Ward v. State

Decision Date07 April 2009
Docket NumberNo. 74S00-0707-DP-263.,74S00-0707-DP-263.
Citation903 N.E.2d 946
PartiesRoy Lee WARD, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
CourtIndiana Supreme Court

Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

DICKSON, Justice.

The defendant, Roy Lee Ward, appeals his death sentence for the 2001 rape and murder of fifteen-year-old Stacy Payne in Dale, Spencer County, Indiana. We affirm the sentence.

This appeal follows the defendant's second trial. His first jury trial, in Spencer County, resulted in guilty verdicts for Murder, Rape, and Criminal Deviate Conduct, followed by a sentencing-phase jury trial that resulted in a death sentence. The sentence and convictions were reversed due to prejudicial pre-trial publicity. Ward v. State, 810 N.E.2d 1042 (Ind. 2004), cert. denied, 546 U.S. 926, 126 S.Ct. 395, 163 L.Ed.2d 273 (2005). On remand, the defendant sought and obtained a new judge, and, following the defendant's request for a change of venue from Spencer County, the parties agreed to select the jury from Clay County,1 with the trial to be held in the special judge's Vanderburgh County courtroom. The State proceeded on murder and rape charges, to which the defendant pleaded guilty.2 A penalty phase jury then determined that the charged statutory aggravating circumstances were proven beyond a reasonable doubt, that the aggravating circumstances outweighed the mitigating circumstances, and that a death sentence should be imposed. The trial court sentenced the defendant accordingly, as required by statute.3 The defendant now appeals his death sentence,4 challenging: (1) the constitutionality of Indiana's death penalty statute; (2) the lack of a statutory written plan for selecting the petit jury pool; (3) the jury selection process; (4) the admission of evidence from a warrantless search; (5) the admission of photographic evidence; and (6) the appropriateness of the death sentence.

1. Constitutionality of Indiana's Death Penalty Statute

The defendant contends that the Indiana death penalty statute is unconstitutional under both the United States Constitution and the Indiana Constitution. In support, he presents seven arguments, each of which this Court has previously rejected: (1) the statute allows for the death sentence in the absence of a jury finding that aggravators outweigh the mitigators beyond a reasonable doubt (rejected in Ritchie v. State, 809 N.E.2d 258, 264-68 (Ind. 2004), cert. denied, 546 U.S. 828, 126 S.Ct. 42, 163 L.Ed.2d 76 (2005); and State v. Barker, 809 N.E.2d 312, 314-15 (Ind.2004), reh'g and remand granted, 826 N.E.2d 648 (Ind.2005), cert. denied, 546 U.S. 1022, 126 S.Ct. 666, 163 L.Ed.2d 537 (2005)); (2) it permits the jury to make a sentencing recommendation in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (rejected in Holmes v. State, 820 N.E.2d 136, 138-39 (Ind.2005); and Ritchie, 809 N.E.2d at 266); (3) the death penalty is disproportionate and vindictive because it carries no deterrent value (rejected in Ritchie, 809 N.E.2d at 263 (citing Evans v. State, 563 N.E.2d 1251, 1264 (Ind.1990))); (4) it is imposed arbitrarily and capriciously with undue risk for discrimination and mistake (rejected in Corcoran v. State, 739 N.E.2d 649, 651-53 (Ind.2000), reh'g granted, 827 N.E.2d 542 (Ind.2005); and Harrison v. State, 644 N.E.2d 1243, 1257-58 (Ind.1995), superseded on other grounds as recognized in Allen v. State, 737 N.E.2d 741, 743 n. 5 (Ind.2000)); (5) it is applied without a rational and uniform analysis for appellate review (rejected in Hough v. State, 690 N.E.2d 267, 277 (Ind.1997) (citing Bivins v. State, 642 N.E.2d 928, 948 (Ind.1994)), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998); and Wisehart v. State, 484 N.E.2d 949, 958 (Ind.1985), cert. denied, 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986)); (6) it fails to require that the factfinder consider all mitigation evidence proffered (rejected in Wisehart v. State, 693 N.E.2d 23, 54 (Ind.1998) (citing Matheney v. State, 688 N.E.2d 883, 907 (Ind.1997)), cert. denied, 526 U.S. 1040, 119 S.Ct. 1338, 143 L.Ed.2d 502 (1999)); and (7) the statute fails to guide a sentencer's discretion in choosing between a death sentence and a life sentence without parole (rejected in Corcoran, 739 N.E.2d at 653 (citing Stevens v. State, 691 N.E.2d 412, 429 (Ind.1997), and Wrinkles v. State, 690 N.E.2d 1156, 1165 (Ind.1997))).

We decline to revisit these issues.

2. Absence of Statutory Written Petit Jury Selection Plan

The defendant contends that Clay County, from which his jurors were drawn, failed to meet the statutory requirements for a written plan for selecting the venire for petit juries and that this failure, notwithstanding the otherwise proper selection of his jury, requires that his sentence be set aside.

Minor irregularities in the jury selection process do not normally constitute reversible error absent a showing of substantial prejudice to the defendant's rights. Azania v. State, 778 N.E.2d 1253, 1257 (Ind.2002), superceded on other grounds, State v. Azania, 875 N.E.2d 701 (Ind.2007); accord Wells v. State, 848 N.E.2d 1133, 1141 (Ind.Ct.App.2006), cert. denied, 549 U.S. 1322, 127 S.Ct. 1913, 167 L.Ed.2d 567 (2007). We have recognized, however, that absent substantial compliance with the statute, "the accused need not show actual prejudice." Azania, 778 N.E.2d at 1257.

Chapter 5 of Title 33, Article 28 and Indiana Jury Rules 2 through 9 specify detailed procedures for jury selection and service. Among these, one statutory provision requires the jury commissioner, under a judge's supervision, to prepare a written plan for selecting grand and petit jurors, which plan must be approved by the county's judges and maintained on file for public inspection. Ind.Code § 33-28-5-12.5 The exclusive means by which a defendant may challenge a jury on the ground that it was not selected in conformity with any of the requirements of Chapter 5 are detailed in Indiana Code § 33-28-5-21. This section permits the trial court in a criminal case to stay the proceedings, dismiss an indictment, or grant other appropriate relief. But before granting any such relief, the trial court must determine "that in selecting either a grand jury or a petit jury there has been a substantial failure to comply with this chapter." Id. (emphasis added).

The defendant timely challenged the absence of a written plan, and the trial court conducted a hearing. The Clay County Clerk testified that all procedures were followed in the selection of potential jurors. Tr. at 1085. The Clerk explained that the jury panel is collected from a compact disc provided to her by the Indiana Supreme Court Division of State Court Administration. Names on the disc come from the Indiana Bureau of Revenue and the Indiana Bureau of Motor Vehicles, and these names are then purged of duplicates, people under 18, and deceased persons.6 With this disc, the Clerk used a commercial jury management system to formulate the jury pool by randomly selecting names from the master list. Following the Clerk's testimony, the trial court denied the defendant's motion premised on the failure to establish and file a written plan.

On appeal, the defendant argues that because a juror selection plan was neither prepared, approved by any Clay County judge, submitted to the jury commissioner, nor filed as a public document in the office of the Clay Circuit Court, the resulting complete failure to abide by the statutory requirement for a plan should be deemed substantial non-compliance and that prejudice should be presumed.

Other than the lack of a formal written and filed plan, the defendant does not claim any irregularities in the selection and composition of the petit jury venire in his case. In other words, he does not point to any procedural detail that such a written plan might provide that is not already covered by the other statutory provisions or the Indiana Jury Rules. He does not question that the venire was prepared in exact compliance with all other statutory provisions and the Indiana Jury Rules, the specifics of which obviate and supplant the function of the statutory requirement for a written plan.

The defendant has not established substantial non-compliance with the requirements for the selection of the petit jury venire. He is not entitled to relief on this issue.

3. Jury Selection

Apart from the preceding claim, the defendant presents two discrete claims of trial court error regarding the conduct of voir dire, the trial court's jury selection process. He contends that the trial court erred (a) in failing to strike ten prospective jurors for cause, and (b) by changing the method of questioning potential jurors about the death penalty from initially speaking with one juror at a time to later discussing the issue with small groups of jurors. To support these claims, the defendant argues that he was forced to use his peremptory challenges on prospective jurors who should have been removed for cause, thus compelling him to accept other jurors who, though not challengeable for cause, held biases favorable to the death penalty for the pleaded-to offenses and unfavorable to dispassionate consideration of his mitigation evidence.7

Jury selection in this case arose under unconventional circumstances. Guilt was not at issue. The defendant pleaded guilty to Murder8 and Rape,9 class A felonies. Under the plea agreement, the court would determine the sentence for the Rape conviction, but the defendant reserved the right to a penalty phase jury trial on the State's request for the death sentence. At the penalty phase trial, the State sought the death penalty asserting...

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