Brown v. State

Attorney for Appellant

Matthew J. Elkin
Deputy Public Defender
Kokomo, IN

Attorneys for Appellee

Steve Carter
Attorney General of Indiana

Scott A. Kreider
Deputy Attorney General
Indianapolis, IN

IN THE
INDIANA SUPREME COURT

TERRY C. BROWN,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).

)
) Supreme Court No.
) 34S00-0112-CR-621
)
)
)
)

APPEAL FROM THE HOWARD COUNTY SUPERIOR COURT
The Honorable Dennis Parry, Judge
Cause No. 34D01-0007-CF-177

ON DIRECT APPEAL

February 28, 2003

SULLIVAN, Justice.

Defendant Terry Brown appeals his convictions for two murders and
consecutive sentences of life without parole. We affirm the convictions
but, finding the sentencing order to be inadequate, impose instead a
sentence totaling 110 years.

Background

At approximately 2:20 p.m. on July 16, 2000, Kokomo police officers
Michael Banush and Greg Baldini were on bike patrol when they heard a
gunshot. As they approached the scene, the officers saw Defendant run into
a barbershop at 901 East North Street, exit the barbershop, and hurriedly
leave the scene. Defendant was carrying what appeared to be a white
document and another object. No other person was seen entering or exiting
the barbershop.

The officers found Charles Young, Jr. laying on the sidewalk with a
bullet hole in the left side of his neck. Officer Baldini stayed at the
scene, while Officer Banush rode northbound after Defendant. Officer
Baldini heard noises inside the barbershop. He and Officer Brannon
Carpenter entered the building and located Robert Hunter, who was bleeding
from an apparent gunshot wound to the head.

Meanwhile, Officer Banush apprehended Defendant. After handcuffing
Defendant, Officer Banush found a black leather glove on the ground and a
matching glove on Defendant. In addition, Defendant had blood on his
clothing, which later proved to match that of Young. Officer Banush did
not see the object that he had observed Defendant carrying from the
barbershop. However, a search of the area near the barbershop revealed a
bag with two guns, a gun sight, and a white piece of paper. The document
appeared to have blood on it. One of the guns, a .38 caliber revolver, had
six empty shell casings in it. The other gun, a 9mm semiautomatic, was
loaded and had one round in the chamber and one round missing. Bullet
fragments were removed from the bodies of both Young and Hunter. In
addition, the officers recovered bullets and a 9mm shell casing at the
scene.

Defendant was charged with two counts of Murder. The State also filed
one count seeking life imprisonment without parole for Young’s murder. As
the aggravating circumstance justifying life imprisonment without parole,
the State charged Hunter’s murder.[1]

At trial, evidence was presented that: (1) the bullets and fragments
were consistent with the .38 caliber revolver, and that the 9mm shell
casing was fired from the 9mm handgun; (2) Defendant was identified as the
person seen leaving the barbershop; (3) Defendant was seen shooting Young
in front of the barbershop; and (4) the cause of death established for both
Young and Hunter was gunshot wounds.

A jury convicted Defendant of both counts of Murder. During the
sentencing phase, the jury recommended a sentence of life imprisonment
without parole. The trial court sentenced Defendant to two concurrent
terms of life imprisonment without parole. The original sentencing order
read:

Arguments on Motion of Elkin’s, as to Count III to overturn and
dismiss, is denied. State presents evidence before sentencing.
Defendant makes unsworn statement. The jury having found you Guilty
in Count I of Murder, the Court accepts their recommendation and
sentences you to Life Imprisonment Without Parole. As to Count II,
the jury having found you Guilty of Murder, the court accepts their
recommendation and you are sentenced to Life Imprisonment Without
Parole. Aggravating circumstances are stated on the record.
Sentences are to run concurrent.

(App. at 8). The trial court had made the following oral statements at the
conclusion of the sentencing hearing:

The jury having found you guilty in Count I of Murder of Charles
Young, Jr., the court accepts the recommendation of the jury and
sentences you to life imprisonment without parole, the aggravating
factors being for both counts the same. I will state them after I
sentence you for Count II. In Count II the jury having found you
guilty of the offense of Murder of Robert Hunter, the court will
accept the recommendation of the jury and sentence you to life
imprisonment without parole. Those sentences will be concurrent. The
court figures, the court states as aggravating circumstances multiple
murders, your long and extensive criminal record, the fact that you
were on bond at the time of this offense from Marion County which you
have since been convicted of. Further, the court can draw inferences
from circumstances and circumstantial evidence in this cause in that
Robert Hunter was killed by a shot to the head. Therefore, the court
concludes as an aggravating factor that that was an execution.
Judgment on said findings. Commitment is ordered.

(Tr. at 415.)

On appeal of Defendant’s first sentence, we found several errors in
the sentencing order and remanded by order for resentencing. We noted that
the sentencing order failed to satisfy the heightened sentencing standards
for life imprisonment without parole as set out in Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995), after remand, 659 N.E.2d 480 (Ind. 1995),
reh’g denied, cert. denied, 519 U.S. 933 (1996). In addition, we found
that the trial judge improperly stated and considered aggravating
circumstances contained in the general felony statute, Ind. Code § 35-38-1-
7.1, rather than properly limiting its consideration to only those factors
listed in Ind. Code § 35-50-2-9(b). See Pope v. State, 737 N.E.2d 374, 382-
83 (Ind. 2000); Bivins v. State, 642 N.E.2d 928, 953-57 (Ind. 1994), cert.
denied, 516 U.S. 1077 (1996).

On remand, the trial court again sentenced Defendant to two concurrent
life-without -parole terms, with the following sentencing order:

The Jury having found the Defendant, Terry Brown, Guilty of the
offense of Murder of Charles Young, Jr. in Count I, and further, the
defendant having been found Guilty in Count II of the Murder of Robert
Hunter, IT IS THE SENTENCE OF THIS COURT, that the Defendant is
sentenced to Life Imprisonment Without Parole, as to each count, and
said counts are to be served concurrently.

The Court states as the aggravating circumstance as to each
count being the Defendant has been convicted of another murder. The
Court finds no mitigating circumstances. COMMITMENT IS ORDERED.

(Supp. App. at 93.)

Discussion

I

Defendant argues that the trial court abused its discretion when it
permitted Dr. Michael Clark to testify to Robert Hunter’s cause of death
because his testimony was based on hearsay, rather than personal
observation.

The failure to make a contemporaneous objection to the admission of
evidence at trial, so as to provide the trial court an opportunity to make
a final ruling on the matter in the context in which the evidence is
introduced, results in waiver of the error on appeal. Jackson v. State,
735 N.E.2d 1146, 1152 (Ind. 2000); Harrison, 644 N.E.2d at 1256. In the
present case, Defendant failed to make a contemporaneous objection to the
admission of Dr. Clark’s opinion as to Hunter’s cause of death. The trial
transcript reveals that Defendant did not object when Dr. Clark testified
to the cause of death of either Young or Hunter. Rather, Defendant’s
objection followed a question regarding a wound to Hunter’s right index
finger. Defendant’s failure to object contemporaneously results in waiver
of the right to appellate review.

II

Defendant contends that he was sentenced in violation of recent United
States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S. Ct.
2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348
(2000). In Ring, the United States Supreme Court overruled Walton v.
Arizona, 497 U.S. 639 (1990), to the extent it allowed the judge, not the
jury, to find an aggravating circumstance that supported a death sentence,
and decided that Apprendi applied to Arizona's death penalty scheme. Ring,
122 S. Ct. at 2443. Apprendi had announced the rule that "[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct.
at 2362-63. Specifically, Defendant contends that the sentence is invalid
because there was no specific jury verdict finding that the aggravating
circumstance had been proven beyond a reasonable doubt and that the jury
was incorrectly instructed that its role was only advisory.

In Bostick v. State, 773 N.E.2d 266, 273-74 (Ind. 2002), reh’g denied,
we held that defendant's life-without-parole sentence had been imposed in
violation of the requirements of Ring and Apprendi and remand for
resentencing. However, we find no violation of Ring or Apprendi in this
case. In Bostick, the jury failed to make any recommendation as to
sentence. In contrast, in this case, the jury unanimously recommended that
Defendant be sentenced to life without parole. We hold that, implicit in
the jury's recommendation as to sentence is the jury's finding beyond a
reasonable doubt that the charged aggravating circumstance exists. We so
hold because the jury was instructed that before it could recommend that a
death sentence be imposed, the jury must find the existence of the charged
aggravating circumstance beyond a reasonable doubt and that the aggravating
circumstance outweighed the mitigating circumstances. Therefore, the jury
necessarily determined the fact of the aggravating circumstance beyond a
reasonable doubt. Overstreet v. State, No. 41S00-9804-DP-217, 2003 WL
463094, at *16 (Ind. Feb. 24, 2003); Wrinkles v. State, 776 N.E.2d 905, 907-
08 (Ind. 2002). Furthermore, the aggravating circumstance that made
Defendant eligible for a sentence of life without parole was that he had
committed multiple murders. See Ind. Code § 35-50-2-9(b)(8). The jury's
verdict in the guilt phase, finding Defendant guilty of the two murders,
necessarily means that the jury found, beyond a reasonable doubt, that
Defendant had committed more than one murder. Wrinkles, 776 N.E.2d at 907-
08.

III

Finding no Ring or Apprendi violation, we turn to the question of
whether Defendant’s life-without-parole sentences are appropriate. The
Indiana Constitution provides that "[t]he Supreme Court shall have, in all
appeals of criminal cases, the power to review and revise the sentence
imposed." Ind. Const. art. VII, § 4. Although our rules for appellate
review of sentences require that deference be given to the judgment of the
trial court in capital cases, those rules "stand more as guideposts for our
appellate review than as immovable pillars supporting a sentence decision."
Spranger v. State, 498 N.E.2d 931, 947 n.2 (Ind. 1986), reh’g denied,
cert. denied, 481 U.S. 1033 (1987). Moreover, "this Court's review of
capital cases under Article 7 is part and parcel of the sentencing
process." Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989). This
special review of capital cases is grounded in the Indiana Constitution,
our state's death penalty statute, and federal death penalty jurisprudence.
Harrison, 644 N.E.2d at 1260.

Taken together, neither the revised written sentencing order nor the
verbal statements made at the sentencing hearing satisfy the legal
requirements needed to impose a life-without-parole sentence.

When imposing a sentence of life without parole, the same heightened
standards used in death penalty cases apply. Holsinger v. State, 750
N.E.2d 354, 362 (Ind. 2001); Pope v. State, 737 N.E.2d 374, 382 (Ind.
2000), reh’g denied; Nicholson v. State, 734 N.E.2d 1047, 1048 (Ind. 2000),
reh’g denied; Rawley v. State, 724 N.E.2d 1087, 1091 (Ind. 2000); Ajabu v.
State, 693 N.E.2d 921, 936 (Ind. 1998) (“The statute provides that life
without parole is imposed under the same standards and is subject to the
same requirements.”), after remand, 722 N.E.2d 339 (2000); see also Ind.
Code § 35-50-2-9. Because a sentence of life in prison without parole is
imposed under the same standards as the death penalty, we require the same
specificity from a trial court sentencing a defendant to life in prison
without parole as we would a court sentencing a person to death. Pope, 737
N.E.2d at 382; Nicholson, 734 N.E.2d at 1048; Rawley, 724 N.E.2d at 1091;
Ajabu, 693 N.E.2d at 936. Neither Ring and Apprendi nor recent statutory
changes[2] lessen these requirements.

Our death penalty statute guides our review by providing standards
for governing the trial court's imposition of life imprisonment sentences.
Following the completion of the guilt-determination phase of the trial and
the rendering of the jury's verdict, the trial court reconvenes for the
penalty phase. Before life imprisonment can be imposed, our statute
requires the State to prove beyond a reasonable doubt at least one
aggravating circumstance listed in subsections (b)(1) through (b)(16) of
the statute. See Ind. Code § 35-50-2-9 (1998); see also Bivins, 642 N.E.2d
at 955-56. As discussed at several points in this opinion, the State
supported its request for life imprisonment with one alleged aggravating
circumstance: Defendant committed multiple murders. See Ind. Code § 35-50-
2-9(b)(8) (1998).

After deliberations, the jury in the present case recommended life
imprisonment without parole.

Once the jury has made its recommendation, the jury is dismissed, and
the trial court has the duty of making the final sentencing determination
at the sentencing hearing.

Applicable law imposes several requirements on the trial court in
making its sentencing determination. First, the trial court must find that
the State has proven beyond a reasonable doubt that at least one of the
aggravating circumstances listed in the death penalty statute exists. See
Ind. Code § 35-50-2-9(k)(1) (1998). Second, the trial court must find that
any mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances. See id. § 35-50-2-9(k)(2). Third, before
making the final determination of the sentence, the trial court must
consider the jury's recommendation. See id. § 35-50-2-9(e). The trial
court must make a record of its reasons for selecting the sentence that it
imposes. See id. § 35-38-1-3.

The above statutory provisions make clear that the sentencing court
has a separate and independent role in assessing and weighing the
aggravating and mitigating circumstances and in making the final
determination whether to impose a particular sentence. Harrison v. State,
644 N.E.2d at 1261 (citing Benirschke v. State, 577 N.E.2d 576, 579 (Ind.
1991), reh’g denied 582 N.E.2d 355 (Ind. 1991), cert. denied, 505 U.S. 1224
(1992)). In arriving at its own separate determination as to whether life
without parole is an appropriate sentence, the sentencing court is to point
out its employment of the process in specific and clear findings. Id. at
1261-62.

In Harrison, we established the following steps:

The trial court’s statement of reasons (i) must identify each
mitigating and aggravating circumstance found, (ii) must include the
specific facts and reasons which lead the court to find the existence
of each such circumstance, (iii) must articulate that the mitigating
and aggravating circumstances have been evaluated and balanced in
determination of the sentence, and (iv) must set forth the trial
court’s personal conclusion that the sentence is appropriate
punishment for this offender and this crime.

Id. at 1262 (citations omitted). We require such specificity in capital
and life-without-parole sentencing orders to insure the trial court
considered only proper matter when imposing a life sentence, thus
safeguarding against sentences that are arbitrary or capricious, and so as
to enable appellate courts to determine the reasonableness of the sentence
imposed. Id.

We find that the amended sentencing order, as outlined above, does not
comply with these requirements in the following respects. First, the order
does not clearly establish that the trial court found that the State proved
the existence of at least one aggravating circumstance beyond a reasonable
doubt. Second, the order does not set forth sufficient facts and reasons
that lead the court to find the particular aggravating and mitigating
circumstances. Third, there is nothing in the revised sentencing order
that indicates that the trial court considered the jury’s recommendation,
or even what that recommendation was.[3] Fourth, the order does not
contain the necessary personal conclusion of the trial court that life
without parole is the appropriate punishment for this offender and this
crime; rather, the order merely indicates the presence of an aggravating
circumstance while finding “no mitigating circumstances.” [4] In addition,
the trial court erroneously imposed two life-without-parole-sentences,
though the State had only charged one such count for sentence enhancement.

Without a trial court sentencing order that meets the requirements of
the law, we are unwilling to affirm its sentence of life without parole.
Our options are: (1) remand the matter to the trial court for
clarification or a new sentencing determination; (2) affirm the sentence if
the error is harmless; or (3) independently reweigh the proper aggravating
and mitigating circumstances. Bivins, 642 N.E.2d at 957. Since we have
already remanded for a revised sentencing order once, we elect to make an
independent evaluation of the aggravating and mitigating circumstances.

In the absence of a trial court sentencing order meeting the
requirements of Harrison in general and failing to articulate any
evaluation and balancing of aggravating and mitigating circumstances, we
vacate Defendant’s life-without-parole sentences and impose instead a term
of years for Defendant’s Murder convictions.

The presumptive sentence for Murder is fifty-five years, with a
possible enhancement of up to ten years. Ind. Code § 35-50-2-3(a) (1998).

Unlike sentencing under the death penalty and life without parole
statute, the trial court is not limited to considering aggravating
circumstances specified in the statute when imposing a term-of-years
sentence. As such, we here consider the additional aggravating
circumstances identified by the trial court in its oral statements at the
time of sentencing, which are outlined above in the Background section.
These include: commission of multiple murders; Defendant’s extensive
criminal record; that Defendant was on bond from Marion County at the time
of the offenses outlined in this case and has since been convicted of the
Marion County offense; and the execution-style nature of Robert Hunter’s
gunshot wound to the head.

The trial court found no mitigating circumstances. We accept the
trial court’s findings regarding the lack of mitigating circumstances.[5]

We conclude that two sentences of fifty-five year terms are
warranted. In addition, we find that the severity of the aggravating
circumstances, combined with the absence of mitigating factors, warrant the
two terms being served consecutively. See Ind. Code § 35-38-1-7.1(b).

Given these findings, Defendant’s sentence for two terms of life
imprisonment without parole is hereby vacated and replaced with two
consecutive 55-year sentences.

Conclusion

We affirm Defendant’s convictions. We vacate the sentence imposed by
the trial court and remand with instructions to impose consecutive
sentences of 55 years on each of Counts I and II.

SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur. BOEHM, J., would
remand for a revised sentencing order where, as here, the errors in
sentencing are procedural and do not necessarily preclude the
appropriateness of a single sentence of life without parole as charged.
-----------------------
[1] "The defendant has committed another murder, at any time, regardless
of whether the defendant has been convicted of that murder." Ind. Code § 35-
50-2-9(b)(8) (1998). This subsection is only available in cases involving
double or multiple murders for which the defendant is being tried in one
proceeding. Corcoran v. State, 739 N.E.2d 649, 656 n.5 (Ind. 2000);
Williams v. State, 669 N.E.2d 1372, 1389 (Ind. 1996), cert. denied, 520
U.S. 1232 (1997).
[2] “If the jury reaches a sentencing recommendation, the court shall
sentence the defendant accordingly.” Pub. L. No. 117-2002, § 2; Ind.
Code § 35-50-2-9(e) (2002).
[3] We acknowledge that the initial (i.e., before remand) sentencing
order and judge’s oral statement at sentencing set forth the jury’s
recommendation.
[4] Under Indiana law, the requirements set out in Harrison must appear
in the trial court’s written sentencing order. While we normally would
look only to the written document when reviewing a trial court’s sentence,
in this case we have also reviewed the trial court’s oral statements for
compliance with the Harrison requirements. In it, the trial court listed
non-statutory aggravating circumstances including defendant’s “long and
extensive criminal record,” “the fact that [Defendant] w[as] on bond at the
time of this offense from Marion County which you have since been convicted
of,” and that one of the murders was “an execution.” (Tr. at 415.) A
trial court may not consider non-statutory aggravating circumstances or
uncharged statutory circumstances when imposing life in prison without
parole. See Holsinger, 750 N.E.2d at 361-62. It appears that this error
was corrected by the revised sentencing order.
[5] In addition, Defendant does not assert that the trial court
overlooked any mitigating factors.