dissenting.
Like Justice Boehm, I too concurred in this Court's June 27, 2003 order denying Williams' June 9, 20083 "Motion for Forensic Testing" and his request for permission to file a successive petition for post-convietion relief. On re-evaluation, I would now grant the motion. Should forensic testing reveal that the blood on Williams' clothing is not that of the victims, I would remand this cause for a new penalty phase trial and sentencing hearing. Thus, I concur in part with Justice Boehm's separate dissenting opinion.
Throughout these proceedings Williams essentially has made two claims: (1) he did not shoot the Reases, and (2) in fact he was not present in the house when the shooting occurred. The law is settled that one need not be the actual killer in order to qualify for the death penalty. See Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987) (holding that major participation in the felony combined with reckless indifference to human life is sufficient to demonstrate the culpability required under the Eighth Amendment for capital punishment); Ajabu v. State, 693 N.E.2d 921, 937 (Ind.1998) ("A person who substantially participates but does not deliver the fatal blow may still fall within the [Indiana Capital Punishment] statute's seope."). The evidence in this case overwhelmingly shows that Williams' participation in the killing and robbery of John and Henrietta Rease was major and his conduct displayed a reckless indifference to their lives. Therefore it is clear that Williams qualifies for the death penalty.
The question remains, however, whether the jury would have recommended and the trial court imposed the ultimate sanction if: (1) either had been informed that Elliot Streeter unequivocally placed Williams outside of the Reases' home when the apparent fatal shots were fired, and (2) DNA evidence had been introduced showing that the blood on Williams' clothing was not that of the Reases.
To be sure, the Streeter testimony would only have contradicted the testimony of other witnesses. And of course the jury may have totally disregarded his testimony. As for the evidence of blood on Williams' clothing, even the total absence of such evidence does not mean that Williams was neither present nor the trig-german. Still, we do not know and cannot be sure what weight a penalty phase jury may have placed on such evidence or what conclusion a sentencing court judge may have reached in light of such evidence. The record is clear that at trial both the State and the defense put a great deal of credence on what has been characterized as the "blood evidence." And in sentencing Williams to death, the trial court considered that evidence "significant."
Death is different. In my view, confidence in the judicial system and in the administration of justice dictates that Williams' request for forensic testing should be granted and his execution be postponed. Should the testing reveal that the blood on Williams' clothing belongs neither to Mr. Rease nor to Mrs. Rease, I would remand this cause for a new penalty phase trial and sentencing hearing. See Rondon v. State, 711 N.E.2d 506, 523 (Ind.1999).