687 N.E.2d 563 (Ind. 1997), 82S00-9407-DP-666, Prowell v. State

Docket Nº:82S00-9407-DP-666.
Citation:687 N.E.2d 563
Party Name:Vincent J. PROWELL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Case Date:November 04, 1997
Court:Supreme Court of Indiana

Page 563

687 N.E.2d 563 (Ind. 1997)

Vincent J. PROWELL, Appellant-Defendant,


STATE of Indiana, Appellee-Plaintiff.

No. 82S00-9407-DP-666.

Supreme Court of Indiana.

November 4, 1997

Rehearing Denied March 2, 1998.

Page 564

Dennis A. Vowels, Michael C. Keating, Keating, Bumb & Vowels, Evansville, for Defendant-Appellant.

Pamela Carter, Attorney General, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.

On Direct Appeal

DICKSON, Justice.

In this direct appeal, the defendant-appellant, Vincent J. Prowell, challenges his death sentence for the murders of Denise Powers and Chris Fillbright. On May, 23, 1993, Powers sat in her automobile waiting for Fillbright. As Fillbright approached the automobile door, the defendant shot him in the back of his head, at close range. As Powers was screaming, the defendant shot her twice, also at close range, in the face and in her right side, piercing her lung and heart. An eyewitness observed the shootings and identified the defendant as the shooter. The defendant pled guilty to both murders. The trial court ordered the death penalty.

The defendant alleges various errors, four of which are reviewable in this direct appeal: 1 (1) improper admission of victim impact evidence; (2) applicability of the option of life imprisonment without parole; (3) insufficiency of the trial court order imposing the death sentence; and (4) improper consideration of factual issues in sentencing. In addition, the defendant requests that this Court revise his death sentence to a term of years.

  1. Victim Impact Evidence

    The defendant first contends that the substantial amount of victim impact evidence--testimony, poems, and photographs--admitted at his sentencing hearing requires reversal of his sentence. 2

    Page 565

    In Bivins v. State, 642 N.E.2d 928 (Ind.1994), cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996), we explained that, in death penalty proceedings, courts may consider only the aggravating circumstances specified in the death penalty statute. Thus, "the admissibility of the victim impact evidence ... hinges upon its relevance to the death penalty statute's aggravating and mitigating circumstances." Id. at 957.

    It is significant that the present case does not involve a jury, whose opaque "yes" or "no" recommendation would not reflect the factors leading to its decision. See IND.CODE 35-50-2-9(d) (If "the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing."). In capital cases, the trial court must enter a written sentencing order to ensure that only proper matters are considered by the trial court. Benirschke v. State, 577 N.E.2d 576, 579 (Ind.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Daniels v. State, 561 N.E.2d 487, 491 (Ind.1990).

    The trial court's sentencing order disclosed that the trial court based its sentencing judgment upon the finding and weighing of the charged aggravating factor (the defendant committed two murders) and several mitigating factors (no significant history of prior criminal conduct, youth in a dysfunctional family, and possible exposure to physical and emotional abuse). Record at 270-71. Because the trial court's sentencing order does not refer to any evidence characterized by the defendant as "victim impact evidence," we conclude that any alleged error in admitting such evidence did not affect the sentence imposed. We "must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." Ind.Trial Rule 61.

  2. Option of Life Imprisonment Without Parole

    The second sentencing issue raised by the defendant is the applicability of Indiana Code Section 35-50-2-9(g), which gives the judge the option of sentencing the death-qualified defendant to life in prison without parole as an alternative to sentencing the defendant to death. This section took effect on July 1, 1993 and the Act specifically provided that the life without parole provision "only appl[ies] to murders committed after June 30, 1993." P.L. 250-1993 § 3. The murders in this case were committed on May 27, 1993.

    The defendant claims that this limiting provision denies him equal protection of the law. He acknowledges that this question was decided adversely to him in State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind.1994), but claims that Alcorn was wrongly decided. We decline to revisit Alcorn.

  3. Sentencing Order

    The third sentencing error claimed by the defendant is an alleged deficiency in the sentencing order. He claims that the order: (1) lacks the specific facts and reasons which support the court's finding of aggravating and mitigating circumstances; and (2) is perfunctory and conclusory in the manner in which it describes how the aggravators and mitigators have been balanced.

    In a capital sentencing order, the trial court must: (1) identify each mitigating and aggravating circumstance found; (2) include the specific facts and reasons which lead the court to find the existence of each circumstance; (3) articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence; and (4) 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). This evaluation need not be lengthy, merely thorough. See Roark v. State, 644 N.E.2d 565, 571 (Ind.1995).

    In identifying the aggravating circumstances, the trial court expressly found that the State established the charged aggravating factor listed in the death penalty statute by proving "beyond a reasonable doubt that the defendant ... committed two murders," Record at 269, because "[t]he Defendant ... plead guilty to Murder ... by knowingly killing Denise Powers ..." and that "[t]he Defendant ... plead guilty to Murder ... by knowingly killing Christopher Fillbright ..." Id. The recitation of the

    Page 566

    facts and reasons for this particular aggravator will often be brief when the defendant has pled guilty, because this "aggravating circumstance [is] by [its] nature factual and, if listed, requires no further substantiation." Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986). The trial court satisfied the Harrison standard for the discussion of aggravating circumstances and supporting facts and reasons.

    In its discussion of mitigating circumstances, the sentencing statement specifically addressed each statutory mitigating circumstance, expressly determining which applied in this case. The first was that "[t]he defendant has no significant history of prior criminal conduct." Record at 270. See IND.CODE § 35-50-2-9(c)(1) (1993). Recognizing the difficulty of including the facts and reasons to explain a lack of a criminal history--as opposed to stating reasons for finding that the defendant has a criminal history--we observe that the trial court, in its sentencing order specifically noted its consideration of the "information contained in the presentence report filed by the Adult Probation Department and the independent report submitted by the defendant." Record at 271. The second mitigating circumstance identified by the trial court was "evidence of other circumstances appropriate for consideration as mitigating circumstances...." Record at 270. See IND.CODE § 35-50-2-9(c)(8) (1993). The specific facts and reasons which led the court to find the existence of this circumstance were that "the defendant grew up in a dysfunctional family and may have been subjected to physical and emotional abuse." Record at 270. This is sufficient.

    As to its articulation of the evaluation and balancing of aggravating and mitigating circumstances, the trial court's order states that it finds the "aggravating circumstances far outweigh any consideration of mitigating circumstances" and that "having considered all the evidence in the case, the aggravating and mitigating circumstances presented, ... the presentence report filed by the Adult Probation Department and the independent report submitted by the defendant, ... the imposition of the death penalty as to the defendant ... is appropriate and proper...." Record at 271. This balancing description is similar to ones accepted as adequate in other cases. See Benirschke v. State, 577 N.E.2d 576, 581 (Ind.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Williams v. State, 669 N.E.2d 1372, 1389 (Ind.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1828, 137 L.Ed.2d 1034 (1997). The trial court's statement, although brief, adequately establishes that the court evaluated and balanced the mitigating and aggravating circumstances.

  4. Consideration of Factual Issues in Sentencing

    The defendant contends that the trial court erred in its factual considerations regarding sentencing because it: (1) failed to find the defendant's mental condition as a mitigating factor; and (2) improperly found and considered non-statutory aggravating circumstances.

    First, the defendant claims that the trial court failed to give mitigating weight to the testimony presented by defense neuropsychologist, Dr. Joel Dill, because the sentencing order states that "[t]here was no evidence that the defendant ... was under any type of influence of extreme mental or emotional disturbance at the time the murders ... were committed," and "[t]here is no evidence that the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law, was substantially impaired as a result of mental disease or defect or of intoxication." Record at 270. Dr. Dill testified that the defendant has a paranoid personality disorder, an essential feature of which "is the general expectation of being exploited...

To continue reading