Attorneys for Appellant Attorneys for Appellee
Timothy R. Dodd Steve Carter
Evansville, Indiana Attorney General
John P. Brinson Scott A. Kreider
Evansville, Indiana Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
_________________________________
No. 82S00-0104-DP-188
Paul M. McManus,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Vanderburgh Circuit Court, No. 82C01-0102-CF-192
The Honorable Carl A. Heldt, Judge
_________________________________
On Direct Appeal
_________________________________
August 31, 2004
Shepard, Chief Justice.
Paul Michael McManus was convicted of three counts of murder and
sentenced to death. He challenges the constitutionality of Indiana’s death
penalty statute and argues that his conviction is invalid due to
evidentiary errors and his incompetence to stand trial. We affirm the
conviction and sentence.
Facts and Procedural History
On February 26, 2001, Paul McManus murdered his wife and two children.
Prior to the murders, McManus separated from his wife and was arrested for
domestic battery. In the course of the battery, he threatened to kill
“everyone.” During the weeks immediately preceding the murders, McManus
spoke of suicide and killing his family.
On the morning of February 26, 2001, McManus’s wife served him with
divorce papers. That same day, McManus took a taxi to a gun store,
purchased ammunition, and retrieved a handgun from his brother’s house. At
about 7:45 p.m., McManus entered his wife’s house and shot her once in the
leg and three times in the head. He then shot his eight-year-old daughter
three times in the head and his two-year-old daughter once in the head.
Police investigators later retrieved a cassette tape recorded by
McManus. The transcript of the cassette reads in part:
Well, if you're listening to this tape, I guess I've done what I
had to do. I don't expect you guys to understand, but I had to
do it. . . . I want you to make sure that I am buried with my
kids and my wife. No matter what, I want you to make sure that
happens.
Tr. at 701.
On February 27, 2001, the State filed a three-count information
alleging that McManus knowingly killed his wife and two daughters,[1] and
later amended it to request the death penalty.[2] On May 7, 2001, McManus
filed a notice of intent to assert the defense of insanity.
Voir dire commenced on April 24, 2002, and the trial began on April
29th. On the 29th, McManus displayed symptoms of a panic attack, and the
trial court granted him a recess until the following day. The next day,
McManus again became ill and moved for a continuance or mistrial. The
trial court denied his motions, and the State continued to present
evidence. On May 1st, McManus again became ill and renewed his motion for
mistrial. The court continued the trial until May 8th so that a
psychiatrist could examine him.
On May 6th, McManus filed a written motion for mistrial, contending
that the medications as prescribed rendered him incompetent. After hearing
argument, the trial court denied the motion.
On May 9th, the jury returned guilty verdicts on all three counts.
The following day, the jury heard evidence in the penalty phase and
returned a recommendation for death. After a subsequent sentencing
hearing, the trial court found the existence of aggravating circumstances,
found one mitigating circumstance, concluded that the aggravating
circumstances outweighed the mitigating circumstance, and sentenced McManus
to death.
On July 5, 2002, McManus filed a motion to correct errors, contending
that he was incompetent to stand trial. The trial court denied his motion.
McManus now appeals.
I. Constitutionality of the Death Penalty Statute
McManus challenges the constitutionality of the version of Indiana’s
death penalty statute in effect at the time of his sentencing, claiming
that it violates the Sixth and Eighth Amendments to the U.S.
Constitution.[3] A statute is presumed constitutional; a challenger must
rebut this presumption. State v. Lombardo, 738 N.E.2d 653 (Ind. 2000).
A. Sixth Amendment
McManus argues that he was denied his Sixth Amendment right to a jury
trial because the Indiana death penalty statute in effect at the time of
his sentencing was unconstitutional under Apprendi v. New Jersey, 530 U.S.
466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002). Specifically, he
argues that under those cases the jury must find not only the aggravating
circumstances, but must also find the mitigating circumstances and
determine the balance between them. He says the statute is defective
because the jury’s finding is not the final legal event but merely a
prelude to the judicial finding contained in the court’s sentencing order.
Under Indiana’s statute as it read at the time of McManus’s trial, a
jury could recommend death only if it found the existence of at least one
statutory aggravator beyond a reasonable doubt.[4] All of our post-Ring
case law concludes that a defendant whose jury has made such a finding has
received what Ring and Apprendi require. Our re-examination of Apprendi
and Ring provide us with no reason to change that interpretation.[5]
McManus makes a very similar contention about how the weighing of
aggravators and mitigators must occur. We have previously held that “the
determination of the weight to be accorded the aggravating and mitigating
circumstances is not a ‘fact’ which must be proved beyond a reasonable
doubt, but is a balancing process.” Bivins v. State, 642 N.E.2d 928, 946
(Ind. 1994); see also Wisehart v. State, 693 N.E.2d 23, 55 (Ind. 1998).
After examining Apprendi and Ring, we recently re-affirmed the
constitutionality of Indiana’s statute against arguments substantially
similar to those raised by McManus. Ritchie v. State, 809 N.E.2d 258 (Ind.
2004).[6]
B. Eighth Amendment
McManus argues that his Eighth Amendment right to be free from cruel
and unusual punishment was violated because the jury was informed that its
sentencing recommendation was not binding on the trial court and the
sentencing determination therefore lacked the heightened standard of
reliability required in capital cases under Caldwell v. Mississippi, 472
U.S. 320 (1985).
In Caldwell, the prosecutor urged the jury not to view itself as
responsible for determining whether the death penalty was appropriate for
the defendant because the death sentence would be reviewed automatically by
the state’s highest court. The defendant challenged the validity of his
death sentence on the grounds that these statements were inconsistent with
the Eighth Amendment’s need for heightened reliability in a capital case.
The U.S. Supreme Court held that “it is constitutionally impermissible to
rest a death sentence on a determination made by a sentencer who has been
led to believe that the responsibility for determining the appropriateness
of the defendant's death rests elsewhere.” Id. at 328-29. Quoting Justice
Harlan, the Court based its holding on the assumption that “jurors
confronted with the truly awesome responsibility of decreeing death for a
fellow human will act with due regard for the consequences of their
decision . . . .” Id. at 329-30 (quoting McGautha v. California, 402 U.S.
183, 208 (1971)). Belief in the truth of this assumption, the Court said,
is “indispensable to . . . the Eighth Amendment’s need for reliability in
the determination that death is the appropriate punishment in a specific
case.” Id. at 330 (internal quotations omitted).
The Court clarified Caldwell’s holding in Romano v. Oklahoma, 512 U.S.
1 (1994). In Romano, the defendant was found guilty of murder, and during
the subsequent penalty phase, the prosecution introduced evidence of a
previous conviction and death sentence. The defendant argued that the
admission of the prior death sentence undermined the jury’s sense of
responsibility for determining the death penalty in violation of the Eighth
Amendment. The Court noted that Caldwell was a plurality opinion and
because the fifth vote was supplied by Justice O’Connor, who “concurred on
grounds narrower than those put forth by the plurality, her position is
controlling.” Id. at 9.
Accordingly, we have since read Caldwell as relevant only to
certain types of comment – those that mislead the jury as to its
role in the sentencing process in a way that allows the jury to
feel less responsible than it should for the sentencing
decision. Thus, to establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law.
Id. (internal quotations omitted). Consequently, the Court held that
admitting evidence about the prior death sentence did not violate Caldwell
because the evidence was neither false at the time it was admitted nor
pertained to the jury’s role and because the trial court’s instruction
emphasized the importance of the jury’s role. Id.
McManus argues that because the jury was instructed that its
sentencing recommendation was not binding on the trial judge, it had a
diminished sense of responsibility in violation of Caldwell. We dealt with
this exact claim in Wisehart v. State, 693 N.E.2d 23 (Ind. 1998). Citing
Romano, we said:
This Court previously has held that it is not unconstitutional
to instruct the jury that the ultimate sentencing responsibility
rests with the trial judge because such an instruction
accurately reflects the requirements of Indiana law. An Indiana
jury does not impose a sentence, but instead makes a sentencing
recommendation to the judge, who in turn decides what sentence
to impose.
Id. at 53 (citing Lowery v. State, 640 N.E.2d 1031, 1044 (Ind. 1994)); see
also Wrinkles v. State, 690 N.E.2d 1156, 1167 (Ind. 1997) (“It is not error
to inform the jury that its sentencing decision is a recommendation,
because this is a correct statement of Indiana law.”). McManus argues that
Wisehart and Wrinkles cannot control this case because an “advisory jury”
does not satisfy the Sixth Amendment as interpreted in Ring. This argument
cannot survive our holding in the previous section; thus Wisehart and
Wrinkles are still good law.
McManus further argues:
It makes no difference if the reason for the diminished sense of
responsibility is a result of prosecutor’s misrepresentations,
as in Caldwell, or the result of correct jury instructions, as
in Wrinkles and in this case. If the jury’s sense of
responsibility is less than full, the verdict is unreliable and
unconstitutional.
Appellant’s Br. at 16. This argument disregards Romano, however, which
states that “a defendant necessarily must show that the remarks to the
jury improperly described the role assigned to the jury by local law” to
establish a Caldwell violation.[7] Romano, 512 U.S. at 9. In addition, we
note that the jury in this case not only received a correct instruction
but, as in Romano, was impressed with the importance of its role and the
gravity of its decision. The court instructed the jury that: its
recommendation is a an integral part of the death penalty process and the
law requires that the trial judge give it great weight and serious
consideration; the jurors “should assume that if you recommend the death
penalty for Paul M. McManus, he will, in fact, be executed by the State of
Indiana per your decision”; it should not rely on leniency or clemency by
another authority; and if it is their unanimous decision to recommend
death, “each of you must do so with the fixed assumption in your own mind
that the sentence of death will be carried out.” Tr. at 1746-47.
Because Wisehart and Wrinkles correctly interpret Sixth Amendment law
and Eighth Amendment law, they control this case. The jury instruction
correctly described Indiana sentencing procedure as it existed at that time
and thus did not unconstitutionally lead the jury to “feel less responsible
than it should for the sentencing decision.” Romano, 512 U.S. at 9.
II. Testimony of Expert Witness Regarding Mitigation
As a part of trial evidence, the court called Dr. Thomas Liffick as an
expert witness to provide his evaluation of McManus’s sanity at the time of
the offense. McManus contends that the admission of Dr. Liffick’s
testimony is reversible error because it constituted a legal conclusion.
In a videotaped deposition played for the jury, the prosecution
questioned Dr. Liffick in relevant part as follows: “[Prosecution.] As
for the mental depression, the mild mental depression and the not liking to
be alone, do you feel like those in any way mitigate his crime in this
case?” Tr. at 1307-08. McManus objected to the question. The trial court
overruled the objection, and Dr. Liffick responded as follows: “[Dr.
Liffick.] You know, I -- I -- I just don't think that that mild degree of
difficulty in the big picture to any significant degree would excuse these
actions.” Tr. at 1308.
Indiana Evidence Rule 704(b) reads as follows: “Witnesses may not
testify to opinions concerning intent, guilt, or innocence in a criminal
case; the truth or falsity of allegations; whether a witness has testified
truthfully; or legal conclusions.” Dr. Liffick’s testimony was in response
to a question calling for a legal conclusion and inadmissible under Rule
704, and the court should have sustained the objection. Of course, an
error in the admission of evidence is not ground for setting aside a
conviction unless such erroneous admission appears inconsistent with
substantial justice or affects the substantial rights of the parties. Ind.
Trial Rule 61.
Prior to Dr. Liffick, the court called Dr. David Hilton to examine
McManus and evaluate his sanity at the time of the offense. Dr. Hilton
testified as follows:
[W]hen we reviewed the actual symptoms he was experiencing, they
didn't seem to meet the necessary criteria to call it a major
depression. It was most consistent with what I would consider
an adjustment disorder. He was going through a difficult time.
He had an impending divorce. He was under a lot of stress.
Adjustment disorders generally are not felt to be severe enough
to affect a person's perception to the point of justifying an
insanity defense. He also gave a long-standing history of
chronic low-grade depression. He basically had described
himself as being depressed to some degree all of his adult life,
and that is generally felt to be consistent with a disorder
called Dysthymic Disorder or Dysthymia. Again, that's not a
disorder that affects a person's perception to the point that
they would not be able to appreciate the wrongfulness of his or
her actions.
Tr. at 1079-80. Dr. Hilton did not attempt to offer a legal conclusion.
Both doctors shared the same medical opinion after evaluating McManus, and
neither doctor stated that McManus’s condition mitigated his crime.
The likelihood that this question and the reply weighed for much in
the jury’s deliberations is minimal. We find the error harmless.
III. Administration of Medicines
Counsel for McManus have wisely focused most of their attention on
questions relating to his fitness to stand trial. We have likewise given
these claims careful attention. During McManus’s pretrial incarceration,
he was on a fourteen-month-long regimen of Elavil, an anti-depressant drug.
On April 17, 2002, his anti-depressant was changed to Effexor. Seven days
later, jury selection began. On April 29th, the first day of the trial,
McManus reported symptoms of a panic attack requiring repeated visits to
the hospital and doses of Lortab, Xanax, Versed, and morphine. The court
ordered a week’s continuance.
McManus contends (1) that the trial court erred by denying his motion
for mistrial because the change in his anti-depressant and the subsequent
administration of various drugs rendered him incompetent, (2) that the
State was obligated to disclose exculpatory evidence about the medications,
and (3) that the trial court erred in refusing to admit a news article
discussing jurors’ impressions of his demeanor during trial. We address
these contentions in turn.
A. Motion for Mistrial Due to Incompetency
During the course of the trial, McManus moved for a mistrial on
numerous occasions, arguing that the various drugs, as administered,
rendered him incompetent. On May 7, 2002, the trial court held a hearing
on McManus’s written verified motion for mistrial. It denied McManus’s
written motion and all oral motions. On appeal, McManus contends that the
trial court erred in denying his motions because he was incompetent to
stand trial.[8]
On appeal, the trial judge’s discretion in determining whether to
grant a mistrial is afforded great deference because the judge is in the
best position to gauge the surrounding circumstances of an event and its
impact on the jury. We therefore review the trial court’s decision solely
for abuse of discretion. After all, “a mistrial is an extreme remedy that
is only justified when other remedial measures are insufficient to rectify
the situation.” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)
(citations and quotation marks omitted).
Generally, “alleged errors in determination of competency are subject
to the usual rules of appellate review, and are waived if the defendant
proceeds to trial without objection.” Budd v. State, 499 N.E.2d 1116, 1118
(Ind. 1986). Even though McManus did not raise competency as an issue
before his trial, his motion for mistrial was properly before the trial
court because his alleged incompetency did not occur until after the trial
commenced. We therefore review the trial court’s determination that
McManus was competent to stand trial and the denial of his motion for
mistrial.
“To be competent at trial, a defendant must be able to understand the
nature of the proceedings and be able to assist in the preparation of his
defense.” Timberlake v. State, 753 N.E.2d 591, 598 (Ind. 2001). We have
defined this standard as “whether or not the defendant currently possesses
the ability to consult rationally with counsel and factually comprehend the
proceedings against him or her.” Brewer v. State, 646 N.E.2d 1382, 1384
(Ind. 1995). “The trial and conviction of one without adequate competence
is a denial of federal due process and a denial of a state statutory right
as well.” Id.
The trial court as trier of fact is vested with discretion to
determine if reasonable grounds exist for believing a defendant
is competent to stand trial, and on appeal a determination by
the trial court of the issue is viewed from a deferential
perspective. Where the evidence is in conflict, we will
normally only reverse this decision if it was clearly erroneous,
unsupported by the facts and circumstances before the court and
the reasonable conclusions that can be drawn therefrom.
Id. (citation omitted).
On the first day of trial, McManus suffered pain and symptoms of a
panic attack and was transported to the hospital for treatment. On the
following day, McManus again complained of pain and anxiety and was
transported to the hospital, during the lunch break, where he was given
Versed to calm him down, morphine for pain, and Xanax for anxiety. Before
releasing him to jail personnel, Dr. Reza Mohammadi, an emergency room
physician, prescribed McManus Lortab and Xanax and reported that “this man
– I could not talk with him when he was in such a state of anxiety. I
mean, he was – you could – you could not get any information on – from him
nor could you carry on a conversation with him being so anxious.” Tr. at
815. The trial court then questioned Dr. Mohammadi as follows:
[Court.] Now, let me ask you first about the medication you
gave him today. Can that medication be what I would call mind
altering or affect a person's mental processes?
[Doctor.] Absolutely.
[Court.] And to what extent and in what respect?
[Doctor.] Well, again, it's a broad range. Unfortunately, I
cannot specifically say in one way or another, but – for
example, if the medicine is given to someone who's not having
any problems like this gentleman, it would probably put you to
sleep and you will not be able to interact, period, but when
someone is as anxious as this gentleman was, it probably would
bring him down to a level that he can actually communicate, and
– so I would not – for example, with – just to give you an idea,
with people whom we prescribe this type of medicine on, we
instruct them not to drive for – within four to six hours and –
because we believe it does alter their decision making and so on
and so forth.
[Court.] Would he be able to think rationally?
[Doctor.] I think – I think he can think rationally now as
opposed to when he was so anxious, yes.
[Court.] But the medications you gave him today, would it
prevent him from thinking rationally?
[Doctor.] I would say that he would – it would alter the way he
would perceive things. Now, in the spectrum of what we are
dealing with today, I would say that he would be thinking more
rationally now than he was when he was so anxious, if that
answers your question.
[Court.] Yes. And how about the medications that you
prescribed for him, the Xanax and the Lortab, how would they
affect his mind and his judgment?
[Doctor.] I believe he can – he can make judgments in – if he
was given enough time to make the judgment at, and again, it's a
decision that if, in fact, this man is not – if his condition is
not controlled, he would not be able – in the state of mind he
presented today, he would not be able to answer any questions
rationally, period, and now that he’s on medicine, he may be –
in my view, he can possibly now proceed and give some rational
answers, but these medicines do alter – alter people's judgment
in the vast majority of people, yes, they do.
Tr. at 816-17. On cross examination, the State questioned Dr. Mohammadi as
follows:
[Prosecutor.] [I]f he were in the courtroom, would he realize
that he was sitting next to his two attorneys? He'd realize
those were his attorneys?
[Doctor.] I believe so, yes.
[Prosecutor.] And he would know that we're the prosecution?
[Doctor.] If so advised, yes.
[Prosecutor.] Yeah. And he would know that we're trying to
find him – have him found guilty, and he'd know they're trying
to help him be found not guilty?
[Doctor.] I believe so.
[Prosecutor.] Now, after you administered the medication to
him, did you notice a difference in his demeanor?
[Doctor.] Yes.
[Prosecutor.] And it was what?
[Doctor.] He was calm and forthcoming with more information.
Tr. at 820. Following this testimony, McManus moved for a continuance or a
mistrial. The trial court denied both motions and continued with the
trial. Before recessing for the day, the State called ten more witnesses
to the stand. Tr. at 839-977. That evening, McManus was once again
transported to the hospital for treatment.
During the morning of May 1st, jail personnel administered two
pertinent medications to McManus, Effexor and Xanax. Tracy Sander, the
jail nurse, testified that these drugs would make a person very drowsy, but
are routinely prescribed. Tr. at 988. Sanders also testified that she was
able to communicate with McManus. McManus then renewed his motion for a
mistrial. McManus’s counsel added that McManus was nauseous and
lightheaded. Tr. at 989. The trial court denied the motion, finding no
evidence suggesting that McManus was unable to assist in his defense or
participate in the trial. Tr. at 990.
As the fourth witness of the day began to testify, McManus requested a
recess and complained of similar symptoms. During the recess, the trial
court questioned Ken Mitz of the Vanderburgh County Sheriff’s Department
regarding McManus’s condition. Mitz reported that McManus was in the
infirmary and hyperventilating. Tr. at 1059-60. The jail nurse
administered a shot to McManus to ease his breathing, rendering him
incapacitated for several hours. After brief argument, the trial court
ordered a continuance of one week.
On May 2, 2002, Dr. Willard Whitehead changed McManus’s medication
regimen. On May 7th, the trial court held a hearing on McManus’s verified
motion for mistrial. As of that date, McManus was taking one milligram of
Xanax three times a day, forty milligrams of Popranolol three times a day,
and the antidepressant Remeron. The court called Dr. Whitehead, a
psychiatrist. He examined McManus on May 2nd and May 7th. The trial
court’s direct examination of Dr. Whitehead proceeded in relevant part as
follows:
[Court.] Well, if he is having hyperventilation episodes, do
you think that the – that the treatment regimen that he is on,
including the drugs that he is being – that are being
administered to him are going as far as you could possibly go at
this point to get him ready to sit through the trial?
. . .
[Psychiatrist.] Well, if you look at treatment for anxiety dis-
– anxiety problems or hyperventilation – actually, we got off
the Internet a thing on managing hyperventilation. That's
something as a psychiatrist I've never seen before. I called
some emergency – an emergency room doctor and talked with him
about what it looked like. The only way to confirm what it is,
apparently, is to check an arterial blood gas, which I don't
think we could do here very well, but we got some stuff off the
Internet on managing it, and one thing they said to use was a
benzodiazepine like Xanax. Xanax is quick. It's effective.
Much more often than not you would expect it to work. You
wouldn't want to give someone so much that they would become
intoxicated with it. When you get into a problem with Mr.
McManus, I asked to have him checked for intoxication – and this
is the only copy we have of this – but they had a Matt Hill, who
is an investigator who is apparently trained in working with
intoxication, examine him and he thought that Mr. McManus was
not cooperating and trying to skew the findings of the
evaluation towards looking intoxicated.
. . .
[Court.] The next question is, if this trial is terminated and
we try him again a month from now or two months from now, is
there any reason to believe that his situation would be any
different then?
. . .
[Psychiatrist.] If it is an anxiety situation related to this
stressor and, like he says, he wants to get this taken care of
and over with, and on medication, there's a chance he would do
better. In fact, that – that could happen by tomorrow. . . .
You have two different treatment strategies on board. Now, you
have the Xanax, which is relatively fast acting. You're doing a
little bit of a tightrope between intoxicating and
undertreating. You want to get the right level, but that should
be doable pretty rapidly. Unfortunately, it's hard to tell if
you're intoxicating him because of his strange findings on
examination. You also have a medicine called Propranolol or
Inderal going which blocks adrenaline. Again, that's fast
acting.
. . .
It blocks adrenaline, so if you start to get afraid, the
adrenaline goes out there and just -- your body stays pretty
cool. So he's on that, too. That's another one that could be
increased and -- in fact, he's on 40 milligrams three times a
day now. His blood pressure looks good, so you could increase
that to be more aggressive with his treatment. I would say
right now, the Xanax is equivocal because of the findings on his
neurological exam. If you wanted to increase anything right now
that might work quickly, it would be the Propranolol to block
the fright response.
Mistrial Hearing Tr. at 12-14, 16-18. Dr. Whitehead also indicated that
McManus was being uncooperative.
At the conclusion of the hearing, the trial court held as follows:
Okay. I'm going to deny the motion. I'm convinced that it's
either self-induced, or if not self-induced, it's something
that's caused by this trial. I think these -- this -- these
doctors are giving him the optimum treatment he can get. I'm
convinced that we're not going to face any better situation the
next time than what we're facing right now and I believe we can
get through this trial in a proper fashion and that's what I
want to do.
Mistrial Hearing Tr. at 69. Following the denial of McManus’s motion, the
trial proceeded to its conclusion without incident. At the hearing on
McManus’s motion to correct error, Dr. Roger Maickel, an expert in forensic
toxicology and pharmacology, testified that the drugs administered to
McManus may impair functional cognitive skills. Dr. Maickel based his
opinions on medical records.
It is apparent that the trial court based its decision on continual
reports from medical professionals who maintained contact with McManus
throughout the trial. While the testimony was often equivocal, the
consensus of the witnesses was that the medications assisted McManus in
participating in his trial. Without the medications, McManus proved to be
unable to cope with the stress of the proceeding. McManus’s situation is
markedly different from the defendant who requires medication to attain
competence so that the trial can begin. Before trial, McManus was
competent and participated in preparing his case. The administration of
medication appeared to manage a sudden onset of stress, rather than to
medicate a diagnosed psychosis. Reliance on psychotropic drugs during
trial is obviously to be approached with great care, and competency
hearings to evaluate the effects on a defendant’s ability to appropriately
participate in his or her defense are very important. In the case at bar,
we cannot say that the trial court’s competency determination was clearly
erroneous and therefore affirm the denial of McManus’s motion for mistrial.
B. State’s Failure to Disclose Exculpatory Evidence
McManus next contends that the State failed to disclose exculpatory
evidence of the various drugs administered to him in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Under Brady, “the suppression by the
prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Id. at
87. The transcript and record are replete, however, with references to
every drug administered to McManus. Indeed, McManus moved the trial court
for continuances and mistrial arguing incompetence due to improper
administration of medication and proffered extensive evidence relating to
McManus’s medications. At moments when it mattered, evidence about
McManus’s medication was laid out for all to see.
C. Newspaper Article Impeaching the Verdict
At the sentencing hearing, McManus tendered a news article purporting
to relate jurors’ perceptions of McManus during the trial. He contends
that the trial court erred by excluding the exhibit.
“The trial court has inherent discretionary power on the admission of
evidence, and its decisions are reviewed only for an abuse of that
discretion.” Jones v. State, 780 N.E.2d 373, 376 (Ind. 2002). Indiana’s
Evidence Rule 606(b) reads as follows:
Upon an inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect
of anything upon that or any other juror's mind or emotions as
influencing the juror to assent to or dissent from the verdict
or indictment or concerning the juror's mental processes in
connection therewith, except that a juror may testify
(1) to drug or alcohol use by any juror,
(2) on the question of whether extraneous prejudicial
information was improperly brought to the jury's attention or
(3) whether any outside influence was improperly brought to
bear upon any juror.
A juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded
from testifying may not be received for these purposes.
McManus does not argue any of the three exceptions. He contends only that
the defense was unaware of the medications administered to him and was
therefore unable to account for his cool demeanor. This was not a ground
for permitting impeachment of the verdict.
IV. Appropriateness of the Sentence
Because the trial court imposed the death penalty, we review the
appropriateness of the sentence. The Indiana Constitution provides that
“the Supreme Court shall have, in all appeals of criminal cases, the power
to review and revise the sentence imposed.” Ind. Const. art. VII, § 4.
“The Court may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 7(B). In a death penalty
case, a court may consider only those statutory aggravators that have been
charged by the State and found by the jury. In this instance, those are
committing multiple murders and murdering a person under the age of twelve.
Ind. Code § 35-50-2-9(b)(8) and (12).
McManus does not contest that the aggravating circumstances were
proven beyond a reasonable doubt. He acknowledges that the first
aggravator, commission of multiple murders, was proven at the guilt stage
when the jury returned guilty verdicts on all three counts of murder.
Appellant’s Br. at 18. On the night of the murder, McManus admitted to his
sister, his mother, and finally the police that he killed his wife and two
children. At trial defense counsel acknowledged that McManus had killed
his family but asserted an insanity defense. The two court-appointed
psychiatrists testified that McManus was not legally insane at the time of
the murders. The defense’s psychiatrist testified that McManus suffered a
psychotic break rendering him unable to control his actions while he was at
his wife’s home. There was substantial evidence, however, that McManus
went to his wife’s home with the intention of killing his family.
McManus further acknowledges that the evidence of the second
aggravator, murder of a person under the age of twelve, was “overwhelming
and uncontradicted.” Appellant’s Br. at 18. Defense counsel informed the
jury at trial that Lindsey was born December 31, 1992, and Shelby was born
March 20, 1999.
As for mitigating circumstances, the defense focused on McManus’s
capacity to appreciate the criminality of his actions and conform his
conduct to the requirements of law and his emotional disturbance. The
defense argued that his low I.Q., depression and attention deficit disorder
contributed to poor problem-solving abilities, poor internal controls and
poor social learning. Tr. 1694-95. The defense also argued that the
stressors in McManus’s life, including overwork, financial strains, his
disabled child, and impending divorce, combined with these factors, leading
him to see only one way out. Id. at 1696. In addition, the defense noted
McManus’s lack of a significant criminal history. Finally, the defense
argued that the medication administered to McManus affected his demeanor,
which may have had a negative impact on the jury and thus should be
considered as a mitigating factor.
After finding that the State had proven the aggravating circumstances
beyond a reasonable doubt, the trial judge considered each of the statutory
mitigating circumstances. He found that McManus “was suffering from some
form of depression and other mental abnormalities when these murders were
committed” that was a mitigating circumstance that “should be given some
weight.” Tr. of Sent. Hr. at 21-22. Based on McManus’s actions and
statements before and after the crime, however, the court found that these
disturbances did not substantially impair “his capacity to appreciate the
criminality of his conduct or to conform that conduct to the requirements
of law.” Id. at 22-23. With regards to McManus’s criminal history, the
court found that although the record was not “lengthy,” it was significant
in that it included a conviction for battery against one of the victims,
Melissa McManus, and therefore was not a mitigating circumstance. Id. at
21. Finally, the court explored whether there were any other mitigating
circumstances appropriate for consideration and found that none existed.
Id. at 23. The court concluded that the aggravating circumstances
outweighed the mitigating circumstances and, giving “great weight and
consideration” to the jury’s recommendation and finding that it was both
reasonable and appropriate, sentenced McManus to death.
We have usually regarded multiple murder as constituting weighty
aggravation, and surely the weight of killing two small children is
substantial. The weight of the proffered mitigation is moderate at most.
We agree with the trial court’s analysis and find that the aggravators were
proven beyond a reasonable doubt and that they outweigh the mitigating
circumstances. The sentence was an appropriate one.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] See Ind. Code § 35-42-1-1(1).
[2] See Ind. Code § 35-50-2-9.
[3] Indiana Code § 35-50-2-9. A new version of Indiana Code § 35-50-2-9(e)
became effective July 1, 2003.
[4] Indiana Code § 35-50-2-9(k) (repealed effective July 1, 2003) states:
Before a sentence may be imposed under this section, the jury,
in a proceeding under subsection (e), or the court, in a
proceeding under subsection (g), must find that:
1) the state has proved beyond a reasonable doubt that at
least one (1) of the aggravating circumstances listed in
subsection (b) exists; and
2) any mitigating circumstances that exist are outweighed by
the aggravating circumstance or circumstances.
[5] See, e.g., Ritchie v. State, 809 N.E.2d 258 (Ind. 2004); State v.
Barker, 809 N.E.2d 312 (Ind. 2004); State v. Ben-Yisrayl, 809 N.E.2d 309
(Ind. 2004); Williams v. State, 793 N.E.2d 1019 (Ind. 2003); Brown v.
State, 783 N.E.2d 1121 (Ind. 2003); Wrinkles v. State, 776 N.E.2d 905 (Ind.
2002).
[6] We said in Ritchie that “the pivotal inquiry under Ring and Apprendi is
whether exposure to punishment is increased, not whether the punishment
should or should not be imposed in a given case.” 809 N.E.2d at 265.
Consequently, we held: “Once a statutory aggravator is found by a jury
beyond a reasonable doubt, the Sixth Amendment as interpreted in Ring and
Apprendi is satisfied. . . . The outcome of the weighing does not increase
eligibility. Rather, it fixes the punishment within the eligible range.
It is therefore not required to be found by a jury under a reasonable doubt
standard.” Id. at 268. See also, Apprendi, 530 U.S. at 481 (emphasis in
original) (“We should be clear that nothing in this history suggests that
it is impermissible for judges to exercise discretion – taking into
consideration various factors relating both to offense and offender – in
imposing a judgment within the range prescribed by statute.”); Ring, 536
U.S. at 605 n.5 (quoting Harris v. United States, 536 U.S. 545 (2002)
(alteration in original) (“The factual finding in Apprendi extended the
power of the judge, allowing him or her to impose a punishment exceeding
what was authorized by the jury. [A] finding [that triggers a mandatory
minimum sentence] restrains the judge's power, limiting his or her choices
within the authorized range. It is quite consistent to maintain that the
former type of fact must be submitted to the jury while the latter need not
be.”).
[7] Despite McManus’s invocation of Caldwell, his argument is more similar
to one addressed in our recent opinion in Clark v. State, 808 N.E.2d 1183
(Ind. 2004). In Clark we noted that the claim was not that the jury was
incorrectly instructed in violation of Caldwell, but rather “boil[ed] down
to a claim that the pre-2002 version of the Indiana Death Penalty Statute
was inherently defective because the jury did not consider its
determination to be binding on the judge.” Id. at 1196. We rejected this
argument, however, holding that there was “no authority for the proposition
that a nonbinding recommendation is inherently unconstitutional.” Id.
[8] Indiana Code § 35-36-3-1 provides:
(a) If at any time before the final submission of any criminal
case to the court or the jury trying the case, the court has
reasonable grounds for believing that the defendant lacks the
ability to understand the proceedings and assist in the
preparation of his defense, the court shall immediately fix a
time for a hearing to determine whether the defendant has that
ability. The court shall appoint two (2) or three (3)
competent, disinterested psychiatrists, psychologists endorsed
by the Indiana state board of examiners in psychology as health
service providers in psychology, or physicians, at least one (1)
of whom must be a psychiatrist, who shall examine the defendant
and testify at the hearing as to whether the defendant can
understand the proceedings and assist in the preparation of the
defendant' s defense.
(b) At the hearing, other evidence relevant to whether the
defendant has the ability to understand the proceedings and
assist in the preparation of the defendant's defense may be
introduced. If the court finds that the defendant has the
ability to understand the proceedings and assist in the
preparation of the defendant's defense, the trial shall proceed.
If the court finds that the defendant lacks this ability, it
shall delay or continue the trial and order the defendant
committed to the division of mental health and addiction, to be
confined by the division in an appropriate psychiatric
institution.