Attorney for Appellant Attorneys for Appellee
C. Robert Rittman Steve Carter
Marion, Indiana Attorney General of Indiana
Nicole M. Schuster Deputy Attorney General
Office of Attorney General
Appeal from the Grant Superior Court, No. 27D01-0202-MR-28
The Honorable Gary L. Thompson, Judge
February 2, 2005
A jury found appellant Frederick A. Laux guilty of murder, felony murder
and burglary resulting in bodily injury. The court sentenced him to life
without parole, plus twenty additional years for the burglary count. On appeal,
Laux makes one claim warranting relief: that a no-contact order was improperly
incorporated into his sentence. We otherwise affirm.
The next day, Heidi and Laux agreed to attend a dance sponsored by
Heidis employer. Laux had the daughters for weekend visitation and brought them
with him to the dance. During the dance, Laux became increasingly suspicious
that Heidi was involved with a co-worker. Laux left the dance around
8:00, went home, and played cards with his daughters before going to bed.
Around 3 a.m. the following morning, Laux awoke and decided to fix
Heidi. He dressed in two pairs of sweatpants, a sweatshirt, gloves, a
hat, and a ski mask. He collected a flashlight and a crowbar
and ran to Heidis house.
Upon arrival, Laux used the crowbar to pry open a coal chute and
gain entrance to Heidis house. He entered the basement through the chute
and made his way upstairs. Laux proceeded to Heidis bedroom, struck her
three times with the crowbar, strangled her, and left. She died from
her injuries within twenty minutes.
The State charged Laux with murder,
See footnote felony murder,See footnote and burglary resulting in bodily
injury.See footnote It later requested a sentence of life in prison without parole.
After a three-day trial, the jury found Laux guilty on all counts
and recommended life in prison without parole. The trial court merged Lauxs
murder and felony murder convictions and sentenced him to life in prison without
parole for the murder and a consecutive term of twenty years for the
burglary. It also ordered that Laux was to have no contact with
Indianas statutory sentencing scheme specifies the penalties for various classes of offenses and
grants trial judges some discretion. While the judge is vested with broad
discretion in sentencing, he must act within statutorily prescribed limits. Douglas v.
State, 464 N.E.2d 318, 320 (Ind. 1984).
The trial court sentenced Laux in accordance with the statutes governing the crimes
he committed. The general penalty for murder is a fixed term at
fifty-five (55) years, with not more than ten (10) years added for aggravating
circumstances or not more than ten (10) years subtracted for mitigating circumstances; in
addition, the person may be fined not more than ten thousand dollars ($10,000).
Ind. Code Ann. § 35-50-2-3(a) (West 1998). Indianas death penalty statute,
Indiana Code § 35-50-2-9, authorizes either a sentence of death or life in
prison without parole upon satisfying the requirements of the statute. Similarly, the code
declares that the penalty for burglary as: a fixed term of ten (10)
years, with not more than ten (10) years added for aggravating circumstances or
not more than four (4) years subtracted for mitigating circumstances; in addition, he
may be fined not more than ten thousand dollars ($10,000). Ind. Code.
Ann § 35-50-2-5 (West 1998). By their own terms, these statutes do
not authorize imposition of a no-contact order as part of an executed sentence.
Had the court suspended part of the sentence for either crime,
of course, it could certainly have conditioned that suspension on no contact.
To be sure, the trial court was hardly without the power to grant
protection for Heidis family and the children. Indianas statutes provide a
mechanism by which a victim may obtain a no-contact order. The legislature
has created a variety of protective arrangements, recently revised to meet the various
circumstances where a court order may be useful. See Ind. Code Ann.
§ 5-2-9-5 (West 1998) (listing various forms of protection, along with statutory cites.)
The Double Jeopardy Clause states that no person shall be subject for the
same offence to be twice put in jeopardy of life or limb.
U.S. Const. amend. V. This clause yields three protections:
(1) protection from reprosecution for the same offense after an acquittal; (2)
protection from reprosecution for the same offense after conviction; and (3) protection from
multiple punishments for the same offense. Kennedy v. State, 674 N.E.2d 966,
967 (Ind. 1996) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)
(overruled on other grounds)).
Laux makes what we understand to be two separate arguments under the rubric
of double jeopardy.
First, Laux argues that his conviction for both felony murder and the underlying
felony violates double jeopardy because it effectively punishes him twice for the same
conduct. (Appellants Br. at 28-30). Quoting from Kennedy, Laux argues that a
conviction and sentence for both felony murder and the accompanying felony violates double
jeopardy because the conviction for murder while in the commission of a felony
could not occur without proof of the accompanying felony. Id. at 967.
Had Laux in fact been convicted and sentenced for felony murder, he would be entitled to relief. This is not what occurred. The trial court merged the felony murder conviction and the intentional murder conviction and entered judgment only for the latter. Under these circumstances, there is no double jeopardy violation. Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (stating that a jury verdict on which the court did not enter judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic.); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996) (citing to six other cases reaching the same conclusion); Moore v. State, 652 N.E.2d 53, 59-60 (Ind. 1995). See footnote
Second, Laux argues that his sentence violates double jeopardy because the burglary was considered as an aggravating circumstance in the sentencing under Ind. Code § 35-50-2-9 (West 1998). (Appellants App. 28-30). We disagree.
In Overstreet v. State, 783 N.E.2d 1140 (Ind. 2003), we observed that the
facts necessary to establish the (b)(1) aggravating circumstance serve to narrow the eligibility
for the penalty and are not identical to the elements of the crime.
Id. at 1165 (citing West v. State, 755 N.E.2d 173, 186 (Ind. 2001)).
Because the felonies listed in Ind. Code § 35-50-9-2(b)(1) are not elements
of the crime, but rather a list of permissible aggravators, they essentially serve
a function analogous to sentencing enhancements. The statute thus indicates only what
felonies are permissible to consider in imposing life without parole.
We have already implicitly accepted that sentencing aggravators do not constitute double jeopardy
violations. In Bivins v. State, 642 N.E.2d 928 (Ind. 1994), we let
stand both a death sentence, and a conviction and sentence for robbery that
was used as an aggravator in sentencing Bivins under the death penalty statute.
Id. at 949. In Bivins, the only double jeopardy violation we found
to exist was the sentence and conviction for theft that was, itself, a
lesser charge contained in the robbery conviction. Id.
The Supreme Court has repeatedly held that courts may consider past and concurrent
criminal conduct in enhancing sentences. In Witte v. United States, 515 U.S.
389 (1995), the Court reiterated that the use of evidence of related criminal
conduct to enhance a defendants sentence for a separate crime within authorized statutory
limits does not constitute punishment for that conduct within the meaning of the
Double Jeopardy Clause. Id. at 399. In so doing, the Court upheld
the taking [of] the circumstances surrounding a particular course of criminal activity into
account in sentencing for a conviction arising therefrom. Id. at 400. Similarly,
the Court has upheld the consideration in sentencing of conduct underlying criminal charges
of which the defendant was acquitted. See, e.g., United States v. Watts, 519
U.S. 148, 152-54 (1997) (per curiam).
See footnote In the context of double jeopardy, then,
Ind. Code § 35-50-9-2(b)(1) does nothing more than restrict the scope of the
trial courts discretion in considering the circumstances surrounding a crime to the examination
of those specifically listed in the statute.
We acknowledge that
Woods v. State, 547 N.E.2d 772 (Ind. 1989) concluded that
a sentence for robbery violated double jeopardy when it was used as an
aggravator to sentence the defendant to death. Id. at 795. However, Woods
reached this conclusion based on the premise that the commission of a robbery
is an essential element of the aggravating circumstance of committing an intentional killing
in the course of committing a robbery. Id. We have since rejected
this view of the aggravating factors listed in Ind. Code § 35-50-2-9, see,
Overstreet, 783 N.E.2d at 1164-65, and therefore believe that insofar as it relates
to double jeopardy, Woods was flawed.
Because taking into account conduct related to the offense of conviction in sentencing
is not the same thing as holding the defendant criminally culpable for that
conduct, United States v. Dawn, 129 F.3d 878, 884 (7th Cir. 1997), and
because the (b)(1) aggravators are not elements of a crime, we conclude that
the use of the class B burglary conviction as an aggravating factor in
sentencing Laux to life without parole, as well as the sentencing of Laux
to life without parole and twenty years for the burglary, did not violate
the principles of double jeopardy.
In his supplemental brief, Laux requests that we revise his sentence of life
in prison. (Appellants Supp. Br. at 8-9). In 2002, the General Assembly
altered in important ways the relative roles of judge and jury under Indiana
Code § 35-50-2-9, effective for sentencings conducted after June 30, 2002. We
have not yet resolved the effect of these amendments on the sentencing role
of the trial judge, the present requirements for sentencing orders, or the standard
of appellate review. The parties have not argued any issues arising
from the 2002 amendments. We thus reserve judgment on such questions and
pursuant to paragraph number 3 of our remand order, we review Lauxs claim
on the merits.
Indiana Code § 35-50-9-2(l) provides that before life imprisonment without parole may
be imposed as a sentence the jury must find that: (1) the state
has proved beyond a reasonable doubt that one (1) of the aggravating circumstances
listed in subsection (b) exists: and (2) any mitigating circumstances that exist are
outweighed by the aggravating circumstance or circumstances.
On remand, the trial courts sentencing order clearly identifies that one of the
aggravating factors listed in subsection (b) was proven beyond a reasonable doubt. Specifically,
the trial court found that the state had proven the aggravating factor provided
in Ind. Code § 35-50-9-2(b)(1)(B): that the defendant committed the murder by intentionally
killing the victim while committing or attempting to commit . . . .
Burglary. (Appellants Supp. App. at 7)(the court specifically found [t]hat the state proved
beyond a reasonable doubt that the Defendant committed the murder while committing burglary.).
The trial court further stated that the State had proven that the
killing was intentional. (Appellants Supp. App. at 8-9). This is sufficient to
satisfy the general requirement that the state prove beyond a reasonable doubt the
existence of at least one aggravating factor.See footnote
As for the courts finding that the aggravating factor outweighs any mitigating factors,
Laux contends that the single aggravator charged was insufficient to support his sentence
given the finding of a mitigating factor.See footnote (Appellants Supp Br. at 5-8).
Specifically, Laux argues that his lack of significant prior criminal history outweighs the
Id. We do not agree.
Although the trial court did find as a mitigating factor that Laux lacked
a significant prior criminal history (Apppellants Supp. App. at 9), the court was
under no obligation to assign that factor any particular weight. As we
have previously held, it is the decision of the trial court to decide
what weight mitigating factors are to be given. Kingery v. State, 659 N.E.2d
490, 498 (Ind. 1995). See also Bunch v. State, 697 N.E.2d 1255,
1258 (Ind. 1998). In this case, the trial court considered Lauxs lack
of prior criminal history, but in balancing the aggravating factor with this mitigating
factor concluded that the breaking and entering of the victims home at approximately
3:00 a.m. with the intent to commit battery with a deadly weapon, is
so onerous that it completely outweighs the mitigating circumstance. (Appellants Supp. App. at
9). In short, as Justice Boehm once wrote, the trial court did
what it was entitled to do, it considered [Lauxs] lack of prior criminal
history but declined to accord it significant weight. Bunch, 697 N.E.2d at 1258.
The record supports the trial courts conclusion that the aggravator outweighed any mitigating
circumstances. Laux woke up in the middle of the night believing that
he had to fix murder his ex-wife. In order to
accomplish that goal, he dressed himself in dark clothes and a put on
a dark face mask. He then ran to his ex-wifes home and
broke into her home through the basement in the dead of night.
Laux entered her bedroom where she was sleeping and struck her three times
in the head with a crowbar before he finally strangled her. Laux
then returned home and took steps to conceal his crime, both from his
daughters, whom he had left alone in order to commit the murder, and
Given the brutality of the crime, a brutality which Lauxs counsel appropriately acknowledges,
(Appellants Supp. Br. at 8), we are not persuaded that the trial court
and the jury were wrong in concluding that the high culpability embodied in
the single aggravator outweighed Lauxs lack of prior criminal history.
Laux also requests that we reduce his sentence in order to bring it
into line with the interests of justice. (Appellants Supp. Br. at 9).
Indiana Appellate Rule 7(B) permits this Court to revise a sentence authorized by
statute if, after due consideration of the trial court's decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.
In making this request, Laux points out that he has no prior record of any criminal offenses or history of violent acts, that he has been consistently employed since of the age of 15, that he performed well in school and received a degree from Purdue University, and that this crime is an aberration on an otherwise responsible, caring, peaceful, hardworking, and honest life. (Appellants Supp. Br. at 9). Laux requests that we give consideration to his expression of remorse at the sentencing hearing. Id.
Although we agree that Lauxs lack of criminal history, work ethic, educational achievement, and remorse have value; we cannot ignore the brutality of the crime that he committed. In light of all of the circumstances surrounding Lauxs crime, we are not persuaded that the sentence is inappropriate.
Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with separate opinion.
Rucker, J., dissents from Part I of the majority opinion
for the reasons expressed in Ritchie v. State, 890 N.E.2d
258, 271-74 (Ind. 2004) (Rucker, J., dissenting in part).
In all other respects I fully concur.
Sullivan, Justice, dissenting.
I respectfully dissent in two respects from the Courts opinion.
I turn first to consideration of the trial courts decision.
When imposing a sentence of life without parole, the same heightened standards used
in death penalty cases apply. Ajabu v. State, 693 N.E.2d 921, 936
(Ind. 1998) (The statute provides that life without parole is imposed under the
same standards and is subject to the same requirements.), after remand, 722 N.E.2d
339 (Ind. 2000); see also Ind.Code § 35-50-2-9 (2004). Because a sentence
of life in prison without parole is imposed under the same standards as
the death penalty, we require the same specificity from a trial court sentencing
a defendant to life in prison without parole as we would a court
sentencing a person to death. Ajabu, 693 N.E.2d at 936. Neither
Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530
U.S. 466 (2000) nor recent statutory changes
1 lessen these r
equirements. Brown v.
State, 783 N.E.2d 1121, 1127 (Ind. 2003).
As the Court points out, after briefing on this case was completed, we
remanded this case to the trial court for a new sentencing order because
the one originally entered by the trial court did not comply with these
requirements. As the Court also points out, the trial courts revised sentencing
order is sufficient to satisfy the general requirement that the trial court find
that the state prove beyond a reasonable doubt the existence of at least
one aggravating circumstance. It is certainly the case that a proper statutory
aggravating circumstance was charged and submitted to the jury (the defendant committed murder
by intentionally killing the victim while committing burglary). The jury found that
the State had met its burden of proof beyond a reasonable doubt.
I conclude that the State has proven beyond a reasonable doubt that at
least one of the aggravating circumstances listed in the statute exists. See
Ind. Code § 35-50-2-9(k)(1) (1998). As such, I believe the sentence imposed
is authorized by law. Furthermore, given the nature of Lauxs attack on
Heidi, I would assign this aggravating circumstance weight in the highest range.
However, in my view, the mitigating circumstances present in this case are such
as to warrant a sentence less than life without parole. The trial
court itself found that Laux had no significant history of prior criminal conduct.
Indeed, there is absolutely nothing of record to suggest that Laux ever
had any difficulty with the law whatsoevereither as a juvenile or an adult.
In my view, absence of criminal history is the weightiest of all
mitigating circumstances. One who has conformed his or her conduct to the
dictates of our society is entitled to consideration upon committing a first offense.
Laux maintained a blemish-free legal history throughout his childhood and adulthood.
The record indicates that following graduation from high school and Purdue University, Laux
was hard-working, honest, and responsible. Under these circumstances, I would assign weight
to the absence of any prior criminal history in the highest range.
Laux clearly was unable to deal with the separation from Heidi and must
face severe consequences as a result of his terrible, violent behavior. It
appears that he recognizes that fact and has expressed sincere remorse. The
aggravating circumstance here is weighty indeed but in my view does not outweigh
the mitigating circumstance. In light of the nature of the offense and
character of the offender, I would revise the sentence imposed to 65 years