ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Kevin
L. Likes Jeffrey A. Modisett
Likes and Kraus Attorney General of Indiana
Auburn, Indiana Indianapolis, Indiana
Michelle Fennessy Kraus Arthur Thaddeus Perry
Schenkel, Tirpak & Kowalczyk Deputy Public Defender
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
ZOLO AGONA AZANIA, )
f/k/a RUFUS LEE AVERHART, )
Defendant-Appellant, )
)
v. ) 02S00-8808-PC-751
)
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth Scheibenberger, Judge
Cause No. CR-81-401
_________________________________________________
Direct Appeal
June 6, 2000
DICKSON, Justice
The defendant-appellant, Zolo Agona Azania, formerly known as Rufus
Lee Averhart, and two co-defendants were convicted of murder[1] and felony
murder[2] for killing Gary police officer George Yaros during a robbery of
the Gary National Bank on August 11, 1981. The jury recommended a death
sentence. Treating the two convictions as a single offense, the trial
court sentenced the defendant to death. On direct appeal, this Court
affirmed the defendant's sentence. Averhart v. State, 470 N.E.2d 666 (Ind.
1984). In 1993, on appeal from the denial of post-conviction relief, we
reversed based on the ineffective assistance of trial counsel in the
penalty phase and the failure of the prosecution to provide gunshot residue
test results to the defense. We remanded for either the imposition of
sentence for a term of years or a new penalty phase trial and sentencing
proceeding. Averhart v. State, 614 N.E.2d 924 (Ind. 1993).
On remand, a jury again recommended death, and the trial court
entered judgment ordering the death sentence. Upon receipt of the
defendant's appeal, this Court remanded and directed the trial court to
enter an amended sentencing order. Following the trial court's entry of
the revised order, the defendant submitted his supplemental brief. This
appeal now presents the following issues: (1) denial of the defendant's
motion to dismiss; (2) admission of character evidence; (3) presentation of
false testimony at the guilt phase trial; (4) adequacy of the sentencing
order; (5) refusal to admit the State's closing argument as substantive
evidence; (6) communications between the bailiff and the jury; and (7) non-
disclosure of exculpatory evidence.
Motion to Dismiss
The defendant contends that the trial court erred in summarily
denying his motion to dismiss the death penalty proceeding on grounds of
procedural irregularity. The defendant was initially charged by
information, but the prosecutor dismissed the information and filed an
indictment after the grand jury subsequently returned an indictment
including two counts with identical substantive allegations as the
information, plus two counts seeking the death penalty. On February 12,
1982, the defendant moved to dismiss the indictment alleging defective
grand jury proceedings by reason of certain evidence presented. Averhart,
470 N.E.2d at 677. The motion was denied, and the issue was raised and
addressed in the defendant's first direct appeal. Id. at 677-79. After we
remanded the case for a new penalty phase and sentence determination, the
defendant filed another motion to dismiss challenging the indictment upon
which the first penalty phase and sentencing proceedings had been based.
In the present appeal, the defendant challenges the denial of this second
motion to dismiss that was filed after the conclusion of the first direct
appeal and after his appeal from the denial of post-conviction relief.
In the second motion to dismiss, and now in this appeal, the defendant
argues that the grand jury lacked the power to initiate the death penalty
proceedings by indictment. He contends that a grand jury may only indict
for "an offense" and that the death penalty is not "an offense." He claims
that the indictment was thus a nullity and that his motion to dismiss the
indictment should have been granted. The defendant did not challenge the
legal authority of the grand jury to commence the death penalty proceedings
in his original trial, his first direct appeal, his petition for post-
conviction relief, or his appeal from the denial of post-conviction relief.
Upon motion of the defendant, a court may dismiss an indictment based
upon one of several enumerated grounds or "any other ground that is a basis
for dismissal as a matter of law." Ind. Code § 35-34-1-4(a)(11). A motion
under subdivision (a)(11) may be made at any time before or during trial,
Ind. Code § 35-34-1-4(b)(2). Upon a motion to dismiss, a defendant should
raise every ground upon which he intends to challenge an indictment, Ind.
Code § 35-34-1-4(c); however, "in the interest of justice and for good
cause shown," the court may entertain and dispose of such a motion on the
merits, Ind. Code § 35-34-1-4(c). Although this was a second motion to
dismiss the indictment, it was filed before the retrial after remand from
this Court. Because of the unique procedural posture of this capital
sentencing proceeding, we find that the interest of justice and good cause
requirements are satisfied and address the defendant's motion on the
merits.
The indictment issued by the grand jury was denominated in four
counts. Count I charged the offense of murder. Count II charged the
offense of felony murder. Count III sought a death sentence and alleged
the aggravating circumstance of intentional killing while committing or
attempting to commit robbery. Count IV sought a death sentence and alleged
the aggravating circumstance that the victim was a law enforcement officer
acting in the course of his duty.
To support his argument that his death penalty is based on an invalid
indictment, the defendant cites Owens v. State, 659 N.E.2d 466 (Ind. 1995),
in which we observed: "Without deciding the question, we express here our
doubt that the State has the authority to seek an indictment for a
'violation' of Indiana Code § 35-50-2-9, our death penalty statute." Id.
at 472. Our concern in Owens arose from statutory language authorizing
grand juries to deliberate and to issue an indictment alleging the
commission of criminal offenses. In Owens, the grand jury was not asked to
consider whether to issue an indictment charging a criminal offense.
Rather, the prosecutor only presented to the grand jury the issue of
whether to seek the death penalty in the pending case. In the present
case, however, the grand jury issued an indictment charging two criminal
offenses as well as issuing a request for the death penalty. The
additional pages identified as counts III and IV of the indictment complied
with the established statutory procedure.[3] Although each of the four
counts was drafted on preprinted grand jury forms with preliminary language
containing the word "indictment," we decline to elevate form over
substance. The four counts comprised a single indictment, with counts I
and II each charging a criminal offense and with counts III and IV
separately presenting grounds for seeking the death penalty.
In addition, as pointed out by the State, the defendant's assertion
that statutory language authorizing an indictment for an "offense"
precludes a grand jury from seeking the death penalty by indictment would
likewise preclude the State from seeking the death penalty by information.
Applicable statutory provisions provide: "Any crime may be charged by
indictment or information";[4] "The indictment or information shall be in
writing and allege the commission of an offense . . . .";[5] and "The
indictment or information shall be a plain, concise, and definite written
statement of the essential facts constituting the offense charged."[6] The
State was authorized to institute this criminal prosecution by filing an
information or indictment. Ind. Code § 35-34-1-1. Our legislature could
not have created a capital sentencing procedure and yet prohibited the
commencement of such proceedings.
We reject the defendant's claim that the grand jury's commencement of
death penalty proceedings in this case was invalid and a nullity.
Admission of Character Evidence
The defendant contends that a pretrial ruling by the trial court
denied him his right to a fair trial. He argues that the ruling restricted
him "from presenting his mitigation evidence in front of the jury for fear
of the State's rebuttal evidence." Amended Brief of Appellant at 27.
Before the penalty phase retrial began, the defendant filed a motion
pursuant to Indiana Evidence Rule 404 seeking disclosure of the nature of
evidence of crimes, wrongs, or acts that the State planned to present.[7]
In its ruling on the motion, the trial court stated: "If the defendant
raises character as an issue in his case in chief, the State will be
allowed to present relevant character evidence in rebuttal. It is the
court’s opinion that discussing the defendant’s family history and
background places the defendant’s character in issue." Record at 1047.
Following this ruling, the defendant filed a motion in limine seeking to
prevent the State from disclosing information regarding the defendant’s
alleged involvement in the killing of a man named Wick.[8] In making its
ruling, the trial court characterized its former ruling as prohibiting the
State from presenting such evidence in its case in chief and then
explained: "We are not talking about guilt or innocence here. We are
talking about the balance between the aggravating and the mitigating
circumstances, and I think that that is an appropriate line of inquiry for
the State to do." Record at 2685.
During the penalty phase retrial, the State did not attempt to
present character evidence in its case in chief or on rebuttal, nor did the
defendant, who only presented mitigation witnesses who testified regarding
the firearms used in the robbery and the injuries suffered by Officer
Yaros, bolstering the defendant's argument that any one of the defendant's
accomplices might have fired the fatal shot.
After the jury was charged and began deliberations, the trial court
permitted the defendant to make a record showing the mitigation evidence he
would have presented had it not been for the court's ruling that such
evidence would open the door for the prosecutor to discuss the defendant's
prior criminal history. Summarizing the prior proceedings, the defense
stated:
And then . . . my understanding is . . . that it was the court's
opinion that any evidence presented on the defendant's family
background, history or childhood would be considered character
evidence, and if character evidence were introduced in the defense
case in chief, the State would be allowed to present appropriate
rebuttal character evidence, which included—and this is not in the
written record, but which included certainly this Wick homicide that
we’ve referred to throughout the months.
Record at 3689. The trial court acknowledged this as a fair statement and
added:
But it was basically that you opened the door—by putting character
evidence in, thus allowing them—stripped of all the fancy dancing
we're doing here. It was my opinion by putting that character
evidence—that kind of evidence that you just characterized in the
record, you were putting character at issue, thus allowing the State
to present rebuttal character evidence . . . [w]hich would have, I
assume—with proper foundation and all that, would have allowed this
Wick situation to come in.
Record at 3689. The defendant then presented for preservation in the
record the testimony and a twenty-nine-page report of a sociologist and the
deposition of a neuro-psychologist regarding their investigation of the
defendant’s family and social history and psychological test results.
The defendant now argues that the evidence he presented in his offer
of proof was evidence of history and not of character. This assertion is
not relevant, however, because the trial court’s preliminary, pre-trial
ruling is not a proper issue for appellate review. Significantly, the
defense voluntarily elected against presenting this evidence to the penalty
phase jury.[9] The trial court did not exclude it and, based on its pre-
trial rulings, would likely have admitted it. We realize that the
defendant contends that the trial court erred in its pretrial ruling
announcing that the State would be permitted to rebut such evidence with
evidence of the defendant's other crimes, wrongs, or acts. The State never
offered such evidence, presumably because of the defendant's success in its
motion in limine, and the trial court did not make a trial ruling thereon.
If the defendant had presented the evidence in question, the State would
have then had to choose whether to offer the Wick evidence. If it did, the
trial court would then have had to decide whether to admit it. From such a
ruling, the defendant could have appealed, and, if successful, a new
penalty phase trial would have resulted.
In order to preserve an error for appellate review, a party must do
more than challenge the ruling on a motion in limine. Miller v. State, 716
N.E.2d 367, 370 (Ind. 1999). Absent either a ruling admitting evidence
accompanied by a timely objection or a ruling excluding evidence
accompanied by a proper offer of proof, there is no basis for a claim of
error. Ind. Evid. Rule 103(a). The trial court's ruling on the motion in
limine did not prevent the defense from presenting mitigation evidence.
The defense was able to choose between the perceived advantages of
social/psychological mitigation evidence and the disadvantages of prior
behavior evidence. The defense successfully obtained a pretrial ruling
preventing the State from presenting evidence it deemed detrimental to the
defendant's interests in the penalty phase and then made a strategic
decision not to risk admission of such excluded evidence on the State's
rebuttal. We find no error presented by these facts.
False Testimony During the Guilt Phase
The defendant contends that his conviction and sentence must be set
aside because the State knowingly used false testimony during the 1982
guilt phase that resulted in the conviction. He claims that a
representative of the State provided information to a witness, James
McGrew, who then provided identification testimony based thereon.
This Court has unequivocally condemned prosecutorial use of perjured
testimony or testimony known to be false. Gordy v. State, 270 Ind. 379,
381, 385 N.E.2d 1145, 1146 (1979). Such conduct "invokes the highest level
of appellate scrutiny" and requires that any resulting conviction be set
aside "if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury." Id.
During the 1996 penalty phase retrial, McGrew testified that before
he took the stand in the 1982 guilt phase trial, he informed a police
officer that he could not identify the defendant and that someone then
advised him where the defendant would be sitting in the courtroom. In the
penalty phase retrial, McGrew did not present any identification testimony,
and his identification of the defendant was not an issue.
Because consideration of many factors may be appropriate to allow for
a full and fair review of this claim, we find that the record does not
enable us to evaluate fairly this issue in these appellate proceedings.
The record of the 1982 trial is not part of the record on this appeal, and
there has been no post-conviction fact-finding relating to potentially
relevant matters, at a minimum including the nature and extent of the
information McGrew had provided to the State, the exchange that occurred
between McGrew and representatives of the State immediately preceding his
1982 testimony, McGrew's testimony during the 1982 trial, the totality of
the evidence presented in the 1982 trial, and the extent to which this
claim was available to the defendant during his prior post-conviction
proceeding.
In its response to this issue, the State asserts that "[e]ven if this
claim might be appropriately brought via a request to file a successive
post-conviction petition under Ind. Post-Conviction Rule 1(12), it is not
properly before this Court in this proceeding." Brief of Appellee at 10.
We agree.
Adequacy of the Sentencing Order
The defendant contends that the sentencing order is defective in two
respects: (1) failing to consider, identify, articulate, and discuss
mitigating circumstances; and (2) failing to set forth the trial judge's
personal conclusion that the death sentence is appropriate. The State, in
its Appellee's Brief in response to the defendant's appeal following the
penalty phase retrial and sentencing, acknowledged shortcomings in the
trial court's sentencing order and suggested that "a remand may be required
in this instance." Brief of Appellee at 12. We remanded it to the trial
court with directions to enter an amended sentencing order and directed
that the parties may thereafter file supplemental briefs. This case is now
before us on the resulting revised sentencing order.
The defendant argues that the sentencing statement "fail[s] to
identify and articulate any specific mitigating circumstances" and that
this indicates a failure to consider mitigation. Supplemental Brief of
Appellant at 3. However, the defendant does not identify any claimed
mitigating evidence that was presented but not considered by the trial
court. The revised sentencing order clearly acknowledges that the
defendant "presented evidence proving the existence" of the following
mitigating circumstances: (1) the defendant was bright and his death would
be a loss; (2) the defendant's neuro-psychology tests indicated a
"neurocognitive dysfunction which caused imperfect or sometimes maladaptive
judgment and reasoning which increased with stress"; (3) the defendant's
difficult childhood; and (4) a psycho-social assessment of the defendant
indicated "psychological and physical abuse as a child resulting in
deficits in self-control, impulse control, insight, and development of
social judgment." Second Supplemental Record at 2. The sentencing order
expressly states that the trial court evaluated and balanced the
aggravating and mitigating circumstances, that it found that the
aggravating circumstances outweighed the mitigating circumstances, and that
it had considered the jury recommendation favoring the death penalty.
The defendant cites Harrison v. State, in which we discussed
sentencing orders in capital cases and emphasized that the trial court's
statement of reasons for entering a death sentence is important "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." 644 N.E.2d 1243, 1262 (Ind.
1995).
We are satisfied that in determining the sentence the trial court
considered only proper matters and was not arbitrary or capricious.
Although unusually succinct, the sentencing order identifies the mitigating
factors found and the witnesses who provided the supporting evidence.
Further, the order reflects that the trial court, in reaching its
conclusion, evaluated and weighed the mitigators and aggravators and also
considered the recommendation from the jury. We decline the defendant's
claim that the trial court's sentencing statement is defective for failing
to consider, identify, articulate, and discuss mitigating circumstances.
The defendant also argues that the trial court failed to set forth "a
personal conclusion" as to the appropriateness of the sentence. We have
emphasized the desirability of a trial court’s capital sentencing order
including the trial court’s personal conclusion that the sentence is "the
appropriate punishment for this offender and this crime." Harrison, 644
N.E.2d at 1263. This criterion "make[s] clear that the sentencing court
has a separate and independent role in assessing and weighing the
aggravating and mitigating circumstances and in making the final
determination whether to impose the death penalty." Williams v. State, 669
N.E.2d 1372, 1389 (Ind. 1996). The revised sentencing statement does not
separately articulate the trial court's personal conclusion as recommended
in Harrison. When a similar claim was presented in Allen v. State, 686
N.E.2d 760 (Ind. 1997), we observed that the essence of this issue is
"whether the judge reached an independent conclusion that a sentence of
death is warranted," id. at 788. Reviewing the sentencing order in its
entirety, we found that "[t]he court's balancing of the evidence
emphatically displays its discrete, individualized sentencing." Id. at
790.
In the present case, the trial court's revised sentencing order
reflects that the judge found the two aggravating circumstances proven
beyond a reasonable doubt and that the defendant proved multiple mitigating
circumstances, which the order describes in some detail. The trial judge
expressly noted that he considered the jury's recommendation, but the
revised order clearly reflects that the trial judge also personally
evaluated and balanced the aggravating and mitigating circumstances and
concluded that the former outweighed the latter. In both his initial and
revised sentencing orders, the trial judge ordered the death sentence.
We find that the revised sentencing decision reflects the trial
court's "separate and independent role in assessing and weighing the
aggravating and mitigating circumstances and in making the final
determination." Williams, 669 N.E.2d at 1389. As in Allen, we are
satisfied that the trial judge reached an independent conclusion that a
sentence of death is warranted and that the court's balancing of the
evidence demonstrates its discrete, individualized sentencing. Allen, 760
N.E.2d at 790.
Exclusion of the State's Prior Closing Arguments
The defendant contends that the trial court erroneously prevented him
from presenting the State's closing arguments from the 1982 trial during
his case in chief in the 1996 penalty phase retrial. The trial court
refused the defendant's offer to present, as a party admission, the
prosecuting attorney's closing statement from the original trial.
During the retrial, both the defendant and the State presented
evidence regarding the defendant's commission of the murder that was not
presented in the 1982 trial. In the penalty phase retrial, the defendant
requested that the court admit the State's prior closing statement and
argued that, at the original 1982 trial, the State's theory was "that the
execution style shot by [the defendant] was to the upper right chest
clavicle area. It was not the abdominal wound. . . [F]rom the evidence
they've presented here, . . . they're [going to] argue to the jury that
the close range shot is now the abdominal wound." Record at 3543. The
trial court refused to admit the prior closing arguments as evidence on
grounds of relevancy.
We review a trial court's evidentiary decision for an abuse of
discretion and will reverse only when the decision is clearly against the
logic and effect of the facts and circumstances. Timberlake v. State, 690
N.E.2d 243, 256 (Ind. 1997). The defendant was not seeking to offer
factual evidence from the 1982 trial but rather the prosecutor's final
argument regarding the evidence. Even if the 1982 closing statements may
be relevant to the issue of the credibility of the State's 1996 argument,
they were not relevant to the 1996 evidence in the penalty phase retrial.
The mere fact that a party earlier argued a different theory based on
different evidence does not render the argument relevant to the issues
presented in the later proceeding. The trial court did not err in refusing
to admit the prosecutor's prior closing arguments.
Communications Between the Bailiff and the Jury
The defendant next claims that the trial court erred in denying his
motion to correct error based on the bailiff's allegedly improper
communications with the jury outside the defendant’s presence.
Hearing a knock on the inside of the door to the jury room, the
bailiff entered and learned that the jury had reached a verdict. He
ascertained that the verdict forms had been signed, but noticed several
jurors crying. The bailiff then telephoned the judge who instructed the
bailiff to re-enter the jury room, determine whether the verdict was
unanimous, and inform the jurors that they might be individually polled
concerning the verdict. Because this occurred in his absence, the
defendant contends that he was deprived of his right to be present.
To ensure the right of criminal defendants generally to be present at
all stages of a criminal proceeding, Indiana courts have often stated that
when communication between a bailiff and a jury occurs outside the
defendant's presence, there is a presumption of harm to the defendant.
Wilson v. State, 511 N.E.2d 1014, 1018 (Ind. 1987); Driver v. State, 594
N.E.2d 488, 493 (Ind. Ct. App. 1992); Harrison v. State, 575 N.E.2d 642,
649 (Ind. Ct. App. 1991). Reversal is not required, however, "unless harm
or prejudice result[s] from the communication." Lott v. State, 690 N.E.2d
204, 210 (Ind. 1997). See also Wilson, 511 N.E.2d at 1018.
Here the communication occurred after the jury had completed
deliberations and after the verdict forms were signed. There is no
indication that the communication between the bailiff and the jury resulted
in any harm or prejudice to the defendant. The trial court did not err in
denying the motion to correct error.
Non-disclosure of Exculpatory Evidence
The defendant contends that the death sentence should be reversed
because the State failed to disclose exculpatory evidence to the defendant
as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963). The defendant’s argument emphasizes his claim of continuous
Brady violations, but he only identifies one incident that has not already
been resolved or remedied by this Court by our 1993 remand[10] or
thereafter by the disclosures ordered by the post-conviction court.
The defendant claims that the State failed to produce information
regarding certain firearm tests, referred to as "test fires." At the 1996
sentencing hearing, an officer assigned to the Lake County Police Crime Lab
testified regarding a comparison examination he conducted and stated that
he had retrieved the original test fires generated as a result of the
testing and examination conducted in 1981. In the intervening years, the
State had searched for, but had not found, the test fires. The defense
asserts that, because the State failed to locate and produce the original
test fires, his penalty phase retrial counsel "did not believe that a
comparison was possible" and that, "had defense counsel been aware of the
ability to do comparisons, [his ballistic expert] could have provided a
complete examination of the evidence." Amended Brief of Appellant at 38.
The defendant does not, however, contend or demonstrate that his
expert's examination would have resulted in favorable evidence. Reversal
on grounds of a Brady violation requires the defendant to establish: (1)
that the prosecutor suppressed evidence; (2) that the evidence was
favorable to the defense; and (3) that the suppressed evidence was
material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218.
We need not address whether the State's failure to locate and provide the
original test fires amounts to suppression because the defendant has not
shown that the evidence was material and favorable to the defense. In
addition, the materiality element under Brady requires the defendant to
establish a reasonable probability that the result of the proceeding would
be different if the State had disclosed this evidence. Kyles v. Whitley,
514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490, 505-06
(1995).
The defendant is not entitled to reversal on his claim that the State
failed to disclose exculpatory evidence.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN and RUCKER, JJ., concur. BOEHM, J.,
dissents with separate opinion.
ATTORNEYS FOR APPELLANT
Kevin L. Likes
Auburn, Indiana
Michelle Fennessy Kraus
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
ZOLO AGONA AZANIA, )
f/k/a RUFUS LEE AVERHART, )
)
Appellant (Defendant Below), )
) Indiana Supreme Court
v. ) Cause No. 02S00-8808-PC-751
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Kenneth Scheibenberger, Judge
Cause No. CR-81-401
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
June 6, 2000
BOEHM, Justice, dissenting.
I disagree with the majority’s resolution of the “Admission of
Character Evidence” issue. The majority holds that the issue was not
preserved because Azania did not object at the proper time at trial. I
believe that Azania’s raising of the issue in a pretrial motion, renewing
the issue again on the first day of trial, and making of an offer of proof
at trial is sufficient to preserve the issue for our review. I would
reverse the judgment of the trial court and order a new penalty phase.
On July 21, 1995, Azania filed a Motion for Disclosure of Rule 404
Evidence. After a hearing the trial court entered the following order on
December 18: “If the defendant raises character as an issue in his case in
chief, the State will be allowed to present relevant character evidence in
rebuttal. It is the Court’s opinion that discussing the defendant’s family
history and background places the defendant’s character in issue.” On
February 14, 1996, Azania filed a Motion in Limine requesting an order
preventing the State from presenting evidence relating to another homicide
that had occurred several years earlier. After a jury had been selected
but before the State began its presentation of evidence, the trial court
heard argument on the motion. At that hearing Azania described the nature
of the mitigating evidence he planned to introduce. The State responded
that if Azania chose to offer evidence such as testimony of his disturbed
childhood, the State would introduce rebuttal evidence that Azania had
killed another man several years before the murder of Officer Yaros.[11]
The trial court ruled that the State could not present evidence of a prior
killing in its case-in-chief. However, if Azania submitted the planned
evidence of his family history and background the prior killing evidence
would be “fair game” for rebuttal. Faced with this ruling Azania chose to
omit the evidence he had proposed. After the jury began its deliberations
the trial court permitted Azania to make a formal offer of proof at which
he submitted testimony and a twenty-nine page report about his family
history and background and, by agreement with the State, a deposition of
his mental health expert.
I. Preservation of the Error
The majority holds that, because the trial court made only a
preliminary ruling on the admissibility of the evidence of a prior
homicide, the issue was not preserved for appellate review. It reasons
that Azania should have presented his mitigating evidence, allowed the
State the opportunity to choose whether to offer the evidence of a prior
homicide, and then allowed the trial court to decide whether to admit it.
Only from such a ruling could Azania appeal.
The only case cited by the majority for this requirement is Miller v.
State, 716 N.E.2d 367, 370 (Ind. 1999). That case stands for the general
principle that a party must do more than challenge a ruling on a motion in
limine in order to preserve an issue for appellate review.[12] This Court
has given two fundamental reasons for the requirement that a party renew a
ruling on a pretrial motion in limine at trial and make an offer of proof
of the excluded evidence in order to preserve the error. First, an
objection at trial gives the trial court the opportunity to make a final
determination of the admissibility of evidence in the context in which it
is offered. See Clausen v. State, 622 N.E.2d 925, 928 (Ind. 1993).
Second, the offer of proof establishes a record on which an appellate court
can assess the value of the excluded evidence and the prejudice resulting
from its exclusion. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999)
(quoting 12 Robert Lowell Miller, Jr., Indiana Practice § 103.113, at 55
(2d ed. 1995)). In the typical case, these requirements impose a minimal
burden on the objecting party. Normally a party who has incurred an
adverse ruling on its motion in limine faces no adverse consequences from
renewing the issue at trial.[13] This can be done outside the jury’s
presence to avoid any appearance of an obdurate defense, and at worst, the
party will get the same ruling.
Although Azania made an offer of proof at trial after raising the
issue both in a pretrial motion and again on the first day of trial, the
majority finds any claim of error waived because the objection came too
early. I see no reason why Azania should have been required to raise the
issue a third time with the trial court. The important goals furthered by
requiring an objection at trial and offer of proof were satisfied in this
case. The trial court was given an opportunity to reconsider its pretrial
ruling on the first day of trial. It knew the nature of both Azania’s
mitigating evidence and the State’s rebuttal evidence at that time. Azania
made an offer of proof on which this Court can evaluate the prejudice
resulting from the trial court’s ruling. Finally, unlike the typical case
in which renewing an adverse ruling on a motion in limine at trial poses no
adverse consequences, Azania had a great deal to lose by waiting to object
until the State offered the evidence of a prior homicide in rebuttal. It
is clear that defense counsel viewed this evidence as very damaging to
Azania’s case.[14] Confronted with the option of either submitting
mitigating evidence that would open the door to devastating rebuttal
evidence or submitting no childhood or background evidence at all, Azania
reasonably chose the latter.
I see nothing to be gained by the majority’s requirement that Azania
wait to object until after the State sought to admit the prior homicide
evidence in rebuttal. The trial court had been apprised both before and at
trial of the relevant evidence and arguments on the issue. The possibility
that it would have changed its ruling when presented with the issue for a
third time seems remote at best, and the purposes of the Miller
requirements were, in my view, all fully served. In short, I believe
Azania’s raising of the issue before trial, renewal of the issue at the
beginning of trial, and making of an offer of proof is sufficient to
preserve the issue for this Court’s review.
II. The Merits of Azania’s Claim
Consistent with the United States Supreme Court’s holding in Lockett
v. Ohio, 438 U.S. 586, 604 (1978), Indiana Code § 35-50-2-9(c)(8) allows
capitally charged defendants to present evidence in a penalty phase that
supports “every conceivable mitigator.” Minnick v. State, 698 N.E.2d 745,
761 (Ind. 1998), cert. denied, 120 S. Ct. 501 (1999). Azania sought to
submit evidence regarding his childhood, family background, and mental
capabilities. A licensed social worker had prepared a detailed social
history that included evidence of Azania’s difficult childhood, namely,
that he grew up poor in a large family that initially lived in a housing
project. At the age of nine Azania witnessed his father die of a heart
attack. His family then moved into a new house with insurance proceeds,
but his mother soon went to work in Chicago, where she would stay from
Monday morning through Friday, leaving Azania and his younger siblings at
home without adult supervision. When Azania’s mother was at home, she
sometimes disciplined the children by whipping them with belts and
extension cords. Azania also sought to offer evidence from Dr. Michael
Gelbort, who conducted a series of tests on Azania and concluded that
Azania had problems with concentration, juggling cognitive information, and
working at a normal rate of speed. Dr. Gelbort categorized Azania in the
mild, moderately impaired range.
Although it is clear that this evidence was admissible pursuant to the
statute and Lockett, Azania ultimately decided not to offer it solely
because of the trial court’s ruling that it would open the door to rebuttal
evidence of a prior homicide. The State contended at trial that evidence
of the prior homicide was proper to “rebut whatever character evidence
[Azania] put forth to show that he’s such a great guy.”[15]
It is well settled that “[t]he State may properly introduce rebuttal
evidence tending to disprove mitigating circumstances shown by defendant’s
evidence.” Stevens v. State, 691 N.E.2d 412, 435 (Ind. 1997) (quoting
Fleenor v. State, 622 N.E.2d 140, 149 (Ind. 1993)). “When the accused
offers evidence of her own character, she opens the door to the subject of
her character for the trait placed in issue.” Brown v. State, 577 N.E.2d
221, 232 (Ind. 1991). Although the scope of rebuttal evidence lies within
the trial court’s discretion, see id., it is clear under these authorities
that the rebuttal evidence must pertain to the specific mitigating evidence
submitted by the defendant.[16]
Here, Azania sought to submit evidence of a difficult childhood and
family background as well as continuing mental impairments. In my view,
this is not character evidence. Rather, it is presented as evidence of the
sources of a flawed character. Whether that should or should not be given
weight is for the jury to consider. The State would have been entitled to
present evidence rebutting the proffered evidence. But this does not open
the door to evidence dealing with other alleged crimes or bad acts. None
of the proffered evidence suggests that Azania was nonviolent, had no
criminal history, or was otherwise a “great guy.” Accordingly, under these
circumstances evidence of a prior homicide is not proper rebuttal.
III. Prejudice
Not every error in the admission or exclusion of evidence is grounds
for reversal. An error will be found harmless if its probable impact on
the jury, in light of all the evidence in the case, is sufficiently minor
that it did not affect the substantial rights of a party. Ind. Trial Rule
61; Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995). In a death
penalty case in which the jury unanimously recommended death, I believe the
required standard for prejudice is whether there is a reasonable
probability that the excluded mitigating evidence would have convinced at
least one juror not to recommend death.
In this case the State alleged two aggravating circumstances: (1)
intentionally killing while committing a robbery and (2) killing a law
enforcement officer in the course of duty. See Ind. Code § 35-50-2-
9(b)(1)&(6). The jury was properly instructed that it could recommend
death only if it found that the statutory aggravating circumstances
outweighed any mitigating circumstances. See id. § 35-50-2-9(k). The jury
was specifically instructed “to consider the following mitigating
circumstances: The defendant was an accomplice in a murder committed by
another person and the defendant’s participation was relatively minor; or
two, any other circumstances appropriate for your consideration.”
The evidence presented in the offer of proof is not especially strong
in comparison to the available but unpresented evidence in cases in which
this Court has granted a new penalty phase based on ineffective assistance
of counsel. See, e.g., Rondon v. State, 711 N.E.2d 506, 522 (Ind. 1999);
Burris v. State, 558 N.E.2d 1067, 1075-76 (Ind. 1990). Nonetheless, jurors
in a death penalty case have widely differing views on the significance of
mitigating evidence, and it is difficult if not impossible to know what
evidence might sway an individual juror to vote against a recommendation of
death. I believe the trial court’s ruling significantly hampered Azania’s
ability to argue that the mitigating circumstances outweighed the
aggravating ones. The excluded evidence was in no way cumulative. Indeed,
because of the trial court’s ruling, Azania was left to argue as mitigation
only that his co-defendants had not been sentenced to death and that, in
light of the forensic evidence, he may not have fired the fatal shot.
The United States Supreme Court has observed that “the sentence
imposed at the penalty stage should reflect a reasoned moral response to
the defendant’s background, character, and crime.” Penry v. Lynaugh, 492
U.S. 302, 319 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987)
(O’Connor, J., concurring) (emphasis omitted)). Although the jury heard a
great deal about Azania’s crime, the trial court’s ruling prevented it from
hearing anything about Azania’s background. Although many or even most of
the jurors may have found the proffered mitigating evidence insignificant
in comparison to the aggravating circumstances, I cannot exclude the
possibility that some would not have arrived at that conclusion. Cf. Smith
v. State, 547 N.E.2d 817, 822 (Ind. 1989) (“In the absence of any evidence
of mitigating circumstances . . . or of evidence to rebut the existence of
the charged aggravating factors, a death sentence is a foregone
conclusion.”) Accordingly, the death sentence should be vacated and this
case should be remanded for a new penalty phase in which a jury may receive
the claimed mitigating evidence of Azania’s background without hearing the
prior homicide evidence.
-----------------------
[1] Ind. Code § 35-42-1-1(1).
[2] Ind. Code § 35-42-1-1(2).
[3] The State is authorized to seek a death sentence "by alleging, on
a page separate from the rest of the charging instrument, the existence of
at least one of the aggravating circumstances" listed in the statute. Ind.
Code § 35-50-2-9(a).
[4] Ind. Code § 35-34-1-1.
[5] Ind. Code § 35-34-1-2.
[6] Ind. Code § 35-34-1-2(d).
[7] The rule provides in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial . . . of the general nature of any such
evidence it intends to introduce at trial.
Ind. Evid. R. 404(b) (emphasis added).
[8] Although neither party refers us to any documentation of this
prior conviction, a review of the argument before the trial court on this
issue suggests that the defendant was convicted of voluntary manslaughter
and served a portion of a sentence before the conviction was overturned on
post-conviction review. At the time of the sentencing phase we consider
here, the State had not pursued the voluntary manslaughter case any
further.
[9] This evidence was presented again and admitted during the
sentencing hearing before the trial judge.
[10] The defendant argues that several omissions in the State's
disclosures require reversal. We previously addressed many of these
concerns in our consideration of the defendant's appeal from the denial of
his petition for post-conviction relief. In the course of that appeal, we
suspended consideration of the appeal and ordered that the post-conviction
court conduct an in camera review of the police and prosecution files.
Upon review of the resulting findings of the post-conviction court, we
found that the defendant was not entitled to a new guilt phase trial
because the evidence would not have affected the outcome in light of the
State's use of a vicarious liability theory. Averhart, 614 N.E.2d at 928.
We did, however, order a new penalty phase trial and sentencing proceeding,
finding that, while the jury need not have determined which defendant fired
the fatal shot in order to find guilt, the penalty phase jury needed to
determine whether the defendant was the person who fired the fatal shot.
Id. at 931. Thus, we found that the failure to release to the defendant
the inconclusive gunshot residue tests undermined confidence in the jury's
recommendation. Id. Our remand for treatment of those claims remedied any
harm to the defendant by the suppression of that evidence, and further
review of those claims is barred by res judicata.
[11] Although Azania pleaded guilty to voluntary manslaughter in that case,
the conviction was set aside pursuant to a petition for postconviction
relief and the State did not pursue the case any further.
[12] In Miller, at a pretrial motion in limine hearing the trial court
ruled the defendant's proffered evidence was inadmissible. This ruling was
erroneous but the error was held to have been waived on appeal because no
offer of proof was made at trial. This Court observed, "To raise the
question of error, the evidence must be offered at trial to give the trial
court the opportunity to rule on its admissibility at that time." Miller,
716 N.E.2d at 370 (quoting Tyra v. State, 506 N.E.2d 1100, 1103 (Ind.
1987)); see also Ind. Evidence R. 103(a) (requiring a timely objection and
offer of proof at trial in order to preserve error).
[13] In Vehorn v. State, 717 N.E.2d 869, 872 (Ind. 1999), this Court
repeated the general principle of non-preservation of errors raised in a
pretrial motion in limine but not renewed at trial. However, we noted that
"there are occasional exceptions to this general rule." Id. at 872-73. In
that case, the exception was the trial court's assurance "even if you don't
object, the Court will find . . . that your objections to this type of
evidence have been timely made." Id. at 873.
[14] Counsel described the evidence as "[t]he most prejudicial information
that this jury" could hear. "If [it] comes in, it's over."
[15] The State makes no argument on appeal about the merits of the trial
court's ruling. It simply asserts that the issue is not preserved without
making an alternative argument, as it often does, that even if preserved
the issue fails on its merits.
[16] In Stevens, the defendant elicited penalty phase testimony regarding
his nonviolent and law-abiding character. 691 N.E.2d at 435. On cross-
examination, the State then asked one of Stevens' expert witnesses about
Stevens' prior molestation of children, Stevens' alleged involvement in
another killing, and the expert's opinion regarding Stevens' future
dangerousness. Although this Court found any claim of error waived on
appeal because defense counsel did not object to this cross-examination, we
observed that counsel likely did not object because the cross-examination
testimony was relevant to countering Stevens' mitigating evidence and that
Stevens had "opened the door" to this testimony. See id. Similarly, in
response to the defendant's mitigating evidence of a general lack of
aggressiveness, domination by another person, and borderline retardation in
Brown, this Court held that it was proper rebuttal for the State to submit
a videotape from another trial in which the defendant testified that she
had willingly and independently murdered a woman by beating her with a vice
grip, pop bottle, candy dish, and crowbar. See 577 N.E.2d at 231-32.