Lowery v. State, No. 02S00-8606-CR-591

Docket NºNo. 02S00-8606-CR-591
Citation547 N.E.2d 1046
Case DateDecember 08, 1989
CourtSupreme Court of Indiana

Page 1046

547 N.E.2d 1046
Terry Lee LOWERY, Appellant, (Defendant Below),
v.
STATE of Indiana, Appellee, (Plaintiff Below).
No. 02S00-8606-CR-591.
Supreme Court of Indiana.
Dec. 8, 1989.

Page 1048

Barrie C. Tremper and Charles F. Leonard, Chief and Deputy Public Defenders, Fort Wayne, for appellant.

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

DICKSON, Justice.

A jury found the defendant, Terry Lee Lowery, guilty of murder, felony murder, aiding murder, and battery. The jury thereafter recommended imposition of the death penalty. The trial court entered judgment of conviction of murder, merging therein the convictions of felony murder, aiding murder, and battery. Finding that the evidence proved beyond a reasonable doubt that the defendant intentionally killed the victim while committing or attempting

Page 1049

to commit rape, child molesting, or criminal deviate conduct, and that the aggravating circumstance outweighed any mitigating circumstances, the trial court sentenced the defendant to death.

For purposes of this opinion, the several issues presented in this direct appeal are grouped and discussed as follows:

1. jury selection;

2. admission of defendant's statement;

3. denial of judgment on the evidence;

4. sufficiency of evidence of guilt;

5. mental capacity defense;

6. admission of photographs in penalty phase;

7. tendered penalty phase instructions;

8. sufficiency and evaluation of aggravating and mitigating circumstances; and

9. appellate review of death penalty appropriateness.

We affirm the conviction and sentence.

1. Jury Selection

The defendant first contends that the trial court's failure to grant his motion prohibiting death qualification voir dire questions, coupled with the trial court's denial of his motion to conduct individual voir dire, impermissibly prejudiced the jury and jeopardized his opportunity for a fair trial. He argues that the questioning regarding possible personal opposition to the death penalty generally, in the presence of the other jurors, "served to cultivate and condition the prospective jurors to conclude that death was the preferred penalty." Brief of Appellant at 51.

The defendant acknowledges the "death qualification" standard to be followed on voir dire in death penalty cases as established in Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The defendant also acknowledges this Court's long adherence to the view that prospective jurors may be excused for cause if their opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duty as jurors in accordance with their instructions and their oath. See, e.g., Fleenor v. State (1987), Ind., 514 N.E.2d 80, cert. denied (1988), --- U.S. ----, 109 S.Ct. 189, 102 L.Ed.2d 158; Brewer v. State (1986), Ind., 496 N.E.2d 371, cert. denied (1987), 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780; Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809; Lamar v. State (1977), 266 Ind. 689, 366 N.E.2d 652. The defendant further concedes that no jurors were excused for answering affirmatively to death-qualifying questions.

There is no absolute right afforded a defendant to have each juror separately questioned outside the presence of other jurors. Boyd v. State (1986), Ind., 494 N.E.2d 284, cert. denied (1987), 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860; Hadley v. State (1986), Ind., 496 N.E.2d 67; Smith v. State (1984), Ind., 465 N.E.2d 1105; Burris, 465 N.E.2d 171. While individualized voir dire of prospective jurors may be required where the circumstances are highly unusual or potentially damaging to the defendant, Hadley, 496 N.E.2d 67; Burris, 465 N.E.2d 171, the defendant makes no showing of highly unusual or potentially damaging circumstances in his case, nor does he show how he was actually prejudiced by the trial court's denial of his motion for individualized voir dire. Boyd, 494 N.E.2d 284.

The defendant presents no evidence to support his claim that death qualification cultivates a jury impermissibly more conviction-prone than a jury not death-qualified. In Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, after critically discussing numerous studies, the United States Supreme Court assumed the studies were "adequate to establish that 'death qualification' in fact produces juries somewhat more 'conviction-prone' than 'non-death-qualified' juries," but declared nonetheless, that "the Constitution does not prohibit the States from 'death qualifying' juries in capital cases." 476 U.S. at 173, 106 S.Ct. at 1764, 90 L.Ed.2d at 147.

Because the present case does not present a showing of actual prejudice or

Page 1050

highly unusual or potentially damaging circumstances, we conclude that the trial court's refusal to limit death-qualification voir dire or to require individualized voir dire did not constitute an abuse of discretion. We find no error on this issue.

2. Admission of Defendant's Statement

The defendant claims the trial court erred in admitting a videotaped statement of the defendant and thereby violated his rights to silence and assistance of counsel. The State concedes that the defendant's statement stemmed from custodial interrogation, but argues that the statement was properly admitted because no invocation of the rights to silence or assistance of counsel occurred.

In reviewing a trial court's ruling upon the admissibility of a confession, we look to the evidence before the trial court that supports its ruling. Zook v. State (1987), Ind., 513 N.E.2d 1217; Dodson v. State (1987), Ind., 502 N.E.2d 1333; Coleman v. State (1986), Ind., 490 N.E.2d 711. If the trial court's ruling is supported by substantial evidence of probative value, it will not be disturbed. Zook, 513 N.E.2d 1217. The standard of appellate review of confession admissibility is the same as in other sufficiency matters. We do not weigh the evidence, but rather determine whether there was substantial evidence of probative value to support the trial court's ruling. Dillon v. State (1983), Ind., 454 N.E.2d 845, cert. denied (1984), 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145.

On June 24, 1985, the defendant from his jail cell requested an opportunity to speak with Detective Cummins of the Fort Wayne Police Department. The defendant was then transported from his cell to the Detective Bureau interview room and was advised of his rights, whereupon he signed a rights waiver form. The defendant concedes the initial waiver of his rights to silence and assistance of counsel, but now claims his statements later in the interrogation, before certain inculpatory matters were discussed, indicated an invocation of rights that should have caused police to immediately cease the interrogation under the guidelines of Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. According to the defendant, the failure to immediately cease the interrogation should have required the trial court to suppress the statement.

In support of this contention, the defendant directs our attention to Defendant's Exhibit A, which he identifies as "containing an analysis and timing" of the three occasions in which the defendant "indicated that he no longer wanted to be interrogated." Brief of Appellant at 54. Its contents stipulated to be true and accurate by the State, and admitted into evidence without objection, the exhibit consisted of the following:

RE: VIDEO-TAPED STATEMENT OF TERRY LEE LOWERY ON JUNE 24th, 1985

 I.
                At 15 hrs. (3 o'clock) 43 min., the following occurs:
                At: 11 sec. Mr. Lowery stops talking
                13 sec. Mr. Lowery says "Shit"
                16 sec. Mr. Lowery says "I hate this"
                18 sec. Det. Robert Cummins says "Go ahead"
                25 sec. Det. Robert Cummins says "What happens at that point Terry?"
                30 sec. Mr. Lowery says "I really don't like talking about this"
                41 sec. Mr. Lowery begins to speak
                 II.
                At 15 hrs. (3 o'clock) 44 min., the following occurs:
                At: 32 sec. Mr. Terry Lowery stops talking
                40 sec. Mr. Lowery says "Damn, I hate this"
                56 sec. Mr. Lowery resumes speaking
                 III.
                At 15 hrs. (3 o'clock) 45 min., the following occurs:
                At: 57 sec. Mr. Terry Lowery stops talking
                46 min., 6 sec. Det. Robert Cummins says "Is that all?"
                 Mr. Lowery continues statement
                

Record at 330. This colloquy reveals substantial evidence of probative value to support the trial court's implicit conclusion that the defendant did not invoke his rights to silence or assistance of counsel, but merely expressed the difficulty many persons might experience in discussing one's participation in the death of another. We find that the defendant's momentary hesitations and admitted discomfort during the questioning were not sufficiently direct or emphatic to constitute an invocation of the rights to silence or counsel. See Heald v. State (1986), Ind., 492 N.E.2d 671. The trial court did not err on this issue.

Page 1051

3. Denial of Judgment on the Evidence

The defendant contends that the trial court erred in denying his motion for a directed finding (judgment on the evidence) as to Count III, felony murder, at the conclusion of the State's case-in-chief. A defendant who proceeds to produce evidence in his behalf after the trial court denies his motion for judgment on the evidence waives his right to challenge that denial. Gajdos v. State (1984), Ind., 462 N.E.2d 1017; Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339; Love v. State (1980), 272 Ind. 672, 400 N.E.2d 1371. See also Dickson v. State (1988), Ind., 520 N.E.2d 101 (if evidence is sufficient to sustain a conviction on appeal, then denial of motion for directed finding cannot be error). He argues, however, that in a multiple-count trial, a defendant should be "allowed to present a defense to the counts of his choosing...

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47 practice notes
  • State v. Jones, No. 52
    • United States
    • Court of Special Appeals of Maryland
    • August 28, 2019
    ...Dist. Ct. App. 1987); State v. Carvelo, 361 P.2d 45, 59 (Haw. 1961); People v. Nitti, 133 N.E.2d 12, 13 (Ill. 1956); Lowery v. State, 547 N.E.2d 1046, 1053 (Ind. 1989); State v. Bey, 535 P.2d 881, 888 (Kan. 1975); State v. Kyles, 233 So. 3d 150, 157-58 (La. Ct. App. 2016); Commonwealth v. D......
  • Morris v. State, No. 71799
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 11, 1996
    ...jury's findings on mitigation.); State v. Hernandez, 204 Ill.App.3d 732, 149 Ill.Dec. 755, 562 N.E.2d 219 (2 Dist.1990); Lowery v. State 547 N.E.2d 1046 (Ind.1989) (Indiana Supreme Court reviewed the mitigating evidence to determine whether death sentence was erroneous.); and, Fisher v. Sta......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1994
    ...it must accept any alleged mitigating circumstances even if supported by only a scintilla of evidence. Lowery v. State (1989), Ind., 547 N.E.2d 1046, 1056, cert. denied, (1990), 498 U.S. 881, 111 S.Ct. 217, 112 L.Ed.2d 176. The instruction correctly identifies the standard of proof for miti......
  • Conner v. Anderson, IP 99-1023-C-B/S.
    • United States
    • U.S. District Court — Southern District of Indiana
    • January 15, 2003
    ...604 N.E.2d 1170, 1181-82 (Ind. 1992), cert. denied, 510 U.S. 893, 114 S.Ct. 255, 126 L.Ed.2d 208 (1993)); see also Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.1989)("Having found the trial court did not improperly reach its judgment imposing the death penalty, it is now the duty of this Cou......
  • Request a trial to view additional results
47 cases
  • State v. Jones, No. 52
    • United States
    • Court of Special Appeals of Maryland
    • August 28, 2019
    ...Dist. Ct. App. 1987); State v. Carvelo, 361 P.2d 45, 59 (Haw. 1961); People v. Nitti, 133 N.E.2d 12, 13 (Ill. 1956); Lowery v. State, 547 N.E.2d 1046, 1053 (Ind. 1989); State v. Bey, 535 P.2d 881, 888 (Kan. 1975); State v. Kyles, 233 So. 3d 150, 157-58 (La. Ct. App. 2016); Commonwealth v. D......
  • Morris v. State, No. 71799
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 11, 1996
    ...jury's findings on mitigation.); State v. Hernandez, 204 Ill.App.3d 732, 149 Ill.Dec. 755, 562 N.E.2d 219 (2 Dist.1990); Lowery v. State 547 N.E.2d 1046 (Ind.1989) (Indiana Supreme Court reviewed the mitigating evidence to determine whether death sentence was erroneous.); and, Fisher v. Sta......
  • Peterson v. State, No. 45S00-9103-DP-223
    • United States
    • Indiana Supreme Court of Indiana
    • December 13, 1996
    ...for the defendant under the circumstances of this case. IND. CONST. art. VII, § 4; IND.CODE § 35-50-2-9(j) (Supp.1996); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 217, 112 L.Ed.2d 176 (1990). As part of this review, we will reconsider the jury r......
  • Coleman v. State, No. 45S00-9203-PD-158
    • United States
    • Indiana Supreme Court of Indiana
    • December 29, 1998
    ...family background and the impact it wrought on her as a mitigating circumstance when conducting sentencing."); Lowery v. State, 547 N.E.2d 1046, 1059 (Ind.1989) ("While such circumstances, particularly the defendant's difficult experiences in childhood and adolescence, may have been suffici......
  • Request a trial to view additional results

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