924 N.E.2d 621 (Ind. 2010), 49S00-0803-CR-147, Treadway v. State

Docket Nº:49S00-0803-CR-147.
Citation:924 N.E.2d 621
Opinion Judge:RUCKER, Justice.
Party Name:Jeffrey TREADWAY, Appellant (Plaintiff below), v. STATE of Indiana, Appellee (Defendant below).
Attorney:Robert J. Hill, Public Defender of Marion County, Katherine Cornelius, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Matthew Whitmire, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Judge Panel:SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Case Date:April 08, 2010
Court:Supreme Court of Indiana
 
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924 N.E.2d 621 (Ind. 2010)

Jeffrey TREADWAY, Appellant (Plaintiff below),

v.

STATE of Indiana, Appellee (Defendant below).

No. 49S00-0803-CR-147.

Supreme Court of Indiana.

April 8, 2010

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Robert J. Hill, Public Defender of Marion County, Katherine Cornelius, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Matthew Whitmire, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

RUCKER, Justice.

Case Summary

After a trial by jury Jeffrey Treadway was found guilty of murder, felony murder, robbery, and battery. Alleging two statutory aggravating circumstances, the State

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sought life imprisonment without parole. The jury recommended life imprisonment and the trial court sentenced Treadway accordingly. Rephrased and reordered Treadway raises the following issues: (1) did the trial court err in failing to dismiss the State's request for life imprisonment without parole; (2) did the trial court abuse its discretion in failing to grant a mistrial; (3) did the trial court abuse its discretion by admitting into evidence the testimony of two inmate witnesses; (4) did the trial court err in admitting into evidence Treadway's pretrial statement; (5) did the trial court err in instructing the jury; (5) was the evidence sufficient to sustain the verdicts; (6) did the State prove the existence of the statutory aggravators beyond a reasonable doubt; (7) is the trial court's sentencing order inadequate; and (8) is the life without parole sentence inappropriate based on Treadway's character and the nature of the offense. We affirm the judgment of the trial court.

Facts and Procedural History

In the late evening hours of October 15, 2005, Treadway knocked on the door of a home occupied by an elderly couple, eighty-two-year-old Donald Carroll and his eighty-year-old wife Betty Carroll. Two years earlier Treadway had performed minor yard work for the couple for which Mrs. Carroll paid him $25.00. When Mr. Carroll answered the door Treadway struck him in the head repeatedly with a brick and took his wallet. As Mrs. Carroll attempted to intervene, Treadway swung at her with the brick and pushed her onto a couch causing injuries to her arms and hands. In response to Treadway's demand for money Mrs. Carroll gave Treadway $200.00 and he fled the scene. Mrs. Carroll called 9-1-1. After the police arrived Mr. Carroll was taken to Methodist Hospital where he died as a result of blunt force injury to the head. Tr. at 1650.1 When questioned by the police Mrs. Carroll gave a description of the attacker, noting that he had unkempt gray hair, a full beard, vivid eyes, wore a blue plaid jacket, that his name was " Jeff" and that he had done yard work for her in the past.

A few days later with the assistance of a sketch artist, Mrs. Carroll created a picture of Treadway that was thereafter released to the news media. On October 23, 2005, Treadway was arrested in the state of Minnesota on an unrelated charge and was questioned by officers of the Fairmont Police Department. During questioning Treadway made references of being wanted in Indianapolis and that he was " going for life." Ex. Tr. at 127.

The State charged Treadway with murder, felony murder, robbery as a Class A felony, and battery as a Class C felony. Alleging he committed the murder by intentionally killing the victim while committing or attempting to commit robbery-Indiana Code section 35-50-2-9(b)(1)(G)-and that he committed the murder while on parole-Indiana Code section 35-50-2-9(b)(9)(D)-the State also sought life imprisonment without parole. After a jury trial Treadway was convicted as charged. At the penalty phase of trial, the jury recommended life imprisonment for the murder conviction. And following a sentencing hearing the trial court sentenced Treadway consistent with the jury's recommendation. Also, the trial court entered judgment of conviction on the robbery as a Class B rather than a Class A felony and sentenced Treadway to twenty years imprisonment to run consecutive to

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the life sentence. For the battery conviction the trial court imposed a sentence of eight years to run concurrent with the life sentence. Apparently because of double jeopardy concerns, the trial court merged the felony murder conviction with the murder conviction and entered no sentence thereon. Treadway seeks review. Pursuant to Indiana Appellate Rule 4(A)(1)(a) this Court has mandatory and exclusive jurisdiction over this appeal. Additional relevant facts are set forth below where necessary.

Discussion

I.

Motion to Dismiss

Prior to trial Treadway filed a motion to dismiss the State's request for life imprisonment without parole, which the trial court denied. Correctly noting that a sentence of life without parole is imposed under the same standards and is subject to the same requirements as a capital sentence, see Ajabu v. State, 693 N.E.2d 921, 936 (Ind.1998), Treadway contends the trial court erred in denying his motion because Indiana's death penalty statute is unconstitutional under both the United States Constitution as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and Article I, Section 19 of the Indiana Constitution.2 In support of his contention, Treadway advances five arguments, each of which this Court has previously rejected: (1) the statute allows for the death sentence in the absence of a jury finding that aggravators outweigh the mitigators beyond a reasonable doubt (rejected in Ritchie v. State, 809 N.E.2d 258, 264-68 (Ind.2004), reh'g denied, cert. denied; and State v. Barker, 809 N.E.2d 312, 314-15 (Ind.2004), reh'g and remand granted, 826 N.E.2d 648 (Ind.2005), cert. denied ); 3 (2) the statute allows a judge to impose a sentence of life without parole without a jury's unanimous recommendation (rejected in Wilkes v. State, 917 N.E.2d 675, 687-89 (Ind.2009), reh'g denied, 2010 Ind. LEXIS 199 (Ind., Mar. 16, 2010) (holding where a jury finds the aggravating circumstance(s) exists beyond a reasonable doubt the requirements of Apprendi and Ring for establishing eligibility for a penalty under Indiana Code section 35-50-2-9 are satisfied, and if the jury cannot reach a unanimous sentencing recommendation the trial court may impose a sentence under the statute so long as it independently finds the aggravating circumstances)); (3) the statute calls for the use of special verdict forms (rejected in Wilkes, 917 N.E.2d at 686-87 (holding that although Indiana Trial Rule 49 abolished special verdict forms, use of the form is necessitated by the Sixth Amendment to the United States Constitution as interpreted by Apprendi and Ring )); (4) the statute permits, but does not require, the consideration of mitigating circumstances (rejected in Wisehart v. State, 693 N.E.2d 23, 54 (Ind.1998), reh'g denied, cert. denied, (citing Matheney v. State, 688 N.E.2d 883, 907 (Ind.1997), cert. denied ));

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and (5) that the statute diminishes the responsibility of the jury in making a sentencing determination under the statute (rejected in Barker, 809 N.E.2d at 317-318). We decline to revisit these issues. The trial court did not err in denying Treadway's motion to dismiss.

II.

Failure to Grant Mistrial

On three occasions during the course of trial and for different reasons, Treadway moved for a mistrial. The trial court denied the motions and Treadway claims error. Granting or denying a motion for a mistrial is within the discretion of the trial court. McManus v. State, 814 N.E.2d 253, 260 (Ind.2004). We afford great deference to the trial court's decision, and review the decision solely for abuse of discretion. Id.; Lucio v. State, 907 N.E.2d 1008, 1010 (Ind.2009).

A. Hearsay Testimony

For his first mistrial motion, the essential facts are these. Prior to trial Treadway filed a motion in limine to preclude on hearsay grounds any testimony from Steven Carroll-Mrs. Carroll's stepson-concerning what Mrs. Carroll told him about her attacker. The State acknowledged that the testimony would be hearsay, but noted an exception under Ind. Evidence Rule 801(d)(1)(C).4 Treadway countered that the Rule anticipates that the witness-here Mrs. Carroll-must testify first and be subject to cross-examination. Responding to the State's assertion that it would have to call Mrs. Carroll out of sequence but would corroborate Steven's testimony with Mrs. Carroll's testimony, the trial court denied Treadway's motion in limine.

The record shows that on the night of the murder Mrs. Carroll spoke with Steven at the hospital where his father had been taken. At trial and over Treadway's objection, Steven testified that Mrs. Carroll told him that her attacker " was Jeff who had done yard work for them in the past." Tr. at 1153. She also said that " he had long hair, kind of wild looking and reminded her of Charlton Heston in the movie where he played Moses parting the water and that he had very vivid eyes, very standout rememberable eyes." Tr. at 1156. When Mrs. Carroll later took the stand she identified the person who attacked her and her husband as " Jeff," Tr. at 1455, and testified in part that " he had a beard and he had long hair and I thought he looked like, ... Heston in the movie Moses." Tr. at 1458. She further testified, " ... and what I remember was his eyes and I had seen his eyes looking and shifting around when he worked at our house and then it struck me, that's Jeff. Then I knew it was him." Tr. at 1461.

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