Attorneys for Appellant Attorneys for Appellee
Mark Small Steve Carter
Kevin McShane Attorney General of Indiana
Marion County Public Defender Agency
Indianapolis, Indiana Stephen R. Creason
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, No. 49G04-0010-CF-172900
The Honorable Patricia Gifford, Judge
On Direct Appeal
May 25, 2004
Benjamin Ritchie was convicted of killing Beech Grove police officer William Toney.
Because the victim was a law enforcement officer, the prosecutor sought the death
penalty. The jury recommended death and the trial court imposed that sentence.
We affirm the conviction and sentence.
Factual and Procedural Background
On September 29, 2000, around 7:00 p.m., Ritchie and two others stole a
white Chevrolet Astro van from a gas station in Beech Grove. The
theft was reported and police were dispatched to the scene where Beech Grove
police officer Matt Hickey filed a stolen vehicle report. Approximately two hours
later, Hickey was en route to a traffic accident scene and recognized the
stolen van as Ritchie and one of his accomplices drove by. After
confirming by radio that the van bore the license plate of the stolen
vehicle, Hickey pursued, joined by officers Robert Mercuri and William Toney. After
a short chase, the van pulled into the yard of a residence where
Ritchie and his companion jumped out and ran in opposite directions. Officer
Toney pursued Ritchie on foot, and ultimately Ritchie turned and fired four shots,
one of which struck Toney in the chest. Toney died at the
scene. Ritchie was convicted of murder and the jury recommended the death
penalty, which the trial court imposed. This direct appeal followed.
I. Indiana Constitution Article I, Section 18
Ritchie argues that Indianas Death Penalty Statute violates Article I, Section 18 of
the Indiana Constitution, which provides that [t]he penal code shall be founded on
the principles of reformation, and not of vindictive justice. Ritchie concedes that
this claim was rejected shortly after the 1851 Constitution was adopted. In
Driskill v. State, 7 Ind. 338, 343 (1855), and Rice v. State, 7
Ind. 332, 338 (1855), this Court held that Section 18 applies to the
Penal Code as a whole, but does not require that every provision of
the Penal Code be oriented toward reform. Accordingly, this Court early held
that Section 18 is not violated by the death penalty. Ritchie points
out that these seminal cases neither discussed the legislative history of Section 18
nor considered the prevailing legal framework at the time Section 18 was adopted.
Essentially, Ritchie argues that this Court should have found that the focus
of Indianas Penal Code is reform, and that the death penalty is grounded
in the inconsistent goal of vindictive retribution and is therefore unconstitutional. We
do not find this contention persuasive. Driskill and Rice were decided immediately
following the adoption of the 1851 Constitution. There was no need for
this Court, in deciding those cases, to review the mindset of the framers
of our state constitution. The Indiana Supreme Court of 1855 was composed
of judges who were present at the creation. To the extent Ritchie
relies on the views of the framers, contemporaneous court decisions are evidence of
the attitude of the times.
In recent times, this Court has consistently adhered to the view that the
death penalty does not violate Section 18. See Saylor v. State, 686 N.E.2d
80, 88 (Ind. 1997); Harrison v. State, 644 N.E.2d 1243, 1258 (Ind. 1995);
Fleenor v. State, 514 N.E.2d 80, 90 (Ind. 1987). Ritchie advances a
number of criticisms of the wisdom, fairness, humanity, or efficacy of the death
penalty. These arguments have been successful in the legislatures of several states
and many foreign countries. They are properly directed to the General Assembly,
which is free to abolish the death penalty at any time. Any
change in the settled doctrine that the penalty is not inherently unconstitutional should
be by constitutional amendment.
II. Death by Lethal Injection as Cruel and Unusual Punishment
Indiana now administers the death penalty by lethal injection. Ritchie contends that
this method of execution inflicts unnecessary pain and therefore constitutes cruel and unusual
punishment for purposes of the Eighth Amendment to the United States Constitution.
We recently rejected this claim in Moore v. State, 771 N.E.2d 46
(Ind. 2002). In Moore, the defendant contended that lethal injection was cruel
and unusual as applied to him because of his obesity and the resulting
inability to locate a suitable vein. Id. at 55 n.3. We noted
that Moore raised possible difficulties with the lethal injection process without substantiating the
probability that any would occur in Moores case. Id. We held that
Moore had not established that lethal injection constituted cruel and unusual punishment in
that case. Id. at 56. In holding that injection as applied in
Moore did not violate the Eighth Amendment, we necessarily held that injection is
not per se cruel and unusual.
In Moore, we observed that the Eighth Amendment requires that an execution be
performed in a manner that avoids unnecessary or wanton infliction of pain, but
concluded that lethal injection does not constitute wanton infliction of pain. Id. at
55. Because Ritchie points to no circumstances creating an unusual risk in
his case, his contention amounts to a request to reverse that holding.
Ritchie cites two instances where lethal injection did inflict excessive pain. In
the first of these, the defendants veins were abnormally small and a physician
was required to perform a cut down to locate a proper vein.
The execution required one hour and seventeen minutes, and sixteen minutes were spent
locating a vein before a physicians incision exposed one. The defendant was
conscious the entire time. The second instance involved an execution that took
one hour to complete, again because of difficulty in inserting the needle into
the vein. In that case the problem was attributed to the defendants
size. These two isolated cases do not establish that lethal injection is
an inherently cruel or unusual method. To be sure, these two examples
demonstrate that problems may occur in unusual circumstances, but that possibility does not
rise to a systematic or inherent flaw in the lethal injection process. See
Hill v. Lockhart, 791 F. Supp. 1388, 1394 (E.D. Ark. 1992).
Recent decisions of the United States Supreme Court confirm this view. The
reach of the Eighth Amendment is an issue of federal law. The
Supreme Court recently held that a challenge to the cut down procedure may
be brought under 42 U.S.C. § 1983. Nelson v. Campbell, 2004 U.S.
LEXIS 3680 (May 24, 2004). That case involves a defendant who has
collapsed veins requiring a potentially painful surgical procedure to perform an injection.
Two recent applications for stays of execution, Zimmerman v. Johnson, 124 S.Ct. 979
(2003), and Vickers v. Dretke, 124 S.Ct. 956 (2003), involved more general challenges
to the lethal injection process. Zimmerman was originally granted a stay of
execution by the United States Supreme Court, but the stay was lifted on
December 15, 2003, and Vickerss application for stay was denied by the Court
on December 9, 2003. Both have been executed. Ritchies claim, like
those in Vickers and Zimmerman, involves only a general claim that the lethal
injection process violates the Eighth Amendment. Thus, the Supreme Court has very
recently denied review of these general challenges to lethal injection in proceedings where
execution was imminent. We conclude that the Court sees no merit in
the contention that lethal injection is a per se violation of the Eighth
III. The Death Penalty as Inherently Unconstitutional
Ritchie argues that the death penalty violates the Eighth Amendment and Article I,
Section 16 of the Indiana Constitution because it is not a deterrent to
crime. The constitutionality of the death penalty under the federal constitution was
resolved by the Supreme Court of the United States in Gregg v. Georgia,
428 U.S. 153 (1976). Ritchies contention under the State Constitution assumes
that deterrence is the only legitimate goal of a penal law and also
that the death penalty serves no deterrent purpose. Even if the former
is the case, in Gregg, the Supreme Court observed that the death penalty
serves as a valid deterrent in some situations and not in others. 428
U.S. at 186-87. Ritchies contention under the state constitution also seeks review
of settled precedent. We adhere to the view this Court expressed in
Evans v. State, 563 N.E.2d 1251, 1264 (Ind. 1990): The effectiveness of the
death penalty as a deterrent is debatable; resolution of that issue is a
matter for the legislature.
IV. Indiana Constitution A r ticle I, Section 12
Ritchie contends that the Indiana Death Penalty Statute offends Article I, Section 12
of the Indiana Constitution and the Due Process Clause of the federal constitution.
Article I, Section 12 requires that [j]ustice shall be administered freely, and
without purchase; completely, and without denial; speedily, and without delay. Ritchie points
out that an executed criminal cannot benefit from later found exculpatory evidence and
therefore cannot receive complete justice. Ritchie provides no authority to support his
contention that the death penalty violates Section 12 because a person cannot completely
obtain justice after execution. We do not find it persuasive. Complete,
as used in Section 12 does not mean perfect. Complete redress for
an unjust or erroneous conviction is often unavailable, whether the wrongly convicted person
is alive or dead. Despite our best efforts, neither the United States,
nor any other society has achieved perfection in its criminal justice system, and
the constitution does not require it.
V. Ex Post Facto
Ritchie killed Officer Toney on September 29, 2000. He was convicted on
August 10, 2002 and sentenced on October 15, 2002. An amendment to
the Death Penalty Statute became effective on July 1, 2002.
See footnote Ritchie argues
that the 2002 amendment to the Death Penalty Statute constitutes an
facto law because it effected a substantive change from the previous statute.
Under the old statute, the jurys weighing of aggravating factors and mitigating factors
and the ensuing recommendation was not binding on the trial judge. Under
the new statute, after receiving the jurys recommendation as to the death penalty,
the judge is to sentence accordingly. As of this writing, the United
States Supreme Court has granted certiorari in Schriro v.
Summerlin, 124 S.Ct. 833
(2003) to address the retroactive application of
Ring v. Arizona, 536 U.S. 584
(2002). In Summerlin, the Ninth Circuit held that Arizonas change in its
death penalty statute violated the ex post facto clause of the federal constitution
by substituting the jury for the judge as the agent required to find
the statutory aggravators. Summerlin v. Stewart, 341 F.3d 1082, 1108 (9th Cir. 2003)
(en banc), cert. granted sub nom, Schriro v. Summerlin, 124 S.Ct. 833.
Despite this holding, we believe the Indiana amendment neither changes the elements of
the crime nor enlarges its punishment. It simply mandates that once the
jury makes a recommendation, pursuant to its findings, the judge is to sentence
accordingly. As such, in our view the changes effected by the 2002
Indiana legislation are procedural in nature for purposes of the ex post facto
doctrine, and may be applied to crimes committed before the effective date.
As the Supreme Court held in Dobbert v. Florida, 432 U.S. 282, 293
(1977), a substantive change in a penal statute constitutes an ex post facto
law, but a procedural change is not ex post facto. The statute
in Dobbert established a bifurcated system in the wake of Furman v. Georgia,
408 U.S. 238 (1972) and thus simply altered the methods employed in determining
whether the death penalty was to be imposed; there was no change in
the quantum of punishment attached to the crime. Brice v. State, 815 A.2d
314, 321 (Del. 2003) (citations omitted). Similarly, a statute that enlarged the
class of people who were competent to testify in criminal cases was not
ex post facto because it did not increase the punishment nor change the
ingredients of the offense or the ultimate facts necessary to establish guilt.
Hopt v. Utah, 110 U.S. 574, 589-90 (1884). See also Collins v.
Youngblood, 497 U.S. 37, 51 (1990), where the Supreme Court held that a
statute that allowed an appellate court to reform an improper verdict that assessed
a punishment unauthorized by law was not an ex post facto law because
it did not (1) punish as a crime an act previously committed which
was innocent when done; (2) make more burdensome the punishment for a crime,
after its commission; nor (3) deprive one charged with a crime of any
defense available according to the law at the time the act was committed.
In our view, the amendments to the Indiana Death Penalty Statute did
none of these and is not invalid ex post facto legislation.
VI. The Weighing of Aggrava t ing and Mitigating Circumstances
Under the current version of the Indiana Death Penalty Statute, before the jury
can recommend the death penalty, it must find that (1) the state has
proved beyond a reasonable doubt that at least 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. Ind. Code § 35-50-2-9(l) (2003).
Thus, the Indiana statute requires the jury to find the existence of
one or more of the statutory aggravating circumstances beyond a reasonable doubt.
Unlike its counterparts in some states, it provides no guidance as to what
standard governs the weighing process.
Ritchie argues that the trial court improperly instructed the jury on the weighing
process contemplated by the second part of this subsection. Specifically, he contends
that the trial court should have instructed the jury that it must apply
a reasonable doubt standard in finding that the State proved that the aggravating
circumstances outweigh the mitigating factors. For the reasons explained below, we conclude
that this process is not subject to a reasonable doubt standard. The
Supreme Court has now made clear that statutory aggravators in Indianas Death Penalty
law are the functional equivalent of elements of a crime, and must be
found by a jury beyond a reasonable doubt. Ring v. Arizona, 536
U.S. 584, 605, 609 (2002). Ring applied to death penalty jurisprudence the
doctrine first developed in Apprendi v. New Jersey, 530 U.S. 466, 494 (2000),
that the Sixth Amendment right to jury trial requires that the jury make
any finding that exposes the defendant to a greater punishment. We believe
the pivotal inquiry under Ring and Apprendi is whether exposure to punishment is
increased, not whether the punishment should or should not be imposed in a
given case. As Ring explained: If a State makes an increase in
a defendants authorized punishment contingent on the finding of a fact, that factno
matter how the State labels itmust be found by a jury beyond a
reasonable doubt. Ring, 536 U.S. at 602 (citations omitted).
Indiana law, Indiana Code section 35-50-2-9, authorizes the death penalty if one or
more of the aggravating circumstances listed in subsection 9(b) is found. Although
our statute refers to the items listed in subsection 9(b) as aggravating circumstances,
that term is borrowed from sentencing statutes. As used in the death
penalty statute, it refers to the facts that must be found before a
defendant may be subject to the death penalty. We think it is
more useful to describe these factual determinations as eligibility factors. They are
the first step required of the trier of fact. In this case
that issue is rather simply resolved. Officer Toney, the victim of the
murder, was a law enforcement officer and there is no doubt that the
defendant knew that at the time he fired the fatal shot. Pursuant
to section 9(e), it is this fact, and this fact alone, that, if
proven beyond a reasonable doubt, enabled the jury to proceed to the second
step of weighing any mitigating circumstances against the aggravating factors.
Neither federal constitutional doctrine under Apprendi and Ring nor Indiana state jurisprudence leads
to the requirement that weighing be done under a reasonable doubt standard.
In Bivins v. State, 642 N.E.2d. 928, 946 (Ind. 1994), we concluded, as
a matter of state law, that [t]he determination of the weight to be
accorded the aggravating and mitigating circumstances is not a fact which must be
proved beyond a reasonable doubt but is a balancing process. (citations omitted).
Apprendi and its progeny do not change this conclusion. At its core,
Ritchies contention is that the outcome of the weighing process constitutes an eligibility
factor for imposition of the death penalty. If that were true, the
Sixth Amendment under Apprendi and Ring would require that it be subject to
a reasonable doubt standard. But we do not agree with that premise.
Rather, the federal constitution requires that eligibility for the death penalty be
determined by the jury beyond a reasonable doubt, but it does not require
that the decision whether to impose death be made by the jury, and
it does not require the weighing, whether by judge or jury, to be
under a reasonable doubt standard.
Other states with similar sentencing schemes have reached the same conclusion. Before
the 2002 amendment to the Indiana Death Penalty Statute, the jury made a
recommendation but the judge was the ultimate weigher, just as in non death
penalty sentencing. The weighing process determined whether the death penalty was to
be applied, but eligibility for the death penalty was complete upon the finding
of an eligibility factor. If, as Ritchie claims, weighing is required to
be performed by the jury under a reasonable doubt standard, the pre-2000 Indiana
scheme, and the current statute in Delaware, would violate the Sixth Amendment.
We conclude that neither is the case.
The Supreme Court of Delaware in Brice v. State, 815 A.2d 314 (Del.
2003), addressed the post-Ring constitutionality of Delawares death penalty statute. That states
statute assigns to the sentencing judge the sole responsibility for determining whether to
impose the death penalty after weighing aggravating and mitigating factors. In the
view of the Supreme Court of Delaware, this approach remains constitutional after Ring.
Ring does not apply to the weighing phase because weighing does not
increase the maximum punishment. Rather it resolved the punishment to be administered
within the range fixed by the fact finding. It is designed to
ensure that the punishment imposed is appropriate and proportional. Id. at 322.
The analysis of the California Supreme Court is consistent with this view.
Under the California statute, if the jury finds a special circumstance in the
guilt phase, a penalty phase determines whether to impose death. People v.
Prieto, 66 P.3d 1123 (Cal. 2003), addressed the claim that an instruction of
presumption of innocence must be given in the penalty phase. The California
Supreme Court rejected this claim and observed that Ring and Apprendi are satisfied
by the California statutory scheme:
Under the California death penalty scheme, once the defendant has been convicted of
first degree murder and one or more special circumstances has been found true
beyond a reasonable doubt, death is no more than the prescribed statutory maximum
for the offense; the only alternative is life imprisonment without the possibility of
Id. at 1147 (emphasis in original) (citations omitted). In explaining this conclusion,
the California Supreme Court cited the U.S. Supreme Courts holding in Tuilaepa v.
California, 512 U.S. 967, 972 (1994), that under the California framework, the jury
[in the penalty phase] merely weight the factors enumerated in section 190.3 and
determines whether a defendant eligible for the death penalty should in fact receive
that sentence. Id. We agree and think the same reasoning applies to
the Indiana statute.
Similarly, the Nebraska Supreme Court held that Ring affects only the narrow issue
of whether there is a Sixth Amendment right to have a jury determine
the existence of any aggravating circumstance upon which a capital sentence is based.
Nebraska v. Gales, 658 N.W.2d 604, 623 (Neb. 2003). Under Nebraskas post-Ring
death penalty statute, the jury is not to determine mitigating circumstances or balance
aggravators and mitigators. The Court contrasted the eligibility determination which the jury
makes with the death selection process which Nebraska vests in the judge:
It is the determination of death eligibility which exposes the defendant to greater
punishment, and such exposure triggers the Sixth Amendment right to jury determination as
delineated in Apprendi and Ring. In contrast, the determination of mitigating circumstances,
the balancing of aggravating circumstances against mitigating circumstances, and proportionality review are part
of the selection decision in capital sentencing, which, under the current and prior
statutes, occurs only after eligibility has been determined. These determinations cannot increase
the potential punishment to which a defendant is exposed as a consequence of
the eligibility determination. Accordingly, we do not read either Apprendi or Ring
to require that the determination of mitigating circumstances, the balancing function, or proportionality
review be undertaken by a jury.
Id. at 627-28 (citations omitted). VII. Trial Rule 59(J)(7)
The Maryland Supreme Court reached the same conclusion. Marylands death penalty statute
allows imposition of a death sentence if the sentencing authority determines that aggravating
circumstances outweigh any mitigating circumstances by a preponderance of the evidence. Oken v.
State, 835 A.2d 1105, 1147 (Md. 2003). In holding the preponderance of
the evidence standard constitutional, the Court stated:
As is readily apparent from the opinion of the Court, Ring only addresses
the eligibility phase of the sentencing process. Those aggravating factors which narrow
the class of death-eligible defendants for Eighth Amendment purposes must be found by
a proper sentencing authority beyond a reasonable doubt in order to comply with
the requirements of the Sixth Amendment. Contrary to the present assertions of Oken,
Ring holds no implications for the selection phase of Marylands sentencing process.
We note the contrary view of the Nevada Supreme Court. In Johnson
v. State, 59 P.3d 450 (Nev. 2002), that Court concluded that the weighing
process is in part a factual determination, not merely discretionary weighing. Id.
at 460. Although the Nevada Supreme Court observed that Ring expressly did
not address any Sixth Amendment claim with respect to mitigating circumstances, the court
concluded that Ring required a jury finding as to weighing. Id. For
the reasons already given we respectfully disagree.
In sum, we conclude that the Indiana Death Penalty Statute does not violate
the Sixth Amendment as interpreted by Apprendi and Ring. Once a statutory
aggravator is found by a jury beyond a reasonable doubt, the Sixth Amendment
as interpreted in Ring and Apprendi is satisfied. Indiana now places the
weighing process in the hands of the jury, but this does not convert
the weighing process into an eligibility factor. The outcome of weighing does
not increase eligibility. Rather, it fixes the punishment within the eligible range.
It is therefore not required to be found by a jury under
a reasonable doubt standard. And as a matter of Indiana state law,
under the Indiana death penalty statute the weighing process is not subject to
a reasonable doubt standard. That second step, consistent with the view we
expressed in Bivins, is in part a determination whether to impose the maximum
sentence allowed. That is an exercise in judgment that is not capable
of evaluation beyond a reasonable doubt, and our statute properly omits any standard
by which it is to be measured.
Indiana Trial Rules apply to criminal proceedings if they do not conflict with
the Rules of Criminal Procedure. Moore v. State, 403 N.E.2d 335, 336 (Ind.
1980). Indiana Criminal Rule 16(B) expressly incorporates Trial Rule 59 dealing with
Motions to Correct Error insofar as applicable and when not in conflict with
any specific rule adopted by the Indiana Supreme Court for the conduct of
criminal procedure. Ritchie contends that the death penalty statute conflicts with Trial
Rule 59. Indiana Trial Rule 59(J)(7) provides that a trial court is
to grant a new trial if the jury verdict is against the weight
of the evidence. Ritchie contends that this Rule trumps Indiana Code section
35-50-2-9(e)(2) (2002) which requires a trial judge, after receiving the jurys recommendation in
a death penalty case, to sentence the defendant accordingly.
In general, if a statute conflicts with a validly adopted Trial Rule, the
rule prevails. Harrison v. State, 644 N.E.2d 1243, 1251 n.14 (Ind. 1995) (overruled
on other grounds). But here we find no conflict. By its
terms, Rule 59(J)(7) applies to verdicts, judgments, and findings. The Rule does
not apply to the weighing process that occurs pursuant to the Death Penalty
Statute, because that process is neither a verdict, a judgment, nor a finding.
As explained in Part VI, the weighing process in Indianas Death Penalty
Statute differs from the traditional jury functions of finding facts and reaching a
verdict. The weighing process is similar to the exercise undertaken by the
judge in all contexts other than the death penalty. Just as it
does not lend itself to being judged beyond a reasonable doubt, it is
not susceptible to evaluation as against the weight of the evidence.
VIII. Prosecutorial Misconduct
Ritchie contends that two instances of alleged prosecutorial misconduct warrant a mistrial.
If an appellant properly preserves the issue of prosecutorial misconduct for appeal the
reviewing court first determines whether misconduct occurred, and if so whether it had
a probable persuasive effect on the jury. Brown v. State, 799 N.E.2d 1064
(Ind. 2003); Cox v. State, 696 N.E.2d 853, 859 (Ind. 1998). Although
often phrased in terms of grave peril, a claim of improper argument to
the jury is measured by the probable persuasive effect of any misconduct on
the jurys decision and whether there were repeated instances of misconduct which would
evidence a deliberate attempt to improperly prejudice the defendant. Brown, 799 N.E.2d 1064,
1066 n.1 (citations omitted); Lopez v. State, 527 N.E.2d 1119, 1125 (Ind. 1988).
See also, Rodriguez v. State, 795 N.E.2d 1054, 1059 (Ind. Ct. App.
2003) (trans. denied). We conclude that these occurrences do not warrant a
A. Michael Moodys testimony
Ritchie planned to call his accomplice, Michael Moody, as a witness. Subsequently,
Moody invoked his Fifth Amendment rights because the prosecution notified Moody that it
planned to charge Moody in connection with the death of Officer Toney.
Ritchie contends that the States charging Moody functionally prevented Moody from testifying and
giving exculpatory evidence at trial.
See footnote Ritchie offers no evidence that the State
overstepped its authority or d
eliberately charged Moody for the purpose of preventing him
from testifying. Prosecutorial misconduct may occur when the prosecution chills potential defense
testimony by threats of prosecution or vindictive behavior. To prove misconduct of
this type, the defendant must show that the State acted with the deliberate
intention of distorting the judicial fact-finding process. Moore v. State, 655 N.E.2d
1251, 1253 (Ind. Ct. App. 1995) (citations omitted). The mere fact that
the State charged Moody after Ritchie listed Moody as a witness does not
establish that the State purposely did this to distort fact-finding in Ritchies case.
Ritchie provides no other evidence to support this claim, and this showing
is not enough. Unlike United States v. Valenzuala-Bernal, 458 U.S. 858 (1982),
where the government deported the witness, Moodys unavailability resulted from his unilateral election
to exercise his Fifth Amendment right.
B. Ritchies Tattoo
The prosecutor referred during the guilt phase to a tattoo on Ritchies neck
displaying the numbers three and seven. Ritchie contends that this was a
reference to officer Toneys badge number. There is no showing that the
jury was aware that Officer Toneys badge number was 37. The potential
prejudice is therefore solely whatever effect Ritchies having a tattoo might have on
the jury. Ritchie argues that this reference constituted prosecutorial misconduct because the trial
judge had granted Ritchies motion in limine to bar reference to the tattoo
during the guilt phase. Sanctions for violation of the trial courts pretrial
order are for the trial court to assess. Underwood v. State, 644
N.E.2d 108, 111 (Ind. 1994). The issue before this Court is whether
the misconduct requires a retrial, not whether it violates a trial court order.
As a freestanding ground for mistrial, the trial courts rulings as to misconduct
are reviewed for abuse of discretion. Although the reference may have constituted misconduct,
in order to grant a mistrial, the trial court must determine that no
lesser step could have rectified the situation. Id. The trial court has
discretion in determining whether to grant a mistrial, and the decision is afforded
great deference on appeal because the trial court is in the best position
to gauge the surrounding circumstances of the event and its impact on the
jury. Schlomer v. State, 580 N.E.2d 950, 955 (Ind. 1991). The trial
court felt that the reference was not so prejudicial to warrant a new
trial. We hold that the trial court did not abuse its discretion
in ruling as it did and we decline to disturb the trial judges
IX. Sufficiency of the Evidence
Ritchie challenges the sufficiency of the evidence that he had the requisite mens
rea to support the murder conviction. As a general matter, when reviewing
a claim of insufficient evidence, we decline to reweigh the evidence and substitute
our judgment for that of the trial court. Soward v. State, 716 N.E.2d
423, 425 (Ind. 1999). A claim of insufficient evidence will prevail if
no reasonable trier of fact could have found Ritchie guilty beyond a reasonable
doubt. Torres v. State, 673 N.E.2d 472, 473 (Ind. 1996). Ritchie argues
that he shot at Officer Toney without aiming, and there is therefore insufficient
evidence to show intent to kill. Ritchie contends that certain evidence presented
at trial displays his lack of intent. Ritchie notes that the expert
witnesses could not establish whether Ritchie was stationary or not, or which way
he was facing when he fired the shots, or whether he was moving
towards or away from Officer Toney. Either an intentional or a knowing
killing is required for murder. Ind. Code § 35-41-2-2 (1998). Lehman
v. State, 730 N.E.2d 701, 704 (Ind. 2000). A person knowingly kills
when aware of a high probability that he is engaged in a killing.
A person acts intentionally if when he engages in the conduct, it
is his conscious objective to do so. I.C. § 35-41-2-2(a-b); Heavrin v. State,
675 N.E.2d 1075, 1079 (Ind. 1996). Both intentional and knowing actions may
be inferred from the circumstances. Mitchell v. State, 557 N.E.2d 660, 664 (Ind.
1990); Johansen v. State, 499 N.E.2d 1128, 1132 (Ind. 1986); Cole v. State,
475 N.E.2d 306, 308 (Ind. 1985). Shooting a handgun, even if merely
shooting backwards without stopping and aiming, in an effort to slow down a
pursuing officer meets the test of knowing.
Francis v. State, 758 N.E.2d
528, 535 (Ind. 2001); Hawkins v. State, 748 N.E.2d 362, 363 (Ind. 2001).
Ritchie claims he did not physically trap officer Toney and methodically murder
him. A reasonable trier of fact could nevertheless readily find that his
conduct satisfied the element of a knowing killing.
Even if we accept Ritchies claim that the shooting was subjectively intended to
slow down officer Toney, one who fires a handgun in this manner may
be found to be aware of a high probability that death will result.
Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998). Accord Cook v.
State, 675 N.E.2d 687, 692 (Ind. 1996) (Firing three shots in the general
direction of a victim constitutes using a deadly weapon in a manner likely
to cause death.) Ritchie fired four shots, and at least two were
fired from a stationary position. Finally, there is no serious doubt that
Ritchie was aware his victim was a law enforcement officer. These facts
are enough for a reasonable trier of fact to conclude that Ritchie knew
he was being chased by a law enforcement officer and that he knowingly
killed Officer Toney. The jury was properly instructed on this point and
X. Juror Note
After the verdict, but before the jury retired to deliberate on the death
penalty, a juror sent a note to the trial judge stating that she
wanted to file a complaint against one of Ritchies attorneys because of his
reference to her during his closing argument. Specifically, the juror complained of
two statements. First, the defense attorney said: The foreman will write their
name, or should I say forewoman, because we all know who that is.
The juror thought it was improper for Ritchies counsel to identify the
foreperson in that manner. Second, Ritchies counsel mentioned a song in closing
argument and noted [t]his one goes so far back none of you remember
it, but [the foreperson] . . . . The foreperson was offended
by what she saw as counsels singling her out and identifying her by
name in front of the entire courtroom. She equated this to a
moral wrong. In response, the trial judge inquired as to whether the
attorneys comments affected the jurors deliberations. She replied that it did not
and added her view that it did not affect the other jurors deliberations.
Ritchie provides no support for the view that the mere fact that
the juror was upset with Ritchies attorney warrants a new trial. Rather,
he complains of a reference by his own counsel, but he asserts no
claim of ineffective assistance. Joyner v. State, 736 N.E.2d 232, 237 (Ind. 1999)
(A defendant may not invite error and then complain on review.)
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, and Sullivan, JJ., concur.
Rucker, J., concurs in part and dissents in part with separate opinion.
Rucker, J., concurs in part and dissents in part.
Because I believe the jury must find beyond
a reasonable doubt that any
mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances I
respectfully dissent from Part VI of the majority opinion.
The majority cites
Bivins for the proposition that [t]he determination of the weight
to be accorded the aggravating and mitigating circumstances is not a fact which
must be proved beyond a reasonable doubt but is a balancing process.
Slip op. at 8 (quoting Bivins, 642 N.E.2d at 946). Whatever validity
this proposition may have had previously, it can no longer pass constitutional muster
under the doctrine expressed in Apprendi and Ring.
In the abstract it does appear sound to say that [o]nce a statutory
aggravator is found by a jury beyond a reasonable doubt, the Sixth Amendment
as interpreted in Ring and Apprendi is satisfied . . . . The
outcome of weighing does not increase eligibility. Rather, it fixes the punishment
within the eligible range. Slip op. at 10-11. Indeed the Apprendi/Ring
doctrines do not dictate which factors a State may require for imposition of
capital punishment. Rather, States are free to determine these factors for themselves.
However, once the factors are determined, the Sixth Amendment as interpreted by
Apprendi and Ring require that they be submitted to the jury and proved
beyond a reasonable doubt.
Unlike the capital sentencing schemes in some other
See footnote our statute unequivocally requires the existence of two distinct factors before death
can be imposed. The statute reads in pertinent part:
(e) For a defendant sentenced after June 30, 2002 . . . .
[t]he jury may recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (
Subsection (l) reads:
Before a sentence [of death or life without parole may be imposed] the
jury . . . must find that:
(1) the state has proved beyond a reasonable doubt that at least 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
I.C. § 35-50-2-9(e), (l) (emphasis added). Consistent with legislative mandate this Court
also has recognized that both factors must be established before a capital sentence
may be imposed. See, e.g.,
Brown v. State, 698 N.E.2d 1132, 1144
(Ind. 1998) (Before a sentence of death may be imposed [o]ur death penalty
statute requires the sentencer to find at least one aggravating circumstance beyond a
reasonable doubt, to consider and evaluate any mitigating factor it may find to
exist, and to weigh the aggravators and mitigators . . . . (emphasis
Judy v. State, 275 Ind. 145, 416 N.E.2d 95, 106 (1981) (
jury may recommend the death penalty only if it unanimously finds beyond a
reasonable doubt that at least one of the aggravating circumstances exists, and that
the mitigating circumstances, if any, do not outweigh the aggravating circumstances. (emphasis added)).
In essence our Legislature has chosen to make death eligibility contingent upon the
finding of two separate and independent factors. The majority parses these factors
by characterizing one as an eligibility factor and the other an e
judgment. See slip op. at 8, 11. However, regardless of the
labeling, the Supreme Court has made clear that the relevant inquiry is one
not of form but of effectdoes the required finding expose the defendant to
a greater punishment than that authorized by the jurys guilty verdict? Apprendi,
530 U.S. at 494. If a State makes an increase in a
defendants authorized punishment contingent on the finding of a fact, that factno matter
how the State labels itmust be found by a jury beyond a reasonable
doubt. Ring, 536 U.S. at 602. In this jurisdiction, the increase
of a defendants punishment from a term of years to a sentence of
death is contingent not only upon the existence of one or more aggravating
factors, but also upon a finding that the aggravating factor(s) outweigh(s) any mitigating
factor(s). See I.C. § 35-50-2-9(e), (l). This statutory finding is a
necessary predicate to the imposition of a death sentence. [A]ll facts essential
to imposition of the level of punishment that the defendant receiveswhether the statute
calls them elements of the offense, sentencing factors, or Mary Janemust be found
by the jury beyond a reasonable doubt. Ring, 536 U.S. at 610
(Scalia, J., concurring). Simply put, it is the structure of Indianas capital
sentencing statute that pulls it within the embrace of the Apprendi and Ring
doctrine. The plain language of Indianas capital sentencing scheme makes death eligibility
contingent upon certain findings that must be weighed by the jury. I
agree with the majority that these findings require an exercise in judgment.
See slip op. at 11. Nonetheless they are at a minimum the
type of findings anticipated by Apprendi and Ring and thus require proof beyond
a reasonable doubt.
This does not mean however that I would declare unconstitutional the weighing portion
of Indianas death penalty statute.
Every statute stands before us clothed with
the presumption of constitutionality until clearly overcome by a contrary showing. Eukers
v. State, 728 N.E.2d 219, 221 (Ind. Ct. App. 2000).
otherwise acceptable construction of a statute would raise serious constitutional problems, and where
an alternative interpretation of the statute is fairly possible, we are obligated to
construe the statute to avoid such problems. I.N.S. v. St. Cyr, 533
U.S. 289, 299-300 (2001) (citation omitted); Price v. State, 622 N.E.2d 954, 963
(Ind. 1993). [C]onstitutionally doubtful constructions should be avoided where fairly possible. Miller
v. French, 530 U.S. 327, 336 (2000) (internal quotation omitted);
Bennett v. State,
801 N.E.2d 170, 174 (Ind. Ct. App. 2003), trans. not sought.
would therefore construe section 35-50-2-9(l) of the Indiana Code as implicitly requiring the
jury to find beyond a reasonable doubt that any mitigating circumstances that exist
are outweighed by the aggravating circumstance or circumstances. As thus interpreted the
statute passes constitutional muster.
The question then is what is the effect in this case of the
trial courts failure to instruct the jury that it must apply a reasonable
doubt standard in the weighing process? The record shows the trial court
gave several preliminary as well as final jury i
nstructions concerning the weighing of
aggravating and mitigating circumstances. None required a reasonable doubt standard. However, the
record shows that Ritchie did not object at trial to the jury instructions
given by the trial court nor did he submit instructions of his own.
Thus, this issue is waived for review unless fundamental error occurred.
Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996). Fundamental error is
error that represents a blatant violation of basic principles rendering the trial unfair
to the defendant and thereby depriving the defendant of fundamental due process.
Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). The error must
be so prejudicial to the rights of the defendant as to make a
fair trial impossible. Id. In determining whether a claimed error denies
the defendant a fair trial, we consider whether the resulting harm or potential
for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730 (Ind.
1994). The element of harm is not shown by the fact that
a defendant was ultimately convicted. Id. Rather, it depends upon whether
the defendants right to a fair trial was detrimentally affected by the denial
of procedural opportunities for the ascertainment of truth to which he would have
been entitled. Id.
Here, Ritchie makes no claim of fundamental error nor does the record support
such a claim. As aggravating circumstances the State alleged in the penalty
phase of trial that the victim of Ritchies murder was a law enforcement
officer acting in the course of duty when murdered,
see I.C. § 35-50-2-9(b)(6)(A);
and that Ritchie committed the murder while on probation. See I.C. §
35-50-2-9(b)(9)(C). The State incorporated evidence introduced in the guilt phase of trial
to support its allegation. In mitigation Ritchie, who was twenty-two years of
age at the time of the murder, introduced evidence of his difficult childhood
that included his lack of bonding before the age of two. During
closing argument Ritchie highlighted his mitigation evidence and argued passionately for a term
of years or at least no more than a sentence of life without
parole. Tr. at 2839-54. The jury rejected Ritchies argument, found that
the State had proved beyond a reasonable doubt the existence of both aggravating
circumstances, found that the aggravating circumstances were not outweighed by the mitigating circumstances,
and recommended the death penalty. Under the circumstances Ritchie has failed to
demonstrate that he was denied a fair trial. In sum no fundamental
error occurred on this issue.
For the reasons expressed, I dissent from part VI of the majority opinion.
In all other respects I concur.
Subsection (e) of Indianas Death Penalty Statute was amended to provide that
for defendants se
ntenced after June 30, 2002, if the jury reaches a sentencing
recommendation, the court shall sentence the defendant accordingly. Act of Mar. 26, 2002,
Pub. L. No. 117-2002, 2002-2 Ind. Acts 1734. This replaced the following
language: The court shall make the final determination of the sentence, after considering
the jurys recommendation, and the sentence shall be based on the same standards
that the jury was required to consider. The court is not bound
by the jurys recommendation. Id.
Some states provide in their statutes that a reasonable doubt standard be
imposed, others impose a pr
eponderance of the evidence standard, and some, like Indiana,
are silent. Compare Ark. Code Ann. § 5-4-603 (Michie 1987); Conn. Gen. Stat.
§ 53a-46a (2003) (reasonable doubt standard not directly in statute, but interpreted as
such in Connecticut v. Rizzo, 833 A.2d 363, 410-11 (Conn. 2003)); N.J. Stat.
Ann. § 2C:11-3(c)(3) (2004); N.Y. Crim. Proc. Law § 400.27(11)(a) (McKinney 2004); Ohio
Rev. Code Ann. § 2929.03(D)(1) (West 2004); Tenn. Code Ann. § 39-13-204(g)(1)(B) (2003);
Utah Code Ann. § 76-3-207(5)(b) (2004) (reasonable doubt), with Del. Code Ann. tit.
11 § 4209(d)(1) (2004); Md. Code Ann. Crim. § 3-203(i)(1) (2003); Mo. Code
§ 565.030.4 (West 2004) (preponderance of the evidence).
The Alabama Supreme Court took a similar approach, stating Contrary to [Defendant]s
ument, the weighing process is not a factual determination. In fact, the
relative weight of aggravating circumstances and mitigating circumstances is not susceptible to any
quantum of proof. . . . Thus the weighing process is not
a factual determination or an element of an offense; instead it is a
moral or legal judgment that takes into account a theoretically limitless set of
facts and that cannot be reduced to a scientific formula or the discovery
of a discrete, observable datum. Ex Parte Waldrop v. Alabama, 859 So.2d 1181,
1189 (Ala. 2002) (citations omitted).
Moody allegedly was to testify regarding Ritchies intent in that Ritchie allegedly
told Moody that he fired his gun without turning around. Moody was
also to testify that Ritchie said he did not know that the officer
had been hit. Both of these would presumably be inadmissible hearsay.
To establish Ritchies remorse, Ritchie says Moore would also testify that Ritchie cried
on Moodys shoulder when he heard that he killed Off
In support of its view the majority cites authority from foreign jurisdictions
whose death penalty statutes are materially different from those of Indiana. See,
e.g., California v. Prieto, 66 P.3d 1123 (Cal. 2003) (discussing California Penal Code
section 190.2, which declares that the
penalty for a defendant who is found
guilty of murder in the first degree is death or [life without parole]
if one or more of the following special circumstances has been found).
The weighing factor merely sets the penalty within the maximum allowed range).
See Pulley v. Harris, 465 U.S. 37, 51-52 (1984) (declaring that [u]nder [Californias]
scheme, a person convicted of first-degree murder is sentenced to life imprisonment unless
one or more special circumstances are found, in which case the punishment is
either death or life imprisonment without parole . . . . The trial
judge then reviews the evidence and, in light of the statutory factors, makes
an independent determination as to whether the weight of the evidence supports the
jurys findings and verdicts.(quoting section 190.4(e)
Brice v. Delaware 815 A.2d 314 (Del.
2003) (discussing title 11, section 4209 of the Delaware Code, which declares: [I]f
the existence of at least 1 statutory aggravating circumstance . . . has
been found beyond a reasonable doubt by the jury, the Court . .
. shall impose a sentence of death if the Court finds by a
preponderance of the evidence . . . that the aggravating circumstances . .
. outweigh the mitigating circumstances found by the Court to exist. §
4209(d)(1)); Nebraska v. Gales, 658 N.W.2d 604 (Neb. 2003) (discussing sections 29-2520(4)(g) and
(h) of the Nebraska Revised Statutes under which the jury is dismissed once
it finds the existence of aggravating factors beyond a reasonable doubt:
its verdict as to the determination of the aggravating circumstances, the jury shall
be discharged. § 29-2520(4)(g).
The weighing process and final sentence are left
to the discretion of a panel of judges:
If one or more aggravating
circumstances are found to exist, the court shall convene a panel of three
judges to hold a hearing to receive evidence of mitigation . . .
. § 29-2520(4)(h).).