Helsley v. State

Attorney for Appellant Attorneys for Appellee
Michael C. Keating Steve Carter
Keating, Bumb, Vowels, Laplante & Kent, P.C. Attorney
General
Evansville, Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__

In the
Indiana Supreme Court
_________________________________

No. 63S00-0303-CR-103

Christopher M. Helsley,
Appellant (Defendant below),

v.

State of Indiana,
Appellee (Plaintiff below).
_________________________________

Appeal from the Pike Circuit Court, No. 63C01-0104-CF-231
The Honorable Lee F. Baker, Judge
_________________________________

On Direct Appeal
_________________________________

May 25, 2004

Dickson, Justice.

The defendant, Christopher M. Helsley, was convicted of two counts of
murder for the deaths of Marsha Rainey and Brad Maxwell in Pike County,
Indiana, and sentenced to life without parole. In this direct appeal, the
defendant claims various errors, which we regroup as follows: (1) admission
of evidence from unlawful searches of his vehicle and residence; (2)
admission of cumulative and inflammatory photographs; (3) unconstitutional
ex post facto application of the penalty statute amendment; and (4)
misleading sentence modification instruction. We affirm his convictions
and sentence.

1. Automobile and Residence Searches

The defendant first contends that the trial court erred in admitting
various items of evidence resulting from unlawful searches of his vehicle
and his residence conducted pursuant to a warrant issued by the trial
court. He argues that the facts upon which the warrant was issued do not
establish probable cause linking him to the commission of the crime. The
defendant presented his objections both at trial and in a pre-trial motion
to suppress that was denied by the trial court in a comprehensive and
thoughtful order.

The Fourth Amendment to the Constitution of the United States
guarantees that a search warrant will not be issued without probable
cause.[1] This Court recognizes that probable cause to search a premises
"is established when a sufficient basis of fact exists to permit a
reasonably prudent person to believe that a search of those premises will
uncover evidence of a crime." Overstreet v. State, 783 N.E.2d 1140, 1157
(Ind. 2003) (quoting Esquerdo v. State, 640 N.E.2d 1023, 1029 (Ind. 1994)).
The trial court must make its determination to issue a warrant "based on
the facts stated in the affidavit and the rational and reasonable
inferences drawn therefrom." Overstreet, 783 N.E.2d at 1157 (quoting
Esquerdo, 640 N.E.2d at 1029).

When they sought the search warrant, police presented the following
information to the trial judge: (1) about 7 a.m. on April 19, 2001, the
bodies of two fellow employees of the defendant were found shot with what
appeared to be a .45 caliber handgun in the Pike county EMS ambulance barn;
(2) the defendant had ready access to the ambulance barn and had been there
until 9:30 or 10:00 p.m. the night before; (3) the defendant had purchased
a .45 caliber handgun about one year before the incident and gave
conflicting statements regarding its whereabouts (he initially told
investigators that he had thrown the gun away two weeks before, but later
told them that he had discarded the barrel and that the remainder of the
gun was in his car); (4) the defendant had a conflict with one of the
victims that could adversely affect the defendant's employment; (5) the
defendant's wife had seen the handgun in the defendant's pocket the day
before; and (6) after the defendant returned home around midnight, the
defendant's wife washed the clothes he was wearing, and the defendant was
generally "acting oddly," according to his wife.

Based on these facts presented to the trial court and the rational and
reasonable inferences drawn from them, there was a sufficient basis to
allow a reasonable person to conclude that a search of the defendant's
vehicle and his residence would uncover evidence of a crime. The search
warrant was supported by adequate probable cause.[2]

2. Photographs

The defendant contends that the trial court abused its discretion by
admitting into evidence ten photographs of the murder scene and the
victims, which were cumulative because a videotape had been shown to the
jury depicting the same information. He argues that he did not contest
that the victims died from gunshot wounds, but only that he was not the
perpetrator, and that any probative value of the photographs of the
victims' injuries was greatly outweighed by their prejudicial effect. He
also specifically urges that three autopsy photographs depicting a shaved
portion of the victims' head wounds constituted altered depictions, making
them even more gruesome and prejudicial.

The State responds that the photographs were relevant to the identity
of the victims, the cause of death, and the manner in which the crimes were
committed. Moreover, it argues that the photographs were not cumulative
because they provided detail the video could not. The State also argues
that because the jury viewed several photographs depicting the victims from
both before and after the autopsy, it was clear in the three post-autopsy
photographs with some of the victims' hair shaved (to permit better viewing
of the wounds by the pathologist and the jurors) that the shaving was done
by the pathologist, not the defendant.

The admission of photographic evidence is within the sound discretion
of the trial court, and this Court reviews the admission of photographic
evidence only for abuse of discretion. Corbett v. State, 764 N.E.2d 622,
627 (Ind. 2002). Photographs, as with all relevant evidence, may only be
excluded if their probative value is substantially outweighed by the danger
of unfair prejudice. Ind. Evidence Rule 403; Corbett, 764 N.E.2d at 627.
Admission of cumulative evidence alone is insufficient to warrant a new
trial. Kubsch v. State, 784 N.E.2d 905, 923 (Ind. 2003). An appellant
must establish that the probative value of the evidence was outweighed by
the unfair prejudice flowing from it. Id.

Moreover, "[e]ven gory and revolting photographs may be admissible as
long as they are relevant to some material issue or show scenes that a
witness could describe orally." Corbett, 764 N.E.2d at 627 (quoting
Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998)). Gruesome and gory
photographs with strong probative value are admissible where they help
interpret the facts of the case for the jury. Corbett, 764 N.E.2d at 627.
Autopsy photographs frequently pose unique problems where the pathologist
has manipulated the corpse during the autopsy. They are generally
inadmissible where the body is in an altered condition. Id. Nevertheless,
"there are situations where some alteration of the body is necessary to
demonstrate the testimony being given." Swingley v. State, 739 N.E.2d 132,
133-34 (Ind. 2000). In Corbett, we held that it was not prejudicial error
to admit several autopsy photographs showing the victim's body with the
head wounds cleaned and with some hair shaved away. 764 N.E.2d at 627.

Evaluating whether an exhibit's probative value is substantially
outweighed by the danger of unfair prejudice is a discretionary task best
performed by the trial court. Dunlap v. State, 761 N.E.2d 837, 842 (Ind.
2002). We are not persuaded that the trial court abused its discretion in
admitting the photographs.

3. Amendment to Penalty Statute

The defendant alternatively contends that either (a) the trial
court's penalty phase preliminary Instruction No. 8, informing the jury
that the judge must follow their recommendation, retroactively applied a
statutory amendment contrary to the provisions of the constitutions of the
United States and Indiana that prohibit ex post facto laws, or (b) the
trial court's subsequent decision to consider the jury recommendation only
as advisory, retaining in the trial court the power to make the final
sentencing determination, but denying the defense's motion for a
continuance, improperly prevented the defendant from presenting mitigating
evidence at the sentencing hearing before the trial court. The defendant
requests a new sentencing hearing.

The defendant was convicted of murders committed on April 18, 2001.
The charges were filed on April 20, 2001. The guilt phase of the trial
commenced June 14, 2002, resulting in guilty verdicts on June 21, 2002.
The penalty phase began and concluded on June 24, 2002, resulting in the
jury's recommendation of life imprisonment without parole. On that same
day, the trial court ordered the probation department to prepare and file a
pre-sentence investigation report by July 12, 2002, and set sentencing for
July 19, 2002. Appellant's Appendix at 18-19. At the sentencing hearing,
the defendant was sentenced to life imprisonment without parole.

At the time the offenses were committed, Indiana's statute governing
the imposition of life without parole and the death penalty provided that
the jury would make a sentencing recommendation, but that the trial court
was assigned the responsibility for determining the sentence and it was not
bound by the jury's recommendation. Ind. Code § 35-50-2-9 (2001). On
March 26, 2002, the legislature amended the statute "[f]or a defendant
sentenced after June 30, 2002," and declared: "If the jury reaches a
sentencing recommendation, the court shall sentence the defendant
accordingly." Ind. Code § 35-50-2-9(e).

Thus the offenses were committed before the legislature passed the
amendment and the guilt and penalty phases of the trial occurred after
passage but before the effective date of the amendment. At the penalty
phase six days before the effective date of the statute, however, both
preliminary Instruction No. 8 and final Instruction No. 15 informed the
jury that the law requires that the judge follow the jury's sentencing
recommendation. Appellant's Appendix at 442, 459. The trial court's
sentencing occurred three weeks later, after the effective date of the
amendment. At the beginning of the sentencing hearing, the judge announced
that due to "some concern about the ex post facto effect" of the statutory
amendment, he would be treating the jury recommendation as advisory and
that "this is a matter of discretion with me as to the sentence to be
imposed." Transcript vol. 7, p. 60. The defendant's trial counsel
immediately requested a continuance to present mitigation evidence,
explaining that because of the court's jury instruction that the jury's
recommendation would be binding, the defense was not prepared for the
presentation of such evidence. The court denied the motion and proceeded
to sentence the defendant to life imprisonment without parole, finding that
the aggravating circumstance was proven beyond a reasonable doubt, finding
that mitigating circumstances were present, evaluating the aggravating and
mitigating factors, finding the mitigating factors were outweighed by the
aggravating circumstances,[3] considering the recommendation of the jury,
and expressing "the personal conclusion of this [c]ourt that the jury's
sentencing recommendation is appropriate punishment for this offender and
these heinous crimes." Transcript vol. 7, p. 64-66.

On June 24, 2002, when the penalty phase jury was given preliminary
Instruction No. 8 and final Instruction No. 15, the 2002 penalty statute
amendment had not yet taken effect. Arguing that its retroactive
application violated the prohibition on ex post facto laws, the defendant
contends that the instruction "incorrectly informed them of the law
applicable to the case." Br. of App. at 24. But he does not assert any
resulting harm from the instruction itself. If anything, the instruction
increased the jury's sense of personal responsibility regarding the gravity
of its decision and thus favored the defendant. See Caldwell v.
Mississippi, 472 U.S. 320, 341, 105 S.Ct. 2633, 2646, 86 L.Ed. 2d 231, 247
(1985) (recognizing the extreme importance that "a capital sentencing jury
recognizes the gravity of its task and proceeds with the appropriate
awareness of its 'truly awesome responsibility.'") Thus, even if we assume
arguendo that the instruction was erroneous either because the 2002
amendment was not yet effective on the date it was given, or because of the
defendant's ex post facto claim, the giving of the instruction did not harm
the defendant and therefore does not compel reversal.

As to the defendant's claim that the trial court improperly denied his
motion for continuance to present mitigating evidence at the trial court's
sentencing proceedings, the defendant cannot prevail unless application of
the 2002 amendment is found to violate the Ex Post Facto Clause. If there
is no violation and the amendment was applicable, the trial court was
obligated to impose the life without parole sentence recommended by the
jury and the court's independent sentencing determination was extraneous.
The actual sentencing occurred after the effective date of the statutory
amendment, and the trial court was thus required, upon receiving the jury
sentencing recommendation, to "sentence the defendant accordingly," instead
of engaging in the pre-amendment independent judicial sentencing evaluation
and determination. Ind. Code § 35-50-2-9(e). Because the trial court
stated at the time of the penalty phase jury proceedings that it was
required to follow the jury's sentencing recommendation, the defendant was
on notice that such jury proceedings constituted the defendant's
opportunity to present evidence of mitigating circumstances. The defendant
therefore suffered no harm by being precluded from presenting additional
mitigating evidence to the trial judge following the return of the jury's
recommendation.

Whether the denial of the defendant's continuance motion precluded his
right to present mitigating evidence to the trial judge at sentencing
therefore depends upon resolution of the defendant's contention that
application of the amended penalty statute violated Article I, § 10 of the
Constitution of the United States, which provides in part: "No State shall
. . . pass any . . . ex post facto Law."[4] Citing Kring v. Missouri, 107
U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), the defendant argues that the
2002 amendment to the penalty statute is an ex post facto law because it
was passed after the crimes were committed and deprived him of
consideration by the trial judge for the possible imposition of a sentence
less severe than that recommended by his jury – consideration to which he
would have entitled under the penalty statute before the 2002 amendment.

In Kring, the defendant challenged a provision in the Missouri
Constitution that took effect after the charged murder, and that abrogated
prior Missouri law under which Kring's previously accepted plea of guilty
to second degree murder precluded his being retried for first degree
murder. According to the Supreme Court, the question was whether the new
state constitutional provision "deprive[d] the defendant of any right of
defense which the law gave him when the act was committed, so that as to
that offense it [was] ex post facto." Kring, 107 U.S. at 225, 2 S.Ct. at
447, 27 L.Ed. at 507. The Court reversed a defendant's death sentence on
grounds that it was imposed under an ex post facto law, and stated:
We are of [the] opinion that any law passed after the commission of an
offense which . . . in relation to that offense, or its consequences,
alters the situation of a party to his disadvantage, is an ex post
facto law; and . . . [n]o one can be criminally punished in this
country, except according to a law prescribed for his government by
the sovereign authority before the imputed offense was committed, and
which existed as a law at the time.

107 U.S. at 235, 2 S.Ct. at 455, 27 L.Ed. at 511 (internal quotations and
citations omitted, emphasis added).

In 1990, however, the Supreme Court expressly overruled Kring,
declaring that its "alters the situation of a party to his disadvantage"
language "departs from the meaning of the Clause as it was understood at
the time of the adoption of the Constitution." Collins v. Youngblood, 497
U.S. 37, 50, 110 S.Ct. 2715, 2723, 111 L.Ed.2d 30, 44 (1990). Even before
Youngblood, various opinions of the Supreme Court had declined to find an
ex post facto violation in statutes that arguably altered "the situation of
a party to his disadvantage." For example, in Beazell v. Ohio, 269 U.S.
167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), the Court refused to reverse an
embezzlement conviction where the joint defendants' motions for separate
trials was denied based on an Ohio statute that made the granting of
separate trials discretionary. Enacted after the date of the charged
offense, this statute amended prior law under which Beazell would have been
entitled to a separate trial as a matter of right. Rejecting a claim of ex
post facto, the Court stated: "[I]t is now well settled that statutory
changes in the mode of trial or the rules of evidence, which do not deprive
the accused of a defense and which operate only in a limited and
unsubstantial manner to his disadvantage, are not prohibited." 269 U.S. at
170, 46 S.Ct. at 69, 70 L.Ed. at 218. The Court explained:
Just what alterations of procedure will be held to be of sufficient
moment to transgress the constitutional prohibition cannot be embraced
within a formula or stated in a general proposition. The distinction
is one of degree. But the constitutional provision was intended to
secure substantial personal rights against arbitrary and oppressive
legislation, and not to limit the legislative control of remedies and
modes of procedure which do not affect matters of substance.

U.S. at 171, 46 S.Ct. at 69, 70 L.Ed. at 218 (citations omitted).

Of particular significance is Dobbert v. Florida, 432 U.S. 282, 97
S.Ct. 2290, 53 L.Ed 2d 344 (1977), in which the United States Supreme Court
faced an ex post facto claim that addressed a change in the function of
judge and jury in the imposition of death sentences in Florida between the
time of the charged acts and the time of trial. As of the date of the
offenses, Florida law provided that a person convicted of a capital felony
was to be punished by death unless the verdict included a recommendation of
mercy by a majority of the jury. By the time of trial, Florida had enacted
a new death penalty procedure under which the death sentence would be
discretionary with the trial judge after separate sentencing hearings
before jury and the court, and upon receiving a non-binding recommendation
from a majority of the jury. Dobbert argued that the change in the role of
the judge and jury between the time of the murder and the time of trial
constituted an ex post facto violation. The Court rejected this argument,
noting "[e]ven though it may work to the disadvantage of a defendant, a
procedural change is not ex post facto." 432 U.S. at 293, 97 S.Ct. at
2298, 53 L.Ed.2d at 356. "In the case at hand," the Court stated, "the
change in the statue was clearly procedural. The new statute simply
altered the methods employed in determining whether the death penalty was
to be imposed; there was no change in the quantum of punishment attached to
the crime." 432 U.S. at 293-94, 97 S.Ct. at 2298, 53 L.Ed.2d at 356.[5]

The United States Supreme Court recently revisited and extensively
explored the prohibition against ex post facto laws in Stogner v.
California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). The
opinion endorses the categorical description of ex post facto laws set
forth by Justice Chase more than 200 years ago in Calder v. Bull, 3 Dall.
386, 390-91, 1 L.Ed. 648, 650 (1798), noting that it continues to
"provid[e] an authoritative account of the scope of the Ex Post Facto
Clause." Stogner, 539 U.S. at ___, 123 S.Ct. at 2450, 156 L.Ed.2d at 552.
Justice Chase wrote:
I will state what laws I consider ex post facto laws, within the
words and the intent of the prohibition. 1st. Every law that makes
an action done before the passing of the law, and which was innocent
when done, criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when committed.
3d. Every law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and receives less,
or different, testimony, than the law required at the time of the
commission of the offence, in order to convict the offender. All
these, and similar laws, are manifestly unjust and oppressive.

Calder, 3 Dall. at 390-91, 1 L.Ed. at 650 (quoted in Stogner, 539 U.S. at
___, 123 S.Ct. at 2450, 156 L.Ed.2d at 552). In Stogner, the Court
invalidated as an ex post facto law a 1993 California criminal statute
extending a three-year statute of limitations in certain sex-related child
abuse cases. Stogner had been charged under the new law for offenses
committed between 1955 and 1973. The Court held that the change in the
applicable statute of limitations "falls within Justice Chase's second
category of ex post facto laws." 539 U.S. at ___, 123 S.Ct. at 2461, 156
L.Ed.2d at 565.

The 2002 amendment to the Indiana penalty statute reassigns from the
trial judge to the jury the final decision on whether the charged
aggravating circumstance or circumstances have been proved beyond a
reasonable doubt, whether any mitigating circumstances that exist are
outweighed by the aggravating circumstance(s), and whether to impose a
sentence of death or life imprisonment without parole. We find that the
nature of the challenged legislative change is equivalent to that which
Dobbert concluded did not violate the Ex Post Facto Clause because it was
merely procedural and did not change the quantum of punishment attached to
the crime. This change in procedure does not implicate any of Justice
Chase's categories of ex post facto laws. It does not criminalize conduct
done before enactment. It does not make the crime greater than when
committed. It does not increase the punishment. It does not alter the
evidence required to convict.

Because the 2002 amendment to the penalty statute does not violate the
Ex Post Facto Clause, the trial court was required to sentence the
defendant in accordance with the jury's recommendation of life imprisonment
without parole, regardless of any additional evidence that might have been
presented at the judicial sentencing hearing following a continuance. The
defendant was thus not harmed by the trial court's denial of his motion for
a continuance of the final sentencing hearing.

4. Sentence Modification Instruction

The defendant also contends that the trial court erred during the
penalty phase of the trial by giving Instruction No. 14:
If the defendant files a request to modify the sentence imposed by the
judge within three hundred and sixty-five days after the date of
sentencing, the judge has discretion to modify the sentence over the
objection of the prosecutor. If the defendant files a request to
modify the sentence after three hundred and sixty-five days have past
since sentencing, the judge does not have any discretion to modify the
sentence unless the prosecutor agrees.

Appellant's Appendix, vol. II, p. 458. This instruction arises from
Indiana Code § 35-38-1-17, which provides in relevant part:
(a) Within three hundreds sixty-five (365) days after:
(1) the defendant begins serving his sentence;
(2) a hearing at which the defendant is present and of which the
prosecuting attorney has been notified; and
(3) obtaining a report from the department of correction
concerning the defendant's conduct while imprisoned;
the court may reduce or suspend the sentence. The court must
incorporate its reasons in the record.
(b) If more than three hundred sixty-five (365) days have elapsed
since the defendant began serving the sentence and after a hearing at
which the convicted person is present, the court may reduce or suspend
the sentence, subject to the approval of the prosecuting attorney. . .
.
. . .
(d) The court may suspend a sentence for a felony under this section
only if suspension is permitted under IC 35-50-2-2.

Indiana Code § 35-50-2-2(a) generally provides that the sentencing court
"may suspend any part of a sentence for a felony." This is limited by
subsection 2(b), which states that, with respect to certain enumerated
crimes, including murder, "the court may suspend only that part of the
sentence that is in excess of the minimum sentence."

The defendant asserts that Instruction No. 14 correctly states the
law, and the State agrees.[6] The defendant, however, contends that giving
the instruction over his objection constituted reversible error because it
was incomplete and therefore misleading for two reasons. First, he argues
that, if the penalty statute, Ind. Code § 35-50-2-9, as amended, is
construed to make the jury's recommendation binding upon the court such
that the sentence may not be modified pursuant to Indiana Code § 35-38-1-17
(quoted above), then giving the instruction improperly diminished in the
jurors' minds the importance and binding effect of their decision favoring
life without parole. Second, the defendant urges that the instruction
failed to inform the jury that, if he is sentenced to a term of years, the
sentence could not be suspended below the minimum sentence provided by
statute for the charged offense of murder. He urges that this left the
jurors "wondering whether, despite their recommendation, the defendant may
ultimately walk out on probation." Br. of Appellant at 20.

The State responds that Instruction No. 14 did not misstate the law
or mislead the jury. It argues that the instruction aided the jury in
understanding the full range of sentencing available should the jury not
choose life without parole. The State points to other instructions that
informed the jury of the minimum sentence for murder and the availability
of credit time, and argues there was no basis in the instructions for the
jury to speculate that the defendant might eventually be released on
probation.

The defendant's trial objection to Instruction No. 14, while
adequately preserving his claim that the instruction was incomplete, did
not assert that the instruction diminished the jurors' sense of the
importance and binding effect of their decision. The defendant's stated
objection was:
that any modification can only be in accordance with law, that is the
sentence could not be modified to anything other than in accor - - -
other than that which the court could have imposed at the original
sentencing and, therefore, may lead the jury to believe that at some
time in the future it is possible that a defendant could receive
something less than what their recommendation might be.

Transcript vol. 6, p. 920. The defendant may not appeal the giving of an
instruction on grounds not distinctly presented at trial. Ind. Trial Rule
51(C); Scisney v. State, 701 N.E.2d 847, 849 (Ind. 1998) (concluding that
"appellate review of a claim of error in the giving of a jury instruction
requires a timely trial objection clearly identifying both the claimed
objectionable matter and the grounds for the objection"); Mitchem v. State,
685 N.E.2d 671, 675 (Ind. 1997) (waiving one of defendant's alleged errors
where defendant failed to distinctly state his objection and the grounds
for it at trial). In State v. Luna, 758 N.E.2d 515, 518 (Ind. 2001), the
defendant "made a timely trial objection and identified the claimed
objectionable matter but the objection did not clearly identify the grounds
for the objection" (emphasis added). We held in Luna that a defendant must
identify "specific grounds in support of an objection to an incorrect jury
instruction," particularly where the trial court focuses its attention on
the language of a misleading or incomplete proposed instruction. Id.
Because the Luna defendant failed to state the ground for her objection
that she later asserted on appeal, we considered her argument waived.
Similarly, the defendant here may not claim on appeal that the instruction
diminished the jury's sense of the importance and binding effect of its
decision.

Notwithstanding the fact that the defendant's claim is procedurally
defaulted by reason of the failure to present this claim at trial, we
nevertheless observe that reversal is also unwarranted on the merits of
this claim. The Supreme Court in Caldwell v. Mississippi, 472 U.S. 320,
105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), held unconstitutional a
prosecutor's closing arguments to a jury which misinformed the jury
regarding sentencing and thereby undermined the jury's sense of
responsibility for the sentence imposed. We do not believe that the jury's
sense of responsibility could reasonably have been undermined by the
omission of language in Instruction No. 14 explaining the limits on a
judge's authority to suspend or reduce a sentence within 365 days of
sentencing. The jury was advised in its preliminary penalty phase
instructions that their "recommendation [was] an important part of the
sentencing process" and that "[t]he law requires that the judge follow
[its] sentencing recommendation." Appellant's Appendix at 442.
Furthermore, during the final penalty phase instructions, Instruction No.
15, read to the jury immediately following Instruction No. 14 that the
defendant challenges, declared: "The law requires that [the jury's]
recommendation in regard to sentencing be followed by the judge."[7] Id.
at 459. We conclude that the relatively insubstantial omission in
Instruction No. 14 could not reasonably have led the jury to speculate that
the trial judge would reduce or suspend the sentence below the minimum
statutory sentence for the offense of murder, thereby improperly
undermining their sense of responsibility for their decision.

As to the defendant's claim, raised at trial, that Instruction No. 14
misled the jurors regarding whether, if they recommended a term of years,
he could be prematurely released, we acknowledge that the instruction did
not advise the jury that the trial court may not suspend a sentence for
less than the minimum forty-five year statutory sentence for murder.[8]

We consider the instructions "as a whole and in reference to each
other" and do not reverse the trial court "for an abuse of that discretion
unless the instructions as a whole mislead the jury as to the law in the
case." Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002). An error in a
particular instruction results in reversal only where the entire body of
instructions misleads the jury as to the law in the case. Edgecomb v.
State, 673 N.E.2d 1185, 1196 (Ind. 1996). Instruction No. 10 explained the
sentencing consequences if life imprisonment without parole is not imposed.
It stated that "a judge could impose a sentence on the defendant ranging
from a minimum of forty-five years if the sentences are ordered served
concurrently to a maximum of one hundred and thirty years if the sentences
are ordered served consecutively." Appellant's Appendix at 454.
Instruction No. 11 related to the reduction of a term of years for earned
credit time that could reduce time served to "fifty percent of the sentence
imposed by the judge." Id. at 455.

Taking the instructions as a whole, we are not persuaded that
Instruction No. 14, by generally mentioning that "the judge has discretion
to modify the sentence" could reasonably have lead the jury to improperly
speculate that "the defendant may ultimately walk out on probation" as
argued by the defendant. There was no significant possibility that the
jury was misled to believe that the defendant could be prematurely
released.

Conclusion

The judgment of the trial court is affirmed.

Shepard, C.J., and Sullivan, J. concur. Boehm, J., concurs in result with
separate opinion in which Rucker, J., concurs in part.
Boehm, J., concurring in result.

Until 2002, the recommendation of the jury in an Indiana death penalty
case was just that—a recommendation—and the trial judge was free to impose
death despite a jury’s recommendation to the contrary or to refuse to
follow a jury’s recommendation that death be imposed. Ind. Code § 35-50-2-
9(e) (1998); Martinez Chavez v. State, 534 N.E.2d 731, 734 (Ind. 1989);
Minnick v. State, 544 N.E.2d 471, 482 (Ind. 1989). In 2002, the General
Assembly amended Indiana’s death penalty statute to provide that the jury
is to “recommend” whether death or life without parole (LWOP) is to be
imposed, and the trial court is to sentence “accordingly.” I.C. § 35-50-2-
9(e) (2002). The amendment by its terms applies to sentences imposed after
June 30, 2002. Trial and ultimate sentencing in this case, as in several
others, occurred over a period of time that spanned that date. I believe
the confusion generated by this amendment might under these circumstances
have produced an unreliable sentence, but the defendant has not established
that that occurred here. For that reason I concur in the result reached by
the majority. However, I think the majority’s reason for affirming depends
on some unstated assumptions with which I do not agree.

In a nutshell, the trial court first assumed that the new statute
would apply and gave preliminary instructions to the jury that its
“recommendation” as to the sentence would be binding. Both the guilt and
penalty phases of the trial were completed on June 24, 2002. At that point
it seemed possible that Helsley’s sentence would be imposed before June 30,
in which event the new statute by its terms would plainly be inapplicable.
In fact the trial judge did not impose the sentence until a sentencing
hearing three weeks later, after June 30. At the opening of the sentencing
hearing on the morning of July 19, 2002, the trial judge expressed concern
that the application of the new statute might be unconstitutional as an ex
post facto law. For this reason he announced that he would exercise
discretion whether to impose LWOP, as the statute permitted for sentences
imposed before July 1, 2002. At that point the defendant unsuccessfully
moved for a continuance based on this change in the ground rules.

I agree with the majority that the statute is not an ex post facto
law. Ritchie v. State, __N.E.2d__ (Ind. 2004) (slip op. at 5-6). I also
agree that the current Indiana death penalty statute on its face can be
read to attempt to make the jury’s recommendation as to sentencing binding
on the trial court. It may even be the case that the legislature thought
that was what it was doing by enacting the 2002 amendments, notwithstanding
its retention of the term “recommendation” to describe the result of the
jury’s deliberations. However, I do not believe that the statute
accomplishes this.

I. The 2002 Amendment to the Indiana Death Penalty Statute

The first issue presented by the 2002 statute is whether the trial
judge has any alternatives to imposing the sentence recommended by the
jury, and if so what those alternatives are and how they are to be
exercised. The majority opinion can be read to imply that the trial court
is bound by the jury’s recommendation under all circumstances. I do not
believe that is a correct reading. Even if the General Assembly thought it
was making the jury’s recommendation binding on the trial court, the
statute does not mandate blind implementation of the jury’s recommendation
as to penalty. Indeed, if it were read to achieve that result, under some
scenarios it would deny due process. None of these issues is presented by
the parties in this case, but the reasoning of the majority raises them up.
For purposes of this case, the issue posed by the majority’s reasoning is
whether the statutory framework by itself is sufficient to eliminate error
arising from the denial of a continuance at the guilt phase after the trial
court reversed its position as to the binding effect of the jury’s
recommendation. I think it is not, though on the facts of this case, I
agree that the defendant has established no prejudice from the error that
occurred here.

The 2002 amendments require the jury to perform two functions. First,
the jury engages in a traditional fact-finding exercise to determine if one
or more “aggravating circumstances” is found beyond a reasonable doubt. In
Helsley’s case, that circumstance was that Helsley murdered two people, and
there seems no doubt that the jury made the requisite finding. Second, the
jury is to determine whether the aggravating circumstances outweigh the
mitigating circumstances. As explained elsewhere, this determination is
not subject to a reasonable doubt standard, and is qualitatively different
from the finding of eligibility for the penalty. Ritchie v. State,
__N.E.2d__ (Ind. 2004) (slip op. at 6-11); See also Ex Parte Waldrop v.
Alabama, 859 So.2d 1181, 1189 (Ala. 2002); People v. Prieto, 66 P.3d 1123,
1147 (Cal. 2003); Brice v. State, 815 A.2d 314, 322 (Del. 2003); Oken v.
State, 835 A.2d 1105, 1120 (Md. 2003); Nebraska v. Gales, 658 N.W.2d 604
(Neb. 2003).

The jury’s finding of eligibility for the penalty is a fact to be
found based on evidence and subject to a reasonable doubt standard. This
provision does not override the longstanding principle that the trial judge
is free to act as a “thirteenth juror” and set aside the jury’s findings as
to the occurrence of an eligibility factor. The thirteenth juror concept
is found in Indiana Trial Rule 59(J)(7)[9] and also appears in Trial Rule
50 governing judgments on the evidence. As we recently explained in Neher
v. Hobbs, 760 N.E.2d 602, 607 (Ind. 2002), under this doctrine, the trial
court may order a new trial if the jury’s verdict is against the weight of
the evidence. See also State v. Johnson, 714 N.E.2d 1209, 1211 (Ind. 1999)
(citations omitted); Moore v. State, 403 N.E.2d 335, 336 (Ind. 1980). The
trial judge would be fully warranted in setting aside a jury’s
recommendation if the judge concluded the facts required for eligibility
for the death penalty were not supported by the evidence. Neher, 760
N.E.2d at 607; Johnson, 714 N.E.2d at 1211; Moore, 403 N.E.2d at 336. This
failure to sentence “accordingly” would be the result of a traditional
function of the trial judge, and amounts to a finding that an element that
is required to impose the enhanced penalty was not established at trial.

This view of the eligibility finding was recently adopted as a matter
of federal Sixth Amendment doctrine. Under Ring v. Arizona, 536 U.S. 584,
609 (2002), the “aggravating circumstances” necessary for the death penalty
under the Indiana statute must found by a jury. These findings, like any
other, must be based on the evidence or record. Ring applied to death
penalty statutes such as Indiana’s the requirements of Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000), that all facts necessary to establish a
crime be found by the jury.

I believe the 2002 amendment was intended to respond to Apprendi and
to anticipate Ring. The amendment sought to do this by eliminating the
judge’s power to impose death if there were no jury recommendation and
therefore no clear finding by the jury that the facts warranting the death
penalty were proven. To be sure, the language chosen by the legislature may
be taken as a directive to implement blindly whatever result is
“recommended” by the jury. However, the 2002 amendment was not intended to
overturn traditional checks on jury error or jury discretion, or to
eliminate the trial judge’s function under Trial Rule 59. Rather, in light
of the substantial body of law surrounding the allocation of function
between judge and jury, I would take a directive from the legislature to
sentence “accordingly” to mean “according to standard jurisprudential
processes.” This would include setting aside findings not supported by the
evidence.

I believe this construction is not only desirable, but necessary to
preserve the statute. There may be some issue as to the quantity of
evidence that may support a finding, but I have no doubt that imposing
death without any proof at all of a necessary element would constitute a
denial of due process. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Garner v. Louisiana, 368 U.S. 157, 164 (1961); Thompson v. City of
Louisville, 362 U.S. 199, 206 (1960). Indeed, under Ring, the Sixth
Amendment right to jury trial requires that the finding of eligibility for
the death penalty be found by the trier of fact. There is a second problem
with taking this statute to mandate rubber stamping the jury’s
recommendation. Because I do not read the statue to do that I do not need
to address whether, if that were the thrust of the statute, it would also
run afoul of state constitutional limitations on the legislature’s ability
to control the processes of the judicial branch.[10] It is sufficient to
establish, as I believe I have, that the statute cannot be read to require
the judge to implement the jury’s recommendation in all circumstances.

To this point, I believe there is no difference between the majority’s
position and mine. The effect of the jury’s recommendation as to the
second “finding”–that the aggravators outweigh the mitigators(presents a
different and more difficult problem. This second step is the process of
selection of the penalty to be imposed upon the individual defendant from
among those determined by the statute to be eligible. This weighing by the
jury is not a finding at all in the same sense that a traditional jury
finding is a determination of as to a matter of historical fact, a
conclusion that something did or did not occur. Ritchie, __N.E.2d__ (slip
op. at 6-11). Rather, the “finding” as to weighing is a subjective
assessment that is not susceptible of “proof” whether by a preponderance of
evidence or beyond a reasonable doubt.

Because the weighing process is unconstrained by the limits that
reason, science and experience place on fact-finding, it is arguably free
from the requirement which the law places on fact-finding that it be
supported by the record. But I believe I have already demonstrated that
under the 2002 amendments, the direction to sentence “accordingly” cannot
be taken wholly literally because it would impose sentences not supported
by the evidence. Thus, to make sense of this statute one must find
“accordingly” to incorporate existing law. One well established doctrine
is that the Eighth Amendment requires that a defendant be permitted to
present any relevant mitigating evidence. Penry v. Johnson, 532 U.S. 782,
797 (2001). This surely includes a right to present the evidence to the
ultimate decision-maker.

Existing law in place before the 2002 amendment required the judge
before imposing sentence to review and consider a sentencing report
containing a variety of matters not before the jury. Ind. Code §§ 35-38-1
et seq. (1998). Putting all of this together, it seems to me that the only
way to reconcile the statute with these requirements is to conclude that a
sentence imposed “accordingly” means a sentence that takes into account the
jury’s recommendation and implements it, subject to the constraints imposed
by law.[11] To be sure, a judge is not free under the 2002 amendment to
impose a death sentence if the jury does not recommend it. See Barker v.
State, __N.E.2d__(Ind. 2004) (slip op. at 5-7). But the instruction to
sentence “accordingly” includes the need to set aside a recommendation if
it is not supported by evidence and the power to decline to impose death
if, after consideration of all aggravating and mitigating factors,
including those in the sentencing report, and giving due deference to the
jury’s recommendation, the judge concludes that death is inappropriate.

Finally, as already pointed out, the 2002 amendment is susceptible to
readings that produce unintended consequences. I would think the
legislature may wish to consider reestablishing the requirement that the
judge as well as the jury endorse the appropriateness of a death sentence.
The judge’s thoughtful concurrence was required under Harrison v. State,
659 N.E.2d 480 (Ind. 1995). To the extent the 2002 amendment dilutes or
removes that element, it injects the potential for inherent unfairness in
the administration of the death penalty in this state.

A recommendation to impose death plainly might be made differently by
different juries presented with the same record. This produces a
randomness in who is and who is not put to death that turns on the
composition of each particular jury. In my view that is, if not an Eighth
Amendment violation, at least a very undesirable feature of a death penalty
statute. Cf., Furman v. Georgia, 408 U.S. 238 (1972); Gregg v. Georgia,
428 U.S. 153, 194 (1976). Although the legislature may prescribe the
penalty for a crime, and thereby remove discretion from a sentencing judge,
it is quite another thing to prescribe by statute that the jury’s
recommendation is binding on the judge in deciding whether to impose a
death sentence. It is no answer to the randomness concern to say that the
criminal process is inherently subject to jury variation because different
juries might resolve factual issues differently on the same record. That
is of course true, and a necessary consequence of leaving judgments to
human beings. But a jury charged with making a traditional finding of fact
is constrained by relatively objective and generally accepted laws of
physics and other sciences, and by their common understanding of human
nature. A recommendation whether the aggravators outweigh the mitigators
is an entirely different exercise as to which the basic assumptions and
biases of individual jurors are much more dominant. We have no better
process, so we must live with the possibility of human error in the fact-
finding that determines eligibility for the penalty. But there is no
necessity to inject this much higher degree of randomness into the
selection process.

II. Helsley’s Sentence

With this framework in mind, it seems to me the majority’s rationale
for sustaining Helsley’s sentence is not sufficient. Until the beginning
of the penalty phase of the trial, the judge had concluded that the jury’s
recommendation would not be a recommendation at all, but would be a
decision. In other words, the “recommendation” would be binding. The
parties were so advised. Then, at the outset of the penalty phase the
judge announced he would treat the jury’s recommendation as just that, a
recommendation, and would reserve final decision to himself. At that point
the defendant unsuccessfully moved for a continuance. It surely is error
to give the parties the wrong standard by which the jury’s findings will be
evaluated. Thus, the majority’s view is in substance a holding of harmless
error.

The majority reasons that because Helsley chose not to present
evidence before the jury at the penalty phase, he was precluded from
presenting it to the trial judge at the sentencing, and therefore there is
no error in denying the continuance of the sentencing phase and refusing to
receive additional evidence. I think there are two problems with this
analysis. First, as already noted, I do not believe the statute should be
construed to eliminate the judge’s ability to consider matters contained in
a sentencing report that may not be presented to the jury. But even if I
am wrong in this view, and the recommendation is binding, it is not clear
that the evidence at a guilt phase that may bear on the weighing would be
the same whether the jury’s recommendation is binding or not. A defendant
preparing for the guilt phase under the belief that the recommendation will
be advisory only might well withhold evidence from the guilt phase in the
belief that the sentencing will present an additional opportunity to
present matters to the judge.

I therefore do not agree that it is in every instance necessarily
harmless error if the trial court reverses its ruling as to the binding
effect of the jury’s recommendation, and denies the defendant a continuance
to adjust to the newly announced standard. But Helsley does not point to
anything he claims he would have presented or developed if he had been
given a continuance, so he has not established reversible error in denial
of the continuance. Nor does he identify any matter that was presented to
the jury, but would have been omitted if he had time to adjust to the new
procedure. He thus fails to show any prejudice from the confusion. For
that reason, and that reason alone, I agree with the majority that Helsley
has not established reversible error.

Rucker, J., concurring in part. Except for that portion expressing the
view that the weight to be given aggravators and mitigators is not subject
to a reasonable doubt standard, I fully concur with Justice Boehm’s
separate opinion. I continue to believe that before capital punishment can
be imposed a jury must be convinced beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating circumstances. See
Ritchie v. State, No. 49S00-0011-DP-638 (Ind. May 25, 2004) (Rucker, J.,
dissenting in part).

-----------------------
[1] Although the defendant generally cites to both the Fourth
Amendment to the Constitution of the United States and Article 1, § 11 of
the Indiana Constitution, he presents no argument that the state search and
seizure provision requires a different analysis than its federal
counterpart. We therefore consider only the federal claim. White v.
State, 772 N.E.2d 408, 411 (Ind. 2002).
[2] The defendant also contends that his signed consent to the search
of his vehicle was not freely and voluntarily given. Because the
automobile was not searched until after the warrant was issued, however,
the claim of inadequate consent is moot.
[3] The defendant does not assert, and we therefore do not address,
whether the trial court's sentencing evaluation included reliance upon
aggravating circumstances not authorized by Indiana Code § 35-50-2-9(b).
[4] The defendant also claims violation of the ex post facto law
prohibition in Article 1, Section 24, of the Indiana Constitution, but he
presents no argument that it requires a different analysis than its federal
counterpart. We therefore consider only the federal claim. White, 772
N.E.2d at 411.
[5] In addition to finding no ex post facto violation because the
changes were procedural, the Court also found the changes in the procedure
to be ameliorative, but it expressly noted that these "are independent
bases for our decision." 432 U.S. at 292, 97 S.Ct. at 2298, 53 L.Ed.2d at
355, n. 6.
[6] Because neither party raises the issue, at this time we express no
opinion as to whether Indiana Code § 35-38-1-17 applies to penalties
imposed under Indiana Code § 35-50-2 as revised by the 2002 amendment.
[7] These statements stating that the court must follow the jury's
recommendations may imply that the statutory authority to suspend or reduce
a sentence under Indiana Code § 35-38-1-17 does not apply to sentences for
life without parole under the amended statute. As noted in footnote 5, we
do not address this question. However, if we assume that a judge may
suspend or reduce a life without parole sentence, the instructions stating
that the court must follow the jury's sentencing decision, while arguably
incorrect, certainly did not undermine the jury's sense of responsibility.
If anything, such instructions emphasized the importance of the jury's
decision.
[8] Ind. Code § 35-50-2-3.
[9] Ind. Trial Rule 59(J)(7): “In reviewing the evidence, the court shall
grant a new trial if it determines that the verdict of a non-advisory jury
is against the weight of the evidence; and shall enter judgment, subject to
the provisions herein, if the court determines that the verdict of a non-
advisory jury is clearly erroneous as contrary to or not supported by the
evidence, or if the court determines that the findings and judgment upon
issues tried without a jury or with an advisory jury are against the weight
of the evidence.”

[10] A legislative attempt to rearrange the functions of judge and jury
would appear to present a conflict with the rules adopted by this court.
To the extent a statute and Trial Rule conflict on a matter of procedure,
there is precedent suggesting the Trial Rules trump the statute. See, e.g.,
State v. Gibson Circuit Court, 157 N.E.2d 475, 479 (Ind. 1959). Whether
that doctrine applies here is a matter for another day.
[11] The Indiana statute is unique in its use of “recommendation” and
“accordingly”. I find no directly relevant precedent, and few cases that
even touch on the subject. The New Mexico statute is more explicit in its
directive that the trial court “shall” impose the sentence the jury
“specifies”. It provides: “In a jury sentencing proceeding in which the
jury unanimously finds beyond a reasonable doubt and specifies at least one
of the aggravating circumstances enumerated in Section 6 of this act, and
unanimously specifies the sentence of death pursuant to Section 3 of this
act, the court shall sentence the defendant to death.” N.M. Stat. Ann. 31-
20A-3 (1978). The Supreme Court of New Mexico takes the view under this
statute that review of the sentence is restricted to the Supreme Court and
the trial court is required to impose death under the statute if the jury
“specifies” it. State v. Guzman, 698 P.2d 428, 429 (N.M. 1985).