ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK E. CHAVIS III JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
SUSAN D. BURKE RANDI E. FROUG
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
BRYCE D. POPE, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 02S00-9807-CR-411
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9709-CF-553
ON DIRECT APPEAL
October 25, 2000
RUCKER, Justice
A jury convicted nineteen-year-old Bryce Pope of two counts of murder, two
counts of felony murder, and one count of robbery in connection with the
shooting deaths of Richard Dergins and his wife Sara. The trial court
sentenced Pope to two consecutive terms of life in prison without parole
for each murder conviction and to a term of fifty years for the robbery
conviction to be served consecutively to the life terms. The trial court
did not impose sentences on the felony murder convictions. In this direct
appeal Pope raises six issues for our review which we rephrase as follows:
(1) did the trial court err in refusing Pope’s tendered jury instruction
concerning the effect of a prior conviction on witness credibility; (2) did
the trial court abuse its discretion in refusing to allow into evidence an
exhibit of bullets and related testimony that the bullets may have looked
similar to those recovered at the crime scene; (3) was Pope denied a fair
trial because the trial court did not supply the jury with a verdict form
advising that it could exercise mercy by recommending a term of years even
if the State proved beyond a reasonable doubt the statutory elements for
life without parole; (4) did the trial court err in reading an instruction
that alleged aggravating circumstances conjunctively as well as
alternatively; (5) was the jury properly instructed that the State was
required to prove an intentional killing to support one of the aggravating
circumstances for life without parole; and (6) did the trial court consider
non-statutory aggravating circumstances when imposing sentences of life
without parole.
We affirm the convictions for murder and robbery but remand for a
clarification of the trial court’s sentencing order.
Facts and Procedural History
The facts most favorable to the verdict show that Pope was a neighbor
of Richard and Sara Dergins. He was a friend of the Dergins’ teenage son
and at times spent the night at the Dergins’ home. Pope was aware the
couple kept large sums of money in the house. In the afternoon hours of
August 29, 1997, Pope, along with sixteen-year-old Aaron Thomas, went to
the Dergins’ home purportedly to return a hand tool that Pope had borrowed
earlier. Pope was armed with a .38 caliber revolver, and Thomas was armed
with a .380 caliber semi-automatic pistol. When Mr. Dergins answered the
door, Pope produced the handgun and ordered him back into the house. When
Mr. Dergins pleaded “you don’t want to do this,” Pope responded “shut up
and where’s the money at.” R. at 755-56. After ordering Mr. Dergins
throughout the house at gunpoint, Pope retrieved a black pouch containing
an undetermined amount of cash. Pope then ordered both Richard and Sara
Dergins to lie face down on the floor and fired his weapon. Arriving on
the scene police recovered two .35 caliber bullets which were designed to
be fired from a .38 caliber revolver but could not have been fired from a
.380 caliber semi-automatic pistol. A subsequent autopsy revealed that
both Richard and Sara died as a result of a gunshot wound to the back of
the head. Later bragging to a friend about the events of the day Pope
proclaimed, “I’m a murderer.” R. at 690.
Pope was charged with two counts of murder, two counts of murder in
the perpetration of a robbery, and one count of robbery resulting in
serious bodily injury. In a separate request for a sentence of life
without parole, the State alleged as an aggravating circumstance that Pope
committed a multiple murder and that he committed an intentional killing
while committing robbery. After a three-day jury trial, Pope was found
guilty as charged. The following day the jury reconvened for the penalty
phase of trial. After the presentation of evidence, the jury returned a
verdict recommending life without parole. At sentencing the trial court
found that the State proved beyond a reasonable doubt that Pope
intentionally killed the victims while committing a robbery and that he
committed a multiple murder. The court further concluded that the
aggravating circumstances outweighed the mitigating circumstances and
imposed two consecutive life sentences without parole for the murder
convictions. The trial court also sentenced Pope to fifty years for the
robbery. No sentence was imposed on the felony murder convictions. This
direct appeal followed. Additional facts are set forth below where
relevant.
Discussion
I.
Pope contends the trial court erred in refusing his tendered jury
instruction concerning the effect of a prior conviction on witness
credibility. The record shows that Pope’s accomplice, Aaron Thomas,
testified at trial after entering into a plea agreement with the State.
Thomas has a lengthy juvenile record including four adjudications for
theft, two for receiving stolen property, and one for criminal conversion.
He was confronted with his criminal past on cross-examination.[1] At the
close of the guilt phase of trial, Pope tendered the following instruction:
The fact that a witness has previously been convicted of a felony, or
a crime involving dishonesty or false statement, is also a factor you
may consider in weighing the credibility of that witness. The fact of
such a conviction does not necessarily destroy the witness’
credibility, but is one of the circumstances you may take into account
in determining the weight to be given to his testimony.
R. at 69. The trial court declined to give the instruction. Pope contends
it erred in doing so because the instruction represents a correct statement
of the law, there was evidence in the record to support giving the
instruction, and the substance of the instruction was not covered by other
instructions. See Hartman v. State, 669 N.E.2d 959, 960-61 (Ind. 1996).
Pope’s argument fails for two reasons. First, contrary to Pope’s
assertion, the record shows that the substance of witness credibility was
covered by other instructions the trial court gave. R. at 1028-30. On
this ground alone the trial court did not err in refusing to give Pope’s
tendered instruction. Second, “an instruction directed to the testimony of
one witness erroneously invades the province of the jury when the
instruction intimates an opinion on the credibility of a witness or the
weight to be given to his testimony.” Fox v. State, 497 N.E.2d 221, 225
(Ind. 1986); see also Webb v. State, 259 Ind. 101, 105-07, 284 N.E.2d 812,
814-15 (Ind. 1972) (finding error, although not fundamental error, in the
trial court giving an instruction declaring that the credibility of a
witness could be attacked by evidence that the witness had been convicted
of a crime where the instruction applied only to one witness); compare
Black v. State, 287 N.E.2d 354, 358 (Ind. Ct. App. 1972) (holding that
where several witnesses were impeached by evidence of prior convictions
there was no error in giving an instruction concerning the effect of prior
convictions on the weight to be given to a witness’ testimony). In this
case Pope’s tendered instruction appears to be general in nature applying
to all witnesses. However, the record is clear that only one witness was
impeached by evidence of his criminal convictions. Because the instruction
applied to one witness only, it was improper. For this additional reason
the trial court correctly refused to give Pope’s tendered instruction.
II.
Pope next contends the trial court erred in not allowing him to
“pursue evidence that Aaron Thomas may have possessed bullets which could
have been consistent with those used in the murders of the Dergins.” Brief
of Appellant at 19. This allegation of error is based on the following
facts. Pope’s mother testified at trial that approximately ten days before
the shootings Thomas was a passenger in her car. According to her, as
Thomas exited the car she saw bullets rolling around on the front seat and
floor in the area where Thomas had been seated. Apparently she retrieved
the bullets but later threw them away. Through his mother, Pope sought to
introduce as an exhibit bullets that allegedly looked similar to those she
discovered in the car. Over the State’s relevancy objection the trial
court did not allow the exhibit into evidence and precluded further
questioning on the subject. Pope’s apparent theory was that the two
bullets found at the crime scene matched those in Thomas’ possession.
Thus, Pope argued before the trial court and again on appeal that he should
have been allowed to introduce the exhibit at trial to show it was more
likely than not that Thomas fired the fatal shots.
Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” Evid. R. 401. We first observe that it would be only
marginally relevant in this case if the bullets in Thomas’ possession were
the same bullets that police recovered from the crime scene. The fact
that a person has in his possession the same instrumentality as that used
in a crime has only the slightest tendency to support an inference that the
person committed the crime. That is especially so where possession of the
instrumentality is remote in time from the date the crime occurred. See,
e.g., Short v. State, 443 N.E.2d 298, 307 (Ind. 1982); Williams v. State,
714 N.E.2d 671, 673 (Ind. Ct. App. 1999) (both cases declaring that the
mere possession of stolen property is less probative of guilt of theft when
that possession is not recent in relation to the commission of the theft).
In this case we do not view Thomas’ possession of the questioned bullets as
even marginally relevant. Not only were the bullets admittedly not the
same, but also there is no evidence in the record that any witness compared
the bullets recovered at the crime scene with Pope’s proposed exhibit. In
addition, there is no evidence in the record that Pope’s mother had any
familiarity with firearms in general or bullets in particular. Further,
Thomas possessed the bullets over a week before the Derginses were
murdered. There is simply no link between the bullets recovered at the
crime scene and the bullets Pope proposed to introduce into evidence. A
decision concerning the relevance of proferred evidence is left to the
sound discretion of the trial court, and its decision is afforded a great
deal of deference on appeal. Bacher v. State, 686 N.E.2d 791, 793 (Ind.
1997). We will only reverse a trial court upon a showing that the trial
court manifestly abused its discretion and the defendant was denied a fair
trial. Henderson v. State, 455 N.E.2d 1117, 1119 (Ind. 1983). There was
no abuse of discretion here.
III.
Pope next contends the trial court erred during the penalty phase of
trial by failing to inform the jury that it could exercise what he
characterizes as a “mercy option,” that is, recommend a term of years even
if the State proved beyond a reasonable doubt the statutory elements
necessary for imposition of a sentence of life without parole. More
specifically, Pope complains that none of the six verdict forms the trial
court submitted to the jury contained the “mercy option.”
Under Indiana Code § 35-50-2-9 “the jury may recommend . . . life
imprisonment without parole” only if it finds: “(1) the state has proved
by 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(e), (k) (emphasis added). It is
thus apparent that the statute does not mandate the jury to recommend life
without parole, but only gives it that option.
In this case, the record shows that in both the preliminary and final
instructions of the penalty phase of trial the trial court instructed the
jury in part as follows:
If the State does prove beyond a reasonable doubt the existence of at
least one aggravating circumstance and you further find that such
aggravating circumstance outweighs any mitigating circumstances, you
may recommend that the penalty of life imprisonment without parole be
imposed or you may recommend that the defendant not be sentenced to
life imprisonment without parole and that the defendant be sentenced
instead to a fixed term of years of imprisonment and be eligible
eventually for parole.
R. at 1045-46, 1076. Although not using the precise term, the trial court
in essence instructed the jury that it could exercise the so-called “mercy
option” by declining to impose life without parole even if the State
carried its statutory burden of proof. The instruction is consistent with
Article 1, Section 19 of the Indiana Constitution, which provides that a
jury in a criminal case “shall have the right to determine the law and the
facts.” See also Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994)
(commenting that because of Art. 1, § 19, a jury in a criminal case is not
bound to convict even in the face of proof of guilt beyond a reasonable
doubt). Here, Pope does not take issue with the instructions. Nor does he
challenge the verdict forms the trial court gave the jury. Rather, his
complaint is that the jury was never able to exercise the option to grant
him “mercy” because none of the verdict forms provided the appropriate
language.
Each verdict form began, “We, the jury, find” followed by an outline
of the State’s statutory burden of proof regarding aggravating and
mitigating circumstances. R. at 144-46. Where the jury found that the
statutory burden was met, the verdict form provided “we, the Jury,
therefore recommend that the defendant be sentenced by the Court to Life
Imprisonment Without Parole.” R. at 144. Where the jury found that the
statutory burden was not met, the verdict form provided “we, the Jury,
therefore recommend that the defendant be sentenced by the Court to a Term
of Years.” R. at 145-46.
It is true the trial court did not give the jury a verdict form
specifically advising that it could recommend the defendant be sentenced to
a term of years even if the State carried its burden of proof. Had the
defendant requested such a verdict form, the trial court would have erred
in failing to give it.[2] See Seay v. State, 698 N.E.2d 732, 734 (Ind.
1998) (finding error in refusing to give a verdict form permitting the jury
to render a verdict that the defendant was not a habitual offender even if
it found that the State proved beyond a reasonable doubt that the defendant
had accumulated two prior unrelated felonies), adopting Duff v. State, 508
N.E.2d 17, 23 (Ind. 1987) (separate opinion of Dickson, J.). However, the
record shows that Pope did not object at trial to the verdict forms given
by the trial court nor did he submit forms of his own.[3] We have held
“‘when the jury was permitted to retire without sufficient forms of
verdict, the number of forms submitted cannot be considered as reversible
error where the record does not show that the accused tendered or requested
any other forms.’” Schiro v. State, 451 N.E.2d 1047, 1062 (Ind. 1983)
(quoting Kirkland v. State, 235 Ind. 450, 134 N.E.2d 223 (1956)). Thus,
Pope has waived this claim of error 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.
We conclude that Pope was not denied his right to a fair trial. If
the jury were inclined to recommend against life without parole, then it
could have simply found either (a) the State failed to prove beyond a
reasonable doubt the existence of one or more aggravating circumstances, or
(b) the State did prove the existence of one or more aggravating
circumstances, but they did not outweigh the mitigating circumstances.
And, the jury could have done so even in the face of proof beyond a
reasonable doubt to the contrary. See Bivins, 642 N.E.2d at 946. Although
told in the instructions that it could exercise “mercy” on Pope’s behalf,
the jury obviously declined to do so when it recommended life without
parole. No fundamental error occurred on this issue.
IV.
The State alleged the existence of two aggravating circumstances:
multiple murder under Indiana Code § 35-50-2-9(b)(8)[4] and felony murder
under Indiana Code § 35-50-2-
9(b)(1)(G). At the penalty phase of trial the trial court read the
following as a preliminary as well as a final instruction:
On or about the 29th day of August, 1997, in the County of Allen
in the State of Indiana, said defendant, Bryce D. Pope, did:
(1) intentionally kill another human being, to wit: Richard
Dergins, while committing or attempting to commit Robbery, to wit: by
discharging a firearm at and against the head of Richard Dergins,
resulting in the death of Richard Dergins, and/or the defendant
committed another Murder, to wit: killing Sara Dergins, being contrary
to the form of the statute in such a case made and provided: and,
(2) intentionally kill another human being, to wit: Sara
Dergins, while committing or attempting to commit Robbery, to wit: by
discharging a firearm at and against the head of Sara Dergins,
resulting in the death of Sara Dergins, and/or the defendant committed
another Murder, to wit: killing Richard Dergins, being contrary to the
form of the statute in such case made and provided.
R. at 125, 135 (emphasis added). According to Pope, because the
aggravating circumstances are worded conjunctively as well as
alternatively, it is impossible to know whether the jury unanimously found
any charged aggravating circumstance proven beyond a reasonable doubt.
Pope explains: “it therefore becomes apparent that one or more members of
the jury could have found the first aggravator proven, but not the second,
while others could have found the second proven, but not the first.” Brief
of Appellant at 33. At trial, Pope did not object to the instructions.
In this appeal, he seeks to avoid waiver by claiming fundamental error.
Before a jury may recommend life without parole it must unanimously
find beyond a reasonable doubt the existence of “at least one (1) of the
aggravating circumstances listed in subsection (b). . . .” Ind. Code § 35-
50-2-9(k)(1); Bivins, 642 N.E.2d at 947 (discussing the jury’s obligation
under the death penalty statute). Here the use of “and/or” appears to have
given the jury the option to recommend life without parole where less than
all members of the jury found any single charged aggravator to have been
proven beyond a reasonable doubt. Such an option is contrary to the
mandate of the statute.
Nonetheless, even if the trial court erred in giving the instruction,
the error was not fundamental. This is so because the jury indicated by
its guilt phase verdict that it found at least one of the charged
aggravators to have been proven beyond a reasonable doubt: that Pope
committed multiple murder. In the guilt phase of trial, the jury
unanimously found Pope guilty beyond a reasonable doubt of the murders of
Richard Dergins and Sara Dergins. Thus the jury unanimously found beyond a
reasonable doubt the existence of a charged statutory aggravating
circumstance, meeting the mandate of Ind. Code § 35-50-2-9(k)(1). We
conclude therefore that the claimed error here does not represent a blatant
violation of
basic principles rendering the trial unfair or depriving Pope of
fundamental due process.
V.
The (b)(1) aggravating factor requires proof beyond a reasonable doubt
that a defendant “committed the murder by intentionally killing the
victim[s] while committing or attempting to commit” robbery. Ind. Code §
35-50-2-9(b)(1)(G). Pope asserts that during the penalty phase of trial,
“the jury was never required to, nor given an opportunity to, determine
whether an intentional murder occurred.” Brief of Appellant at 36. Pope
is mistaken. The record shows that in both its preliminary and final
instructions the trial court advised the jury, among other things, as
follows:
In the second or penalty phase of this trial, the State has filed an
Application for life imprisonment without parole by alleging the
existence of at least one aggravating circumstance as follows. On or
about the twenty-ninth day of August, nineteen ninety-seven in the
County of Allen and the State of Indiana, said defendant, Bryce D.
Pope, did one: intentionally kill another human being, to wit: Richard
Dergins while committing or attempting to commit robbery. . . . The
law provides for the penalty of life imprisonment without parole upon
conviction for the crime of murder under the following circumstances.
The defendant committed the murder by intentionally killing the victim
while committing or attempting to commit the crime of robbery and/or
the defendant committed another murder. The State must prove to you
beyond a reasonable doubt each and every material element of the
aggravating circumstances alleged and further prove to you that any
mitigating circumstances are outweighed by aggravating circumstances.
R. at 1042-44; 1073-74 (emphasis added).[5] The jury was properly
instructed. We find no error on this issue.
VI.
For his last allegation Pope contends the trial court erred in
imposing sentences of life imprisonment without parole because it
considered non-statutory aggravating circumstances. A sentence of life
without parole is subject to the same statutory standards and requirements
as the death penalty. Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998). In
this case the State’s request for life without parole was based upon two
statutory aggravators: an intentional killing during the commission of a
robbery and multiple murder. See Ind. Code § 35-50-2-9(b)(1)(G), (b)(8).
Following deliberations after the penalty phase of trial the jury
recommended that life without parole be imposed. After a subsequent
sentencing hearing, the trial court entered judgment and sentences on the
convictions, ordered life without parole be imposed, and issued the
requisite sentencing statement.
In its written sentencing order the trial court found that the State
had proven beyond a reasonable doubt the existence of two statutory
aggravating circumstances: (1) Pope committed the murders by intentionally
killing the victims while committing or attempting to commit robbery, Ind.
Code § 35-50-2-9(b)(1)(G); and (2) Pope committed another murder at any
time, Ind. Code § 35-50-2-9(b)(8). The trial court’s reference to these
life without parole aggravating factors was correct. However, the trial
court also noted the following aggravating factors: Richard Dergins was
over the age of sixty-five, and the nature and the circumstances of the
crime, namely: the victims welcomed the defendant into their home numerous
times and trusted him, the defendant planned to kill the victims after
robbing them even before he approached the front door, Sara Dergins
suffered agony not only from the death of her husband who was shot first
but from the agony of impending fate at the defendant’s hand as she lay
prone on the floor, and the profane treatment of the victims prior to their
deaths. R. at 158. The trial court then recited a number of mitigating
circumstances including Pope’s youth, he had been raised in a strict
religious environment, was gainfully employed from age fifteen until the
time of his arrest, had never been adjudicated a delinquent as a juvenile,
and had only a minor criminal history—a misdemeanor conviction for a minor
consuming alcohol and possession of marijuana. R. at 157-58. Finding that
the aggravating circumstances outweighed the mitigating circumstances, the
trial court sentenced Pope to life in prison without parole for both murder
convictions. The trial court also imposed a sentence of fifty years for
the robbery conviction. The trial court did not impose sentence on the two
felony murder convictions. In weighing the aggravating and mitigating
circumstances, the trial court did not separate its findings concerning the
life without parole sentence from those relating to the robbery sentence.
The enumerated aggravating factors set forth in the general felony
sentencing statute “do not limit the matters that the trial court may
consider in determining sentence.” Ind. Code § 35-38-1-7.1(d). However,
we have held “when the death sentence is sought, courts
must . . . limit the aggravating circumstances eligible for consideration
to those specified in the death penalty statute, Indiana Code Section 35-50-
2-9(b).” Bivins, 642 N.E.2d at 955. The same is true for a sentence of
life without parole. In this case it is not altogether clear whether the
trial court relied on non-capital aggravators when imposing sentences for
life without parole. This matter needs clarification. Accordingly, we
must remand for a new sentencing order.
Conclusion
We affirm Pope’s convictions for two counts of murder and one count
of robbery. We vacate Pope’s convictions for two counts of felony murder.
This case is remanded for a new sentencing order consistent with this
opinion.
SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.
DICKSON, J., concurs in result.
-----------------------
[1] Evidence of juvenile adjudications is generally not admissible. .
. . The court may, however, in a criminal case allow evidence of a
juvenile adjudication of a witness other than the accused if the
conviction of the offense would be admissible to attack the
credibility of an adult and the court is satisfied that admission of
evidence is necessary for a fair determination of the issue of guilt
or innocence.
Ind. Evidence Rule 609(d).
[2] This is so only because in this instance the trial court
submitted special verdict forms to the jury. We have rejected the
requirement of written findings for juries in capital cases. Wrinkles v.
State, 690 N.E.2d 1156, 1168 (Ind. 1997); Harrison v. State, 644 N.E.2d
1243, 1259 n.28 (Ind. 1995). The same is true in life without parole
cases. See Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998) (finding a
sentence of life without parole is subject to the same statutory standards
and requirements as the death penalty). Thus, a proper verdict form would
require the jury to recommend either a sentence of life without parole or a
term of years.
[3] The record shows the following exchange:
Court: Counsel has both received the Court’s final instruction and sample
verdict forms?
[Defense Counsel]: Yes Your Honor.
[Prosecutor]: Yes Judge.
Court: And for the record, I believe yesterday . . . last evening in
chambers, we discussed the verdict forms and the Court’s final instructions
and made some changes to the Court’s Final instructions which I have
provided to counsel this morning. Are they [sic] changes reflective of our
discussions in chambers yesterday gentlemen?
[Prosecutor]: Yes
[Defense Counsel]: Yes Your Honor and that did away with necessity for the
defendant to tender instructions along those lines.
R. at 1041.
[4] Subsection (b)(8) specifically provides “[t]he defendant has
committed another murder, at any time, regardless of whether the defendant
has been convicted of that murder.” This subsection is considered in cases
involving double or multiple murders for which the defendant is being tried
in one proceeding. Hough v. State, 560 N.E.2d 511, 519 (Ind. 1990).
[5] An identical instruction was given concerning Sara Dergins. R.
at 1043, 1073-74.