Evans v. State

• Decision Date: 07 December 1990
• Docket Number: No. 49S00-8704-CR-453,49S00-8704-CR-453
• Citation: 563 N.E.2d 1251
• Parties: Charles EVANS, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1251

563 N.E.2d 1251

Charles EVANS, Appellant, v. STATE of Indiana, Appellee.

No. 49S00-8704-CR-453.

Supreme Court of Indiana.

Dec. 7, 1990.

Theodore M. Sosin, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Arthur Thaddeus Perry, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Justice.

A jury trial resulted in the conviction of appellant of Confinement, a Class B felony, two counts of Rape, Class A felonies, Murder, and Felony Murder. At the penalty phase of the trial, the jury recommended that appellant receive the death penalty. The trial judge so ordered.

The facts are: On the evening of October 3, 1985, appellant met Darlene Hendrick, the victim, and they engaged in a conversation. They decided to purchase some whiskey and then proceeded to an abandoned building. While in the building, Hendrick excused herself to go to the bathroom. On another occasion, appellant followed her and put his knife close to her neck instructing her that he would not hurt her as long as she cooperated with his request. He then proceeded to rape her.

Following this incident, they went to the Clique Lounge for a drink. After leaving the lounge, they returned to the abandoned building and consumed more alcohol. During this period, appellant forced the victim to perform oral sex and again raped her. However, during this encounter, he stabbed the victim 45 times, cut her hair, and then proceeded to pull her body outside of the building. He then called the police.

Appellant contends that the findings of the jury and the court were contrary to the evidence. He claims the mitigating circumstances clearly outweighed the aggravating circumstances and that the court further erred in its failure to articulate in the sentencing hearing or in its formal findings the mitigating circumstances and the balancing process used in reaching its decision.

It is the responsibility of the trial court to indicate its reasons for imposing a sentence in order for this Court to carry out its function of reviewing the trial court's sentence. See Abercrombie v. State (1981), 275 Ind. 407, 417 N.E.2d 316. The statement of reasons must contain the following three elements: 1) it must identify all significant mitigating circumstances and aggravating circumstances; 2) it must include the specific reason why each circumstance is mitigating or aggravating; and 3) the mitigating circumstances must be weighed against the aggravating circumstances in order to determine if the aggravating circumstances offset the mitigating circumstances. Robinson v. State (1985), Ind., 477 N.E.2d 883, 886. This Court has held that more stringent procedural standards are required in a capital sentencing hearing than are required in a non-capital sentencing situation. Griffin v. State (1980), 273 Ind. 184, 402 N.E.2d 981. Under the death penalty statute, Ind.Code Sec. 35-50-2-9(c)(8), a trial judge in considering mitigating circumstances may consider: "Any other circumstances appropriate for consideration."

To support his position, appellant cites Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1. At the time of the offense, Eddings was 16 years old. An Oklahoma statute dealing with the death penalty provided for consideration of both mitigating and aggravating circumstances. The statute however did not define what was meant by "any mitigating circumstances." The trial judge in imposing the death sentence found aggravating circumstances but refused to consider as mitigating circumstances Eddings' unhappy upbringing and emotional problems. The trial judge's only mitigating circumstance was the petitioner's youth. The United States Supreme Court in vacating the decision held that the Eighth and Fourteenth Amendments require that the sentence not preclude the mitigating factors such as the defendant's character or record and any of the circumstances that are proffered as a basis for mitigation.

Appellant relies upon Skipper v. South Carolina (1986), 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1. There the State sought the death penalty. Appellant attempted to introduce testimony of two jailers and a regular visitor to the effect that he had "made a good adjustment" during the time he spent in jail between his arrest and trial. However, the trial judge refused this evidence concluding that it was irrelevant and inadmissible. In reversing the imposition of the death sentence, the United States Supreme Court held that the exclusion of the evidence denied the petitioner the right to place before the sentencer relevant evidence in mitigation of punishment.

Appellant also relies on Fitchcock v. Dugger (1987), 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347. There the petitioner received a death sentence. Defense counsel introduced evidence of several mitigating factors including the defendant's misconduct as a child, the fact that he had been one of seven children in a poor family, that his father had died when he was a child, and that he had been an affectionate uncle to the children of his brothers. Counsel also argued his age and lack of prior criminal activity and his voluntary surrender to authorities. The judge gave a limited instruction to the jury as to what mitigating factors they should consider. The United States Supreme Court reversed, finding that the advisory jury was instructed not to consider mitigating factors. They further found the sentencing judge refused to consider evidence of nonstatutory mitigating factors.

We note that appellant's reliance upon the foregoing cases is misplaced. In those cases, the United States Supreme Court reversed the death sentences because the sentencer was either precluded from considering or refused to consider mitigating factors unlike the instant case. Nowhere in the instant case is there any indication that the trial court refused to consider any of the evidence proffered in mitigation by appellant.

Appellant also relies on decisions from this Court to support his position. He primarily relies on Games v. State (1989), Ind., 535 N.E.2d 530, cert. denied, --- U.S. ----, 110 S.Ct. 205, 107 L.Ed.2d 158. There the death penalty was ordered. On appeal, Games argued the trial judge failed to find and properly weigh purported mitigating circumstances. This Court held that the failure to find mitigating circumstances, which are clearly supported by the record, may give rise to the belief that they were overlooked and hence not properly considered. However, we found that there was no reason to presume that any of the alleged mitigating circumstances had been overlooked, and we affirmed the trial court.

In the case at bar, appellant's childhood was filled with loneliness and rejection, his mother was an alcoholic, his father died when appellant was a teenager, he turned to male prostitution after high school to support himself, he had a criminal history with sex related crimes, and he had a history of psychiatric problems. He also reported the instant crime to the police and waited for their arrival. Appellant obtained his high school diploma while attending the Indiana Youth Center. The presentence report evaluated his intelligence as slightly above average but rather unmotivated and stated he would put forth only the minimum effort needed to survive. We find no reason to suppose the trial court overlooked the evidence that was presented. The judge made the following findings:

"7. Evidence was presented at the trial and sentencing hearings, and considered by the Court, regarding the mental status of the defendant, Charles G. Evans, including the testimony of Mary Woolitz-Dooley, Dr. Gary Bartell, Dr. Dwight Schuster, and Dr. Ronald Hull. The Court now finds that defendant Charles G. Evans:

(a) did not suffer from a mental disease or defect, and was able to appreciate the wrongfulness of his conduct.

(b) did not have a psychiatric disorder which disturbed his thinking, feeling or behavior and impaired his ability to function.

(c) was not under the influence of extreme mental or emotional disturbance.

(d) had the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law.

(e) was not substantially impaired as a result of mental disease or defect or of intoxication."

The trial judge did in fact consider the evidence proffered in mitigation by appellant. We therefore find that none of the purported mitigating circumstances can be presumed to have been overlooked by the trial judge. We find no error.

Appellant contends the trial court erred in the de-emphasis to the jury of their role in the consideration of the death penalty. He contends the trial court erred in instructing the jury and permitting the prosecutor to mention that their sentencing decision was a recommendation to the trial judge who would make the final determination.

In support of his argument, appellant relies on Caldwell v. Mississippi (1985), 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231. In Caldwell, the prosecutor sought to minimize the jury's sense of responsibility by arguing that the final determination of the death sentence rests not with the jury but with the reviewing courts. The United States Supreme Court determined that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639, 86 L.Ed.2d at 239.

Appellant also relies on Dugger v. Adams (1989), 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435. In Dugger, Adams was charged with first-degree murder. During jury selection, the trial judge instructed prospective jurors on their "advisory" role under Florida law and indicated to them that the court was not bound by their recommendation but instead he would make the ultimate decision. Eventually Adams filed a second federal habeas corpus petition. The District Court...