Hough v. State

Citation560 N.E.2d 511
Decision Date04 October 1990
Docket NumberNo. 02S00-8712-CR-1179,02S00-8712-CR-1179
PartiesKevin Lee HOUGH, Appellant, v. STATE of Indiana, Appellee.
CourtSupreme Court of Indiana

Bruce R. Snyder and Bruce S. Cowan, Fort Wayne, for appellant.

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

PIVARNIK, Justice.

Defendant-Appellant Kevin Lee Hough was charged in the Allen Superior Court, Criminal Division, with the knowing or intentional murder of Martin Eugene Rubrake and Theodore G. Bosler. The State also filed an Application for Death Sentence. The jury found Hough guilty of both counts of murder and further recommended the death penalty be imposed. The trial court found Hough guilty of the two murders, found sufficient aggravating factors peculiar to Hough and the crimes which outweighed mitigating circumstances that existed, and imposed the death penalty.

Six issues are presented for our review in this direct appeal:

1. violation of Hough's constitutional rights when members of the victims' families stood up to be introduced during the sentencing hearing, and inclusion in the presentence report of letters and opinions of the victims' family members;

2. refusal of the court to appoint experts to assist Hough in the preparation of his case;

3. alleged improper foundation and chain of custody of items of evidence;

4. permitting the application for death penalty to contain an allegation of robbery;

5. error in using statutory aggravating circumstances against him during sentencing; and

6. erroneous jury instructions used during sentencing.

The facts show that victims Ted Bosler and Gene Rubrake lived together at 1127 West Wayne Street in Fort Wayne, Indiana. On November 6, 1985, Kevin Hough and his brother, Duane Lapp, went to the home of Bosler and Rubrake and killed both of them by shooting them with a .45 caliber automatic pistol. Witness Don Maley testified he had known Hough for about three months and on that date saw him at about 5:00 p.m. The two of them went to the vicinity of the victims' house and walked around the area. Hough then took Maley home and when they got back to Maley's house, Maley asked Hough what the trip was all about. Hough told Maley his cousin was renting from "two guys" and when his cousin couldn't pay the rent the two guys had taken his "stuff" and he Duane Lapp testified he and Hough went to the victims' residence at about 7:50 p.m. By a circuitous route they walked to the corner of Wayne and College where Rubrake was taking groceries out of a car. Hough talked to him and offered to help carry the groceries into the house and they did so. Bosler joined them inside. They all went downstairs into the basement where Hough pulled a .45 caliber automatic pistol from his shoulder holster, pointed it at the two men and told them to hit the floor. Lapp testified the older of the two men swung at Hough with a television remote control and Hough shot him in the chest. The younger man dropped to the floor and Hough shot him in the back. Hough also shot the older man in the face. Lapp and Hough started up the stairs and Hough walked back down to retrieve a container of beer and the remote control unit, both of which had his fingerprints on them. On his way up the stairs, Hough stepped on the older man's face. Lapp and Hough walked back to the car, went to Maley's house, then back to Hough's residence, arriving there about 8:47 p.m.

                Hough, was going to get it back for him.  Maley asked Hough why he hadn't done it when they were in the neighborhood and Hough said there were some people there and he would have to go back later.  Later that evening Maley again saw Hough, who told him, "I went back to that house tonight and pulled a gun on those guys and one of those guys lunged at me and I shot him.  I told the other guy to get on the ground and I shot him through the back."   Record at 895.  Hough also told Maley he had taken some rings from the two men.  Bosler and Rubrake were known to wear jewelry frequently but their rings were not found after their deaths
                

Hough told his sister, Joyce Hough, between 9:00 and 9:30 p.m. on November 6 that he had "walked into a set-up" and had killed two people.

I

At the formal sentencing hearing before the court, the prosecutor had the families of the two victims in the instant cause and the family of a victim of a prior murder for which Hough had been convicted stand, and he introduced them to the court as the families of the victims. He then stated:

I believe this Honorable court has had an opportunity to read the letters that were submitted to the court as part of the presentence investigation. Those letters are unanimous. They all ask that the death penalty be imposed upon Mr. Hough for the cold, calculated way he murdered those three families, those three loved ones.

Record at 552-53. The prosecutor made no further reference to the families or their letters in his argument. Hough made no objection to the introduction of the family members nor to the inclusion of the letters in the presentence report or the prosecutor's reference to the letters. Accordingly, the issue is waived unless error was so fundamental it violated Hough's constitutional rights to the extent waiver is not dispositive. Johnson v. State (1985), Ind., 472 N.E.2d 892, 910.

Hough relies on Booth v. Maryland (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440. Booth was convicted of the robbery-murder of Irvin Bronstein, age 78, and his wife, Rose, age 75, in their home in West Baltimore. The evidence showed the victims were bound and gagged and then stabbed repeatedly in the chest with a kitchen knife. The bodies were discovered two days later by the Bronsteins' son. In Maryland, the legislature required the filing of a victim impact statement (VIS) in all felony cases, describing the effect of the crime on the victim and his family. Pursuant to this statute, the State Division of Parole and Probation filed, as a part of the presentence investigation report, statements from the victim's son, daughter, and grandchildren. The statements described in detail the tremendous impact on these family members of the loss of their parents and grandparents and the violent way in which the Bronsteins met their death. The statements described the emotional and personal problems of the families because of fear, lack of sleep, depression, being withdrawn and distrustful, inability to The court found the use of the VIS in the sentencing phase of a capital case violated the Eighth Amendment to the United States Constitution. It found that a jury's discretion to impose the death sentence must be "suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action [and in doing so] must make an 'individualized determination' of whether the defendant in question should be executed, based on 'the character of the individual and the circumstances of the crime.' " 482 U.S. at 502, 107 S.Ct. at 2532, 96 L.Ed.2d at 448. (citations omitted). The Court found that in assessing personal responsibility and moral guilt of the defendant, factors that do not focus on his character and blameworthiness are irrelevant. The VIS in Booth provided the jury with personal characteristics of the victims and the emotional impact of the crimes on the family and set forth family members' opinions and characterizations of the crime and the defendant. The court found these statements to be irrelevant to a capital sentencing decision and created a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. Id. at 502-03, 107 S.Ct. at 2533, 96 L.Ed.2d at 448.

watch violence in movies or even in news broadcasts, and, even after a lapse of several months, an inability to put the matter out of their minds. The victims' daughter attempted to counsel with a psychologist and gave it up after several months, stating no one could help her. She doubted she would ever recover from the trauma she received from this incident. One of the granddaughters was to be married two days after the bodies were discovered. All agreed the ceremony and reception were sad affairs and instead of leaving on her honeymoon she attended her grandparents' funerals. The Division of Parole and Probation indicated in their report that it was apparent the murder of the Bronsteins was such a shocking, painful, and devastating memory to the family that it permeated every aspect of their daily lives and it was doubtful they would ever fully recover from the tragedy.

We do not find an Eighth Amendment violation here as described in Booth. No reference was made in court to the character of the victims or the physical or mental impact of the loss of the victims on their families. After the jury made its recommendation to impose the death penalty, the families were introduced as a group to the judge as a courtesy gesture. The letters of the family members included in the presentence investigation report asked that the death penalty be imposed upon Hough for the cold, calculated way he murdered the victims. The letters did not not describe the impact of the crime in such detail as to fall under the rule in Booth. We find the present case to be more like that in State v. Post (1987), 32 Ohio St.3d 380, 513 N.E.2d 754, cert. denied (1988) 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023, a capital case in which victim impact evidence was presented to the three-judge sentencing panel. The Supreme Court of Ohio held the defendant showed no prejudice to him because the evidence was not presented to a jury and there was no indication the panel considered the victim impact evidence. Id. 32 Ohio St.3d at 384, 513 N.E.2d at 759. Similarly, in the present case, there is no indication in the record that the court even considered the families or their letters. The court's finding of aggravating circumstances was based on the evidence and on proper grounds that w...

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