French v. State

Decision Date06 May 1977
Docket NumberNo. 1175A321,1175A321
Citation266 Ind. 276,362 N.E.2d 834
PartiesLester FRENCH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Jan E. Helbert, George A. Cottrell, Indianapolis, John E. Eisele, Anderson, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee.


The Appellant, Lester French, was indicted by the Madison County Grand Jury on July 31, 1974, for five counts: first degree murder while engaged in the commission of a kidnapping; kidnapping; commission of a felony (robbery) while armed; commission of a felony (rape) while armed; and carrying a handgun without a license. On August 12, 1974, the Appellant moved for a change of venue. This motion was granted and the cause was venued to Henry County. After trial by jury the Appellant was found guilty of all five counts on April 30, 1975. The Appellant was sentenced to death for his murder conviction, life imprisonment for his kidnapping conviction, fifteen years imprisonment for each of his armed felony convictions, and six months imprisonment for his conviction of carrying a handgun without a license. The terms of imprisonment were designated by the trial judge to run consecutively. The Appellant's motion to correct errors was filed on July 3, 1975, and was denied on August 21, 1975.

Since the Appellant does not challenge the sufficiency of the evidence upon which his convictions were based, an extensive recitation of facts by this Court is not necessary. In brief, the evidence at trial revealed that at about 5:00 p.m., July 22, 1974, the Appellant robbed the family grocery store of Pauline Hart in Summitville, Indiana. During the course of the robbery, Mrs. Hart's granddaughter, Kathy Wylie, entered the store. When the Appellant took money and two cartons of cigarettes from the store, he also took Miss Wylie.

The Appellant and his captive emerged from the store and entered a waiting automobile driven by Charles L. Martin. Martin testified at trial that he and the Appellant both had sexual intercourse with Miss Wylie in the car during the course of their drive. '(T)oo scared to say anything,' she was also sodomized by the Appellant. After some period of time, the Appellant indicated to Martin that they had to 'get rid' of their victim. The car was stopped. Each man took his turn at bludgeoning the girl with a pipe wrench. When she still exhibited signs of life, she was rolled down a river embankment. Her head was held beneath the water until her struggling stopped. Pathological examination of the decedent established asphyxia due to drowning as the cause of death.


The Appellant's first three arguments challenge the constitutionality of this state's death penalty. The statute under which the Appellant was tried and convicted reads as follows:

'Murder--First degree.--(a) Whoever kills a human being either purposely and with premeditated malice or while perpetrating or attempting to perpetrate rape, arson, robbery, or burglary is guilty of murder in the first degree and, on conviction, shall be imprisoned in the state prison during life, unless the killing is one for which subsection (b) prescribes the death penalty.

(b) Whoever perpetrates any of the following acts is guilty of murder in the first degree and, on conviction, shall be put to death:

(1) Killing purposely and with premeditated malice a police officer, corrections employee, or fireman acting in the line of duty.

(2) Killing a human being by the unlawful and malicious detonation of an explosive.

(3) Killing a human being while perpetrating or attempting to perpetrate rape, arson, robbery, or burglary by a person who has had a prior unrelated conviction of rape, arson, robbery, or burglary.

(4) Killing a human being while perpetrating or attempting to perpetrate a kidnapping.

(5) Killing a human being while perpetrating or attempting to perpetrate any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft train, bus, ship, or other commercial vehicle.

(6) Killing a human being purposely and with premeditated malice:

(i) by a person lying in wait;

(ii) by a person hired to kill;

(iii) by a person who has previously been convicted of murder; or

(iv) by a person who is serving a life sentence.

An indictment under subsection (b) may not charge a lesser included offense, but in all situations to which this subsection applies, the jury, or the trial judge if there be no jury, may find the defendant guilty of second degree murder or voluntary or involuntary manslaughter, if the facts proved are insufficient to convict the defendant of the offense charged.'

Ind.Code § 35--13--4--1 (Burns 1975).

The Appellant's first argument asserts that the death penalty is unconstitutional per se as cruel and unusual punishment, prohibited under the Eighth Amendment of the United States Constitution and Article 1, § 16 of the Constitution of the State of Indiana. The United States Supreme Court, in a series of recent cases concerning capital punishment, has rejected the argument that the death penalty under any circumstances is cruel and unusual. Gregg v. Georgia (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Profitt v. Florida (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana (1976), 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974. We agree with that conclusion. The Fifth Amendment of the Constitution of the United States recognizes that the death penalty may be inflicted in stating that no person shall 'be deprived of life, liberty, or property, without due process of law'.

The Appellant also relies upon Article 1, § 18 of the Constitution of the State of Indiana:

'The penal code shall be founded on the principles of reformation, and not of vindictive justice.'

This provision has been consistently interpreted by this Court not to prohibit capital punishment for the crime of first degree murder. Adams v. State (1971), 259 Ind. 64, 271 N.E.2d 425; Hawkins v. State (1941), 219 Ind. 116, 37 N.E.2d 79; McCutcheon v. State (1927), 199 Ind. 247, 155 N.E. 544; Driskill v. State (1855), 7 Ind. 338.

The Appellant's second argument relies upon Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Since the series of more recent United States Supreme Court decisions mentioned above refines the Furman decision and is, we think, dispositive of the constitutionality question raised here, we will not address this second argument. Rather, we look to the Appellant's third argument, in which those cases are relied upon.

Woodson v. North Carolina, supra, concerned a North Carolina statute markedly similar to the Indiana statute under which the Appellant was convicted. The North Carolina statute reads:

'Murder in the first and second degree defined; punishment.--A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, kidnapping, burglary or other felony shall be deemed to be murder in the first degree and shall be punished with death. All other kinds of murder shall be deemed murder in the second degree, and shall be punished by imprisonment for a term of not less than two years nor more than life imprisonment in the State's prison.'

N.C.Gen.Stat. § 14--17 (Cum.Supp.1975).

The plurality of the Supreme Court found this statute to be constitutionally deficient on three grounds:

1) It provided for a mandatory, automatic death penalty, which departed 'markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish 'be exercised within the limits of civilized standards." (citation omitted) 428 U.S. at 301, 96 S.Ct. at 2990, 49 L.Ed.2d at 959.

2) It failed to provide the jury with 'objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death', contrary to Furman v. Georgia, supra. 428 U.S. at 303, 96 S.Ct. at 2991, 49 L.Ed.2d at 960.

3) It failed 'to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death', contrary to 'the fundamental respect for humanity underlying the Eighth Amendment'. 428 U.S. at 304, 96 S.Ct. at 2991, 49 L.Ed.2d at 960--961.

While there is always difficulty in applying the reasoning of a plurality of a court, when the concurring opinions are considered, there can be no doubt that the Indiana statute is unconstitutional under Woodson v. North Carolina, supra, and its companion cases. The sum and substance of the verbiage of the plurality opinions is that the death penalty may not be mandatory, nor may it be left to the unlimited discretion of the jury. In other words, there is a gray area between mandatory sentences and discretionary sentences in which the death penalty may be imposed. This gray area, as pointed out by the dissenting opinions, is left undefined.

We point out that standards are either mandatory or discretionary. If standards were fixed in the gray area that limit discretion then the death penalty becomes mandatory insofar as the standards are definite and certain. If the standards are not definite and certain in this gray area then the discretion is unlimited insofar as it is indefinite. The United States Supreme Court thus leaves the legislature, faced with the problem of fixing standards, upon the horns of a dilemma. When are the standards for the imposition of the death penalty mandatory...

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