ATTORNEY FOR APPELLANT
Jess M. Smith, III
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
WAYNE ANTHONY MULL, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 89S00-0012-CR-747
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE WAYNE CIRCUIT COURT
The Honorable Douglas H. VanMiddlesworth, Judge
Cause No. 89C01-9407-CF-85
ON DIRECT APPEAL
June 25, 2002
Wayne Mull pleaded guilty to murder and was sentenced to life without parole
after a penalty phase tried to the court. In this direct appeal,
Mull contends that the trial court erred by: (1) admitting testimony of two
witnesses; (2) finding that the State proved beyond a reasonable doubt that the
murder was committed by intentionally killing the victim during the commission of a
burglary and attempted rape; and (3) finding that the mitigating circumstances are outweighed
by the aggravating circumstances. We affirm.
Factual and Procedural Background
On July 4, 1994, Mindy Mull was found dead in her upstairs apartment.
Her hands and feet were bound and her naked body was tied
to a radiator. The apartment door was splintered, tool marks were found
around the lock of the door, and the strike plate on the door
jamb was missing a screw.
Wayne Mull, who was not related to the victim, was a tenant in
a downstairs apartment of the building. After first denying any involvement, Wayne
confessed to murdering Mindy. According to his confession, Wayne knocked on the
door and was admitted by Mindy. He stated that the two were
holding each other and talking [and] one thing led to another. At
some point, Mindy told him to stop and struck him when he pursued
his advances. He then lost control, stabbed her with a pair of
scissors, pulled her into the kitchen by her hands, tied her to the
radiator with a phone cord, and took off. The State initially charged
Wayne with murder, attempted rape, criminal confinement, and burglary. Wayne then pleaded
guilty to murder in exchange for dismissal of all other counts. The
plea agreement allowed both parties to argue for penalties within the applicable statutory
limitations, including life imprisonment without parole.
On September 7, 1995, the trial court sentenced Wayne to life imprisonment without
parole. Waynes trial counsel was appointed to represent him on appeal, and
although a praecipe was filed in October 1995, no appellate brief was timely
filed. In January 2001, after this Court granted a petition to file
a belated appeal and removed Waynes trial counsel as appellate attorney, the trial
court appointed new counsel. After Wayne filed his appellate brief in March
2001, the State moved to remand conceding that the trial courts sentencing order
did not meet the requirements for an order imposing life without parole.
See Ajabu v. State, 693 N.E.2d 921, 940 n.24 (Ind. 1998) (life without
parole is subject to death penalty sentencing and requirements); Harrison v. State, 644
N.E.2d 1243, 1262 (Ind. 1995) (setting forth death penalty sentence requirements). This
Court granted the motion to remand for entry of a new sentencing order.
The trial court then entered a renewed sentencing order and reaffirmed the
sentence of life imprisonment without parole.
I. Admitting Witness Testimony
Wayne argues that the court erred in considering the penalty phase testimony of
Angela Pierson and Melissa Jo Loudy. Over Waynes objections, Pierson, Mindys roommate,
testified that Mindy thought Wayne was strange. Loudy, another of Mindys friends,
testified that Mindy had described Wayne as weird and complained that Wayne would
always watch her and always know where she was going or what she
was doing [and] always stop her by the door and just sit and
make conversation with her and she didnt really want to talk to him.
The trial court admitted this testimony under Indiana Evidence Rule 803(3).
That rule provides an exception to the hearsay rule for [a] statement of
the declarants then existing state of mind, emotion, sensation, or physical condition (such
as intent, plan, motive, design, mental feeling, pain and bodily health) . .
. . Relying on
Komyatti v. State, 490 N.E.2d 279 (Ind. 1986),
Wayne argues that this was error because the victims state of mind prior
to the murder was irrelevant. He contends that comments made by the
victim at some unknown point in time prior to the crime had no
relevance to the charged aggravated circumstances, which were that the defendant intentionally killed
the victim in the course of both a burglary and an attempted rape.
He further argues that at the time these statements were admitted, Wayne
had not placed the victims state of mind at issue.
Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. Ind. Evidence Rule 801(c). Here, the testimony that
Mindy viewed Wayne as strange or weird was not offered to prove that
he was in fact strange or weird. Similarly, Loudys testimony that Mindy
complained about Waynes watching her and his repeated attempts to engage her in
conversation was not offered to prove that these events occurred. Rather, this
evidence was offered to prove that Mindy did not consensually admit Wayne into
her apartment or voluntarily have sexual intercourse with him.
We believe the trial court correctly found this evidence to be relevant.
Wayne placed Mindys state of mind in issue by claiming that the sexual
activity was consensual. Moreover, defense counsel placed the victims state of mind
in issue by cross-examining the detective as to Waynes claim that the victim
admitted Wayne to her apartment. Mindys recently expressed opinions of Wayne make
it less likely that she would either have admitted him to her apartment
or engaged in consensual sex with him.
II. Intent to Commit Burglary and Attempted Rape
Were Proven Beyond Reasonable Doubt
Before a defendant can be sentenced to life imprisonment without parole for murder,
the State must prove beyond a reasonable doubt the existence of at least
one aggravating circumstance listed in Indiana Code section 35-50-2-9(b). Here, the trial
court found, beyond reasonable doubt, that Wayne intentionally killed Mindy while committing burglary
and attempted rape. Wayne argues that the trial court could not find
either of these aggravating circumstances beyond a reasonable doubt.
Here, the trial court found an intentional killing in the commission of an
attempted rape. Indiana Code section 35-42-4-1 states that a person who knowingly
or intentionally has sexual intercourse with a member of the opposite sex when
. . . the other person is compelled by force or imminent threat
of force commits rape. Indiana Code section 35-41-5-1 defines attempt in relevant
part: A person attempts to commit a crime when, acting with the culpability
required for the commission of the crime, he engages in conduct that constitutes
a substantial step toward commission of the crime. Wayne argues that although
he admitted that he continued to try to have intercourse with Mindy after
she told him to stop, there was no evidence that this occurred by
use of force or the imminent threat of force.
Mindy was found naked, bound hand and foot, and tied to a radiator
in the kitchen of her apartment. She was lying in a pool
of blood with a blood-soaked blanket beneath her and a pillow at her
head. On the pillow was a bloody pair of scissors. The
autopsy revealed that Mindy had black eyes (bleeding around and in the eyes),
abrasions to her nose and left cheek, contusions and abrasions of her knuckles.
There were abrasions on her knees, ligature marks on her wrists and
ankles from being tightly bound. On the upper back, at the base
of her neck, there was a large area of bruising indicating she had
been struck there at least twice. On her leg were contusions corresponding
to the configuration of the radiator to which she was tied, indicating that
she struggled against the radiator. The cause of her death was a
severed carotid artery that, according to the forensic pathologist, would have caused her
to bleed to death within a minute or two of receiving the fatal
stab wounds. A detective testified that he observed scratches on the defendant
within two days of the murder. A forensic DNA analyst testified that
the two blood stains on a blouse found in the victims apartment contained
DNA consistent with both Waynes and Mindys. Another forensic expert testified that
pubic hairs similar to Waynes sample were found on the victim and in
various places in the victims apartment. This is more than enough evidence
to support the trial courts finding that Wayne intentionally killed Mindy during the
commission of attempted rape.
Wayne next contends that the trial court erred in finding that he intentionally
murdered the victim while committing burglary. Burglary is breaking and entering with
intent to commit a felony. I.C. § 35-43-2-1. Wayne argues that
the victim let him into the apartment after he knocked on the door
and his intent to commit a felony only arose after Mindy hit him.
He points out that the State never recovered any tool or instrument
that was allegedly used to cause damage to the door. He also
contends that Mindys roommate failed to notice any damage to the door when
she returned to the apartment immediately before finding the victim.
Mindys friends testified that Mindy thought Wayne was strange and weird and would
not be allowed into the apartment alone. There was fresh damage to
the door and door jamb. The landlord testified that he replaced the
locks on the apartment when Mindy and her roommate moved in about three
weeks before the murder, and the roommate was certain that the door was
not damaged when she left the apartment the day before she found Mindys
body. Once in the apartment, the evidence of multiple felonies including confinement
and battery is obvious.
The second amended information charged burglary with intent to commit rape. The
aggravating circumstance charged was burglary without specifying the intended felony underlying the burglary.
Assuming without deciding that the felony supporting the burglary in the aggravating
factor must be the same as the felony underlying the burglary charged in
the initial information, the trial court found attempted rape, so the intent to
commit the charged felony of rape underlying the burglary charge may be inferred.
This is another application of the general doctrine that one may infer the
intent at the time of entry from the fact of subsequent commission of
a felony. See Gee v. State, 526 N.E.2d 1152, 1154 (Ind. 1988)
(stating that a jury can infer from the surrounding circumstances whether a defendant
entered a structure with the intent to commit the felony charged therein); Jewell
v. State, 672 N.E.2d 417, 427 (Ind. Ct. App. 1996), trans. denied (holding
that [a]lthough the fact of breaking and entering is not itself sufficient to
prove entry was made with the intent to commit the felony, such intent
may be inferred from subsequent conduct of the defendant inside the premises).
If credited, this evidence of breaking and entering and intent to commit a
felony seems more than clear. Credibility is for the trial court.
Accordingly, the finding of this aggravating circumstance is affirmed.
III. Aggravating Circumstances Outweigh Mitigating Circumstances
Wayne contends that the trial courts imposition of life imprisonment without parole was
based upon an erroneous finding that the aggravating circumstances outweighed the mitigating circumstances.
The trial court found two aggravating circumstances: Wayne committed the murder
by intentionally killing the victim while committing burglary and also while attempting to
commit rape. The trial court explicitly found four mitigating circumstancesremorse, guilty plea,
mental health issues, and developmental historybut nevertheless concluded that the aggravating circumstances together
and independently outweigh the mitigating circumstances.
Citing Trueblood v. State, 715 N.E.2d 1242 (Ind. 1999), Wayne contends that his
guilty plea should have been recognized as a significant mitigating circumstance. He
argues that the plea prevented the necessity of a lengthy jury trial and
points out that the trial court previously commented that his plea resolved matters
prior to the sentencing hearing, including the States necessity to develop a chain
of custody for the evidence. In its Sentencing Order, the trial court
acknowledged that guilty pleas are usually accorded significant weight as a mitigating circumstance,
but concluded that, in this case, it constituted minimal mitigation. The trial
court pointed out that the State was forced to try most of its
case in order to prove the aggravating factors. Given the confession and
the physical evidence, conviction of murder seems inevitable. A guilty plea is
not automatically a significant mitigating factor. Sensback v. State, 720 N.E.2d 1160,
1165 (Ind. 1999); see also Davies v. State, 758 N.E.2d 981, 987 (Ind.
Ct. App. 2001), trans. denied (affirming the trial courts refusal to find defendants
guilty plea as a mitigating circumstance when the record indicated that the plea
was more likely the result of pragmatism than acceptance of responsibility and remorse).
Under these circumstances, we do not believe the court abused its
discretion in according only minimal weight to Waynes guilty plea.
Wayne also contends that two statutory mitigating circumstances under Indiana Code section 35-50-2-9(c)(2)
and (6) were erroneously rejected by the trial court.
See footnote Specifically, he argues
that the testimony of Dr. Gregory Karch, the defense psychologist, demonstrated the existence
of emotional disturbance when the murder was committed and mental disease or intoxication.
He directs us to no authority for this contention. The trial
court considered the testimony of Dr. Karch, but did not find the statutory
mitigating circumstance of
extreme mental or emotional disturbance when the murder was committed.
I.C. § 35-50-2-9(c)(2) (emphasis added). The trial court similarly declined to find
Waynes condition sufficiently severe to impair his capacity to appreciate the criminality of
[his] conduct or to conform that conduct to the requirements of law, as
specified by Indiana Code section 35-50-2-9(c)(6). The trial court noted Waynes
mental and emotional limitations.
See footnote Wayne points to no error in these findings.
Rather, he challenges the balancing struck by the trial court. We
cannot say that the trial courts evaluation of the weight accorded these specifically
found facts was an abuse of discretion.
Wayne also argues that the trial court, after reviewing the pre-sentence report, should
have found defendants lack of violent criminal history constituted a mitigating circumstance under
section 35-50-2-9(c)(1) or (8).See footnote Wayne had been convicted of criminal conversion and
theft, and had violated probation. Although these crimes were not violent in
nature, section (c)(1) refers to criminal history, not the absence of violent criminal
The sentencing order of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
Defense counsel objected stating the testimony was hearsay and irrelevant. In
overruling the objection to Loudys testimony, the trial court indicated that it was
an exception to the hearsay rule based on Rule 803(3) and relevant as
to whether there was consensual sexual activity. In overruling Piersons testimony, no
explanation was given, but defense counsel objected on the same basis as he
had objected to Loudys testimony.
Section (c)(2) provides for the mitigating circumstance that [t]he defendant was under
the influence of extreme mental or emotional disturbance when the murder was committed.
Section (c)(6) provides for the mitigating circumstance that [t]he defendants capacity to
appreciate the criminality of the defendants conduct or to conform that conduct to
the requirements of law was substantially impaired as a result of mental disease
or defect or of intoxication.
The trial court stated in its sentencing order, The defenses psychologist, Dr.
Gregory Karch, testified regarding the defendants intellectual, emotional, social, and psychological characteristics which
include borderline personality disorder, alcohol dependence, impulsiveness, immaturity, depression, disassociation, difficulty in decision
making, impaired memory skills, disengagement, impoverishment of self interest and low intelligence.
The court concluded that [t]he defendants mental and emotional defects constitute minimal mitigation.
Section (c)(1) provides for the mitigating factor that [t]he defendant has no
significant history of prior criminal conduct. Section (c)(8) permits the jury or
judge to consider [a]ny other circumstances appropriate for consideration.