Attorneys for Appellant
Attorneys for Appellee
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana
David P. Freund Andrew A. Kobe
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
Houser eluded apprehension for these crimes for four years. On October 26,
2000, Angela Stone implicated Houser in the burglary and murder during police questioning
with Indiana State Police Detective Mark R. Heffelfinger. The same day, police
recovered silverware taken from Gaertes home after executing a search warrant at Housers
mothers home in LaGrange County; Houser had given the silverware to his mother
as a Christmas gift. The next day, Detective Heffelfinger questioned Houser who
had been brought to Noble County from Otter Creek Correctional Facility in Kentucky
where he was serving a sentence for burglary. During the interrogation, Houser
confessed that he had burglarized Gaertes home and killed her by suffocating her
with a pillow. Additional factual information will be provided infra as necessary.
Houser was charged with the knowing or intentional murder of GaerteSee footnote and burglary
causing death.See footnote The State also sought a sentence of life imprisonment without
possibility of p
arole. As the aggravating circumstance justifying life imprisonment without parole,
the State charged that Houser had intentionally killed Gaerte while committing the crime
During Housers jury trial, he took the stand in his own behalf.
On November 12, 2002, the jury returned verdicts of guilty on both counts.
The next day, the jury reconvened for the penalty phase of the trial
during which it r
eceived evidence with respect to the charged aggravating circumstance and
mitigating circumstances. Its verdict utilized three forms: a unanimous finding that
the State had proved the existence of the charged aggravating circumstance beyond a
reasonable doubt; a unanimous finding that the charged aggravating circumstance outweighed any mitigating
circumstances; and a unanimous recommendation that Houser be sentenced to life imprisonment without
possibility of parole.
On February 4, 2003, the trial court sentenced Houser to life imprisonment without
possibility of parole for murder and 20 years in prison for burglary.
supra, Houser took the stand in his own defense. In
his brief to this court, Houser tells us that during his direct examination,
he testified that he was currently living with his mother in LaGrange County
and that in October, 2000, he was living in Kentucky when he received
word that Detective Heffelfinger wanted to question him concerning Gaertes death; that when
he learned this, he came back to Indiana to meet with Heffelfinger.
Houser goes on to tell us that the State then successfully sought the
trial courts permission to reveal to the jury that he had been incarcerated
in Kentucky, contending that Houser had opened the door to presenting this information.
Houser argues that his statement about residing in Kentucky was accurate and
in no way left the jury with a false or misleading impression of
Were that all there was to it, we might be inclined to agree
with Houser. But in addition to that part of Housers testimony that
he includes in his brief, Houser also testified on direct examination that he
did not remember his interview with Heffelfinger in which he confessed to Gaertes
murder because he had ingested LSD prior to being questioned; that the LSD
he took made him lethargic, confused, and unable to fully appreciate his actions;
that it was common to be able to obtain illegal drugs while incarcerated;
and that he wanted to call his mother prior to the interview to
tell her he was no longer in Kentucky but was not allowed to
make the call until the interview was completed. Once Houser himself volunteered
that he had taken LSD while incarcerated a short time before his interview
with Heffelfinger, the State was entitled to explore further the circumstances of Housers
admitted procurement of LSD and incarceration in Kentucky. We find no abuse
of discretion in the trial courts allowing the State to pursue this line
Night Prowler describes an individual who sleeps during the day and prowls
at night, who break[s] down your door . . . [and] make[s] a
mess of you. States Ex. No. 43. Angela Stone, when asked
about the content of the lyrics of Night Prowler, testified that the song
was about [s]neaking around and, you know, getting in peoples stuff, being sneaky.
Tr. at 439. No objection was raised to her testimony, which preceded
the admission of the challenged song lyrics.
Relevant evidence means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence. Ind. Evidence
Rule 401. Evidence that is not relevant is not admissible. Evid.
R. 402. As a general proposition, we do not believe there is
a correlation between an individuals enjoyment of a particular piece of music and
the individuals behavior.
See footnote But the test of relevance requires only that the
evidence have any tendency to make the exi
stence of any fact of consequence
more probable or less probable than it would be without the evidence.
We can certainly envision circumstances where that would be the case. For
example, see Bryant v. State, 802 N.E.2d 486, 498 (Ind. Ct. App. 2004)
trans. denied, where lyrics from two rap songs written by the defendant were
deemed relevant as an indication of defendants intent regarding victims murder.
The more consequential determination when confronted with a challenge as to the admissibility
of lyrics to a song written or favored by a defendant is whether
the evidence is offered to prove the character of the defendant in violation
of Evidence Rule 404(b) or whether the evidences probative value is substantially outweighed
by the dangers enumerated in Evidence Rule 403. We do not face
Rule 403 or 404 challenges in this case, however, because Houser did not
object to the admission of the Night Prowler lyrics on these grounds at
trial. A defendant may not object on one ground at trial and
raise another on appeal; any such claim is waived.
Jackson v. State,
697 N.E.2d 53, 54 (Ind. 1998) (citing Bradford v. State, 675 N.E.2d 296,
302-03 (Ind. 1996)).
In any event, evidence admitted in violation of Evidence Rules 402, 403, or
404 will not require a conviction to be reversed if its probable impact
on the jury, in light of all of the evidence in the case,
is sufficiently minor so as not to affect a partys substantial rights.
Bassett v. State, 795 N.E.2d 1050, 1054 (Ind. 2003) (citing Ind. Trial Rule
61; Stewart v. State, 754 N.E.2d 492 (Ind. 2001)). When the evidence
of the lyrics is viewed in light of the evidence pointing to Housers
guilt in this case, it is relegated to the status of harmless error.
Houser admitted during police questioning to burglarizing the victims home and suffocating
her with a pillow, and his blood was found on a curtain where
he gained entrance to the victims house. We conclude that the probable
impact of the song lyrics was sufficiently minor so as not to affect
Housers substantial rights.
Over defense counsels objection on grounds of relevance, the State questioned Stone regarding
general statements Houser had made to her with respect to killing. That
testimony proceeded as follows:
State: Ms. Stone, in the time that you were with Mr. Houser did he
talk about killing?
State: What did he say about it?
Stone: Just that there would be no survivors.
State: Did he talk about a specific way to kill people verses [sic] other ways?
Stone: Yes, he did.
State: What was that?
Stone: It was hands on. That means you are more of a man, where if you use a gun and shoot him.
Tr. at 440-41.
The State contends that this evidence was relevant to show Housers intent to kill Gaerte. It argues that Housers statements had a tendency to make it more probable that Houser intended to kill Gaerte than it would have been without the evidence. Houser contends to the contrary, arguing that this testimony had little relevance, if any at all, to the Gaerte killing and was used by the State to try to convince the jury that Housers character was such that he would kill anyone who got in his way and that he had a propensity to kill. Br. Appellant-Def. at 34.
As with the lyrics, whether or not these statements were admissible under Indiana
Rule of Evidence 402, their admission did not affect Housers substantial rights.
Houser argues that because his crime occurred in 1996, the proper version of
Indiana Code § 35-50-2-9(e) that should be applied in his case is the
pre-amendment version granting judicial latitude in deviating from a jury recommendation of death
or LWOP. Subsequent to Houser filing this appeal, we decided this issue
contrary to his position. Helsley v. State, 809 N.E.2d 292, 300-301 (Ind.
2004); Stroud v. State, 809 N.E.2d 274, 288 (Ind. 2004).
This Court has previously rejected this contention. Overstreet v. State, 783 N.E.2d
1140, 1165 (Ind. 2003). Our rationale was that [s]entencing pursuant to the
death penalty or life without parole statute is a qualitatively different matter.
West v. State, 755 N.E.2d 173, 186 (Ind. 2001). The legislature has
determined that some crimes, based upon the circumstances in which they are committed
warrant the death penalty or life without parole. Id. While some
of these circumstances may include elements of the crimes themselves, . . .
[the Legislatures enumerated factors] serve the narrowing function required by the Eighth Amendment.
A defendant either meets or does not meet the eligibility requirements for
death or life imprisonment. Id. As such, the facts necessary to
establish the (b)(1) aggravating circumstances serve [only] to narrow the eligibility for the
penalty and are not identical to the elements of the crime. Overstreet,
783 N.E.2d at 1165. We continue to adhere to this reasoning.
As we have noted supra, to obtain a LWOP sentence for a defendant,
the State must prove beyond a reasonable doubt the existence of one or
more aggravating circumstances listed in Ind. Code Section 35-50-2-9(b). The jury explicitly
found that the State proved beyond a reasonable doubt that Houser committed murder
during the commission of a burglary. Ind. Code § 35-20-2-9(b)(1)(B). We
agree that the State met its burden in this regard. We further
find that in the circumstances of this case, this aggravating circumstance is entitled
to weight in the high range.
In mitigation, Housers defense presented evidence that he suffered through an emotionally abusive
childhood, with an an alcoholic father who constantly belittled him. Br. Appellant
at 52. Houser also presented evidence that he had been diagnosed as
having an Anti-Social Personality Disorder and that he had a long-standing history of
alcohol and drug abuse, both of which he contended undoubtedly effected his judgment
and ability to conform his behavior. Id. at 53. While he
has an extensive criminal history as a burglar and a thief, he argues,
his record should be given some mitigating weight because he has only one
prior conviction that involved the use of violence or resulted in physical harm
to another person. Id. We find the combination of mitigating circumstances
here entitled to weight in the very low range.
Based on our review of the record and the law, we conclude that
life without possibility of parole is appropriate for Housers murder of Mary Lou
Boehm, J., concurs. Shepard, C.J., concurs with separate opinion in which Dickson,
J., joins. Rucker, J., concurs except as to Part IV, from which
Shepard, C.J., concurring.
For the last several decades at least, Indiana law has assigned to judges the duty to decide sentences in criminal cases. Appellate court review of such trial court decisions has been highly deferential, but we have undertaken to review and revise sentences when persuaded that the trial courts sentence is inappropriate.
As for death penalty and life without parole cases, the legislature has largely
shifted the sentencing decision from judges and assigned it to juries. I
am inclined to think that we should be even less ready to set
aside the sentencing judgment of jurors, and that the standard we adopted during
the era of judicial sentencing should probably not apply to second-guess Indiana juries.
The parties here have not joined this question, however, and there appears no reason to reverse the jurys decision. Accordingly, I join in the Courts opinion.
Dickson, J., joins.
Rucker, J., dissenting in part and concurring in part.
I dissent from Part IV 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 concur.