Attorneys for Appellant Attorneys for Appellee
Mark Small Steve Carter
Kevin McShane Attorney General of
Indiana
Marion County Public Defender Agency
Indianapolis, Indiana Stephen R. Creason
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 49S00-0011-DP-638
Benjamin Ritchie,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Superior Court, No. 49G04-0010-CF-172900
The Honorable Patricia Gifford, Judge
_________________________________
On Direct Appeal
_________________________________
May 25, 2004
Boehm, Justice.
Benjamin Ritchie was convicted of killing Beech Grove police officer
William Toney. Because the victim was a law enforcement officer, the
prosecutor sought the death penalty. The jury recommended death and the
trial court imposed that sentence. We affirm the conviction and sentence.
Factual and Procedural Background
On September 29, 2000, around 7:00 p.m., Ritchie and two others stole
a white Chevrolet Astro van from a gas station in Beech Grove. The theft
was reported and police were dispatched to the scene where Beech Grove
police officer Matt Hickey filed a stolen vehicle report. Approximately
two hours later, Hickey was en route to a traffic accident scene and
recognized the stolen van as Ritchie and one of his accomplices drove by.
After confirming by radio that the van bore the license plate of the stolen
vehicle, Hickey pursued, joined by officers Robert Mercuri and William
Toney. After a short chase, the van pulled into the yard of a residence
where Ritchie and his companion jumped out and ran in opposite directions.
Officer Toney pursued Ritchie on foot, and ultimately Ritchie turned and
fired four shots, one of which struck Toney in the chest. Toney died at
the scene. Ritchie was convicted of murder and the jury recommended the
death penalty, which the trial court imposed. This direct appeal followed.
I. Indiana Constitution Article I, Section 18
Ritchie argues that Indiana’s Death Penalty Statute violates Article
I, Section 18 of the Indiana Constitution, which provides that “[t]he penal
code shall be founded on the principles of reformation, and not of
vindictive justice.” Ritchie concedes that this claim was rejected shortly
after the 1851 Constitution was adopted. In Driskill v. State, 7 Ind. 338,
343 (1855), and Rice v. State, 7 Ind. 332, 338 (1855), this Court held that
Section 18 applies to the Penal Code as a whole, but does not require that
every provision of the Penal Code be oriented toward reform. Accordingly,
this Court early held that Section 18 is not violated by the death penalty.
Ritchie points out that these seminal cases neither discussed the
legislative history of Section 18 nor considered the prevailing legal
framework at the time Section 18 was adopted. Essentially, Ritchie argues
that this Court should have found that the focus of Indiana’s Penal Code is
reform, and that the death penalty is grounded in the inconsistent goal of
vindictive retribution and is therefore unconstitutional. We do not find
this contention persuasive. Driskill and Rice were decided immediately
following the adoption of the 1851 Constitution. There was no need for
this Court, in deciding those cases, to review the mindset of the framers
of our state constitution. The Indiana Supreme Court of 1855 was composed
of judges who were present at the creation. To the extent Ritchie relies
on the views of the framers, contemporaneous court decisions are evidence
of the attitude of the times.
In recent times, this Court has consistently adhered to the view that
the death penalty does not violate Section 18. See Saylor v. State, 686
N.E.2d 80, 88 (Ind. 1997); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.
1995); Fleenor v. State, 514 N.E.2d 80, 90 (Ind. 1987). Ritchie advances a
number of criticisms of the wisdom, fairness, humanity, or efficacy of the
death penalty. These arguments have been successful in the legislatures of
several states and many foreign countries. They are properly directed to
the General Assembly, which is free to abolish the death penalty at any
time. Any change in the settled doctrine that the penalty is not
inherently unconstitutional should be by constitutional amendment.
II. Death by Lethal Injection as Cruel and Unusual Punishment
Indiana now administers the death penalty by lethal injection.
Ritchie contends that this method of execution inflicts unnecessary pain
and therefore constitutes cruel and unusual punishment for purposes of the
Eighth Amendment to the United States Constitution. We recently rejected
this claim in Moore v. State, 771 N.E.2d 46 (Ind. 2002). In Moore, the
defendant contended that lethal injection was cruel and unusual as applied
to him because of his obesity and the resulting inability to locate a
suitable vein. Id. at 55 n.3. We noted that Moore raised possible
difficulties with the lethal injection process without substantiating the
probability that any would occur in Moore’s case. Id. We held that Moore
had not established that lethal injection constituted cruel and unusual
punishment in that case. Id. at 56. In holding that injection as applied
in Moore did not violate the Eighth Amendment, we necessarily held that
injection is not per se cruel and unusual.
In Moore, we observed that the Eighth Amendment requires that an
execution “be performed in a manner that avoids unnecessary or wanton
infliction of pain,” but concluded that lethal injection does not
constitute wanton infliction of pain. Id. at 55. Because Ritchie points to
no circumstances creating an unusual risk in his case, his contention
amounts to a request to reverse that holding. Ritchie cites two instances
where lethal injection did inflict excessive pain. In the first of these,
the defendant’s veins were abnormally small and a physician was required to
perform a “cut down” to locate a proper vein. The execution required one
hour and seventeen minutes, and sixteen minutes were spent locating a vein
before a physician’s incision exposed one. The defendant was conscious the
entire time. The second instance involved an execution that took one hour
to complete, again because of difficulty in inserting the needle into the
vein. In that case the problem was attributed to the defendant’s size.
These two isolated cases do not establish that lethal injection is an
inherently cruel or unusual method. To be sure, these two examples
demonstrate that problems may occur in unusual circumstances, but that
possibility does not rise to a systematic or inherent flaw in the lethal
injection process. See Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark.
1992).
Recent decisions of the United States Supreme Court confirm this view.
The reach of the Eighth Amendment is an issue of federal law. The Supreme
Court recently held that a challenge to the “cut down” procedure may be
brought under 42 U.S.C. § 1983. Nelson v. Campbell, 2004 U.S. LEXIS 3680
(May 24, 2004). That case involves a defendant who has collapsed veins
requiring a potentially painful surgical procedure to perform an injection.
Two recent applications for stays of execution, Zimmerman v. Johnson, 124
S.Ct. 979 (2003), and Vickers v. Dretke, 124 S.Ct. 956 (2003), involved
more general challenges to the lethal injection process. Zimmerman was
originally granted a stay of execution by the United States Supreme Court,
but the stay was lifted on December 15, 2003, and Vickers’s application for
stay was denied by the Court on December 9, 2003. Both have been executed.
Ritchie’s claim, like those in Vickers and Zimmerman, involves only a
general claim that the lethal injection process violates the Eighth
Amendment. Thus, the Supreme Court has very recently denied review of
these general challenges to lethal injection in proceedings where execution
was imminent. We conclude that the Court sees no merit in the contention
that lethal injection is a per se violation of the Eighth Amendment.
III. The Death Penalty as Inherently Unconstitutional
Ritchie argues that the death penalty violates the Eighth Amendment
and Article I, Section 16 of the Indiana Constitution because it is not a
deterrent to crime. The constitutionality of the death penalty under the
federal constitution was resolved by the Supreme Court of the United States
in Gregg v. Georgia, 428 U.S. 153 (1976). Ritchie’s contention under the
State Constitution assumes that deterrence is the only legitimate goal of a
penal law and also that the death penalty serves no deterrent purpose.
Even if the former is the case, in Gregg, the Supreme Court observed that
the death penalty serves as a valid deterrent in some situations and not in
others. 428 U.S. at 186-87. Ritchie’s contention under the state
constitution also seeks review of settled precedent. We adhere to the view
this Court expressed in Evans v. State, 563 N.E.2d 1251, 1264 (Ind. 1990):
The effectiveness of the death penalty as a deterrent is debatable;
resolution of that issue is a matter for the legislature.
IV. Indiana Constitution Article I, Section 12
Ritchie contends that the Indiana Death Penalty Statute offends
Article I, Section 12 of the Indiana Constitution and the Due Process
Clause of the federal constitution. Article I, Section 12 requires that
“[j]ustice shall be administered freely, and without purchase; completely,
and without denial; speedily, and without delay.” Ritchie points out that
an executed criminal cannot benefit from later found exculpatory evidence
and therefore cannot receive “complete” justice. Ritchie provides no
authority to support his contention that the death penalty violates Section
12 because a person cannot “completely” obtain justice after execution. We
do not find it persuasive. “Complete”, as used in Section 12 does not mean
“perfect.” Complete redress for an unjust or erroneous conviction is often
unavailable, whether the wrongly convicted person is alive or dead.
Despite our best efforts, neither the United States, nor any other society
has achieved perfection in its criminal justice system, and the
constitution does not require it.
V. Ex Post Facto
Ritchie killed Officer Toney on September 29, 2000. He was convicted
on August 10, 2002 and sentenced on October 15, 2002. An amendment to the
Death Penalty Statute became effective on July 1, 2002.[1] Ritchie argues
that the 2002 amendment to the Death Penalty Statute constitutes an ex post
facto law because it effected a substantive change from the previous
statute. Under the old statute, the jury’s weighing of aggravating factors
and mitigating factors and the ensuing recommendation was not binding on
the trial judge. Under the new statute, after receiving the jury’s
recommendation as to the death penalty, the judge is to sentence
“accordingly.” As of this writing, the United States Supreme Court has
granted certiorari in Schriro v. Summerlin, 124 S.Ct. 833 (2003) to address
the retroactive application of Ring v. Arizona, 536 U.S. 584 (2002). In
Summerlin, the Ninth Circuit held that Arizona’s change in its death
penalty statute violated the ex post facto clause of the federal
constitution by substituting the jury for the judge as the agent required
to “find” the statutory aggravators. Summerlin v. Stewart, 341 F.3d 1082,
1108 (9th Cir. 2003) (en banc), cert. granted sub nom, Schriro v.
Summerlin, 124 S.Ct. 833. Despite this holding, we believe the Indiana
amendment neither changes the elements of the crime nor enlarges its
punishment. It simply mandates that once the jury makes a recommendation,
pursuant to its findings, the judge is to sentence “accordingly.” As such,
in our view the changes effected by the 2002 Indiana legislation are
procedural in nature for purposes of the ex post facto doctrine, and may be
applied to crimes committed before the effective date.
As the Supreme Court held in Dobbert v. Florida, 432 U.S. 282, 293
(1977), a substantive change in a penal statute constitutes an ex post
facto law, but a procedural change is not ex post facto. The statute in
Dobbert “established a bifurcated system in the wake of Furman v. Georgia,
408 U.S. 238 (1972) and thus ‘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.’” Brice v.
State, 815 A.2d 314, 321 (Del. 2003) (citations omitted). Similarly, a
statute that enlarged the class of people who were competent to testify in
criminal cases was not ex post facto because it did not increase the
punishment nor change the ingredients of the offense or the ultimate facts
necessary to establish guilt. Hopt v. Utah, 110 U.S. 574, 589-90 (1884).
See also Collins v. Youngblood, 497 U.S. 37, 51 (1990), where the Supreme
Court held that a statute that allowed an appellate court to reform an
improper verdict that assessed a punishment unauthorized by law was not an
ex post facto law because it did not “(1) punish as a crime an act
previously committed which was innocent when done; (2) make more burdensome
the punishment for a crime, after its commission; nor (3) deprive one
charged with a crime of any defense available according to the law at the
time the act was committed.” In our view, the amendments to the Indiana
Death Penalty Statute did none of these and is not invalid ex post facto
legislation.
VI. The Weighing of Aggravating and Mitigating Circumstances
Under the current version of the Indiana Death Penalty Statute, before
the jury can recommend the death penalty, it 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(l) (2003). Thus, the
Indiana statute requires the jury to find the existence of one or more of
the statutory aggravating circumstances beyond a reasonable doubt. Unlike
its counterparts in some states, it provides no guidance as to what
standard governs the weighing process.[2]
Ritchie argues that the trial court improperly instructed the jury on
the weighing process contemplated by the second part of this subsection.
Specifically, he contends that the trial court should have instructed the
jury that it must apply a reasonable doubt standard in finding that the
State proved that the aggravating circumstances outweigh the mitigating
factors. For the reasons explained below, we conclude that this process is
not subject to a reasonable doubt standard. The Supreme Court has now made
clear that statutory aggravators in Indiana’s Death Penalty law are the
functional equivalent of elements of a crime, and must be found by a jury
beyond a reasonable doubt. Ring v. Arizona, 536 U.S. 584, 605, 609 (2002).
Ring applied to death penalty jurisprudence the doctrine first developed
in Apprendi v. New Jersey, 530 U.S. 466, 494 (2000), that the Sixth
Amendment right to jury trial requires that the jury make any finding that
“exposes the defendant to a greater punishment.” We believe 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. As Ring explained: “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.” Ring, 536 U.S. at 602 (citations omitted).
Indiana law, Indiana Code section 35-50-2-9, authorizes the death
penalty if one or more of the “aggravating circumstances” listed in
subsection 9(b) is found. Although our statute refers to the items listed
in subsection 9(b) as “aggravating circumstances,” that term is borrowed
from sentencing statutes. As used in the death penalty statute, it refers
to the facts that must be found before a defendant may be subject to the
death penalty. We think it is more useful to describe these factual
determinations as eligibility factors. They are the first step required of
the trier of fact. In this case that issue is rather simply resolved.
Officer Toney, the victim of the murder, was a law enforcement officer and
there is no doubt that the defendant knew that at the time he fired the
fatal shot. Pursuant to section 9(e), it is this fact, and this fact
alone, that, if proven beyond a reasonable doubt, enabled the jury to
proceed to the second step of weighing any mitigating circumstances against
the aggravating factors.
Neither federal constitutional doctrine under Apprendi and Ring nor
Indiana state jurisprudence leads to the requirement that weighing be done
under a reasonable doubt standard. In Bivins v. State, 642 N.E.2d. 928,
946 (Ind. 1994), we concluded, as a matter of state law, that “[t]he
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.” (citations omitted).[3] Apprendi and
its progeny do not change this conclusion. At its core, Ritchie’s
contention is that the outcome of the weighing process constitutes an
eligibility factor for imposition of the death penalty. If that were true,
the Sixth Amendment under Apprendi and Ring would require that it be
subject to a reasonable doubt standard. But we do not agree with that
premise. Rather, the federal constitution requires that eligibility for
the death penalty be determined by the jury beyond a reasonable doubt, but
it does not require that the decision whether to impose death be made by
the jury, and it does not require the weighing, whether by judge or jury,
to be under a reasonable doubt standard.
Other states with similar sentencing schemes have reached the same
conclusion. Before the 2002 amendment to the Indiana Death Penalty
Statute, the jury made a recommendation but the judge was the ultimate
weigher, just as in non death penalty sentencing. The weighing process
determined whether the death penalty was to be applied, but eligibility for
the death penalty was complete upon the finding of an eligibility factor.
If, as Ritchie claims, weighing is required to be performed by the jury
under a reasonable doubt standard, the pre-2000 Indiana scheme, and the
current statute in Delaware, would violate the Sixth Amendment. We
conclude that neither is the case.
The Supreme Court of Delaware in Brice v. State, 815 A.2d 314 (Del.
2003), addressed the post-Ring constitutionality of Delaware’s death
penalty statute. That state’s statute assigns to the sentencing judge the
sole responsibility for determining whether to impose the death penalty
after weighing aggravating and mitigating factors. In the view of the
Supreme Court of Delaware, this approach remains constitutional after Ring.
Ring does not apply to the weighing phase because weighing does not
increase the maximum punishment. Rather it resolved the punishment to be
administered within the range fixed by the fact finding. It is designed to
“ensure that the punishment imposed is appropriate and proportional.” Id.
at 322.
The analysis of the California Supreme Court is consistent with this
view. Under the California statute, if the jury finds a “special
circumstance” in the guilt phase, a penalty phase determines whether to
impose death. People v. Prieto, 66 P.3d 1123 (Cal. 2003), addressed the
claim that an instruction of presumption of innocence must be given in the
penalty phase. The California Supreme Court rejected this claim and
observed that Ring and Apprendi are satisfied by the California statutory
scheme:
Under the California death penalty scheme, once the defendant has been
convicted of first degree murder and one or more special circumstances
has been found true beyond a reasonable doubt, death is no more than
the prescribed statutory maximum for the offense; the only alternative
is life imprisonment without the possibility of parole.
Id. at 1147 (emphasis in original) (citations omitted). In explaining this
conclusion, the California Supreme Court cited the U.S. Supreme Court’s
holding in Tuilaepa v. California, 512 U.S. 967, 972 (1994), that under the
California framework, “the jury [in the penalty phase] merely weight the
factors enumerated in section 190.3 and determines ‘whether a defendant
eligible for the death penalty should in fact receive that sentence.’” Id.
We agree and think the same reasoning applies to the Indiana statute.
Similarly, the Nebraska Supreme Court held that Ring affects “only the
narrow issue of whether there is a Sixth Amendment right to have a jury
determine the existence of any aggravating circumstance upon which a
capital sentence is based.” Nebraska v. Gales, 658 N.W.2d 604, 623 (Neb.
2003). Under Nebraska’s post-Ring death penalty statute, the jury is not
to determine mitigating circumstances or balance aggravators and
mitigators. The Court contrasted the eligibility determination which the
jury makes with the death selection process which Nebraska vests in the
judge:
It is the determination of “death eligibility” which exposes the
defendant to greater punishment, and such exposure triggers the Sixth
Amendment right to jury determination as delineated in Apprendi and
Ring. In contrast, the determination of mitigating circumstances, the
balancing of aggravating circumstances against mitigating
circumstances, and proportionality review are part of the ‘selection
decision’ in capital sentencing, which, under the current and prior
statutes, occurs only after eligibility has been determined. These
determinations cannot increase the potential punishment to which a
defendant is exposed as a consequence of the eligibility
determination. Accordingly, we do not read either Apprendi or Ring to
require that the determination of mitigating circumstances, the
balancing function, or proportionality review be undertaken by a jury.
Id. at 627-28 (citations omitted).
The Maryland Supreme Court reached the same conclusion. Maryland’s
death penalty statute allows imposition of a death sentence if the
sentencing authority determines that aggravating circumstances outweigh any
mitigating circumstances by a preponderance of the evidence. Oken v. State,
835 A.2d 1105, 1147 (Md. 2003). In holding the preponderance of the
evidence standard constitutional, the Court stated:
As is readily apparent from the opinion of the Court, Ring only
addresses the eligibility phase of the sentencing process. Those
aggravating factors which narrow the class of death-eligible
defendants for Eighth Amendment purposes must be found by a proper
sentencing authority beyond a reasonable doubt in order to comply with
the requirements of the Sixth Amendment. Contrary to the present
assertions of Oken, Ring holds no implications for the selection phase
of Maryland’s sentencing process.
Id.
We note the contrary view of the Nevada Supreme Court. In Johnson v.
State, 59 P.3d 450 (Nev. 2002), that Court concluded that the weighing
process is in part a factual determination, not merely discretionary
weighing. Id. at 460. Although the Nevada Supreme Court observed that
Ring expressly did not address any “Sixth Amendment claim with respect to
mitigating circumstances,” the court concluded that Ring required a jury
finding as to weighing. Id. For the reasons already given we respectfully
disagree.
In sum, we conclude 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. Indiana
now places the weighing process in the hands of the jury, but this does not
convert the weighing process into an eligibility factor. The outcome of
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. And as a matter of Indiana state
law, under the Indiana death penalty statute the weighing process is not
subject to a reasonable doubt standard. That second step, consistent with
the view we expressed in Bivins, is in part a determination whether to
impose the maximum sentence allowed. That is an exercise in judgment that
is not capable of evaluation beyond a reasonable doubt, and our statute
properly omits any standard by which it is to be measured.
VII. Trial Rule 59(J)(7)
Indiana Trial Rules apply to criminal proceedings if they do not
conflict with the Rules of Criminal Procedure. Moore v. State, 403 N.E.2d
335, 336 (Ind. 1980). Indiana Criminal Rule 16(B) expressly incorporates
Trial Rule 59 dealing with Motions to Correct Error insofar as applicable
and when not in conflict with any specific rule adopted by the Indiana
Supreme Court for the conduct of criminal procedure. Ritchie contends that
the death penalty statute conflicts with Trial Rule 59. Indiana Trial Rule
59(J)(7) provides that a trial court is to grant a new trial if the jury
verdict is against the weight of the evidence. Ritchie contends that this
Rule trumps Indiana Code section 35-50-2-9(e)(2) (2002) which requires a
trial judge, after receiving the jury’s “recommendation” in a death penalty
case, to sentence the defendant “accordingly.”
In general, if a statute conflicts with a validly adopted Trial Rule,
the rule prevails. Harrison v. State, 644 N.E.2d 1243, 1251 n.14 (Ind.
1995) (overruled on other grounds). But here we find no conflict. By its
terms, Rule 59(J)(7) applies to “verdicts, judgments, and findings.” The
Rule does not apply to the weighing process that occurs pursuant to the
Death Penalty Statute, because that process is neither a verdict, a
judgment, nor a finding. As explained in Part VI, the weighing process in
Indiana’s Death Penalty Statute differs from the traditional jury functions
of finding facts and reaching a verdict. The weighing process is similar
to the exercise undertaken by the judge in all contexts other than the
death penalty. Just as it does not lend itself to being judged “beyond a
reasonable doubt,” it is not susceptible to evaluation as against the
weight of the evidence.
VIII. Prosecutorial Misconduct
Ritchie contends that two instances of alleged prosecutorial
misconduct warrant a mistrial. If an appellant properly preserves the
issue of prosecutorial misconduct for appeal the reviewing court first
determines whether misconduct occurred, and if so whether it had a probable
persuasive effect on the jury. Brown v. State, 799 N.E.2d 1064 (Ind. 2003);
Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998). “Although often phrased in
terms of ‘grave peril,’ a claim of improper argument to the jury “is
measured by the probable persuasive effect of any misconduct on the jury’s
decision and whether there were repeated instances of misconduct which
would evidence a deliberate attempt to improperly prejudice the defendant.”
Brown, 799 N.E.2d 1064, 1066 n.1 (citations omitted); Lopez v. State, 527
N.E.2d 1119, 1125 (Ind. 1988). See also, Rodriguez v. State, 795 N.E.2d
1054, 1059 (Ind. Ct. App. 2003) (trans. denied). We conclude that these
occurrences do not warrant a new trial.
A. Michael Moody’s testimony
Ritchie planned to call his accomplice, Michael Moody, as a witness.
Subsequently, Moody invoked his Fifth Amendment rights because the
prosecution notified Moody that it planned to charge Moody in connection
with the death of Officer Toney. Ritchie contends that the State’s
charging Moody functionally prevented Moody from testifying and giving
exculpatory evidence at trial.[4] Ritchie offers no evidence that the
State overstepped its authority or deliberately charged Moody for the
purpose of preventing him from testifying. Prosecutorial misconduct may
occur when the prosecution chills potential defense testimony by threats of
prosecution or vindictive behavior. To prove misconduct of this type, the
defendant must show that the State acted with the deliberate “intention of
distorting the judicial fact-finding process.” Moore v. State, 655 N.E.2d
1251, 1253 (Ind. Ct. App. 1995) (citations omitted). The mere fact that
the State charged Moody after Ritchie listed Moody as a witness does not
establish that the State purposely did this to distort fact-finding in
Ritchie’s case. Ritchie provides no other evidence to support this claim,
and this showing is not enough. Unlike United States v. Valenzuala-Bernal,
458 U.S. 858 (1982), where the government deported the witness, Moody’s
unavailability resulted from his unilateral election to exercise his Fifth
Amendment right.
B. Ritchie’s Tattoo
The prosecutor referred during the guilt phase to a tattoo on
Ritchie’s neck displaying the numbers three and seven. Ritchie contends
that this was a reference to officer Toney’s badge number. There is no
showing that the jury was aware that Officer Toney’s badge number was 37.
The potential prejudice is therefore solely whatever effect Ritchie’s
having a tattoo might have on the jury. Ritchie argues that this reference
constituted prosecutorial misconduct because the trial judge had granted
Ritchie’s motion in limine to bar reference to the tattoo during the guilt
phase. Sanctions for violation of the trial court’s pretrial order are for
the trial court to assess. Underwood v. State, 644 N.E.2d 108, 111 (Ind.
1994). The issue before this Court is whether the misconduct requires a
retrial, not whether it violates a trial court order.
As a freestanding ground for mistrial, the trial court’s rulings as to
misconduct are reviewed for abuse of discretion. Although the reference may
have constituted misconduct, in order to grant a mistrial, the trial court
must determine that no lesser step could have rectified the situation. Id.
“The trial court has discretion in determining whether to grant a mistrial,
and the decision is afforded great deference on appeal because the trial
court is in the best position to gauge the surrounding circumstances of the
event and its impact on the jury.” Schlomer v. State, 580 N.E.2d 950, 955
(Ind. 1991). The trial court felt that the reference was not so
prejudicial to warrant a new trial. We hold that the trial court did not
abuse its discretion in ruling as it did and we decline to disturb the
trial judge’s ruling.
IX. Sufficiency of the Evidence
Ritchie challenges the sufficiency of the evidence that he had the
requisite mens rea to support the murder conviction. As a general matter,
when reviewing a claim of insufficient evidence, we decline to reweigh the
evidence and substitute our judgment for that of the trial court. Soward v.
State, 716 N.E.2d 423, 425 (Ind. 1999). A claim of insufficient evidence
will prevail if no reasonable trier of fact could have found Ritchie guilty
beyond a reasonable doubt. Torres v. State, 673 N.E.2d 472, 473 (Ind.
1996). Ritchie argues that he shot at Officer Toney without aiming, and
there is therefore insufficient evidence to show intent to kill. Ritchie
contends that certain evidence presented at trial displays his lack of
intent. Ritchie notes that the expert witnesses could not establish
whether Ritchie was stationary or not, or which way he was facing when he
fired the shots, or whether he was moving towards or away from Officer
Toney. Either an intentional or a knowing killing is required for murder.
Ind. Code § 35-41-2-2 (1998). Lehman v. State, 730 N.E.2d 701, 704 (Ind.
2000). A person “knowingly” kills when aware of a high probability that he
is engaged in a killing. A person acts intentionally if “when he engages
in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-2(a-
b); Heavrin v. State, 675 N.E.2d 1075, 1079 (Ind. 1996). Both intentional
and knowing actions may be inferred from the circumstances. Mitchell v.
State, 557 N.E.2d 660, 664 (Ind. 1990); Johansen v. State, 499 N.E.2d 1128,
1132 (Ind. 1986); Cole v. State, 475 N.E.2d 306, 308 (Ind. 1985). Shooting
a handgun, even if merely shooting backwards without stopping and aiming,
in an effort to “slow down” a pursuing officer meets the test of “knowing.”
Francis v. State, 758 N.E.2d 528, 535 (Ind. 2001); Hawkins v. State, 748
N.E.2d 362, 363 (Ind. 2001). Ritchie claims he did not physically “trap”
officer Toney and methodically murder him. A reasonable trier of fact
could nevertheless readily find that his conduct satisfied the element of a
knowing killing.
Even if we accept Ritchie’s claim that the shooting was subjectively
intended to “slow down” officer Toney, one who fires a handgun in this
manner may be found to be “aware of a high probability” that death will
result. Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998). Accord Cook v.
State, 675 N.E.2d 687, 692 (Ind. 1996) (“Firing three shots in the general
direction of a victim constitutes using a deadly weapon in a manner likely
to cause death.”) Ritchie fired four shots, and at least two were fired
from a stationary position. Finally, there is no serious doubt that
Ritchie was aware his victim was a law enforcement officer. These facts
are enough for a reasonable trier of fact to conclude that Ritchie knew he
was being chased by a law enforcement officer and that he knowingly killed
Officer Toney. The jury was properly instructed on this point and so
found.
X. Juror Note
After the verdict, but before the jury retired to deliberate on the
death penalty, a juror sent a note to the trial judge stating that she
wanted to file a complaint against one of Ritchie’s attorneys because of
his reference to her during his closing argument. Specifically, the juror
complained of two statements. First, the defense attorney said: “The
foreman will write their name, or should I say forewoman, because we all
know who that is.” The juror thought it was improper for Ritchie’s counsel
to identify the foreperson in that manner. Second, Ritchie’s counsel
mentioned a song in closing argument and noted “[t]his one goes so far back
none of you remember it, but [the foreperson] . . . .” The foreperson was
offended by what she saw as counsel’s singling her out and identifying her
by name in front of the entire courtroom. She equated this to a moral
wrong. In response, the trial judge inquired as to whether the attorney’s
comments affected the juror’s deliberations. She replied that it did not
and added her view that it did not affect the other jurors’ deliberations.
Ritchie provides no support for the view that the mere fact that the juror
was upset with Ritchie’s attorney warrants a new trial. Rather, he
complains of a reference by his own counsel, but he asserts no claim of
ineffective assistance. Joyner v. State, 736 N.E.2d 232, 237 (Ind. 1999)
(“A defendant may not invite error and then complain on review.”)
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, and Sullivan, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion.
Rucker, J., concurs in part and dissents in part.
Because I believe the jury must find beyond a reasonable doubt that
any mitigating circumstances that exist are outweighed by the aggravating
circumstance or circumstances I respectfully dissent from Part VI of the
majority opinion.
The majority cites Bivins for the proposition that “[t]he
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.” Slip op. at 8 (quoting Bivins, 642
N.E.2d at 946). Whatever validity this proposition may have had
previously, it can no longer pass constitutional muster under the doctrine
expressed in Apprendi and Ring.
In the abstract it does appear sound to say that “[o]nce 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 weighing does not increase eligibility. Rather, it fixes the
punishment within the eligible range.” Slip op. at 10-11. Indeed the
Apprendi/Ring doctrines do not dictate which factors a State may require
for imposition of capital punishment. Rather, States are free to determine
these factors for themselves. However, once the factors are determined,
the Sixth Amendment as interpreted by Apprendi and Ring require that they
be submitted to the jury and proved beyond a reasonable doubt. Unlike the
capital sentencing schemes in some other jurisdictions,[5] our statute
unequivocally requires the existence of two distinct factors before death
can be imposed. The statute reads in pertinent part:
(e) For a defendant sentenced after June 30, 2002 . . . . [t]he
jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l).
Subsection (l) reads:
Before a sentence [of death or life without parole may be
imposed] the jury . . . 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.
I.C. § 35-50-2-9(e), (l) (emphasis added). Consistent with legislative
mandate this Court also has recognized that both factors must be
established before a capital sentence may be imposed. See, e.g., Brown v.
State, 698 N.E.2d 1132, 1144 (Ind. 1998) (Before a sentence of death may be
imposed “[o]ur death penalty statute requires the sentencer to find at
least one aggravating circumstance beyond a reasonable doubt, to consider
and evaluate any mitigating factor it may find to exist, and to weigh the
aggravators and mitigators . . . .” (emphasis added)); Judy v. State, 275
Ind. 145, 416 N.E.2d 95, 106 (1981) (“The jury may recommend the death
penalty only if it unanimously finds beyond a reasonable doubt that at
least one of the aggravating circumstances exists, and that the mitigating
circumstances, if any, do not outweigh the aggravating circumstances.”
(emphasis added)).
In essence our Legislature has chosen to make death eligibility
contingent upon the finding of two separate and independent factors. The
majority parses these factors by characterizing one as an “eligibility
factor” and the other an “exercise in judgment.” See slip op. at 8, 11.
However, regardless of the labeling, the Supreme Court has made clear that
“the relevant inquiry is one not 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?” Apprendi, 530 U.S. at 494. “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.” Ring, 536 U.S. at 602. In
this jurisdiction, the increase of a defendant’s punishment from a term of
years to a sentence of death is contingent not only upon the existence of
one or more aggravating factors, but also upon a finding that the
aggravating factor(s) outweigh(s) any mitigating factor(s). See I.C. § 35-
50-2-9(e), (l). This statutory “finding” is a necessary predicate to the
imposition of a death sentence. “[A]ll facts essential to imposition of
the level of punishment that the defendant receives—whether the statute
calls them elements of the offense, sentencing factors, or Mary Jane—must
be found by the jury beyond a reasonable doubt.” Ring, 536 U.S. at 610
(Scalia, J., concurring). Simply put, it is the structure of Indiana’s
capital sentencing statute that pulls it within the embrace of the Apprendi
and Ring doctrine. The plain language of Indiana’s capital sentencing
scheme makes death eligibility contingent upon certain findings that must
be weighed by the jury. I agree with the majority that these findings
require an “exercise in judgment.” See slip op. at 11. Nonetheless they
are at a minimum the type of findings anticipated by Apprendi and Ring and
thus require proof beyond a reasonable doubt.
This does not mean however that I would declare unconstitutional the
weighing portion of Indiana’s death penalty statute. “Every statute stands
before us clothed with the presumption of constitutionality until clearly
overcome by a contrary showing.” Eukers v. State, 728 N.E.2d 219, 221
(Ind. Ct. App. 2000). “[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.” I.N.S. v. St.
Cyr, 533 U.S. 289, 299-300 (2001) (citation omitted); Price v. State, 622
N.E.2d 954, 963 (Ind. 1993). “[C]onstitutionally doubtful constructions
should be avoided where fairly possible.” Miller v. French, 530 U.S. 327,
336 (2000) (internal quotation omitted); Bennett v. State, 801 N.E.2d 170,
174 (Ind. Ct. App. 2003), trans. not sought. I would therefore construe
section 35-50-2-9(l) of the Indiana Code 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. As
thus interpreted the statute passes constitutional muster.
The question then is what is the effect in this case of the trial
court’s failure to instruct the jury that it must apply a reasonable doubt
standard in the weighing process? The record shows the trial court gave
several preliminary as well as final jury instructions concerning the
weighing of aggravating and mitigating circumstances. None required a
reasonable doubt standard. However, the record shows that Ritchie did not
object at trial to the jury instructions given by the trial court nor did
he submit instructions of his own. Thus, this issue is waived for review
unless fundamental error occurred. Sanchez v. State, 675 N.E.2d 306, 308
(Ind. 1996). Fundamental error is error that represents a blatant
violation of basic principles rendering the trial unfair to the defendant
and thereby depriving the defendant of fundamental due process. Borders v.
State, 688 N.E.2d 874, 882 (Ind. 1997). The error must be so prejudicial
to the rights of the defendant as to make a fair trial impossible. Id. In
determining whether a claimed error denies the defendant a fair trial, we
consider whether the resulting harm or potential for harm is substantial.
Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994). The element of harm is
not shown by the fact that a defendant was ultimately convicted. Id.
Rather, it depends upon whether the defendant’s right to a fair trial was
detrimentally affected by the denial of procedural opportunities for the
ascertainment of truth to which he would have been entitled. Id.
Here, Ritchie makes no claim of fundamental error nor does the record
support such a claim. As aggravating circumstances the State alleged in
the penalty phase of trial that the victim of Ritchie’s murder was a law
enforcement officer acting in the course of duty when murdered, see I.C. §
35-50-2-9(b)(6)(A); and that Ritchie committed the murder while on
probation. See I.C. § 35-50-2-9(b)(9)(C). The State incorporated evidence
introduced in the guilt phase of trial to support its allegation. In
mitigation Ritchie, who was twenty-two years of age at the time of the
murder, introduced evidence of his difficult childhood that included his
lack of bonding before the age of two. During closing argument Ritchie
highlighted his mitigation evidence and argued passionately for a term of
years or at least no more than a sentence of life without parole. Tr. at
2839-54. The jury rejected Ritchie’s argument, found that the State had
proved beyond a reasonable doubt the existence of both aggravating
circumstances, found that the aggravating circumstances were not outweighed
by the mitigating circumstances, and recommended the death penalty. Under
the circumstances Ritchie has failed to demonstrate that he was denied a
fair trial. In sum no fundamental error occurred on this issue.
For the reasons expressed, I dissent from part VI of the majority
opinion. In all other respects I concur.
-----------------------
[1] Subsection (e) of Indiana’s Death Penalty Statute was amended to
provide that for defendants “sentenced after June 30, 2002”, “if the jury
reaches a sentencing recommendation, the court shall sentence the defendant
accordingly.” Act of Mar. 26, 2002, Pub. L. No. 117-2002, 2002-2 Ind. Acts
1734. This replaced the following language: “The court shall make the
final determination of the sentence, after considering the jury’s
recommendation, and the sentence shall be based on the same standards that
the jury was required to consider. The court is not bound by the jury’s
recommendation.” Id.
[2] Some states provide in their statutes that a reasonable doubt standard
be imposed, others impose a preponderance of the evidence standard, and
some, like Indiana, are silent. Compare Ark. Code Ann. § 5-4-603 (Michie
1987); Conn. Gen. Stat. § 53a-46a (2003) (reasonable doubt standard not
directly in statute, but interpreted as such in Connecticut v. Rizzo, 833
A.2d 363, 410-11 (Conn. 2003)); N.J. Stat. Ann. § 2C:11-3(c)(3) (2004);
N.Y. Crim. Proc. Law § 400.27(11)(a) (McKinney 2004); Ohio Rev. Code Ann. §
2929.03(D)(1) (West 2004); Tenn. Code Ann. § 39-13-204(g)(1)(B) (2003);
Utah Code Ann. § 76-3-207(5)(b) (2004) (reasonable doubt), with Del. Code
Ann. tit. 11 § 4209(d)(1) (2004); Md. Code Ann. Crim. § 3-203(i)(1) (2003);
Mo. Code § 565.030.4 (West 2004) (preponderance of the evidence).
[3] The Alabama Supreme Court took a similar approach, stating “Contrary to
[Defendant]’s argument, the weighing process is not a factual
determination. In fact, the relative ‘weight’ of aggravating circumstances
and mitigating circumstances is not susceptible to any quantum of proof. .
. . Thus the weighing process is not a factual determination or an element
of an offense; instead it is a moral or legal judgment that takes into
account a theoretically limitless set of facts and that cannot be reduced
to a scientific formula or the discovery of a discrete, observable datum.”
Ex Parte Waldrop v. Alabama, 859 So.2d 1181, 1189 (Ala. 2002) (citations
omitted).
[4] Moody allegedly was to testify regarding Ritchie’s intent in that
Ritchie allegedly told Moody that he fired his gun without turning around.
Moody was also to testify that Ritchie said he did not know that the
officer had been hit. Both of these would presumably be inadmissible
hearsay. To establish Ritchie’s remorse, Ritchie says Moore would also
testify that Ritchie cried on Moody’s shoulder when he heard that he killed
Officer Toney.
[5] In support of its view the majority cites authority from foreign
jurisdictions whose death penalty statutes are materially different from
those of Indiana. See, e.g., California v. Prieto, 66 P.3d 1123 (Cal.
2003) (discussing California Penal Code section 190.2, which declares that
the “penalty for a defendant who is found guilty of murder in the first
degree is death or [life without parole] if one or more of the following
special circumstances has been found”). The weighing factor merely sets
the penalty within the maximum allowed range). See Pulley v. Harris, 465
U.S. 37, 51-52 (1984) (declaring that “[u]nder [California’s] scheme, a
person convicted of first-degree murder is sentenced to life imprisonment
unless one or more ‘special circumstances’ are found, in which case the
punishment is either death or life imprisonment without parole . . . . The
trial judge then reviews the evidence and, in light of the statutory
factors, makes an ‘independent determination as to whether the weight of
the evidence supports the jury’s findings and verdicts.’”(quoting section
190.4(e)); Brice v. Delaware 815 A.2d 314 (Del. 2003) (discussing title 11,
section 4209 of the Delaware Code, which declares: “[I]f the existence of
at least 1 statutory aggravating circumstance . . . has been found beyond a
reasonable doubt by the jury, the Court . . . shall impose a sentence of
death if the Court finds by a preponderance of the evidence . . . that the
aggravating circumstances . . . outweigh the mitigating circumstances found
by the Court to exist.” § 4209(d)(1)); Nebraska v. Gales, 658 N.W.2d 604
(Neb. 2003) (discussing sections 29-2520(4)(g) and (h) of the Nebraska
Revised Statutes under which the jury is dismissed once it finds the
existence of aggravating factors beyond a reasonable doubt: “Upon rendering
its verdict as to the determination of the aggravating circumstances, the
jury shall be discharged.” § 29-2520(4)(g). The weighing process and final
sentence are left to the discretion of a panel of judges: “If one or more
aggravating circumstances are found to exist, the court shall convene a
panel of three judges to hold a hearing to receive evidence of mitigation .
. . .” § 29-2520(4)(h).).