ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony L. Kraus Jeffrey A. Modisett
Likes & Kraus Attorney General of
Indiana
Auburn, Indiana
Sarah E. Scherrer
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
WILLIAM A. WALTER, )
Defendant-Appellant, )
)
v. ) 92S00-9809-CR-502
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE WHITLEY CIRCUIT COURT
The Honorable James R. Heuer, Judge
Cause No. 92C01-9708-CF-124
_________________________________________________
On Direct Appeal
April 18, 2000
DICKSON, Justice
The defendant-appellant, William A. Walter, pled guilty to two counts
of murder[1] for the August 19, 1997, killings of his wife, Melissa Walter,
and his former aunt, Tammy Walter. The trial court sentenced the defendant
to consecutive sixty-year sentences on each count. In this direct appeal,
the defendant contends that the trial court improperly considered
aggravating and mitigating circumstances and that the sentence is
manifestly unreasonable. We affirm the trial court.
Aggravating and Mitigating Circumstances
The defendant contends that the trial court, in deciding to enhance
his sentences and ordering them to run consecutively, considered invalid or
unsupported aggravating circumstances and ignored mitigating circumstances
supported by the record. The defendant alleges that, of the ten
aggravating circumstances found by the trial court, six were improperly
considered. He further argues that, in addition to the five mitigating
circumstances listed in the sentencing statement, the trial court failed to
properly consider several others supported by the evidence.
The trial court found the following ten aggravating circumstances:
(1) the murder of the first victim, Tammy Walter, was "vicious and brutal,"
record at 372, and was caused by multiple stab wounds, including three
significant wounds to the neck, five significant wounds to the back, and
several superficial wounds to the arms and hands; (2) the murder of the
second victim, Melissa Walter, "was . . . vicious and brutal," record at
372, resulting from three significant stab wounds to the chest, two to the
abdomen, one to the back, and multiple superficial wounds and abrasions;
(3) each victim was defenseless; (4) three innocent children lost their
mother, Tammy Walter; (5) the defendant violated a position of trust,
killing his spouse and a former aunt with whom he had lived while in high
school; (6) although occurring in close proximity both in time and place,
the murders were separate and distinct acts of violence; (7) for seven to
ten days prior to the murder, the defendant kept Melissa Walter under
surveillance to the extent that she expressed fear for her life; (8)
significant victim impact evidence was presented; (9) the defendant was in
need of correctional or rehabilitative treatment that could best be
provided by commitment to a penal facility; and (10) the imposition of
concurrent sentences would depreciate the seriousness of the crimes. The
trial court found the following mitigating circumstances: (1) the
defendant had no prior criminal record and no juvenile adjudications; (2)
he had a stable work history; (3) he admitted his guilt; (4) he suffered a
turbulent childhood and resulting personality disorders; and (5) he
expressed remorse for his crimes. The trial court found that the
aggravating circumstances outweighed the mitigating circumstances, enhanced
each of the presumptive fifty-five-year sentences for the two murder
convictions by five years[2] for aggravating circumstances, and ordered the
sentences to be served consecutively.
Sentencing lies within the discretion of the trial court. Battles v.
State, 688 N.E.2d 1230, 1235 (Ind. 1997). We review sentencing decisions,
including decisions to enhance the presumptive sentence or to run sentences
consecutively due to aggravating circumstances, only for abuse of
discretion. Trowbridge v. State, 717 N.E.2d 138, 149 (Ind. 1999). When a
trial court imposes a sentence other than the presumptive sentence or
orders consecutive sentences, even though not required to do so by statute,
we will examine the record to ensure that the trial court explained its
reasons for selecting the sentence it imposed. Archer v. State, 689 N.E.2d
678, 683 (Ind. 1997).
The defendant challenges six of the ten aggravating circumstances
found by the trial court. First, he claims that aggravating circumstances
number 3 (each victim was defenseless) and number 7 (the defendant kept
Melissa Walter under surveillance and she feared for her life) are
unsupported by the evidence. The defendant bases his claim upon his own
version of the events, submitted as part of the pre-sentence investigation
report, including his claim that each of the women had attacked him with a
knife. Other evidence from the same pre-sentence report and from the post-
mortem reports, however, indicates that the defendant brutally inflicted
multiple severe knife wounds upon his female victims who were then unarmed
and trying to escape.[3] Also, although the defendant reported to one
psychologist that Melissa initially had a knife and stabbed him, he told
another that he cut himself with the knife when he was struck by a truck
while fleeing police. This evidence supports the trial court's conclusion
that the victims were defenseless, but we note that much of this supporting
evidence also supports the aggravators found by the trial court relating to
the viciousness and brutality of the murders.
The record also supports the trial court's finding that the defendant
had kept Melissa under surveillance. One witness told police investigators
that approximately one week before the murders the defendant followed
Melissa, the witness, and other friends to Fort Wayne and watched them
while they were there. The witness also reported that Melissa had told her
at least three times: "I'll be dead in a month and [the defendant] will
have killed me." Record at 180. The trial court's finding of this
aggravator was supported by the record.
The defendant next claims that the victim impact evidence,
considerations which constitute aggravating circumstances numbers 4 and 8,
were not valid under Bacher v. State, 686 N.E.2d 791, 801 (Ind. 1997).
Because the State provides no contrary authority or argument and does not
dispute this claim, we consider it conceded.
The defendant next claims that the trial court failed to make a
statement explaining why the defendant needed correctional or
rehabilitative treatment in a penal facility for longer than the
presumptive term, as required for aggravating circumstance number 9. We
agree that when a trial court uses such a finding, in part, to justify an
enhanced sentence, it should provide a specific statement as to why the
defendant needs treatment for a period of time longer than the presumptive
sentence. Berry v. State, 703 N.E.2d 154, 158 (Ind. 1998); Mayberry v.
State, 670 N.E.2d 1262, 1271 (Ind. 1996). The record contains no trial
court explanation for using this aggravating circumstance.
The defendant also asserts that the trial court erred in ordering
consecutive sentences based in part on an aggravating circumstance that
"concurrent sentences would depreciate the seriousness of the two separate
crimes of murder, which were committed." Record at 372-73. We have held
that it is not error to enhance a sentence based upon an aggravating
circumstance that a sentence less than the enhanced term would depreciate
the seriousness of the crime committed. Huffman v. State, 717 N.E.2d 571,
577 (Ind. 1999); Ector v. State, 639 N.E.2d 1014, 1016 (Ind. 1994); Evans
v. State, 497 N.E.2d 919, 923-24 (Ind. 1986). This principle is
distinguishable from Sherwood v. State, 702 N.E.2d 694 (Ind. 1998), cited
by the defendant, in which the trial court both imposed enhanced sentences
and ordered them served consecutively based in part upon its finding that
the imposition of a reduced sentence would depreciate the seriousness of
the crime. At the sentencing hearing in the present case, defense counsel
argued that "it all comes down to . . . whether . . . the sentences imposed
are concurrent or consecutive," record at 368, and urged that the
mitigating circumstances supported imposition of concurrent sentences. The
trial court considered the "depreciate the seriousness" factor in
determining whether to impose concurrent or consecutive sentences, not to
evaluate whether to impose a reduced sentence. We decline to find error in
the application of this aggravator.
Excluding the challenged aggravating circumstances based on victim
impact and the need for penal facility correctional treatment, multiple
aggravating circumstances remain. Even when a trial court improperly
applies an aggravator, a sentence enhancement may be upheld if other valid
aggravators exist. Garrett v. State, 714 N.E.2d 618, 623 (Ind. 1999).
See also Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998) (citing Blanche
v. State, 690 N.E.2d 709, 715 (Ind. 1998)). A single aggravating
circumstance may be sufficient to support an enhanced sentence. Garrett,
714 N.E.2d at 623; Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995). The
same factors may be used to enhance a presumptive sentence and to justify
consecutive sentences. Miller v. State, 716 N.E.2d 367, 371 (Ind. 1999).
See also Taylor v. State, 710 N.E.2d 921, 925 (Ind. 1999); Reaves v. State,
586 N.E.2d 847, 852 (Ind. 1992). We reject the defendant's contention that
his enhanced and consecutive sentences are not supported by aggravating
circumstances shown by the evidence.
The defendant also seeks relief from the enhanced and consecutive
sentences on grounds that the trial court failed to provide specific facts
and reasons for its findings of aggravating circumstances. We do not
agree.
The trial court found the vicious and brutal nature of each of the two
murders to be aggravating circumstances. The manner in which a crime is
committed may serve as an aggravating circumstance. Taylor v. State, 695
N.E.2d 117, 120 (Ind. 1998); Concepcion v. State, 567 N.E.2d 784, 791 (Ind.
1991). See also Ind. Code § 35-38-1-7.1(a)(2) ("the [sentencing] court
shall consider . . . the nature and circumstances of the crime
committed."). Here, the trial court noted the vicious and brutal murder of
the victims, chronicling the number and locations of significant stab
wounds inflicted upon each victim. Likewise, the trial court adequately
explained its finding that the defendant violated positions of trust. The
court noted that one victim was the defendant's spouse and the other was a
former aunt who had permitted him to live in her home while he was in high
school. This may be considered as a valid aggravating circumstance. See,
e.g., Franklin v. State, 715 N.E.2d 1237, 1242 (Ind. 1999) (the defendant
was the victim's father); Wesby v. State, 535 N.E.2d 133,137-38 (Ind. 1989)
(the victim was the former girlfriend of the defendant's father and had
known the defendant since early childhood); Martin v. State, 535 N.E.2d
493, 498 (Ind. 1989) (the defendant, who lived with the victim's family,
was babysitting for the child victim at the time of the murder). Cf.
Edgecomb v. State, 673 N.E.2d 1185,1198-99 (Ind. 1996) (the defendant's
relationship as victim's neighbor was not a position of trust for purposes
of finding an aggravating circumstance). The trial court also explained
its consideration of the defendant's surveillance of Melissa, noting the
nature and duration of this activity. We conclude that the trial court
sufficiently identified specific facts to support the aggravating
circumstances found.
The defendant further contends that the trial court did not identify
all the significant mitigating circumstances proven by the evidence.
Determining mitigating circumstances is within the discretion of the trial
court. Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). When a defendant
alleges that the trial court failed to identify or find a mitigating
circumstance, the defendant must establish that the mitigating evidence is
both significant and clearly supported by the record. Carter v. State, 711
N.E.2d 835, 838 (Ind. 1999). The trial court is not required to accept the
defendant's contentions as to what constitutes a mitigating circumstance.
Legue, 688 N.E.2d at 411.
The defendant contends that the trial court failed to specifically
address other psychological evidence, the defendant's learning
disabilities, the defendant's claims that he had read over sixty books
while incarcerated and helped other inmates work toward their GEDs, the
defendant's record of good behavior while incarcerated, the defendant's
military experience,[4] or his call to 911 after the murders,[5] and that
this failure implies that they were overlooked. In support of his
argument, the defendant points to Sherwood v. State, 702 N.E.2d 694 (Ind.
1998), and Scheckel v. State, 620 N.E.2d 681 (Ind. 1993). However, in each
of those cases, despite mitigating evidence in the record, the respective
trial courts found no mitigating factors and addressed none of the evidence
presented. In contrast, here the trial court identified and considered
five mitigating factors: (1) the absence of prior criminal record; (2) a
stable work history; (3) his admission of guilt; (4) his turbulent
childhood and resulting personality disorders; and (5) his expressed
remorse. A substantial portion of the evidence the defendant identifies
was implicitly acknowledged in the mitigators enumerated by the trial
court.
Our understanding of the trial court's reasons for its sentencing
decision in this case is informed by the court's remarks during the
sentencing hearing. In reviewing a sentencing decision in a non-capital
case, we are not limited to the written sentencing statement but may
consider the trial court's comments in the transcript of the sentencing
proceedings. See Hill v. State, 499 N.E.2d 1103,1110-11 (Ind. 1986). At
the sentencing hearing, the trial judge explained:
Mr. Walter, I probably heard several hundred cases of abuse of
children, and it sounds like, if what I've heard from you and your
brother [is] true, and I have no reason to believe it's not true, that
you suffered as abusive a childhood in your formative years as any
young person that I've had to deal with in the Whitley Circuit Court.
I feel sorry for you for that, I do. I genuinely do. I, however,
cannot ignore what you have done here, nor will I ignore it or make,
in any way make it less, diminish what you've done based on your
childhood. I can't do that.
Record at 371. We are satisfied that the trial court considered the
mitigating evidence presented. These remarks also demonstrate that the
trial court evaluated and balanced the aggravating and mitigating
circumstances in determining the sentence. We conclude that the trial
court thoughtfully exercised its discretion in ordering that each
presumptive sentence be enhanced by five years and that the sentences be
served consecutively.
Manifest Unreasonableness
The defendant next claims that the sentence was manifestly
unreasonable in light of the aggravating and mitigating evidence. This
Court has the constitutional authority to review and revise sentences, see
Ind. Const. Art. VII, § 4, and may do so when the sentence is "manifestly
unreasonable in light of the nature of the offense and the character of the
offender," Ind. Appellate Rule 17(B). "This Court's review under Rule
17(B) is highly deferential to the trial court: '[T]he issue is not
whether in our judgment the sentence is unreasonable, but whether it is
clearly, plainly, and obviously so.'" Echols v. State, 722 N.E.2d 805, 809
(Ind. 2000) (quoting Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998)
(quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997))).
We decline to find the sentence manifestly unreasonable in light of
this offender and these offenses.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM and RUCKER, JJ., concur. SULLIVAN, J.,
concurs in result.
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[1] Ind. Code § 35-42-1-1.
[2] The trial court did not impose the maximum ten-year enhancement
authorized by statute. Ind. Code § 35-50-2-3(a).
[3] When the trial court addressed the pre-sentence investigation
report at the start of the sentencing hearing, the defendant accepted the
report as filed. He made no objections nor suggested any corrections or
clarifications to the factual matters set forth.
[4] Although the defendant was discharged "under honorable conditions"
from the military, the record indicates that the discharge may have
resulted from charges of wrongful possession and use of a controlled
substance. Record at 151,156.
[5] Although the defendant did place a call to 911 to report his crime
and eventually identified himself to the operator, he placed the call from
a pay phone after he had fled the scene of the crimes and shortly before he
pushed his car into a lake to hide it and ran in front of a truck. The
defendant denied that he was trying to kill himself.