Brown v. State
| Decision Date | 28 February 2003 |
| Docket Number | No. 34S00-0112-CR-621.,34S00-0112-CR-621. |
| Citation | 783 N.E.2d 1121 |
| Parties | Terry C. BROWN, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
Matthew J. Elkin, Deputy Public Defender, Kokomo, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Scott A. Kreider, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. SULLIVAN, Justice.
Defendant Terry Brown appeals his convictions for two murders and concurrent sentences of life without parole. We affirm the convictions but, finding the sentencing order to be inadequate, impose instead a sentence totaling 110 years.
At approximately 2:20 p.m. on July 16, 2000, Kokomo police officers Michael Banush and Greg Baldini were on bike patrol when they heard a gunshot. As they approached the scene, the officers saw Defendant run into a barbershop at 901 East North Street, exit the barbershop, and hurriedly leave the scene. Defendant was carrying what appeared to be a white document and another object. No other person was seen entering or exiting the barbershop.
The officers found Charles Young, Jr. laying on the sidewalk with a bullet hole in the left side of his neck. Officer Baldini stayed at the scene, while Officer Banush rode northbound after Defendant. Officer Baldini heard noises inside the barbershop. He and Officer Brannon Carpenter entered the building and located Robert Hunter, who was bleeding from an apparent gunshot wound to the head.
Meanwhile, Officer Banush apprehended Defendant. After handcuffing Defendant, Officer Banush found a black leather glove on the ground and a matching glove on Defendant. In addition, Defendant had blood on his clothing, which later proved to match that of Young. Officer Banush did not see the object that he had observed Defendant carrying from the barbershop. However, a search of the area near the barbershop revealed a bag with two guns, a gun sight, and a white piece of paper. The document appeared to have blood on it. One of the guns, a .38 caliber revolver, had six empty shell casings in it. The other gun, a 9mm semiautomatic, was loaded and had one round in the chamber and one round missing. Bullet fragments were removed from the bodies of both Young and Hunter. In addition, the officers recovered bullets and a 9mm shell casing at the scene.
Defendant was charged with two counts of Murder. The State also filed one count seeking life imprisonment without parole for Young's murder. As the aggravating circumstance justifying life imprisonment without parole, the State charged Hunter's murder.1
At trial, evidence was presented that: (1) the bullets and fragments were consistent with the .38 caliber revolver, and that the 9mm shell casing was fired from the 9mm handgun; (2) Defendant was identified as the person seen leaving the barbershop; (3) Defendant was seen shooting Young in front of the barbershop; and (4) the cause of death established for both Young and Hunter was gunshot wounds.
A jury convicted Defendant of both counts of Murder. During the sentencing phase, the jury recommended a sentence of life imprisonment without parole. The trial court sentenced Defendant to two concurrent terms of life imprisonment without parole. The original sentencing order read:
Arguments on Motion of Elkin's, as to Count III to overturn and dismiss, is denied. State presents evidence before sentencing. Defendant makes unsworn statement. The jury having found you Guilty in Count I of Murder, the Court accepts their recommendation and sentences you to Life Imprisonment Without Parole. As to Count II, the jury having found you Guilty of Murder, the court accepts their recommendation and you are sentenced to Life Imprisonment Without Parole. Aggravating circumstances are stated on the record. Sentences are to run concurrent.
(App. at 8). The trial court had made the following oral statements at the conclusion of the sentencing hearing:
The jury having found you guilty in Count I of Murder of Charles Young, Jr., the court accepts the recommendation of the jury and sentences you to life imprisonment without parole, the aggravating factors being for both counts the same. I will state them after I sentence you for Count II. In Count II the jury having found you guilty of the offense of Murder of Robert Hunter, the court will accept the recommendation of the jury and sentence you to life imprisonment without parole. Those sentences will be concurrent. The court figures, the court states as aggravating circumstances multiple murders, your long and extensive criminal record, the fact that you were on bond at the time of this offense from Marion County which you have since been convicted of. Further, the court can draw inferences from circumstances and circumstantial evidence in this cause in that Robert Hunter was killed by a shot to the head. Therefore, the court concludes as an aggravating factor that that was an execution. Judgment on said findings. Commitment is ordered.
(Tr. at 415.)
cert. denied, 516 U.S. 1077, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996).
On remand, the trial court again sentenced Defendant to two concurrent life-without-parole terms, with the following sentencing order:
Defendant argues that the trial court abused its discretion when it permitted Dr. Michael Clark to testify to Robert Hunter's cause of death because his testimony was based on hearsay, rather than personal observation.
The failure to make a contemporaneous objection to the admission of evidence at trial, so as to provide the trial court an opportunity to make a final ruling on the matter in the context in which the evidence is introduced, results in waiver of the error on appeal. Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.2000); Harrison, 644 N.E.2d at 1256. In the present case, Defendant failed to make a contemporaneous objection to the admission of Dr. Clark's opinion as to Hunter's cause of death. The trial transcript reveals that Defendant did not object when Dr. Clark testified to the cause of death of either Young or Hunter. Rather, Defendant's objection followed a question regarding a wound to Hunter's right index finger. Defendant's failure to object contemporaneously results in waiver of the right to appellate review.
Defendant contends that he was sentenced in violation of recent United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Ring, the United States Supreme Court overruled Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), to the extent it allowed the judge, not the jury, to find an aggravating circumstance that supported a death sentence, and decided that Apprendi applied to Arizona's death penalty scheme. Ring, 122 S.Ct. at 2443. Apprendi had announced the rule that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Specifically, Defendant contends that the sentence is invalid because there was no specific jury verdict finding that the aggravating circumstance had been proven beyond a reasonable doubt and that the jury was incorrectly instructed that its role was only advisory.
In Bostick v. State, 773 N.E.2d 266, 273-74 (Ind.2002), reh'g denied, we held that defendant's life-without-parole sentence had been imposed in violation of the requirements of Ring and Apprendi and remand for resentencing. However, we find no violation of Ring or Apprendi in this case. In Bostick, the jury failed to make any recommendation as to sentence. In contrast, in this case, the jury unanimously recommended that Defendant be sentenced to life without parole. We hold that, implicit in the jury's recommendation as to sentence is the jury's finding beyond a reasonable doubt that the charged aggravating circumstance exists. We so hold because the jury was instructed that before it could recommend that a death sentence be imposed, the jury must find the existence of the charged aggravating circumstance beyond a reasonable doubt and that the aggravating circumstance outweighed the mitigating circumstances. Therefore, the jury necessarily determined the fact of the aggravating circumstance beyond a reasonable doubt. Overstreet v. State, 783 N.E.2d 1140, 1160-61 (Ind. 2003); Wrinkles v. State, 776...
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