Daniels v. State

• Decision Date: 19 October 1990
• Docket Number: No. 49S00-8601-PC-33,49S00-8601-PC-33
• Citation: 561 N.E.2d 487
• Parties: William Michael DANIELS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondant Below).
• Court: Indiana Supreme Court

Page 487

561 N.E.2d 487

William Michael DANIELS, Appellant (Petitioner Below), v. STATE of Indiana, Appellee (Respondant Below).

No. 49S00-8601-PC-33.

Supreme Court of Indiana.

Oct. 19, 1990.

Richard A. Waples, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

This cause is before us on remand from the Supreme Court of the United States. On August 21, 1979, the defendant was convicted of four counts of robbery, class A felonies; one count of attempted robbery, a class A felony; and one count of felony murder. For the latter offense the jury recommended, and the trial court ordered, the death penalty. The convictions and death sentence were affirmed on direct appeal. Daniels v. State (1983), Ind., 453 N.E.2d 160. In a subsequent proceeding, Daniels v. State (1988), Ind., 528 N.E.2d 775, we affirmed the denial of appellant's petition for post-conviction relief, but the Supreme Court granted certiorari, Daniels v. Indiana (1989), --- U.S. ----, 109 S.Ct. 3182, 105 L.Ed.2d 691, and remanded to this Court for reconsideration in light of South Carolina v. Gathers (1989), 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876. Both Gathers and the present case involve whether a death sentence is impaired by penalty phase prosecutorial statements concerning personal characteristics of the victim.

Gathers represented an extension of Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, which held that it was constitutionally impermissible in capital sentencing proceedings to allow a sentencing jury to consider "victim impact statements" involving factors of which a defendant was unaware at the time of the offense. The statements at issue in Booth included descriptions of the victims' character and the emotional impact of the crime on the victims' family. Recognizing that such information may be wholly unrelated to a defendant's blameworthiness and that it invites arbitrary capital sentencing decisions depending upon the availability of witnesses to express grief and upon the sterling or questionable character of the victim, the Supreme Court held that such information was "inconsistent with the reasoned decisionmaking we require in capital cases." 482 U.S. at 509, 107 S.Ct. at 2536, 96 L.Ed.2d at 452.

In Gathers, the victim was a street minister who carried a prayer card and voter registration certificate in his billfold, and the prosecutor's sentencing phase argument focused on the content of these cards. Citing Booth, the Supreme Court held that allowing the jury to rely on such information "could result in imposing the death sentence because of factors about which the defendant was unaware, and that were irrelevant to the decision to kill." Gathers, 490 U.S. at ----, 109 S.Ct. at 2210, 2211, 104 L.Ed.2d at 883.

In the present case, the appellant alleges that during the death penalty phase, the prosecutor displayed a life-size photograph of the victim, Allen Streett, a United States Army chaplain, in full military uniform, and then spoke to the jury:

I wanted to talk in this part of the trial about the law, about the sanctity of life and about the grievous affront to humanity, the grievous affront to God, saying, "No, God. I'm going to take a life of the chaplain.... The people of the State of Indiana call the soul of Allen Streett to the witness stand. Defendant, defendant.... Chaplain Streett, how did it feel in Vietnam when you went in without a weapon and helped men who were facing death? Chaplain Streett, how did you do it? My wife would like to know how did you do it, that you never lost your temper but once in twenty-two years of marriage. Chaplain Streett, what was it like to have a relationship with your son who was just growing where you could go out and throw snowballs and kid around. What was it like to have a relationship with your wife where you could say "I'm going to go out and shovel snow," and she says, "Well, I'll send you roses." What was it like to have a relationship with a whole family which was so good and so pure and with God and with country? Have you ever seen a man who was more all there? Chaplain Streett, what does your soul think about what's happening? Of course, we can't bring him in.

Record at 1139, 1140. In his concluding remarks, the prosecutor asked, "[H]ow does it cheapen the life of Allen Streett not to take the life of the defendant? ... Is the rest of his [Daniels'] life in prison the equivalent of Allen Streett's life?" Record at 1147.

If the standards announced in Gathers, decided in 1989, and Booth, decided in 1987, were applicable to the Indiana capital sentencing procedure utilized in defendant's trial in 1979 and the direct appeal which concluded in 1983, we would find a serious issue presented by the prosecutor's statements. Before reaching this question, however, we must first consider whether the Booth/ Gathers rule is retroactively applicable to the present collateral proceeding. We further note that our discussion does not address the lack of any contemporaneous objection at the time of the prosecutor's remarks now claimed to be improper, because the State does not assert a claim of waiver.

In Coleman v. State (1990), Ind., 558 N.E.2d 1059, this Court cited with approval both Parker v. Dugger (1989), Fla., 550 So.2d 459, and Jackson v. Dugger (1989), Fla., 547 So.2d 1197, in which the Florida Supreme Court held that the Booth/ Gathers rule should be given retroactive application in cases on direct appeal in which an adequate objection was lodged at trial. However, a direct appeal terminates and a conviction becomes final when the availability of appeal, including a petition for certiorari, is exhausted or expires. Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649. Daniels' conviction became final with the failure to seek Supreme Court review of our decision on direct appeal. The present cause, resulting from Daniels' separate appeal following the denial of his petition for post-conviction relief, is a collateral review proceeding initiated after his case became final with the conclusion of his direct appeal.

Upon analysis of the issue of retroactivity, the Supreme Court recently held that a new constitutional rule of criminal procedure is generally not applicable to those cases on collateral review, that is, those which have become final before the new rule was announced. Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334; Penry v. Lynaugh (1989), 492 U.S. ----, 109 S.Ct. 2934, 106 L.Ed.2d 256; Butler v. McKellar (1990), 494 U.S. ----, 110 S.Ct. 1212, 108 L.Ed.2d 347; Saffle v. Parks (1990), 494 U.S. ----, 110 S.Ct. 1257, 108 L.Ed.2d 415; and Sawyer v. Smith (1990), 497 U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193. Daniels directs our attention to Collins v. Youngblood (1990), 497 U.S. ----, 110 S.Ct. 2715, 111 L.Ed.2d 30, in which the Supreme Court noted that during oral argument the State of Texas expressly stated that it "had chosen not to rely" on the Teague rule, and held that the rule is "not 'jurisdictional' " in the sense that a reviewing court "must raise and decide the issue sua sponte." 110 S.Ct. at 2718, 111 L.Ed.2d at 38, (emphasis in original). In contrast, the present case does not contain any express waiver of the issue by the State, and, through its submission of Sawyer as additional authority, the State has addressed the issue of retroactivity.

The principle of new rule non-retroactivity was first extended to capital sentencings in Penry. Because Penry was decided after the present case was remanded to us, ¹ we perceive that our responsibilities require, notwithstanding the remand "for further consideration" in light of Gathers, that our review include the possible applicability of the Penry holding. Retroactivity is necessarily a threshold question to be decided first before application of constitutional doctrine to the facts at issue. Teague, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334. ²

Daniels' direct appeal was concluded before the Supreme Court decided Booth, on which Gathers is based. The rule announced in these cases prohibiting consideration of victim impact information by a death penalty sentencing jury, qualifies as a "new rule" under Teague and Penry because it "breaks new ground or imposes a new obligation on the States or the Federal Government," or produces a result "not dictated by precedent existing at the time the defendant's conviction became final." Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349; Penry, 492 U.S. at ----, 109 S.Ct. at 2944, 106 L.Ed.2d at 275 (emphasis in original). If constitutional considerations do not require retroactive application of a "new rule" to cases on federal collateral review, retroactive application of such rules is likewise not constitutionally compelled in cases on state collateral review.

Our state rule regarding retroactivity in collateral proceedings, discussed extensively in Rowley v. State (1985), Ind., 483 N.E.2d 1078, was influenced by then-existing federal precedent. The reevaluation of this issue in Teague and Penry suggests that an analogous revision is appropriate for Indiana. Because the purposes for which this Court affords the remedy of post-conviction relief are substantially similar to those for which the federal writ of habeus corpus is made available, we elect to follow the approach of Teague and Penry in addressing the retroactivity of new law to cases on review pursuant to petitions for post-conviction relief under Indiana procedure.

Since the present case is before us on such collateral review, the new Booth/ Gathers rule will not be given retroactive application unless it falls into one of the recognized exceptions. Teague noted two exceptions to the non-retroactivity of new rules: 1) rules which place "certain kinds of primary, private individual conduct beyond the power of the criminal...