Ritchie v. State

• Decision Date: 25 May 2004
• Docket Number: No. 49S00-0011-DP-638.,49S00-0011-DP-638.
• Citation: 809 N.E.2d 258
• Parties: Benjamin RITCHIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

809 N.E.2d 258

Benjamin RITCHIE, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-0011-DP-638.

Supreme Court of Indiana.

May 25, 2004.

Rehearing Denied August 26, 2004.

Mark Small, Kevin McShane, Marion County Public Defender Agency, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Stephen R. Creason, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.

Benjamin Ritchie was convicted of killing Beech Grove police officer William Toney. Because the victim was a law enforcement officer, the prosecutor sought the death penalty. The jury recommended death and the trial court imposed that sentence. We affirm the conviction and sentence.

Factual and Procedural Background

On September 29, 2000, around 7:00 p.m., Ritchie and two others stole a white Chevrolet Astro van from a gas station in Beech Grove. The theft was reported and police were dispatched to the scene where Beech Grove police officer Matt Hickey filed a stolen vehicle report. Approximately two hours later, Hickey was en route to a traffic accident scene and recognized the stolen van as Ritchie and one of his accomplices drove by. After confirming by radio that the van bore the license plate of the stolen vehicle, Hickey pursued, joined by officers Robert Mercuri and William Toney. After a short chase, the van pulled into the yard of a residence where Ritchie and his companion jumped out and ran in opposite directions. Officer Toney pursued Ritchie on foot, and ultimately Ritchie turned and fired four shots, one of which struck Toney in the chest. Toney died at the scene. Ritchie was convicted of murder and the jury recommended the death penalty, which the trial court imposed. This direct appeal followed.

I. Indiana Constitution Article I, Section 18

Ritchie argues that Indiana's Death Penalty Statute violates Article I, Section 18 of the Indiana Constitution, which provides that "[t]he penal code shall be founded on the principles of reformation, and not of vindictive justice." Ritchie concedes that this claim was rejected shortly after the 1851 Constitution was adopted. In Driskill v. State, 7 Ind. 338, 343 (1855), and Rice v. State, 7 Ind. 332, 338 (1855), this Court held that Section 18 applies to the Penal Code as a whole, but does not require that every provision of the Penal Code be oriented toward reform. Accordingly, this Court early held that Section 18 is not violated by the death penalty. Ritchie points out that these seminal cases neither discussed the legislative history of Section 18 nor considered the prevailing legal framework at the time Section 18 was adopted. Essentially, Ritchie argues that this Court should have found that the focus of Indiana's Penal Code is reform, and that the death penalty is grounded in the inconsistent goal of vindictive retribution and is therefore unconstitutional. We do not find this contention persuasive. Driskill and Rice were decided immediately following the adoption of the 1851 Constitution. There was no need for this Court, in deciding those cases, to review the mindset of the framers of our state constitution. The Indiana Supreme Court of 1855 was composed of judges who were present at the creation. To the extent Ritchie relies on the views of the framers, contemporaneous court decisions are evidence of the attitude of the times.

In recent times, this Court has consistently adhered to the view that the death penalty does not violate Section 18. See Saylor v. State, 686 N.E.2d 80, 88 (Ind. 1997)

; Harrison v. State, 644 N.E.2d 1243, 1258 (Ind.1995); Fleenor v. State, 514

N.E.2d 80, 90 (Ind.1987). Ritchie advances a number of criticisms of the wisdom, fairness, humanity, or efficacy of the death penalty. These arguments have been successful in the legislatures of several states and many foreign countries. They are properly directed to the General Assembly, which is free to abolish the death penalty at any time. Any change in the settled doctrine that the penalty is not inherently unconstitutional should be by constitutional amendment.

II. Death by Lethal Injection as Cruel and Unusual Punishment

Indiana now administers the death penalty by lethal injection. Ritchie contends that this method of execution inflicts unnecessary pain and therefore constitutes cruel and unusual punishment for purposes of the Eighth Amendment to the United States Constitution. We recently rejected this claim in Moore v. State, 771 N.E.2d 46 (Ind.2002). In Moore, the defendant contended that lethal injection was cruel and unusual as applied to him because of his obesity and the resulting inability to locate a suitable vein. Id. at 55 n. 3. We noted that Moore raised possible difficulties with the lethal injection process without substantiating the probability that any would occur in Moore's case. Id. We held that Moore had not established that lethal injection constituted cruel and unusual punishment in that case. Id. at 56. In holding that injection as applied in Moore did not violate the Eighth Amendment, we necessarily held that injection is not per se cruel and unusual.

In Moore, we observed that the Eighth Amendment requires that an execution "be performed in a manner that avoids unnecessary or wanton infliction of pain," but concluded that lethal injection does not constitute wanton infliction of pain. Id. at 55. Because Ritchie points to no circumstances creating an unusual risk in his case, his contention amounts to a request to reverse that holding. Ritchie cites two instances where lethal injection did inflict excessive pain. In the first of these, the defendant's veins were abnormally small and a physician was required to perform a "cut down" to locate a proper vein. The execution required one hour and seventeen minutes, and sixteen minutes were spent locating a vein before a physician's incision exposed one. The defendant was conscious the entire time. The second instance involved an execution that took one hour to complete, again because of difficulty in inserting the needle into the vein. In that case the problem was attributed to the defendant's size. These two isolated cases do not establish that lethal injection is an inherently cruel or unusual method. To be sure, these two examples demonstrate that problems may occur in unusual circumstances, but that possibility does not rise to a systematic or inherent flaw in the lethal injection process. See Hill v. Lockhart, 791 F.Supp. 1388, 1394 (E.D.Ark. 1992)

.

Recent decisions of the United States Supreme Court confirm this view. The reach of the Eighth Amendment is an issue of federal law. The Supreme Court recently held that a challenge to the "cut down" procedure may be brought under 42 U.S.C. § 1983. Nelson v. Campbell, ___ U.S.___, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). That case involves a defendant who has collapsed veins requiring a potentially painful surgical procedure to perform an injection. Two recent applications for stays of execution, Zimmerman v. Johnson, ___ U.S. ___, 124 S.Ct. 979, 157 L.Ed.2d 792 (2003), and Vickers v. Dretke, ___ U.S.___, 124 S.Ct. 956, 157 L.Ed.2d 768 (2003), involved more general challenges to the lethal injection process. Zimmerman was originally granted a stay of execution by the United States Supreme Court, but the stay was lifted on December 15, 2003, and Vickers's application for stay was denied by the Court on December 9, 2003. Both have been executed. Ritchie's claim, like those in Vickers and Zimmerman, involves only a general claim that the lethal injection process violates the Eighth Amendment. Thus, the Supreme Court has very recently denied review of these general challenges to lethal injection in proceedings where execution was imminent. We conclude that the Court sees no merit in the contention that lethal injection is a per se violation of the Eighth Amendment.

III. The Death Penalty as Inherently Unconstitutional

Ritchie argues that the death penalty violates the Eighth Amendment and Article I, Section 16 of the Indiana Constitution because it is not a deterrent to crime. The constitutionality of the death penalty under the federal constitution was resolved by the Supreme Court of the United States in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Ritchie's contention under the State Constitution assumes that deterrence is the only legitimate goal of a penal law and also that the death penalty serves no deterrent purpose. Even if the former is the case, in Gregg, the Supreme Court observed that the death penalty serves as a valid deterrent in some situations and not in others. 428 U.S. at 186-87, 96 S.Ct. 2909. Ritchie's contention under the state constitution also seeks review of settled precedent. We adhere to the view this Court expressed in Evans v. State, 563 N.E.2d 1251, 1264 (Ind.1990): The effectiveness of the death penalty as a deterrent is debatable; resolution of that issue is a matter for the legislature.

IV. Indiana Constitution Article I, Section 12

Ritchie contends that the Indiana Death Penalty Statute offends Article I, Section 12 of the Indiana Constitution and the Due Process Clause of the federal constitution. Article I, Section 12 requires that "[j]ustice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay." Ritchie points out that an executed criminal cannot benefit from later found exculpatory evidence and therefore cannot receive "complete" justice. Ritchie provides no authority to support his contention that the death penalty violates Section 12 because a person cannot "completely" obtain justice after execution. We do not find it persuasive. "Complete", as used in Section 12 does not mean "perfect." Complete redress for an unjust or erroneous conviction is often unavailable, whether the wrongly convicted person is alive or dead. Despite our best efforts, neither the United...