Benefiel v. State

DeBRULER, Justice,

concurring.

Appellant Benefiel's fourth amendment claim that the entry and search of one of his houses, wherein Alicia Elmore was discovered and rescued by Terre Haute Police, was improper due to a faulty search warrant and that the evidence obtained as a result thereof should have been suppressed, is properly rejected. As the police approached the house with their search warrant, they ran into Marilyn Dishon, sister of the confidential informant Jeanine Dishon. Jeanine had relayed information to the police supplied by Marilyn. They spoke to Marilyn. The officer recognized Marilyn's voice as that of an anonymous caller who had twice called and had reported the missing girl Alicia Elmore at that location and expressing fear for her family's safety. Marilyn affirmed that she had been the caller. The police then went into the home. When the officer learned Marilyn's identity as the anonymous caller and had personal confirmation of that fact from her at the very location described in the anonymous call, he was provided with an additional fact, which when put together with the other facts and circumstances known to him at the time, provided him with probable cause to believe that Alicia Elmore was then being held in the home against her will and was in danger and in need of immediate assistance. Irrespective of the legality of the warrants then in hand, the newly augmented factual basis supporting probable cause and exigent circumstances fully and independently justified the entry and search which resulted in the discovery and rescue of Alicia Elmore. *351Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

In this case the request for the death sentence alleges that appellant did intentionally kill Delores Wells while committing rape and criminal deviate conduct upon her. I.C. 35-50-2-9(b)(1). I find that this aggra-vator was proved beyond a reasonable doubt, and that the manner in which the aggravator was carried out places its weight in the high range. However, the impairment suffered by appellant as a result of mental disease is also entitled to substantial mitigating weight. 1.0. 85-50-2-9(c)(6) and (8). That which tends to diminish this mitigator, however, is the evi-denee that shows that appellant's outbursts of violent conduct would be followed by longer periods during which he was not violent and was in control. This pattern existed over several years. Such periods of self control would have occurred during the several months during which he regularly assaulted and tortured his prisoner, Alicia Elmore. It is similarly significant that after having Elmore confined for a long time, he kidnapped Delores Wells and subjected her simultaneously to the same misconduct. He had both victims in the house, dealing with one and then the other. They could sometimes see one another. This shows a considerable capacity to appreciate the day to day events and the absence of persistent false perceptions. The remaining mitigators have a weight in the low range. I conclude that the aggravating circumstance here outweighs the mitigating ones and that the death penalty as envisioned in the statute is properly to be applied.