Mull v. State

ATTORNEY FOR APPELLANT

Jess M. Smith, III
Centerville, Indiana

ATTORNEYS FOR APPELLEE

Steve Carter
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

WAYNE ANTHONY MULL, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 89S00-0012-CR-747
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________

APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable Douglas H. VanMiddlesworth, Judge
Cause No. 89C01-9407-CF-85
__________________________________________________________________

ON DIRECT APPEAL

__________________________________________________________________

June 25, 2002

BOEHM, Justice.
Wayne Mull pleaded guilty to murder and was sentenced to life without
parole after a penalty phase tried to the court. In this direct appeal,
Mull contends that the trial court erred by: (1) admitting testimony of two
witnesses; (2) finding that the State proved beyond a reasonable doubt that
the murder was committed by intentionally killing the victim during the
commission of a burglary and attempted rape; and (3) finding that the
mitigating circumstances are outweighed by the aggravating circumstances.
We affirm.

Factual and Procedural Background

On July 4, 1994, Mindy Mull was found dead in her upstairs apartment.
Her hands and feet were bound and her naked body was tied to a radiator.
The apartment door was splintered, tool marks were found around the lock of
the door, and the strike plate on the door jamb was missing a screw.
Wayne Mull, who was not related to the victim, was a tenant in a
downstairs apartment of the building. After first denying any involvement,
Wayne confessed to murdering Mindy. According to his confession, Wayne
knocked on the door and was admitted by Mindy. He stated that the two
“were holding each other and talking [and] one thing led to another.” At
some point, Mindy told him to stop and struck him when he pursued his
advances. He then “lost control,” stabbed her with a pair of scissors,
pulled her into the kitchen by her hands, tied her to the radiator with a
phone cord, and “took off.” The State initially charged Wayne with murder,
attempted rape, criminal confinement, and burglary. Wayne then pleaded
guilty to murder in exchange for dismissal of all other counts. The plea
agreement allowed both parties to argue for penalties within the applicable
statutory limitations, including life imprisonment without parole.
On September 7, 1995, the trial court sentenced Wayne to life
imprisonment without parole. Wayne’s trial counsel was appointed to
represent him on appeal, and although a praecipe was filed in October 1995,
no appellate brief was timely filed. In January 2001, after this Court
granted a petition to file a belated appeal and removed Wayne’s trial
counsel as appellate attorney, the trial court appointed new counsel.
After Wayne filed his appellate brief in March 2001, the State moved to
remand conceding that the trial court’s sentencing order did not meet the
requirements for an order imposing life without parole. See Ajabu v.
State, 693 N.E.2d 921, 940 n.24 (Ind. 1998) (life without parole is subject
to death penalty sentencing and requirements); Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995) (setting forth death penalty sentence
requirements). This Court granted the motion to remand for entry of a new
sentencing order. The trial court then entered a renewed sentencing order
and reaffirmed the sentence of life imprisonment without parole.

I. Admitting Witness Testimony

Wayne argues that the court erred in considering the penalty phase
testimony of Angela Pierson and Melissa Jo Loudy. Over Wayne’s objections,
Pierson, Mindy’s roommate, testified that Mindy thought Wayne was
“strange.” Loudy, another of Mindy’s friends, testified that Mindy had
described Wayne as “weird” and complained that Wayne would “always watch
her and always know where she was going or what she was doing [and] always
stop her by the door and just sit and make conversation with her and she
didn’t really want to talk to him.” The trial court admitted this
testimony under Indiana Evidence Rule 803(3).[1] That rule provides an
exception to the hearsay rule for “[a] statement of the declarant’s then
existing state of mind, emotion, sensation, or physical condition (such as
intent, plan, motive, design, mental feeling, pain and bodily health) . . .
.” Relying on Komyatti v. State, 490 N.E.2d 279 (Ind. 1986), Wayne argues
that this was error because the victim’s state of mind prior to the murder
was irrelevant. He contends that comments made by the victim at some
unknown point in time prior to the crime had no relevance to the charged
aggravated circumstances, which were that the defendant intentionally
killed the victim in the course of both a burglary and an attempted rape.
He further argues that at the time these statements were admitted, Wayne
had not placed the victim’s state of mind at issue.
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Ind. Evidence Rule 801(c). Here, the testimony
that Mindy viewed Wayne as “strange” or “weird” was not offered to prove
that he was in fact strange or weird. Similarly, Loudy’s testimony that
Mindy complained about Wayne’s watching her and his repeated attempts to
engage her in conversation was not offered to prove that these events
occurred. Rather, this evidence was offered to prove that Mindy did not
consensually admit Wayne into her apartment or voluntarily have sexual
intercourse with him.
We believe the trial court correctly found this evidence to be
relevant. Wayne placed Mindy’s state of mind in issue by claiming that the
sexual activity was consensual. Moreover, defense counsel placed the
victim’s state of mind in issue by cross-examining the detective as to
Wayne’s claim that the victim admitted Wayne to her apartment. Mindy’s
recently expressed opinions of Wayne make it less likely that she would
either have admitted him to her apartment or engaged in consensual sex with
him.
II. Intent to Commit Burglary and Attempted Rape
Were Proven Beyond Reasonable Doubt

Before a defendant can be sentenced to life imprisonment without
parole for murder, the State must prove beyond a reasonable doubt the
existence of at least one aggravating circumstance listed in Indiana Code
section 35-50-2-9(b). Here, the trial court found, beyond reasonable
doubt, that Wayne intentionally killed Mindy while committing burglary and
attempted rape. Wayne argues that the trial court could not find either of
these aggravating circumstances beyond a reasonable doubt.
Here, the trial court found an intentional killing in the commission
of an attempted rape. Indiana Code section 35-42-4-1 states that “a person
who knowingly or intentionally has sexual intercourse with a member of the
opposite sex when . . . the other person is compelled by force or imminent
threat of force” commits rape. Indiana Code section 35-41-5-1 defines
attempt in relevant part: “A person attempts to commit a crime when, acting
with the culpability required for the commission of the crime, he engages
in conduct that constitutes a substantial step toward commission of the
crime.” Wayne argues that although he admitted that he continued to try to
have intercourse with Mindy after she told him to stop, there was no
evidence that this occurred by use of force or the imminent threat of
force.
Mindy was found naked, bound hand and foot, and tied to a radiator in
the kitchen of her apartment. She was lying in a pool of blood with a
blood-soaked blanket beneath her and a pillow at her head. On the pillow
was a bloody pair of scissors. The autopsy revealed that Mindy had black
eyes (bleeding around and in the eyes), abrasions to her nose and left
cheek, contusions and abrasions of her knuckles. There were abrasions on
her knees, ligature marks on her wrists and ankles from being tightly
bound. On the upper back, at the base of her neck, there was a large area
of bruising indicating she had been struck there at least twice. On her
leg were contusions corresponding to the configuration of the radiator to
which she was tied, indicating that she struggled against the radiator.
The cause of her death was a severed carotid artery that, according to the
forensic pathologist, would have caused her to bleed to death within a
minute or two of receiving the fatal stab wounds. A detective testified
that he observed scratches on the defendant within two days of the murder.
A forensic DNA analyst testified that the two blood stains on a blouse
found in the victim’s apartment contained DNA consistent with both Wayne’s
and Mindy’s. Another forensic expert testified that pubic hairs similar to
Wayne’s sample were found on the victim and in various places in the
victim’s apartment. This is more than enough evidence to support the trial
court’s finding that Wayne intentionally killed Mindy during the commission
of attempted rape.
Wayne next contends that the trial court erred in finding that he
intentionally murdered the victim while committing burglary. Burglary is
breaking and entering with intent to commit a felony. I.C. § 35-43-2-1.
Wayne argues that the victim let him into the apartment after he knocked on
the door and his intent to commit a felony only arose after Mindy hit him.
He points out that the State never recovered any tool or instrument that
was allegedly used to cause damage to the door. He also contends that
Mindy’s roommate failed to notice any damage to the door when she returned
to the apartment immediately before finding the victim.
Mindy’s friends testified that Mindy thought Wayne was “strange” and
“weird” and would not be allowed into the apartment alone. There was fresh
damage to the door and door jamb. The landlord testified that he replaced
the locks on the apartment when Mindy and her roommate moved in about three
weeks before the murder, and the roommate was certain that the door was not
damaged when she left the apartment the day before she found Mindy’s body.
Once in the apartment, the evidence of multiple felonies including
confinement and battery is obvious.
The second amended information charged burglary with intent to commit
rape. The aggravating circumstance charged was burglary without specifying
the intended felony underlying the burglary. Assuming without deciding
that the felony supporting the burglary in the aggravating factor must be
the same as the felony underlying the burglary charged in the initial
information, the trial court found attempted rape, so the intent to commit
the charged felony of rape underlying the burglary charge may be inferred.
This is another application of the general doctrine that one may infer the
intent at the time of entry from the fact of subsequent commission of a
felony. See Gee v. State, 526 N.E.2d 1152, 1154 (Ind. 1988) (stating that
a jury can infer from the surrounding circumstances whether a defendant
entered a structure with the intent to commit the felony charged therein);
Jewell v. State, 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied
(holding that “[a]lthough the fact of breaking and entering is not itself
sufficient to prove entry was made with the intent to commit the felony,
such intent may be inferred from subsequent conduct of the defendant inside
the premises”). If credited, this evidence of breaking and entering and
intent to commit a felony seems more than clear. Credibility is for the
trial court. Accordingly, the finding of this aggravating circumstance is
affirmed.

III. Aggravating Circumstances Outweigh Mitigating Circumstances

Wayne contends that the trial court’s imposition of life imprisonment
without parole was based upon an erroneous finding that the aggravating
circumstances outweighed the mitigating circumstances. The trial court
found two aggravating circumstances: Wayne committed the murder by
intentionally killing the victim while committing burglary and also while
attempting to commit rape. The trial court explicitly found four
mitigating circumstances—remorse, guilty plea, mental health issues, and
developmental history—but nevertheless concluded that “the aggravating
circumstances together and independently outweigh the mitigating
circumstances.”
Citing Trueblood v. State, 715 N.E.2d 1242 (Ind. 1999), Wayne contends
that his guilty plea should have been recognized as a significant
mitigating circumstance. He argues that the plea prevented the necessity
of a lengthy jury trial and points out that the trial court previously
commented that his plea resolved matters prior to the sentencing hearing,
including the State’s necessity to develop a chain of custody for the
evidence. In its Sentencing Order, the trial court acknowledged that
guilty pleas are usually accorded significant weight as a mitigating
circumstance, but concluded that, in this case, it constituted minimal
mitigation. The trial court pointed out that the State was forced to try
most of its case in order to prove the aggravating factors. Given the
confession and the physical evidence, conviction of murder seems
inevitable. “A guilty plea is not automatically a significant mitigating
factor.” Sensback v. State, 720 N.E.2d 1160, 1165 (Ind. 1999); see also
Davies v. State, 758 N.E.2d 981, 987 (Ind. Ct. App. 2001), trans. denied
(affirming the trial court’s refusal to find defendant’s guilty plea as a
mitigating circumstance when the record indicated that the plea was “more
likely the result of pragmatism than acceptance of responsibility and
remorse”). Under these circumstances, we do not believe the court abused
its discretion in according only minimal weight to Wayne’s guilty plea.
Wayne also contends that two statutory mitigating circumstances under
Indiana Code section 35-50-2-9(c)(2) and (6) were erroneously rejected by
the trial court.[2] Specifically, he argues that the testimony of Dr.
Gregory Karch, the defense psychologist, demonstrated the existence of
emotional disturbance when the murder was committed and mental disease or
intoxication. He directs us to no authority for this contention. The
trial court considered the testimony of Dr. Karch, but did not find the
statutory mitigating circumstance of “extreme mental or emotional
disturbance when the murder was committed.” I.C. § 35-50-2-9(c)(2)
(emphasis added). The trial court similarly declined to find Wayne’s
condition sufficiently severe to impair his “capacity to appreciate the
criminality of [his] conduct or to conform that conduct to the requirements
of law,” as specified by Indiana Code section 35-50-2-9(c)(6). The trial
court noted Wayne’s mental and emotional limitations.[3] Wayne points to
no error in these findings. Rather, he challenges the balancing struck by
the trial court. We cannot say that the trial court’s evaluation of the
weight accorded these specifically found facts was an abuse of discretion.
Wayne also argues that the trial court, after reviewing the pre-
sentence report, should have found defendant’s lack of violent criminal
history constituted a mitigating circumstance under section 35-50-2-9(c)(1)
or (8).[4] Wayne had been convicted of criminal conversion and theft, and
had violated probation. Although these crimes were not violent in nature,
section (c)(1) refers to “criminal history,” not the absence of “violent
criminal behavior.”

Conclusion

The sentencing order of the trial court is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.

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[1] Defense counsel objected stating the testimony was hearsay and
irrelevant. In overruling the objection to Loudy’s testimony, the trial
court indicated that it was an exception to the hearsay rule based on Rule
803(3) and relevant as to whether there was consensual sexual activity. In
overruling Pierson’s testimony, no explanation was given, but defense
counsel objected on the same basis as he had objected to Loudy’s testimony.
[2] Section (c)(2) provides for the mitigating circumstance that “[t]he
defendant was under the influence of extreme mental or emotional
disturbance when the murder was committed.” Section (c)(6) provides for
the mitigating circumstance that “[t]he defendant’s capacity to appreciate
the criminality of the defendant’s conduct or to conform that conduct to
the requirements of law was substantially impaired as a result of mental
disease or defect or of intoxication.”
[3] The trial court stated in its sentencing order, “The defense’s
psychologist, Dr. Gregory Karch, testified regarding the defendant’s
intellectual, emotional, social, and psychological characteristics which
include borderline personality disorder, alcohol dependence, impulsiveness,
immaturity, depression, disassociation, difficulty in decision making,
impaired memory skills, disengagement, impoverishment of self interest and
low intelligence.” The court concluded that “[t]he defendant’s mental and
emotional defects constitute minimal mitigation.”
[4] Section (c)(1) provides for the mitigating factor that “[t]he defendant
has no significant history of prior criminal conduct.” Section (c)(8)
permits the jury or judge to consider “[a]ny other circumstances
appropriate for consideration.”