Roche v. State

• Decision Date: 20 July 1992
• Docket Number: No. 45S00-9012-DP-812,45S00-9012-DP-812
• Citation: 596 N.E.2d 896
• Parties: Charles Edward ROCHE, Jr., Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 896

596 N.E.2d 896

Charles Edward ROCHE, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 45S00-9012-DP-812.

Supreme Court of Indiana.

July 20, 1992.

Charles E. Stewart, Jr., Crown Point, for appellant.

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

GIVAN, Justice.

Appellant and a codefendant, Edward John Niksich, were tried by jury and both were convicted of two counts of murder and two counts of felony murder. Another defendant, Charles Edward Roche, Sr., was tried separately. The jury was discharged after failing to reach a recommendation regarding the death penalty as to appellant, and reaching a recommendation against the death penalty as to Niksich. The trial court subsequently sentenced appellant to death.

The facts are: Sometime before February of 1990, Niksich used Patricia Andrasco's car to give Ernest Graves, who also was known as "Pee Wee," a ride. The next day, Andrasco, who lived with Niksich, noticed that $120 worth of food stamps was missing from her car.

The State introduced in evidence the deposition of Nanetta Blaski, a baby-sitter for Niksich and Andrasco, in which she stated that sometime in April of 1990, appellant and Niksich arrived at Andrasco's residence, and there was a discussion about two people, Ernest Graves and Daniel Brown, also known as "Danny Boy," who were going to be killed or who had been killed. Niksich stated that he wanted to put Graves and Brown in the trunk of Andrasco's car.

Delores Duszynski, who lived with appellant, testified that on the evening of May 10, 1990, appellant, Roche, Sr., and Niksich left the house driving her car. When appellant arrived home, he entered through the basement, told Duszynski to stay where she was, and told her that there were some guys in the basement he was going to shoot because they owed someone $120.

Duszynski testified that after approximately five minutes appellant went downstairs and Duszynski heard about nine or ten gunshots. She heard someone plead for his life, and then she heard two or three more gunshots. Appellant, Roche, Sr., and Niksich then came upstairs and told Duszynski that the victims possessed only $19 and a dime bag of cocaine.

After appellant, Duszynski, and Niksich each consumed some of the cocaine, appellant asked permission to use Duszynski's car to transport the bodies. The three men went downstairs, and after approximately fifteen or twenty minutes Duszynski heard the car leave.

On the evening of May 10, 1990, Jose Sanchez saw appellant, Roche, Sr., and Niksich in a car. Appellant was driving the car, and the men offered Sanchez a ride. Upon arriving at Sanchez' house, appellant opened the trunk of the car. When Sanchez saw the bodies, Niksich told Sanchez that he had shot one of the men while they were in the basement of appellant's house. Niksich stated that he had told one of the victims that he was going to die and that he was with the wrong guy at the wrong time and the wrong place. Appellant stated that he had shot the other victim while the victim begged for his life. Appellant told Sanchez that he had used both a .38 caliber derringer and a .22 caliber rifle. At one point, he went upstairs to get the rifle, and upon returning, repeatedly shot the victim in the head.

James Superits testified that appellant sold him a two-shot derringer on May 13, 1990. Later that same day appellant showed Superits a clipping from a newspaper, claimed that he did it, and described the killings. Three days later Superits gave the gun to the police.

On May 14, 1990, Andrasco gave a statement to the police. She told the officers that on the evening of May 10, 1990, Niksich left the house and then returned later in the night. Niksich told Andrasco that he finally had gotten even with Pee Wee for stealing the food stamps.

On June 10, 1990, appellant described to Virginia Ratazczak, a correctional officer for the Lake County Sheriff's Department, how the two victims had been murdered. Appellant told Ratazczak that while he and Niksich were at the Spot Bar in Calumet City, Niksich pointed out the two victims and stated that one of them owed him $120. Appellant and Niksich then set up a phony drug deal with the two victims, took them to the basement of appellant's home, where appellant then went upstairs to get a gun.

Nine bullets were recovered from the victims' bodies. The State introduced in evidence State's Exhibit 26, a two-shot .38 caliber Excam Derringer. Tests on the bullets showed that four of the bullets were fired from the lower barrel of State's Exhibit 26; therefore, the derringer had to be reloaded at least three times during the perpetration of the crimes.

Appellant testified that he shot both victims, but claimed that he did so in self-defense. He testified that he owned the .38 caliber derringer, and admitted that he told two deputy wardens that he volunteered to kill the victim who owed Niksich money.

The cause of death of Ernest Graves was multiple gunshot wounds. The cause of death of Daniel Brown was a skull fracture and lacerations caused by gunshot wounds. Factors contributing to Brown's death were a perforation of the stomach and small intestine and hemorrhaging caused by gunshot wounds.

Appellant's first argument is that the sentence of death imposed upon him violates the Eighth and Fourteenth Amendments to the United States Constitution and art. 1, Secs. 16 and 18 of the Indiana Constitution. Appellant urges us to examine the degree of culpability of each of the defendants in the present case. Appellant contends that since Niksich's culpability was as great as his own, appellant's sentence is disproportionate to the two consecutive forty (40) year terms Niksich received for his part in the crimes.

Upon review of the imposition of a death sentence, we must determine if that penalty is appropriate to the offender and his crime. Martinez Chavez v. State (1989), Ind., 534 N.E.2d 731. We also recognize that while an accomplice may be found guilty of a crime which was largely executed by his principal, imposition of the same penalty for principal and accomplice may not be appropriate. Id. The State presented evidence that appellant had volunteered to kill Graves and in fact had shot both Graves and Brown after taking from them $19 and some cocaine. The trial court and the jury were in the best position to weigh the evidence and assess the degree of culpability of the codefendants for purposes of sentencing. We will not make a new determination as to the degree of culpability of the defendants. Brewer v. State (1981), 275 Ind. 338, 417 N.E.2d 889, cert. denied, 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384. There is ample evidence in the record to support the penalty imposed.

Appellant next argues that the sentence was inappropriate under the circumstances of the case. The jury was unable to reach a determination regarding whether to impose the death penalty. Therefore, the trial court acted properly when it discharged the jury and proceeded as if the hearing had been conducted to the trial court alone. Ind.Code Sec. 35-50-2-9(f).

Appellant argues that the trial court failed to consider as a mitigating circumstance Niksich's role as a catalyst in the events surrounding the murders. Appellant restates his contention that, in his view, Niksich was at least as culpable as appellant, and that because Niksich received a lesser sentence that appellant should receive a similar sentence.

The record indicates that the trial court in fact did consider appellant's argument that Niksich acted as a catalyst in the commission of the crimes. However, the trial court did not find that to be a mitigating factor nor was it required to do so. See Graham v. State (1989), Ind., 535 N.E.2d 1152.

Appellant next argues that the trial court erred by failing to consider as a mitigator the fact that the jury was unable to reach a recommendation regarding the death penalty. As previously stated, the effect of a jury's inability to reach a recommendation is that the jury will be discharged and the trial judge shall conduct the sentencing as if it had been tried to the trial court alone. Ind.Code Sec. 35-50-2-9(f). Therefore, no meaning should be interpreted from the jury's failure to reach a recommendation. Likewise, the failure to reach a recommendation should not be considered as a mitigating factor during the penalty phase.

Appellant argues the trial court found that appellant's case "cried out for the death penalty," but failed to factually support this conclusion. We disagree. The trial court did consider all factors relevant to sentencing appellant. The trial court found that the State had proven the two aggravating circumstances charged and that two mitigating circumstances existed; however, the aggravating circumstances outweighed the mitigating circumstances. The trial court further stated, among other things, that this case was a double homicide committed during a robbery while one victim pled for his life, and that it was triggered by a dispute concerning $120. Review of the record indicates that the conclusion reached by the trial court during sentencing was factually supported.

Appellant argues that the sentence imposed was disproportionate to sentences imposed in other cases. We note that many of the cases cited by appellant in support of his argument are cases in which the sentence was a term of years and the death penalty was not sought by the State. The prosecutor in his discretion may seek the death penalty against a particular defendant. Fleenor v. State (1987), Ind., 514 N.E.2d 80, cert. denied, (1988), 488 U.S. 872, 109 S.Ct. 189, 102 L.Ed.2d 158. However, this discretion is controlled by our system of review which prevents the arbitrary and capricious infliction of the death penalty. Id.

The gist of appellant's argument here is that because the death penalty was not sought in cases involving arguably similar facts, imposition of that...