Moore v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Lorinda Meier Youngcourt Steve Carter
Evans & Youngcourt, P.C. Attorney General of Indiana
Indianapolis, Indiana
Thomas D. Perkins
Janice L. Stevens Deputy Attorney General
Marion County Public Defender Agency Indianapolis, Indiana
Indianapolis, Indiana

In The
INDIANA SUPREME COURT

RICHARD MOORE )
Defendant-Appellant, )
)
v. ) No. 06S00-0006-PD-389
)
STATE OF INDIANA )
Plaintiff-Appellee. )
________________________________________________

APPEAL FROM THE BOONE SUPERIOR COURT
The Honorable James R. Detamore, Judge
Cause No. 06D02-9904-CF-176
________________________________________________

On Direct Appeal

June 26, 2002

DICKSON, Justice

The defendant, Richard Moore, appeals his death sentence imposed
following our remand for a new sentencing hearing. As a result of the
November 1979 deaths of Rhonda Moore, John Caldwell, and Gerald F. Griffin,
the State charged the defendant with three counts of murder and six
additional counts charging other offenses. Alleging that Griffin was an
Indianapolis police officer acting in the course of his duty and that the
defendant committed two other murders, the State sought the death penalty.
After obtaining a change of venue, the defendant pleaded guilty to the
three counts of murder. The State then dismissed the six counts charging
other offenses. Following a sentencing hearing in 1980, the trial court
sentenced the defendant to death. This Court affirmed the defendant's
conviction and sentence on direct appeal. Moore v. State, 479 N.E.2d 1264
(Ind. 1985). The defendant’s petition for post-conviction relief was
granted in 1995, but the State appealed and this Court reversed the post-
conviction court, reinstated the guilty pleas, and remanded for a new
sentencing proceeding. State v. Moore, 678 N.E.2d 1258 (Ind. 1997).
Following a new sentencing hearing before a new judge, the defendant
was once again sentenced to death. In the present appeal, he challenges
this death sentence asserting (1) that he was deprived of his right to a
jury; (2) that the evidence was insufficient to prove that he knowingly
shot a police officer; (3) that the trial court improperly weighed the
mitigating evidence; (4) that the length he has been on death row violates
both the federal and state constitutions; (5) that execution by lethal
injection is unconstitutional; and (6) that the trial court erred when it
excluded certain expert testimony.

1. Right to Jury
The defendant first contends that the Indiana capital sentencing
statute violated the federal and state constitutions by depriving him of a
jury determination of the aggravating circumstances that made him eligible
for the death sentence.
Because of the historical facts of these proceedings, we do not reach
this argument. Even if we were to assume that the defendant might
otherwise be constitutionally entitled to a jury determination of the death
eligibility factors, his plea of guilty forfeited any such claimed
entitlement. When the defendant pleaded guilty to three counts of murder,
he did so knowing that such plea would deprive him of access to a jury. In
the defendant's direct appeal this Court recited the facts supporting his
voluntary pleas:
The trial court thereupon conducted a hearing to determine the
voluntariness of Appellant's guilty pleas. The trial court examined
Appellant about his mental status and about his knowledge of the many
constitutional rights he was waiving by pleading guilty. The trial
court specifically informed Appellant of the minimum and maximum
penalties he faced by pleading guilty as charged and reminded
Appellant that the State was seeking a death penalty for him. The
trial court also carefully advised Appellant that by pleading guilty
he would waive his right to have a jury recommend to the trial court
whether or not a death penalty should be imposed against Appellant.
Appellant consistently stated, without equivocation, that he
understood everything that the trial court was discussing with him and
that he knew what he was doing. Appellant also stated his belief that
he had been adequately and satisfactorily represented by his counsel
and that he had not been forced, threatened or induced in any way to
enter his guilty pleas. We note that there was no plea agreement in
this case. A factual basis for Appellant's three guilty pleas was
presented to the trial court by the State and Appellant confessed
three different times to having committed the three murders charged in
Counts I, II, and III. Having carefully and comprehensively examined
Appellant, the trial court accepted Appellant's guilty pleas and found
Appellant guilty of the three murder counts.

Moore v. State, 479 N.E.2d 1264, 1268 (Ind. 1985)(emphasis added).[1]
We discern that the defendant’s argument also asserts, in part, that
the Indiana death penalty statute fails to ensure that his death
eligibility factors are determined beyond a reasonable doubt. At the time
of the offense, the statute, Indiana Code § 35-50-2-9 (Supp. 1979),
provided in relevant part, "If the defendant was convicted of murder in a
jury trial, the jury shall reconvene for the sentencing hearing; if the
trial was to the court, or the judgment was entered on a guilty plea, the
court alone shall conduct the sentencing hearing." Ind.Code § 35-50-2-9(d)
(Supp. 1979)(emphasis added). The statute also required that, before a
death sentence may be imposed in a proceeding before the court without a
jury recommendation, the court must find that the State has proved beyond a
reasonable doubt that at least one of the statutory aggravating
circumstances exists. Ind.Code § 35-50-2-9(g)(1) (Supp. 1979). In this
case, at the conclusion of the new sentencing proceedings following remand,
the trial court explicitly found that the State had proven each aggravating
circumstance beyond a reasonable doubt. Record at 678-79.

2. Sufficiency of Evidence Supporting Aggravating Circumstance
The defendant next contends that the trial court's finding of the
aggravating circumstance of shooting a law enforcement officer in the line
of duty lacks sufficient evidentiary support.
The trial court on resentencing found as an aggravating circumstance
that a victim of the murder was a law enforcement officer acting in the
course of duty to be proven beyond a reasonable doubt. Indiana Code § 35-
50-2-9(b)(6) (Supp. 1979) reads, "The victim of the murder was a
corrections employee, fireman, judge, or law-enforcement officer, and
either (i) the victim was acting in the course of duty or (ii) the murder
was motivated by an act the victim performed while acting in the course of
duty." In order for this aggravating circumstance to be found, the fact
finder must find beyond a reasonable doubt that the defendant knew the
victim was a law enforcement officer. Castor v. State, 587 N.E.2d 1281,
1290 (Ind. 1992). In regard to this aggravating circumstance, the trial
court concluded, "[T]he State has proven beyond a reasonable doubt that the
Defendant intentionally shot and killed a law enforcement officer acting in
the course of his duty and that he knew that the victim was a law
enforcement officer." Record at 678.
When determining whether the evidence supports an aggravating
circumstance, we apply the same standard applicable when determining the
sufficiency of evidence to convict. Fleenor v. State, 622 N.E.2d 140, 151
(Ind. 1993). In addressing a claim of insufficient evidence, an appellate
court must consider only the probative evidence and reasonable inferences
supporting the judgment, without weighing evidence or assessing witness
credibility, and determine therefrom whether a reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. Marcum v.
State, 725 N.E.2d 852, 863 (Ind. 2000).
As to the challenged aggravating circumstance, the trial court found:
1. Richard Moore entered a plea of guilty to Count III, Murder, of
the Charging Information that he knowingly killed Gerald F. Griffin on
November 6, 1979.
2. It is undisputed that the victim was a law enforcement officer
acting in the course of duty.
3. Pursuant to Cas[tor] v. State, 587 N.E.2d 1281, the question for
the Court and burden of the State is whether the Defendant KNEW (not
should have known) that Gerald Griffin was a police officer.
4. The Defendant called as an expect [sic] witness John Stephen
Sobeck, a senior resident analyst for Wolf Technical Services. He was
recognized as an expert in lighting and effects on human vision.
5. Sobeck testified that he had reviewed the following for the
purpose of developing his opinions:
depositions of Officer Atwood, Pam Myers, Don Whitman, Doyle
Glass, Susan Wright, Pat Young, Patterson, Ruth Caldwell,
witness statement of Ray Potter, autopsy report of Griffin,
photos by police at scene, drawing of scene, lights at location,
climatological data, trial examination of Atwood (emphasis added
[in original]), and Richard Moore's testimony at sentencing
hearing.
6. Sobeck testified that he examined the characteristics of the scene
including location of home to city street lights, general layout of
home, kitchen, carport, living room, windows, location of lights in
carport, kitchen and living room, condition of doors, screens in
carport area and clothing of Officer Griffin.
7. Sobeck testified that exhibit "F" was very important to his
opinion in that the small fluorescent light in the kitchen was
apparently the only light that was on.
8. Sobeck testified that he assumed that Officer Griffin was about 10
feet from the muzzle end of Defendant's shotgun.
9. Sobeck testified that he assumed that storm/screen door was also
closed.
10. Sobeck testified that it was his opinion, assuming Defendant 10
feet plus length of shotgun away from Griffin – Griffin behind both
the kitchen and the storm/screen door – and the only illumination
coming from the small fluorescent light above the sink, that Defendant
would not have been able to discern the clothing of Griffin other than
dark clothing, that he might be able to tell it was a white person,
and possibly the appearance of a gun but little more.
11. Sobeck admitted that if the carport light [were] on it would
significantly alter his opinion of what the Defendant could see.
12. Ruth Caldwell testified that it was her husband's routine and
habit to turn on the carport light when anyone came to the house.
13. She further testified that her daughter Rhonda had gone out to
the carport area to talk with the Defendant and that she (Ruth
Caldwell) had gone to the bedroom window looking out watching them.
14. She testified that she could see them clearly and that when she
saw Rhonda begin crying she went to tell her husband that Rhonda
should come in.
15. Officer Amos Atwell testified that he saw Officer Griffin
approach the house and knock on the left side (white part) of the door
and that the carport light was on.
16. Atwood further testified that he saw Griffin crouch down pulling
his gun up saying "hey man – don't do it", prior to being shot in the
chest.
17. Officer Roy Potter testified that a yellow tinted light was on.
18. Detective Louis Christ testified that the inside garage light on
the west side of the residence was on.
19. Although her recollection was questioned, Susan Glass Wright
Harmon who was a neighbor of the Caldwells on November 6, 1979, said
she believes the yellow light was on.
20. Defendant's Exhibit "Y" shows that radio communications described
"requesting medic, officer shot" (likely Griffin) at 19:48:42 (7:48
and 42 seconds p.m.)
21. Defendant's counsel argues that the Defendant's ability to see
and perceive was hampered by the fact that he was blind in one eye and
that due to lighting conditions his ability to recognize Griffin as a
law enforcement officer was impaired.
22. This Court as the fact finder has used its common sense and
everyday life's experiences to evaluate the facts of this case.
23. This Court finds that Sobec[k]'s opinions are flawed because the
assumptions which form the basis of his opinions are not supported by
the facts.
24. Sobeck's assumption that Officer Griffin was standing behind both
the kitchen door and the storm/screen door is very unlikely because of
the following:
a. Officer Amos Atwood could not have seen Officer Griffin
knock on the left side of the door (on the white part) if the
storm/screen door had been closed.
b. Pictures of the storm/screen door show absolutely no gun
shot holes through the screen portion. Sobeck states that there
was a narrow portion of the glass portion of the kitchen door
that coincides with a glass portion of the storm/screen door
that if the Defendant's shotgun blast was perfect it could have
gone through that area and hit Griffin in the chest. Although
theoretically possible, this Court finds it unlikely.
25. Sobeck's opinion that the small fluorescent light over the sink
was the only illumination going out into the carport patio area is
just not supported by the facts.
26. It would have been impossible for Ruth Caldwell to observe the
Defendant and Rhonda out on the carport area clearly if the only
illumination was coming from the small fluorescent light over the
sink.
27. Ruth Caldwell would not have been able to see Rhonda's eyes tear
up unless the yellow light on the carport was lit.
28. Officers Atwood, Potter and Christ all testified that the carport
light was on.
29. Counsel's argument that Defendant's ability to see and perceive
was hampered due to being blind in one eye is weakened by the fact
that within a three (3) minute period of time the Defendant shot at
least three (3) police officers. Griffin, and then approximately
three (3) minutes later his eyesight and firearm skill was such that
in rapid fire succession he hit one officer directly in his face
(Mukes), who was in police uniform, stepping out of a fully marked
police car underneath a street light, approximately 30 to 35 yards
away, and another officer (Potter) on the run, knocking his legs out
from under him.
30. In examining all the above facts this Court is convinced that the
Defendant's expert witness on lighting and its effects on human vision
is flawed and carries much less weight than the Defendant would
desire.
31. This Court is firmly convinced that not only was the small
fluorescent light in the kitchen on, but the yellow light in the
carport directly to the left of the kitchen door was on, and that
Officer Griffin as located between the kitchen and the storm/screen
door.
32. This Court is firmly convinced that the Defendant was able to
clearly see that Griffin was a uniformed officer with badge on his
upper left chest/shoulder area, directly under the light in the
carport next to the kitchen door.
33. This Court is firmly convinced that the Defendant knew when he
shot Griffin that he was shooting a police officer.
34. For all the above reasons, this Court finds that the State has
proven beyond a reasonable doubt that the Defendant intentionally shot
and killed a law enforcement officer acting in the course of his duty
and that he knew that the victim was a law enforcement officer.
3[5]. The State has proven beyond a reasonable doubt said aggravating
circumstance, as required by law.

Record at 671-78.
The defendant argues that these findings are flawed in various
respects. First, the defendant argues that the finding that Officer
Griffin was between the storm door and kitchen door when he was shot is
unsupported by the evidence. However, Officer Atwood testified that
Officer Griffin knocked on the white kitchen door, which requires the storm
door to be open. Record at 1144-45. Also, contrary to the defendant's
view, the court reasonably inferred that the storm door was open from the
fact that the top screen portion of the storm door was intact (i.e., was
not affected by the shotgun blast). Next, the defendant suggests that this
Court should judge anew the credibility of the witnesses and reweigh the
other evidence regarding whether the light in the carport was on at the
time of the shooting. We decline.
There is probative evidence in the record from which the fact-finder
could have found beyond a reasonable doubt that the defendant "knew that
the victim was a law enforcement officer." Record at 678.

3. Mitigating Evidence
The defendant contends that the trial court improperly weighed the
mitigating circumstances. Pointing to certain trial court comments at
sentencing and in its order denying the motion to correct errors that
suggested some of the proposed mitigators would be more appropriately
considered in a clemency request, the defendant argues, "[t]he sentencing
court, in effect, limited the weight to be given to the mitigating factors,
because a later body, charged with a wholly different mission, was likely
to correct any error that it might have made." Br. of Appellant at 45.
Indiana Code § 35-38-1-3(3) requires that if the trial court finds
aggravating or mitigating circumstances, its record must include "a
statement of the court's reasons for selecting the sentence that it
imposes." Id. As we have previously stated:
The requirement for sentencing findings are more stringent in capital
cases than in non-capital sentencing situations. 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.

Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995)(citations omitted).
The defendant does not contend that the trial court failed in this regard,
but, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86
L.Ed.2d 231 (1985), he asserts that the trial court denied him a fair
determination of the appropriateness of a death sentence by delegating the
responsibility to consider mitigation evidence to the clemency board.
In the trial court's written findings it stated, "The Court has
weighed and considered all the mitigating factors proffered by the
Defendant. The Court believes that the majority of those mitigating
factors are more properly suited to consideration for clemency." Record at
691. And in its order ruling on the defendant's motion to correct error
stated, "This Court though still believes that the Defendant's exemplary
conduct over the twenty (20) years that he has been in prison, although the
Court has considered and given appropriate weight to the same, the Court
still believes is more appropriately a consideration of clemency. This
belief is dicta, and in no way, shape or form did this Court not give
careful consideration to all mitigators presented by the Defendant."
Record at 1050-51 (emphasis in original).
Given the trial court's express and detailed findings, we are not
persuaded that the trial court diminished its own sense of responsibility
for the determination of the appropriateness of a death sentence by relying
on a future clemency review to remedy an error in the weight given to the
mitigating circumstances.

4. Time Spent on Death Row
The defendant maintains that his twenty years spent under a sentence
of death constitutes cruel and unusual punishment under the Eighth
Amendment to the United States Constitution.[2] This claim has become
known as a Lackey claim from Justice Stevens's suggestion in Lackey v.
Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995)(memorandum
respecting denial of certiorari), that such a claim is important and would
benefit from the attention of lower and state courts to test the viability
of such a claim. Justice Thomas has concluded that after the resounding
rejection by courts of Lackey claims that the Supreme Court "should
consider the experiment concluded." Knight v. Florida, 528 U.S. 990, 993,
120 S.Ct. 459, 461, 145 L.Ed.2d 370, 372 (1999)(Thomas, J., concurring in
denial of certiorari); see, e.g., Chambers v. Bowersox, 157 F.3d 560, 570
(8th Cir. 1998); Ex parte Bush, 695 So.2d 138, 140 (Ala. 1997); State v.
Schackart, 947 P.2d 315, 336 (Ariz. 1997); People v. Massie, 967 P.2d 29,
44-45 (Cal. 1998); Booker v. State, 773 So.2d 1079, 1096 (Fla. 2000);
People v. Simms, 736 N.E.2d 1092, 1141 (Ill. 2000); State v. Smith, 931
P.2d 1272, 1287-88 (Mont. 1996); State v. Moore, 591 N.W.2d 86, 93-95 (Neb.
1999); Bell v. State, 938 S.W.2d 35, 53 (Tex. Crim. App. 1996).
We find the reasoning in the cases rejecting Lackey claims to be
persuasive. The Nebraska Supreme Court has described the nature of a
typical Lackey claim:
[The defendant] has not claimed that the State has set up a scheme to
prolong the period of his incarceration or purposely resentenced [the
defendant] in order to torment him. The delay in carrying out the
sentence of death has been caused by the fact that [the defendant] has
availed himself of procedures our law provides to ensure that
executions are carried out only in appropriate circumstances. That
this differs from the practice at common law, where executions could
be carried out on the dawn following the pronouncement of the
sentence, is a consequence of our evolving standards of decency, which
prompt us to provide death row inmates with ample opportunities to
contest their convictions and sentences.

Moore, 591 N.W.2d at 94. We also agree that:
"A defendant must not be penalized for pursuing his constitutional
rights, but he also should not be able to benefit from the ultimately
unsuccessful pursuit of those rights. It would indeed be a mockery of
justice if the delay incurred during the prosecution of claims that
fail on the merits could itself accrue into a substantive claim to the
very relief that had been sought and properly denied in the first
place. If that were the law, death-row inmates would be able to avoid
their sentences simply by delaying proceedings beyond some threshold
amount of time, while other death-row inmates—less successful in their
attempts to delay—would be forced to face their sentences. Such
differential treatment would be far more 'arbitrary and unfair' and
'cruel and unusual' than the current system of fulfilling sentences
when the last in the line of appeals fails on the merits."

McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir. 1995)(quoting Richmond v.
Lewis, 948 F.2d 1473, 1492 (9th Cir. 1990), rev'd on other grounds, 506
U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), vacated, 986 F.2d 1583 (9th
Cir. 1993). We also note that recognizing a Lackey claim would
"dramatically alter the calculus in granting stays of execution in death
penalty cases." Moore, 591 N.W.2d at 94. "The philosophy of erring on the
side of caution would lose much of its vitality in a regime where the state
risks being pushed permanently out of bounds if the execution is too long
deferred by the process of adjudication." Id. To ensure the just
administration of the death penalty the value of speed should not trump the
value of accuracy.
We decline the defendant's claimed violation of his rights under the
Eighth Amendment to the United States Constitution.
The defendant also claims the delay in his execution violates Article
1, § 15 of the Indiana Constitution barring unnecessary rigor in the
treatment of prisoners. The defendant argues that the emotional abuse
suffered in awaiting execution is consistent with violations of Article 1,
§ 15 that Indiana courts have recognized in the past. The defendant cites
three cases: Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938);
Bonahoon v. State, 203 Ind. 51, 178 N.E. 570 (1931); Roberts v. State, 159
Ind.App. 456, 307 N.E.2d 501 (1974). All three cases involved physical
abuse of a prisoner. See, e.g., Kokenes, 213 Ind. at 481-82, 13 N.E.2d at
526-27 (tooth knocked out, beaten with fists, kicked, struck with blackjack
and rubber hose); see also Ratliff v. Cohen, 693 N.E.2d 530, 541 (Ind.
1998)(noting past Art. 1, § 15 cases have involved physical abuse and
refusing to extend to prisoner's alleged lack of proper rehabilitative
treatment). Besides the assertion that the defendant's emotional stress
outweighs the physical abuse in these cases, the defendant offers no
argument or authority why Article 1, § 15 should be extended beyond
physical abuse to emotional stress. We conclude that the length of time a
person has spent on death row does not render his execution
unconstitutional under the federal or state constitution.

5. Death by Lethal Injection
The defendant argues that death by lethal injection as it is
performed in Indiana is a violation of the Eighth Amendment to the United
States Constitution.[3] The Eighth Amendment does not prohibit the death
penalty but requires it to be performed in a manner that avoids unnecessary
or wanton infliction of pain. Louisiana v. Resweber, 329 U.S. 459, 463, 67
S.Ct. 374, 376, 91 L.Ed. 422, 426 (1946). "Punishments are cruel when they
involve torture or a lingering death; but the punishment of death is not
cruel, within the meaning of that word as used in the Constitution. It
implies something inhuman and barbarous, something more than mere
extinguishment of life." In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930,
933, 34 L.Ed. 519, 524 (1890). The definition of cruel and unusual
punishment also contains an element of comporting with current societal
norms. See Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 598, 2
L.Ed.2d 630, 642 (1958)(plurality opinion). While the Eighth Amendment
does set the outer limits, the proper mode of execution is more a question
of public policy to be argued to the legislature. See Miller v. State, 623
N.E.2d 403, 411 (Ind. 1993). We conclude that death by lethal injection
does not involve unnecessary and wanton infliction of pain or conflict with
societal norms.[4]

6. Expert Testimony
Lastly, the defendant argues that the trial court erred when it
excluded expert testimony proffered by the defendant regarding his
awareness at the time of the crime. During the sentencing hearing, Dr.
Frank Ochberg, a psychiatrist, testified concerning his evaluation of the
defendant's mental and emotional states before and during the crime. When
the defendant attempted to elicit Dr. Ochberg's opinion as to the
defendant's awareness that he was shooting a police officer, the State
objected on the grounds that this was impermissible opinion testimony.[5]
The court sustained the State's objection, and the defendant proceeded with
the following testimony of Dr. Ochberg as an offer of proof:
My opinion is that Mr. Moore was surprised that it turned out to be a
police officer. He told me, I didn't believe a police officer would
be there. I can't believe that a police officer was there. So he
expressed, almost I would say, indignation that a police officer would
be there at that time. My opinion was that Mr. Moore was not aware
that he was shooting a police officer, but he was aware that he was
shooting at somebody who was behind a gun.

Record at 2090.

Indiana Rule of Evidence 704(b) states in part, "Witnesses may not
testify to opinions concerning intent, guilt, or innocence in a criminal
case." Dr. Ochberg's opinion as to what the defendant was thinking at the
moment he shot Officer Griffin would have directly reflected on the
defendant's intent, guilt, or innocence, and thus was an inadmissible
conclusion regarding intent. See Jackson v. State, 728 N.E.2d 147, 153
(Ind. 2000)(stating testimony that the shooting was accidental was
inadmissible as an expression of opinion as to intent, which is barred by
Rule 704(b)); Griffin v. State, 692 N.E.2d 468, 472 (Ind. Ct. App. 1998),
summarily aff'd on this issue, 717 N.E.2d 73 (Ind. 1999). A trial court
has discretionary power regarding the admission of evidence, and its
decisions are reviewed only for an abuse of that discretion. Rubalcada v.
State, 731 N.E.2d 1015, 1023 (Ind. 2000). The trial court did not abuse
its discretion when it excluded this opinion testimony.

Conclusion
The defendant's sentence of death is affirmed.

SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] The defendant has requested the opportunity to supplement his
brief to further address the application of Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) to an Indiana death
sentence. Because this issue is not determinative here, we deny his motion
to supplement his brief.
[2] We note that during eight years of this time the defendant was
pursuing a petition for post-conviction relief. The reason for this
inordinate length of time is largely due to continuances requested by the
defendant. The post-conviction hearing was scheduled four times during the
proceedings. Three of those dates were vacated on the defendant's motions.
[3] The defendant also claims the lethal injection procedure is
especially cruel and unusual as applied to him because of his obesity. In
his argument the defendant only raises possible difficulties without
substantiation of their probability. The defendant fails to demonstrate
how this procedure will be uniquely onerous to him because of his
particular characteristics.

[4] We are not alone in our conclusion that death by lethal injection
does not violate the Eighth Amendment to the United States Constitution.
See, e.g., State v. Hichey, 890 P.2d 602, 610 (Ariz. 1995); State v.
Deputy, 644 A.2d 411, 421-22 (Del. 1994); State v. Moen, 786 P.2d 111, 143
(Or. 1990). In addition, 37 states have lethal injection as their
preferred mode of execution, as does the federal government.

[5] In the State's objection, it cites to Ind.Evidence Rule 705.
Record at 2089. From the content of the objection and the response of the
defendant, it is clear that the objection and ruling were based on
Ind.Evidence Rule 704. Record at 2089-90