concurring in result.
Until 2002, the recommendation of the jury in an Indiana death penalty case was just that-a recommendation-and the trial judge was free to impose death despite a jury's recommendation to the contrary or to refuse to follow a jury's recommendation that death be imposed. Ind.Code § 85-50-2-9(e) (1998); Martinez Chaves v. State, 534 N.E.2d 731, 734 (Ind.1989); Minnick v. State, 544 N.E.2d 471, 482 (Ind.1989). In 2002, the General Assembly amended Indiana's death penalty statute to provide that the jury is to "recommend" whether death or life without parole (LWOP) is to be imposed, and the trial court is to sentence "accordingly." I.C. § 35-50-2-9(e) (2002). The amendment by its terms applies to sentences imposed after June 30, 2002. Trial and ultimate sentencing in this case, as in several others, occurred over a period of time that spanned that date. I believe the confusion generated by this amendment might under these circumstances have produced an unreliable sentence, but the defendant has not established that that occurred here. For that reason I concur in the result reached by the majority. However, I think the majority's reason for affirming depends on some unstated assumptions with which I do not agree.
In a nutshell, the trial court first assumed that the new statute would apply and gave preliminary instructions to the jury that its "recommendation" as to the sentence would be binding. Both the guilt and penalty phases of the trial were completed on June 24, 2002. At that point it seemed possible that Helsley's sentence would be imposed before June 30, in which event the new statute by its terms would plainly be inapplicable. In fact the trial judge did not impose the sentence until a sentencing hearing three weeks later, after June 30. At the opening of the sentencing hearing on the morning of July 19, 2002, the trial judge expressed concern that the application of the new statute might be unconstitutional as an ex post facto law. For this reason he announced that he would exercise discretion whether to impose LWOP, as the statute permitted for sentences imposed before July 1, 2002. At that point the defendant unsuccessfully moved for a continuance based on this change in the ground rules.
I agree with the majority that the statute is not an ex post facto law. Ritchie v. State, 809 N.E.2d 258, 263-64, 2004 WL 11583062 (Ind.2004). I also agree that the current Indiana death penalty statute on its face can be read to attempt to make the jury's recommendation as to sentencing binding on the trial court. It may even be the case that the legislature thought that was what it was doing by enacting the 2002 amendments, notwithstanding its retention of the term "recommendation" to describe the result of the jury's deliberations. However, I do not believe that the statute accomplishes this.
*305I. The 2002 Amendment to the Indiana Death Penalty Statute
The first issue presented by the 2002 statute is whether the trial judge has any alternatives to imposing the sentence recommended by the jury, and if so what those alternatives are and how they are to be exercised. The majority opinion can be read to imply that the trial court is bound by the jury's recommendation under all circumstances. I do not believe that is a correct reading. Even if the General Assembly thought it was making the jury's recommendation binding on the trial court, the statute does not mandate blind implementation of the jury's recommendation as to penalty. Indeed, if it were read to achieve that result, under some scenarios it would deny due process. None of these issues is presented by the parties in this case, but the reasoning of the majority raises them up. For purposes of this case, the issue posed by the majority's reasoning is whether the statutory framework by itself is sufficient to eliminate error arising from the denial of a continuance at the guilt phase after the trial court reversed its position as to the binding effect of the jury's recommendation. I think it is not, though on the facts of this case, I agree that the defendant has established no prejudice from the error that occurred here.
The 2002 amendments require the jury to perform two functions. First, the jury engages in a traditional fact-finding exercise to determine if one or more "aggravating cireumstances" is found beyond a reasonable doubt. In Helsley's case, that cireumstance was that Helsley murdered two people, and there seems no doubt that the jury made the requisite finding. Second, the jury is to determine whether the aggravating cireumstances outweigh the mitigating cireumstances. As explained elsewhere, this determination is not subject to a reasonable doubt standard, and is qualitatively different from the finding of eligibility for the penalty. Ritchie v. State, 809 N.E.2d 258, 264-68, 2004 WL 1153062 (Ind.2004); See also Ex Parte Waldrop v. Alabama, 859 So.2d 1181, 1189 (Ala.2002); People v. Prieto, 30 Cal.4th 226, 1833 Cal.Rptr.2d 18, 66 P.3d 1123, 1147 (2003); Brice v. State, 815 A.2d 314, 322 (Del.2008); Oken v. State, 378 Md. 179, 835 A.2d 1105, 1120 (2008); Nebraska v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2008). - |
The jury's finding of eligibility for the penalty is a fact to be found baséd on evidence and subject to a reasonable doubt standard. This provision does not override the longstanding principle that the trial judge is free to act as a "thirteenth juror" and set aside the jury's findings as to the occurrence of an eligibility factor. The thirteenth juror concept is found in Indiana Trial Rule 59(J)(7)1 and also appears in Trial Rule 50 governing judgments on the evidence. As we recently explained in Neker v. Hobbs, 760 N.E.2d 602, 607 (Ind.2002), under 'this doctrine, the trial court may order a new trial if the jury's verdict is against the weight of the evidence. See also State v. Johnson, T14 N.E.2d 1209, 1211 (Ind.App.1999) (citations omitted); Moore v. State, 278 Ind. 268, 403 N.E.2d 335, 336 (1980). The trial judge would be fully warranted in setting aside a jury's recommendation if the judge *306concluded the facts required for eligibility for the death penalty were not supported by the evidence. Neher, 760 N.E.2d at 607; Johnson, 714 N.E.2d at 1211; Moore, 403 N.E.2d at 386. This failure to sentence "accordingly" would be the result of a traditional function of the trial judge, and amounts to a finding that an element that is required to impose the enhanced penalty was not established at trial.
This view of the eligibility finding was recently adopted as a matter of federal Sixth Amendment doctrine. Under Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the "aggravating circumstances" necessary for the death penalty under the Indiana statute must found by a jury. These findings, like any other, must be based on the evidence or record. Ring applied to death penalty statutes such as Indiana's the requirements of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that all facts necessary to establish a crime be found by the jury.
I believe the 2002 amendment was intended to respond to Apprendi and to anticipate Ring. The amendment sought to do this by eliminating the judge's power to impose death if there were no jury recommendation and therefore no clear finding by the jury that the facts warranting the death penalty were proven. To be sure, the language chosen by the legislature may be taken as a directive to implement blindly whatever result is "recommended" by the jury. However, the 2002 amendment was not intended to overturn traditional checks on jury error or jury discretion, or to eliminate the trial judge's function under Trial Rule 59. Rather, in light of the substantial body of law surrounding the allocation of function between judge and jury, I would take a directive from the legislature to sentence "accordingly" to mean "according to standard jurisprudential processes." This would include setting aside findings not supported by the evidence.
I believe this construction is not only desirable, but necessary to preserve the statute. There may be some issue as to the quantity of evidence that may support a finding, but I have no doubt that imposing death without any proof at all of a necessary element would constitute a denial of due process. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Garner v. Louisiana, 368 U.S. 157, 164, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Thompson v. City of Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Indeed, under Ring, the Sixth Amendment right to jury trial requires that the finding of eligibility for the death penalty be found by the trier of fact. There is a second problem with taking this statute to mandate rubber stamping the jury's recommendation. Because I do not read the statute to do that I do not need to address whether, if that were the thrust of the statute, it would also run afoul of state constitutional limitations on the legislature's ability to control the processes of the judicial branch.2 It is suffi-client to establish, as I believe I have, that the statute cannot be read to require the judge to implement the jury's recommendation in all cireumstances.
To this point, I believe there is no difference between the majority's position and mine. The effect of the jury's recommen*307dation as to the second "finding"-that the aggravators outweigh the mitigators-presents a different and more difficult problem. This second step is the process of selection of the penalty to be imposed upon the individual defendant from among those determined by the statute to be eligible. This weighing by the jury is not a finding at all in the same sense that a traditional jury finding is a determination of as to a matter of historical fact, a conclusion that something did or did not occur. Ritchie, 809 N.E.2d 258, 264-68. Rather, the "finding" as to weighing is a subjective assessment that is not susceptible of "proof" whether by a preponderance of evidence or beyond a reasonable doubt.
Because the weighing process is unconstrained by the limits that reason, science and experience place on fact-finding, it is arguably free from the requirement which the law places on fact-finding that it be supported by the record. But I believe I have already demonstrated that under the 2002 amendments, the direction to sentence "accordingly" cannot be taken wholly literally because it would impose sentences not supported by the evidence. Thus, to make sense of this statute one must find "accordingly" to incorporate existing law. One well established doctrine is that the Eighth Amendment requires that a defendant be permitted to present any relevant mitigating evidence. Penry v. Johnson, 532 U.S. 782, 797, 121 S.Ot. 1910, 150 L.Ed.2d 9 (2001). This surely includes a right to present the evidence to the ultimate decision-maker.
Existing law in place before the 2002 amendment required the judge before imposing sentence to review and consider a sentencing report containing a variety of matters not before the jury. Ind.Code §§ 35-38-1 et seq. (1998). Putting all of this together, it seems to me that the only way to reconcile the statute with these requirements is to conclude that a sentence imposed "accordingly" means a sentence that takes into account the jury's recommendation and implements it, subject to the constraints imposed by law.3 To be sure, a judge is not free under the 2002 amendment to impose a death sentence if the jury does not recommend it. See State v. Barker, 809 N.E.2d 312, 316-18, 2004 WL 1158106 (Ind.2004). But the instruction to sentence "accordingly" includes the need to set aside a recommendation if it is not supported by evidence and the power to decline to impose death if, after consideration of all aggravating and mitigating factors, including those in the sentencing report, and giving due deference to the jury's recommendation, the judge concludes that death is inappropriate.
Finally, as already pointed out, the 2002 amendment is susceptible to readings that produce unintended consequences. I would think the legislature may wish to consider reestablishing the requirement that the judge as well as the jury endorse *308the appropriateness of a death sentence. The judge's thoughtful concurrence was required under Harrison v. State, 659 N.E.2d 480 (Ind.1995). To the extent the 2002 amendment dilutes or removes that element, it injects the potential for inherent unfairness in the administration of the death penalty in this state.
A recommendation to impose death plainly might be made differently by different juries presented with the same ree-ord. This produces a randomness in who is and who is not put to death that turns on the composition of each particular jury. In my view that is, if not an Eighth Amendment violation, at least a very undesirable feature of a death penalty statute. Cf. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 194, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Although the legislature may prescribe the penalty for a crime, and thereby remove discretion from a sentencing judge, it is quite another thing to prescribe by statute that the jury's recommendation is binding on the judge in deciding whether to impose a death sentence. It is no answer to the randomness concern to say that the criminal process is inherently subject to jury variation because different juries might resolve factual issues differently on the same record. That is of course true, and a necessary consequence of leaving judgments to human beings. But a jury charged with making a traditional finding of fact is constrained by relatively objective and generally accepted laws of physics and other sciences, and by their common understanding of human nature. A recommendation whether the aggravators outweigh the mitigators is an entirely different exercise as to which the basic assumptions and biases of individual jurors are much more dominant. We have no better process, so we must live with the possibility of human error in the fact-finding that determines eligibility for the penalty. But there is no necessity to inject this much higher degree of randomness into the selection process.
II. Helsley's Sentence
With this framework in mind, it seems to me the majority's rationale for sustaining Helsley's sentence is not sufficient. Until the beginning of the penalty phase of the trial, the judge had concluded that the jury's recommendation would not be a ree-ommendation at all, but would be a decision. In other words, the "recommendation" would be binding. The parties were so advised. Then, at the outset of the penalty phase the judge announced he would treat the jury's recommendation as just that, a recommendation, and would reserve final decision to himself. At that point the defendant unsuccessfully moved for a continuance. It surely is error to give the parties the wrong standard by which the jury's findings will be evaluated. Thus, the majority's view is in substance a holding of harmless error.
The majority reasons that because Hels-ley chose not to present evidence before the jury at the penalty phase, he was precluded from presenting it to the trial judge at the sentencing, and therefore there is no error in denying the continuance of the sentencing phase and refusing to receive additional evidence. I think there are two problems with this analysis. First, as already noted, I do not believe the statute should be construed to eliminate the judge's ability to consider matters contained in a sentencing report that may not be presented to the jury. But even if I am wrong in this view, and the recommendation is binding, it is not clear that the evidence at a guilt phase that may bear on the weighing would be the same whether the jury's recommendation is binding or not. A defendant preparing for the guilt *309phase under the belief that the recommendation will be advisory only might well withhold evidence from the guilt phase in the belief that the sentencing will present an additional opportunity to present matters to the judge.
I therefore do not agree that it is in every instance necessarily harmless error if the trial court reverses its ruling as to the binding effect of the jury's recommendation, and denies the defendant a continuance to adjust to the newly announced standard. But Helsley does not point to anything he claims he would have presented or developed if he had been given a continuance, so he has not established reversible error in denial of the continuance. Nor does he identify any matter that was presented to the jury, but would have been omitted if he had time to adjust to the new procedure. He thus fails to show any prejudice from the confusion. For that reason, and that reason alone, I agree with the majority that Helsley has not established reversible error.
. Ind. Trial Rule 59(J)(7): "In reviewing the evidence, the court shall grant a new trial if it determines that the verdict of a non-advisory jury is against the weight of the evidence; and shall enter judgment, subject to the provisions herein, if the court determines that the verdict of a non-advisory jury is clearly erroneous as contrary to or not supported by the evidence, or if the court determines that the findings and judgment upon issues tried without a jury or with an advisory jury are against the weight of the evidence."
. A legislative attempt to rearrange the functions of judge and jury would appear to present a conflict with the rules adopted by this court. To the extent a statute and Trial Rule conflict on a matter of procedure, there is precedent suggesting the Trial Rules trump the statute. See, eg., State ex rel.Blood v. Gibson Circuit Court, 239 Ind. 394, 157 N.E.2d 475, 479 (1959). Whether that doctrine applies here is a matter for another day.
. The Indiana statute is unique in its use of "recommendation" and "accordingly." I find no directly relevant precedent, and few cases that even touch on the subject. The New Mexico statute is more explicit in its directive that the trial court "shall" impose the sentence the jury "specifies." It provides: "In a jury sentencing proceeding in which the jury unanimously finds beyond a reasonable doubt and specifies at least one of the aggravating circumstances enumerated in Section 6 of this act, and unanimously specifies the sentence of death pursuant to Section 3 of this act, the court shall sentence the defendant to death." NM. Stat. Ann. 31-20A-3 (1978). The Supreme Court of New Mexico takes the view under this statute that review of the sentence is restricted to the Supreme Court and the trial court is required to impose death under the statute if the jury "specifies" it. State v. Guzman, 102 N.M. 558, 698 P.2d 428, 429 (1985).