ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Karen M. Freeman-Wilson
Fort Wayne, Indiana Attorney General of Indiana
John C. Bohdan Priscilla J. Fossum
Glasser and Ebbs Deputy Attorney General
Fort Wayne, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JOSEPH E. CORCORAN, )
Defendant-Appellant, )
)
v. ) 02S00-9805-DP-293
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull
Cause No. 02D04-9707-CF-465
________________________________________________
On Direct Appeal
December 6, 2000
DICKSON, Justice
A jury found the defendant, Joseph E. Corcoran, guilty of four counts
of murder.[1] In the subsequent penalty phase, the jury recommended the
death penalty, and the trial court ordered the death sentence imposed.
Appealing from the trial court judgment, the defendant does not challenge
the guilt phase proceedings or his resulting convictions. His appellate
claims concern only the penalty and sentencing proceedings and his death
sentence.[2] The defendant's appeal presents eight claims, which we
rearrange as follows: (1) the Indiana death penalty statute violates the
United States Constitution because a death sentence and a sentence of life
without parole (LWOP) are governed by the same eligibility requirements;
(2) the death penalty/LWOP statute is ambiguous and therefore must be
construed against the state; (3) the selection phase of the death
penalty/LWOP statute violates the federal and state constitutions as it
permits the arbitrary imposition of the death penalty; (4) the death
penalty/LWOP statute violates the Indiana Constitution's proportionality
provision; (5) the death penalty/LWOP statute violates the defendant's
right to a jury trial because it allows the State to penalize its exercise;
(6) the prosecutor committed misconduct in the closing argument during the
penalty phase; (7) the judge improperly considered a non-statutory
aggravator when sentencing; and (8) the death sentence in this case is
manifestly unreasonable.
Constitutionality of the Death Penalty / Life Imprisonment Statute
In the first four claims enumerated above, the defendant contends that
the Indiana capital sentencing statute facially violates the federal and
Indiana constitutions because it permits the sentencer to impose a sentence
of death or life imprisonment without parole based on the same aggravating
circumstances.
First, the defendant contends that the eligibility provision of the
Indiana sentencing system for the crime of murder violates the Eighth
Amendment to the Constitution of the United States, "because the Indiana
legislature has not deemed any murder such an affront to society that the
only appropriate penalty may be death." Brief of Appellant at 22. He
argues that, because those persons eligible for the death penalty are also
eligible for a sentence of life imprisonment without parole, the Indiana
death penalty "constitutes nothing more than purposeless and needless
imposition of pain and suffering." Id. at 37.
Second, the defendant contends that in the absence of mitigating
circumstances, there is no basis under the Indiana system to decide between
life imprisonment and the death penalty. He argues that this constitutes
an ambiguity that must be strictly construed against the State.[3]
Third, the defendant contends that the Indiana statute materially
misguides the sentencer in the selection phase because it permits the
sentencer to choose life imprisonment without parole because of retribution
if the sentencer believes that death would be a more merciful sentence. He
argues that this results in a potential for substantial unreliability and
bias in favor of death sentences.
We address these claims together because we conclude that they are
governed by the same principles. Indiana statutes prescribe that the
penalty for the crime of murder may be either (a) a determinate term of
imprisonment for forty-five to sixty-five years, (b) life imprisonment
without parole, or (c) a death sentence. To be eligible for possible
imposition of the death penalty or life imprisonment without parole, an
offender must have committed a murder accompanied by at least one of
several prescribed aggravating circumstances. Ind. Code § 35-50-2-9(b).
Under the Indiana statutory scheme, the aggravating circumstances that make
an offender eligible for the death penalty are the same that define
eligibility for life without parole. If the State seeks the death penalty
or life without parole, upon finding one of the prescribed aggravating
circumstances proven beyond a reasonable doubt and finding mitigating
circumstances outweighed by the aggravating circumstance(s), the trial
court, after considering the recommendation of the jury, may impose a
sentence of death or life imprisonment without parole.
The defendant contends that Indiana's death penalty statute is
unconstitutional because it fails to delineate between those crimes for
which the death penalty is proportional and all other murders and thus
fails to reserve the death penalty for the most severe class of crimes.
Citing Arave v. Creech, 507 U.S. 463, 474, 113 S.Ct. 1534, 1542, 123
L.Ed.2d 188, 200 (1993), he argues that this violates a requirement that a
capital sentencing statutory scheme must provide a principled basis for
differentiating those persons for whom the death penalty is appropriate
from those for whom it is not.
In Arave, however, the issue was not whether the class of murderers
eligible for the death penalty might alternatively be sentenced to
imprisonment. The United States Supreme Court instead addressed whether an
Idaho statutory aggravating circumstance that "the defendant exhibited an
utter disregard for human life" adequately channeled sentencing discretion
for imposition of a death sentence. 507 U.S. at 465, 113 S.Ct. at 1538,
123 L.Ed.2d at 194. The Court reasserted as a "fundamental principle"
that:
to satisfy the Eighth and Fourteenth Amendments, a capital sentencing
scheme must suitably direct and limit the sentencer's discretion so as
to minimize the risk of wholly arbitrary and capricious action. The
State must channel the sentencer's discretion by clear and objective
standards that provide specific and detailed guidance, and make
rationally reviewable the process for imposing a sentence of death.
Id. at 470-71, 113 S.Ct. at 1540, 123 L.Ed.2d at 197-98 (internal quotation
marks and citations omitted).
The Indiana capital sentencing scheme satisfies this requirement by
prescribing particular aggravating circumstances that narrow the class of
murderers eligible for the death penalty. Judy v. State, 275 Ind. 145, 416
N.E.2d 95, 105-08 (1981). We recognize that the Indiana capital sentencing
statute "must 'genuinely narrow the class of persons eligible for the death
penalty and must reasonably justify the imposition of a more severe
sentence on the defendant compared to others found guilty of murder.'"
Wrinkles v. State, 690 N.E.2d 1156, 1165 (Ind. 1997)(quoting Zant v.
Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50
(1983)). Even with the addition of life without parole as an alternative
punishment for death-eligible murderers, however, the Indiana system
"rationally distinguishes between those individuals for whom death is an
appropriate sanction and those for whom it is not." Stevens v. State, 691
N.E.2d 412, 429 (Ind. 1997)(quoting Spaziano v. Florida, 468 U.S. 447, 460,
104 S.Ct. 3154, 3162, 82 L.Ed.2d 340, 352 (1984). Just as there is no
constitutional defect under the Indiana death penalty statute, which gives
the Indiana sentencer discretion to choose between death and imprisonment
for a term of years, so also there is no defect in permitting the sentencer
to choose the alternative of life imprisonment without parole. Wrinkles,
690 N.E.2d at 1165.
We conclude the Eighth Amendment is not violated by the Indiana
statute's inclusion of life imprisonment without parole as a sentencing
alternative using the same aggravating factors as a death sentence.
In the fourth claim of facial unconstitutionality based on the
inclusion of the life imprisonment alternative with the death penalty, the
defendant contends that the statute violates Article I, Section 16 of the
Indiana Constitution, which provides in relevant part: "All penalties shall
be proportioned to the nature of the offense." He argues that, because the
statute does not identify whether death or life imprisonment is the more
severe punishment, it is impossible to assure that the penalty imposed is
proportional to the crime committed. Because death or life imprisonment
are each grave and extreme punishments and are reserved for only the most
extreme murders, in contrast to sentences for a discrete term of years in
all other murders, the proportionality provision of the Indiana
Constitution is not offended by their equivalent availability under the
statute.[4]
Impingement on Right to Jury Trial
The defendant contends that Indiana's death penalty scheme
impermissibly infringes, facially and as applied, upon the right to jury
trial. He argues that, because identical factors may support a
prosecutor's decision to seek either death or life imprisonment, the
statute enables prosecutors to seek the death penalty "to coerce an
individual who refuses to plead guilty to relinquish a constitutional
right" to jury trial. Brief of Appellant at 46. The defendant asserts that
in his case he declined the State's offer to accept a guilty plea or try
his case to the bench and thereby avoid the death penalty. He urges that
because the prosecutor thus believed that life imprisonment was the
appropriate penalty, the request for the death penalty had no basis except
to provide "a strategic advantage . . . to force the defendant to abdicate
a basic right." Id. at 47.
We disagree. Prosecutors are traditionally given wide discretionary
power in our criminal justice system to select the persons to be prosecuted
and to plea-bargain with them. The Supreme Court has recognized the
benefits of efficiency and speedy dispositions that plea-bargaining offers,
and has fully approved its use as long as it is accompanied by safeguards
that insure full knowledge on the part of the defendant offering a guilty
plea as to his rights, his consequent waiver of those rights, the crime to
which he is pleading guilty, and the maximum penalty or the extent to which
he places himself at risk. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct.
663, 54 L.Ed.2d 604 (1978). In the context of plea-bargaining, we do not
see a material distinction in the discretionary powers of the prosecutor in
offering to agree to a lesser sentence for a guilty plea or for a bench
trial. Our case law, which proscribes the imposition of a harsher sentence
because a defendant exercised his right to jury trial, is rightly focused
on the actions of the judge as sentencer and not the prosecutor as charger.
See Hill v. State, 499 N.E.2d 1103, 1107 (Ind. 1986)("Whether the severity
of a particular sentence was improperly influenced by a defendant's jury
trial election requires an individualized consideration." Id. Factors to
be considered are (1) the role the judge played in the plea negotiations;
(2) whether the judge encouraged the defendant to plead guilty; (3) the
presence of threats from the judge of a more severe sentence if convicted
following a jury trial; and (4) any evidence that the trial judge penalized
the defendant for going to trial. Pauley v. State, 668 N.E.2d 1212, 1213
(Ind. 1996); Hill, 499 N.E.2d at 1107 (Ind. 1986)).
The defendant did not waive his right to jury trial and fails to
point to anything in the record that indicates he received a more severe
sentence from the court because he exercised his right to jury trial.
Absent a specific showing that a particular sentence was improperly
influenced by the defendant's exercise of his right to jury trial, which is
not presented here, we decline to reverse.
Prosecutorial Misconduct
The defendant contends that his death sentence should be reversed
because some of the prosecutor's remarks during closing arguments in the
penalty phase constituted prosecutorial misconduct. The defendant urges
that the prosecutor's rhetoric was excessively inflammatory and that it
concentrated on aggravating circumstances not authorized by the Indiana
death penalty statute. The defendant did not object at trial.
Appellate recourse is not available for the review of alleged trial
misconduct when the complaining party failed to timely object at trial.
Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). The defendant argues
that the misconduct constituted "fundamental error," a doctrine under which
an appellate claim may be considered notwithstanding the failure of
contemporaneous trial objection. For this exception to apply, however, we
must find that the alleged misconduct so prejudiced the defendant's rights
as to make a fair trial impossible. Id.
Not unlike Stevens, the penalty phase jury instructions here
emphasized that, in order to recommend a sentence of death or life without
parole, the jury must first unanimously conclude that the State proved
beyond a reasonable doubt the existence of the charged aggravating
circumstance (that the defendant committed another murder), that this
aggravating circumstance was not outweighed by any mitigating
circumstances, and that only evidence "which bears directly upon the
mitigating factors, or the aggravating factor" could be considered. Record
at 2462-65, 2468-69, 2472. We conclude that the defendant's allegations of
prosecutorial misconduct in final argument do not show improper prejudice
to the defendant's rights thereby making a fair trial impossible. This
claim does not qualify for the "fundamental error" exception, and it was
forfeited by procedural default.
Consideration of Non-statutory Aggravator
The defendant contends that the trial court's imposition of a death
sentence violated the Eighth and Fourteenth amendments of the United States
Constitution and Article 1, Section 16 of the Indiana Constitution because
the trial court considered future dangerousness of the defendant, a
circumstance not among the aggravating circumstances authorized by the
Indiana death penalty statute.
In deciding whether to order a death sentence, a court must limit its
consideration of aggravating circumstances to those specified in the death
penalty statute. Ind. Code § 35-50-2-9(b); Bivins v. State, 642 N.E.2d
928, 955 (Ind. 1994). Indiana Code Section 35-38-1-3(3) requires that if
the trial court finds aggravating or mitigating circumstances, its record
must include "a statement of the court's reasons for selecting the sentence
that it imposes." The statement of reasons should contain three elements:
a) identification of all significant mitigating and aggravating
circumstances found, b) specific facts and reasons which lead the court to
find the existence of each such circumstance, and c) articulation
demonstrating that the mitigating and aggravating circumstances have been
evaluated and balanced in determination of the sentence. Hill v. State,
499 N.E.2d 1103, 1107 (Ind. 1986); Hammons v. State, 493 N.E.2d 1250, 1254
(Ind. 1986); Jones v. State, 467 N.E.2d 681, 683 (Ind. 1984).
The requirement for sentencing findings are more stringent in capital
cases than in non-capital sentencing situations, and the statement must
also set forth the trial court's personal conclusion that the sentence is
appropriate punishment for this offender and this crime. Harrison v.
State, 644 N.E.2d 1243, 1262 (Ind. 1995). "We require such specificity in
a sentencing order or statement of reasons for imposing a sentence to
insure the trial court considered only proper matters when imposing
sentence, thus safeguarding against the imposition of sentences which are
arbitrary or capricious, and to enable the appellate court to determine the
reasonableness of the sentence imposed." Id.; Daniels v. State, 561 N.E.2d
487, 491 (Ind. 1990); see also Schiro v. State, 451 N.E.2d 1047, 1053 (Ind.
1983)(finding that a written sentencing statement "guard[s] against the
influence of improper factors at the trial level and [makes] sure that the
evils of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972), 'arbitrary and capricious application' of the death penalty, were
not present in the sentencing decision"). It is usual practice for a trial
judge to comment when the sentence is announced in open court. When a
trial judge's oral comments refer to factors not included in the court's
separate written findings, the issue may arise as to whether such remarks
demonstrate impermissible use of a nonstatutory aggravating factor.
Bellmore v. State, 602 N.E.2d 111, 129 (Ind. 1992).
In this case, in which the defendant had been found guilty on each of
four counts of murder, the judge in her written sentencing order found
that, as to State's application for the death sentence on each count of
murder, the State proved beyond a reasonable doubt that the defendant
committed another murder.[5] The court's sentencing statement reflects
that the trial judge thoughtfully considered the nine mitigating
circumstances asserted by the defendant and concluded that the following
were shown: the defendant was under the influence of a mental or emotional
disturbance at the time the murders were committed; the defendant
cooperated fully with investigating authorities, reducing the potential for
additional harm and furthering the State's case against himself; the
defendant lacked a significant criminal history; and the defendant
indicated remorse. The trial court articulated its evaluation that each of
the mitigating circumstances was of medium or low weight. It concluded:
Pursuant to I.C. 35-50-2-9(k) the Court has balanced the
aggravating circumstances proved by the State against the mitigating
circumstances proved by the Defendant. The Court finds that the
knowing and intentional murders of four (4) innocent victims to be
particularly heinous crimes. [sic] The Court weighs this aggravating
circumstance very high. The Court, having evaluated and balanced
these circumstances finds that the aggravating circumstances outweigh
the mitigating circumstances. The Court again finds that the mental
or emotional disturbance suffered by the Defendant did not affect his
capacity to appreciate the criminality of his conduct or to conform
his conduct to the requirements of the law.
The Court, having considered the jury's recommendation that the
death penalty be imposed now finds that such a sentence is supported
by the facts and the evidence, and the character of the Defendant, and
therefore orders that the Defendant be executed pursuant to Indiana
law . . . .
Record at 2577-78.
In her oral remarks in open court at the time of sentencing, the
trial judge stated in part:
Pursuant to the law, Indiana Code 35-50-2-9(k), I'm required to
balance aggravating circumstances proved by the State of Indiana
against mitigating circumstances proved by the Defense. That has been
a very difficult process, and not a process that I have ever taken
lightly, and certainly would never take lightly, Mr. Corcoran. Your
emotional and mental disturbance is of concern to this Court. Also of
concern to this Court is that none of the experts can seem to give me
a straight answer, Mr. Corcoran, of what is really going on inside
your head. And maybe it is as [the prosecutor] argued in his closing,
that society just cannot begin to comprehend why you would do what you
did, so we've got to say, there's got to be something wrong with this
guy to have done what he did. I'm not going to say that, Mr.
Corcoran, because I don't know. I do know, however, that the knowing
and intentional murders of four innocent people is an extremely
heinous and aggravated crime. That makes you, Mr. Corcoran, a mass
murderer. [The prosecutor] is right. I don't think in the history of
this county we've had a mass murderer such as yourself. It makes you,
Mr. Corcoran, a very dangerous, evil mass murderer. And I am
convinced in my heart of hearts, Mr. Corcoran, if given the
opportunity, you will murder again.
Id. at 2915-16. After this passage, the judge goes on to weigh the
aggravator and the mitigators. The defendant argues that the above passage
demonstrates that, in making her determination, the judge considered future
dangerousness, which is not one of the enumerated aggravating circumstances
permitted under the Indiana death penalty statute.
In addition to the Court's oral remarks regarding future
dangerousness, we also observe that the sentencing statement itself
suggests that, in balancing aggravating and mitigating circumstances, the
trial court may have also considered that there were "four innocent
victims" and that the crimes were "particularly heinous," neither of which
are among the prescribed statutory aggravating circumstances that may be
weighed in deciding whether to impose the death penalty. Id. at 2577-78.
Because the circumstances of a crime often provide "an appropriate
context for consideration of the alleged aggravating and mitigating
circumstances," we recognize that reference to the nature and circumstances
of the crime in the sentencing statement "does not necessarily compel a
conclusion that such matters were improperly considered and weighed as
aggravating circumstances." Prowell v. State, 687 N.E.2d 563, 567 (Ind.
1997). When the judge's oral remarks at sentencing refer to matters not
included in the written sentencing statement, a reviewing court must
evaluate the degree to which the judge may have relied upon the non-
statutory factor. Bellmore, 602 N.E.2d at 128 n.6. The same consideration
is likewise appropriate in evaluating the role of non-statutory aggravating
matters noted in the written sentencing statement. In the absence of clear
contrary indications in the record, however, we will assume the sentencing
order fully discloses the factors considered by the sentencing judge.
Prowell, 687 N.E.2d at 567-68.
From the combination of the trial court's remarks in open court that
she was "convinced in her heart of hearts" that the defendant, "if given
the opportunity, would murder again," Record at 2916, and of the court's
written references in the sentencing statement to the innocence of the
victims and the heinousness of the murders, we find a significant
possibility that the trial court may have relied upon non-statutory
aggravating factors in deciding whether to impose the death penalty. We
therefore remand this cause to the trial court to redetermine from the
evidence already presented whether to impose the death sentence, life
without parole, or a term of years, based only upon mitigating and proper
aggravating circumstances, and to issue a new sentencing statement.[6]
Conclusion
The judgment of the trial court is affirmed except as to the death
sentence,[7] which is vacated, and this cause is remanded to the trial
court to reconsider its sentencing determination and to enter a new
sentencing statement and judgment, in accordance with this opinion.
SULLIVAN, BOEHM, and RUCKER, JJ., concur.
SHEPARD, C.J., concurs with separate opinion.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Karen M. Freeman-Wilson
Fort Wayne, Indiana Attorney General of Indiana
John C. Bohdan Priscilla J. Fossum
Fort Wayne, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JOSEPH E. CORCORAN, )
)
Appellant (Defendant Below), )
)
v. ) Cause No. 02S00-9805-DP-293
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull
Cause No. 02D04-9707-CF-465
December 6, 2000
SHEPARD, Chief Justice, concurring.
I join in the Court’s decision to remand, largely because meticulous
attention to capital cases at an early stage saves a good deal of effort
later on.
I read Judge Gull’s statements about Corcoran’s multiple murders as
explanations about why she gave high weight to the (b)(8) aggravator and I
would be willing to affirm her on that basis, as it takes little analysis
to conclude that four killings make for a weighty aggravating circumstance.
Nevertheless, I agree that it is worth clarifying now that only statutory
aggravating circumstances are being considered.
-----------------------
[1] Ind. Code § 35-42-1-1.
[2] The defendant, by counsel and personal affidavit, filed a written
waiver of his right to appeal his convictions but retained the right to
appeal his sentence.
[3] As part of this argument, the defendant also claims that the
Indiana statute impairs his right to present evidence of mitigating
circumstances because, by choosing to present mitigation evidence, a
capital defendant runs the risk that the sentencer "may decide that the
mitigating circumstances are insufficient," thus "lowering his 50/50
opportunity with only the aggravating circumstances." Brief of Appellant
at 38. He argues that, by presenting mitigation, a defendant may provide
"a rational basis to decide between LWOP and the death penalty," thus
potentially increasing instead of limiting the possibility of a death
sentence. Reply Brief of Appellant at 10. We find this argument
unpersuasive.
[4] In this section of his argument, the defendant also includes the
claim that the statute violates Article I, Section 18, of the Indiana
Constitution, which provides: "The penal code shall be founded on the
principles of reformation, and not vindictive justice." He argues that, by
declaring that every murderer eligible for the death penalty may receive
life imprisonment, the legislature has established that reformation is the
appropriate penal remedy and that the death penalty, based on vindictive
justice, should not be permitted. This argument would require that, even
without the equivalent availability of life without parole, the death
penalty procedure would be unconstitutional because a sentencer would still
have the option of imposing death or a term of years. See Wrinkles, 690
N.E.2d at 1165. This Court has clearly held this Indiana capital
sentencing procedure does not violate Section 18. Saylor v. State, 686
N.E.2d 80, 88 (Ind. 1997); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.
1995)(citing Fleenor v. State, 514 N.E.2d 80, 90 (Ind. 1987), reh'g denied,
cert. denied, 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158 (1988); Driskill
v. State, 7 Ind. 338, 342, (1855); Rice v. State, 7 Ind. 332, 338 (1855)),
aff'd after remand, 659 N.E.2d 480 (Ind.1995), reh'g denied, cert. denied,
517 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996); Lowery v. State, 478
N.E.2d 1214, 1220 (Ind. 1985);
Smith v. State, 465 N.E.2d 1105, 1113 (Ind. 1984). We decline to hold to
the contrary.
[5] One of the aggravating circumstances enumerated in the death
penalty statute is: "The defendant has committed another murder, at any
time, regardless of whether the defendant has been convicted of that
murder." Ind. Code § 35-50-2-9(b)(8). This subsection is only available
in cases involving double or multiple murders for which the defendant is
being tried in one proceeding. Williams v. State, 669 N.E.2d 1372, 1389
(Ind. 1996).
[6] In the event the trial court sentences the defendant to death or
life without parole, its statement of reasons "(i) must identify each
mitigating and aggravating circumstance found, (ii) must include the
specific facts and reasons which lead the court to find the existence of
each such circumstance, (iii) must articulate that the mitigating and
aggravating circumstances have been evaluated and balanced in determination
of the sentence, and (iv) must set forth the trial court's personal
conclusion that the sentence is appropriate punishment for this offender
and this crime." Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995).
[7] We therefore decline to address the defendant's contention that
the death sentence should be revised as manifestly unreasonable.