Fleenor v. State

Decision Date03 September 1993
Docket NumberNo. 41S00-9106-PD-433,41S00-9106-PD-433
Citation622 N.E.2d 140
PartiesD.H. FLEENOR, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

F. Thomas Schornhorst, Bloomington and Brent Westerfeld, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana and Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

This is an appeal from a judgment denying a petition for post-conviction relief filed pursuant to the Indiana Rules of Procedure for Post-Conviction Remedies. Appellant Fleenor was convicted upon two murder charges in the shooting deaths of his estranged wife's mother and stepfather. The jury recommended death. The judge determined three death aggravators, namely, double murder, lying in wait and intentional killing in the course of a felony. The judge imposed the sentence of death. The convictions and sentence were affirmed on direct appeal. Fleenor v. State (1987), Ind., 514 N.E.2d 80.

In this appeal from the judgment denying post-conviction relief, appellant makes the following claims: 1) error of the judge at the murder trial in making and permitting the prosecutor to make statements to jurors degrading the death sentencing role of the jury; 2) error in permitting the jury to receive information of the imprisonment alternatives to the death sentence and the application of good time credits; 3) defective jury instructions at both the guilt and penalty phases; 4) error in permitting prejudicial use of evidence of appellant's future dangerousness; 5) error in permitting improper comment of prosecutor at closing statements; 6) error in utilizing the intentional killing aggravator after obtaining a conviction for a knowing killing; 7) error in predicating sentence upon theory of murder during the course of a burglary; 8) insufficient evidence of lying in wait as to both victims; 9) invalid aggravators render balancing of them invalid; 10) inadequate findings of the sentencing court; 11) error in denying motion to amend post-conviction petition; and 12) ineffective counsel at trial, death sentencing and on direct appeal.

In a post-conviction hearing, the burden of establishing grounds for relief by a preponderance of the evidence rests with the petitioner. Ind.Post-Conviction Rule 1(5). The judgment of the trial court carries presumptive validity following affirmance on appeal, and the party seeking review, here the petitioner, bears the burden of showing invalidity. Remsen v. State (1986), Ind., 495 N.E.2d 184. The trial judge, as trier of fact, is the sole judge of the weight of the evidence and the credibility of the witnesses. On appeal, petitioner stands in the position of one appealing from a negative judgment. In such cases, it is only where the evidence is without conflict and leads to but one conclusion, and the trial court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Hoskins v. State (1973), 261 Ind. 291, 302 N.E.2d 499.


While Fleenor's direct appeal was pending, the U.S. Supreme Court held that the Eighth Amendment precludes a sentence of death where the sentencing jury is led to believe that responsibility for determining the appropriateness of death rests elsewhere. Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Indiana the jury does not determine the sentence, but only makes a recommendation with respect to it. The judge decides whether to impose either imprisonment or the death penalty. If the jury recommendation is against death, death is appropriate only if the facts justifying a death sentence are so clear and convincing that only death is reasonable. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731; Jackson v. State (1992), Ind., 597 N.E.2d 950. This Court has recognized that Caldwell grounds may operate to foreclose a death sentence under the Indiana system. Burris v. State (1990), Ind., 558 N.E.2d 1067; Wallace v. State (1990), Ind., 553 N.E.2d 456.

Premised upon Caldwell, in this, appellant's first state post-conviction proceeding, appellant claims that his death sentence cannot stand because repeated misleading statements of the prosecutor during voir dire and the penalty phase final argument, and similar misleading statements of the judge during voir dire, undermined the jury's sense of responsibility in making its sentencing recommendation, in violation of the Eighth Amendment. The post-conviction judge, upon consideration of the evidence, concluded that the claim was waived and was without merit. On appeal, the state has focused entirely on the merits of the issue. Therefore, it is appropriate that we consider the merits. Burris, 558 N.E.2d 1067.

During voir dire examination of prospective jurors, the judge, the prosecutor, and defense counsel probed attitudes toward the death penalty. This examination constituted a first introduction for most to many legal principles and processes. First responses to the initial question of whether a juror could consider the possibility of the death penalty for murder typically range from (1) the emphatic no, through (2) the tentative no and the tentative yes, to (3) the emphatic yes. All prospective jurors had to be introduced for the first time to the idea that their role would be to recommend the penalty to the judge, who would in turn decide upon the penalty. The judge's questions commonly took the following form:

[I]t's the Courts responsibility ultimately, you make a recommendation to the Court, the Court either follows it or doesn't, and then the Court ... can impose the death penalty, not impose the death penalty, and can give a sentence ... with a wide range of possibilities. You're not ... charged with that responsibility in this case.

* * * * * *

Now your recommendation is just that. It's a recommendation it is not binding on the Court.... The Court may ignore it; the Court can accept it. In the final analysis the decision will be up to the Court.

This and similar extemporaneous statements of the judge are consistent with roles defined for judge and jury, but are not entirely accurate. They do not inform the jury that the judge is required to give due consideration to the recommendation in deciding upon the sentence. Judges are of course not free to ignore the recommendation.

The voir dire questioning by defense counsel was generally very complete and accurate. It commonly took the following form:

[I]t has been explained to you, the Jury does make a recommendation to the Court, recommending that the death penalty be imposed or recommending that the death penalty not be imposed. And that is certainly a factor that the Court would consider.

The voir dire by the trial prosecutor commonly took the following form:

It would be up to the Judge to make the final determination, and your action * * * * * *

would simply be to recommend or not recommend death penalty.

[Y]ou make that recommendation to His Honor, ... he accepts that recommendation for consideration only. You understand that he is not bound by it. He listens to what you have to say, but he is the final judge.... His Honor, the Judge, imposes the penalty. You don't have to worry about that....

* * * * * *

[T]he key word ... is recommendation.... [T]hat, maybe, takes some of the burden off of you....

* * * * * *

[I]t is only a recommendation.... He listens to the evidence.... He also has a presentence report.... [H]e juggles all those things or whatever you want to say about it, and he makes that decision. So, I want to make it clear to you, you're not saying, as a Jury member, We impose the death penalty.

In closing argument, defense counsel suggested that a mistake could be made in the trial and told the jury that if they recommended execution they would have to live with that the rest of their lives. He concluded by declaring that the prosecutor wanted to kill Fleenor but that the fate of Fleenor was in the hands of the jury. In responding to the argument of defense counsel concerning the possibility of a mistake, the trial prosecutor stated that the jury recommendation was not a final decision, that it was subject to the final decision of the trial judge and appeal to the Indiana Supreme Court and the federal courts. He concluded by stating that the life of D.H. Fleenor was not in their hands but in the hands of criminal justice.

Following the above closing argument, the trial judge gave the following formal instructions in the sentencing charge:

Although your recommendation is not binding upon the Court, it is a very valuable contribution.... The court shall make the final determination of the sentence, after considering the jury's recommendation.... The law in no circumstances requires you to recommend the death penalty.... The unsworn statements or comments of counsel on either side of the case should not be considered as evidence in the case. It is your duty to determine the facts from the testimony and evidence admitted by the court and given in your presence, and you should disregard any and all information that you may derive from any other source.

The issue that we must decide is whether the information repeatedly supplied to the jury in the foregoing events so diminished the sense of responsibility of the jury in fulfilling its sentencing duty as to violate the Eighth Amendment. Appellant points to Martinez Chavez, 534 N.E.2d 731, wherein this Court stated that the role of the jury is critical and should be heeded when the jury recommends against the death penalty. In Huffman v. State (1989), Ind., 543 N.E.2d 360, 372, we approved the action of the trial court in repeatedly telling the jury that their recommendation was of utmost importance. In Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889, this Court posited that the jury's recommendation is a very valuable contribution to the process. Appellant is critical because of the lack of such strong statements concerning the value of the jury...

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