v.
STATE OF INDIANA, respondent.
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Supreme Court case no.
49S00-0409-SD-423
Marion Superior Court case no.
49G05-8911-CF-131401
A jury unanimously found Holmes guilty of two intentional murders, an attempted murder
and a robbery committed in 1989. The jury did not reach a
unanimous recommendation on the State’s request for a death sentence in the penalty
phase of the trial. The trial court imposed the death sentence on
the basis of two aggravating circumstances that rendered Holmes eligible for the death
penalty. See Ind. Code. § 35-50-2-9(b)(1) & (b)(8) (intentional killing during a robbery
and the commission of multiple murders). The four convictions and the death
sentence were affirmed on direct appeal in Holmes v. State, 671 N.E.2d 841
(Ind. 1996), cert. denied, 522 U.S. 849 (1997). Collateral post-conviction relief was
ultimately denied in State v. Holmes, 728 N.E.2d 164 (Ind. 2000), cert. denied,
532 U.S. 1067 (2001). The federal district court denied a petition for
a writ of habeas corpus in Holmes v. Anderson, No. IP00-1477-C-M/L (S. D.
Ind. Sept. 2, 2004), appeal docketed Holmes v. McBride, No. 04-3549 (7th Cir.
2004).
Holmes has already availed himself of our rule that permits a person convicted
of a crime in an Indiana state court one collateral review of the
conviction and sentence in a post-conviction proceeding. See Ind. Post-Conviction Rule 1.
Holmes is now requesting permission to initiate a second, or “successive” post-conviction
proceeding. We will authorize the filing of a successive petition “if
the petitioner establishes a reasonable possibility that the petitioner is entitled to post-conviction
relief.” P-C.R. 1, § 12.
Holmes claims he is entitled to relief from his death sentence because of
changes made in 2002 to Indiana’s death penalty statute.
He cites Saylor v. State, 808 N.E.2d 646 (Ind. 2004), as support for
his claim. Saylor had been sentenced to death for a 1992 murder
despite his jury’s unanimous recommendation against a death sentence. Then in 2002,
Indiana’s statute was amended and no longer allows a person to be sentenced
to death if the jury unanimously recommends against it. See I.C. §
35-50-2-9(e) (2004). We revised Saylor’s death sentence to a term of years
after concluding it was “not appropriate to execute a person who was convicted
and sentenced through a procedure that has now been substantially revised so the
same trial today would no longer render the defendant eligible for the death
penalty.” 808 N.E.2d at 647.
The circumstances for Holmes are different. The jury at his trial did
not return a unanimous recommendation on the death sentence. Indiana law still
authorizes the sentencing judge to impose a death sentence if the jury cannot
agree on a sentencing recommendation. See I.C. § 35-50-2-9(f) & (g)
(2004) (the current version) and I.C. § 35-50-2-9(f) & (g) (Supp. 1989) (the
version in effect when Holmes committed the murders). We have previously determined
that such a scheme is not inconsistent with the requirements for unanimous jury
decisions announced by the United States Supreme Court in Ring v. Arizona, 536
U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
See State v. Barker, 809 N.E.2d 312, 316 (Ind. 2004); Ritchie v. State,
809 N.E.2d 258, 266 (Ind. 2004) (“[T]he federal constitution requires that eligibility for
the death penalty be determined by the jury beyond a reasonable doubt, but
it does not require that the decision whether to impose death be made
by the jury, and it does not require the weighing, whether by judge
or jury, to be under a reasonable doubt standard.”). Thus, Saylor does
not establish a reasonable possibility that Holmes is entitled to relief.
Holmes cites another change in the statute as a basis for relief.
This change requires the trial court to “provide a special verdict form for
each aggravating circumstance alleged” on which the jury will indicate whether it found
an aggravating circumstance beyond a reasonable doubt. See I.C. § 35-50-2-9(d); Barker,
809 N.E.2d at 316. Holmes argues the new verdict-form requirement should be
applied to him; otherwise, he asserts, there is no “documentation” of the jury’s
findings regarding aggravating circumstances that made Holmes eligible for a death sentence.
There is documentation in this case, however. The jury returned a verdict
in the guilt phase of the trial finding Holmes guilty of two intentional
murders and robbery. See Holmes, 671 N.E.2d at 845. This unanimous
verdict in the guilt phase necessarily establishes that the jury found, beyond a
reasonable doubt, aggravating circumstances rendering Holmes eligible for the death penalty. See
I.C. § 35-50-2-9(b)(1) & (8); accord Wrinkles v. State, 776 N.E.2d 905, 907
(Ind. 2002) (holding that a jury’s verdict in the guilt phase, finding petitioner
guilty of the three murders, necessarily means the jury found beyond a reasonable
doubt that petitioner had committed more than one murder).
Similarly, the facts established by the unanimous guilt-phase verdict distinguish this case from
one cited in the dissent, Bostick v. State, 773 N.E.2d 266 (Ind. 2002).
Bostick’s jury unanimously found her guilty of killing three people. In
requesting a sentence pursuant to Indiana Code § 35-50-2-9, the State alleged the
aggravating circumstance that the victims were under the age of twelve. See
I.C. § 35-50-2-9(b)(12). The jury was unable to reach a unanimous recommendation
on the sentence, but the trial court nonetheless found the State had proved
the aggravating circumstance beyond a reasonable doubt and sentenced Bostick to life without
parole. In her direct appeal, Bostick argued the enhanced sentence was invalid
because there was no jury finding on the children’s ages as required by
Apprendi. Under the circumstances in Bostick’s case, we agreed. See Bostick,
773 N.E.2d at 273 (holding "[b]ecause of the absence of a jury determination
that qualifying aggravating circumstances were proven beyond a reasonable doubt, we must therefore
vacate the trial court's sentence of life without parole.").
For Holmes, however, the situation is different. The aggravating circumstances charged in
his case were intentional murders during a robbery and multiple murders. By
finding him guilty of intentional multiple murders and robbery, the jury necessarily found
the aggravating circumstances beyond a reasonable doubt. Thus, to the extent Apprendi’s
requirement—“any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt”—applies to Holmes, the requirement was met.
We conclude Holmes has not established a reasonable possibility that he is entitled
to post-conviction relief on the claim submitted with respect to changes to Indiana’s
death penalty statute, and decline to authorize the filing of a successive petition
for post-conviction relief. As indicated, Holmes is currently seeking additional review
of his convictions and sentence in the federal courts.
The Clerk is directed to send a copy of this order to Eric
D. Holmes, n/k/a Koor An Nur of Mary Katie Brown; to the Clerk
for the U.S. Seventh Circuit Court of Appeals; to counsel of record; and
to West Publishing for publication in the bound volumes of this Court’s decisions.
Done at Indianapolis, Indiana this 7th day of January, 2005.
/s/ Randall T. Shepard
Chief Justice of Indiana
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with opinion in which Rucker, J., concurs.
Sullivan, Justice, dissenting.
I respectfully dissent from the Court’s order denying Petitioner Koor An Nur of
Mary Katie Brown (formerly known as Eric D. Holmes) permission to file a
successive petition for post-conviction relief.
This Court will authorize the filing of a successive petition for post-conviction relief
if the petitioner establishes a reasonable possibility that the petitioner is entitled to
post-conviction relief. Ind. Post-Conviction Rule 1(12)(b). I believe Petitioner’s situation is
sufficiently similar to that of Saylor v. State, 808 N.E.2d 646 (Ind. 2004),
that there is a reasonable possibility that he would receive post-conviction relief.
There are the differences in Petitioner’s and Saylor’s situations that the Court’s order
identifies, to be sure. But one of the themes of the Saylor
opinion that comes through loud and clear is the relative uniqueness of Saylor’s
position – that part of the reason that it would have been improper
to execute him was that he was one of only three people on
death row whose jury had recommended against death. Petitioner’s situation is almost
as unique. Indeed, the Saylor opinion identified Petitioner by name as being
only one of four people on death row (the others being the three
just mentioned) whose juries had not recommended a sentence of death. Id.
at 650. Put differently, assuming the other two individuals in the same
class as Saylor receive the same relief, Petitioner will be the only person
on Indiana’s death row whose jury has not recommended a sentence of death.
As to the 2002 amendments to the Indiana death penalty statute, it is
true that the statute still authorizes the sentencing judge to impose a death
sentence if the jury cannot agree on a sentencing recommendation. But I
do not think this package is wrapped tightly enough to say that there
is no reasonable possibility that Petitioner is entitled to post-conviction relief. This
is because, even though the statute still permits a judge to impose a
death sentence in the face of a penalty phase “hung-jury,” the statute operates
differently than it did prior to the United States Supreme Court’s decisions in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536
U.S. 584 (2002). In Apprendi, the Court held that the Sixth Amendment
to the U.S. Constitution requires that “any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” 530 U.S. at 490. Ring
made it clear that Apprendi applies to capital sentencing schemes. 536 U.S.
at 609.
As we pointed out in State v. Barker, Apprendi and Ring require “a
penalty phase jury [to] return a verdict finding one or more aggravators proven
beyond a reasonable doubt” before a sentencing judge can impose a sentence of
death in the face of a penalty phase “hung-jury.” Barker, 809 N.E.2d
at 316. No such finding was made in Petitioner’s case.
Indeed, in Bostick v. State, 773 N.E.2d 266, 273 (Ind. 2002), this Court’s
only post-Ring penalty phase hung-jury case, we held that because the “jury during
the sentencing phase was unable to reach a unanimous recommendation, and thus there
was no jury determination finding the qualifying aggravating circumstances beyond a reasonable doubt,”
the judge-imposed sentence of life-without-parole violated Apprendi and Ring.
The Court’s order is correct when it says that we have held that
a jury’s guilt phase verdict can serve to establish the jury finding of
the existence of the requisite aggravating circumstances to meet the requirements of Apprendi
and Ring. But every time we have affirmed a sentence on that
basis, it has been in a case where the jury unanimously recommended a
sentence of death or life without parole. See Clark v. State, 808
N.E.2d 1183, 1196 (Ind. 2004); Williams v. State, 793 N.E.2d 1019, 1028 (Ind.
2003); Brown v. State, 783 N.E.2d 1121, 1126 (Ind. 2003); Wrinkles v. State,
776 N.E.2d 905, 907-08 (Ind. 2002); Obadyah Ben-Yisrayl v. State, no. 45S00-0112-SD-636, unpublished
"Order Concerning Successive Post-Conviction Relief" (Ind. Feb. 15, 2002). The Court’s order
in this case is the first time this Court has explicitly concluded that
the requirements of Apprendi and Ring have been met by a jury’s guilt
phase verdict where there was a hung-jury at the penalty phase.
While Apprendi and Ring do not apply to Petitioner’s case because his direct
appeal was final before they were decided, see Schriro v. Summerlin, 124 S.
Ct. 2519, 2526 (U.S. 2004), the fact that Petitioner would not be sentenced
to death today, combined with his unique position as described above, is sufficient
for me to conclude that there is at least a reasonable possibility that
he is entitled to post-conviction relief.
I would grant Petitioner’s request to file a successive petition for post-conviction relief.
Rucker, J., concurs.