Taylor v. State

• Decision Date: 08 June 1998
• Docket Number: No. 49S00-9611-CR-723,49S00-9611-CR-723
• Citation: 695 N.E.2d 117
• Parties: Dwayne TAYLOR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 117

695 N.E.2d 117

Dwayne TAYLOR, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 49S00-9611-CR-723.

Supreme Court of Indiana.

June 8, 1998.

Walter E. Bravard, Indianapolis, for Appellant.

Jeffrey A. Modisett, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellee.

SULLIVAN, Justice.

On September 7, 1995, defendant Dwayne Taylor pled guilty to Murder ¹, a class A felony. On December 11, 1995, the trial court sentenced Taylor to 60 years in prison. The sole issue in this appeal is the propriety of the sentence. We affirm.

Background

Defendant and Stephanie Penny maintained a romantic relationship for ten months but it came to an end in the late summer of 1994 at Penny's insistence. Approximately three months later, defendant set out to confront Penny. He went to her residence and, not finding her at home, determined to wait. He took a chair from her patio, broke into her storage shed, laid out bedding material, and tied a string from the inside of the shed door to the chair. There, armed with a handgun, defendant waited and watched for Penny through a small hole in the shed for what turned out to be twenty-one hours.

Penny returned home that evening. Her brother, Steven Davis, testified as to what happened next. That same evening, Davis delivered some furniture to his sister's residence. As he was unloading the furniture, he heard a shot. His sister ran past him followed by defendant. Davis attempted to stop defendant, but he broke free from Davis and continued to pursue Penny. Penny slipped and fell to the ground. After Davis heard his sister cry "no, Dwayne," he heard two or more shots. Davis ran into his sister's residence to check on his five year old niece and to call the authorities.

Defendant had confronted Penny and shot her in the face. Stephanie Penny died from her wounds. On September 7, 1995, after withdrawing his initial not-guilty plea, defendant pled guilty to the charge of Murder without the benefit of a plea agreement with the State.

Defendant asserts that his 60 year sentence is manifestly unreasonable because the trial court (1) failed to provide justification for the cited aggravating circumstances, (2) relied on prior uncharged misconduct to enhance the sentence, and (3) failed to consider all mitigating circumstances. We have jurisdiction over this direct appeal because the longest single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.Appellate Rule 4(A)(7).

Discussion

At the time this crime was committed, a murder offense carried a presumptive 40 year sentence, with not more than 20 years added for aggravating circumstances and not more than 10 years subtracted for mitigating circumstances. Ind.Code § 35-50-2-3 (Supp.1994). ² It is within a trial court's discretion to determine whether an enhanced sentence is warranted based on aggravating or mitigating circumstances. Morgan v. State, 675 N.E.2d 1067, 1072 (Ind.1996); Sims v. State, 585 N.E.2d 271, 272 (Ind.1992). When enhancing a sentence, a trial court must: (1) identify significant aggravating and mitigating circumstances; (2) state the specific reason why each circumstance is aggravating or mitigating; and (3) evaluate and balance the mitigating against the aggravating circumstances to determine if the mitigating offset the aggravating circumstances. Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind.1996)).

Master Commissioner Young presided over the sentencing hearing on November 7, 1995. After the hearing, the Master Commissioner recommended to Judge Magnus-Stinson that defendant serve a maximum sentence of sixty (60) years. At the sentencing hearing, the Master Commissioner explained the basis for the sentence as follows:

I'll show that I accept the pre-sentence report's aggravating factors as being correct. [ ³] That there is a history of violent behavior. That there is a need for correctional rehabilitative treatment that can best be provided by commitment to a penal facility. That I find the lying in wait as an aggravator. I think it has been admitted and proved that that's what happened. I think that imposition of a reduced sentence would depreciate the seriousness of the crime. In reviewing the statutory mitigating factors, I do believe it's a mitigator that you've expressed remorse and I think that your minimal criminal history is also a mitigator. But, I do not believe that those mitigators outweigh the premeditated, lying in wait, nature of this offense. And based upon that I'm going to find that the aggravating outweigh the mitigating factors in this case, impose the maximum sentence of sixty (60) years....

(R. at 134-36). The Judge approved the Master Commissioner's recommendation.

I

As is apparent from the court's statements, the court identified four specific aggravating circumstances. Defendant claims, however, that the trial court failed to provide sufficient justification for citing them.

A

Lying in wait is an aggravating circumstance that justifies an enhanced sentence. Lying in wait for a victim is a particularly serious aggravating circumstance because it demonstrates a heightened level of vindictiveness in the commission of a crime. In Thacker v. State, Justice DeBruler elaborated on the particular heinousness of a crime committed when the defendant lays in wait for the victim:

In such a crime, there is considerable time expended in planning, stealth and anticipation of the appearance of the victim while poised and ready to commit an act of killing. Then, when the preparatory steps of the plan have been taken and the victim arrives and is presented with a diminished capacity to employ defenses, the final choice in the reality of the moment is made to act and kill. This aggravating circumstance serves to identify the mind undeterred by contemplation of an ultimate act of violence against a human being and, of equal importance, the mind capable of choosing to commit that act upon the appearance of the victim.

Thacker, 556 N.E.2d 1315, 1324-25 (Ind.1990). In fact, the Indiana General Assembly has found lying in wait to be so egregious as to justify a sentence of death in certain circumstances. See Ind.Code § 35-50-2-9(a) & (b)(3) (Supp.1994). ⁴ We have construed this statutory aggravator as "deserving consideration for the penalty of death those who engage in conduct constituting watching, waiting and concealment with the intent to kill, and then choosing to participate in the ambush upon the arrival of the intended victim." Thacker, 556 N.E.2d at 1325. Accordingly, the presence of this aggravating circumstance in any murder is significant and warrants the consideration of an enhanced sentence.

Here, defendant carefully planned his attack on Penny. He took a chair and bedding and hid in Penny's storage shed. He waited for Penny for twenty-one hours. He watched for her through a small hole in the shed. Once Penny opened the door to the shed, "she was surprised to see him and ran." Defendant chased Penny, averted an attempt by her brother to subdue him, and confronted Penny before he shot her in the face and killed her. These actions are demonstrative of a "mind undeterred by contemplation of an ultimate act of violence against a human being and, of equal importance, the mind capable of choosing to commit that act upon the appearance of the victim." Thacker, 556 N.E.2d at 1325.

Although the non-capital sentencing statute does not specifically cite the lying in wait element of a crime as a separate aggravator, a court may consider the nature and circumstances of a crime to determine what sentence to impose. Ind.Code § 35-38-1-7.1(a)(2) (Supp.1994). See also Scheckel v. State, 620 N.E.2d 681, 685 (Ind.1993) (the particularly heinous nature and circumstances of the crime were considered as an aggravator). Further, the manner in which a crime is committed can be considered as an aggravating circumstance. Concepcion v. State, 567 N.E.2d 784, 791 (Ind.1991). Accord Smith v. State, 675 N.E.2d 693, 698 (Ind.1996) (defendant's planning of a crime may serve as an aggravating circumstance); Bustamante v. State, 557 N.E.2d 1313, 1322 (Ind.1990) (careful planning of a crime may serve as a proper aggravating circumstance).

The trial court's sentencing statement reflected the particular lying in wait circumstances of this crime. "Mr. Taylor everybody feel[s] pain, everybody feel[s] frustrated at some point. But, they don't go out and shoot people.... [T]hey don't sit and lay in wait for somebody." (R. at 131.) The court expressed its understanding that everyone may feel that life is "rotten;" but, "what you did was then to decide well, I'm gonna lay in wait and kill somebody." (R. at 132-33.) The trial court provided sufficient explanation for its reliance on the lying in wait nature of the crime as an aggravating circumstance in enhancing the presumptive sentence.

B

Defendant also asserts that the trial court erroneously relied on defendant's prior arrest as an aggravating circumstance. The presentence report revealed that defendant had a prior arrest for Criminal Recklessness. Defendant had been arrested for firing shots in a public housing area and apparently holding a gun to a former girlfriend's head. The charge had been dismissed because essential police and civilian witnesses failed to appear in court. The report also revealed that defendant had been involved in a domestic violence incident.

In its closing argument, the State focused on the "brutal" nature of the crime and defendant's propensity to commit such a crime again. The State requested that the trial court impose the maximum sentence due to the brutality of the crime and defendant's past criminal activity.

Your Honor the State is asking that nothing less [than] the maximum executed sentence of sixty (60) years be imposed because that's justified in this case.... [The sentencing statute states that] in...