Moore v. State, 06S00-0006-PD-389.

• Decision Date: 26 June 2002
• Docket Number: No. 06S00-0006-PD-389.,06S00-0006-PD-389.
• Citation: 771 N.E.2d 46
• Parties: Richard MOORE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

771 N.E.2d 46

Richard MOORE, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 06S00-0006-PD-389.

Supreme Court of Indiana.

June 26, 2002.

Lorinda Meier Youngcourt, Evans & Youngcourt, P.C., Janice L. Stevens, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. DICKSON, Justice.

The defendant, Richard Moore, appeals his death sentence imposed following our remand for a new sentencing hearing. As a result of the November 1979 deaths of Rhonda Moore, John Caldwell, and Gerald F. Griffin, the State charged the defendant with three counts of murder and six additional counts charging other offenses. Alleging that Griffin was an Indianapolis police officer acting in the course of his duty and that the defendant committed two other murders, the State sought the death penalty. After obtaining a change of venue, the defendant pleaded guilty to the three counts of murder. The State then dismissed the six counts charging other offenses. Following a sentencing hearing in 1980, the trial court sentenced the defendant to death. This Court affirmed the defendant's conviction and sentence on direct appeal. Moore v. State, 479 N.E.2d 1264 (Ind.1985). The defendant's petition for post-conviction relief was granted in 1995, but the State appealed and this Court reversed the post-conviction court, reinstated the guilty pleas, and remanded for a new sentencing proceeding. State v. Moore, 678 N.E.2d 1258 (Ind.1997).

Following a new sentencing hearing before a new judge, the defendant was once again sentenced to death. In the present appeal, he challenges this death sentence asserting (1) that he was deprived of his right to a jury; (2) that the evidence was insufficient to prove that he knowingly shot a police officer; (3) that the trial court improperly weighed the mitigating evidence; (4) that the length he has been on death row violates both the federal and state constitutions; (5) that execution by lethal injection is unconstitutional; and (6) that the trial court erred when it excluded certain expert testimony.

1. Right to Jury

The defendant first contends that the Indiana capital sentencing statute violated the federal and state constitutions by depriving him of a jury determination of the aggravating circumstances that made him eligible for the death sentence.

Because of the historical facts of these proceedings, we do not reach this argument. Even if we were to assume that the defendant might otherwise be constitutionally entitled to a jury determination of the death eligibility factors, his plea of guilty forfeited any such claimed entitlement. When the defendant pleaded guilty to three counts of murder, he did so knowing that such plea would deprive him of access to a jury. In the defendant's direct appeal this Court recited the facts supporting his voluntary pleas:

The trial court thereupon conducted a hearing to determine the voluntariness of Appellant's guilty pleas. The trial court examined Appellant about his mental status and about his knowledge of the many constitutional rights he was waiving by pleading guilty. The trial court specifically informed Appellant of the minimum and maximum penalties he faced by pleading guilty as charged and reminded Appellant that the State was seeking a death penalty for him. The trial court also carefully advised Appellant that by pleading guilty he would waive his right to have a jury recommend to the trial court whether or not a death penalty should be imposed against Appellant. Appellant consistently stated, without equivocation, that he understood everything that the trial court was discussing with him and that he knew what he was doing. Appellant also stated his belief that he had been adequately and satisfactorily represented by his counsel and that he had not been forced, threatened or induced in any way to enter his guilty pleas. We note that there was no plea agreement in this case. A factual basis for Appellant's three guilty pleas was presented to the trial court by the State and Appellant confessed three different times to having committed the three murders charged in Counts I, II, and III. Having carefully and comprehensively examined Appellant, the trial court accepted Appellant's guilty pleas and found Appellant guilty of the three murder counts.

Moore v. State, 479 N.E.2d 1264, 1268 (Ind.1985) (emphasis added).¹

We discern that the defendant's argument also asserts, in part, that the Indiana death penalty statute fails to ensure that his death eligibility factors are determined beyond a reasonable doubt. At the time of the offense, the statute, Indiana Code § 35-50-2-9 (Supp.1979), provided in relevant part, "If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the sentencing hearing; if the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing." Ind.Code § 35-50-2-9(d) (Supp. 1979) (emphasis added). The statute also required that, before a death sentence may be imposed in a proceeding before the court without a jury recommendation, the court must find that the State has proved beyond a reasonable doubt that at least one of the statutory aggravating circumstances exists. Ind.Code § 35-50-2-9(g)(1) (Supp.1979). In this case, at the conclusion of the new sentencing proceedings following remand, the trial court explicitly found that the State had proven each aggravating circumstance beyond a reasonable doubt. Record at 678-79.

2. Sufficiency of Evidence Supporting Aggravating Circumstance

The defendant next contends that the trial court's finding of the aggravating circumstance of shooting a law enforcement officer in the line of duty lacks sufficient evidentiary support.

The trial court on resentencing found as an aggravating circumstance that a victim of the murder was a law enforcement officer acting in the course of duty to be proven beyond a reasonable doubt. Indiana Code § 35-50-2-9(b)(6) (Supp. 1979) reads, "The victim of the murder was a corrections employee, fireman, judge, or law-enforcement officer, and either (i) the victim was acting in the course of duty or (ii) the murder was motivated by an act the victim performed while acting in the course of duty." In order for this aggravating circumstance to be found, the fact finder must find beyond a reasonable doubt that the defendant knew the victim was a law enforcement officer. Castor v. State, 587 N.E.2d 1281, 1290 (Ind. 1992). In regard to this aggravating circumstance, the trial court concluded, "[T]he State has proven beyond a reasonable doubt that the Defendant intentionally shot and killed a law enforcement officer acting in the course of his duty and that he knew that the victim was a law enforcement officer." Record at 678.

When determining whether the evidence supports an aggravating circumstance, we apply the same standard applicable when determining the sufficiency of evidence to convict. Fleenor v. State, 622 N.E.2d 140, 151 (Ind.1993). In addressing a claim of insufficient evidence, an appellate court must consider only the probative evidence and reasonable inferences supporting the judgment, without weighing evidence or assessing witness credibility, and determine therefrom whether a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Marcum v. State, 725 N.E.2d 852, 863 (Ind.2000).

As to the challenged aggravating circumstance, the trial court found:

1. Richard Moore entered a plea of guilty to Count III, Murder, of the Charging Information that he knowingly killed Gerald F. Griffin on November 6, 1979.

2. It is undisputed that the victim was a law enforcement officer acting in the course of duty.

3. Pursuant to Cas[tor] v. State, 587 N.E.2d 1281, the question for the Court and burden of the State is whether the Defendant KNEW (not should have known) that Gerald Griffin was a police officer.

4. The Defendant called as an expect [sic] witness John Stephen Sobeck, a senior resident analyst for Wolf Technical Services. He was recognized as an expert in lighting and effects on human vision.

5. Sobeck testified that he had reviewed the following for the purpose of developing his opinions:

depositions of Officer Atwood, Pam Myers, Don Whitman, Doyle Glass, Susan Wright, Pat Young, Patterson, Ruth Caldwell, witness statement of Ray Potter, autopsy report of Griffin, photos by police at scene, drawing of scene, lights at location, climatological data, trial examination of Atwood (emphasis added [in original]), and Richard Moore's testimony at sentencing hearing.

6. Sobeck testified that he examined the characteristics of the scene including location of home to city street lights, general layout of home, kitchen, carport, living room, windows, location of lights in carport, kitchen and living room, condition of doors, screens in carport area and clothing of Officer Griffin.

7. Sobeck testified that exhibit "F" was very important to his opinion in that the small fluorescent light in the kitchen was apparently the only light that was on.

8. Sobeck testified that he assumed that Officer Griffin was about 10 feet from the muzzle end of Defendant's shotgun.

9. Sobeck testified that he assumed that storm/screen door was also closed.

10. Sobeck testified that it was his opinion, assuming Defendant 10 feet plus length of shotgun away from Griffin—Griffin behind both the kitchen and the storm/screen door—and the only illumination coming from the small fluorescent light above the sink, that Defendant would not have been able to discern the clothing of Griffin other than dark clothing, that he might be able to tell it was a white person, and possibly the appearance of a gun but little more.

11. Sobeck admitted that if the carport light [were] on it would significantly alter his

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