ATTORNEY FOR APPELLANT
Michael C. Keating
Evansville, 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
__________________________________________________________________
TIMOTHY R. FARBER, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 82S00-9903-CR-181
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable William J. Brune, Judge
Cause No. 82D02-9504-CF-139
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
May 26, 2000
BOEHM, Justice.
Timothy Farber was convicted of murder and robbery. The State sought
a sentence of life imprisonment without parole alleging that Farber had
intentionally killed while committing a robbery. A jury recommended
against life without parole but the trial court nevertheless imposed that
sentence. Farber was also sentenced to thirty years for robbery. His
convictions were affirmed on direct appeal but the case was remanded for a
new sentencing order. See Farber v. State, 703 N.E.2d 151, 153 (Ind.
1998). The trial court again imposed life without parole. In this appeal
Farber raises a single issue: Was the trial court authorized to impose
that sentence in the absence of a specific jury finding that he had
intentionally killed in the course of a robbery? We affirm the trial
court.[1]
The current statute governing the imposition of a sentence of death
or life imprisonment without parole after conviction by a jury provides, in
relevant part:
(e) Except as provided by IC 35-36-9, if the hearing is by jury, the
jury shall recommend to the court whether the death penalty or life
imprisonment without parole, or neither, should be imposed. The jury
may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (k). The court
shall make the final determination of the sentence, after considering
the jury’s recommendation, and the sentence shall be based on the same
standards that the jury was required to consider. The court is not
bound by the jury’s recommendation.
. . . .
(k) Before a sentence may be imposed under this section, the jury, in
a proceeding under subsection (e), . . . must find that:
(1) the state has proved beyond a reasonable doubt that at least
one of the aggravating circumstances listed in subsection
(b) exists; and
(2) any mitigating circumstances are outweighed by the aggravating
circumstance or circumstances.
Ind. Code § 35-50-2-9 (1998).
Farber contends that subsection 9(k) requires the specified jury
findings before the court may impose either death or life imprisonment
without parole. We agree that subsection 9(k), read in isolation, supports
Farber’s claim. However, it is well settled that a statute must be read as
a whole to avoid excessive reliance on a strict literal meaning or the
selective reading of individual words. See Collier v. Collier, 702 N.E.2d
351, 354 (Ind. 1998); see also Park 100 Dev. Co. v. Indiana Dep’t of State
Revenue, 429 N.E.2d 220, 222 (Ind. 1981) (legislative intent as ascertained
from the statute as a whole prevails over the strict literal meaning of any
word or term). The same 1993 amendment that introduced present subsection
(k)[2] with its usage of “impose” and the reference to jury findings, also
retained the “recommendation” language of subsection (e) and the express
statement that “[t]he court is not bound by the jury’s recommendation.”
Pub. L. No. 250-1993, § 2, 1993 Ind. Acts 4482.[3] In addition, a
subsequent amendment in 1994 restored to subsection (e) the following
language that was removed by the 1993 changes: “The court shall make the
final determination of the sentence, after considering the jury’s
recommendation, and the sentence shall be based on the same standards that
the jury was required to consider.” See Pub. L. No. 158-1994, § 7, 1994
Ind. Acts 1857.[4]
Farber points to subsection (k) and contends that it makes clear that
a jury is required to make a specific finding that the State proved at
least one statutory aggravator beyond a reasonable doubt before a sentence
of death or life imprisonment without parole may be imposed. That result
is, of course, inconsistent with the provision in subsection (e), reenacted
in 1994, that the jury “recommends” and the trial court “make[s] the final
determination of the sentence.” It is also inconsistent with the provision
in subsection (e), present since 1977 and reenacted in 1993 and 1994, that
“[t]he court is not bound by the jury’s recommendation.” Thus, even the
1993 amendments that introduced the language now found in subsection (k)
also required the trial court to make the ultimate decision.
The goal of statutory construction is to determine and implement the
intent of the legislature. See Collier, 702 N.E.2d at 354. The literal
reading of section 9(k) urged by Farber, without reference to section 9(e),
would elevate the jury’s role in sentencing far above its long-standing
role of making a nonbinding recommendation and would be in clear conflict
with other subsections of the statute, including those more recently
enacted. We are mindful of the obligation to construe penal statutes
strictly, but we find the overall statutory framework to be clear.
Notwithstanding the poor choice of words in subsection (k), in view of this
legislative history and nearly two decades of decisional law interpreting
subsection (e),[5] we think it is clear that the legislature has provided
that the jury’s role in capital (and more recently life without parole)
sentencing has been and remains to make a nonbinding recommendation to the
trial court. Accordingly, we hold that Indiana Code § 35-50-2-9(k) does
not require juries to make a specific finding that the State has proved an
aggravating circumstance beyond a reasonable doubt before trial courts are
authorized to impose a sentence of death or life imprisonment without
parole.
Conclusion
The sentence imposed by the trial court is affirmed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
Attorney for Appellant
Michael C. Keating
Keating, Bumb, Vowels & LaPlunte
Evansville, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
TIMOTHY R. FARBER,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 82S00-9903-CR-181
)
)
)
)
)
)
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable William J. Brune, Judge
Cause No. 82D02-9504-CF-139
ON DIRECT APPEAL
May 26, 2000
SULLIVAN, Justice.
The current requirements governing the imposition of a sentence of
life imprisonment without parole after conviction by a jury are contained
in two subsections of Indiana Code § 35-50-2-9 — subsections (e) and (k).
Subsection (e) provides that the jury may recommend life imprisonment
without parole "only if it makes the findings described in subsection
(k). The court shall make the final determination of the sentence,
after considering the jury's recommendation . . . The court is not
bound by the jury's recommendation."
Subsection (k),[6] in turn, requires that, "Before a sentence may be
imposed under this section, the jury, in a proceeding under subsection (e),
. . . must find that: (1) the state has proved behind a reasonable doubt
that at least one of the aggravating circumstances listed in subsection (b)
exists; and (2) any mitigating circumstances are outweighed by the
aggravating circumstances." (The emphasized language was added to the
statute in 1993.)
Farber contends that subsection (k) requires the jury to have made
the two specified findings before the court may impose life imprisonment
without parole. To the extent that Farber argues that the jury must make
written findings adequate for review, I agree with the majority in
rejecting his argument.[7]
However, to the extent that Farber argues that the jury's
recommendation must be consistent with such findings before the court may
impose life imprisonment without parole, I agree. That is, I believe the
statute does not require the jury to reduce to writing its findings that
the State has met its burden with respect aggravating circumstances and
that any mitigating circumstances are outweighed thereby — but the statute
does require the jury to reach those conclusions in its deliberations
before it can recommend, and before the court may impose, a sentence of
life without parole.
This is highly significant in this case — the first case we have
reviewed involving a crime committed after Indiana Code § 35-50-2-9 was
amended in 1993 where a jury recommended against life without parole but
the trial court nevertheless imposed that sentence.[8]
In the 1993 amendment, the legislature for the first time explicitly
conditioned the imposition of a sentence under Indiana Code § 35-50-2-9 on
the jury making the two findings: "Before a sentence may be imposed under
this section, the jury... must find that" the state has met its burden with
respect aggravating circumstances and that any mitigating circumstances are
outweighed thereby. Indiana Code § 35-50-2-9(i),[9] as added by P.L. 250-
1993, § 2. To repeat, the condition "[b]efore a sentence may be imposed
under this section" was added to the statute in 1993 and we have never
before been called upon to construe it. This language unambiguously
conditions the imposition of a sentence of life without parole (a “sentence
under this section”) on the jury making the two required findings. Those
findings need not be in writing but where, as here, the jury recommends
against life without parole, the recommendation is contrary to the required
findings and the condition is not met. As such, the sentence cannot be
imposed.
The State argues that such a construction is inconsistent with the
statutory language in subsection (e) noted above, namely, "The court is not
bound by the jury's recommendation." With due regard for the rule of
lenity,[10] I view these provisions to mean that a court may not impose a
sentence of life without parole if the jury does not make the required two
findings (and therefore recommends against life without parole) but that
even where a jury does recommend a sentence of life without parole, the
court is not bound by the jury's recommendation and may impose a term of
years.
I would hold that by recommending against a sentence of life without
parole, the jury in this case did not make the findings required by
subsection (k). Because a jury must make such findings "[b]efore a
sentence may be imposed under" Indiana Code § 35-50-2-9, the trial court
was not authorized to impose a sentence of life without parole.
-----------------------
[1] The State correctly points out that this claim was available in
Farber’s first appeal, but not raised. Although failing to raise an issue
that was known and available at the time of direct appeal is generally
grounds for waiver, see, e.g., Trueblood v. State, 715 N.E.2d 1242, 1248
(Ind. 1999), we choose to address Farber’s claim on its merits because it
is an issue of potential importance to other cases.
[2] This subsection first appeared in 1993 as subsection (i) and was
renumbered as (k) in 1995. See Pub. L. No. 306-1995, § 1, 1995 Ind. Acts
4176.
[3] The 1993 amendment added life imprisonment without parole to the
statute. The addition of life without parole was done by designating two
new sub-subsections to subsection (e): “(1) the death penalty; or (2) life
imprisonment without parole.” These sections replaced “the death penalty”
as the subject of the jury’s recommendation previously governed by the
standards of old sub-subsections (e)(1) and (e)(2). To avoid a subsection
(e) with two pairs of sub-subsections (1) and (2), the pair formerly in
subsection (e) were moved to a newly created subsection (i). See Pub. L.
No. 250-1993, § 2, 1993 Ind. Acts 4482.
[4] The 1994 amendment was apparently a response to problems introduced by
the 1993 amendment. First, the following language from the 1977 statute
was omitted in the 1993 restatement of subsection (e): “The court shall
make the final determination of the sentence, after considering the jury’s
recommendation, and the sentence shall be based on the same standards that
the jury was required to consider.” See Pub. L. No. 250-1993, § 2, 1993
Ind. Acts 4481. The 1994 amendment restored that phrase to subsection (e).
See Pub. L. No. 158-1994, § 7, 1994 Ind. Acts 1857. Second, the 1993
amendment referred to the jury’s finding the matters in sub-subsections (1)
and (2), but ignored the possibility of a bench trial. The 1994 amendment
added the requirement that these findings are to be made by the court if
there is no jury.
[5] For example, in Bieghler v. State, 481 N.E.2d 78, 86 (Ind. 1985), this
Court observed:
There is no authority, however, for the proposition that juries who
make recommendations to judges who then make the ultimate sentencing
decision need make written findings adequate for review particularly
where, as in our statutes, the trial judge operates as the ultimate
sentencer rather than simply as a reviewer of the jury’s
recommendation. The trial judge is the only authority allowed by
statute to determine the proper penalty which he or she does according
to the standards prescribed by the statute.
See also Burris v. State, 642 N.E.2d 961, 967 (Ind. 1994) (rejecting
argument that defendant could not be sentenced to death unless the jury
made a specific finding of an aggravating circumstance).
[6] Subsection (k) was designated subsection (i) at the time Farber
committed the crime that is the subject of this appeal. The text is
otherwise the same. Ind. Code § 35-50-2-9 (Supp. 1994).
[7] See Bieghler v. State, 481 N.E.2d 78, 86 (Ind. 1985) (“no authority . .
. for the proposition that juries . . . need make written findings” under
Ind. Code § 35-50-2-9), cert. denied, 475 U.S. 1031 (1986); Burris v.
State, 642 N.E.2d 961, 967 (Ind. 1994) (rejecting argument that defendant
could not be sentenced under Ind. Code § 35-50-2-9 unless the jury made a
specific finding of aggravating circumstances), cert. denied , 516 U.S. 922
(1995). The crimes at issue in both the Bieghler and Burris cases
occurred prior to the addition of subsection (k) to Indiana Code § 35-50-2-
9. But the version of the statute in effect at the time of those crimes
both contained language in subsection (e) providing that a "jury may
recommend the death penalty only if it finds" that the state has met its
burden with respect aggravating circumstances and that any mitigating
circumstances are outweighed thereby. See Indiana Code § 35-50-2-9(e)
(Supp. 1981 (Bieghler) & Supp. 1979 (Burris)). As such, this court has
previously decided that the jury findings discussed in Indiana Code § 35-50-
2-9 need not be in writing.
[8] Nor have we reviewed any cases involving a crime committed after the
1993 amendment where a jury recommended against death but the trial court
nevertheless imposed that sentence.
[9] As noted in footnote 1, this subsection has been re-designated
subsection (k).
[10] See Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996) (penal statute
must be strictly construed against the State); Spangler v. State, 607
N.E.2d 720, 723 (Ind. 1993) (same); Loftus v. State, 222 Ind. 139, 143, 52
N.E.2d 488, 490 (1944) (same).