Burris v. State, No. 49S00-8610-PC-917

Docket NºNo. 49S00-8610-PC-917
Citation558 N.E.2d 1067
Case DateAugust 24, 1990
CourtSupreme Court of Indiana

Page 1067

558 N.E.2d 1067
Gary BURRIS, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below).
No. 49S00-8610-PC-917.
Supreme Court of Indiana.
Aug. 24, 1990.
Rehearing Denied Oct. 23, 1990.

Page 1069

Linda Wagoner, Fort Wayne, Ind., for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, Ind., for appellee.

SHEPARD, Chief Justice.

Gary Burris was convicted of murder under Ind.Code Sec. 35-42-1-1 (Burns 1979 Repl.). On December 5, 1980, the jury recommended Burris be sentenced to death and Judge John Tranberg followed their recommendation. This Court affirmed the sentence on direct appeal. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985). Judge Roy Jones, acting as special judge, denied Burris' petition for post-conviction relief. We have regrouped and restated the issues Burris raises on appeal:

I. Whether the jury at Burris' trial was improperly conditioned under the rule put forth in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).

II. Whether Burris was denied effective assistance of counsel.

III. Whether Burris was convicted of a crime greater than the one defined in the instructions to the jury.

Our standard for reviewing the denial of a post-conviction petition does not allow us to weigh the evidence or judge the credibility of the witnesses. It requires the petitioner to establish that the evidence as a whole leads unmistakably to a decision in his favor. Schiro v. State (1985), Ind., 479 N.E.2d 556, cert. denied, 475 U.S. 1036, 106 S.Ct. 1247, 89 L.Ed.2d 355 (1986).

We conclude that Burris did not receive effective assistance of counsel during the sentencing phase of his trial and we reverse the sentence of death. Otherwise, we affirm the denial of his post-conviction petition.

I. Jury Conditioning

Burris argues that his conviction is unsound because during voir dire the jury was repeatedly told that they would only recommend the death sentence to the judge and that the judge would make the final decision. For example, the prosecutor asked if a juror understood that "the ultimate decision rests in Judge Tranberg and not in anybody else." Trial Record at 697. Burris asserts that ten members of the jury heard 34 remarks of that kind, while two members of the jury heard such remarks four times. He calls it conditioning. Brief for Defendant at 37.

Burris contends that this jury conditioning violates his sixth, eighth and fourteenth amendment rights. He claims it is unconstitutional to allow the jury to believe the responsibility for sentencing the defendant to death lies elsewhere, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Burris reminds us that his direct appeal was decided before Caldwell and did not consider whether conditioning made it less likely the jury would recommend life.

The State claims that the statements during voir dire accurately reflected the jury's advisory role. The State also argues that Caldwell only applies if the sentencer has been led to believe that the responsibility for determining the appropriateness of defendant's death lies elsewhere. Thus the State would have us conclude that because an Indiana jury is not the sentencer, most of the responsibility does lie elsewhere.

In Caldwell v. Mississippi the U.S. Supreme Court held that a capital sentence is not valid "when the sentencing jury is led to believe that responsibility for determining the appropriateness of a death sentence rests not with the jury but with the appellate court which later reviews the case." 472 U.S. at 323, 105 S.Ct. at 2636. This holding was based on the idea that "state-induced suggestions that the sentencing jury may shift its sense of responsibility to an appellate court" risk creating "substantial unreliability as well as bias in favor of death sentences." 472 U.S. at 330, 105 S.Ct. at 2640. The Caldwell Court stated

Page 1070

that because it could not conclude that the State's effort to minimize the jury's sense of responsibility had no effect on the sentencing decision, the jury's decision did not meet the standard of reliability required by the eighth amendment. 472 U.S. at 341, 105 S.Ct. at 2646.

In assessing the applicability of Caldwell to Indiana's sentencing scheme, we are aided by decisions applying Caldwell to Florida's similar system. The Eleventh Circuit reviewed the applicability of Caldwell to Florida's sentencing scheme in Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), rev'd, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). There, the trial judge told prospective jurors:

The ultimate responsibility for what this man gets is not on your shoulders. It's on my shoulders. You are merely an advisory group to me.... So that this conscience part of it as to whether or not you're going to put the man to death or not, that is not your decision to make. That's only my decision to make and it has to be on my conscience. It cannot be on yours.

Id. at 1528. The district court had concluded that Adams' claim did not " 'derive any merit from the Caldwell decision' because the trial judge and not the jury, is the sole sentencer in Florida." 804 F.2d at 1528-29. Despite the state's claim that prejudice could not be demonstrated because the comments were a correct assessment of Florida law, the Court of Appeals found that the judge's comments "were misleading because they left the jury with a false impression as to the significance of their role in the sentencing process." 804 F.2d at 1531, n. 7.

The U.S. Supreme Court reversed the Eleventh Circuit's decision. It noted that Adam's first appeal preceded the Caldwell decision, but declared that Caldwell merely recognized that an instruction invalid under state law because it mischaracterizes the jury's role violates the eighth amendment. The state law violation is the basis for the eighth amendment violation. As Justice White wrote for the Court, "if the challenged instruction accurately described the role of the jury under state law, there is no basis for a Caldwell claim." 489 U.S. at ----, 109 S.Ct. at 1215, 103 L.Ed.2d at 443.

Noting that instructions must be invalid under state law to sustain a Caldwell claim, the Court determined that Adams had waived his right to present a federal claim by failing to challenge the validity of the judge's instructions during the state court proceedings. The fact that the trial court remarks were objectionable on federal as well as state grounds did not excuse Adams' failure to follow the state's procedural rules. Dugger v. Adams, 489 U.S. 401, ----, ---- - ----, 109 S.Ct. 1211, 1213-14, 1215-17, 103 L.Ed.2d 435, 441, 443-45 (1989).

Under Dugger v. Adams the fact that Burris' first appeal predated the Caldwell opinion does not negate the State's interest in timely objections to invalid instructions, nor does it excuse his failure to argue this issue under state law in his direct appeal. Because the State responded to this issue on the merits, however, without asserting waiver, we will address it on the merits.

The differences between the statements made at Burris' trial and those held improper in Caldwell are telling. The jurors in Caldwell were told that the alternative decisionmaker was the state supreme court, that the death penalty law required automatic review. There was no mention of the possibility of review following a sentence of years. In some respects it was a suggestion that the way to assure review was to impose death. The implication was that the Mississippi Supreme Court was the final decisionmaker. In fact, the jury was the decisionmaker.

By contrast, the jury in Burris' trial was simply informed that the responsibility for sentencing rests with the judge. In Indiana, as under the Florida system reviewed in Dugger, the judge is the decisionmaker.

This Court has said: "An Indiana trial court need not accept the jury's recommendation either for or against the death penalty. The capital sentencing statute provides,

Page 1071

'The court is not bound by the jury's recommendation.' Ind.Code Sec. 35-50-2-9 (Burns 1985 Repl.)" Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731, 733.

The Indiana death penalty statute states in part:

If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing. The jury or the court may consider all the evidence introduced at the trial stage of the proceedings, together with new evidence presented at the sentencing hearing.

Ind.Code Sec. 35-50-2-9(d) (Burns 1985 Repl.). 1 The statute further instructs:

If the hearing is by jury, the jury shall recommend to the court whether the death penalty should be imposed.... The court shall 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. The court is not bound by the jury's recommendation.

Ind.Code Sec. 35-50-2-9(e) (Burns 1985 Repl.).

Not only did the prosecutor's comments accurately reflect Indiana law, we are satisfied that the jury was not misled concerning the importance of their recommendation. The statements about which Burris complains must also be considered in context of the lengthy and detailed voir dire to select the jury in Burris' case. During the voir dire the jurors were informed that their decision was a recommendation and that it would receive great weight. The prosecutor told the jury: "Judge Tranberg, sitting up there, representing this Criminal Court, is the person with the ultimate responsibility for imposing a sentence; all that this jury would do would be to make a recommendation, do you understand that?" Record at 518. Judge Tranberg, on the other hand,...

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38 practice notes
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...moment. Defense counsel had also been involved as appointed defense counsel in a death penalty case tried in late 1980, Burris v. State, 558 N.E.2d 1067 (Ind.1990). Compare Daniels v. State, 561 N.E.2d 487 The task of representing any defendant charged with a criminal offense is a most diff......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...juries serve a recommending function with the trial judge having final sentencing responsibility. See Burris v. State (1990), Ind., 558 N.E.2d 1067. We have rejected Caldwell claims in several cases. See Evans v. State (1990), Ind., 563 N.E.2d 1251; Burris, 558 N.E.2d 1067; Wallace v. State......
  • Burris v. Parke, No. 3:95-CV-0917 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 26, 1996
    ...not aim to imply that the Supreme Court of Indiana has ever treated any sentence of death with short shrift. See, e.g., Burris v. State, 558 N.E.2d 1067 (Ind.1990) (reversing first death sentence on appeal of PCR petition); Schiro v. State, 669 N.E.2d 1357 (Ind.1996) (vacating death sentenc......
  • Overstreet v. State, No. 41S00-0306-PD-249.
    • United States
    • Indiana Supreme Court of Indiana
    • November 27, 2007
    ...evidence constitutes ineffective assistance of counsel, warranting the vacation of a death sentence. Id. (citing Burris v. State, 558 N.E.2d 1067, 1076 (Ind.1990) and Smith v. State, 547 N.E.2d 817, 822 (Ind.1989)); see also Prowell v. State, 741 N.E.2d 704, 717 (Ind.2001). But that is not ......
  • Request a trial to view additional results
38 cases
  • Resnover v. Pearson, Civ. No. S88-128.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 14, 1991
    ...moment. Defense counsel had also been involved as appointed defense counsel in a death penalty case tried in late 1980, Burris v. State, 558 N.E.2d 1067 (Ind.1990). Compare Daniels v. State, 561 N.E.2d 487 The task of representing any defendant charged with a criminal offense is a most diff......
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • October 29, 1992
    ...juries serve a recommending function with the trial judge having final sentencing responsibility. See Burris v. State (1990), Ind., 558 N.E.2d 1067. We have rejected Caldwell claims in several cases. See Evans v. State (1990), Ind., 563 N.E.2d 1251; Burris, 558 N.E.2d 1067; Wallace v. State......
  • Burris v. Parke, No. 3:95-CV-0917 AS.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • December 26, 1996
    ...not aim to imply that the Supreme Court of Indiana has ever treated any sentence of death with short shrift. See, e.g., Burris v. State, 558 N.E.2d 1067 (Ind.1990) (reversing first death sentence on appeal of PCR petition); Schiro v. State, 669 N.E.2d 1357 (Ind.1996) (vacating death sentenc......
  • Overstreet v. State, No. 41S00-0306-PD-249.
    • United States
    • Indiana Supreme Court of Indiana
    • November 27, 2007
    ...evidence constitutes ineffective assistance of counsel, warranting the vacation of a death sentence. Id. (citing Burris v. State, 558 N.E.2d 1067, 1076 (Ind.1990) and Smith v. State, 547 N.E.2d 817, 822 (Ind.1989)); see also Prowell v. State, 741 N.E.2d 704, 717 (Ind.2001). But that is not ......
  • Request a trial to view additional results

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