Attorneys for Appellant Attorneys for Appellee
Steve Carter Monica Foster
Attorney General of Indiana Foster & Long-Sharp
Stephen R. Creason Brent Westerfeld
Deputy Attorney General Indianapolis,
Indiana
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S00-0308-DP-392
State of Indiana,
Appellant (Plaintiff below),
v.
Charles E. Barker,
Appellee (Defendant below).
_________________________________
Interlocutory Appeal from the Marion Superior Court, No. 49G05-9308-CF-
95544
The Honorable Grant W. Hawkins, Judge
_________________________________
May 25, 2004
Dickson, Justice.
This is an interlocutory appeal of a trial court order dismissing the
State's request for the death penalty and ordering a sentencing proceeding
where a term of years is the only option. We reverse and remand for
reinstatement of the death penalty request.
The defendant, Charles E. Barker, was convicted of two counts of
murder and one count each of kidnapping, confinement, burglary, and
carrying a handgun without a license. The jury recommended and the trial
court imposed the death penalty. Because the penalty phase jury was not
instructed on the possibility of life without parole, as required by
statute, we reversed and remanded for a new penalty phase proceeding.
Barker v. State, 695 N.E.2d 925 (Ind. 1998). On remand, the defendant
successfully moved to dismiss the death penalty request on grounds that
Indiana's death penalty statute was facially unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). We reversed and again remanded for the new penalty phase
proceeding. State v. Barker, 768 N.E.2d 425 (Ind. 2002). The new
proceedings would be governed by the 2002 amendment to the Indiana death
penalty/life without parole statute, which applies to defendants sentenced
after June 30, 2002. Ind. Code § 35-50-2-9(e).
The defendant again moved to dismiss the death penalty request upon
grounds not previously asserted. The trial court granted the motion,
concluding that Indiana's amended death penalty statute is
unconstitutional, dismissing the death penalty request, and directing that
this cause be scheduled for a sentencing proceeding where a term of years
is the only available option. Upon the State's request, the trial court
certified its order for interlocutory appeal. Because the Court of Appeals
has jurisdiction over interlocutory appeals, Ind. App. R. 14(B)(1), we
granted the State's petition to transfer before consideration by the Court
of Appeals, App. R. 56(A), and we accepted appellate jurisdiction over the
interlocutory appeal. App. R. 14(B)(1).
1. "Weighing" Not a "Fact"
The procedures to be followed in cases where the State seeks the death
penalty or life imprisonment without parole cases are specified in Indiana
Code § 35-50-2-9, which provides in relevant part as follows:
(e) . . . the jury shall recommend to the court whether the
death penalty or life imprisonment without parole, or neither, should
be imposed. The jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the
jury reaches a sentencing recommendation, the court shall sentence the
defendant accordingly. . . .
. . .
(l) 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.
Ind. Code § 35-50-2-9.
In its interlocutory appeal of the trial court order, the State
contends that the trial court erred in concluding that, because it does not
require a penalty phase jury to find that mitigating circumstances outweigh
aggravating circumstances beyond a reasonable doubt, the Indiana death
penalty statute was unconstitutional. The State's appeal argues that
weighing is not a "fact" that requires proof beyond reasonable doubt under
Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002). It also urges that the Ring requirement for a jury to find beyond
a reasonable doubt any fact that makes a murder defendant eligible for the
death penalty applies only to aggravating circumstances under the Indiana
scheme. The State argues that it is these circumstances, not the
"outweighing" factor, that determine a murder defendant's eligibility to be
considered for the death sentence.
In response, the defendant argues that under the Ring/Apprendi rule,
the focus must be on the effect of the factor on sentencing. Where any
factor is required to support a sentence higher than that authorized by the
guilty-phase jury's verdict, the defendant asserts, that factor is
equivalent to an element that must be proven beyond a reasonable doubt. He
urges that, because the imposition of a death sentence in Indiana requires
the penalty phase jury to find that "any mitigating circumstances that
exist are outweighed by the aggravating circumstance or circumstances,"
Ind. Code § 35-50-2-9(l), the Ring/Apprendi rule mandates that such
"weighing" factor be proven beyond a reasonable doubt.
After briefing was completed in this case, this Court addressed the
same question in Ritchie v. State, ___ N.E.2d ___ (Ind. 2004). There we
held that "[n]either federal constitutional doctrine under Apprendi and
Ring nor Indiana state jurisprudence leads to the requirement that weighing
be done under a reasonable doubt standard." Id. at ___ (slip op. at 8).
After a careful evaluation of substantially the same arguments and a review
of decisions from other jurisdictions, we concluded that "the Indiana Death
Penalty Statute does not violate the Sixth Amendment as interpreted by
Apprendi and Ring. Once a statutory aggravator is found by a jury beyond a
reasonable doubt, the Sixth Amendment as interpreted in Ring and Apprendi
is satisfied." Id. at ___ (slip op. at 10).
Because there is no constitutional requirement that the weighing
factor be found beyond a reasonable doubt, the omission of such a
requirement in the Indiana death penalty statute does not violate the
constitution. The trial court erred in its conclusion to the contrary.
2. The "Hung Jury" Provision
The defendant also contends that the trial court order finding the
death penalty statute unconstitutional should be affirmed on various
alternative grounds, one of which is that the statute unconstitutionally
permits a death sentence to be imposed by a judge alone in cases where the
jury cannot reach a sentencing decision. Ind. Code § 35-50-2-9(f)
(hereafter "Subsection 9(f)").[1] He argues that this provision violates
Ring, that it renders the entire death penalty statute unconstitutional,
and that the Court has no power to sever the provision.
Barker's procedural history does not include a hung jury. As
explained supra, the defendant's penalty phase jury unanimously recommended
a sentence of death, but due to instruction error, we reversed and remanded
for a new penalty phase procedure. The issue now presented is the validity
not of his previous penalty phase jury determination but of the procedure
that would govern his retrial.
The State's written argument to the trial court includes the
following: "The State concedes that the procedure set forth in IC 35-50-2-
9(f), if it were followed by a trial court in sentencing a defendant to
death (or to life without parole), would be in violation of Ring."
Appellant's Appendix at 142. We decline to accept the concession. As
noted in Ritchie, the federal constitution requires aggravating
circumstances to be determined by a jury beyond a reasonable doubt, but "it
does not require the weighing, whether by judge or jury, to be under a
reasonable doubt standard." ___ N.E.2d at ___ (Slip op. at 8). The
statute now requires the trial court to "provide a special verdict form for
each aggravating circumstance alleged." Ind. Code § 35-50-2-9(d). It is
thus conceivable that a penalty phase jury could return a verdict finding
one or more aggravators proven beyond a reasonable doubt, but be unable to
reach unanimous agreement on whether any mitigating circumstances are
outweighed by the aggravating circumstances.[2] Where a jury is thus
unanimous in finding one or more aggravating circumstances proven beyond a
reasonable doubt but unable to agree on a sentence recommendation,
Subsection 9(f) applies to instruct that the court shall "discharge the
jury and proceed as if the hearing had been to the court alone." In this
event the trial court shall, based upon the evidence presented to the
penalty phase jury, impose a sentence of death or life without parole upon
a full and proper analysis and sentencing statement, see Harrison v. State,
644 N.E.2d 1243, 1261-1262 (Ind. 1995), or it may impose a term of years.
In the event a penalty phase jury is unable to reach a unanimous
decision as to the existence of aggravating circumstances, however, Ring
and Apprendi would prohibit the trial judge from proceeding under
Subsection 9(f) and a new penalty phase trial would be required. Bostick
v. State, 773 N.E.2d 266, 273-74 (Ind. 2002). We are not persuaded that a
penalty phase retrial under these circumstances should be treated any
differently than a hung jury in an ordinary guilty phase trial: a mistrial
should be declared and the case submitted to a new jury. See State v.
McMillan, 409 N.E.2d 612 (Ind. 1980); Hinton v. State, 397 N.E.2d 282 (Ind.
1979); Harlan v. State, 190 Ind. 322, 130 N.E. 413 (1921).
We additionally observe, however, that even if Subsection 9(f) were
unconstitutional as Barker alleges, it could be severed without impairing
the validity of the remainder of the statute. The trial court correctly
noted that the hung jury provision of the statute could be subtracted
without invalidating the entire statute, citing Brady v. State, 575 N.E.2d
981, 988-89 (Ind. 1991). Appellant's Appendix at 216.[3] We applied this
procedure in Bostick, 773 N.E.2d at 273-74, where a jury was unable to
reach a unanimous determination finding the qualifying aggravating
circumstances beyond a reasonable doubt, and the trial judge then imposed a
sentence under the hung jury provision of Subsection 9(f).[4] Applying
Apprendi and Ring, we vacated the trial court's sentence and remanded for a
new sentencing proceeding.
As noted in Brownsburg Area Patrons v. Baldwin, 714 N.E.2d 135, 141
(Ind. 1999), this Court has an overriding obligation to construe our
statutes in such a way as to render them constitutional if reasonably
possible. "If a statute can be construed to support its constitutionality,
such construction must be adopted." Burris v. State, 642 N.E.2d 961, 968
(Ind. 1994). As noted in State v. Monfort, 723 N.E.2d 407, 415 (Ind. 2000)
and In re Public Law No. 154-1990, 561 N.E.2d 791, 793 (Ind. 1990), this
Court has adopted the test for severability used in Dorchy v. Kansas, 264
U.S. 286, 289-90, 44 S.Ct. 323, 324, 68 L.Ed. 686, 689-90 (1924) (internal
citations omitted):
A statute bad in part is not necessarily void in its entirety.
Provisions within the legislative power may stand if separable from
the bad. But a provision, inherently unobjectionable, cannot be
deemed separable unless it appears both that, standing alone, legal
effect can be given to it and that the legislature intended the
provision to stand, in case others
included in the act and held bad should fall.
The key question is whether the legislature "would have passed the statute
had it been presented without the invalid features." State v. Kuebel, 241
Ind. 268, 278, 172 N.E.2d 45, 50 (1961).
The text of subsection 9(f) has long been a part of the Indiana
statute governing sentences of death and life imprisonment without parole.
Before the 2002 amendment, the statute provided that the jury would make a
sentencing recommendation, but the trial court was assigned the
responsibility for determining the sentence, and it was not bound by the
jury's recommendation. Subsection 9(f) provided that, in the absence of a
unanimous decision of the sentencing jury, the trial judge would proceed to
determine the sentence without the jury's recommendation. The 2002
amendment shifted the final sentencing decision to the jury, stating: "If
the jury reaches a sentencing recommendation, the court shall sentence the
defendant accordingly." Ind. Code § 35-50-2-9(e). Even though the
amendment assigned the jury the primary responsibility for the sentencing
decision, it did not delete subsection 9(f) from the statute. If
subsection 9(f) were to be judicially severed, we are convinced that the
legislature fully intended the remainder of the Indiana death penalty/life
without parole statute to stand because its absence would not impair the
operation of the remainder of the statute. We maintain, however, that
subsection 9(f) should not be stricken at all. As discussed above, we
reject Barker's constitutional challenge to subsection 9(f).
We hold that Subsection 9(f) is not unconstitutional as written, but
that it may not be constitutionally applied to permit a judge to impose a
sentence where a jury has been unable to decide whether the aggravating
circumstance or circumstances have been proven beyond a reasonable doubt.
This does not impede the State's request for the death penalty in Barker's
case.
3. "Recommend" and Special Verdict Language in Statute
The defendant also contends that the amended Indiana death penalty
statute is unconstitutional because it "systematically diminishes the
jury's sense of responsibility." Br. of Appellee at 25. He argues that
the statute contains several references to the jury's duty as making a
"recommendation" but that "nowhere does it state or suggest the jury's role
is anything other than advisory." Br. of Appellee at 30. We reject this
argument.
Although the 2002 amendment did not alter the prior statute's use of
the word "recommend," subsection 9(e) as amended now explicitly states: "If
the jury reaches a sentencing recommendation, the court shall sentence the
defendant accordingly." Ind. Code § 35-50-2-9(e). Under the statute, "there
is only one sentencing determination, which is done by the jury." Stroud,
___ N.E.2d at ___ (slip op. at 15). "The judge must apply the jury's
determination." Id. We assume that jury instructions will make this clear
to the jury during the new penalty phase proceedings.
The defendant also expresses concern that the provision calling for
the jury to receive a special verdict form, Ind. Code § 35-50-2-9(d), leads
to the conclusion that "the court remains free to sentence to death where a
jury finds statutory aggravation even if it unanimously recommends a
sentence less than death." Br. of Appellee at 38. As discussed above in
Part 2, a judge may determine the sentence under Subsection 9(f) if a
penalty phase jury unanimously finds one or more aggravating circumstances
proven beyond a reasonable doubt. Where a jury finds aggravating
circumstances but decides against the death penalty (or against life
imprisonment without parole), however, we conclude that with its 2002
amendment to Subsection 9(e) requiring the court to sentence a defendant
"accordingly," the legislature did not intend to permit a trial court to
order a penalty expressly rejected by the jury. The amendment did more
than add the following language to Subsection 9(e): "If the jury reaches a
sentencing recommendation, the court shall sentence the defendant
accordingly." Acts 2002, Public Law 117, Section 2. It also deleted prior
language providing that "[t]he court shall make the final determination of
the sentence, after considering the jury's recommendation . . . . The court
is not bound by the jury's recommendation." Id. We therefore hold that
once a penalty phase jury reaches a recommendation against the death
penalty (or life imprisonment without parole), a trial court may not
thereafter enter judgment providing for a greater sentence.[5]
4. Ex Post Facto
The defendant contends that the trial court's finding of
unconstitutionality may be supported for the alternative reason that
application of the amended death penalty statute violates the prohibition
on ex post facto laws. The murder for which Barker awaits sentencing was
committed in August of 1993, and the statute as amended in 2002 applies to
all sentencing hearings held after June 30, 2002.
In recent cases, this Court has addressed this issue and determined
that application of the Indiana death/life without parole statute as
amended in 2002 to prior murders involving sentencing after June 30, 2002,
does not violate constitutional provisions prohibiting ex post facto laws.
Helsley v. State, ___ N.E.2d ___, ___ (Ind. 2004) (slip op. at 10);
Stroud, ___ N.E.2d at ___ (slip op. at 17); Ritchie, ___ N.E.2d at ___
(slip opin at 6).
Conclusion
The trial court's order of June 27, 2003, finding that Indiana Code §
35-50-2-9 is unconstitutional and dismissing the State's request for the
death penalty, is reversed. We remand for reinstatement of the State's
death penalty request and for penalty phase proceedings as previously
ordered by this Court.
Shepard, C.J., concurs.
Sullivan, J., concurs with separate opinion.
Boehm, J., concurs, except as to the description of the effect of the 2002
amendments to the Death Penalty Statute, as to which his views are set
forth in his separate opinion in Helsley v. State, __ N.E.2d __ (Ind. 2004)
(slip op. at 15).
Rucker, J., concurs in result with separate opinion.
Sullivan, Justice, concurring.
In Bostick v. State, 773 N.E.2d 266, 274-75 (Ind. 2002), I dissented
from the proposition that remand for a new penalty phase was a permissible
option under Indiana Code § 35-50-2-9 where the jury is unable to reach a
unanimous sentencing recommendation. I acknowledge Bostick as stare
decisis for this and future cases.
Rucker, J., concurring in result.
I agree that Indiana’s death penalty statute is not unconstitutional.
Therefore I concur in result with the majority opinion. My primary point
of departure however with the majority opinion is its conclusion that
“[n]either federal constitutional doctrine under Apprendi and Ring nor
Indiana state jurisprudence leads to the requirement that weighing be done
under a reasonable doubt standard.” Slip op. at 3 (quoting Ritchie v.
State, No. 49S00-0011-DP-638, ___ N.E.2d ___, ___ (Ind. 2004)). My view is
quite the opposite. The maximum punishment for murder is a term of years.
In order for a defendant to become death eligible after a guilty verdict of
murder, two separate and independent factors must be found: (i) the
existence beyond a reasonable doubt of at least one of the statutory
aggravating circumstances, and (ii) the aggravating circumstances outweigh
the mitigating circumstances. See Ind. Code § 35-50-2-9(l); Brown v.
State, 698 N.E.2d 1132, 1144 (Ind. 1998). Under Apprendi “other than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” 530 U.S. at 490. To say that the
process of “weighing” is not a fact but a “traditional sentencing factor”
Br. of Appellant at 9, should provide the State no refuge. As Apprendi
makes clear “the relevant inquiry is not one of form but of effect—does the
required finding expose the defendant to a greater punishment than that
authorized by the jury’s guilty verdict?” Id. at 494 (emphasis added).
Ring is even more explicit: “If a State makes an increase in a defendant’s
authorized punishment contingent on the finding of a fact, that fact—no
matter how the State labels it—must be found by a jury beyond a reasonable
doubt.” 536 U.S. at 602. I continue to believe that perhaps unlike the
capital sentencing schemes in some other jurisdictions, “it is the
structure of Indiana’s capital sentencing statute that pulls it in within
the embrace of the Apprendi and Ring doctrine.” Ritchie, ___N.E.2d at ___
(Rucker, J., dissenting in part). In my view the plain language of the
statute makes death eligibility contingent upon certain findings that must
weighed by the jury on proof beyond a reasonable doubt.
Having said that, I would nonetheless not declare the weighing portion
of the death penalty statute unconstitutional. “[I]f an otherwise
acceptable construction of a statute would raise serious constitutional
problems, and where an alternative interpretation of the statute is ‘fairly
possible,’ we are obligated to construe the statute to avoid such
problems.” Id. (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 299-300 (2001)).
Rather, I would simply construe I.C.§ 35-50-2-9(l) as implicitly requiring
the jury to find beyond a reasonable doubt that any mitigating
circumstances that exist are outweighed by the aggravating circumstance or
circumstances. Thus construed the statute would be consistent with the
dictates of Apprendi and Ring.
-----------------------
[1] The provision states: "If a jury is unable to agree on a sentence
recommendation after reasonable deliberations, the court shall discharge
the jury and proceed as if the hearing had been to the court alone." Ind.
Code § 35-50-2-9(f).
[2] For a thoughtful examination of various alternative penalty phase
outcomes, see Justice Sullivan's concurring and dissenting opinion in
Saylor v. State, 765 N.E.2d 535, 573-576 (Ind. 2002).
[3] The trial court found that subsection 9(f), "although improper,
does not jeopardize the constitutionality of I.C. § 35-50-2-9 inasmuch as
the statutory framework remains intact, and viable, in the absence of the
offending subsection." Appellant's Appendix at 216. This appears
inconsistent with the same trial court's order on the same date in a
different case, wherein the court stated that removing subsection 9(f)
"does not leave a complete and operative statute as required by Brady."
State v. Ben-Yisrayl, ___ N.E.2d ___, ___ n.2 (Ind. 2004) (slip op. at 3)
[4] In Bostick, the State sought not the death penalty but life
without parole, both of which are governed by the same statutory provision,
Ind. Code § 35-50-2-9(f).
[5] Barker does not challenge the authority of a trial court under the
statute to sentence a defendant to a penalty lesser than that unanimously
recommended by a penalty phase jury, and thus we decline to address this
question.