ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JENNIFER M. LUKEMEYER JEFFREY A. MODISETT
Symmes, Voyles, Zahn, Paul & Hogan Attorney General of Indiana
Indianapolis, Indiana
ARTHUR THADDEUS PERRY
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
PETER N. GEORGOPOLUS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. )
) 29S00-9803-CR-155
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Steven Nation, Judge
Cause No. 29D01-9607-CF-84
ON DIRECT APPEAL
September 29, 2000
RUCKER, Justice
After a trial by jury, Peter Georgopulos was convicted of murder in the
stabbing death of a real estate agent. The trial court sentenced him to an
enhanced term of sixty-five years imprisonment. In this direct appeal,
Georgopulos raises two issues for our review which we rephrase as follows:
(1) did the trial court err in refusing Georgopulos’ tendered instruction
concerning the consequences of a verdict of guilty but mentally ill; and
(2) did the trial court err in sentencing Georgopulos by relying on
improper aggravating factors and not giving proper weight to mitigating
factors. Finding no error, we affirm.
Facts
On June 30, 1996, a Hamilton County deputy sheriff received a report
of blood on the floor of a model home. Upon investigation the deputy
discovered the body of real estate agent Kimberly Schriner. A later
autopsy revealed that Schriner suffered a skull fracture consistent with
being struck with a rock. The autopsy also revealed that Schriner suffered
fifty-five stab wounds that caused severe internal injury and ultimately
her death. Later that day Georgopulos checked into a motel in Clarks Hill,
Indiana. Early the following morning Georgopulos went to the front desk,
told the clerk that he had committed a crime, and asked the clerk to call
the police. Ultimately officers of the Fishers Police Department took
Georgopulos into custody. In an audiotaped statement, Georgopulos admitted
striking Schriner with a rock that he had picked up on his way into the
model home. He also admitted stabbing Schriner with a knife he had brought
with him for that purpose. Apparently Georgopulos was obsessed with
Schriner, from whom he had purchased a house over a year earlier, and he
was upset because she had originally agreed to go on a date with him but
later canceled.
Georgopulos was charged with murder and notified the State that he
intended to interpose the defense of insanity. As a result, Georgopulos
was examined by three court appointed psychiatrists who concluded that he
was not insane at the time of the offense. In any event during voir dire
both the defense and the State questioned prospective jurors at length
concerning their views of the insanity defense. Some of the prospective
jurors expressed skepticism of the defense referring to it as a “cop-out,”
a “loophole,” and “a way to get a lesser plea.” Ultimately the jury
returned a verdict of guilty as charged. Thereafter the trial court
sentenced Georgopolus to the maximum term of sixty-five years. This appeal
followed. Additional facts are set forth below where relevant.
Discussion
I.
Georgopulos tendered the following final jury instruction: “A finding
of guilty but mentally ill is of no consequence whatsoever. The effect is
in all things the same as a finding of guilty.” R. at 178. The trial
court refused the instruction, and Georgopulos contends it erred in so
doing because the instruction represented a correct statement of the law,
there was evidence in the record to support giving the instruction, and the
substance of the tendered instruction was not covered by other
instructions. See Hartman v. State, 669 N.E.2d 959, 960-61 (Ind. 1996).
Georgopulos cites Stader v. State, 453 N.E.2d 1032 (Ind. Ct. App. 1983),
for the proposition that where the verdict options before a jury
include not guilty by reason of insanity or guilty but mentally ill, an
instruction on the consequences of these verdicts “becomes mandatory in
cases where an erroneous view of the applicable law becomes implanted in
the minds of the jurors.” Id. at 1036.
First, we disagree with Georgopulos’ contention that his tendered
jury instruction represents a correct statement of the law. The language
used in the instruction is taken from this Court’s opinion in Truman v.
State, 481 N.E.2d 1089 (Ind. 1985).[1] However, “[t]he mere fact that
certain language or expressions are used in the opinions of this Court to
reach its final conclusion does not necessarily make it proper language for
instructions to a jury.” Morgan v. State, 544 N.E.2d 143, 148 (Ind. 1989).
Contrary to the language in Georgopulos’ tendered instruction, there are
indeed consequences to a jury verdict of guilty but mentally ill that are
different from a verdict of guilty. It is true that whenever a defendant
is found guilty but mentally ill at the time of the crime, the court shall
sentence the defendant in the same manner as a defendant found guilty of
the offense. See Ind. Code § 35-36-2-5(a). However, a physician must
evaluate the guilty but mentally ill defendant before the trial court may
sentence him. See Ind. Code § 35-36-2-5(b). Also, at the Department of
Correction, the guilty but mentally ill defendant must be further evaluated
and treated as is psychiatrically indicated for his mental illness. See
Ind. Code § 35-36-2-5(c). Neither of these additional procedures is
available to a defendant who is found simply guilty of an offense. Because
Georgopulos’ tendered instruction is not a correct statement of the law,
the trial court did not err in refusing to give it.
Further, we do not agree with the underlying premise of the need for
the proposed tendered instruction, namely: that an erroneous view of the
law had been planted in the jurors’ minds. Generally, it is improper to
instruct a jury on the specific penal ramifications of its verdicts.
Schweitzer v. State, 552 N.E.2d 454, 457 (Ind. 1990). However, a defendant
is entitled to an instruction on post-trial procedures if “an erroneous
view of the law . . . has been planted in [the jurors’] minds.” Dipert v.
State, 259 Ind. 260, 262, 286 N.E.2d 405, 407 (1972). In Dipert during
voir dire a prospective juror asked the prosecutor what would happen to the
defendant if he were found not guilty by reason of insanity. The
prosecutor responded that the defendant would go “scot free.” Id., 286
N.E.2d at 406. The trial court refused to admonish the jury to disregard
the remarks or to give an instruction concerning the post-trial proceedings
involved in a verdict of not guilty by reason of insanity. On appeal this
Court declared that normally a defendant who interposes a defense of not
guilty by reason of insanity is not entitled to an instruction concerning
post-trial procedures. However, a defendant is “entitled to inform the
jury of such procedures where an erroneous view of the law on this subject
has been planted in their minds.” Id., 286 N.E.2d at 407. Recently, in
Caldwell v. State, 722 N.E.2d 814 (Ind. 2000), the defendant tendered two
instructions detailing the consequences of the verdicts guilty but mentally
ill and not responsible by reason of insanity. The trial court refused the
instructions, and the defendant objected. In the State’s rebuttal to the
defendant’s closing argument, the prosecutor made the following comment:
Don’t by your verdict and [sic] tell us that he’s not responsible,
don’t tell us that he has a license to kill. Don’t let him walk out
of this courtroom with the rest of us when this case is over with,
don’t let him get away with murder. Don’t let him get away with
murder.
Id. at 816. The defendant again objected and requested that the rejected
instructions or an admonishment be given to the jury to eliminate any
confusion that the prosecutor’s comments may have engendered in the jury.
The trial court overruled the defendant’s objection and again refused to
give the requested instructions or an admonishment. Id.
Observing that the prosecutor’s comments were not as misleading as
the statements in Dipert, we determined that these statements nonetheless
implied that the defendant would be able to walk out of the courtroom if he
were found not responsible by reason of insanity. Id. at 817. As such,
the prosecutor’s closing remarks created in the jury an erroneous
impression of law, namely: what would happen to the defendant if he were
found not responsible by reason of insanity. Id. Accordingly, we found
reversible error in the trial court’s failure to either admonish the jury
or give the defendant’s tendered instructions. Id.
Unlike the facts in either Dipert or Caldwell, here the prosecutor did
not implant an erroneous view of the law in the minds of the jury. Indeed,
the record shows whenever a prospective juror asked the prosecutor during
voir dire whether Indiana had any guidelines regarding the penal
consequences concerning a verdict of not responsible by reason of insanity,
the prosecutor responded that there are dispositional alternatives
available; however, he should not go into the details because the jury
should return a verdict based solely on the evidence, not on the possible
penal ramifications, which is a
matter left entirely to the trial judge. R. at 1078-79. Georgopulos seems
to acknowledge that the prosecutor himself did not implant an erroneous
view of the law in the minds of the jury. Rather, he complains the voir
dire examination revealed that the “consequences of the verdicts offered
were unclear to the jurors” and that the discourse between the jurors and
counsel for both sides “revealed jurors’ ignorance and misconception about
applicable law.” Brief of Appellant at 12. We assume without deciding
that an erroneous impression of the law on this subject implanted in the
minds of the jury, regardless of its source, entitles a defendant to a
curative jury instruction. However, we disagree that the jury had such an
impression in this case. Our review of the record shows little more than
prospective jurors expressing their attitudes, concerns, and opinions about
the insanity defense itself and not about potential post-trial
dispositions.[2] In addition, the prospective jurors who expressed doubts
about the insanity defense also indicated that the defense could be
appropriate in some cases and, despite their attitudes, they could
nevertheless follow the law. R. at 964, 965, 971, 973, 994, 1013, 1019,
1047, 1057. For this additional reason, the trial court did not err in
refusing to give Georgopulos’ tendered final instruction.
Even though no error occurred in this case, we do acknowledge the
potential for confusion in cases where the jury is faced with the option of
finding a defendant not responsible by reason of insanity or guilty but
mentally ill. Accordingly, in the exercise of our constitutional
supervisory responsibilities, see Ind. Const. Art. 7, § 4, we adopt the
following procedure for cases tried after the date this opinion is
certified. When the verdict options before a jury include not responsible
by reason of insanity or guilty but mentally ill, and the defendant
requests a jury instruction on the penal consequences of these verdicts,
the trial court is required to give an appropriate instruction or
instructions as the case may be.[3]
II.
The trial court sentenced Georgopulos to the maximum term of sixty-
five years. Georgopulos challenges his sentence contending the trial court
considered improper aggravating factors, did not explain why the factors
were aggravating, and erroneously failed to consider mitigating factors.
When enhancing a sentence, a trial court is required to state its specific
reasons for doing so. Accordingly, the sentencing statement must: (1)
identify significant aggravating and mitigating circumstances; (2) state
the specific reason why each circumstance is aggravating or mitigating; and
(3) demonstrate that the trial court balanced the aggravating and
mitigating circumstances and determined that the aggravators outweighed the
mitigators. Battles v. State, 688 N.E.2d 1230, 1235 (Ind. 1997).
At sentencing the trial court engaged in an oral recitation setting
forth the facts and circumstances of the offense generally identifying
aggravating and mitigating circumstances. It is true that to facilitate
appellate review, the better practice entails specifically enumerating
aggravating and mitigating circumstances and detailing the basis for each.
Henson v. State, 707 N.E.2d 792, 795 (Ind. 1999). However, the trial
court’s narrative in this case is sufficient for us to conclude that it
found the following aggravating factors: (1) the risk that Georgopulos
would commit another crime; (2) a reduced sentence would depreciate the
seriousness of the offense; (3) the nature and circumstances of the
offense; and (4) the lack of remorse. As a mitigating factor, the trial
court considered Georgopulos’ lack of a criminal history.
The risk that the person will commit another crime is a statutory
aggravating factor. See Ind. Code § 35-38-1-7.1(a)(1). In relying on this
factor the trial court explained:
[I] look at the planning and the manner of the execution of the victim
in this case. That leads me to believe that the Defendant is a risk
to the community for another murder of another woman. His jail
sentence must be increased to protect our community and to punish the
crime that he has committed.
R. at 2014. Although not a model of explicitness, the trial court’s
explanation is sufficient.[4] Further, contrary to Georgopulos’ assertion,
there is evidence in the record to support the trial court’s explanation;
therefore, the use of this aggravator was appropriate. As for the
statutory aggravator that imposition of a reduced or suspended sentence
would depreciate the seriousness of the crime, see Ind. Code § 35-38-1-
7.1(b)(4), we have held that this factor cannot be used to justify an
enhanced sentence unless the trial court was considering a reduced
sentence. Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995). However, the
record here supports the conclusion that the trial court may have been
considering reducing Georgopulos’ sentence from the presumptive.[5] Thus,
the use of this aggravator was also appropriate.
Much of the trial court’s narrative in this case focused on the
heinous nature of the offense and the manner in which it was committed.
Observing that the crime was “ruthless and brutal,” the trial court
highlighted the innocence of the victim, that she was unarmed and
defenseless, the repeated attacks on the victim, and the mutilation of the
victim while still alive. The trial court also observed:
[T]he Defendant carefully planned this crime. He thought about it for
a long time. He got a knife, he got a change of clothes, he got money
for the get-away. He went through the routine of his day and then he
went over to the show house where the victim would be at a certain
time of the day he had planned. He waited to be sure that no one was
around, he hid the knife in his pants and then he executed the murder.
He carried it out almost to perfection.
R. at 2016. A trial court may consider the nature and circumstances of a
crime to determine what sentence to impose. See Ind. Code § 35-38-1-
7.1(a)(2); Taylor v. State, 695 N.E.2d 117, 120 (Ind. 1998). Further, the
manner in which a crime is committed can be considered as an aggravating
circumstance. Id. See also Sherwood v. State, 702 N.E.2d 694, 700 (Ind.
1998) (heinous nature of crime proper aggravating factor). We find no
error here.
The trial court also considered Georgopulos’ lack of remorse as an
aggravating factor. Georgopulos contends the trial court erred in so doing
because (a) at sentencing he apologized to the victim’s family, and (b) he
maintained his innocence throughout the trial. On this latter point we
make two observations. First, it is not error for a trial court to
consider as an aggravating factor the lack of remorse by a defendant who
insists upon his innocence. Bacher v. State, 722 N.E.2d 799, 802 n.6 (Ind.
2000). Rather, the lack of remorse is regarded only as a modest
aggravator. Id. Second, Georgopulos’ claim of innocence is premised on
his defense of insanity. That is, Georgopulos maintains that he was
innocent because he did not appreciate the wrongfulness of his conduct due
to his mental condition. Georgopulos confuses innocence with lack of
guilt. The two are not the same. Innocence presupposes the defendant
committed no crime. See, e.g., Fortson v. State, 269 Ind. 161, 171, 379
N.E.2d 147, 153 (1978) (observing that a defendant may demonstrate his
innocence by showing that some other person committed the crime, instead of
himself). On the other hand, the defense of insanity is an acknowledgement
that the defendant committed the crime but that the defendant is not
responsible for having committed it because of a mental disease or defect.
See Ind. Code § 35-41-3-6. It is clear that Georgopulos did not maintain
his innocence. Rather, he maintained that he was not guilty.
As for the apology given at the time of sentencing, apparently the
trial court was not persuaded. Complimenting Georgopulos for his
statement, the trial court observed that the facts of the case itself
showed no remorse. The trial court pointed out that immediately after the
attack Georgopulos was not sure if Schriner was dead. Nonetheless, he
never called the police, the fire department, or the hospital–even
anonymously; he sought no medical attention for her; he showed no remorse
at the hotel; and he remained in a happy mood when told of Schriner’s
death. R. at 2017. The trial court did not err in considering
Georgopulos’ lack of remorse as an aggravating factor.
Finally, Georgopulos contends the trial court did not consider the
following mitigating factors: (1) the numerous letters written on his
behalf; (2) the testimony of friends and relatives; (3) his statement of
remorse; and (4) his cooperation with police by turning himself in and
voluntarily giving a statement. Georgopulos is incorrect in his contention
that the trial court did not consider factors one through three.
The trial court considered the factors, discussed them on the record
at the sentencing hearing, and ultimately concluded that the aggravating
factors outweighed the mitigating factors. Even if we were to view
Georgopulos’ contention as an argument that the trial court did not give
factors one through three sufficient mitigating weight, he still cannot
prevail. Although a finding of mitigating factors is well within the
discretion of a trial court, a trial court is not obligated to weigh or
credit the mitigating factors the way a defendant suggests they should be
weighed or credited. Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998).
Only when a trial court fails to find a mitigator that the record clearly
supports does a reasonable belief arise that the mitigator was improperly
overlooked. Id. at 639-40.
As for Georgopulos’ cooperation with police, the record does not
reveal that this factor was raised at sentencing. Thus, the trial court
did not abuse its discretion in failing to consider it. See Carter v.
State, 711 N.E.2d 835, 838-39 (Ind. 1999) (no abuse of discretion in
failing to consider evidence of defendant’s low I.Q. where the issue was
not raised at sentencing). However, even if the subject of Georgopulos’
cooperation with police had been presented to the trial court, we are not
convinced the trial court’s sentencing decision would have been any
different. In Brewer v. State, 646 N.E.2d 1382 (Ind. 1995), we found a
maximum sentence of sixty years for murder to be unreasonable when the
defendant had confessed to a crime after it had remained unsolved for
fifteen years. Id. at 1386. Until the defendants’ confession, police had
not linked him or anyone else to the crime. For fifteen years the
defendant had escaped punishment for a murder, and it was likely he could
have continued avoiding punishment. Accordingly, we found that the trial
court gave insufficient weight to a significant mitigating factor, namely:
the defendant’s confession. Id.
Here, by contrast, Georgopulos’ blood was present on a towel found at
the crime scene, and he had previously spoken to others about his interest
in Schriner. It is highly unlikely that Schriner’s murder would have
remained unsolved for very long. Hence, assuming that Georgopulos’
cooperation with police was entitled to some mitigating weight had this
fact been presented to the trial court, it is unlikely that the sentencing
decision would have been different.
Only one aggravator is necessary for the trial court to impose an
enhanced sentence. Grund v. State, 671 N.E.2d 411, 419 (Ind. 1996). Here
the trial court found four valid aggravating factors and one mitigating
factor. We find that the trial court properly weighed the aggravating and
mitigating factors in reaching its sentencing decision.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, J.J., concur.
-----------------------
[1] The exact quote says “[i]t is of no consequence whatever that the
jury or a judge finds a person mentally ill at the same time they find him
to be guilty.” Truman, 481 N.E.2d at 1090.
[2] One prospective juror did state that she would not be able to
serve on the panel if she were not informed of the possible sentencing
consequences. R. at 1078-79, 1088. However, this juror did not serve
because the trial court excused her for cause. R. at 1093.
[3] Although not binding, the trial court may consider the following
as appropriate instructions:
Whenever a defendant is found guilty but mentally ill at the time of
the crime, the cCourt shall sentence the defendant in the same manner
as a defendant found guilty of the offense. At the Department of
Correction, the defendant found guilty but mentally ill shall be
further evaluated and treated as is psychiatrically indicated for his
illness.
See Ind. Code § 35-36-2-5.
Whenever a defendant is found not responsible by reason of insanity at
the time of the crime, the prosecuting attorney shall file a written
petition for mental health commitment with the cCourt. The cCourt
shall hold a mental health commitment hearing at the earliest
opportunity after the finding of not responsible by reason of insanity
at the time of the crime, and the defendant shall be detained in
custody until the completion of the hearing. If, upon the completion
of the hearing, the court finds that the defendant is mentally ill and
either dangerous or gravely disabled, then the court may order the
defendant to be committed to an appropriate facility, or enter an
outpatient treatment program of not more than ninety (90) days.
See Ind. Code § 35-36-2-4; Ind. Code § 12-26-6-8.
[4] The record shows that the trial court actually referred to the
correctional or rehabilitative treatment aggravator. See Ind. Code § 35-38-
1-7.1. For this aggravator to justify in part an enhanced sentenced, “it
must be understood to mean that the defendant is in need of correctional
and rehabilitative treatment that can best be provided by a period of
incarceration in a penal facility in excess of the presumptive sentence
term.” Mayberry v. State, 670 N.E.2d 1262, 1271 (Ind. 1996). Because the
trial court made no attempt to articulate how correction or rehabilitation
could be achieved through the imposition of an enhanced sentence rather
than the presumptive sentence, we perceive the trial court’s reference to
this aggravator as inadvertent.
[5] For example, the trial court indicated that it was “impressed
with the amount of recommendations and statements about the defendant,” R.
at 2012; that it had “reviewed . . . the memorandum of the defense and also
the letters that were found in the pre-sentence report . . . .”, R. at
2014; the court noted further, “I tried to eliminate from my mind the case
itself and look at all the letters and the letters were numerous for Mr.
Georgopulos. But after considering that, the requests that a lot of the
letters had of reducing this to a 45 year sentence, the Court finds that
the imposition of a reduced sentence would depreciate the seriousness of
this crime.” R. at 2015. It is true that the trial court’s narrative
could be read as simply a response to the letters and that the trial court
never intended to reduce the sentence at all. It is equally true, however,
that in context the narrative reflects a trial judge faced with a difficult
case and pondering an appropriate sentence.