Miller v. State

DeBRULER, Justice,

concurring.

It is essential that this Court determine the reasonableness and propriety of every sentence of death. In requiring this step, Ind.Code § 385-50-2-9(h) provides:

A death sentence is subject to automatic review by the supreme court.... The death sentence may not be executed until the supreme court has completed its review.

Such review serves interests of society beyond the interests of the individual subject to the sentence, and cannot be waived. Judy v. State (1981), 275 Ind. 145, 416 N.E.2d 95; Thompson v. State (1986), Ind., 492 N.E.2d 264; Cooper v. State (1989), Ind., 540 N.E.2d 1216.

The State alleged four statutory aggravating factors: the defendant committed the murder by intentionally killing the vie-tim while committing criminal deviate conduct; while committing rape; while committing robbery; and the defendant was on parole at the time the murder was committed. At the penalty phase, the State relied upon the trial evidence, while the defense presented favorable evidence from a clinical social worker, a former female roommate of the defendant, and the defendant's father and mother. Following the hearing, the jury recommended the death penalty.

The sentencing court then found that:

the State had proved beyond a reasonable doubt that the defendant committed this murder by intentionally killing the victim while committing criminal deviate conduct, that the defendant committed this murder by intentionally killing the victim while committing rape, that the defendant committed the murder by intentionally killing the victim while committing robbery, and that the defendant was on parole at the time this murder was committed.

In addition, the court found that no mitigating circumstances existed. The court found further that the aggravating cireum-stances, proven beyond a reasonable doubt, outweighed any mitigating circumstances. Consequently, the court sentenced the defendant to death.

The evidence of deviate conduct, robbery, rape, and parole status is clearly persuasive. The evidence likewise substantiates the presence of the intent to kill. In planning the crime, appellant said the victim would be killed, and he heard his accomplice Harmon say that he could kill if he had to. Appellant knew Harmon was armed with a shotgun during the robbery, and later on encouraged Harmon to beat the victim with it. Toward the end of the episode, after serious bodily injury had been inflicted upon the victim by appellant and the others, appellant told Wood to move the car and shine the car's headlights up into the windows. Wood did so. Harmon walked into the house, and appellant walked to his car. Appellant told Wood to turn off the lights. Harmon came walking out of the house with the victim, and with appellant and Wood standing by the two cars, Harmon shot and killed her. This is substantial and persuasive evidence that appellant knew that the victim was to be killed, and facilitated the actual killing by Harmon. The weight of aggravators is in the high range.

The evidence in mitigation supports the propositions that appellant had behaved well as a prisoner for nineteen years, had been kind and helpful in his relationship with a roommate and her small child since released on parole, and during childhood had not displayed sadistic tendencies. This evidence is entitled to mitigation value in the low range.

I therefore find that the mitigating circumstances are outweighed by the aggravating cireumstances and that the sentence of death as envisioned in the statute is appropriate. Accordingly, I join the Court in affirming the convictions and sentences, including the sentence of death.

KRAHULIK, J., concurs.