impeachment testimony to be misconduct. The trial
court made clear that it viewed the failure to disclose as a “serious”
implication of due process concerns.

Although the State should have disclosed the evidence in question, the
State’s failure to disclose was adequately remedied by the trial court. In
making this determination, we note that the trial court spent considerable
time and effort in addressing Defendant’s legitimate concerns. The trial
court’s remedy placed the parties in the position they would have been in
had the disclosure been properly made.

It is difficult to see how the trial court’s remedy had a probable
persuasive effect on the jury’s decision. Defendant’s claim that his
ability to cross-examine Melissa was oppressively curtailed is without
merit. Defendant was left free to ask the witness a wide range of
questions, such as whether she had been truthful in her statements or
whether she had violated her immunity agreement by not volunteering more
information. Defendant was merely prohibited from asking Melissa why she
had not been consistent, which is a question that Defendant specifically
told the trial court he would not have asked had the State properly
disclosed the inconsistent testimony beforehand. Furthermore, were we to
find in Defendant’s favor on this issue, the State on retrial would no
longer be bound by the order not to reveal Defendant’s history of domestic
violence and the attendant fear of Melissa. Accordingly, we find that the
prosecutorial misconduct here did not require declaring a mistrial in this
case.

V

Defendant maintains that the trial court committed reversible error
when it admitted Melissa’s testimony regarding statements Defendant made to
her when they were married.

Indiana law protects the privacy of marital communications. This
court recognizes the “[s]trong public policy grounds [that] favor promotion
and preservation of marital confidences even if truthful and invaluable
testimony in certain cases is excluded.” Russell v. State, 743 N.E.2d 269,
272 (Ind. 2001) (citations omitted). However, the marital privilege is not
absolute. “[W]here a spouse’s testimony concerns disclosures by the other
spouse not made in reliance upon the marital relationship but because the
disclosing spouse was in need of his mate’s assistance and attempted to
coerce by force and fear, the testimony is not within the spousal privilege
and is admissible.” Id.; see also Carlyle v. State, 428 N.E.2d 10, 12
(Ind. 1981). Also not privileged are “[c]ommunications between spouses
intended to be transmitted to a third person.” Russell, 743 N.E.2d at 272
(citing Perkins v. State, 483 N.E.2d 1379, 1383 (Ind. 1985)).

Defendant specifically contests the admission of two separate pieces
of testimony.[13] First, Melissa testified that when she picked up
Defendant at Camp Atterbury, he told her to say that he had been drinking
with friends if someone asked why he had been there. Second, Melissa told
the jury that, after watching a television news report regarding Eckart in
their bedroom, she asked Defendant if he was somehow involved. He became
angry at the question and said, “I can’t believe that you would think
anything like that.” (R. at 3878.)

Defendant mistakenly relies on Hazelwood v. State, 609 N.E.2d 10
(Ind. Ct. App. 1993), trans. denied, to dispute the propriety of admitting
both statements. In Hazelwood, the defendant’s ex-wife testified that,
when she was married to the defendant, he faked a burglary of their home in
an attempt to make money and, in furtherance of his plan, told her to call
the police to report a burglary. Id. at 14. Defendant understands
Hazelwood to stand for the proposition that “communications intended to be
conveyed to third parties may still have a privileged character” and that
an intent to deceive the police should be considered privileged. (Br. of
Appellant at 40 (citing Hazelwood, 609 N.E.2d at 15 (“Calling the police to
report a burglary seems to be a message intended for the police, but doing
so because Hazelwood asked her reveals the underlying reason she acted,
which in turn, suggests a confidential communication intended to be
transmitted solely between husband and wife.”)).) Dicta notwithstanding,
the Court of Appeals did not decide whether the testimony fell within
marital privilege. Rather, it found that admitting the testimony was not
error because any alleged error was “simply cumulative of evidence that was
properly admitted.” Hazelwood, 609 N.E.2d at 15.

In this case, Defendant’s statement to Melissa instructing her to say
that he had been drinking with friends if someone asked why he had been at
Camp Atterbury was not a disclosure made within the confines of the marital
relationship. It is a reasonable inference from this statement that
Defendant intended Melissa to transmit the comment to a third person. See
Russell, 743 N.E.2d at 272; Perkins v. State, 483 N.E.2d 1379, 1383 (Ind.
1985). We do not find error in permitting this testimony.

The State concedes that Melissa’s testimony regarding Defendant’s
denial that he had anything to do with Eckart’s disappearance falls within
the marital privilege, see Br. of Appellee at 31 (“Melissa’s testimony …
appears to fall within the marital privilege.”), but contends that the
error was harmless. Evidence admitted in error may not require reversal if
the error is found to be harmless. Russell, 743 N.E.2d at 272; Ford v.
State, 704 N.E.2d 457, 460 (Ind. 1998), reh’g denied. Evidence meets this
standard if it does not prejudice the defendant’s substantial rights. Ind.
Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1141-42 (Ind. 1995).

We find the admission of this testimony harmless given that
Defendant’s statement was not incriminating and that there was very
substantial evidence of guilt properly admitted. While we need not
recapitulate it in its entirety, we do note the following. Defendant told
his brother that he “took a girl” just before being dropped off at Camp
Atterbury on the night the crime was committed. (R. at 3226, 3230.)
Following Eckart’s disappearance, Defendant would sit in front of the
television and flip from channel to channel watching news coverage. He
stopped watching the news after all of the Eckart stories were over.
Additionally, Defendant’s sperm was found in the vagina of Eckart. DNA
testing done on his semen samples showed an overwhelming likelihood that it
was Defendant’s semen and no one else’s.

VI

Defendant argues that the trial court committed reversible error when
it denied his motion to suppress the use of several pieces of biological
evidence, of blankets he owned, of a hand-drawn map of Camp Atterbury, and
of carpet from his van as evidence at trial.

A

Defendant first contends that the trial court erroneously denied his
motions to suppress the use of four pieces of biological evidence as
evidence at trial. In particular, Defendant objects to the trial court’s
admission of (1) a blood sample; (2) a saliva sample; (3) a pubic hair
standard and combing; and (4) a head hair standard.

Defendant contends that the seizing and examining of the above-
mentioned biological evidence infringed his right to be free from
unreasonable search and seizure under the Fourth Amendment of the United
States Constitution and Article I, Section 11, of the Indiana Constitution.
Defendant bases this argument on his contention that the warrant affidavit
used to acquire a search warrant “did not contain sufficient facts to
establish the requisite probable cause necessary to justify the intrusion
into [his] body and seizure of his blood, saliva, and hair.” (Br. of
Appellant at 42, 43.)

The federal and state constitutions guarantee that a court will not
issue a search warrant without probable cause. U.S. Const. amend IV; Ind.
Const. art. I, §11. “Probable cause to search premises is established when
a sufficient basis of fact exists to permit a reasonably prudent person to
believe that a search of those premises will uncover evidence of a crime.
The decision to issue the warrant should be based on the facts stated in
the affidavit and the rational and reasonable inferences drawn therefrom.”
Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994) (citations omitted).
The duty of a reviewing court is simply to ensure that the magistrate had a
“substantial basis” for concluding that probable cause existed. Illinois
v. Gates, 462 U.S. 213, 238-239 (1983); Figert v. State, 686 N.E.2d 827,
830 (Ind. 1997). “‘[S]ubstantial basis requires the reviewing court, with
significant deference to the magistrate's determination, to focus on
whether reasonable inferences drawn from the totality of the evidence
support the determination’ of probable cause.” Figert, 686 N.E.2d at 827
(alteration in original) (citing Houser v. State, 678 N.E.2d 95, 99 (Ind.
1997)).

In this case, the information included in the warrant affidavit was
more than adequate to establish the requisite probable cause necessary to
justify the contested search and seizure. The affidavit established that
Eckart had been missing since September 27, 1997, after her car had been
found abandoned on the side of a road. Three days later, on September 30,
1997, her remains were discovered in a rural area of Brown County, Indiana,
instigating a homicide investigation. Semen was present in her vaginal
cavity, samples of which were taken for evidence. An autopsy revealed that
she had been strangled by ligature and her head bore a firearm type wound.
It appeared that a stun device or blank pistol may have been used to shoot
her.

On November 6, 1997, Defendant’s brother, Scott, told police that
shortly after midnight on the night that Eckart disappeared, Defendant
telephoned him and asked to be picked up from the Days Inn hotel in
Franklin, Indiana. Defendant claimed to have had too much to drink. When
Scott arrived at the hotel, Defendant met him in the parking lot and
requested that Scott take him and a girl to Edinburgh, Indiana. Scott then
got into the driver’s seat of Defendant’s van where he saw a person, whom
he assumed to be the girl, laying in back. As Scott was driving,
Defendant, who always carries a gun, said that he intended to take the girl
into the woods and get her lost. He then directed Scott to a specific
location in Atterbury. At Atterbury, Defendant took something white out of
the back of the van. Defendant also instructed Scott to tell Defendant’s
wife, Melissa, to pick Defendant up at the firing range in two hours.
Melissa confirmed that she picked Defendant up at the rifle range after
having received a phone call from Scott after midnight on September 27,
1997.

The facts as presented in the warrant affidavit are sufficient to
establish probable cause to search and seize the contested items. The
trial court did not commit error in denying Defendant’s motion to suppress
the evidence.

B

Defendant second contends that the trial court erroneously denied his
motions to suppress the use of his blankets as evidence at trial.
Defendant argues that the search was invalid because “the warrant did not
give a sufficient description of the blankets to be seized to limit the
officers to items described by the warrant.” (Br. of Appellant at 44-45.)
In support of this view, Defendant points out that Detective Ketchum
testified that the description he had received of the blankets was “real
vague” (R. at 1792) and that, armed with an identical provision in a prior
search warrant, police officers seized the wrong blankets.

Both the United States and Indiana Constitutions proscribe general
search warrants. See U.S. Const. amend. IV; Ind. Const. art. I, § 11.
“[A] warrant must describe the place to be searched and the items to be
searched for.” Phillips v. State, 514 N.E.2d 1073, 1075 (Ind. 1987); see
also Steele v. United States, 267 U.S. 498 (1925). While the items to be
searched for and seized must be described with some specificity, there is
no requirement that there be an exact description. See Phillips, 514
N.E.2d at 1075 (“the purpose for search warrants in cases involving
contraband is not necessarily to seize specified property, but to seize
property of a specified character”); see also Pavey v. State, 764 N.E.2d
692, 702 (Ind. Ct. App. 2002) (upholding validity of seizure of a black
leather jacket when the officer had an understanding that the suspect wore
“biker type clothing”), trans. denied, 774 N.E.2d 516 (Ind. 2002).

In the present case, Defendant argues for an overly restrictive
specificity requirement. The search warrant he contests ordered that “two
quilted blankets” be seized from Defendant’s home at 190 Jordan Street.
(R. at 1712.) By limiting the search to two quilted blankets, the warrant
was sufficiently specific as to remove unbridled discretion from law
enforcement. See Phillips, 514 N.E.2d at 1075 (“there is no requirement
that there be an exact description.”); cf. Hester v. State, 551 N.E.2d
1187, 1190 (Ind. Ct. App. 1990) (finding that a search warrant lacks
sufficient specificity when it orders a search for “[a]ny and all property
which may have been the subject of Theft or Burglary occurring in Union
Township …” and from five different residences on five different days).

In the alternative, Defendant argues that the Franklin Police
Department exceeded the scope of the warrant by seizing three quilted
blankets. The State responds that Melissa consented to the seizure of the
third blanket. Defendant maintains that Melissa’s consent, granted on
November 6, 1997, did not extend to November 8, 1997.

The consent of one who possesses common authority over premises or
effects is valid as against the absent, non-consenting person who shares
the authority. Trowbridge v. State, 717 N.E.2d 138, 144 (Ind. 1999).
Melissa consented to the seizure of the third blanket. On November 6,
1997, she signed a consent form to have her home searched by Franklin
police. The search was effectuated. On November 8, 1997, Melissa went to
the Franklin Police Department and told a police officer that during their
previous search they had failed to pick up the pepper spray and the blanket
Defendant had the morning of the crime. Melissa did not want to sign a
permission form but told the police to “come and get them.” (R. at 1759,
1779.) When the police were at the house, she identified the blanket for
them. This blanket, along with the two authorized by the warrant, were
accordingly seized. Melissa informed the police officers that she wanted
to consult with an attorney after, or as, she gave them the blanket that
she had showed them.

It is certainly true that “there are some cases in which temporal
limits on a defendant's consent must be honored because a late search can
affect his rights.” Elsten v. State, 698 N.E.2d 292, 295 (Ind. 1998)
(citations omitted). We have also found unreasonable searches where the
search warrant was stale. See Ashley v. State, 251 Ind. 359, 367-68, 241
N.E.2d 264, 269 (1968) (search warrant for small amounts of marihuana
becomes stale after eight days because of its transitory nature as a
commodity); cf. Williams v. State, 426 N.E.2d 662, 667 (Ind. 1981) (burned
belongings of a victim are not likely to be moved; therefore, an affidavit
supporting the warrant was not stale after sixty days). In this case,
however, the rights of Defendant did not change between November 6 and
November 8. In both cases, the consent was given when Defendant was a
suspect. Also, the items sought here were not commodities for sale but
items meant to be kept indefinitely. Finally, Melissa renewed her consent
on November 8 and did not revoke it.

The search warrant issued on November 8, 1997, ordered that “two
quilted blankets” be seized from Defendant’s home at 190 Jordan Street.
(R. at 1712.) This description provided enough detail to identify the
sought after blankets properly. Furthermore, in seizing the third quilted
blanket, the police did not exceed the warrant as they were authorized to
do so by Melissa. The trial court did not err in refusing Defendant’s
motion to suppress the blanket as evidence.

C

Defendant third contends that the trial court erroneously denied his
motions to suppress the use of a hand drawn map of Camp Atterbury as
evidence at trial. Defendant argues that there was no consent for the
search that revealed the map and that the warrant authorizing the search
was defective for lack of specificity.

As indicated in the two preceding sections, the police searched
Defendant’s home on November 7 pursuant to search warrant. Melissa had
also given written consent for this search on November 6. During the
search police found in the living room a hand drawn map of the area where
Eckart’s body was recovered.

Defendant claims that Melissa’s consent was improper because it gave
the officers “unfettered discretion.” (Br. of Appellant at 46.) This is
not correct. To the extent that the contested search was authorized by
consent, Melissa could limit or restrict the search as she chose. See
Krise v. State, 746 N.E.2d 957, 964 (Ind. 2001); see also Walter v. United
States, 447 U.S. 649, 657 (1980) (ruling that consent searches are limited
by the terms of authorization).

In addition to the validity of Melissa’s consent, we find that the
hand drawn map was left in plain view. We have held that police do not
need a warrant to seize incriminating evidence under the plain view
doctrine if: “(1) police have a legal right to be at the place from which
the evidence can be plainly viewed; (2) the incriminating character of the
evidence is immediately apparent; and (3) police have a lawful right of
access to the object itself.” See Houser v. State, 678 N.E.2d 95, 101
(Ind. 1997). All these conditions were met in this case. The police, in
the house under a valid warrant and with consent, found a map whose
incriminating character was immediately evident in light of the evidence
contained in the warrant affidavit, and the police had lawful right of
access to the object.

We find that the trial court did not commit error in denying
Defendant’s motion to suppress the hand drawn map as evidence.

D

Defendant lastly contends that the trial court erroneously denied his
motions to suppress the use of carpet taken from his van as evidence at
trial.

Defendant argues that, for essentially the same reasons set forth in
the three preceding sections, that consent was not valid. We have already
addressed this argument and found against Defendant.

Defendant also argues that the warrant lacked specificity, probable
cause, and did not authorize a search of his van.

The Franklin police properly searched Defendant’s van in accord with
the warrant. The warrant sufficiently described Defendant’s van. It
“authorized and ordered” a diligent search of all “vehicles” at 190 Jordan
Drive. Further, it stated that “[a] grey van bearing Indiana license plate
41N4644 is parked in the driveway.” (R. at 1687.) Additionally, for the
reasons explained above, the warrant affidavit established probable cause
to search the van.

We find that the trial court did not commit error in denying
Defendant’s motion to suppress and allowing carpet from Defendant’s van as
evidence.

VII

Defendant’s first claim challenging the validity of his sentence is
that the trial court committed reversible error by refusing his request to
give the jury specific verdict forms. As set forth under Background,
supra, the State alleged three aggravating circumstances to support its
request for the death sentence. Under the terms of our death penalty
statute, before a jury can recommend a sentence of death, it must
unanimously find that one or more of the charged aggravating circumstances
was proven beyond a reasonable doubt. Ind. Code § 35-50-2-9(k) (1996
Supp.); Bivins v. State, 642 N.E.2d 928, 947 (Ind. 1994). At the
conclusion of the penalty phase, Defendant asked that the jury be given a
specific verdict form on which it would indicate whether it had found that
the State had proven beyond a reasonable doubt each of the charged
aggravators. The State objected and the trial court sustained the
objection.

The trial court was on solid ground at the time of its ruling.
Hildwin v. Florida, 490 U.S. 638, 640-41 (1989) (rejecting argument that
the Sixth Amendment requires specific findings by the jury that sufficient
aggravating circumstances exist to qualify a defendant for capital
punishment); Wrinkles v. State, 690 N.E.2d 1156, 1168 (Ind. 1997), cert.
denied, 525 U.S. 861 (1998) (“This Court has rejected the requirement of
written findings for juries in capital cases.”). Subsequent to its ruling,
there has been a great deal of ferment in this regard. First, our death
penalty statute was amended to require such special verdict forms. Ind.
Code § 35-50-2-9(d), amended by P.L. 117-2002, § 2. Second, the United
States Supreme Court held in Ring v. Arizona that the Arizona capital
sentencing scheme violated the Sixth Amendment to the extent that it
allowed a “sentencing judge, sitting without a jury, to find an aggravating
circumstance necessary for imposition of the death penalty.” 536 U.S. 584,
122 S.Ct. 2428, 2443 (2002). This was because such a judicial finding
violates a defendant’s right to "a jury determination that [he] is guilty
of every element of the crime with which he is charged, beyond a reasonable
doubt." Id. at 2439 (alteration in original) (citing Apprendi v. New
Jersey, 530 U.S. 466, 477 (2000)).

Picking up on the Ring-Apprendi line of reasoning, Defendant here
maintains that assuring a unanimous jury finding on the aggravating
circumstance requires the court to use specific verdict forms.

We hold that Ring and Apprendi do not require specific verdict forms
in this case. The jury here was instructed that it could only recommend a
sentence of death if it unanimously found, “beyond a reasonable doubt, each
and every material allegation of at least one aggravating circumstance.”
(R. 1233, 1235.) With this explicit predicate to the recommendation
ultimately made by the jury, we find compliance with Ring’s and Apprendi’s
mandate.

Accordingly, we find that the trial court did not violate the Sixth
Amendment by refusing to give the jury specific verdict forms.

VIII

Defendant’s second challenge to the validity of his sentence focuses
on what he terms the “duplicative aggravating circumstances” that the State
alleged in support of its death penalty request. We set forth these
aggravators under Background: (1) intentional killing during the commission
of a rape and (2) the victim was the victim of a sex crime, here rape.[14]
His argument is predicated on the contention that the underlying felony of
rape is impermissibly present in both aggravators. This, he contends,
violates his constitutional guarantees against cruel and unusual punishment
under the federal and state constitutions and double jeopardy under the
state constitution.

When aggravating circumstances share an element, we look to the
policy or policies supporting each aggravator. See Stevens v. State, 691
N.E.2d 412, 434 (Ind. 1997), cert. denied, 525 U.S. 1021 (1998). When the
policy behind each aggravator is different, they are not impermissibly
duplicative. See id. (upholding use of two aggravators with overlapping
elements when the policy behind one aggravator goes to the defendant’s
character and the other goes to the status of the victim). Furthermore,
the fact that our death penalty statute involves the weighing, rather than
the counting, of aggravating factors mitigates against the concern that
overlapping elements in distinct aggravators will get too much
consideration. See id.

In the present matter, the felony-murder aggravator addresses
Defendant’s character. See id. (finding that the felony-murder aggravator
focuses on the defendant's character, finding highly culpable “the fact
that the mind of the accused has in the same criminal episode formulated
and held the intent to kill and the intent to commit one of the enumerated
felonies”). The victim of a sex crime aggravator spotlights the policy of
adjusting punishment in accord with the nature and degree of suffering
experienced by the victim. The different policy considerations make the
aggravators distinct. The trial court informed the jury that the penalty
phase involved weighing, not counting, aggravating factors. And in
determining the proper sentence to apply, the judge applied no weight to
the victim-of-rape aggravator. In so doing, the judge accommodated
Defendant’s claim.

The trial court did not commit error by allowing the jury to
consider both aggravating circumstances in this case.

IX

Defendant next maintains that the Cruel and Unusual Punishment
Clauses of the U.S. and Indiana Constitutions[15] require that an
instruction on residual doubt be given in capital cases. Accordingly, he
claims that the trial court violated his rights under the state and federal
constitutions when it did not give a penalty phase instruction he requested
advising the jury that it could take any “lingering doubt” that it had
about his guilt into account in determining his sentence.[16] (Br. of
Appellant at 58.) Defendant points to social science research published in
recent years in the area of capital juries that, he claims, shows that
“lingering doubt is the strongest influence in support of a final life
punishment vote.” (Br. of Appellant at 60 (citing William J. Bowers, Marla
Sandys & Benjamin D. Steiner: Symposium: Foreclosed Impartiality in Capital
Sentencing: Jurors’ Predispositions, Guilt-trial Experience, and Premature
Decision Making, 83 Cornell L. Rev. 1476, 1536 (1998)).) Defendant,
therefore, maintains that a jury instruction on this matter ensures that
the jury’s recommendation is a “reasoned moral response.” (Br. of
Appellant at 60.)

Franklin v. Lynaugh, 487 U.S. 164 (1988), seems to us to control
here. In that case, the Court rejected a claim in a capital case that the
defendant was entitled to a residual doubt instruction. While the Court
stopped short of saying that it would never find a capital defendant
entitled to make a “residual doubt” claim to a jury during a penalty phase,
it did say, in language highly relevant to this case:

Most importantly, even if we were inclined to discern such a
right in the Eighth Amendment, we would not find any violation of it
in this case. For even if such a right existed, nothing done by the
trial court impaired petitioner's exercise of this "right." The trial
court placed no limitation whatsoever on petitioner's opportunity to
press the "residual doubts" question with the sentencing jury.
Moreover, in our view, the trial court's rejection of petitioner's
proffered jury instructions was without impact on the jury's
consideration of the "residual doubts" issue. We reject petitioner's
complaint that the possibility of residual doubt was not "self-
evidently relevant to either of the special issue questions," and that
"[u]nless told that residual doubt . . . could be considered in
relation to [the special issue] question[s], the jurors could
logically have concluded that such doubt was irrelevant." Among other
problems with this argument is the simple fact that petitioner's
requested instructions on mitigating evidence themselves offered no
specific direction to the jury concerning the potential consideration
of "residual doubt." The proposed instructions did not suggest that
lingering doubts about the petitioner's guilt were to be a subject of
deliberations in the sentencing phase. Consequently, it is difficult
to see how the rejection of these instructions denied petitioner the
benefit of any "residual doubts" about his guilt.

Id. at 174-75 (alterations and emphasis in original) (citations omitted).
The exact same thing could be said about this case. There was nothing the
trial court did here to impair Defendant’s ability to argue residual doubt
to the jury; and nothing in Defendant’s penalty phase argument that
directed it to consider residual doubt.

We note that in several cases, we have held that a defendant in a
capital case was not the victim of ineffective assistance of counsel where
his lawyer did not argue “residual doubt” to the jury. This was because
“counsel ought have no obligation to argue to the jury that its just-
returned unanimous determination of guilt ought to be revisited.” Miller
v. State, 702 N.E.2d 1053, 1069 (Ind. 1998), cert. denied, 528 U.S. 1083
(2000). For similar reasons, we think a capital defendant has no
constitutional entitlement to a residual doubt instruction.

X

Defendant claims that the trial court erred when it refused to give
his tendered penalty phase instruction number 12. In relevant portion, it
stated:

However, before you may make a decision that either death or
life without parole is an appropriate sentence, all of you must reach
a unanimous decision that the State has proven beyond a reasonable
doubt the existence of at least one aggravating factor. You must also
reach a unanimous decision that such aggravating factor outweighs any
mitigating factors that any one or more of you may have found to
exist.

(R. at 1217.)

The purpose of an instruction is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct
verdict. Instruction of the jury is generally within the discretion of the
trial court and is reviewed only for an abuse of that discretion. Lowery
v. State, 547 N.E.2d 1046, 1055 (Ind. 1989), cert. denied, 498 U.S. 881
(1990). A trial court erroneously refuses to give a tendered instruction,
or part of a tendered instruction, if: (1) the instruction correctly sets
out the law; (2) evidence supports the giving of the instruction; and (3)
the substance of the tendered instruction is not covered by the other
instructions given. Dye v. State, 717 N.E.2d 5, 20 (Ind. 1999), cert.
denied, 531 U.S. 957 (2000); Holmes v. State, 671 N.E.2d 841, 852 (Ind.
1996), cert. denied, 522 U.S. 849 (1997).

The trial court refused to give Defendant’s tendered instruction on
the grounds that its substance was covered by other instructions already to
be given. Defendant claims that the trial court was mistaken in its
determination because “no other instruction informed the jury that it must
determine unanimously that aggravating circumstances outweigh mitigating
circumstances.” (Br. of Appellant at 69.) In what largely amounts to a
reprise of his argument regarding specific jury verdict forms, supra,
Defendant argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires
a sentencing jury in a capital case to find each and every essential
element beyond a reasonable doubt. (Br. of Appellant at 71 n.27.)

As we have already explained, the jury was instructed consistent with
Apprendi and Ring. We agree with the trial court that the jury was
adequately instructed on the matters raised by Defendant’s tendered
instruction here:

The law requires that all jurors agree to the existence of at
least one (1) of the charged aggravating circumstances before any
recommendation on death or life imprisonment may be made to the Court.

With respect to mitigating circumstances, your findings need not
be unanimous. Each juror must weigh in the balance any mitigating
circumstance he or she thinks have been established by the evidence,
whether or not other jurors are likewise convinced of those mitigating
circumstances.

(R. at 1235.) (emphasis added).

We find that the trial court properly rejected Defendant’s proposed
penalty phase instruction number 12.

XI

Defendant claims that his sentence in this case violates the Double
Jeopardy Clause of the Indiana Constitution in two respects. See Ind.
Const. art. I, § 14 (“No person shall be put in jeopardy twice for the same
offense.”) Neither claim requires extended treatment.

The application of the Indiana Double Jeopardy Clause is distinct
from its federal counterpart. See Richardson v. State, 717 N.E.2d 32, 49
(Ind. 1999). It “prevent[s] the State from being able to proceed against a
person twice for the same criminal transgression." Id.

Defendant expresses his first argument as follows: “Because the
statutory elements necessary to establish that [he] raped Eckart were
necessary to establish the aggravating circumstance upon which the death
sentence rests, sentences for both Rape and Capital Murder violate the
State double jeopardy prohibitions.” (Br. of Appellant at 83.) He asks
that the 20 year sentence imposed for rape be vacated. It is true that the
“aggravating circumstance” set forth in Ind. Code § 35-50-2-9(b)(1)(F)
(intentional killing while committing rape) used to support the death
sentence here required that the State prove that Defendant committed rape.
But we have held that facts necessary to establish the (b)(1) aggravating
circumstance serve to narrow the eligibility for the penalty and are not
identical to the elements of the crime. West v. State, 755 N.E.2d 173, 186
(Ind. 2001). We hold that it did not violate the Double Jeopardy Clause of
the Indiana Constitution for the trial court to enter sentence on the rape
conviction even if it also entered sentence on the felony-murder
conviction.[17]

Defendant also argues that his Class B felony criminal confinement
conviction should be reduced to a class D felony confinement on the ground
that there is a reasonable probability that the jury utilized the same
facts to find the serious bodily elements of the class D confinement and
the injury that caused Eckart’s death. The State concedes this argument,
noting that “the prosecutor argued that the serious bodily injury had been
established by Eckart’s death.” (Br. of Appellee at 59.) Accordingly, we
reduce Defendant’s class B felony criminal confinement conviction to a
class D felony.

XII

We now review whether Defendant's death sentence is appropriate. The
Indiana Constitution provides, in part, that "[t]he Supreme Court shall
have, in all appeals of criminal cases, the power to review and revise the
sentence imposed." Ind. Const. art. VII, § 4. Although our rules for
appellate review of sentences require that deference be given to the
judgment of the trial court where the sentence is death, those rules "stand
more as guideposts for our appellate review than as immovable pillars
supporting a sentence decision." Spranger v. State, 498 N.E.2d 931, 947
n.2 (Ind.1986), reh’g denied, 500 N.E.2d 1170 (Ind. 1986), cert. denied,
481 U.S. 1033 (1987). Moreover, "this Court's review of capital cases
under article 7 is part and parcel of the sentencing process." Cooper v.
State, 540 N.E.2d 1216, 1218 (Ind.1989).

This special review of death sentences is grounded in the Indiana
Constitution, our state's death penalty statute, and federal death penalty
jurisprudence. Harrison v. State, 644 N.E.2d 1243, 1260 (Ind.1995), after
remand, 659 N.E.2d 480 (Ind. 1995), cert. denied, 519 U.S. 933 (1996). The
United States Supreme Court “has repeatedly said that under the Eighth
Amendment ‘the qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the capital
sentencing determination.’” Caldwell v. Mississippi, 472 U.S. 320, 329
(1985) (quoting California v. Ramos, 463 U.S. 992, 998-99 (1983)).
Meaningful appellate review of death sentences plays a crucial role in
ensuring that the death penalty is not imposed arbitrarily or irrationally.
Parker v. Dugger, 498 U.S. 308, 321 (1991).

Our death penalty statute guides our review of death sentences by
providing standards for governing the trial court's imposition of death
sentences. Following the completion of the guilt-determination phase of
the trial and the rendering of the jury's verdict, the trial court
reconvenes for the penalty phase. Before a death sentence can be imposed,
our death penalty statute requires the State to prove beyond a reasonable
doubt at least one aggravating circumstance listed in subsections (b)(1)
through (b)(16) of the statute.[18] See Ind. Code § 35-50-2-9 (1998). As
discussed at several points in this opinion, the State supported its
request for the death penalty with the following aggravating circumstances:
(1) that Defendant committed the murder by intentionally killing the
victim while committing or attempting to commit rape, see id. § 35-50-2-
9(b)(1)(F) (Supp.1996); (2) that the victim was a victim of a sex crime
under Ind. Code § 35-42-4, here rape, for which Defendant was convicted,
see id. § 35-50-2-9(b)(13)(D); and (3) that the victim was a victim of
criminal confinement (Ind. Code § 35-42-3-3) for which Defendant was
convicted, see id. § 35-50-2-9(b)(13)(C).

The death penalty statute requires that any mitigating circumstances
be weighed against any properly proven aggravating circumstances. As
mitigating circumstances, Defendant offered the following: (1) residual
doubt as to Defendant’s guilt; (2) that the Defendant was under the
influence of extreme mental or emotional disturbance because of a past
history of mental health problems as well as his mental condition at or
about the time of the crimes at issue here; (3) that Defendant's capacity
to appreciate the criminality of his conduct or to conform that conduct to
the requirements of the law was substantially impaired, again because of
his mental health history and mental condition at the time; (4) that
Defendant suffered from a deprived and abusive developmental history; (5)
that Defendant had no significant history of prior criminal conduct; (6)
that a sentence of death would result in an undue hardship to the
Defendant's children and loved ones; (7) Defendant's good conduct while
incarcerated; and (8) that the State had the necessary and appropriate
prison facilities and staff to provide secure incarceration for Defendant.

The jury recommended that a sentence of death be imposed.

Once the jury has made its recommendation, the jury is dismissed, and
the trial court has the duty of making the final sentencing determination
at the sentencing hearing. At that proceeding, the trial court sustained
Defendant's objection to victim impact evidence being presented. The trial
court reasoned that a death sentence "must be based exclusively upon
statutorily enumerated capital sentencing aggravating circumstances," and
the victim impact evidence here would not be relevant to any of the alleged
aggravating circumstances. (R. 5382.) Defendant also presented additional
evidence in support of the mitigating circumstances argued to the jury.

Applicable law imposes several requirements on the trial court in
making its sentencing determination. First, the trial court must find that
the State has proven beyond a reasonable doubt that at least one of the
aggravating circumstances listed in the death penalty statute exists. See
Ind. Code § 35-50-2-9(k)(1) (Supp. 1996). Second, the trial court must
find that any mitigating circumstances that exist are outweighed by the
aggravating circumstance or circumstances. See id. § 35-50-2-9(k)(2).
Third, before making the final determination of the sentence, the trial
court must consider the jury's recommendation. See id. § 35-50-2-9(e).
The trial court must make a record of its reasons for selecting the
sentence that it imposes. See id. § 35-38-1-3. We commend Judge Emkes for
a particularly thoughtful and thorough sentencing order.[19]

In imposing the death sentence in the instant case, the trial court
found that the State proved beyond a reasonable doubt the three charged
aggravating circumstances, each of which is listed in the death penalty
statute. The record and the law support this finding. However, the trial
court assigned weight only to the (b)(1)(F) (intentional murder while
committing rape) aggravating circumstance, finding the facts supporting the
other two circumstances to overlap those in the first and that assigning
weight to them would duplicate the weight given the first. We concur with
this approach. The trial court did assign the (b)(1)(F) aggravator
“substantial weight and great consideration.” (R. 1294.)

The trial court provided a particularly careful and detailed analysis
of Defendant's proposed mitigating circumstances. The court gave careful
attention to Defendant’s claim that residual doubt about his guilt should
be considered a mitigating circumstance but found little weight should be
given. After a lengthy discussion of the psychological and psychiatric
evidence, the trial court found that Defendant was under the influence of
extreme mental or emotional disturbance at the time of the crimes and
assigned that mitigator moderate weight. It found some evidence that
Defendant's ability to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was impaired by mental
disease, defect or intoxication but that there was also extensive evidence
that Defendant was in control of his conduct and aware of its criminality.
As such, the trial court assigned this mitigator low to moderate weight.

The trial court recognized Defendant's deprived and abusive
developmental history as a mitigating circumstance and assigned it low
weight. It also recognized that Defendant had no significant history of
prior criminal conduct, including no felony convictions. The trial court
assigned this circumstance moderate to heavy weight. As to Defendant's
claims that hardship to his family, his good behavior in prison, and the
ability of the State to provide secure incarceration should be considered
mitigating circumstances, the trial court agreed but assigned them only
minimal weight.

In accordance with our death penalty statute, the trial court next
balanced the weight it assigned to the (b)(1)(F) aggravating circumstance
with the weight it assigned the mitigating circumstances. It found the
aggravating circumstance outweighed the mitigating circumstances and that
in its analysis, death was the appropriate sentence for Defendant for this
crime.

In this appeal, Defendant primarily contends that the weight of the
aggravating circumstances do not outweigh mitigating circumstances
attributable to his past history of mental health problems, his upbringing
in and abusive and dysfunctional family environment, and his mental
condition at or about the time of the crimes at issue.[20] After
independent review of the aggravating and mitigating circumstances here, we
assess the weight attributable to the aggravating and mitigating
circumstances in the same manner as the trial court.[21]

Based on our review of the record and the law, we agree with the
trial court's conclusion that the State proved beyond a reasonable doubt
the (b)(1)(B), (b)(13)(D), and (b)(13)(C) aggravating circumstances
promulgated in the death penalty statute. We agree with the trial court
that the (b)(1)(B) aggravating circumstance alone outweighs the mitigating
circumstances.[22] We conclude that the death penalty is appropriate for
Defendant's murder of Kelly Eckart.

Conclusion

We affirm Defendant’s convictions for murder, rape, and criminal
confinement and his sentence of death and sentence of 20 years for rape.
We vacate his sentence of 20 years for criminal confinement as a Class B
felony and remand this matter to the trial court for resentencing as a
Class D felony.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] See Ind. Code § 35-42-1-1 (1993).
[2] See Id.
[3] See Ind. Code § 35-42-4-1 (1993).
[4] See Ind. Code § 35-42-3-3 (1993).
[5] See Id.
[6] See Ind. Code § 35-50-2-9(b)(1)(F) (1996 Supp.).
[7] See Ind. Code § 35-50-2-9(b)(13)(D) (1996 Supp.).
[8] See Ind. Code § 35-50-2-9(b)(13)(C) (1996 Supp.).
[9] Indeed, Defendant made no request, either before or during trial,
for a hearing on the reliability of STR testing.
[10] Defendant cites only an unpublished California trial court ruling
in support of his position. People v. Bokin, SCN: 168461 (Cal. Sup. Ct.
(San Francisco) May 6, 1999) (Order).
[11] The importance of the distinction was that Defendant was charged
with rape, a charge for which proof of vaginal intercourse is essential.
See Ind. Code § 35-42-4-1 (1993).
[12] It is true, as Defendant maintains, that evidence that is
“impeaching” can constitute “favorable evidence” for Brady purposes. U.S.
v. Howell, 231 F.3d 615, 624 (9th Cir. 2000); see also U.S. v. Bagley, 473
U.S. 667, 676-677 (1985). But the challenged testimony of Melissa
Overstreet is not “impeaching” evidence in this sense. The “impeaching”
evidence prong of Brady requires that, if the prosecutor has undisclosed
evidence that would impeach testimony given by a witness in court, the
prosecutor is required under Brady to disclose it. See U.S. v. Reyes, 270
F.3d 1158, 1166 (7th Cir. 2001). That is not what happened here. The
evidence that would impeach Melissa’s testimony given in court (i.e.,
Melissa’s prior deposition testimony, etc.) was known to the defense.
[13] Although Melissa testified as to other statements made to her by
Defendant, they are not challenged in this appeal.
[14] The State also alleged the aggravator set forth in Ind. Code § 35-
50-2-9 (b)(13)(C), that the victim was the victim of confinement.
Defendant makes no objection to the use of this aggravator.
[15] Defendant offers no separate Indiana constitutional analysis.
[16] Defendant’s proffered instruction reads: “The adjudication of
guilt is not infallible and any lingering doubts entertained on the
question of guilt may be considered in determining the penalty.” (R. at
1213.)
[17] As such, we answer the question left open in West, 755 N.E.2d at
186 n.6.
[18] We note that at the time the murders occurred, the effective
statutory aggravators upon which Defendant could have been sentenced to
death or life imprisonment without parole were listed in subsections (b)(1)
through (b)(15). See Ind. Code § 35-50-2-9 (Supp.1996). The legislature
has since then promulgated one more statutory aggravator under subsection
(b). See P.L. 261-1997 § 7.
[19] Indiana lawyers and judges in proceedings under Ind. Code § 35-50-
2-9 will find the sentencing order issued in this case a highly instructive
reference.
[20] Defendant registers two additional brief challenges to the trial
court’s sentencing order.
First, he claims that the trial court’s sentencing order failed to
note what consideration, if any, it gave to the jury’s recommendation. It
is true that the trial court’s sentencing order only mentions the jury’s
recommendation briefly. But unlike those cases where an indication of the
extent to which the trial court took the jury’s recommendation into account
has been of particular importance to us in our review (including the case
Defendant cites as authority here, Roark v. State, 644 N.E.2d 565 (Ind.
1994)), here the jury unanimously recommended that death be imposed. We
find Defendant suffered no detriment from any failure of the trial court to
give greater weight than it did to the jury’s recommendation that he be
sentenced to death.
Second, Defendant complains that the trial court only considered one
of the three charged aggravating circumstances. As discussed in part VIII,
supra, the trial court found that the State had properly proved the
aggravating circumstances of victim of a rape and of a criminal confinement
for which Defendant had been convicted but that it was not going to assign
weight to either of those aggravators. We find Defendant suffered no
detriment from any failure of the trial court to give weight to two
additional properly proven aggravating circumstances. Indeed, as we found
in part VIII, supra, this was effectively what Defendant sought.
[21] The trial court’s careful and comprehensive sentencing statement
in this case causes us to reflect on how far we have come since 1985 when
Justice DeBruler was moved to write:
There is a nagging doubt, arising from this court's frequent
confrontation in reviewing death sentences with the finding of
absolutely no mitigating circumstances, that the mitigating
circumstance search required by the death statute is either being
misunderstood, misapplied, or not reflected in sentencing court
findings. In my opinion it needs to be reiterated and emphasized for
the guidance of judges and lawyers that a finding of the existence of
a mitigating circumstance does not preclude a positive death decision.
Wallace v. State, 486 N.E.2d 445, 465 (Ind. 1985) (DeBruler, J., concurring
in result and dissenting), cert. denied, 478 U.S. 1010 (1986). In this
case, the trial court’s careful analysis identifies the presence of a
number of mitigating circumstances, some of considerable weight, but
nevertheless finds them outweighed by the aggravating circumstance. It is
clear that the Judge Emkes understood, applied, and reflected the
requirements of the statute in her sentencing order and we commend her for
it.
[22] No issue is raised in this case as to whether an aggravating
circumstance under Ind. Code § 35-50-2-9(b)(13) standing alone could be
sufficient to support a sentence of death. Cf. Harrison, 659 N.E.2d at 483
n.7; Id. at 483-84 (DeBruler, J., dissenting).