State v. Barker

Decision Date25 May 2004
Docket NumberNo. 49S00-0308-DP-392.,49S00-0308-DP-392.
PartiesSTATE of Indiana, Appellant (Plaintiff below), v. Charles E. BARKER, Appellee (Defendant below).
CourtIndiana Supreme Court

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

Monica Foster, Foster & Long-Sharp, Brent Westerfeld, Indianapolis, IN, Attorneys for Appellee.

DICKSON, Justice.

This is an interlocutory appeal of a trial court order dismissing the State's request for the death penalty and ordering a sentencing proceeding where a term of years is the only option. We reverse and remand for reinstatement of the death penalty request.

The defendant, Charles E. Barker, was convicted of two counts of murder and one count each of kidnapping, confinement, burglary, and carrying a handgun without a license. The jury recommended and the trial court imposed the death penalty. Because the penalty phase jury was not instructed on the possibility of life without parole, as required by statute, we reversed and remanded for a new penalty phase proceeding. Barker v. State, 695 N.E.2d 925 (Ind.1998). On remand, the defendant successfully moved to dismiss the death penalty request on grounds that Indiana's death penalty statute was facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We reversed and again remanded for the new penalty phase proceeding. State v. Barker, 768 N.E.2d 425 (Ind.2002). The new proceedings would be governed by the 2002 amendment to the Indiana death penalty/life without parole statute, which applies to defendants sentenced after June 30, 2002. Ind.Code § 35-50-2-9(e).

The defendant again moved to dismiss the death penalty request upon grounds not previously asserted. The trial court granted the motion, concluding that Indiana's amended death penalty statute is unconstitutional, dismissing the death penalty request, and directing that this cause be scheduled for a sentencing proceeding where a term of years is the only available option. Upon the State's request, the trial court certified its order for interlocutory appeal. Because the Court of Appeals has jurisdiction over interlocutory appeals, Ind.App. R. 14(B)(1), we granted the State's petition to transfer before consideration by the Court of Appeals, App. R. 56(A), and we accepted appellate jurisdiction over the interlocutory appeal. App. R. 14(B)(1).

1. "Weighing" Not a "Fact"

The procedures to be followed in cases where the State seeks the death penalty or life imprisonment without parole cases are specified in Indiana Code § 35-50-2-9, which provides in relevant part as follows:

(e) ... the jury shall recommend to the court whether the death penalty or life imprisonment without parole, or neither, should be imposed. The jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;

only if it makes the findings described in subsection (l). If the jury reaches a sentencing recommendation, the court shall sentence the defendant accordingly....

...
(l) Before a sentence may be imposed under this section, the jury, in a proceeding under subsection (e), or the court, in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating circumstances listed in subsection (b) exists; and
(2) any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.

Ind.Code § 35-50-2-9.

In its interlocutory appeal of the trial court order, the State contends that the trial court erred in concluding that, because it does not require a penalty phase jury to find that mitigating circumstances outweigh aggravating circumstances beyond a reasonable doubt, the Indiana death penalty statute was unconstitutional. The State's appeal argues that weighing is not a "fact" that requires proof beyond reasonable doubt under Apprendi and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). It also urges that the Ring requirement for a jury to find beyond a reasonable doubt any fact that makes a murder defendant eligible for the death penalty applies only to aggravating circumstances under the Indiana scheme. The State argues that it is these circumstances, not the "outweighing" factor, that determine a murder defendant's eligibility to be considered for the death sentence.

In response, the defendant argues that under the Ring/Apprendi rule, the focus must be on the effect of the factor on sentencing. Where any factor is required to support a sentence higher than that authorized by the guilt phase jury's verdict, the defendant asserts, that factor is equivalent to an element that must be proven beyond a reasonable doubt. He urges that, because the imposition of a death sentence in Indiana requires the penalty phase jury to find that "any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances," Ind.Code § 35-50-2-9(l), the Ring/Apprendi rule mandates that such "weighing" factor be proven beyond a reasonable doubt.

After briefing was completed in this case, this Court addressed the same question in Ritchie v. State, 809 N.E.2d 258, 2004 WL 1153062 (Ind.2004). There we held that "[n]either federal constitutional doctrine under Apprendi and Ring nor Indiana state jurisprudence leads to the requirement that weighing be done under a reasonable doubt standard." Id. at 266, 2004 WL 1153062. After a careful evaluation of substantially the same arguments and a review of decisions from other jurisdictions, we concluded that "the Indiana Death Penalty Statute does not violate the Sixth Amendment as interpreted by Apprendi and Ring. Once a statutory aggravator is found by a jury beyond a reasonable doubt, the Sixth Amendment as interpreted in Ring and Apprendi is satisfied." Id. at 268, 2004 WL 1153062.

Because there is no constitutional requirement that the weighing factor be found beyond a reasonable doubt, the omission of such a requirement in the Indiana death penalty statute does not violate the constitution. The trial court erred in its conclusion to the contrary.

2. The "Hung Jury" Provision

The defendant also contends that the trial court order finding the death penalty statute unconstitutional should be affirmed on various alternative grounds, one of which is that the statute unconstitutionally permits a death sentence to be imposed by a judge alone in cases where the jury cannot reach a sentencing decision. Ind.Code § 35-50-2-9(f) (hereafter "Subsection 9(f)").1 He argues that this provision violates Ring, that it renders the entire death penalty statute unconstitutional, and that the Court has no power to sever the provision.

Barker's procedural history does not include a hung jury. As explained supra, the defendant's penalty phase jury unanimously recommended a sentence of death, but due to instruction error, we reversed and remanded for a new penalty phase procedure. The issue now presented is the validity not of his previous penalty phase jury determination but of the procedure that would govern his retrial.

The State's written argument to the trial court includes the following: "The State concedes that the procedure set forth in IC XX-XX-X-X(f), if it were followed by a trial court in sentencing a defendant to death (or to life without parole), would be in violation of Ring." Appellant's Appendix at 142. We decline to accept the concession. As noted in Ritchie, the federal constitution requires aggravating circumstances to be determined by a jury beyond a reasonable doubt, but "it does not require the weighing, whether by judge or jury, to be under a reasonable doubt standard." 809 N.E.2d at 266, 2004 WL 1153062. The statute now requires the trial court to "provide a special verdict form for each aggravating circumstance alleged." Ind.Code § 35-50-2-9(d). It is thus conceivable that a penalty phase jury could return a verdict finding one or more aggravators proven beyond a reasonable doubt, but be unable to reach unanimous agreement on whether any mitigating circumstances are outweighed by the aggravating circumstances.2 Where a jury is thus unanimous in finding one or more aggravating circumstances proven beyond a reasonable doubt but unable to agree on a sentence recommendation, Subsection 9(f) applies to instruct that the court shall "discharge the jury and proceed as if the hearing had been to the court alone." In this event the trial court shall, based upon the evidence presented to the penalty phase jury, impose a sentence of death or life without parole upon a full and proper analysis and sentencing statement, see Harrison v. State, 644 N.E.2d 1243, 1261-1262 (Ind.1995),

or it may impose a term of years.

In the event a penalty phase jury is unable to reach a unanimous decision as to the existence of aggravating circumstances, however, Ring and Apprendi would prohibit the trial judge from proceeding under Subsection 9(f) and a new penalty phase trial would be required. Bostick v. State, 773 N.E.2d 266, 273-74 (Ind.2002). We are not persuaded that a penalty phase retrial under these circumstances should be treated any differently than a hung jury in an ordinary guilt phase trial: a mistrial should be declared and the case submitted to a new jury. See State v. McMillan, 274 Ind. 167, 409 N.E.2d 612 (1980)

; Hinton v. State, 272 Ind. 297, 397 N.E.2d 282 (1979); Harlan v. State, 190 Ind. 322, 130 N.E. 413 (1921).

We additionally observe, however, that even if Subsection 9(f) were unconstitutional as Barker alleges, it could be severed without impairing the validity of the remainder of the statute. The trial court correctly noted that the hung jury provision of the statute could be subtracted without invalidating the entire statute, citing Brady v. State, 575 N.E.2d 981, 988-89 (Ind.1991). Appellant's Appendix at 216.3 We applied this procedure in Bostic...

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