Davis v. State

• Decision Date: 22 May 1985
• Docket Number: No. 484S142,484S142
• Parties: Frank R. DAVIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 889

477 N.E.2d 889

Frank R. DAVIS, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 484S142.

Supreme Court of Indiana.

May 22, 1985.

Rehearing Denied July 15, 1985.

Gregory H. Hofer, LaPorte, Jere L. Humphrey, Plymouth, for appellant.

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

HUNTER, Justice.

The defendant, Frank R. Davis, pled guilty on January 12, 1984, to two counts of murder, Ind.Code Sec. 35-42-1-1 (Burns 1985 Repl.), and two counts of attempted murder, Ind.Code Secs. 35-41-5-1; 35-42-1-1 (Burns 1985 Repl.). Under the terms of the plea agreement, the state agreed to dismiss four counts of criminal deviate conduct and two counts of felony murder but reserved the right to seek imposition of the death penalty, Ind.Code Sec. 35-50-2-9 (Burns 1985 Repl.) on the two murder counts. A sentencing hearing was conducted on January 18, 1984, during which both the state and the defendant introduced evidence. On January 25, 1984, the court imposed a sentence of death on the two murder counts and consecutive terms of fifty years each on the two counts of attempted murder.

Defendant raises six issues in this direct appeal which we have consolidated into the following four issues:

1. Whether it was reversible error for the trial court to find the existence of a statutory aggravating circumstance which was not charged by the state and which was in addition to the two statutory aggravating circumstances charged by the state;

2. Whether it was reversible error for the trial court to find that the evidence supported a finding that both murders were committed while committing the underlying felony of child molesting when the actual act of molestation had been completed prior to the act of killing;

3. Whether it was reversible error for the trial court to find that the evidence supported a finding of the aggravating circumstance of "lying in wait" in both murders; and

4. Whether the trial court erred by failing to consider certain alleged mitigating circumstances.

A review of the facts from the record shows that the charges in this case arose from three separate incidents. On January 10, 1983, a fifteen year old boy, J.S., left a store in LaPorte, Indiana, where he had been playing a video game. It was about 5:00 p.m. and his route home took him through a cornfield. As he walked through the field, he noticed that someone was following him. Then that man ran on ahead of J.S. and waited for him at the end of the cornfield. When J.S. got close to the man, the man grabbed him, pulled out a gun, and forced J.S. into a wooded area. Then the man told J.S. to sit down and started talking to him. The man knew J.S.'s name, where he lived, his sister's name, and his girlfriend's name. When J.S. asked the man how he knew all of that, the man said, "Well, I just do."

After a little while, the man made J.S. move to another part of the woods and tied a wire around J.S.'s neck. The other end of the wire was around his own hand. The man then took down the boy's pants and performed oral sex on him. Then he told J.S. he was going to take the wire off his neck, but instead pulled it tighter until J.S. passed out. When J.S. regained consciousness, the man did take the wire off of his neck and forced him to go to a different part of the woods and lie down on his stomach.

J.S. pleaded with the man not to shoot him, but the man said that if he let him go, he would tell the police what happened. J.S. said he wouldn't tell and finally the man said he would knock him unconscious. He hit the boy on the back of the head with the gun and the boy pretended to be unconscious. The man continued hitting him with the gun, about eight or nine times. Then he pushed the boy with his foot to see if he moved and ran off.

J.S. lay still for several minutes to be sure the man had gone and then got up. He was bleeding a great deal and felt dizzy and lightheaded but he was able to walk to his house. His mother immediately took him to the hospital. J.S. said the man told him his name was Frank but J.S. had never seen him before. At the sentencing hearing, J.S. identified defendant as the man who had done these things to him.

The second incident occurred on June 16, 1983, when defendant saw a teenage boy, D.R., at the home of one of his relatives. Defendant gave D.R. and other youths in that neighborhood rides on his motorcycle. He and D.R. made plans to meet later in the evening. That night, about 10:00 p.m., defendant hid and waited for D.R. by some railroad tracks. He heard D.R. walk by that location and called out to him. D.R. stopped and both he and defendant drank a beer.

After a few minutes, D.R. said it was late and he had to go home. Defendant then threatened D.R. with a knife and tied a wire around his hands and neck. He took him into some weeds beside the tracks. Defendant performed oral sex on D.R. and then choked him fatally with his hands. Finally defendant carried D.R.'s body across a fence and left the body in some weeds.

The third incident occurred on June 18, 1983, when two teenage boys, E.F. and J.L., decided to go camping at a camp area just south of LaPorte, Indiana. They took a tent, sleeping bags, cooking gear, and an axe. After they set up their tent, they went to get firewood. While they were walking along some railroad tracks looking for dry firewood, they saw defendant sitting beside the tracks. He was smoking a marijuana cigarette and asked the two boys if they wanted to share it. The boys accepted his offer and defendant told them his name was Frank Davis. The three talked for a short time about growing marijuana and the boys told defendant where they were camping.

Later that evening, defendant came to the boys' campsite riding a motorcycle. He brought more marijuana cigarettes and the three sat inside the tent for about half an hour. Defendant left on his motorcycle when it was getting dark. The boys sat around their campfire for awhile and then J.L. went to sleep in the tent while E.F. lay down in his sleeping bag outside the tent. Some campers next to the boys were partying and were playing loud music. Consequently, E.F. had trouble going to sleep and got up and sat on the picnic table for a time. Eventually, he did lie down and go to sleep.

Meanwhile defendant had returned to the camp area to watch the boys. He did not make his presence known to the boys but was in his own words, "lurking around, waiting." He watched the boys go to sleep and waited while the people at the next campsite quieted down. Then he went into the tent and woke up J.L. He forced J.L. to go down by the railroad tracks with him at knifepoint. Then he tied up J.L. with wire and performed oral sex on him. Defendant and J.L. then walked a little further along the tracks. Finally, defendant strangled J.L. with a piece of wire and dragged his body off into the weeds. Defendant kissed the dead boy and left him there.

Then defendant went back to the boys' campsite and woke up E.F. He told him that J.L. had been hurt while riding the motorcycle and needed help. E.F. got up and went so quickly with defendant that he did not pause to get his eyeglasses. However, he did pick up the axe when defendant told him to. When defendant and E.F. got away from the campsite and out by the railroad tracks, defendant used his knife to force E.F. to lie down. He took the axe and tied E.F.'s hands with wire. Defendant performed oral sex on E.F. and then made him roll over on his stomach. He hit E.F. on the head with the axe four times. E.F. only remembered being hit once before he lost consciousness. He woke up in the hospital with four wounds on his head. The blows to his head damaged his peripheral vision and he has suffered seizures, dizziness, headaches, nausea, and nightmares and had difficulty walking.

E.F. told the police that a man named Frank Davis was his assailant and defendant was subsequently arrested. He gave a statement to police about his involvement in all four crimes and this statement was introduced as evidence at the sentencing hearing.

I.

Defendant's first issue raises a question of first impression for this Court in the application of the death penalty statute, Ind.Code Sec. 35-50-2-9 (Burns 1985 Repl.). Defendant contends that it was reversible error for the trial court to find the existence of an aggravating circumstance to support the imposition of the death penalty which was not charged by the state, in addition to finding the existence of the two aggravating circumstances which were specifically charged by the state.

The record shows that the state charged that the murders of D.R. and J.L. were committed while committing child molesting and were committed by lying in wait. These are two of the specific aggravating circumstances which are listed in the death penalty statute. The state did not charge the aggravating circumstance of having committed another murder, but on the murder count of J.L. the trial court specifically found that one aggravating circumstance was the previous murder of D.R. The court also found that the two aggravating circumstances charged by the state were supported by the evidence.

In considering the language of the death penalty statute, we find that the state's burden is divided into two separate stages. First the state must allege "at least one of the aggravating circumstances" in the information seeking the death penalty; then at the sentencing hearing, the state "must prove beyond a reasonable doubt the existence of at least one of the aggravating circumstances alleged." Ind.Code Sec. 35-50-2-9 (emphasis added). This language clearly does not limit the state to alleging or proving only one of the statutory aggravating circumstances. Thus there is no error when the state alleges and proves two aggravating circumstances as it did in the instant case.

We further conclude that there was no error in this case when the...