Attorney for Appellant Attorneys for Appellee
Stephen Gerald Gray Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Zachary J. Stock
Deputy Attorney General
Indiana Supreme Court
Derrick Daron Clark,
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Madison Superior Court, No. 48D01-0104-CF-184
The Honorable Dennis D. Carroll, Judge
On Direct Appeal
May 19, 2004
In this direct appeal, Derrick Clark appeals his conviction of murder and sentence
to life without parole. We affirm the trial court.
Factual and Procedural Background
Jeff Phillips lived with his fiancée, Kimberly Hester at the Courtyard Apartments in
Anderson, Indiana. Between 10 and 11 p.m. on April 11, 2001, Hester
reported to Phillips that two people were loitering in the parking lot near
Phillipss car, and one of them was sitting on the car. Phillips
went outside, and after a brief exchange one loiterer returned to a group
about twenty to twenty-five feet away and the second drove off. Clark,
who was among the group, then approached Phillips, and an argument broke out.
After a brief exchange Phillips returned to his apartment, and Clark retrieved
his hooded jacket from the woman who had been holding it and told
the group to go inside the apartment building.
After Phillips had turned off most of the lights in the apartment, Phillips
and Hester peeked out of their bedroom window. Phillips saw someone with
a hood approach their apartment building and fire three shots into the apartment.
One of the bullets struck Hester and she died a short time
later. Clark was identified as the shooter by one member of the
group. Two other witnesses, an adult and a nine-year-old boy, also implicated
Clark in the shooting, and Clark confessed to the shooting in police interviews
under circumstances set forth below.
Clark was charged with the Murder of Hester, Attempted Murder of Phillips, and
handgun violations. The State requested that Clark be sentenced to life without
parole based on the charge that he discharged a firearm into a residence.
The jury found Clark guilty of Murder, Attempted Murder, and Carrying a
Handgun Without a License.
See footnote The jury recommended a se
ntence of life without
parole, and the court imposed that sentence.
In this direct appeal, Clark contests the admission of statements he made while
in custody at the police station and other statements made during an encounter
with a police officer in a parking lot. He also contests the
admission of a witnesss statement, arguing that the witness was incapable of making
a statement at the time he made it, and that the admission of
the witnesss statement violated his constitutional Right to Confrontation. Finally, Clark challenges
the sentence as inappropriate, based on an improper consideration of aggravating and mitigating
circumstances, and based on an unconstitutional statute.
I. Witness Statement
The State called Michael Watson as a witness. Before Clark was arrested,
Watson had been interviewed under oath by the prosecutor about the events of
the night of the shooting. In this interview, Watson testified that he
was at the Courtyard apartments with Clark and others when Clark got into
an argument with Phillips and told everyone to go inside. Shortly after that,
Watson heard shots. At trial, when asked about these facts, Watson asserted
that he did not remember being at the scene and did not recall
whether anyone else was there. The State then asked Watson to read
the transcript from his interview, and Watson testified that nothing in it was
true. The prosecutor then asked Watson if specific statements in his interview
were lies, and Watson said they were. The prosecutor said, And youre
telling this jury under oath here today that everything in here that youve
said about Derrick Clark was a lie? Clark unsuccessfully objected to this
line of questioning as an effort to get Watsons prior statements before the
jury as impeachment without Watsons having made any inconsistent statements.
The State then offered the transcript of Watsons statement into evidence and the
court admitted it. Clark argues that Watsons statement was improperly admitted because,
at trial, Watson claimed he was under the influence of medication at the
time of the statement and denied having knowledge of the facts presented in
the statement at the time he made it. The trial court ruled
the transcript admissible under Evidence Rule 803(5), which provides:
(5) Recorded Recollection. A memorandum or record concerning a matter about which a
witness once had knowledge but now has insufficient recollection to enable the witness
to testify fully and accurately, shown to have been made or adopted by
the witness when the matter was fresh in the witnesss memory and to
reflect that knowledge correctly. If admitted, the memorandum or record may be
read into evidence but may not itself be received as an exhibit unless
offered by an adverse party.
The State concedes the statement was not properly admitted as an exhibit
pursuant to Rule 803(5) because the Rule permits it to be read to
the jury, but not admitted as an exhibit. However, the State points
out that an appellate court may affirm a trial courts judgment on any
theory supported by the evidence. Ratliff v. State, 770 N.E.2d 807, 809 (Ind.
2002) (citation omitted). The State argues that Watsons statement was nevertheless admissible
under Evidence Rule 801(d)(1)(A) as substantive evidence as a prior inconsistent statement made
under oath. That Rule provides:
A statement is not hearsay if: . . . [t]he declarant testifies at
the trial or hearing and is subject to cross-examination concerning the statement, and
the statement is inconsistent with the declarants testimony and was given under oath
subject to the penalty of perjury at a trial, hearing or other proceeding,
or in a deposition.
In order for a prior inconsistent statement to be
admissible under this Rule:
(1) the statement must have been given under oath subject to penalty for
perjury at a trial or other proceeding and (2) the declarant who made
the prior statement must both testify and be subject to cross-examination concerning the
statement at the trial where the statement is sought to be introduced. See
United States v. DiCaro, 772 F.2d 1314, 1321 (7th Cir. 1985). Here,
Watsons statement satisfied both requirements. It was given under oath subject to
penalties for perjury in the course of the prosecutors investigation of the case.
If a declarant has not been cross-examined, his availability for recall for
cross-examination satisfies the requirement that he be available for cross-examination. Kielblock v. State,
627 N.E.2d 816, 821 (Ind. Ct. App. 1994). Clark thus had the
opportunity to cross-examine Watson at trial even though he chose not to use
Clark also argues that admission of Watsons prior statement violated his right to
confront witnesses under both the state and federal constitutions. For the same
reason, this contention is unavailing. The federal right of confrontation has not
been denied when the witness is available for cross-examination. United States v. Valdez-Soto,
31 F.3d 1467, 1470 (9th Cir. 1994).
See footnote Under the Indiana constitution, although
the accused must have an opportunity to cross-examine the witness during the face-to-face
confrontation, the opportunity does not have to be seized or successful and the
right can be waived.
Pierce v. State, 677 N.E.2d 39, 50 (Ind. 1997)
(citation omitted). Clark argues that because Watsons statement was admitted after Watson
left the stand, Clark had no opportunity to cross-examine Watson, but he gives
no reason why he could not have recalled Watson. He has not
established a violation of his right to cross-examine.
II. Statements to Police While in Custody
Seven days after the shooting, Anderson police executed a warrant for the limited
purpose of taking Clarks photographs and fingerprints. After Clark was brought to
the police station, Detective Randy Tracy interrogated Clark and ultimately Clark confessed to
the shooting. Clark argues that his Miranda rights were violated because Tracy
ignored his request to end the questioning. He also contends that his
confession was not voluntary, and that the custodial interrogation was improper because police
did not have probable cause to arrest him and the interrogation exceeded the
scope of the limited warrant used to bring Clark into custody.
Review of a trial courts denial of a motion to suppress is similar
to other sufficiency matters. Goodner v. State, 714 N.E.2d 638, 641 (Ind. 1999).
The record must disclose substantial evidence of probative value that supports the
trial courts decision. Id. We do not reweigh the evidence and we
consider conflicting evidence most favorably to the trial court's ruling. Id.
A. Requests to End Questioning
Clark first argues that the statements made in police custody should have been
excluded because they were taken in violation of his Miranda rights after four
requests that the interview end. Clark argues each of the following statements
constituted an assertion of his right to remain silent:
This is crazy. Yall might as well send me across the street
(referring to jail).
Please, man, you might as well take me across the street.
You already tryin to charge me with this. So leave me alone
and take me over here.
When the officer agreed to take Clark to jail, he said to Clark,
Okay. Thats what well do. Were going to end the tape.
Anything else you want to say? and Clark responded No.
An assertion of Miranda rights must be clear and unequivocal, and in determining
whether a person has asserted his or her rights, the defendants statements are
considered as a whole. Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir.
2001). A person must do more than express reluctance to talk
to invoke his right to remain silent. Taylor v. State, 689 N.E.2d 699,
705 (Ind. 1997). A statement that Im through with this, followed by
continued dialogue without pausing or indicating that the defendant would no longer respond,
did not unambiguously assert the right to remain silent. Haviland v. State, 677
N.E.2d 509, 514 (Ind. 1997). Clarks statements here did not expressly invoke
his right to remain silent, or request an attorney. As in Haviland,
Clark continued to speak after making these statements, and after being advised that
he was not required to continue with the interview. The trial courts
conclusion that Clark did not invoke his Miranda rights is supported by the
B. Involuntariness of Confession
Clark next argues that his confession made while in police custody was not
given voluntarily and therefore was inadmissible because it was taken in violation of
the Indiana and United States constitutions. Under the United States Constitution, the
State must prove by a preponderance of the evidence that the defendants confession
was voluntary. Lego v. Twomey, 404 U.S. 477, 489 (1972). The States
burden under the Indiana Constitution is to show voluntariness beyond a reasonable doubt.
Miller, 770 N.E.2d at 767 (citing Schmitt v. State, 730 N.E.2d 147, 148
(Ind. 2000)). On appeal, the trial courts determination is reviewed in the
same way as other sufficiency matters. Griffith v. State, 788 N.E.2d 835, 842
Voluntariness is determined in light of the totality of the circumstances surrounding the
interrogation. Miller v. State, 770 N.E.2d 763, 767 (Ind. 2002) (citing Kahlenbeck
v. State, 719 N.E.2d 1213, 1216 (Ind. 1999)). Relevant factors include the
length, location, and continuity of the interrogation, and the maturity, education, physical condition,
and mental health of the defendant. Id. (citations omitted). To determine
that a confession was given voluntarily, the court must conclude that inducement, threats,
violence, or other improper influences did not overcome the defendants free will. Ellis
v. State, 707 N.E.2d 797, 801 (Ind. 1999) (citations omitted).
In this case, the record supports the trial courts conclusion that Clarks confession
was voluntary. Clark points to statements by Tracy that theres a way
you can work around this, Clark would not have a future unless he
was honest about what happened, he believed Clark did not intend to kill
anyone, and multiple people had identified him as the shooter. Clark argues
that comments like these and others constituted promises of leniency, lies, and intimidation
and overcame his will because, through these statements, Tracy conveyed to him that
the only way to work out of his murder charge was to give
A confession is inadmissible if obtained by promises of mitigation or immunity; but,
vague and indefinite statements by the police that it would be in a
defendants best interest if he cooperated do not render a subsequent confession inadmissible.
Collins v. State, 509 N.E.2d 827, 830 (Ind. 1987). Further, [s]tatements by
police expressing a desire that a suspect cooperate and explaining the crimes and
penalties that are possible results are not specific enough to constitute either promises
or threats. Kahlenbeck v. State, 719 N.E.2d 1213, 1217 (Ind. 1999). Here,
Clark cites no specific promises. Detective Tracy explained the varying offenses of
homicide and suggested that Clark would be better served by telling the truth.
These statements are an attempt to induce Clark to comply with Tracys
requests, but they did not constitute promises of benefits, threats, or inducements that
rendered Clarks confession involuntary.
Clark also argues that Detective Tracys comments constituted deceptive practices that rendered his
confession involuntary. Clark argues that Tracys statements to Clark that multiple people
had identified Clark as the shooter and that Tracy believed Clark did not
intend to kill were intentional falsehoods meant to elicit a statement from Clark.
Assuming Clark is correct that Tracys statements were not factual, police deception
does not automatically render a confession inadmissible. Rather, it is only one
factor to consider in the totality of the circumstances. Miller, 770 N.E.2d at
767 n.5 (citing Kahlenbeck v. State, 719 N.E.2d at 1217. Further, if
the police have a good faith basis for a statement, even if technically
false, it does not rise to the level of deception. See Ellis, 707
N.E.2d at 801 (police who told defendant that they had his shoeprint at
a crime scene had a good faith basis in the statement when there
were footprints similar to defendants size, but had not been conclusively established to
be defendants). In asserting that multiple people had identified Clark as the
shooter, Tracy was referring to three witnesses whose information had implicated Clark in
the crime. Two of these witnesses had given information about the events
occurring just before the shooting, including Clarks argument with Phillips and Clarks instruction
that everyone else go inside. The third statement was given by a
nine-year-old boy who witnessed the shooting, but did not testify at trial and
arguably expressed reluctance and confusion as to the facts. Although none of
these witnesses versions was airtight, their accounts were enough to form a good
faith basis for Tracy to assert that he had witnesses to the shooting.
In addition, regardless of what Tracy personally thought of Clarks intent in
shooting through the window, that he believed Clark did not intentionally kill was
a permissible interpretation of the facts. The trial courts conclusion that Clarks confession
was voluntary is supported by the evidence.
C. Scope of Warrant
Clark argues that his detention was illegal and therefore the statements he made
in custody should not have been admitted because he was taken into custody
on the basis of a warrant executed for the limited purpose of obtaining
photos, fingerprints, and palm prints, but was detained at the police station and
questioned beyond the permissible scope of the warrant. The State refers to
this warrant as a so-called Davis-Mississippi warrant. The United States Supreme Court
in Davis v. Mississippi, 394 U.S. 721, 726-28 (1969), held that individuals might
be detained for limited purposes, such as obtaining fingerprints, on a showing of
less than probable cause. In Baker v. State, 449 N.E.2d 1085, 1090
(Ind. 1983), this Court, citing Davis, concluded that warrants issued for limited purposes,
such as fingerprinting or photographing, are appropriate if police act pursuant to and
within the scope of such warrants.
The warrant supported only fingerprinting and photographing Clark, and did not justify his
interrogation. The State counters that Clarks detention was nevertheless lawful because the
police had probable cause to arrest Clark at the time he was taken
into custody. Because the warrant was limited Clark is correct that his
arrest was warrantless, and the State must establish probable cause to arrest Clark.
Probable cause to arrest exists when, at the time of the arrest,
the officer has knowledge of facts and circumstances that would warrant a reasonable
person to believe that the suspect has committed the criminal act in question.
Berger v. New York, 388 U.S. 41, 55 (1967); See also
State, 769 N.E.2d 172, 176 (Ind. 2002) (citing Ortiz v. State, 716 N.E.2d
345, 348 (Ind. 1999)). The amount of evidence necessary to meet the
probable cause requirement is determined on a case-by-case basis. Ortiz v. State, 716
N.E.2d 345, 348 (Ind. 1999). It is grounded in notions of common
sense, not mathematical precision. Ogle v. State, 698 N.E.2d 1146, 1148 (Ind. 1998)
(citing Illinois v. Gates, 462 U.S. 213, 235 (U.S. 1983)).
The State points out that at the time Clark was detained Detective Tracy
knew of the statement given under oath by Michael Watson in which he
reported that Clark had argued with Phillips on the night in question, after
the argument Clark instructed everyone to go inside, and Watson heard gunshots shortly
after he and the others complied with Clarks directions. Tracy also had
statements from other witnesses who also placed Clark at the scene and described
the argument between Clark and Phillips, and reported Clarks admonition that everyone go
inside. This information, in the aggregate, was enough to give Tracy probable cause
to arrest Clark.
III. Statements to Police in Parking Lot
Five days after the shooting, Officer John Branson of the Anderson Police Department,
who had been investigating the shooting in question and had learned that Clark
was a possible suspect encountered Clark in the parking lot of the Village
Pantry and told him to remove his hands from his pockets and questioned
Clark about his whereabouts at the time of the shooting. Clark told
Branson that he was with his girlfriend at the time. Clark argues
that although the statement was not in itself prejudicial, the State made frequent
use of it to paint Clark as a liar. Clark argues that
this statement was inadmissible because he was in custody for purposes of the
Fifth Amendment to the United States Constitution and was not given Miranda warnings.
The trial court overruled Clarks objection on the ground that Clark was
not in custody. That decision is reviewed as a question of sufficiency
of the evidence. Goodner, 714 N.E.2d at 641.
A person is in custody for purposes of Miranda if a reasonable person under
the same circumstances would have believed that he was under arrest or not
free to resist the entreaties of the police. West v. State, 755 N.E.2d
173, 178-79 (Ind. 2001) (citing Joyner v. State, 736 N.E.2d 232, 241 (Ind.
2000); Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995) (citing Florida v.
Bostick, 501 U.S. 429, 433-34 (1991)). This issue has often been resolved
based on whether the defendant was read his Miranda rights or physically restrained
in any way. Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996).
Also relevant is the length of the detention and the police officers perception
as to the defendants freedom to leave. Cooley v. State, 682 N.E.2d 1277,
1279 (Ind. 1997). Here, Clark was not physically restrained and although he
was subjected to a pat-down search for weapons, the search was minimal and
did not indicate that he was under arrest. The conversation between Johnson
and Clark was relatively short. Once Clark answered Johnsons question as to
his whereabouts at the time of the shooting, the questioning ended and Clark
was free to go. This was not enough to render Clark in
custody for purposes of Miranda. See, e.g., United States v. Wyatt, 179 F.3d
532, 536 (7th Cir. 1999) (Miranda warnings not required when defendant, who was
a suspect in a bank robbery, was asked to exit a bar with
officers, subjected to a pat-down search, and questioned).
IV. Imposition of Sentence
Clark next challenges the imposition of the sentence of life without parole, arguing
that the sentence was inappropriate, the trial court failed to weigh aggravators and
mitigators properly, and that the life without parole statute is facially unconstitutional.
Clark was found guilty by a jury of Murder, Carrying a Handgun Without
a License, and Attempted Murder. Following the presentation in the penalty phase,
the jury found beyond a reasonable doubt that Clark intentionally discharged a firearm
into an inhabited dwelling. The jury recommended that Clark be sentenced to
life without parole. After a sentencing hearing, on April 9, 2002, the
court imposed the sentence of life without parole as recommended by the jury.
The trial court cited as aggravators to the murder charge the fact
that the killing was intentional and the fact that Clark discharged a firearm
into an inhabited dwelling. On July 2, 2003, this Court remanded the
case for resentencing because the original sentencing order did not comply with the
statutory requirements for a sentence of life without parole, which is governed by
the death penalty statute. Ind. Code § 35-50-2-9 (2003). An amended sentencing
order was issued and that order is now under review.
In 2002, the statute was amended to require that, for sentences imposed on
or after July 1, 2002, the jury is to recommend a sentence and
the trial court is to sentence accordingly. The original sentencing order and
the amended sentencing order in this case were both issued based on the
earlier statute that gave a court the discretion to impose a sentence recommended
by the jury or its own sentence. Neither Clark nor the State
raises any contention based on the 2002 amendments to the statute.
An appellate court may review a sentence if it is found to be
inappropriate in light of the nature of the offense and the character of
Indiana Appellate Rule 7(B). Clark argues that his sentence is
inappropriate because maximum possible sentences are to be reserved for the worst offenders.
He argues that he does not fit into this category because he
was nineteen years old at the time of the shooting, had no juvenile
delinquency adjudications, and had only a misdemeanor handgun conviction. He points to
his pastors testimony that Clark was a respectful person who showed remorse for
his actions. He also argues that the Court should consider that there
was some inference of sudden heat from his actions because, although he was
convicted of murder, the jury was instructed on reckless homicide and voluntary manslaughter.
In the amended sentencing order, the trial court pointed out that in
addition to the finding that Clark intended to kill and intended to discharge
a firearm into an inhabited dwelling, the shooting was premeditated, calculated, and utterly
without provocation. The trial court also pointed to Clarks criminal history that included
probation violations and the fact that Clark failed to show remorse after the
shooting. Although, as discussed in Part IV.B, there are problems in the
sentencing order Clark has not established on this record that the sentence is
B. Trial Courts Consideration of Aggravating and Mitigating Circumstances
This Courts order remanding for a new sentencing order instructed the trial court
to amend its sentencing order to comply with the requirements of Indiana Code
section 35-50-2-9 (2002). Because both penalties are governed by the same statute,
a sentence of life without parole is held to the same standards as
a death sentence. Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998).
A court sentencing under the death penalty statute may consider only the aggravating
factors listed in that statute. Bivins v. State, 642 N.E.2d 928, 953 (Ind.
1994). The trial court must also find that any aggravating factor used
to determine eligibility for the sentence has been proven beyond a reasonable doubt
and must find that the aggravating circumstances outweigh the mitigating circumstances and make
a record of the reasons supporting the sentence. Greer v. State, 749
N.E.2d 545, 549 (Ind. 2001). As explained in Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995) (citations omitted):
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.
The trial courts amended sentencing order did not conform to these requirements.
First, the trial court cited the fact that the murder was intentional as
an aggravating factor.
See footnote Neither intentional nor, as the trial court found, premeditated,
killing is a statutory aggravating factor under the death penalty statute. I.C. §
35-50-2-9(b). Accordingly, it was not proper for the trial court to identify
that factor as relevant to the decision to impose life without parole.
Clark further argues that the court should have considered as a mitigating circumstance
that Clark had no significant criminal history as required by the life without
parole statute. The finding of mitigating factors is within the trial courts
Graham v. State, 535 N.E.2d 1152, 1155 (Ind. 1989). However, [w]hen
the trial courts sentencing statement fails to discuss or evaluate the mitigating circumstances
and fails to make a finding that mitigating factors were not present, it
would be proper to remand with instructions to reconsider the sentence if significant
mitigating circumstances are clearly supported by the record. Id. Significance varies based
on the gravity, nature and number of prior offenses as they relate to
the current offense. Wooley v. State, 716 N.E.2d 919, 929 n.4 (Ind. 1999).
In sentencing, the trial judge expressed the view that, any criminal history
is an aggravator and the issue is the strength of that aggravation.
The mitigator is that you have no criminal history. Lack of prior
significant criminal history is a mitigating factor, I.C. § 35-50-2-9(c)(1), but as the
trial court found, Clark had a significant criminal history. Clarks juvenile history
includes runaway and incorrigibility charges. Clark has three documented parole violations, has
been arrested twice for illegal handgun possession, and a deferred prosecution on the
second possession had not yet expired when he committed the murder. These
findings establish that the trial court carefully considered Clarks criminal background.
A second aggravating factor, which could properly establish Clarks eligibility for life without
parole, was that Clark fired a handgun into an inhabited dwelling. However,
in its amended sentencing order the trial court found an improper aggravating factor,
and the balance of aggravators and mitigators without the improper aggravator is unknown.
Accordingly, the amended sentencing order failed to meet the requirements for a
sentence of life without parole. This case is again remanded for a
new sentencing order that does not include the intentionality of the murder as
an aggravating factor.
C. Constitutionality of Statute Conclusion
At the time of the original sentencing, the life without parole statute provided
that, [t]he court shall make the final determination of the sentence, after considering
the jurys recommendation . . . . I.C. § 35-50-2-9(e) (2002). Clark
argues that under the United States Supreme Court decisions in Apprendi v. New
Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002),
the life without parole statute applicable at the time of his conviction is
unconstitutional. Apprendi holds, [o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to the jury, and proved beyond a reasonable doubt. Apprendi,
530 U.S. at 490. Ring applied Apprendi to capital sentencing and requires
that an aggravating circumstance supporting a capital sentence be found by the jury
beyond a reasonable doubt. Ring, 536 U.S. at 609. Clark proceeds from
this framework to the conclusion that because the trial court could choose to
reject the jurys recommendation, the sentencing statute applied was facially unconstitutional. Clark
asserts that even though the trial judge in this case accepted the jurys
unanimous recommendation, the fact that the statute can be applied in an unconstitutional
manner renders the entire statute unconstitutional. Here, the jury found beyond a
reasonable doubt the statutory aggravating circumstance that increased the penalty for murder: Clark
intentionally discharged a firearm into an inhabited dwelling. This satisfies Ring and
Apprendi. Williams v. State, 793 N.E.2d 1019, 1028 (Ind. 2003) (finding Ring inapplicable
to a death sentence where the guilt phase verdict necessarily shows that the
jury unanimously found that Williams had committed two murders, and thus, shows that
the multiple-murder aggravating circumstance was proved beyond a reasonable doubt); Brown v. State,
783 N.E.2d 1121, 1126 (Ind. 2003) (citing Wrinkles v. State, 776 N.E.2d 905,
907-08 (Ind. 2002) (jurys verdict in the guilt phase, finding the defendant guilty
of the two murders, necessarily means that the jury found, beyond a reasonable
doubt, that Defendant had committed more than one murder).
Clark contends [i]f the jury knew the law was applied in such a
way as to bind the trial court, the jury might feel more solemn
in its deliberations. This is not a claim that the jury was
incorrectly instructed as to its role, which is an error that violates the
Eighth Amendment as interpreted in Caldwell v. Mississippi, 472 U.S. 320, 330 (1985).
Rather, Clarks contention boils down to a claim that the pre-2002 version
of the Indiana Death Penalty statute was inherently defective because the jury did
not consider its determination to be binding on the judge. If the
jury believed its recommendation to be binding, it might feel more solemn in
its deliberations. At the time of the jury deliberation, Indiana law provided
that the recommendation was not binding, and the jury was so instructed.
There was no error in the instructions, and there is no authority for
the proposition that a nonbinding recommendation is inherently unconstitutional. See Harris v. Alabama,
513 U.S. 504, 512 (1995) (a capital sentencing statute that provides for a
sentence recommendation by a jury and does not describe the weight to be
given the recommendation by the trial court judge is constitutionally permissible); Fleenor v.
Anderson, 171 F.3d 1096, 1100 (7th Cir. 1999) (it was not error for
the prosecution to emphasize to the jury that its recommendation is not binding
on the judge).
This case is remanded for entry of a corrected sentencing order consistent with
Shepard, C.J., and Dickson, and Sullivan, JJ. concur.
Rucker, J., concurs except for the majoritys resolution concerning the sentence. Rather
than remand this cause for a second time to cure an inadequate sentencing
order, he would impose the maximum terms of 65 years for the murder
conviction. He would further order the sentence to be served consecutive to the
sentences the trial court has already imposed for attempted murder and carrying a
handgun without a license.
Clark was also charged with Carrying a Handgun Without a License with
a prior handgun conviction. He waived his right to a jury trial
on that charge and the court found him guilty after the jury returned
Footnote: The very recent decision of the United States Supreme Court in
v. Washington, 124 S.Ct. 1354 (2004), does not affect this case because Watson
testified at trial. The Supreme Court may have called into question settled
evidentiary rulings on a number of related issues. Certainly it made clear
that rules of evidence do not trump the Confrontation Clause. However, the
Court expressly noted that, where the declarant is not absent, but
is present to testify and to submit to cross-examination, our cases, if anything,
support the conclusion that the admission of his out-of-court statements does not create
a confrontation problem. California v. Green, 399 U.S. 149, 162 (1970). Crawford
addressed the admission of prior statements to police by a witness who was
unavailable at trial and held that admission of her statements as declarations against
penal interest violated the Confrontation Clause. The state supreme court had held
the statements admissible even though she was never available for cross-examination, reasoning that
the statement bore guarantees of trustworthiness. The United States Supreme Court held
that the right to cross-examine either at the time the statement is made
or at trial is required and its admission violates the defendants right to
confront witnesses if the witness is not available for cross-examination. After conducting
a thorough examination of the history of Confrontation Clause jurisprudence, the Court explained,
[o]ur cases have thus remained faithful to the Framers understanding: Testimonial statements of
witnesses absent from trial have been admitted only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to cross-examine. Crawford,
124 S.Ct. at 1369. The Court specifically noted that its holding does
not alter the rule that when the declarant appears for cross-examination at trial,
the Confrontation Clause places no constraints at all on the use of his
prior testimonial statements. Id. n. 9 (citing Green, 399 U.S. at 162).
Clark argues that it was improper for the trial court to find
as an aggravator the fact that the killing was intentional because a material
element of a crime may not be used as an aggravating factor to
support an enhanced sentence.
See, e.g., Bradley v. State, 770 N.E.2d 382, 388-89
(Ind. Ct. App. 2002). The mens rea element of Clarks murder conviction
was that he acted knowingly or intentionally. Clark argues that it was
improper to cite an intentional murder as an aggravator. Because this aggravating
factor was improperly applied for the reason given, we do not address the
issue whether this doctrine would also invalidate the aggravator given that a knowing
killing is sufficient for a murder conviction.