DICKSON, Justice.
Defendant-Appellant William Spranger was charged with murder, I.C. § 35-42-1-1. The State also requested the death penalty, alleging as the aggravating circumstance that the murder victim was a law enforcement officer acting in the course of duty, I.C. § 35-50-2-9(b)(6)(i). After a change of venue from Noble to Wayne County, a Wayne Circuit Court jury convicted defendant of murder, and during the penalty phase found that the death penalty should be imposed. The trial judge sentenced defendant to death.
Restated, the following issues are raised on this direct appeal:
1. whether the trial court erred in denying defendant's several requests for continuance;
2. whether the trial court erred in denying defendant's request for a list of witnesses specifically expected to testify;
3. whether the trial court erred in refusing to appoint a defense sociologist;
4. whether the trial court erred in admitting various exhibits;
5. whether the trial court erred in admitting evidence of crimes committed by defendant in the course of events which led to the instant crime;
6. whether the trial court erred in denying motions for a jury view of the crime scene and for a weapon demonstration;
7. whether the trial court erred in giving its Final Instruction No. 8;
8. whether the evidence was sufficient to sustain the verdict of murder;
9. whether the trial court erred during the penalty phase of the trial in limiting the testimony of a defense witness;
10. whether I.C. § 35-50-2-9 fails to accord due process of law in that it does not require a finding that the aggravating factors outweigh the mitigating factors beyond a reasonable doubt before the death penalty may be imposed; and,
11. whether imposition of the death penalty in this case is contrary to law.
We affirm the conviction and death sentence.
During the early morning hours of May 28, 1983, defendant, then 18 years old, and one Allen Snyder were driving from Fort Wayne to Avilla, in Noble County. Nearby residents observed them vandalizing an automobile, and one called Avilla Town Marshal William Miner. Marshal Miner drove to the scene, apprehended the two men and called for assistance. A struggle between the marshal and Snyder quickly ensued during which the marshal's service revolver was knocked either away from his hand or out of its holster onto the highway. Defendant crossed the highway, picked it up and fatally shot Marshal Miner in the back. Defendant and Snyder were eventually arrested. Defendant led officers to a small lake where he had discarded the revolver and flashlight. Snyder was allowed to plead guilty to involuntary manslaughter and given a prison term. Defendant later claimed that Snyder shot Marshall Miner. However, in addition to Snyder's testimony, the State presented evidence of at least four admissions by the defendant that he, not Snyder, fired the shot, and the State presented unrefuted expert medical testimony that the bullet, fired from some distance, entered the marshal's back. We review specific testimony in somewhat more detail in our discussion of Issue VIII below.
ISSUE I
Defendant emphatically contends that he was denied both a fair trial and the effective assistance of counsel because the trial court refused several requests for a continuance, and failed to timely appoint co-counsel and provide additional investigatory and secretarial personnel. Defendant was arrested May 31, 1983. On June 1, 1983, the Noble County public defender was appointed to represent him. On June 10, 1983, defendant's motion for appointment of co-counsel was denied. Following a change of venue, the Wayne Circuit Court set trial for November 1, 1983. Thereupon defendant again moved for the appointment of co-counsel. On October 7, 1983, the trial court appointed co-counsel to assist and approved funds for investigative and secretarial assistance. On October 13, 1983, the trial court denied defendant's motion for continuance, and moved the beginning trial date forward one day, to October 31, 1983. Defendant again moved for continuance, claiming the need for additional time to investigate and prepare.
With respect to defendant's claim that the denials of his motions for continuance deprived him of a fair trial, we disagree. The granting of continuances is subject to the trial court's sound discretion. Smith v. State (1985), Ind., 475 N.E.2d 27; Kimball v. State (1985), Ind., 474 N.E.2d 982; Rhinehardt v. State (1985), Ind., 477 N.E.2d 89. Our review of the record fails to disclose any abuse of discretion or resulting inadequacy of representation.
Defendant contends that a showing of prejudice is unnecessary when insufficient time results in a denial of the right to counsel. However, we are not persuaded that the trial court failed to afford adequate time.
Finding no abuse of discretion nor denial of rights to counsel and to fair trial, we do not find error upon this issue.
ISSUE II
Defendant contends he was denied a fair trial by the trial court's denial of defendant's motion to require the State to disclose specific trial witness information. Defendant's "Motion to Produce Evidence" filed June 8, 1983, requested extensive discovery, including the "names and last known addresses of all persons whom the State of Indiana intends to use in the prosecution of this cause of action, and the names and last known addresses of persons known to the State of Indiana to have knowledge pertinent to this cause of action or who were interviewed but who will not be used as witnesses by the State of Indiana herein." The State's response, filed June 15, 1983, asserted that it had not determined which individuals it would call as witnesses, but submitted a list of persons the State "may call as witnesses". In its response, the State acknowledged that the list was incomplete. Responding to other discovery requests, the State provided the defense with copies of 26 statements of potential witnesses, and offered to make other statements available upon request. The list of potential witnesses contained the names of over 170 persons. Hardly any addresses were given, but a majority of the names were followed by a telephone number.
By September 26, 1983, the prosecutor had indicated to counsel for defendant that the State would call approximately 30 witnesses. However, the record does not indicate whether or not the identity of these persons had been disclosed. On September 26, 1983, defendant filed a motion requesting a transcript of bail reduction hearings scheduled to occur September 29 and 30. Thirty-three witnesses testified at said hearing, twenty-six of whom were included in the State's original list of potential witnesses. On October 7, 1983, the court granted defendant's motion for a transcript of the bail proceedings. The record does not reflect when the transcripts were received by defense counsel. On Thursday, October 27, 1983, with the trial scheduled to begin the following Monday, defendant filed a "Motion for Specification" requesting that before 9:00 a.m. on the beginning day of trial, the State be ordered to furnish defense counsel with the following:
1. the names, addresses and telephone numbers of each and every witness to be called as such for trial in this cause;
2. an exact description of each and every exhibit, and its present location and custodian, to be used as such for trial in this cause; and,
3. an exact description and designation of each photograph to be used as an exhibit, including a copy of same to be provided to defense counsel if it has not already been provided.
In its entry denying the motion, the trial court stated:
The Court requests the parties to cooperate and the State to the extent possible to give some indication as to witnesses who will actually be called so that the defendant may prepare for such witnesses and also have some idea as to when to be ready to present any defense.
The error urged by defendant is that the trial court failed to require the State to specifically disclose which witnesses the State would be calling for trial. Defendant contends that in ruling upon the motion, the court had but two choices: either to order the requested discovery, or to grant a continuance.
In cases of violation of discovery orders, a continuance has been held as a proper remedy unless the State's action is so misleading or demonstrates such bad faith that exclusion of evidence is necessary to protect the defendant's fair trial rights. Crenshaw v. State (1982), Ind., 439 N.E.2d 620. However, the trial court would be granted discretion in determining whether there has been substantial compliance with discovery. Allen v. State (1982), Ind., 439 N.E.2d 615.
We are not directed to, nor do we find, any indication in the transcript that defendant filed a motion to compel discovery, or in any other manner objected to the adequacy of the State's initial response to defendant's discovery request for identification and information regarding the State's potential trial witnesses. Defendant has not complained, and does not now assert, that the State violated any discovery order. He merely contends that the trial court should have required the additional discovery.
Trial courts are granted wide latitude in matters concerning discovery. Opfer v. State (1985), Ind., 482 N.E.2d 706; Kalady v. State (1984), Ind., 462 N.E.2d 1299. Absent clear error and resulting prejudice, a trial court discovery ruling will not be overturned. Opfer, supra; Wagner v. State (1985), Ind., 474 N.E.2d 476.
The question is not whether the court abused its discretion in choosing between a continuance or exclusion to remedy a discovery violation. No such violation is alleged. The question is whether the court abused its discretion in refusing to require additional discovery. The trial court's order was not erroneous, and there is no indication of resulting prejudice. The trial transcript reveals that the defense counsel appeared well prepared, and was not surprised by the testimony of the State's witnesses. We find no error upon this issue.
ISSUE III
Defendant contends the trial court's denial of his motion to employ a sociologist at public expense deprived defendant of a fair trial and effective assistance of counsel. Defendant's motion requested the assistance of a private sociologist to assist in the evaluation and proof of mitigating circumstances in any death penalty phase of trial, to evaluate defendant's ability to understand the proceedings and assist counsel in investigation, to assess and identify potential motive, bias, or prejudice of State's witnesses, and to assist in voir dire.
The trial court had previously granted defendant's motion for funds to employ a private psychiatrist, and also granted defendant's motion seeking public funds for secretarial services, to employ a private investigator and ballistic/firearms expert, and to employ additional counsel.
Recently facing a similar issue, this Court in Wisehart v. State (1985), Ind., 484 N.E.2d 949 recognized that an accused is not constitutionally entitled at public expense to whatever expertise desired. Rather, the matter is one for the sound discretion of the trial court. Wisehart upheld a murder conviction and death penalty notwithstanding the trial court's refusal to appoint a sociologist, where there was no showing of particular need nor resulting prejudice.
In support of his motion for a sociologist, the defendant submitted a memorandum consisting of a paper entitled "Examining Death Qualification: Further Analysis of the Process Effect" by Professor Craig Haney, University of California, Santa Cruz. Professor Haney's paper focuses upon the process and effect of death qualification during the voir dire.
Defendant's brief cites numerous authorities generally supporting the proposition that an indigent defendant's constitutional rights may require that he be provided with expertise and logistical support beyond appointed counsel. Notwithstanding the validity of such considerations, the reasonable necessity of such requests must be subject to the discretion of the trial judge.
Defendant's contention is tantamount to asserting that a trial court should be obligated to provide public funds for whatever expertise and trial preparation assistance might be requested by a capital defendant. The list of requests would be limited only by counsel's imagination. Such a policy would invite trial delays under the guise of such requests, and would consume a great portion of the public funds. The determination as to what is reasonably necessary must therefore rest with the trial judge.
The defendant's request was thus evaluated by the trial judge here in light of the purposes for which it was sought, the argument set forth in Professor Haney's article, and along with the court's awareness of the other expertise and trial preparation assistance which had already been granted to the defendant at public expense. The record fails to demonstrate any abuse of discretion by the trial court's refusal to grant defendant's motion for a sociologist.
ISSUE IV
Defendant contends the trial court committed reversible error in admitting several exhibits including photographs of the crime scene, photographs of the victim, a crowbar found at the scene, and the marshal's service revolver because of alterations in its appearance after it was recovered.
State's Exhibit 3 was a photograph generally showing the crime scene shortly after the incident; State's Exhibit 4 was a photograph depicting the marshal's body at the scene. Defendant argues these photographs should not have been admitted because "items at the scene had been moved" before the officer who took the photographs arrived. The only evidence of an "object" being "moved" at all pertinent to this objection was that a nearby resident had pulled the marshal out of the drainage ditch and attempted to give him assistance. The jury was informed that exhibit 3 depicted the scene of the crime at the time the photograph was taken, not at the precise moment of the incident. Photographs depicting the scene of a crime are competent and relevant in assisting jurors in orienting themselves and understanding the evidence, and will be admissible if they are a true and accurate representation of the things they are intended to portray. Bray v. State (1982), Ind., 430 N.E.2d 1162. State's Exhibits 3 and 4 easily met this test.
Defendant then argues that the admission of State's Exhibit 4 along with the admission of other photographs of the marshal's body, resulted in the presentation of cumulative evidence of the victim intended only to inflame the passions of the jury. We do not agree.
Exhibit 4, as noted, was a photograph of the marshal's body at the scene. Exhibit 9 was an identification photograph of the marshal's face before the autopsy. Exhibit 10 showed the wound in the officer's back; exhibit 11 showed the wound through his abdomen. Dr. Ramsey, the State's expert medical witness, used the latter photographs to explain his conclusion that the marshal had been shot in the back. State's Exhibits 26 and 27 also illustrated the wounds in the marshal's back and abdomen respectively, and were introduced during Dr. Ramsey's rebuttal testimony. Dr. Ramsey used these photographs to buttress his prior testimony that Marshal Miner had been shot in the back, and rebut defendant's contention Snyder shot the marshal during their struggle.
This Court explained in Richardson v. State (1985), Ind., 476 N.E.2d 497, 500:
Such photographs are admissible if they provide relevant evidence and their relevance is not outweighed by their tendency to inflame and impassion the jury against the defendant. The question necessarily becomes one of balancing these concerns, and thus the trial court has broad discretion in determining whether such photographs should be admitted in a particular case. (Citations omitted.)
Defendant further argues the trial court erred in admitting into evidence State's Exhibit 13, a crowbar found at the scene. Defendant contends the jury might have inferred "it was used by a person assisting the killer, to threaten or injure the victim when in fact it was not." This argument is entirely speculative, as there was no evidence the marshal was injured by anything except the fatal shot. The crowbar was found near the second automobile which defendant and Snyder vandalized. The State presented evidence, discussed in Issue V below, that the pair used the crowbar in vandalizing the automobiles they found parked next to the highway. The second incident led to the shooting.
An exhibit is admissible as relevant and material when it bears some relevance to this defendant and the transaction from which the criminal charge arises. Golden v. State (1985), Ind., 485 N.E.2d 51. Exhibit 13 was relevant and material, and we find no error in its admission.
Defendant finally challenges the admission into evidence of State's Exhibit 23, the marshal's service revolver, which police officers, with defendant's assistance, recovered from a small lake where he had discarded it after the incident. Defendant argues the revolver should not have been admitted because officers who tested it cleaned and polished it, thereby changing its appearance. Defendant suggests that cleaning the revolver would have eliminated scratches caused when it was knocked away from the marshal and scraped along the pavement. The jury was informed the revolver was cleaned before it was tested, and there is no question the exhibit was the marshal's service revolver and was the murder weapon. Any alteration in the revolver's appearance was a matter of evidentiary weight, not admissibility.
ISSUE V
Defendant argues that the trial court erred in admitting evidence that he and Snyder vandalized an automobile before they started to vandalize the automobile at the scene of this crime. He contends that "[t]he prior vandalizing of a Ford Mustang automobile by Spranger adds nothing to the story of the shooting of William Miner." The State claims that this evidence was admissible under the res gestae exception to the general rule that evidence of a defendant's prior crimes should not be admitted.
This Court recently stated in Forehand v. State (1985), Ind., 479 N.E.2d 552:
While evidence that a defendant has committed other crimes generally is not admissible to prove the specific crime charged, such evidence may be admitted under various exceptions to this general rule, including the
res gestae exception. Under the
res gestae exception evidence may be introduced which completes the story of the crime by proving its immediate context, even if this evidence also shows that the defendant committed other crimes during the course of the charged offense.
See, Blankenship v. State (1984), Ind.,
462 N.E.2d 1311, 1313 and authorities cited. Admission of evidence under the
res gestae exception generally is left to the sound discretion of the trial court.
Id., 462 N.E.2d at 1313.
* * * * * *
This Court has upheld the admission of evidence of transactions leading to the crime charged, even if the evidence concerned acts outside of the immediate time frame of the charged offense, provided that such evidence otherwise meets the requirements of the
res gestae rule.
See, e.g., Altman v. State (1984), Ind.,
466 N.E.2d 716, 720.
479 N.E.2d at 554, 555. The record here shows that defendant and Snyder were driving toward Avilla until the two men stopped to vandalize a Mustang automobile. This incident began the sequence of events leading to the vandalizing of the second automobile, when Marshal Miner was called to the scene. The first vandalism was one of the transactions in a continuous series leading to the shooting. The trial court did not abuse its discretion by admitting this evidence.
ISSUE VI
Defendant claims the trial court abused its discretion and committed reversible error in denying his motions for a jury view of the scene of the crime and for an in-court weapon demonstration of the marshal's revolver.
The trial court overruled the request for jury view of the scene on the basis such view would not greatly assist the jury and because of the cost and inconvenience of transporting the jury to the scene. Responding to a similar contention this Court stated in Carroll v. State (1982), Ind., 438 N.E.2d 745, 749:
It is within the trial court's discretion whether to allow a view. It is not a substantive right nor essential to a fair trial. A jury's view of a location is not intended as evidence. It is intended simply to aid the jury in understanding the evidence. Thus, a trial court does not abuse its discretion if the viewing would not be materially helpful to the jury or where photographs or other evidence adequately present the situation. (Citations omitted.)
Accord, Pinkerton v. State (1972),
258 Ind. 610, 615-16, 283 N.E.2d 376, 379-80 and authorities cited. In this case defendant generally contends that had the jury been allowed to view the scene, they could have gained helpful insight into the eyewitnesses'
testimony. Having carefully reviewed their testimony, and also noting that the witnesses were allowed to refer to a chart depicting the scene, we are unable to conclude that the view would have been materially helpful to the jury. Defendant was not denied a fair trial by the refusal of the request for a jury view.
Defendant also contends the trial court erred in refusing to allow an in-court weapon demonstration of the marshal's revolver. We disagree.
While a criminal defendant is protected by the due process requirements of being allowed to confront the witnesses against him and to present material and relevant evidence from witnesses on his own behalf, see Ind. Const. Art. I, §§ 12, 13, the trial court, in order to make sure the trial proceeds in an orderly manner, is given substantial latitude in ruling on the admissibility of evidence. See, e.g. Connell v. State (1984), Ind., 470 N.E.2d 701, 704. The trial court is accorded wide discretion in ruling on the admission of expert testimony, especially where, as here, such testimony would be tangentially relevant to the material issues in the case. See, Dougherty v. State (1983), Ind. App., 451 N.E.2d 382, 385.
Defendant asserts that a weapon demonstration would have assisted the jury's evaluation of the eyewitnesses' testimony concerning who fired the shot. However, defendant does not specify the ways in which the jury's understanding of the testimony would have been enhanced. While such tests might be appropriate in another case, for example where the firing rate of two different weapons is being compared to illustrate which was used in a crime, we cannot conclude defendant was denied a fair trial because a weapon demonstration was not allowed in this case.
ISSUE VII
Defendant argues the trial court committed reversible error in giving its Final Instruction No. 8. He claims the instruction impermissibly shifted the burden of proof to him on the issue of criminal intent, or mens rea.
The instruction in pertinent part stated:
[W]hether an act is done "knowingly" or "intentionally" may be
inferred from and established by all the facts and circumstances attending the act complained of, or otherwise bearing upon or related to such act, as disclosed by the evidence, if the facts and circumstances support such an
inference. Men's purposes are often revealed by their acts, and whether an act is done "knowingly" or "intentionally" may be
inferred from the alleged act itself, if established by the evidence, taken into consideration with all of the facts and circumstances surrounding or related to such act, as disclosed by the evidence, if the jury should determine such an
inference should be drawn. (Emphasis supplied.)
Defendant relies on Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and its progeny.
In Sandstrom the trial court instructed the jury, without qualifying language, that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513, 99 S.Ct. at 2453, 61 L.Ed.2d at 44. The Supreme Court held the instruction violated the defendant's due process rights in that the jury could have interpreted it to mean once the state presented evidence the defendant's acts were voluntary, the burden of production or even persuasion shifted to him to prove he was not acting with the requisite mens rea. The Court concluded that the instruction thus violated its holding in In Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, that the State bears the burden to prove each element of the charged crime beyond a reasonable doubt. Since Sandstrom, similar instructions have been condemned in at least two cases. See Francis v. Franklin (1985), 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344; Connecticut v. Johnson (1983), 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823. However, the Sandstrom Court emphasized that, regarding the finding of criminal intent from voluntary acts, the jurors "were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it." 442 U.S. at 515, 99 S.Ct. at 2454, 61 L.Ed.2d at 45 (emphasis supplied); see also id., 442 U.S. at 527-28, 99 S.Ct. at 2461, 61 L.Ed.2d at 53 (Rehnquist, J., concurring).
This Court has applied Sandstrom in several cases, but not found reversible error. In Van Orden v. State (1984), Ind., 469 N.E.2d 1153, 1160-61, cert. denied (1985), 471 U.S. 1104, 105 S.Ct. 2335, 85 L.Ed.2d 851, and Jacks v. State (1979), 271 Ind. 611, 623-26, 394 N.E.2d 166, 174-76, the trial court gave instructions suggesting that intent could be presumed from voluntary acts, but the instructions were qualified by other language properly instructing the jury on the State's burden of proof. In Kiper v. State (1983), Ind., 445 N.E.2d 1353, 1358-59, and Davidson v. State (1982), Ind., 442 N.E.2d 1076, 1080-81, however, the trial courts properly instructed the juries that intent could be inferred from voluntary acts.
The challenged instruction in the instant case, as in Kiper and Davidson, properly informed the jury that criminal intent could be inferred from the defendant's acts. Thus, the Sandstrom rule was not violated and we find no error.
ISSUE VIII
Defendant contends the evidence presented by the State was not sufficient to sustain the verdict. The evidence is sufficient where the probative evidence, and the reasonable inferences therefrom which support the verdict, would enable a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. Case v. State (1984), Ind., 458 N.E.2d 223; Loyd v. State (1980), 272 Ind. 404, 407, 398 N.E.2d 1260, 1264, cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.
As defendant and Snyder drove toward Avilla from Fort Wayne, they vandalized one automobile parked next to the highway and took some stereo equipment and cassette tapes. They passed another automobile just before they entered Avilla, turned around and came back to it. As they started to vandalize the second automobile they were observed by Barbara Pries Egley from her residence nearby. She called Marshal Miner, who came to the scene. He ordered the two men to place their hands on the hood of one of the automobiles parked there, then started to call for assistance. As he did so, Snyder and defendant exchanged places, and the marshal and Snyder were exchanging words by this point. Defendant then pushed Snyder into the marshal or Snyder attacked him.
Defendant took the marshal's flashlight from the patrol car and waved several automobiles by as the struggle continued. However, the marshal and Snyder wrestled onto and across the pavement, such that an automobile driven by one Christopher Gaff could not pass by and stopped at the scene. The struggle continued to the other side of the pavement, toward a drainage ditch, and the marshal gained the upper hand. However, he lost his service revolver as he attempted to draw it, or it may have been knocked out of its holster. As the struggle continued, the marshal was shot and slid into the drainage ditch. Defendant yelled to Snyder, "let's get the hell out of here, I shot the bastard." Mr. Gaff, Mrs. Egley, and her mother, Bessie Arnett, who also lived in a residence near the scene, observed the struggle, heard the shot, and saw Marshall Miner slide into the ditch. Snyder and defendant rapidly drove away. Mrs. Arnett's husband pulled the marshal out of the water and called for help on the patrol car radio. The marshal died before medical assistance arrived. Defendant and Snyder drove to a private residence, where defendant spoke with his brother, and admitted shooting "a cop in the back." The brother observed that Snyder had a large pistol and defendant had a police flashlight. After Snyder fired the remaining rounds in the revolver, defendant threw the pistol and flashlight into nearby Summit Lake, where these items were eventually recovered.
Sixteen-year-old Tina Hakey was awake when defendant and Snyder arrived at her residence between 4:00 and 4:30 a.m. after the killing. She testified, and maintained over vigorous cross-examination, that defendant then stated:
I shot him but I don't feel guilty because it was like somebody stepped inside of me, pulled the trigger and then stepped back out.
The State also presented testimony from three of defendant's cellmates, who testified that defendant, on several occasions, had repeated essentially the same story of the shooting: the marshal attempted to draw his revolver as he struggled with Snyder, Snyder kicked it or otherwise knocked it away, defendant then picked it up and shot Marshal Miner in the back.
Contrary to defendant's argument, the quantity of probative evidence here distinguishes the present case from Chew v. State (1985), Ind., 486 N.E.2d 516; Ritchie v. State (1963), 243 Ind. 614, 189 N.E.2d 575; Thomas v. State (1958), 238 Ind. 658, 154 N.E.2d 503; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240; and, Zinn v. State (1981), Ind. App., 424 N.E.2d 1058. In Penn, we reversed a conviction where the uncorroborated testimony of the prosecuting witness was "so improbable and incredible that no reasonable man could say that appellant's guilt had been proved beyond a reasonable doubt." 237 Ind. at 382, 146 N.E.2d at 243. Ritchie and Thomas reversed convictions resulting from identification testimony which was inherently inconsistent with undisputed facts and unsupported by circumstantial evidence of guilt. Similarly, it was held in Zinn that where the State's case is based wholly on circumstantial evidence, any resulting reasonable inference of guilt "must be more than mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla." 424 N.E.2d at 1060 (citation omitted). Clearly, the evidence reviewed above distinguishes the present case from those based solely upon circumstantial evidence, or resulting from mere suspicion, conjecture, conclusion, or guess.
Defendant argues that the testimony supporting conviction is outweighed, as a matter of law, by the "eyewitness" testimony from Mr. Gaff, Mrs. Egley, and Mrs. Arnett, each of whom testified as to their conclusion that the shot was fired by the man (Snyder) actually fighting with Marshal Miner. A careful review of the testimony compels rejection of this argument. Mr. Gaff's attention was riveted upon the fight between Snyder and Marshal Miner, which was illuminated by the headlights of the Gaff vehicle. Mr. Gaff was barely aware of the existence of the third person (Spranger) at the scene. Mr. Gaff did not see a gun, nor did he observe any flash when he heard the sound of a shot. His surmise that Snyder shot Marshal Miner was apparently based upon his observation of the marshal's arm being extended out toward Snyder at the time of the shot. Mrs. Egley observed the events from over two hundred feet away. She did not observe any weapon, but at the time of the shot, she saw Marshal Miner's hands on Snyder's shoulders, with Snyder having one hand against the marshal's chest. Mrs. Arnett was watching from a distance of about three hundred feet. At the time she heard the gunshot, she saw Snyder and Marshal Miner facing each other, with the marshal's hands on Snyder's shoulders, and with Snyder having one arm on the marshal's shoulder and the other hand extended toward his abdomen. Mrs. Egley's belief that Snyder fired the fatal shot was apparently based upon her perception that the flash at the time of discharge seemed to appear as if between Snyder and Marshal Miner. However, she did not observe the gun. Contrary to the testimony of Mr. Gaff, both Mrs. Egley and Mrs. Arnett insisted that no other motorist was present.
In contrast to the conjecture of these witnesses regarding the source of the shot, the undisputed fact remains that Marshal Miner, while facing Snyder, was shot in the back from a distance further away than point blank range, without any bullet penetration of the front of his clothes. When considering all the evidence, including the testimony of Snyder and the hearsay testimony regarding the defendant's own admissions, we conclude that it is clearly sufficient to support the jury's conclusion that the defendant fired the fatal shot.
In his dissent to this opinion, Justice DeBruler contends that because the murder of Avilla Town Marshal Miner occurred outside the town limits of Avilla, the evidence was insufficient to prove the aggravating circumstance that the victim was a law enforcement officer acting in the course of duty. The dissent would hold that, unless in pursuit of the perpetrator of an "in-town" crime, a town marshal has no power to arrest outside the town limits. We disagree.
A town marshal's powers to arrest are set forth in Ind. code § 36-5-7-4, which provides in pertinent part that a marshal:
has the powers
of other law enforcement officers in executing the orders of the [town] legislative body and
enforcing laws. The marshal or his deputy:
(2) shall arrest without process all persons who commit an offense within his view[.] (Emphasis supplied)
The predecessor statute, Ind. Code § 18-3-1-32, provided that town marshals "shall possess all the common-law and statutory powers of constables[.]" These powers were found in Ind. Code § 17-4-36-5, a codification of statutes dating back to 1852, granting constables the "power to act throughout their respective counties, unless specially restrained by law[.]" The dissent contends that, in enacting section 36-5-7-4, the legislature intended to restrict the authority of town marshals as compared to their "former" authority under section 18-3-1-32. However, we find that in 1979, Ind. Code § 17-4-36-5, defining the powers of constables, was repealed and not replaced. Acts 1979, Pub. Law 160, § 1. As of that point, the language in section 18-3-1-32, referring to "statutory powers of constables" had no referent because the statute defining the power of constables had been repealed. Accordingly, when the legislature thereafter redefined the powers of town marshals in Ind. Code § 36-5-7-4, and prescribed the powers of town marshals by reference to powers granted to other police agencies, the new statute referred to town marshals having the powers of "other" law enforcement officers.
Ind. Code § 35-33-1-1 provides in pertinent part:
A
law enforcement officer may arrest a person when:
(2) He has probable cause to believe the person has committed . . . or is committing . . . a felony[.] (Emphasis supplied)
This provision is analogous to Ind. Code § 34-4-32-2 which states:
Whenever a law enforcement officer believes in good faith that a person has committed an infraction or ordinance violation, he may detain that person[.]
The latter statute was reviewed by the Court of Appeals in State v. Russ (1985), Ind. App., 480 N.E.2d 248, 250-51:
The above statute clearly states that a law enforcement officer may, at any time, detain a person suspected of committing an infraction. It does not state any jurisdictional limitation on the authority of law enforcement officers (including city police officers) to detain (or stop) individuals for committing infractions.
The decision upheld the authority of a city police officer to make a lawful traffic arrest outside his city limits and inside those of a nearby city. Ind. Code § 35-33-1-1, like § 34-4-32-2, contains no territorial limitation.
Since the recodified statute defining the powers of town marshals refers to powers of other law enforcement officers, and as the powers of those officers to arrest are not given territorial limitation in sections 34-4-32-2 and 35-33-1-1, we cannot accept the dissent's contention that the legislature, in granting town marshals the powers of those other officers in section 36-5-7-4, intended to restrict their authority. With the office of constable abolished, Ind. Code § 36-5-7-4, in basing town marshals' authority on powers granted other law enforcement officers, has maintained the well-established historical power of town law enforcement officers to effect arrests outside the town for felonies committed within their view. In the instant case, we find that Marshal Miner was therefore acting in the course of duty when he was murdered, and thus the evidence demonstrated the existence of the aggravating factor charged.
ISSUE IX
Defendant argues that the death sentence must be vacated because the trial court limited the testimony of a defense witness during the penalty phase of the trial. The trial court's rulings were correct.
The defense introduced the testimony of one Lloyd McClendon, who at one time was sentenced to death for murder in New Mexico but later achieved a substantial education, was pardoned for his prior offenses and, as of this trial, was working for the Ohio Department of Corrections. The trial court refused to allow Mr. McClendon to testify regarding (1) his personal experience of being rehabilitated, (2) his knowledge of the experiences of 12-15 other former death row inmates now leading successful lives, and (3) his personal views concerning the deterrent effect of capital punishment. The trial court did allow Mr. McClendon to testify that, based on his brief personal interview with defendant, he had some hope that defendant could be rehabilitated. The trial court otherwise concluded that the proffered testimony was irrelevant. Specifically, the court held that the testimony regarding the rehabilitation of Mr. McClendon and other former death row inmates would not tend to prove that this defendant was amenable to rehabilitation. Regarding Mr. McClendon's opinion of the deterrent effect of capital punishment, the court ruled that such was a broad policy consideration for the legislature in adopting a death penalty statute, not for a jury in a particular murder case.
Defendant correctly argues that I.C. § 35-50-2-9(c)(7), and the United States Supreme Court's opinions in Eddings v. Oklahoma (1982), 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1, and Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (plurality opinion), require the trial court to consider any relevant mitigating evidence in a death penalty case. However, the defendant is not given carte blanche to introduce any evidence or opinion testimony concerning the death penalty. As Chief Justice Burger noted in Lockett:
Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense.
438 U.S. at 604, n. 12, 98 S.Ct. at 2965, n. 12, 57 L.Ed.2d at 990, n. 12 (plurality opinion).
Other authorities cited are distinguishable or inapplicable. To whatever extent California v. Ramos (1983), 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171, and Barclay v. Florida (1983), 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134, support the obvious proposition that the jury's moral judgment is invoked in determining the death sentence recommendation, they do not hold that proffered general testimony concerning the death penalty must be admitted. In Barefoot v. Estelle (1983), 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090, reh. den. 464 U.S. 874, 104 S.Ct. 209, 78 L.Ed.2d 185 the trial court allowed testimony from two psychiatrists, based on hypothetical questions, that the defendant would be a continuing danger to society if allowed to live. The Supreme Court's opinion supports the view that if the State presents hypothetically-based psychiatric testimony of future dangerousness, the defendant should be allowed to counter with evidence generally attacking the reliability of the psychiatric testimony.
Among other cases cited by defendant here or at trial, Green v. Georgia (1979), 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (per curiam) involved only a trial court's refusal to admit, during the penalty phase of a death penalty trial, hearsay evidence that the co-defendant had admitted that he, alone, shot the victim. The Supreme Court held such testimony should, as a matter of due process, have been admitted over the state's hearsay rule. In Moore v. Commonwealth (1982), Ky., 634 S.W.2d 426, 434-35, the Supreme Court of Kentucky found, among several other problems with the trial, that the trial court had erred in refusing to allow testimony from a minister regarding the rehabilitative potential of the particular defendant on trial. Mr. McClendon was allowed to give such testimony here. The opinions in Ross v. Hopper (1977), 240 Ga. 369, 240 S.E.2d 850, cert. denied (1978), 435 U.S. 1018, 98 S.Ct. 1890, 56 L.Ed.2d 397, a Georgia state habeas corpus case, and State v. Pierre (1977), Utah, 572 P.2d 1338, cert. denied (1978), 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194, state that general testimony concerning the efficacy of capital punishment was introduced in those cases. Neither opinion can reasonably be construed to require trial courts to admit such testimony.
In this case the State relies on Wisehart where, in rejecting essentially the same contention, we stated:
The question of whether or not it is appropriate in our society to provide for the death penalty in certain cases is one to be answered by the legislature. The issue to be decided by a trial jury is whether the sentence is appropriate for the particular offense and the particular offender. (Citation omitted.) . . .
Lockett referred to evidence directly on point regarding the defendant and a particular crime at issue before the jury. The testimony proposed by Defendant in the instant case through the two witnesses was not evidence of the type presented in
Lockett, but represented only general philosophical opinions regarding penalties approved by our State Legislature.
484 N.E.2d at 957. In this case Mr. McClendon's proffered general testimony that death row inmates may be rehabilitated and his views regarding the deterrent effect of capital punishment would not have been relevant to the jury's individual consideration of this defendant's capacity for rehabilitation and whether he should otherwise be sentenced to death.
Since the filing of the parties' briefs, the United States Supreme Court has decided Skipper v. South Carolina (1986), ___ U.S. ___, 106 S.Ct. 1669, 90 L.Ed.2d 1, reversing a death sentence for failure to admit evidence of the petitioner's future adaptability to prison life. At the sentencing hearing, the defendant was prohibited from presenting testimony of a witness to testify that the defendant had been a well-behaved and well-adjusted prisoner, from which the jury could have drawn favorable inferences regarding the defendant's character and probable future conduct if sentenced to life in prison. The United States Supreme Court held that evidence of a particular defendant's adjustability to life in prison "unquestionably goes to a feature of the defendant's character that is highly relevant to a jury's sentencing determination[,]" ___ U.S. at ___, n. 2, 106 S.Ct. at 1672, n. 2, 90 L.Ed.2d at 8, n. 2, particularly where the prosecutor, in seeking the death sentence, emphasized the dangers which defendant would pose to other inmates if sentenced to prison. The Court concluded:
The exclusion by the state trial court of relevant mitigating evidence impeded the sentencing jury's ability to carry out its task of considering all relevant facets of the character and record of the individual offender.
___ U.S. at ___, 106 S.Ct. at 1673, 90 L.Ed.2d at 9. Unlike the instant case, the Skipper decision focused upon the improper exclusion of mitigating evidence directed toward the individual defendant's personal tolerance for prison life and proclivity for rehabilitation. Neither the Skipper decision nor its rationale lend support for defendant's contention here that defendant was entitled to present evidence regarding the susceptibility of other persons to rehabilitation.
We find no error upon this issue.
ISSUE X
In attacking certain instructions given by the trial court during the penalty phase, defendant raises a familiar challenge to a procedural aspect of our death penalty statute. He contends that, as a matter of due process, the jury must find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt before they can recommend the death penalty. Defendant's argument, in effect, would also require the trial judge, in imposing sentence, to conclude the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt before the death penalty could be imposed.
The trial judge in this case did state in his sentencing memorandum that he found the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt, though he did not regard this as a factual finding, and emphasized he saw no compulsion to apply that standard.
This Court rejected essentially the same argument in Moore v. State (1985), Ind., 479 N.E.2d 1264 (DeBruler, J., dissenting on other grounds), cert. denied ___ U.S. ___, 106 S.Ct. 583, 88 L.Ed.2d 565. There the Court stated:
The State concedes that the United States Constitution protects an accused against criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."
In Re Winship, (1970)
397 U.S. 358, 364,
25 L.Ed.2d 368, 375,
90 S.Ct. 1068, 1073. In
Daniels [
v. State (1983), Ind.,
453 N.E.2d 160], we found that Ind. Code § 35-50-2-9(g) complies with the proscription articulated in
Winship since the State must prove
beyond a reasonable doubt the existence of at least one of the enumerated aggravating circumstances. Moreover, we specifically decided upon Appellant's argument as follows:
"However, the determination of the weight to be accorded the aggravating and mitigating circumstances is not a `fact' which must be proved beyond a reasonable doubt, but is a balancing process."
Daniels, 453 N.E.2d at 171. Appellant now suggests that this language was
dicta because
Daniels involved a jury trial in which the jury was instructed to follow the "beyond a reasonable doubt" standard in finding the existence of aggravating factors and in the weight determination implicit in the requisite balancing process. Notwithstanding this distinction, we expressly adopt the language of the above quoted passage from
Daniels and hold that it is constitutional to not require a finding that aggravating factors outweigh mitigating circumstances beyond a reasonable doubt. (Emphasis in original.)
Moore, 479 N.E.2d at 1281. Because our prior decisions in
Moore and
Daniels are applicable, we find no error upon this issue.
ISSUE XI
Defendant raises several challenges to imposition of the death penalty in this particular case. We discuss them under the general heading of whether imposition of the death sentence here was contrary to law. We conclude it was not.
Defendant argues the death sentence is "disproportionate" in view of the reduced charge and prison term given Snyder. He also contends that the death penalty request initially should have been dismissed for the same reason.
We disagree. The evidence established that the marshal was killed by one shot in the back from his service revolver. There is no evidence Snyder and defendant planned any killing before the marshal arrived on the scene. There is no evidence they planned, together, to use deadly force against the marshal once he apprehended them. In other words, there is no evidence the two men participated equally in the killing. Rather, the record shows one of the pair gained control of the service revolver and fired it. For reasons discussed previously the jury properly could have and did conclude that this was the defendant. We reject the argument that Snyder's involvement in this crime was "proportional." The United States Supreme Court has recently held that the Eighth Amendment forbids imposition of the death penalty on one who aids and abets a felony in which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force be employed. See, Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140. Snyder did not entertain any intent to kill the marshal or attempt to do so. Under Enmund we might well have been constrained to vacate a death sentence on Snyder under the facts here.
The United States Supreme Court recently refused to impose a strict "proportionality" requirement under the Eighth Amendment. Pulley v. Harris (1984), 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29. We followed Pulley in Burris v. State (1984), Ind., 465 N.E.2d 171, 192, cert. denied (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809, and determined that even though we do not apply a strict "proportionality" requirement in reviewing death sentences, our review satisfied the strictures of Pulley and other United States Supreme Court cases. In Resnover v. State (1984), Ind., 460 N.E.2d 922, cert. denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160, we held that the discretion given prosecutors to file or not file for the death penalty does not offend the Constitution because "subsequent procedure dictated by statute prevents the arbitrary and capricious infliction of a death penalty." Id., 460 N.E.2d at 929. The reduced charge and prison sentence given Snyder in this case did not require the death penalty information against defendant be dismissed, nor does it provide any basis for vacating defendant's death sentence.
Defendant next contends that the trial judge disregarded the mitigating evidence entirely or, if he did consider the evidence, did not accord it sufficient weight. To the contrary, the trial court's sentencing memorandum, attached as an appendix to this opinion, demonstrates the court did consider the mitigating evidence, but found the mitigating factors did not outweigh the aggravating factors. Cf., Lowery v. State (1985), Ind., 478 N.E.2d 1214, 1232, cert. denied (1986), ___ U.S. ___, 106 S.Ct. 1500, 89 L.Ed.2d 900 (Prentice, J., concurring) (trial court's comments showed the court did not deem proffered evidence mitigating, not that trial court failed to consider such evidence.)
Defendant particularly emphasizes the trial court's failure to consider his youth a mitigating factor, and cites us to Dillon v. Duckworth (7th Cir. 1984), 751 F.2d 895, cert. denied (1985), 471 U.S. 1108, 105 S.Ct. 2344, 85 L.Ed.2d 859. There the Seventh Circuit Court of Appeals granted a writ of habeas corpus to an Indiana petitioner who had been sentenced to death for crimes committed when he, like defendant, was only 18 years old. At sentencing the state trial judge had refused to consider age a mitigating factor because the "capability of such cruelty (brutal stabbings during a burglary) in the mind of one that age cannot be considered a mitigating circumstance." 751 F.2d at 901, n. 7. In contrast, the trial judge's findings in this case revealed that he considered defendant's youth as a potentially mitigating factor, but not of substantial weight because of the nature of the killing. However, we cannot conclude that he refused to consider age a mitigating factor.
In considering defendant's contentions that the trial court did not give adequate weight to the mitigating factors presented, we incorporate our own review of whether the death penalty is appropriate under the facts and circumstances of this case. In the course of this review we consider two guidelines.
First, Rule 2 of the Indiana Rules for the Appellate Review of Sentences provides that the reviewing court will not revise a sentence authorized by statute unless such sentence is manifestly unreasonable in light of the nature of the offense and character of the offender. A sentence is not manifestly unreasonable unless no reasonable person could find such sentence appropriate to the particular offense and offender for which such sentence was imposed.
In invoking the rules for appellate review of sentences in this case we are cognizant of the concerns expressed by Justice Marshall (Brennan, J., concurring) dissenting to denial of certiorari in Schiro v. Indiana (1986), ___ U.S. ___, 106 S.Ct. 1247, 89 L.Ed.2d 355. Although the dissent's comments were particularly addressed to the situation where, as in Schiro but unlike this case, the trial judge overrides the jury's recommendation of a prison sentence and imposes the death penalty, the criticisms that our sentence review rules accord a substantial, if not conclusive, presumption to the trial court's decision, see Schiro, ___ U.S. at ___, 106 S.Ct. at 1248, 89 L.Ed.2d at 356, and that the "manifestly unreasonable" standard "effectively insulates the sentence from meaningful review," ___ U.S. at ___, 106 S.Ct. at 1249, 89 L.Ed.2d at 357, surely raise substantial questions that should be kept in mind in any death penalty case where we invoke these rules.
We respectfully suggest that as applied in our capital cases decided since the rules became effective in 1978, the rules stand more as guide-posts for our appellate review than as immovable pillars supporting a sentence decision. Thus, in cases such as Lowery, 478 N.E.2d at 1230-32, Averhart v. State (1984), Ind., 470 N.E.2d 666, 695-97, cert. denied (1985), 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 323, Resnover, 460 N.E.2d at 935-36, Daniels, 453 N.E.2d at 172-74 and n. 3, and Brewer v. State (1981), 275 Ind. 338, 359-63 and n. 3, 417 N.E.2d 889, 900-03 and n. 3, cert. denied (1982), 458 U.S. 1122, 102 S.Ct. 3510, 73 L.Ed.2d 1384, we have carefully considered whether, under all the circumstances, the death penalty has been arbitrarily or capriciously applied.
The primary purpose of the appellate sentence review rules is to provide an appropriate, albeit self-imposed, check on the authority of this Court and our Court of Appeals to revise or vacate sentences with which we simply disagree. See generally, Fointno v. State (1986), Ind., 487 N.E.2d 140, 144-46, discussed infra; Cunningham v. State (1984), Ind. App., 469 N.E.2d 1, 7-8, trans. denied. Although we are obliged to review death sentences with the most exacting scrutiny to ensure they are imposed in accordance with Constitutional standards, we read no majority opinion of the U.S. Supreme Court as requiring state appellate tribunals to make a de novo determination of sentence. The primary sentencing responsibility, even in capital cases, lies, as it should in our view, with the trial court. See, Eddings, 455 U.S. at 119, 102 S.Ct. at 879, 71 L.Ed.2d at 14 (O'Connor, J., concurring), and id., 455 U.S. at 127-28, 102 S.Ct. at 883, 71 L.Ed.2d at 19 (Burger, C.J., dissenting).
Second, in terms of the factors which may be considered and the weight given them we are guided by Zant v. Stephens (1983), 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235, as subsequently discussed and applied in Davis v. State (1985), Ind., 477 N.E.2d 889, cert. denied ___ U.S. ___, 106 S.Ct. 546, 88 L.Ed.2d 475. In his review of the Georgia statutory scheme at issue in Zant, Justice Stevens explained that the requirement for proof of specific aggravating factors is to genuinely narrow the class of persons eligible for the death penalty, and to reasonably justify the imposition of a more severe sentence for such defendants than upon others convicted of murder. Zant, 462 U.S. at 878-79, 103 S.Ct. at 2742-43, 77 L.Ed.2d at 249-50. Both the Zant and Davis opinions described the finding of specific aggravating factors as the "definition stage." Zant, 462 U.S. at 878-79, 103 S.Ct. at 2743-44, 77 L.Ed.2d at 250-51; Davis, 477 N.E.2d at 892-93. In this case the "definition stage" was passed when the jury and trial judge determined, and their conclusion is supported by substantial evidence, that defendant was guilty of the murder of a law enforcement officer acting in the course of duty. I.C. § 35-50-2-9(b)(6)(i). Once the "definition stage" is passed, the Zant court explained that "the Constitution does not require the jury [or trial judge] to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." (Emphasis in original; citations and footnote omitted.) 462 U.S. at 878-79, 103 S.Ct. at 2743-44, 77 L.Ed.2d at 251. Applying these principles, the Davis Court found no error when the trial judge considered uncharged aggravating factors after the charged aggravating circumstances had been established. 477 N.E.2d at 893-94.
In light of these standards we turn to the factors argued in the instant case. The trial judge concluded defendant was not acting under the substantial domination of another person, i.e. Snyder, and that his judgment was not affected by an emotional disturbance or intoxication. The record supports the conclusion that Snyder and defendant were acting in concert until the marshal arrived, and that defendant acted alone in shooting. There is evidence defendant had been drinking, but he had the presence of mind to be driving from Fort Wayne to Avilla, to direct traffic at the scene, to flee after the shooting, to discuss the incident with his brother, to dispose of the flashlight and service revolver, and to later recall events surrounding the incident. Regarding any emotional disturbance, there is no probative evidence defendant was suffering from a mental or emotional disturbance that affected his ability to conform his conduct to law.
Defendant also emphasizes there was no advance plan or scheme to shoot the marshal. The significance of this factor is lessened because the defendant had time to deliberate the act and to consider other options, including flight from the scene.
Defendant particularly argues that the trial judge improperly considered his "silence," i.e. refusal to admit the crime, in aggravation. He cites Griffin v. California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, reh. denied 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730. Griffin and its progeny have firmly established that a defendant's refusal to testify may not be considered to support an inference of guilt, not the propriety of a sentence. It is well established that the sentencer may consider lack of remorse as a factor in imposing sentence. See, Gibbs v. State (1984), Ind., 460 N.E.2d 1217, 1222; Hoehn v. State (1984), Ind. App., 472 N.E.2d 926, 932. Furthermore, defendant's failure to accept responsibility or show remorse properly could be considered against proffered mitigating testimony that he had cooperated with police in locating certain evidence and was capable of rehabilitation. The persistent failure to acknowledge the crime was regarded by the trial judge as showing defendant might act similarly if confronted with a difficult situation in the future.
Other evidence included a psychologist's assessment that, although defendant was capable of rehabilitation, he was a young man with poor social controls, who tended to be impulsive and was extremely susceptible to the influence of other people to a near pathological extent, though we again emphasize the record shows he was not dominated by Snyder in this incident. The record also included defendant's statements to the probation officer who prepared the pre-sentence report that he did not "like these charges," that the jury was "unfair," and that he would do "whatever I can to get out of it." Finally, on at least one occasion defendant stated to a cellmate, referring to the State Police Officer who had investigated the case and arrested him, that defendant "wished it would have been Officer Barrett that he'd shot instead of Bill Miner." Thus, the evidence regarding capacity for rehabilitation was, at best, inconclusive, and the trial judge properly considered defendant's lack of personal remorse as relevant to questions of rehabilitation and future dangerousness.
Defendant further complains that the trial judge unduly emphasized Marshal Miner's status as a police officer victim of a murder. However, the trial judge correctly observed that many persons otherwise willing to damage property or engage in violence will yield to the authority of a police officer, and that police officers are the "front line" against criminal assaults on society. These considerations illustrated the gravity of this crime. The weight given by the trial judge to the status of the victim, supported by the social policy considerations making this a statutory aggravating factor, was a matter properly within the judge's purview.
A comparison with two recent cases, one involving the death penalty, is helpful. In Averhart, 470 N.E.2d at 695-97, this Court upheld a death sentence where the defendant, who previously had been incarcerated for involuntary manslaughter, during the course of a robbery shot and killed a police officer who had already been wounded in the incident. The trial court considered the proffered mitigating evidence, found no mitigating factors and sentenced the defendant to death. In Fointno, 487 N.E.2d at 143-49 (Givan, C.J. and Pivarnik, J., dissenting), the majority concluded that a total sentence of 104 years for rape, other sexual assaults, robbery and confinement was manifestly unreasonable in light of the defendant's good work record and no prior criminal history. The majority particularly noted that the trial judge had given no consideration to the mitigating evidence presented. In the instant case, unlike Averhart but as in Fointno, the defendant does not have a significant prior criminal history. However, unlike Fointno the record here reveals the trial judge gave thoughtful consideration to the mitigating evidence presented.
In Fointno, 487 N.E.2d at 145, the majority adopted the approach used by the Court of Appeals in Cunningham, 469 N.E.2d at 8, for applying Ind.R.App.Rev. Sent. 2. If upon initial review of the record the reviewing court determines the sentence may be manifestly unreasonable, the court should undertake a thorough analysis of all the factors in the record relevant to sentencing and then determine whether no reasonable person could find such sentence appropriate to the particular offense and offender.
In view of defendant's age and lack of prior criminal history we have assumed, arguendo, upon our initial review of the record, that the death sentence might be manifestly unreasonable. However, upon considering all the relevant factors present in this record, the jury's recommendation and the trial judge's carefully prepared memorandum, we cannot conclude that imposition of the death penalty in this case was arbitrary or capricious, or that no reasonable person could find such sentence appropriate to the particular offense and offender. Accordingly, imposition of the death penalty in this case was not contrary to law.
CONCLUSION
Chief Justice Burger's comment that "[i]t can never be less than the most painful of our duties to pass on capital cases, and the more so in a case such as this one[,]" Eddings, 455 U.S. at 127, 102 S.Ct. at 883, 71 L.Ed.2d at 19 (Burger, C.J., dissenting), surely applies here. Nevertheless, despite counsel's articulate and thorough presentation of defendant's contentions, our review of the transcript reveals that defendant was given a fair trial and provided with a vigorous defense. The jury's conclusion of guilt is sustained by substantial evidence. Furthermore, the jury deliberated for about seven hours before returning its death sentence recommendation, and Judge Puckett's sentencing memorandum admirably reveals thoughtful consideration of the factors relevant to the sentence. In sum, the conviction and imposition of capital punishment comport with Constitutional and statutory requirements as interpreted by the United States Supreme Court and by this Court.
The conviction and death sentence are affirmed, and this case is remanded to the Wayne Circuit Court, which is instructed to set a date for the death sentence to be carried out, and to conduct any further proceedings.
GIVAN, C.J., and PIVARNIK and SHEPARD, JJ., concur.
DeBRULER, J., concurs and dissents with separate opinion.