Attorney for Appellant Attorneys for Appellee
William W. Gooden Steve Carter
Mt. Vernon, Indiana Attorney General of
Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 65S00-0209-CR-477
Jeffrey Dean Washington,
APPELLANT (DEFENDANT BELOW),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the Posey Superior Court, No. 65D01-0112-CF-0567
The Honorable Donald E. Baier, Judge
_________________________________
On Direct Appeal
_________________________________
May 20, 2004
Rucker, Justice.
Case Summary
Based in part on his confession, Jeffrey Dean Washington was convicted
of murder in the stabbing death of his ex-girlfriend. Alleging two
statutory aggravating circumstances, the State sought life imprisonment
without parole. The jury recommended life imprisonment and the trial court
sentenced Washington accordingly. In this direct appeal Washington raises
the following rephrased issues: (1) did the trial court err in denying
Washington’s motion to suppress his confession; (2) did the trial court err
by not redacting portions of Washington’s confession; (3) did the trial
court err in refusing to instruct the jury on the lesser offense of
voluntary manslaughter; (4) did the State prove the existence of a
statutory aggravator beyond a reasonable doubt; (5) was Washington
sentenced in violation of Ring v. Arizona, 536 U.S. 584 (2002); and (6) was
the trial court’s sentencing order sufficient. We affirm the trial court’s
judgment.
Facts and Procedural History
The recent end of a romantic relationship with the victim Sandra Bass
apparently upset Washington. At some point in the late evening hours of
December 5, 2001, he walked to the apartment complex where Bass lived with
her three children and saw Bass and another man leaving the apartment
complex in Bass’ car. Bass returned a short time later, parked her car in
her assigned spot and was getting out of her car when Washington confronted
her. Armed with a butcher knife and wearing a pair of socks over his
hands, Washington shoved Bass back into the car and stabbed her at least
thirteen times. Washington fled the complex and hid the knife and his
clothes in separate locations. Bass bled to death from the stab wounds.
The following day, Washington was apprehended and questioned at length by
the police. After an initial attempt to provide the police with an alibi
for the previous night, Washington admitted stabbing Bass.
The State charged Washington with murder. Alleging that he committed
the murder while lying in wait, Ind. Code § 35-50-2-9(b)(3), and while on
probation, I.C. § 35-50-2-9(b)(9)(C), the State also sought life
imprisonment without parole. After a trial by jury Washington was
convicted as charged. At the penalty phase of trial, the jury recommended
that a sentence of life imprisonment without parole be imposed. The trial
court thereafter sentenced Washington consistent with the jury’s
recommendation. This direct appeal followed. Additional facts are set
forth below where relevant.
Discussion
I.
Motion to Suppress
Prior to trial Washington filed a motion to suppress his confession,
which the trial court denied. At trial, over Washington’s objection, the
State introduced into evidence a videotape of the police interrogation of
Washington along with a transcript of the interrogation. Washington
contends the trial court erred in failing to suppress his confession
because: (i) in advance of questioning, the police failed to advise
Washington concerning the nature of the interrogation thus rendering his
confession involuntary; (ii) the police engaged in deception thus rendering
his confession involuntary; and (iii) the police continued to question him
after he invoked his right to remain silent. We address each contention in
turn.
A. Advisement in Advance of Waiver
The record shows that after his arrest, Washington was escorted to the
Posey County jail. While in the interrogation room, Officer Marvin Heilman
presented Washington with a waiver of Miranda rights form and explained its
contents in detail. Washington read the form aloud, acknowledged that he
understood his rights, and signed the document. At that point the officer
informed Washington: “[I] just wanna talk to you a little bit about the
events of the last, last few weeks really but especially last night. . . .
[S]ome events involving Sandra Bass a former girlfriend . . . .” Joint Ex.
1 at 4. Washington contends that his waiver of Miranda rights was rendered
involuntary because the officer failed to advise him about the subject of
the interview before questioning began.
In Colorado v. Spring, 479 U.S. 564 (1987), the United States Supreme
Court explained that it had “never held that mere silence by law
enforcement officials as to the subject matter of an interrogation is
‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda rights .
. . .” Id. at 576. The Court went on to note: “Once Miranda warnings are
given, it is difficult to see how official silence could cause a suspect to
misunderstand the nature of his constitutional right—‘his right to refuse
to answer any question which might incriminate him.’” Id. The Court
observed that additional information given by the police would only go to
the “wisdom of a Miranda waiver, not its essentially voluntary and knowing
nature.” Id. at 577. Ultimately the Court concluded that “a suspect’s
awareness of all the possible subjects of questioning in advance of
interrogation is not relevant to determining whether the suspect
voluntarily, knowingly, and intelligently waived his Fifth Amendment
privilege.” Id.; see also Allen v. State, 686 N.E.2d 760, 773 (Ind. 1997)
(applying the rule set forth in Spring and noting “[t]he constitutional
issue does not concern the tactical wisdom of the defendant’s choice to
speak, but only the defendant’s voluntariness in choosing to speak”). In
this case the police officer’s failure to advise Washington in advance of
the purpose of the interrogation did not render involuntary Washington’s
waiver of his Miranda rights. Washington cannot prevail on this issue.
B. Police Deception
While in custody Washington was interrogated by at least two different
officers, including Heilman and Gary Gilbert. During the interrogation
Officer Heilman made the following statements:
We’ll prove to you her blood’s all over your clothes and I’ll
prove to you that you were there when she died.
You got your supposedly your best friend in the world’s blood on
your clothes.
Joint Ex. 1 at 111. Officer Gilbert added:
[W]e’ve got physical evidence from her blood on your clothes.
Her blood on your clothes Jeff.
Those are your clothes, that’s her blood on your clothes.
Id. at 112, 119, 133. In addition Officer Heilman asserted:
Your sisters, your grandma and your mother, they’ve all been
talking to us all night scared to death, what happened to Jeff.
What’s he going to do to himself. You know they all think you
did it.
Id. at 134 (emphasis added). Washington complains that at the time of the
interrogation neither Officer Heilman nor Officer Gilbert knew whether
there was blood on Washington’s clothing nor, obviously, whether any such
blood belonged to Bass. Washington also complains that at the suppression
hearing, Officer Heilman admitted that the statement “you know they all
think you did it” was generally not true. According to Washington the
foregoing conduct by the officers was deceptive thus rendering his
confession involuntary.
When a defendant challenges the admissibility of his confession, the
State must prove beyond a reasonable doubt that the confession was given
voluntarily. Carter v. State, 730 N.E.2d 155, 157 (Ind. 2000).[1] The
voluntariness of a confession is determined from the “totality of the
circumstances.” Berry v. State, 703 N.E.2d 154, 157 (Ind. 1998). In turn,
the “totality of the circumstances” test focuses on the entire
interrogation, not on any single act by police or condition of the suspect.
Light v. State, 547 N.E.2d 1073, 1079 (Ind. 1989). We review the record
for evidence of inducement by way of violence, threats, promises, or other
improper influences. Berry, 703 N.E.2d at 157.
It is technically true that at the time of the interrogation the
officers did not know whether Washington’s clothing was covered with Bass’
blood. At best this was pure conjecture offered as fact. However, “not
all police interrogation statements of conjecture, presented as fact,
constitute police deception.” Miller v. State, 770 N.E.2d 763, 767 n.5
(Ind. 2002). Rather, where the police have a “good faith basis for their
technical falsehood, then their action will not be deemed deceptive.” Id.
at 768 n.5. The record shows that at the time of the interrogation, the
police had recovered clothing that appeared to be bloodstained and had
spoken with a witness who had seen Washington changing out of those clothes
the previous night. R. at 18-19, 34-36. The clothing had been submitted to
the police crime laboratory, although the results had not yet been
returned.[2] We conclude the officers had a good faith basis for asserting
that Washington’s clothing was stained with the victim’s blood.
Accordingly, the officers’ statements were not deceptive.
Concerning Officer Heilman’s statement that “you know they all think
you did it” Washington does not explain how this statement rendered his
confession involuntary. In like fashion we do not see “an apparent
explanation as to why this comment would render defendant’s statement
involuntary.” Heavrin v. State, 675 N.E.2d 1075, 1081 (Ind. 1996)
(rejecting a claim that an officer’s reference to defendant’s wife’s
infidelities rendered his subsequent statement involuntary).
C. Invocation of Right to Silence
In support of his claim that the interrogating officers continued to
question him after he invoked his right to remain silent, Washington
directs our attention to that portion of the interrogation in which he at
one point declared: “I’m tired of talking. I’m listening.” Joint Ex. 1
at 109. He also directs our attention to another portion of the
interrogation in which the following exchange occurred:
[Washington]: I’m not gonna say nothing man you’re . . . you’re
just talking. What does it look like I’m not going to admit to
something I didn’t do. I’ll let the jury decide that.
[Officer Gilbert]: Are you telling us that those are not your
clothes?
[Washington]: I’m not saying a thing.
Id. at 114.
When a person “indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must
cease.” Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). In Haviland v.
State, 677 N.E.2d 509 (Ind. 1997) this court described as “intensely fact-
sensitive” the analysis of a purported assertion of the right to remain
silent. Id. at 514. In that case, after waiving his right to remain
silent, the defendant said several times during the course of a custodial
interrogation, “I’m through with this.” Id. at 513. We acknowledged that
a defendant “need not declare any particular words of legal magic to cut
off questioning.” Id. at 514. However, in affirming the trial court, we
reasoned that the defendant “answered questions without pausing or
indicating in any manner that he would no longer respond.” Id. The same
is true here.
After declaring that he was “tired of talking” and that he was not
going to say anything, Washington continued to engage the interrogating
officers in conversation. The record shows that several times Washington
questioned the officers concerning the strength of evidence against him.
Joint Ex. 1 at 116, 120-28. And at one point when Officer Heilman asked
Washington whether he wanted the questioning to stop Washington responded,
“I want to see the pictures there.” Joint Ex. 1 at 122. Washington’s
comments do not demonstrate an assertion of his Fifth Amendment right to
remain silent. Accordingly, Washington’s claim on this issue fails. In
sum, the trial court properly denied Washington’s motion to suppress.
II.
Redaction of Confession
Washington next contends the trial court erred in failing to redact
portions of his videotaped interrogation and the typed transcript of the
interrogation. The facts are these. Prior to trial Washington moved to
redact certain portions of the videotaped interrogation and the typed
transcription. The entire transcribed statement consisted of 157 pages of
singled-spaced type. To accomplish that end, Washington penciled in red
those portions of the statement he sought to have stricken. Contending
that “maybe higher than ninety-five (95) percent of the verbiage in this
statement are statements made by the detectives,” R. at 52, Washington
moved to redact all, or nearly all, of approximately twenty pages of the
statement. Although acknowledging case authority that would allow the
unredacted statement into evidence provided a proper admonishment is given,
Washington continued:
My argument is going to be this, this statement is full of the
detectives stating their opinion as to the . . . In some cases
it was wrong, in some cases it was out and out . . . you know,
absolutely wrong, as we established at the hearing we had on the
motion to suppress, and the detectives acknowledged some of what
they said was wrong. So, some of it’s opinion, a lot of it’s
claiming what . . . a lot of it’s hearsay what other people had
said.
Id. at 53. The trial court denied Washington’s motion; however, before the
videotape was played in open court, the trial court admonished the jury as
follows:
I also have a brief admonishment that I want to read to you
concerning the contents of the videotape. On the videotape you
will see . . . are some statements made by Detective Marvin
Heilman and Detective Gary Gilbert. You are instructed that
what the police officers say in the course of the interview is
not evidence and is not to be considered by you as evidence.
Certain things that the police officer say [sic] and
representations that they make during the interview may or may
not be true. These statements should be considered only as part
of the questioning of the Defendant for the purpose of eliciting
or drawing out information from the Defendant.
Id. at 522.
In Strong v. State, 538 N.E.2d 924 (Ind. 1989), this Court held that
an audiotape of the defendant’s confession to police was admissible,
including the interrogating officer’s statement, “I want to caution you on
one thing. Physical evidence proof, stuff that Lt. Loy saw and found in
your house on that night [d]oesn’t match stuff that you tell us . . . .”
Id. at 928. Responding to the defendant’s claim of hearsay, we found the
statement to be admissible for two reasons. First, the statement was not
hearsay because it was not offered to prove the truth of the matters
asserted. Id. Second, the trial court thoroughly explained in an
admonishment to the jury that they were to consider the statement to be a
method of questioning intended to elicit information from the defendant and
not as evidence of guilt.[3] Id.
In Smith v. State, 721 N.E.2d 213 (Ind. 1999), this Court found
various statements of the interrogating officer to be inadmissible. Id. at
216. We reversed the judgment and remanded the cause for further
proceedings. Unlike Strong, the trial court in Smith gave no limiting
instruction or admonishment. We held that although a trial court has no
affirmative duty to consider giving an admonishment in the absence of a
party’s request, it is error to admit statements by an interrogating
officer without any limiting instruction or admonishment. Id.
Apparently recognizing that in light of Strong and Smith his hearsay
claim cannot prevail, Washington abandons this argument on appeal.
Instead, citing Indiana Evidence Rule 704(b), he now claims error because
the interrogating officer made several references to Washington’s alleged
lack of truthfulness during the course of the interrogation.[4] The Rule
provides: “Witnesses may not testify to opinions concerning intent, guilt,
or innocence in a criminal case; the truth or falsity of allegations;
whether a witness has testified truthfully; or legal conclusions.” Id.; see
also Shepherd v. State, 538 N.E.2d 242, 243 (Ind. 1989) (“Neither lay
witnesses nor expert witnesses are competent to testify that another
witness is or is not telling the truth.”).
We first observe that each reference about which Washington complains
is buried within and scattered throughout the twenty pages that he sought
to have stricken. Indeed only a careful examination of the transcript even
reveals their existence. We fail to see how a jury could have been
persuaded by these comments. More importantly, a trial court cannot be
found to have erred as to an issue or argument that it never had an
opportunity to consider. Accordingly, as a general rule, a party may not
present an argument or issue on appeal unless the party raised that
argument or issue before the trial court. Marshall v. State, 621 N.E.2d
308, 314 (Ind. 1993). In such circumstances the argument is waived. Id.
Because Washington did not direct the trial court’s attention to a possible
Rule 704 violation, he has waived consideration of this argument on appeal.
III.
Refusal of Tendered Instruction
Washington tendered an instruction on the lesser offense of voluntary
manslaughter, which the trial court denied. Washington contends the trial
court erred in refusing the tendered instruction because there was a
serious evidentiary dispute that distinguished murder from voluntary
manslaughter.
In deciding whether to give a tendered instruction on a lesser
included offense, the trial court is required to determine whether the
offense is either inherently or factually included in the charged offense
and whether there is a serious evidentiary dispute regarding any element
that distinguishes the greater offense from the lesser offense. Evans v.
State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (citing Wright v. State, 658
N.E.2d 563, 566-67 (Ind. 1995)). Voluntary manslaughter is an inherently
included lesser offense of murder. Wilson v. State, 697 N.E.2d 466, 474
(Ind. 1998). The only element distinguishing murder from voluntary
manslaughter is “sudden heat,” which is an evidentiary predicate that
allows mitigation of a murder charge to voluntary manslaughter. Dearman v.
State, 743 N.E.2d 757, 760 (Ind. 2001). “Sudden heat” is characterized as
anger, rage, resentment, or terror sufficient to obscure the reason of an
ordinary person, preventing deliberation and premeditation, excluding
malice, and rendering a person incapable of cool reflection. Id. An
instruction on voluntary manslaughter is supported if there exists evidence
of sufficient provocation to induce passion that renders a reasonable
person incapable of cool reflection. Id. Any appreciable evidence of
sudden heat justifies an instruction on voluntary manslaughter. Id.
In this case the trial court made an explicit finding that there was
an absence of sudden heat. Thus, we review the trial court’s refusal to
give Washington’s tendered instruction on voluntary manslaughter for an
abuse of discretion. Culver v. State, 727 N.E.2d 1062, 1070 (Ind. 2000).
Washington insists there was “appreciable evidence of sudden heat.” See
Dearman, 743 N.E.2d at 760. In support, Washington points to his
statements to the police that because he saw Bass with another man he “just
lost it” and that he “just couldn’t deal with it no [sic] more.” R. at
546. In essence Washington seems to contend that he assaulted Bass in a
fit of jealous rage. First, anger alone is not sufficient to support an
instruction on sudden heat. Wilson, 697 N.E.2d at 474. Second, the record
does not support Washington’s claim that he acted out of a burst of anger.
Washington first saw Bass and another man earlier in the evening. However,
he did not attack her until several hours later after he had obtained a
knife, covered his hands with socks, and waited for the victim to return.
This evidence shows a degree of deliberation and cool reflection
inconsistent with sudden heat. Accordingly we conclude the trial court did
not abuse its discretion in refusing to give Washington’s tendered
instruction on voluntary manslaughter.
IV.
Lying in Wait
In a murder case, the State may seek either a death sentence or a
sentence of life imprisonment without parole by alleging the existence of
at least one of the aggravating circumstances listed in Indiana Code
section 35-50-2-9(b). Here, the State sought a sentence of life
imprisonment without parole by charging two aggravating circumstances:
murder while lying in wait and murder while on probation. See I.C. § 35-50-
2-9(b)(3), (b)(9)(C). Washington contends that the State failed to prove
beyond a reasonable doubt the aggravating circumstance of lying in wait.
He does not challenge the sufficiency of the evidence with respect to the
(b)(9)(C) aggravator.
Our standard of review for examining the sufficiency of the evidence
to support a statutory aggravator is the same standard for determining the
sufficiency of the evidence to convict. We examine the evidence tending to
support the verdict and all reasonable inferences therefrom without
weighing the evidence or assessing witness credibility. Matheney v. State,
583 N.E.2d 1202, 1208 (Ind. 1992). From this viewpoint, we determine
whether the evidence constitutes substantial evidence of probative value
from which a reasonable trier of fact could find the existence of the
aggravator beyond a reasonable doubt. Fleenor v. State, 622 N.E.2d 140,
151 (Ind. 1993).
“Lying in wait involves the elements of ‘watching, waiting, and
concealment from the person killed with the intent to kill or inflict
bodily injury upon that person.’” Ingle v. State, 746 N.E.2d 927, 940
(Ind. 2001) (quoting Davis v. State, 477 N.E.2d 889, 896 (Ind. 1985) and
Matheney, 583 N.E.2d at 1208). Contending that the only evidence of how
the murder was committed comes from his confession, Washington summarizes
the evidence and concludes, “a reviewing court cannot conclude that a
reasonable jury could infer ‘waiting’ beyond a reasonable doubt.” Br. of
Appellant at 23. We believe Washington’s summary is incomplete.
In his confession Washington told the officers that he observed Bass
and another man earlier in the evening and became upset. Joint Ex. 1 at
138. A video surveillance camera located in the parking lot of Bass’
apartment complex showed that later that night, at around 10:40 p.m.,
Washington was present at the complex. R. at 399-406. Washington knew
that Bass and the other man were inside Bass’ apartment. Joint Ex. 1 at
147. Washington then left the parking lot and retrieved a butcher knife
from his home and tube socks to wear over his hands so that he would leave
no fingerprints. Id. at 144, 151. An eyewitness saw Washington about a
block from Bass’ apartment complex walking toward the complex shortly after
11:00 p.m., and the surveillance video captures Washington in the parking
lot at around 11:24 p.m. R. at 382-84, 404-07; State’s Ex. 33. Washington
then saw Bass and the other man leave in Bass’ car. Joint Ex. 1 at 148.
When Bass returned to the parking lot a short time later Washington “came
from behind one of the cars, behind her car” and attacked Bass by stabbing
her. Id. at 507. A neighbor of Bass discovered her body around 11:35 p.m.
R. at 410-11.
The evidence makes clear that Washington did watch and wait for Bass
in the parking lot of her apartment complex. The closer question is
whether he concealed himself from her. We have held, “The concealment must
be used ‘as a direct means to attack or gain control of the victim,’
creating a nexus between the watching, waiting, and concealment and the
ultimate attack.” Ingle, 746 N.E.2d at 940 (quoting Davis, 477 N.E.2d at
897).
In Ingle the defendant was charged with murder and the State sought
the death penalty based on two statutory aggravators, one of which was
lying in wait. The evidence in that case showed that in the early morning
hours of the killing, the defendant threw a brick through the windshield of
his ex-wife’s car. He then hid in a nearby tree and watched as his ex-wife
arrived and talked to the police about the incident. After the police left
and his ex-wife went into a nearby pub, the defendant hid a handgun in a
nearby tree and left. The defendant then rode to a Goodwill store where he
purchased clothing to be used as a disguise. Thereafter the defendant
returned to the tree, retrieved the handgun, walked into the pub, and shot
his ex-wife. We determined that while the defendant watched, waited and
concealed himself in a tree, his concealment did not constitute any part of
the murder by lying in wait. Rather, because the defendant left his place
of concealment, walked to a nearby campsite, rode to the Goodwill store,
and walked into the pub where the fatal shooting occurred, we reasoned that
the concealment was not used as a “direct means to attack or gain control
of the victim.” Id. We also observed that a substantial amount of time
had elapsed between the defendant’s concealment and the killing. Id.
The facts in Ingle are also similar to those in Davis, 477 N.E.2d at
895-97. In that case we also determined that the defendant did not commit
a murder by lying in wait. There, the defendant watched and waited from a
concealed position, but “did not use the concealment as a direct means to
attack or gain control of the victim.” Id. at 897. Rather, the defendant
went openly into the victim’s tent and forced the victim to go with him by
use of a deadly weapon. We found that “[t]here was not a sufficient
connection between the concealment and the murder . . . to support a
finding that this murder was committed ‘by lying in wait.’” Id.
The facts in this case are distinguishable from both Davis and Ingle.
The record shows that on the night of the killing, although slightly
illuminated, the parking lot was dark. Joint Ex. 1 at 10, 11. When Bass
pulled into the parking space, her car was positioned between cars parked
on either side. Id. This evidence, coupled with Washington’s statement
that he “came from behind one of the cars, behind her car” to attack Bass
was sufficient for a jury to reasonably infer that Washington was lurking
in the dark and hiding behind parked cars waiting for the opportune moment
to strike. In sum the evidence demonstrates concealment. As for the nexus
between the concealment and the attack, Washington’s confession reveals
that the attack occurred almost the moment “[Bass] opened the door.” Id.
at 140. According to Washington, “it went fast . . . I didn’t give her [a
chance].” Id. at 139-40. The record also shows that only a short amount
of time elapsed between Washington’s concealment and the killing. We
conclude that viewed in the light most favorable to the verdict, there was
substantial evidence of probative value from which the jury could find the
existence of the lying in wait aggravator beyond a reasonable doubt.
V.
Constitutional Requirements
Washington next contends that he was sentenced in violation of the
United States Supreme Court decisions in Ring and Apprendi v. New Jersey,
530 U.S. 466 (2000). In Ring, the Court overruled Walton v. Arizona, 497
U.S. 639 (1990), to the extent that it allowed the judge, and not the jury,
to find an aggravating circumstance that supported a death sentence. The
Court also determined that Apprendi applied to Arizona’s death penalty
scheme. Ring, 536 U.S. at 589. Apprendi had announced the rule that
“[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530
U.S. at 490.
In this case, Washington essentially contends that his sentence is
invalid because at the time he was sentenced, Indiana’s capital sentencing
scheme allowed the judge to find the existence of an aggravating
circumstance to support a death sentence or sentence of life without
parole. We conclude there is no violation of Ring or Apprendi here.
The record shows the jury was instructed that it may recommend the
penalty of life imprisonment without parole only if it finds that the State
proved beyond a reasonable doubt the existence of at least one of the
alleged aggravating circumstances and that any mitigating circumstances are
outweighed by any aggravating circumstance or circumstances. See
Appellant’s App. at 582. The aggravating circumstances that made
Washington eligible for a sentence of life without parole were that he had
committed the murder while lying in wait, see I.C. § 35-50-2-9(b)(3), and
that he had committed the murder while on probation. See I.C. § 35-50-2-
9(b)(9)(C). Importantly, the record also shows the trial court provided
the jury with two separate verdict forms explaining:
[I]n the event that you find that the State has failed to prove
either of the aggravating circumstances, then you should use
this form and find that a sentence of life imprisonment without
parole should not be imposed, and that would have to be signed
and dated by the foreperson. If on the other hand that you find
that the State has proven either or both of the aggravating
circumstances beyond a reasonable doubt, you should use this
verdict form and on this verdict form you should indicate which
one or both of the aggravating circumstances has been proven
beyond a reasonable doubt . . . .
R. at 579. Following the trial court’s instructions, the jury returned a
verdict form specifically finding that the State proved beyond a reasonable
doubt that Washington committed murder by lying in wait and while
Washington was on probation and that the aggravating circumstances
outweighed the mitigating circumstances. Appellant’s App. at 597. The
jury then recommended that a sentence of life imprisonment without parole
be imposed. Id. It is clear that the constitutional requirements of Ring
and Apprendi have been satisfied in this case. Washington’s claim thus
fails.
VI.
Sufficiency of the Sentencing Order
For his last allegation of error Washington complains that the trial
court’s sentencing order is not sufficient to support a sentence of life
without parole. Specifically Washington contends the sentencing order is
deficient in two respects: (i) it fails to set forth specific facts and
reasons which lead the court to find the existence of both aggravating
circumstances; and (ii) it fails to set forth the court’s personal
conclusion that a sentence of life without parole is appropriate for this
offender and this crime.
A sentence of life without parole is imposed under the same standards
and is subject to the same requirements as a death sentence. Holsinger v.
State, 750 N.E.2d 354, 362 (Ind. 2001); Pope v. State, 737 N.E.2d 374, 382
(Ind. 2000). Because a sentence of life in prison without parole is
imposed under the same standards as the death penalty, we require the same
specificity from a trial court sentencing a defendant to life in prison
without parole as we would a court sentencing a person to death. Brown v.
State, 783 N.E.2d 1121, 1127 (Ind. 2003). The capital sentencing scheme in
effect at the time of Washington’s trial made clear that the sentencing
court had a separate and independent role in assessing and weighing the
aggravating and mitigating circumstances and in making the final
determination whether to impose a particular sentence. Id. at 1128.[5]
Accordingly, we have said:
The trial court’s statement of reasons (i) must identify each
mitigating and aggravating circumstance found, (ii) must include
the specific facts and reasons which lead the court to find the
existence of each such circumstance, (iii) must articulate that
the mitigating and aggravating circumstances have been evaluated
and balanced in determination of the sentence, and (iv) must set
forth the trial court’s personal conclusion that the sentence is
appropriate punishment for this offender and this crime.
Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995) (citations omitted).
We disagree with Washington’s contention that the sentencing order
failed to set forth the trial court’s personal conclusion that the sentence
is appropriate punishment for this offender and this crime. Although not
using the precise language articulated in Harrison, the sentencing order
provides: “The Court, giving due consideration to the evidence in this
case, the evidence and arguments presented at the sentencing hearing, the
Pre-sentence Investigation Report, and the aggravating and mitigating
circumstances, finds that a sentence of life imprisonment without parole
should be imposed.” Appellant’s App. at 644. This is sufficient.
However, we do agree the sentencing order fails to set forth specific
facts and reasons that lead the court to find the existence of the
aggravating circumstances. On this point the trial court’s sentencing
order provides:
Jeffrey Dean Washington did commit the murder of Sandy Bass by
lying in wait, and
Jeffrey Dean Washington did commit the murder of Sandy Bass at a
time when said Jeffrey Dean Washington was on probation after
receiving a sentence for the commission of a felony, to wit:
serving probation after a conviction for Stalking, a felony
offense, entered in the Posey Circuit Court on January 15, 1997,
in Cause Number 65C01-9610-CF-00069.
Id. at 641. We observe that the sentencing order merely recites verbatim
the language of the jury’s verdict form. There is no indication that the
trial court engaged in a separate and independent assessment of why it
concluded that the State proved the existence of the aggravating
circumstances beyond a reasonable doubt. The sentencing order is thus
deficient.
When faced with an irregularity in a trial court’s decision to impose
the death sentence or to impose a sentence of life without parole, this
Court has various options: (1) remand to the trial court for clarification
or a new sentencing determination; (2) affirm the sentence if the error is
harmless; or (3) independently reweigh the proper aggravating and
mitigating circumstances. Brown, 783 N.E.2d at 1129; Bivins v. State, 642
N.E.2d 928, 957 (Ind. 1994). In this case, we affirm Washington’s life
sentence without parole on grounds of harmless error. We do so for the
following reasons. The trial court found no mitigating circumstances
warranting consideration. See Bivins, 642 N.E.2d at 957 (finding harmless
error in a death penalty case where trial court’s sentencing order was
deficient and declaring “significant” that the trial judge found no
mitigating factors). Washington does not contend the trial court erred in
this regard. And, although not setting forth its specific facts and
reasons for so doing, the trial court did expressly find that the charged
aggravators were proven beyond a reasonable doubt. Under section IV of
this opinion we have already determined there was sufficient evidence of
probative value from which a jury could find the existence of the lying in
wait statutory aggravator. As for the commission of a murder while on
probation, the evidence in the record supports the trial court’s conclusion
that this aggravator was proved beyond a reasonable doubt, and Washington
does not contend otherwise. The trial court also expressly found that the
aggravating circumstances outweighed any mitigating circumstances.
Examining the evidence before the trial court, the jury’s
recommendation in favor of life imprisonment without parole, and the trial
court’s sentencing order, we are convinced that the trial court would have
sentenced Washington to life imprisonment without parole despite the fact
that the trial court failed to set forth specific facts as to why it
concluded that the State proved the existence of the aggravating
circumstances beyond a reasonable doubt. Thus although the trial court
erred in failing to set forth specific facts and reasons to support its
conclusion, the error was harmless.
Conclusion
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
-----------------------
[1] Indiana courts require the State to prove the voluntariness of a
confession beyond a reasonable doubt, unlike federal decisions, which
require only proof by a preponderance of the evidence. See Henry v. State,
738 N.E.2d 663, 664 n.1 (Ind. 2000).
[2] The record shows that the officers’ conjectural statements proved to be
true. At trial the State introduced forensic evidence that the shirt and
socks Washington wore the night of the stabbing were stained with Bass’
blood. R. at 476-77, 491-95; State’s Exs. 35, 39, 40, 45.
[3] We observe that the admonishment the trial court gave here was nearly
identical to the admonishment the trial court gave in Strong.
[4] Specifically, Officer Heilman remarked, “[W]e know what you’re lying
about and I understand you know why you wouldn’t just come up and want to
tell the truth from the start. . . . [W]e know you’re lying,” Joint Ex. 1
at 109; “You lied of course,” id. at 113; “But that’s not true and you know
it’s not,” id.; “[Y]ou haven’t told us the truth you just keep going the
other direction,” id. at 117; “You can’t tell the truth cause you’re trying
to be untruthful you’re trying to lie around the issue,” id.; “[We] know
what you’re telling us in [sic] not the truth man,” id. at 118-19; “Lying
about everything, where you been,” id. at 119; “You lied,” id. at 136.
[5] Subsequently amended, the statute now provides in pertinent part “For a
defendant sentenced after June 30, 2002 . . . [i]f the jury reaches a
sentencing recommendation, the court shall sentence the defendant
accordingly.” I.C. § 35-50-2-9(e) (West Supp. 2003).