Benirschke v. State

• Decision Date: 04 September 1991
• Docket Number: No. 45S00-8902-CR-00108,45S00-8902-CR-00108
• Parties: William BENIRSCHKE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 576

577 N.E.2d 576

William BENIRSCHKE, Appellant, v. STATE of Indiana, Appellee.

No. 45S00-8902-CR-00108.

Supreme Court of Indiana.

Sept. 4, 1991.

Marce Gonzalez, Jr., Appellate Div., Crown Point, for appellant.

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

KRAHULIK, Justice.

Defendant-Appellant William Benirschke was found guilty by a jury in the Lake County Superior Court of two counts of Murder and one count of Robbery, a Class B felony. The jury also recommended the death penalty. On August 31, 1988, the trial court ordered that the death penalty be imposed on the double homicide.

The trial court further sentenced the defendant to a term of ten years on the robbery conviction. Five issues are presented for our review in this direct appeal as follows:

1. Alleged improper victim impact statements made by the prosecuting attorney in argument to the jury;

2. Whether the trial court improperly gave special weight to an aggravating circumstance;

3. Sufficiency of the trial court's sentencing findings;

4. Sufficiency of the evidence in support of the finding that the homicides occurred in the commission of a robbery; and

5. Whether the court properly excused certain jurors.

The facts show that Benirschke had been employed by J & W Custodial Service, a business run by victims James Cromwell and Walter Muvich. Problems arose in Benirschke's relationship with the victims and he, on several occasions, told friends and acquaintances he had been mistreated by the owners and had been "short-changed" in his paychecks. On those occasions he

stated he would kill the owners if they did not correct their ways. Because of problems with the owners, Benirschke was suspended during February 1988. In a statement given to police officers, Benirschke stated that on Friday, February 12, he went to the office of Cromwell and Muvich, carrying with him a .22 rifle with the intention of killing them, but no one was in the office. He left and returned about 8:15 p.m. on the same day. When he entered the office, he shot Muvich three times, then shot Cromwell twice, then shot Muvich again, then shot Cromwell in the head and finally shot Muvich in the head. He then flipped open Muvich's sport coat and took his checkbook which showed a balance of about one thousand or eleven hundred dollars ($1,000-$1,100) in Muvich's account. He stated he went there to kill Muvich but had to kill Cromwell because Cromwell was a witness. In addition to the statements to the police, Benirschke told several of his friends that he had shot both Cromwell and Muvich and had taken Muvich's checkbook and money.

I. Victim Impact Statement

Benirschke urges reversible error was committed when the prosecuting attorney, during the death penalty phase of the trial, urged the jury to impose the death penalty by referring to the impact of the act of killing on the victims' families. He cites South Carolina v. Gathers (1989), 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876, and Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. In view of the recent United States Supreme Court opinion, Payne v. Tennessee (1991), --- U.S. ----, 111 S.Ct. 2597, 115 L.Ed.2d 720, specifically overruling Gathers and Booth, the prosecutor's comments did not constitute a constitutional violation. Furthermore, the statements in issue here had the content and character of like statements of the prosecutor considered by this Court and found relevant to the issues at a capital sentencing and therefore permissible in Woods v. State (1990) opinion on rehearing, 557 N.E.2d 1325. No reversible error is presented on this issue.

II. Special Weight of Aggravators

Benirschke claims the trial court erred by giving one of the aggravators special weight or a special ranking that violated the standards directed by IND.CODE Sec. 35-50-2-9. This statute provides first that the death penalty may be recommended by the jury only if there is a finding that the State has proven beyond a reasonable doubt that at least one of the aggravating circumstances exists and, second, that any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances. Our death penalty statute further provides the court is to 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. IND.CODE Sec. 35-50-2-9(e). At the sentencing hearing, the trial court made the following observation:

The [c]ourt, reviewing the types of murders that qualify for the death penalty, under the Indiana Penal Code, there are twelve in number....

Here, you have a double homicide. I say, again, there are ten other types of murder that qualify for the death penalty, where only one life is taken. On a scale of one to twelve, this probably would be a twelve.

Record at 905-06. The court further stated:

Again, the [c]ourt believes that if ever a murder qualified for the death penalty, if ever a scenario qualified for the death penalty, this is it.

Record at 909. The court found that the State proved Benirschke intentionally killed both Walter Muvich and James Cromwell and took eleven hundred dollars ($1,100) from Cromwell's body and, therefore, found the jury was justified in finding the existence of at least one of the aggravating factors beyond a reasonable doubt.

Appellant reasons these statements made by the court indicated he gave a special ranking to this aggravator over and above all others enumerated by the legislature and indicated a mind-set by the judge which precluded his giving proper consideration In imposing sentence, the trial judge did not give as his reason the fact that this aggravator is the most serious of all and somehow requires the death penalty solely on the ground that the defendant committed this crime. These statements by the judge were made preliminary to his judgment. It was necessary for him to find at least one aggravator had been proven beyond a reasonable doubt and to further find the crime for which the defendant was convicted and the manner in which it was committed, plus the character of the defendant, all taken together merited imposition of the death penalty. The judge did find this aggravator had been proven beyond a reasonable doubt and in a peremptory manner indicated that this was a particularly heinous crime, one that qualified as an aggravator because two people were killed rather than one, and the circumstances justified imposition of the death penalty. There was justification for this observation inasmuch as Benirschke admitted he killed the second man solely for the reason that he would be a witness to the killing of the first. The court then proceeded to enumerate considerations of aggravating and mitigating circumstances, the weight he gave to them and the conclusion of a sentencing judgment based thereon. We will consider the sufficiency of these findings in the next issue. We find no reversible error in the manner in which the court expressed his attitude in making his findings.

to any of the mitigating circumstances or from doing anything except imposing the death penalty. Benirschke further reasons that this standard the judge had fixed in his mind was a different and higher standard than that used by the jury. We do not agree.

III. Sufficiency of Death Penalty Findings

Benirschke claims that the trial court did not properly evaluate mitigating circumstances in arriving at its conclusion that the death penalty should be imposed.

The sentencing court has a separate and independent role in assessing and weighing the aggravating and mitigating circumstances and in making the final determination whether to impose the death penalty. It is the duty of the sentencing court to make the final determination of the sentence, after considering the jury's recommendation, and to base the sentence on the same standards that the recommending jury is required to consider. IND.CODE Sec. 35-50-2-9(e). In arriving at its own separate determination as to whether the death penalty is an appropriate punishment, the sentencing court is to point out its employment of this process in specific and clear findings. Judy v. State (1981), 275 Ind. 145, 168, 416 N.E.2d 95, 108. The trial court's statement of reasons should include identification of each mitigating and aggravating circumstance found, specific facts and reasons which lead the court to find the existence of each such circumstance, and articulation demonstrating that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence. Henderson v. State (1986), Ind., 489 N.E.2d 68, 71-72; Schiro v. State (1983), Ind., 451 N.E.2d 1047, cert. denied (1983), 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699. After the instant case was fully briefed and argued by counsel before this Court, we determined the trial court had not clearly set out in its findings that it had made independent judgments as required and had not sufficiently indicated the evaluation given to mitigating circumstances. We, therefore, issued a writ of certiorari to the trial court requiring the trial judge to more specifically articulate the findings in these regards. The trial court responded and furnished findings in this areas. Supplemental briefing followed. Benirschke claims the trial court improperly weighed and evaluated the mitigating circumstances and, therefore, his ultimate finding of imposing the death penalty was invalid. We fail to see any significance in Benirschke's objections which would rise to legal error and demonstrate other than that he is dissatisfied with the findings.

The trial court found the State proved beyond a reasonable doubt that Benirschke committed each of the aggravating circumstances by intentionally killing Cromwell

and Muvich and, further, that he did so while committing or...