Attorney for Appellant Attorneys for Appellee
Mark A. Bates Steve Carter
Appellate Public Defender Attorney General of Indiana
Crown Point, Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Appeal from the Lake Superior Court, No. 45G01-9809-CF-00187
The Honorable Richard W. Maroc, Judge
On Direct Appeal
February 26, 2004
Brian McCarty owns B & R Motors, a used car lot located in
Lake Station. John Fiss worked for McCarty as a salesman and was
known for wearing flashy jewelry, including necklaces and gold and diamond rings.
At approximately one or two oclock in the afternoon of July 7, both
McCarty and Fiss were present at the car lot. As McCarty was
preparing a bank deposit, which consisted of about $750.00 placed in a small
zipper bank bag, Dumas and Irving walked into the small office located on
the lot. Irving inquired about a car, and when McCarty accompanied her
to the lot Irving produced a handgun and pointed it at McCartys head.
Realizing something was coming down McCarty ran toward the office to warn
Fiss. Id. at 79. As McCarty did so he heard gunfire.
Abandoning the idea of going inside the office, McCarty then ran toward
his truck. Looking over his shoulder McCarty saw Dumas pointing a handgun
in his direction and saw a flash from the gun. A bullet
struck McCarty, and he stumbled to the ground.
Immediately before shooting McCarty, Dumas was in the office where two customers had
arrived on the scene. Displaying a handgun, Dumas demanded money from Fiss.
The record is unclear whether Fiss responded, but in any event Dumas
fired several shots striking Fiss in the face. Shortly thereafter Irving entered
the office and began rummaging through desk drawers eventually declaring I found it.
I got the bag. Id. at 122. Dumas then said,
[G]et those damn rings because theyre worth a lot of money. Id.
The pair then fled the scene. The record shows McCarty suffered
severe internal injuries from the shooting, was in a coma for twenty-seven days,
and is paralyzed from the waist down. Fiss died as a result
of gunshot wounds to the head and neck.
Dumas was charged with murder, felony murder, and robbery as a Class A
felony. He was also alleged to be a habitual offender. In
addition the State sought life imprisonment without parole alleging that Dumas intentionally killed
Fiss while committing a robbery. Irving was charged with felony murder and
robbery as a Class A felony. Under the terms of a plea
agreement Irving pleaded guilty to felony murder and was sentenced to fifty years
imprisonment. She testified against Dumas at trial. The jury found Dumas guilty
as charged and also adjudged him a habitual offender. In addition the
jury recommended life imprisonment for the murder conviction. Following a sentencing hearing,
in an order dated November 1, 2001, the trial court followed the jurys
recommendation. Also, the trial court sentenced Dumas to thirty years imprisonment for
the robbery conviction enhanced by an additional thirty years for the habitual offender
adjudication. The sentences were ordered to be served consecutively. Because of
double jeopardy concerns, the trial court vacated the conviction for felony murder and
entered no sentence thereon. Dumas appealed to this Court raising four issues
for review, one of which was that the sentencing order was deficient.
The State conceded the point, and we remanded this cause to the trial
court for a new sentencing order. On October 22, 2002, the trial
court issued a new sentencing order once again imposing life imprisonment. This
direct appeal ensued in due course.
When an improper argument is alleged to have been made, the correct procedure
is to request the trial court to admonish the jury. Brewer v.
State, 605 N.E.2d 181, 182 (Ind. 1993). If the party is not
satisfied with the admonishment, then he or she should move for mistrial.
Id. Failure to request an admonishment or to move for mistrial results in
waiver. Id. Here, although Dumas objected to the States comments, he
did not request an admonishment
See footnote nor did he move for mi
issue is thus waived for review.
Waiver notwithstanding we address the merits of Dumas claim. Dumas did not
take the stand in his own defense. The Fifth Amendment privilege against
self-incrimination is violated when a prosecutor makes a statement that is subject to
reasonable interpretation by a jury as an invitation to draw an adverse inference
from a defendants silence. Moore v. State, 669 N.E.2d 733, 739 (Ind.
1996). However, statements by the prosecutor concerning the uncontradicted nature of the
States evidence do not violate the defendants Fifth Amendment rights. Martinez v.
State, 549 N.E.2d 1026, 1028 (Ind. 1990). Rather, comment on the lack
of defense evidence is proper so long as the State focuses on the
absence of any evidence to contradict the States evidence and not on the
accuseds failure to testify. Id.; see also Timberlake v. State, 690 N.E.2d
243, 254 (Ind. 1997) (observing [d]uring argument, the prosecutor may argue and comment
upon the evidence presented at trial. . . . A comment based upon
uncontradicted evidence is not equivalent to an impermissible comment upon a defendants decision
not to testify). We conclude the deputy prosecutors statements were well within
the permissible range of fair commentary on the evidence or lack thereof and
were not a comment on Dumas right not to testify. For this
reason alone Dumas argument fails.
His argument fails for another reason as well. Prosecutors are entitled to
respond to allegations and inferences raised by the defense even if the prosecutors
response would otherwise be objectionable. Brown v. State, 746 N.E.2d 63, 68
(Ind. 2001). Here, counsel for Dumas argued vehemently that a key States
witness was fabricating her testimony and covering for her boyfriend. The prosecutor
was entitled to counter with argument that the witness was not lying and
had no reason to do so.
Habitual Offender Finding
Hearsay During the Penalty Phase
In its presentation, counsel for the defense also called no witnesses. Rather
he proceeded with what the court characterized as a sentencing argument that included
reading portions of depositions from several witnesses. Id. at 676. Through
the use of depositions the defense attempted to advance the argument that because
of inconsistencies in the testimony of various witnesses, the substantial involvement of Irving,
and the States lack of physical evidence connecting Dumas to the murder, there
was residual doubt
See footnote that Dumas was the shooter and thus a life se
was not appropriate.
Before the State proceeded with its rebuttal argument, and outside the hearing of
the jury, the following exchange occurred:
[Deputy Prosecutor]: I believe before we started [defense counsel] indicated this was a sentencing phase, therefore hearsay was admissible, reliable hearsay. Is that accurate?
[Deputy Prosecutor]: I have two pieces of hearsay I would like to elicit myself.
Id. at 695. One of the items of hearsay was a statement made by Dumas cellmate to a third party. According to the third party, the cellmate alleged Dumas confessed to the murder and robbery. The second was a written statement by Edrick Wheeler, the person who was alleged to have driven Dumas and Irving to the crime scene. Although listed as a witness in the States discovery response, Wheeler could not be located before trial for questioning by the defense, nor did he testify at trial. However at some point Wheeler gave a sworn statement to an investigating officer. Defense counsel objected to both statements on the grounds of hearsay. The trial court sustained the objection with respect to the cellmates statement but overruled the objection concerning Wheelers statement. The State proceeded with its rebuttal that included reading portions of the Wheeler statement. In essence his statement corroborated Irvings guilt phase testimony that Wheeler drove Dumas and Irving to a location near the car lot.
Hearsay is a statement made out-of-court that is offered into evidence to prove
the truth of the matter asserted. Ind. Evidence Rule 801(c); Kubsch v.
State, 784 N.E.2d 905, 919 (Ind. 2003). It is clear that Wheelers
statement was hearsay. As such it was not admissible at trial unless
it fell within some exception to the hearsay rule. Although technically not
an exception to the hearsay rule, Indiana Evidence Rule 101(c) provides in pertinent
The rules [of evidence], other than those with respect to privileges, do not apply in the following situations . . . [p]roceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.
(emphasis added); see also Letica v. State, 569 N.E.2d 952, 957 (Ind. 1991) (observing that strict rules of evidence do not apply in sentencing hearings and that hearsay evidence . . . is admissible). In this case the trial court apparently accepted Dumas argument that the penalty phase of a life without parole trial was in the nature of a sentencing proceeding and thus allowed Dumas to introduce hearsay testimony. Although the record is unclear, apparently the trial court allowed the State to introduce hearsay for the same reason.
A sentence of life without parole is subject to the same statutory standards and requirements as the death penalty. Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998). Under the death penalty statute, following the completion of the guilt-determination phase of the trial and the rendering of the jurys verdict, the trial court reconvenes the jury for the penalty phase. Brown v. State, 783 N.E.2d 1121, 1127 (Ind. 2003). As with capital punishment, before life imprisonment can be imposed, the State must prove beyond a reasonable doubt at least one aggravating circumstance listed in subsections (b)(1) through (b)(16) of the statute. See I.C. § 35-50-2-9; see also Bivins v. State, 642 N.E.2d 928, 955-56 (Ind. 1994). Once the jury deliberates and has made its recommendation, the jury is dismissed.
Indiana Evidence Rule 101(c) makes clear that with the exception of grand jury
See footnote the proceedings in which the rules of evidence do not apply involve
those where evidence is presented to a trial judge alone without the intervention
of a jury.
Id. The rationale for exempting certain proceedings, including
sentencing, from the rules of evidence is to provide the trial judge with
the widest range of relevant information in reaching an informed decision. We
presume the trial judge is aware of and knows the law, and considers
only evidence properly before the judge in reaching a decision. Emerson v.
State, 695 N.E.2d 912, 917 (Ind. 1998); Birdsong v. State, 685 N.E.2d 42,
47 (Ind. 1997). By contrast, where the guilt-determination phase of a capital
trial is presented to a jury, the penalty phase is also presented to
a jury. Like the guilt-determination phase, the penalty phase of a capital
trial requires the introduction of evidence with the burden on the State to
prove its case beyond a reasonable doubt. Despite the statutes characterization of
the penalty phase as a sentencing hearing, see I.C. § 35-50-2-9(d), this phase
is nonetheless in the nature of a trial to which the rules of
Of course our evidentiary rules are subject to limitations imposed by applicable provisions
of the Indiana Constitution as well as the Federal Constitution. See, e.g.,
Green v. Georgia, 442 U.S. 95, 97 (1979) (declaring that the States hearsay
rule to the contrary notwithstanding, the exclusion of certain hearsay testimony offered by
the defendant in the penalty phase of a capital trial violated the Due
Process Clause of the Fourteenth Amendment). However, that is not to say
that the rules of evidence do not apply in the penalty phase of
a capital trial. The facts supporting eligibility for the death penalty or
life without parole must be found beyond a reasonable doubt. And in a
jury trial, the jury must find these facts. See Ring v. Arizona,
536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S. 466 (2000).
In sum, we conclude that contrary to the trial courts determination, the rules
of evidence are applicable in the penalty phase of a capital trial.
Thus, by allowing the State to introduce hearsay testimony during this phase, the
trial court erred.
However, the error was invited. The court apparently allowed the introduction of the out-of-court statement based on Dumas contention that the penalty phase of trial was essentially a sentencing hearing in which hearsay is admissible. A party may not invite error and then later argue the error supports reversal. Kingery v. State, 659 N.E.2d 490, 494 (Ind. 1995). Error invited by the complaining party is not reversible error. Id. Accordingly Dumas is entitled to no relief on this issue.
Life Imprisonment Without Parole
Upon remand the trial court entered a revised sentencing order that provides in
The court finds that the aggravating circumstance alleged by the state, namely that the defendant did intentionally kill the victim in Count I while committing or attempting to commit robbery was proved beyond a reasonable doubt.
The evidence at trial showed that the defendant and his accomplice entered the used car business of the victims in Counts I and III with the intent to commit a robbery. Each was armed with a handgun. The defendant demanded money from the victim in Count I, then shot him several times at close range. The defendant also shot the victim in Count III, who is now paralyzed. A charge of Attempted Murder was not filed as to that victim, but could have been sustained by the evidence. The defendant fired his weapon at another man who was present, but who escaped.
The evidence proved beyond a reasonable doubt that the defendant was willing to kill anyone present to facilitate the robbery. The jury, after being instructed that the state must prove the aggravating circumstance beyond a reasonable doubt and that any mitigating circumstances are outweighed by aggravating circumstance, returned a Verdict that recommends Life Imprisonment Without Parole be imposed upon the defendant. The court has examined each of the mitigating circumstances that may be considered, pursuant to I.C. 35-50-2-9(c) and finds the [sic] those referred to in (C)(1) throrough [sic] (7) do not exist and that any mitigation shown in (C)(8) is outweighed by the aggravating circumstance.
In summary, the court in full consideration of the evidence and the verdict of the jury does now conclude that Life Imprisonment Without Parole is the appropriate punishment.
Appellants Supplemental App. at 4-5. Dumas contends that even as revised, the sentencing order is nonetheless deficient because the trial court still failed to identify with specificity what mitigating factors were present and what weight it assigned to those factors. Supplemental Br. of Appellant at 3.
A sentence of life without parole is imposed under the same standards and
is subject to the same requirements as a death sentence. Holsinger v.
State, 750 N.E.2d 354, 361 (Ind. 2001); Pope, 737 N.E.2d at 382; Nicholson
v. State, 734 N.E.2d 1047, 1048 (Ind. 2000); Rawley v. State, 724 N.E.2d
1087, 1091 (Ind. 2000); Ajabu, 693 N.E.2d at 936. We have previously
set forth those requirements as follows:
The trial courts statement of reasons (i) must identify each mitigating and aggravating circumstance found, (ii) must include the specific facts and reasons which lead the court to find the existence of each such circumstance, (iii) must articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence, and (iv) must set forth the trial courts personal conclusion that the sentence is appropriate punishment for this offender and this crime.
Harrison, 644 N.E.2d at 1262 (citations omitted). In Holsinger, we vacated the defendants life sentence in part because the trial courts sentencing order did not meet the requirements of Harrison. Holsinger, 750 N.E.2d at 363. Dumas argues the sentencing order in this case suffers the same infirmity.
The trial court in this case specifically found the existence of the statutory
aggravator: intentional killing while committing or attempting to commit robbery. See I.C.
§ 35-50-2-9(b)(1)(G) (West 1998). And the trial court recounted relevant portions of
the evidence to support its finding. The trial court also determined that
the statutory mitigating factors set forth in Indiana Code section 35-50-2-9(c)(1) through (c)(7)
did not exist.
See footnote Dumas makes no claim that the trial court erred
in finding the existence of the aggravating factor; nor does he challenge the
trial courts finding that the mitigating factors in (c)(1) through (c)(7) did not
exist. Rather, his complaint concerns the stat
utory mitigator set forth in (c)(8),
other circumstances appropriate for consideration. According to Dumas, he raised residual doubt
as a mitigating factor. Dumas then argues that by indicating, any mitigation
shown in (c)(8) is outweighed by the aggravating circumstance, the trial court identified
residual doubt as mitigating evidence and thus was duly bound to state how
it arrived at its existence and how it weighed that evidence against the
aggravator. Supplemental Br. of Appellant at 8. We disagree with this
The record shows that at the sentencing hearing Dumas introduced no evidence of
mitigation whatsoever. Instead he argued that the imposition of a life sentence
would be disproportionate to sentences imposed on similarly situated defendants. More specifically
Dumas contended that there had been instances in Lake County where defendants had
committed offenses more heinous than those in this case, including the commission of
multiple homicides, and the prosecutor sought neither the death penalty nor life without
parole. R. at 729-37. Dumas argued that on this ground the
trial court should impose a term of years. Id. Dumas made
no reference to residual doubt, an argument made to and rejected by the
jury nearly two months earlier at the penalty phase of trial.
We acknowledge the trial courts sentencing order is not a model of clarity
and explicitness. However, the record makes clear that the trial courts reference
to any mitigation shown in (c)(8) was in direct response to the claim
Dumas presented at sentencing. Cf. Holsinger, 750 N.E.2d at 363 (recounting the mitigating
circumstances the defendant introduced, which included evidence of his youthful age, domination by
another, his troubled childhood, lack of criminal history, intoxication, his surrender to and
cooperation with authorities, and his remorse). It is apparent the trial court in
this case determined that the sole factor Dumas presented as mitigating, namely, the
imposition of a life sentence would be disproportionate to sentences imposed on similarly
situated defendants, was outweighed by the aggravating factor. The finding of mitigating
circumstances is within the discretion of the trial court. Powell v. State,
769 N.E.2d 1128, 1134 (Ind. 2002); Shields v. State, 699 N.E.2d 636, 639
(Ind. 1998). However, the trial court does not abuse its discretion in
failing to consider a factor that was never raised at sentencing. Georgopulos
v. State, 735 N.E.2d 1138, 1145 (Ind. 2000). We find no abuse.
The trial courts sentencing order was sufficient.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., concurs except as to sentence. Finding the sentencing order inadequate, he would impose a term of 95 years. See Brown v. State, 783 N.E.2d 1121 (Ind. 2003).