ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patrick R. Ragains Steve Carter
Smith & Ragains Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
SUPREME COURT OF INDIANA
CHRISTOPHER NICHOLSON, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 48S00-0109-CR-434 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
May 24, 2002
After a remand from this Court, the trial judge sentenced Christopher Nicholson to life without parole. Nicholson again appeals his sentence, arguing that the State did not prove two statutory aggravators. We conclude that he is correct and thus revise Nicholsons sentence.
Nicholson was charged with and convicted of murder,
two counts of
and criminal confinement.
The jury recommended that Nicholson receive
life without parole.
The trial court subsequently ordered two concurrent life-without-parole sentences
to run consecutively with three term-of-year sentences of sixty-five, twenty, and three years.
On appeal, we found several errors in the sentencing order. Nicholson v. State, 734 N.E.2d 1047 (Ind. 2000)(per curiam), rehg denied. See footnote We noted that the sentencing order failed to satisfy the heightened sentencing standards for life without parole as set out in Harrison v. State, 644 N.E.2d 1243, 1262 (Ind. 1995), after remand, 659 N.E.2d 480 (Ind. 1995), cert. denied, 519 U.S. 933 (1996).
On remand, the trial court held a new sentencing hearing. It sentenced Nicholson to life without parole, with the following sentencing order:
The Court finds that [Nicholson] did commit the murder by intentionally killing the victim by committing burglary, robbery and torture, those being the aggravating circumstances, under [Indiana Code §] 35-50-2-9. The Court finds aggravating circumstances under said code that [Nicholson] tortured victim while she was alive . . . . Also, Court finds aggravating circumstances . . . that the victim was a victim of criminal confinement, for which [Nicholson] was also convicted. In addressing the alleged mitigating circumstances of remorse the [C]ourt finds that remorse may be present, but is not relevant. The dysfunctional home life is not a mitigating circumstance. [Nicholson] may have been a drug abuser, but the evidence will show that at the time this crime was committed, he had full capacity of all his faculties, his movements and his actions. He stole the car [and] drove it. His mechanical skills were all in coordination and he was capable [of] p[er]forming all those acts. Therefore, [Nicholson] was not under the influence of any alcohol or drugs at the time. Those are not mitigating circumstances.
(Appellants App. at 1.)
The statute does not define torture. Websters Dictionary defines it as the
infliction of intense pain (as from burning, crushing, wounding) to punish or coerce
someone; torment or agony induced to penalize religious or political dissent or nonconformity;
to extort a confession or a money contribution, or to give sadistic pleasure
to the torturer. Websters Third New International Dictionary 2414 (1993).
The State argues that the torture aggravator is satisfied by proof of infliction of severe physical or mental pain. This alone surely cannot be sufficient. If such were the case, any stabbing or shooting victim would also be tortured. The other aggravators listed in Ind. Code Ann. § 35-50-2-9(b)(11), burned and mutilated, further suggest that the legislature intended something more than simply the infliction of severe physical or mental pain to satisfy the torture aggravator.
We conclude that the torture aggravator requires something more: an appreciable period of pain or punishment intentionally inflicted and designed either to coerce the victim or for the torturers sadistic indulgence.
Put another way, torture is the gratuitous infliction of substantial pain or suffering
in excess of that associated with the commission of the charged crime.
Although the victim here undoubtedly experienced extreme suffering, the evidence does not show
that the events fit the definition of torture.
Without the presence of any statutory aggravator, a life without parole sentence is
impermissible. Therefore, we will impose a term of years for Nicholsons convictions
of murder, robbery as a class B felony and criminal confinement as a
class D felony.
The presumptive sentence for murder is fifty-five years, with a possible enhancement of up to ten years. Ind. Code Ann. § 35-50-2-3(a) (West 1998). For class B felonies, the presumptive term is ten years, with a possible enhancement of ten additional years. Id. § 35-50-2-5. And for class D felonies, the presumptive term is one and a half years, with a possible enhancement of one and a half years. Id. § 35-50-2-7.
We conclude consecutive sentences and full enhancements on each count are warranted. In his pre-sentence memorandum, Nicholson proferred four mitigating circumstances: (1) remorse, (2) a difficult childhood, (3) the inability to conform his conduct due to substantial impairment from alcohol and drug intoxication, and (4) the potential to be a productive member of society within a structured, controlled environment. See footnote The trial court assigned little to no weight to each of these proffered mitigators. We agree.
At the sentencing hearing, Nicholson made a statement to the court expressing remorse.
Although he remarked that he was deeply and genuinely sorry for the
death of Mrs. Heitger, he criticized the proceedings for not demonstrating his true
intentions and acts. (R. at 1635-36.) He continued by stating, I
never wanted to be involved in any way in the death of Mrs.
Heitger. And I never intended that result. (R. at 1636.)
Nicholsons equivocal statement fell short of a full acceptance of responsibility.
Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999). We assign low
weight to this mitigator.
The pre-sentence memorandum also listed Nicholsons dysfunctional, chaotic and [u]nstable home life growing
up as a mitigator. (R. at 1595.) Among other things, the
report described Nicholsons surprise encounter with a burglar at the age of five,
a grade-altering scam when Nicholson was in high school, and his failures at
sports. But Nicholson himself seems to contradict that his home life was
a mitigating circumstance. In his address to the court, he said:
I have a wonderful and loving family. I never wanted for anything material. . . . [M]ost people would look and see a wonderful opportunity and there was a wonderful and great extreme chance and opportunity for me. The choices that I made for whatever reasons . . . are the choices that I was free to make and to have to live with.
(R. at 1634.) We also note that Nicholson was thirty-six years old at the time of these crimes. We assign low weight to this mitigator.
As for intoxication as a mitigator, the record demonstrates that Nicholsons act of restraining the victim took time and required a significant degree of physical dexterity. ( See R. at 833.) We think this mitigator was not proven. And as for Nicholsons final mitigator, that he would benefit from a controlled environment, it proves, if anything, that the structured life of prison will be most beneficial to Nicholsons productivity.
On the other hand, ample evidence supports numerous aggravators of some considerable weight.
First, the victim was a seventy-eight-year-old widow who lived alone and had
See Ind. Code Ann. § 35-38-1-7.1(b)(5) (West 1998). Nicholson
took advantage of these circumstances in perpetrating his crimes. Second, Nicholson has
a lengthy history of criminal and delinquent activity. See id. § 35-38-1-7.1(b)(2).
His prior encounters with the law have not dissuaded him from further
criminal acts. Finally, the nature and circumstances of the crimes committed
the elaborate binding and gagging of an elderly widow demonstrate a high
level of criminal purposefulness and moral culpability. See id. § 35-38-1-7.1(a)(2).
We find the aggravating circumstances outweigh the mitigating circumstances by a sufficient magnitude
that maximum and consecutive sentences should be imposed.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.