Teresa D. Harper
Jeffrey A. Modisett
Janet Brown Mallett
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Teresa D. Harper
Jeffrey A. Modisett
Janet Brown Mallett
Walter Dye was convicted of the murder of Hannah Clay, age fourteen, Celeste Jones, age seven, and Lawrence Cowherd III, age two. A jury recommended that the death sentence
be imposed, and the trial court imposed the death sentence. In this direct appeal Dye
contends that (1) the State committed numerous discovery violations; (2) his right to be free
from self-incrimination was violated when he was questioned without Miranda warnings; (3)
the trial court erred by excusing a juror for cause on the State's motion and failing to excuse
two jurors for cause upon his motion; (4) his jury was not selected from a representative
cross-section of the community; (5) the trial court erred when it modified his tendered
penalty phase instruction on clemency; and (6) death is not the appropriate sentence based
on the weighing of aggravating and mitigating circumstances and the residual doubt of his
guilt. We affirm.
went to work the night shift at a nursing home. Hannah remained at the apartment with
Myrna's two grandchildren, Lawrence Cowherd III, age two, and Celeste Jones, age seven.
Lawrence was Potrena's son, and Celeste was the daughter of Theresa Jones, another of
Myrna's daughters. Theresa was supposed to have worked the afternoon shift at the same
nursing home where Myrna and Potrena went to work, but had not shown up for work.
Myrna was angry and called Theresa at the home Theresa shared with Potrena and their two
children. Theresa's boyfriend, John Jennings, eventually answered the phone, and Myrna
had harsh words for both of them.
At the end of their shift, Myrna and Potrena took the bus home. As they approached the apartment at about 8:00 a.m., they saw several police cars. They soon learned that Hannah's partially nude body had been found in the apartment and that Celeste and Lawrence were missing. An autopsy later revealed that Hannah had been beaten with what the pathologist believed to be a crowbar and a hammer. Her body sustained blunt force injuries as well as ligature strangulation and stab wounds to the neck and hand. The blunt force injuries were applied with such force to have crushed the front of the chest wall back toward the spine, crushing the heart and the lungs in between. A rape kit was collected during the autopsy. Although the swabs of her body showed no evidence of sperm, a wet washcloth containing seminal fluid was found on a bed near Hannah's body.
A search for Celeste and Lawrence was promptly begun. At about 2:00 p.m., a police officer found a bundled comforter among some tall weeds along an alley near Myrna's apartment. Two trash bags containing the lifeless bodies of Celeste and Lawrence were
found in the comforter. Both children had sustained injuries consistent with being hit on the
head with a fist. Lawrence had also been hit in the left lower chest and liver, and Celeste had
been stabbed with a knife. Lawrence had been strangled with a lamp cord taken from
Myrna's apartment, and Celeste had been strangled with an extension cord.
Investigators collected a great deal of physical evidence that pointed to Dye as the killer. Dye's palmprints were found on a nightstand near Hannah's body. Dye's fingerprint, made in Hannah's blood, was found on a clothing tag near her body. Dye's shoeprints were found on papers strewn on the bedroom floor. One of these papers had the palmprints in Hannah's blood from both Dye and Hannah. Police seized Dye's shoes during the execution of a search warrant at his residence, and Hannah's blood was found in the inner stitching and fibers of the shoes. Finally, analysis of DNA in the sperm found on the washcloth matched Dye's with odds of 1 in 39 billion.See footnote 1
Dye initially told police that he had never been to Myrna's apartment and had not left his residence on the night of the murders. However, he testified at trial that he walked to get cigarettes at about 2:45 a.m. on the night of the killing and kept walking to Myrna's apartment, because Myrna had told him days earlier that she would be off work on Sunday night. He testified that upon his arrival at Myrna's apartment he found the door open, walked inside, saw a foot, walked over to Hannah's body, touched her, concluded she was
dead, and left. He did not call the police. He returned home but could not sleep, and
clocked in at work at 5:26 a.m.
A jury convicted Dye of three counts of murder. The jury recommended that the death penalty be imposed, and the trial court followed that recommendation and sentenced Dye to death.
severe sanctions. The trial court conducted a hearing on the motion and denied the motion
to exclude the evidence, observing that [t]here are other remedies available to the
Dye points to Rule 7 of the Rules of Organization and Procedure of the Marion Superior Court, Criminal Division. Section 1(a) of that rule provides that [t]he court at initial hearing will automatically order the State to disclose and furnish all relevant items and information under this Rule to the defendant(s) within twenty (20) days from the date of the initial hearing . . . . The information here, however, was not known to exist within twenty days of the initial hearing, but rather was uncovered by the State months later during the course of its preparation for trial. Under these circumstances, the State nevertheless had the obligation to make timely disclosure of the evidence to the defense. The five month delay here can hardly be viewed as timely. Nevertheless, accepting the State's explanation at face value, the belated disclosure was not flagrant or deliberate, and disclosure nevertheless occurred three weeks before trial. This was sufficient time to allow defense counsel to re- depose the necessary witnesses before trial, which was done. Under these circumstances, the trial court's denial of Dye's request to exclude the evidence and motion for continuance was not clear error, and in any event he has not demonstrated any resulting prejudice.See footnote 4 Kindred, 524 N.E.2d at 287.
her car would, in the best case scenario to the defense, have disclosed that no crowbar was
found in her trunk. This would not exculpate Dye nor would it materially add to his defense
in light of the overwhelming physical evidence connecting him to the crime.
B. Fingerprints and DNA Testing of John JenningsSee footnote 5
On August 22, 1997, after her deposition was taken by the defense, fingerprint examiner Diane Donnelly took the fingerprints of Theresa Jones' boyfriend, John Jennings. Donnelly generated a report, dated September 2, the first day of jury selection, that compared a number of unidentified latent fingerprints from the crime scene with those submitted by Jennings, and found no matches. According to the State, it did not receive Donnelly's report until the evening of September 9, and it turned the report over to the defense early the following morning. In addition, the prosecutor's office directed a detective to transport Jennings for a blood draw on August 22. DNA analysis excluded Jennings as the contributor of any of the unknown DNA from the crime scene. Defense counsel objected to both the admission of the fingerprint comparisons and DNA analysis of Jennings on the ground of its late disclosure. The State responded that it requested this analysis after identifying the defense theory that someone else, possibly Jennings, had committed the murders. Dye initially sought exclusion of the evidence, but was instead granted a continuance until the noon hour. The trial court observed that it agreed with the State in that I believe that they had a duty and an obligation to try to compare these prints, even at this late date. So
although it is a violation of discovery rules, due to the circumstances there will be no
We find the State's explanation for the belated disclosure more than adequate under the circumstances. Although its late decision to test these materials was a reasonable response to an expected defense trial theory, it nevertheless ran the risk, in the event of either a fingerprint or DNA match, of providing the defense with powerful evidence to bolster its case. However, the results instead exculpated Jennings. This at most forced a minor adjustment to the defense theory that some unidentified person may have committed the killings.
Dye alleges prejudice based on his opening statement to the jury in which he hemmed himself in . . . by telling the jury that there would be no dispute about the scientific evidence . . . . [Dye] could not later challenge the scientific evidence about which he did not yet know. In addition, Dye's opening statement spoke in generalities about the possibility that someone other than Dye had committed the killings: We are not going to be able to tell you who killed these children. We do not know. However, Dye made no specific mention of Jennings by name as the possible perpetrator during opening statement. His expressed decision not to challenge the scientific evidence hardly prevented him from challenging scientific evidence not yet known at the time of his opening statement. The trial court granted a continuance to allow Dye's expert to compare the fingerprints. Had Dye's expert concluded that any of the prints found at the crime scene were Jennings', he could have presented this to the jury through his expert and also pointed out the belated disclosure of
the State's comparisons in cross-examination of Donnelly. Dye did not offer the testimony
of his fingerprint expert, and the obvious inference is that his expert's conclusions were
similar to those of Donnelly. The trial court's continuance until the noon hour was an
adequate remedy under these circumstances and Dye has demonstrated no prejudice as a
result of this ruling.
C. Other Alleged Violations
As a final point, Dye quotes from his pretrial motion for continuance, filed days before trial, which alleged other discovery violations. However, Dye makes no separate argument regarding these alleged violations and accordingly any claim of error is waived for the failure to present a cogent argument. Ind. Appellate Rule 8.3(A)(7).See footnote 6
that he was neither a suspect nor under arrest but that they needed to ask him some questions in light of allegations by the family that he had made threats towards Myrna. He agreed to accompany the detectives to the police station, and they explained that police department policy required that he be handcuffed and placed in the backseat during his ride there. The handcuffs were removed upon arrival and Dye was taken to an interview room, where he spoke to detectives for about forty-five minutes. Dye told the detectives that he had never been to Myrna's apartment but had a pretty good idea where it was located. He also said that he had never left his residence on the night of the murder. When asked if he were capable of committing this crime, Dye replied [i]f I ever had the thought, never the kids. This statement was made before the bodies of Celeste and Lawrence had been discovered. Much later in the day,See footnote 8 the detectives arranged a time on Wednesday at which to pick Dye up from work to transport him for a blood draw. Detectives explained that they sought a blood sample because it was possible that Hannah had been raped. At the agreed upon time on Wednesday, a detective picked Dye up at work. Dye rode, unrestrained, in the front seat of the detective's car. En route to the blood draw, the detective heard Dye breathing heavily and asked him what was wrong. Dye replied that he had never given a semen sample before. The detective responded that [a]ll we've ever agreed to was you said you would provide a blood sample, nothing more. . . .
this Court reversed a conviction because the defendant was subjected to custodial
interrogation without being advised of his Miranda rights. Although the officers in Loving
did not consider the defendant a suspect, they never communicated that belief to him.
Moreover, Loving was questioned at the crime scene by several police officers, then
handcuffed and placed in the back of a marked police car to be taken to the police station
where he was questioned without ever being told that he was free to leave. Id. at 1125. This
Court held that, [p]articularly in view of the initial use of handcuffs, . . . a reasonable person
in the defendant's circumstances would not have believed himself to be free to leave but
would instead have considered his freedom of movement to have been restrained to the
'degree associated with a formal arrest.' Id. at 1126 (quoting Beheler, 463 U.S. at 1125).
Unlike Loving, Dye was told by police that he was not a suspect and was specifically told that he was being handcuffed as a matter of standard procedure during transportation to the police station, where the handcuffs were immediately removed as promised. Both detectives testified at the suppression hearing that Dye was free to leave the interview at any time, and the totality of the circumstances surrounding the interview lead us to conclude that a reasonable person in these circumstances would not have considered his freedom of movement restrained to the degree associated with a formal arrest. Accordingly, the trial court did not err when it denied Dye's motion to suppress the statements made during his initial interview with police.
The alleged Miranda violation en route to the blood draw presents issues of both interrogation and custody. Here, the detective's asking Dye what was wrong does not
constitute interrogation under Miranda or the functional equivalent of questioning under
Innis. See Hopkins v. State, 582 N.E.2d 345, 348 (Ind. 1991) (volunteered statements are
admissible absent Miranda warnings); see also Loving, 647 N.E.2d at 1126. Moreover, Dye
was not in custody at the time the statement was made. The blood draw was arranged in
advance to take place over Dye's lunch hour, and he was transported in the front seat of the
police car without any type of restraint. The trial court properly denied Dye's motion to
possibly Oklahoma City bomber Timothy McVeigh. However, he later observed that this
case involved the alleged killing of three individuals and agreed that he could never
consider recommending the death penalty for such a crime. When asked whether he would
be able to follow his oath as a juror and consider the death penalty as a viable option in this
case he stated that he would not.
1. Juror Exclusion Under the Federal Constitution
The relevant inquiry for exclusion of jurors for cause under the federal constitution is whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581 (1980)). As the Court explained in Witt, the quest is for jurors who will conscientiously apply the law and find the facts. That is what an 'impartial' jury consists of . . . . 469 U.S. at 423. The Witt standard does not require that a juror's bias be proved with unmistakable clarity. Deference must be paid to the trial court who was able to see the prospective jurors and listen to their responses during voir dire. Underwood v. State, 535 N.E.2d 507, 513 (Ind. 1989).
In Indiana, juries in capital cases are instructed that they must consider whether the State has proven an aggravating circumstance beyond a reasonable doubt, and if that is done, they must then weigh the aggravator(s) against any mitigating evidence. Jurors who state at the outset that they will not recommend a death sentence even if the State proves one or more statutory aggravating circumstance are incapable of following the court's instructions and
are accordingly properly excused for cause. The questioning described above demonstrated
that this prospective juror's views on the death penalty would have prevented him from
following the court's instructions and his oath.
Dye contends that it was nevertheless error for the trial court to excuse the juror for cause because he stated that he could consider the death penalty under certain circumstances and in fact, believed it to be an appropriate penalty. As explained above, the relevant inquiry is not whether the prospective juror could recommend the death penalty in any conceivable case, including genocide or the most famous of mass murders. Rather, the issue is whether the jury can follow the court's instructions and the juror's oath in this case.
In most reported cases, excused prospective jurors have stated blanket opposition to the death penalty. See, e.g., Davis v. State, 598 N.E.2d 1041, 1047 (Ind. 1992) (after being asked if there are any circumstances under which prospective juror could vote to recommend the death penalty, juror responded No sir); Benirschke v. State, 577 N.E.2d 576, 582-83 (Ind. 1991) (prospective jurors indicated they were opposed to the death penalty and could not find a case where it would be appropriate); Underwood, 535 N.E.2d at 513 (prospective juror candidly expressed several times that she could not consider the death penalty); Burris v. State, 465 N.E.2d 171, 178 (Ind. 1984) (all of the excused veniremen stated that under no circumstances would they consider imposition of the death penalty). We find no case from this Court directly addressing the issue Dye raises. However, several cases imply that the necessary inquiry is whether the prospective juror could recommend the death penalty in the case on trial, not in any case. In Davis, 598 N.E.2d at 1047, the
prosecutor asked if a prospective juror could recommend the death penalty [u]nder any
circumstances that you can imagine uh, as have been described to you in this case[.] The
juror responded No and this Court upheld the removal for cause under Witt. We observed
that [t]here need be no ritualistic adherence to a requirement that a prospective juror make
it unmistakably clear that he or she would automatically vote against the imposition of capital
punishment. Id. Similarly, in Daniels v. State, 453 N.E.2d 160, 167 (Ind. 1983), this Court
reviewed the removal for cause of a prospective juror who, after initially stating he did not
believe in the death penalty, stated that he thought it might be warranted in the case of the
assassination of a president. The following colloquy then took place between the trial court
and the prospective juror:
Q. Then other than the president you can't think of any instances or any circumstances involving a murder that you would feel would warrant recommendation of the death sentence?
Q. And your feelings would preclude you from recommending the death penalty if the Defendant was found guilty, is that right?
A. Yes, Ma'am.
Id. at 167. Applying the then-existing federal constitutional standard of Witherspoon,See footnote 10 this
Court upheld the exclusion.
The basic logic of Witt is that it is proper to excuse jurors who are unable to carry out their duties in the case before them. A juror's willingness to recommend a death sentence under other circumstances is irrelevant to that inquiry. Because the prospective juror here stated that his views on the death penalty would render him unable to follow the court's instructions and his oath, exclusion was proper under the federal constitutional standard of Witt.
2. Exclusion Under Indiana Code § 35-37-1-5(a)(3)
Most of our death penalty cases have been resolved under federal constitutional standards, presumably because that was how the issue was framed at trial and on appeal. See, e.g., Davis, 598 N.E.2d at 1046-47 (applying Witt); Jackson v. State, 597 N.E.2d 950, 961 (Ind. 1992) (applying Witherspoon); Benirschke, 577 N.E.2d at 582-83 (applying Witt); Evans v. State, 563 N.E.2d 1251, 1257 (Ind. 1990) (applying Witherspoon while also quoting the statute); Underwood, 535 N.E.2d at 513 (applying Witt). However, Dye also objected at trial on the basis of Indiana Code § 35-37-1-5(a)(3), which provides as one of several good causes for challenge that [i]f the State is seeking a death sentence, that the person entertains such conscientious opinions as would preclude the person from recommending that the death penalty be imposed. Accordingly, we must address whether the exclusion of this juror violated the statute, which arguably sets a higher bar than Witt. See generally 16B
William Andrew Kerr, Indiana Practice § 21.6d at 151-52 (1998).See footnote
Dye suggests that exclusion was improper under the statute because the prospective juror stated that he could consider the death penalty under some circumstances. The statute speaks in terms of preclusion from recommending the death penalty and does not specifically address whether the preclusion must be in the particular case only or in all cases, no matter how far afield their facts may be from the case at bar.
The prospective juror in Dye's case stated opposition to the death penalty with a very narrow exception (Hitler) that did not apply to Dye's case. The juror went on to explain his unequivocal opposition to the death penalty under his limited knowledge of the facts of Dye's case (the killing of three children). Although his opinions may not have precluded a recommendation of death in every hypothetical case, they did preclude a recommendation of the death penalty in this case. For the same reasons already explained, we believe this is all that is required under the statute. Accordingly, because the prospective juror's conscientious opinions precluded him from recommending the death penalty in this case, exclusion was proper under Indiana Code § 35-37-1-5(a)(3).See footnote 12
oath. The trial court did not err by excluding them.See footnote
registration lists. See Bradley v. State, 649 N.E.2d 100, 103-04 (Ind. 1995) (Absent
constitutional infirmity, however, we decline to construe [Indiana Code § 33-4-5-2(d)] so as
to convert an option into a mandate.). Nor was the trial court required to grant Dye a stay
for further investigation of systematic exclusion. Dye did not raise the issue until days
before trial when a lengthy continuance would have been required to conduct the study Dye
We review a trial court's denial of a continuance for an abuse of discretion.
Perry v. State, 638 N.E.2d 1236, 1241 (Ind. 1994). Under these circumstances, the denial
of Dye's motion for a stay was not an abuse of discretion.
Constitution leaves it entirely up to the Governor whether and how to use this power.
This power is used sparingly and its imposition, while possible, should not be
considered as a likely result.
Over Dye's objection, the trial court struck the last sentence of this tendered instruction.
Dye argues on appeal that what trial counsel sought to do was eliminate speculation through
complete and accurate information about the possibility of clemency. . . . The speculation
that jury could have entertained is endless.See footnote
A trial court erroneously refuses a tendered instruction, or part of a tendered instruction, when: (1) the instruction correctly sets out the law; (2) evidence supports the giving of the instruction; and (3) the substance of the tendered instruction is not covered by the other instructions given. Byers v. State, 709 N.E.2d 1024, 1028-29 (Ind. 1999). The last sentence of Dye's tendered instruction fails on both the first and second prongs.
A correct statement of the law regarding clemency is provided for by the Indiana Constitution and by statute.See footnote 19 The part of Dye's tendered instruction that was refused by the trial court was not a statement of law at all. Rather, it was a statement of historical practice surrounding clemency in Indiana. Moreover, not only is this language not legal in nature,
there is no basis to conclude that it was correct, if viewed as a prediction of future
Governors' actions. Although the exercise of the power to grant clemency may have been
rare under current and prior Indiana Governors, there is no way to determine whether a
future Governor may alter this trend of executive restraint and grant clemency to a significant
number of inmates. See generally Isabel Wilkerson, Clemency Granted to 25 Women
Convicted for Assault or Murder, N.Y. Times, Dec. 22, 1990, at 1 (discussing the grant of
clemency by former Ohio Governor Richard Celeste to women convicted of killing or
assaulting husbands or companions alleged to have physically abused them). The trial court
did not err by modifying Dye's tendered instruction on clemency.
498 N.E.2d 931, 947 n.2 (1986)).
Dye contends that the death sentence is not appropriate when the one aggravating circumstance is weighed against the mitigating evidence presented, particularly the alleged residual doubt surrounding his guilt. See generally Miller v. State, 702 N.E.2d 1053, 1069 (Ind. 1998) (describing residual doubt and holding that the failure to argue it to a jury does not constitute ineffective assistance of counsel). The State alleged as an aggravating circumstance that Dye killed Celeste after having murdered Hannah.See footnote 20 See Ind. Code § 35- 50-2-9(b)(8) (1998). Dye offered the testimony of six witnesses at his penalty phase.See footnote 21 The jury found that the aggravator outweighed any mitigators and recommended that the death penalty be imposed. After a sentencing hearing at which Dye presented the testimony of an additional witness, the trial court agreedSee footnote 22 and imposed the death sentence.
more persuaded by Dye's residual doubt argument than were the jury and trial court.
Residual doubt presents no basis for reversal here.
As a final point, we observe that Dye points to no other alleged mitigating circumstances, save his lack of a significant criminal history found by the trial court. Considering the nature of the offense and the character of the offender as presented through the proffered mitigating evidence,See footnote 23 we are not persuaded to revise this sentence.
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., concurs with separate opinion.
Bloomington, IndianaAttorneys for Appellee
Attorney General of Indiana
Janet Brown Mallett
Deputy Attorney General
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
SULLIVAN, Justice, concurring.
I concur in the Court's opinion. I write to provide additional review of the appropriateness of the death sentence imposed here. Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989) (In contrast to appellate review of prison terms and its accompanying strong presumption that the trial court's sentence is appropriate, this Court's review of
capital cases under article 7 is part and parcel of the sentencing process. Rather than relying
on the judgment of the trial court, this Court conducts its own review of the mitigating and
aggravating circumstances 'to examine whether the sentence of death is appropriate.' . . .
The thoroughness and relative independence of this Court's review is a part of what makes
Indiana's capital punishment statute constitutional.) (citations omitted).
As to the appropriateness of the death penalty in this case, the statute guides this
Court's review by setting forth standards governing imposition of death sentences.
Following completion of the guilt phase of the trial and the rendering of the jury's verdict,
the trial court reconvenes for the penalty phase. Before a death sentence can be imposed,
our death penalty statute requires the State to prove beyond a reasonable doubt at least one
aggravating circumstance listed in subsections (b)(1) through (b)(12) of the statute. Ind.
Code § 35-50-2-9 (Supp. 1996). Here the State supported its request for the death penalty
with the aggravating circumstance that Dye committed multiple murders (those of Hannah
Clay and Celeste Jones), id. § 35-50-2-9(b)(8).
To prove the existence of this aggravating circumstance at the penalty phase of the trial, the State relied upon the evidence from the earlier guilt phase of the trial (with respect to which the jury had found Dye guilty of the two murders, as well as the murder of Lawrence Cowherd). The death penalty statute requires that any mitigating circumstances be weighed against any properly proven aggravating circumstances. The Court's opinion
accurately describes Dye's argument in favor of mitigating circumstances. The jury
returned a unanimous recommendation that a sentence of death be imposed.
Once the jury has made its recommendation, the jury is dismissed, and the trial court
has the duty of making the final sentencing determination. First, the trial court must find
that the State has proved beyond a reasonable doubt that at least one of the aggravating
circumstances listed in the death penalty statute exists. Ind. Code § 35-50-2-9(k)(1) (Supp.
1996). Second, the trial court must find that any mitigating circumstances that exist are
outweighed by the aggravating circumstance or circumstances. Id. § 35-50-2-9(k)(2).
Third, before making the final determination of the sentence, the trial court must consider
the jury's recommendation. Id. § 35-50-2-9(e). The trial court must make a record of its
reasons for selecting the sentence that it imposes. Id. § 35-38-1-3 (1988).
In imposing the death sentence, the trial court found that the State proved beyond a
reasonable doubt a charged aggravating circumstance listed in the death penalty statute _
that Dye had committed multiple murders. The record and the law supports this finding.
The trial court found little in the way of mitigating circumstances to exist. The court found only that Dye's history of prior criminal conduct was not significant (he had been convicted of two Class A misdemeanors _ Driving While License Suspended in 1989 and Battery in 1992). However, the court did note that the circumstances surrounding the
battery were significant because the victim of the battery was Myrna Dye. The court also
considered, but did not find to exist, additional statutory mitigating circumstances and other
purported mitigating circumstances offered by Dye. I agree with the trial court's and this
Court's analyses of the mitigation in this case and find the mitigating weight to be in the low
As required by our death penalty statute, the trial court specifically found that the
aggravating circumstance outweighed the mitigating circumstances. The trial court also
gave consideration to the jury's recommendation. The trial court imposed the sentence of
Based on my review of the record and the law, I agree that the State has proven beyond a reasonable doubt an aggravating circumstance authorized by our death penalty statute and that the mitigating circumstances that exist are outweighed by that aggravating circumstance. I conclude that the death penalty is appropriate for Dye's murder of Hannah Clay, Celeste Jones and Lawrence Cowherd III.
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