Attorneys for Appellant Attorneys for Appellee
Monica Foster Steve Carter
Foster & Long- Sharp Attorney General of
Indiana
Indianapolis, Indiana
Robert J. Hill Arthur Thaddeus Perry
Gilroy Kammen & Hill Deputy Attorney General
Indianapolis, Indiana Office of the Attorney
General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 20S03-0312-CR-614
Alex Witmer,
Appellant (Defendant below),
v.
State of Indiana.
Appellees (Plaintiff below).
_________________________________
Appeal from the Elkhart Superior Court, No. 20D01-0111-CF-241
The Honorable Stephen Platt, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 20A03-0208-
CR-281
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December 23, 2003
Shepard, Chief Justice.
It is hard to imagine that in this age two young white men could troll
around town looking for an African-American to kill just so they could say
they had done so. Charged as a capital defendant for his role in the
killing that resulted, appellant Alex Witmer plea-bargained to avoid the
death penalty. The trial court sentenced him to the maximum term of years.
Among other aggravating circumstances, it found that the perpetrators’
racial animus was a grounds for enhancing the sentence. We agree that
racial motivation can be an aggravating circumstance, and we affirm the
sentence.
Statement of Facts
Alex Witmer committed robbery and murder in one two-year period. On
March 25, 1998, sixteen-year-old Witmer pointed a gun at Preston Hall in
Elkhart County during a “drug deal gone bad.” Initially, Hall thought that
Witmer was playing around, but Witmer pointed the rifle at Hall’s throat
and stated, “Give me your damn wallet.” (App. at 53.) Hall complied, and
Witmer took the wallet, which contained money. The State thereafter
charged Witmer with robbery on September 30, 1998, though it did not serve
the warrant until November 1999.
Almost one and a half years after the robbery, Witmer, who had turned
eighteen picked up Jason Powell and drove to the Pierre Moran Mall. Witmer
had a .22 caliber rifle in his car. As they rode about town, Witmer and
Powell discussed shooting an African American to earn a tattoo of a spider
web. Witmer told Powell that one earns the tattoo by killing a black
person. Powell expressed an interest in “earning” the tattoo, and Witmer
“called him on it,” meaning “put up or shut up.” (GPR at 24.)[1]
As they drove around the mall, Witmer and Powell noticed seventeen-
year-old Sasezley Richardson walking through the Sears parking lot. (GPR
at 25.) Neither of them knew Richardson. Powell told Witmer to drive
towards Richardson. Witmer drove close to the victim as Powell picked up
the rifle and began to shoot. Powell fired ten to twelve shots at
Richardson. As they abandoned the scene, Witmer looked into the mirror and
saw the victim fall to the ground. Witmer and Powell drove away, without
rendering any aid. Richardson died from a gunshot wound to the head.[2]
Witmer drove Powell home and then returned to his house. He later
took the rifle used in the shooting to his younger brother, who dismantled
the gun and threw it in the river behind his father’s house.
The State requested the death penalty against Witmer but later agreed
to drop the request in return for a plea of guilty. (GPR at 29.) The
trial court sentenced Witmer to twenty years for robbery and sixty-five
years for murder, to be served consecutively. (App. at 136.) It found
several aggravating circumstances: Witmer’s history of criminal or
delinquent activity,[3] his need for rehabilitative treatment best provided
by commitment to a penal facility, that imposition of a reduced sentence
would depreciate the seriousness of the crime, and the nature and selection
of the victim--including the racial motivation of the perpetrators. It
also found three mitigators: Witmer’s age, his upbringing, and his
psychological conditions.
On appeal, Witmer (1) challenged the “correctional need” and
“depreciate the seriousness” aggravators, (2) claimed there were several
mitigators that should have been found and that the court gave inadequate
weight to some it did find, and (3) contended the resulting sentence was
unreasonable. The Court of Appeals agreed that the “depreciate” finding
was inappropriate, but otherwise rejected Witmer’s claims and affirmed the
sentence. Witmer v. State, No. 20A03-0208-CR-281 (Ind. Ct. App. 2003). We
grant transfer and summarily affirm its resolution of these points. Ind.
Appellate Rule 58(A).
Where a trial court has used an erroneous aggravator, as occurred
here, the court on appeal can nevertheless affirm the sentence if it can
say with confidence that the same sentence is appropriate without it. Day
v. State, 560 N.E.2d 641, 643 (Ind. 1990).
Racial Motivation as an Aggravator
The trial court relied in part on the manifest racism of Witmer’s
acts. As Judge Platt pointed out, Mr. Richardson was “executed because he
[was] black and he [was] there.” (App. at 134.) He said, “[In m]ost
homicide cases the victim and the perpetrator have some relationship. . . .
Mr. Richardson had the incredible tragedy to be behind Pierre Moran mall on
the wrong day at the wrong time. It could have been any other dark skinned
citizen of this community, no matter what race he or she may be. Be they
Hispanic, . . . Pakistan (sic), . . . Indian, or have a good tan from the
State of Florida.” Id.
Although we have never explicitly held that choosing a victim based on
race could be an aggravating circumstance, we have affirmed the notion that
characteristics of the victims can support an enhanced sentence. In Ajabu
v. State, 722 N.E.2d 339 (Ind. 2000), for example, the defendant was
convicted of three murders. We stated that Ajabu’s “brutal method of
killing and the number and ages of the victims” absolutely manifested a
need for correctional treatment “to deal with the heinous conduct and
reckless disregard for human life.” Id. at 343. As in Ajabu, the trial
judge in this case determined that the evidence detailed the extreme
viciousness of the murders.
The sentencing statute’s list of enumerated aggravating circumstances
is not exclusive, of course, and we say without hesitation that racially
motivated crimes are intolerable and may constitute an aggravating
circumstance.
It is a conclusion embraced elsewhere. In Barclay v. State, 343
So.2d 1266 (Fla. 1977), five men picked up a white hitchhiker and took him
to a remote location where Barclay stabbed him repeatedly before shooting
him twice in the head. Barclay later sent tapes to the victim’s mother and
local television stations declaring a race war. He was found guilty, and
the judge sentenced him to death. Id. The U.S. Supreme Court later
granted certiorari and stated, “[t]he United States Constitution does not
prohibit a trial judge from taking into account the elements of racial
hatred in this murder. The judge in this case found Barclay’s desire to
start a race war relevant to several statutory aggravating factors. The
judge’s discussion is neither irrational nor arbitrary.” Barclay v.
Florida, 463 U.S. 939, 949 (1983).[4]
Likewise, in State v. McKnight, 511 N.W.2d 389 (Iowa 1994), the Iowa
Supreme Court determined that racial animus could be a factor without
violating U.S. constitutional rights. In that case, two white males
swerved at and hit the car of a black person, causing him to lose control
of his vehicle. Id. at 390. The white men stopped and began to assault
the black man and scream racial slurs at him. Id. The Iowa Supreme Court
affirmed McKnight’s conviction and upheld the hate crime statute that
enhanced his sentence, rejecting a claim that the enhancement violated
McKnight’s First Amendment rights. Id. at 396-97.
Conclusion
The trial court adequately assessed aggravating and mitigating
factors, described why it considered each to be aggravating or mitigating,
and gave proper weight to each in enhancing on each count and ordering
consecutive terms. Witmer had ample opportunity to try to stop the
senseless murder of Richardson. Instead, he provoked the situation by
encouraging Powell to earn a “spider web tattoo.” Witmer and Powell were
predators who attacked an innocent victim because of bigotry and lack of
respect for human life. Sentence was appropriate.
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] The “GPR” abbreviation is used to reference citation to the transcript
of the guilty plea.
[2] Witmer testified that he knew that Powell was going to shoot someone,
but he was not certain that Powell would actually do it. (Pet. to Transfer
at 2; GPR at 24-25.)
[3] In addition to these events, Witmer had a previous history of
delinquency, including charges for criminal mischief in teen court, three
counts of battery, and possession of a firearm. (App. at 23.)
[4] The Court noted that Florida law prohibits reliance on non-statutory
aggravating circumstances in sentencing a convicted person to death.
Barclay, 463 U.S. at 985. In contrast, Georgia permits a sentencer to rely
on non-statutory aggravating factors as long as one valid aggravator is
identified. Id. at 985 n.17.