Ann M. Skinner
Jeffrey A. Modisett
Rosemary L. Borek
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Deputy Attorney General
Ann M. Skinner
Jeffrey A. Modisett
Rosemary L. Borek
He raises two issues for our review in this direct appeal: (1) whether he is entitled to a new
trial because an alternate juror observed him in his jail clothes and (2) whether the trial court
erred in its finding of aggravating and mitigating circumstances. We affirm the trial court.
declined the opportunity to question him further. The trial court admonished him not to
mention the questioning to the other jurors. Defense counsel did not ask that any other jurors
be questioned or seek any additional admonishment.
Hackett asserts that [t]he presumption of innocence became a nullity when two jurors observed [him] in jail clothes during trial. He points to Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), in which the U.S. Supreme Court held that compelling a defendant to go to trial in jail garb violates the due process and equal protection provisions of the Fourteenth Amendment. Although the defendant in Estelle requested his civilian clothes when he learned he was going to trial, the request was denied and he was tried in clothes that were distinctly marked as prison issue. Id. at 502. The Court reasoned that this undermined the presumption of innocence. The defendant's clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play. Id. at 505 (citing Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965)). As this Court observed in Gregory v. State, 274 Ind. 450, 454, 412 N.E.2d 744, 747 (1980), a crucial component in Estelle was that the jury would be continuously influenced throughout the trial by the defendant's obvious appearance in jail attire.
In Estelle the entire jury viewed the defendant in jail clothes throughout the entire trial. Here, an alternate juror who did not participate in deliberations viewed the defendant in jail attire for a matter of seconds. Greater exposure has been held no basis for reversal.
See Misenheimer v. State, 268 Ind. 274, 282, 374 N.E.2d 523, 529 (1978) (entire jury
waiting in hallway inadvertently saw the defendant taken through a barred door from a lock-
up area); see also Bailey v. State, 519 N.E.2d 1238 (Ind. 1988) (three jurors and an alternate
viewed the defendant in the custody of the sheriff).
Hackett also suggests that the trial court erred by failing to determine the extent to which the exposure of Hackett in jail clothes was viewed or learned of by the jurors. After Ms. Boaz stated that she thought another juror with silvery hair saw Hackett in an orange jumpsuit, defense counsel concluded that the juror was Poland and asked that he be brought out for questioning. This was done and resulted in his denying having seen Hackett after court concluded the previous evening. Defense counsel did not suggest that any other jurors be questioned. Under these circumstances we agree with the State that Hackett has waived any argument that the trial court failed to take the further action of questioning other jurors or offering additional admonishments.
circumstances: (1) a history of criminal delinquent activity; (2) need for corrective treatment
that can best be provided by commitment to a penal facility; (3) Hackett had recently been
sentenced for another offense and was on probation for that offense at the time of the instant
offenses; (4) imposition of a reduced sentence would depreciate the seriousness of the crime;
(5) the evidence against the defendant was overwhelming; and (6) this was a heinous
crime. It found Hackett's youthful age, nineteen, as the sole mitigating circumstance.
A. Improper Aggravator(s)
Of these aggravators Hackett challenges only the fourth one, arguing it was improper to aggravate his sentence on the basis that a reduced sentence would depreciate the seriousness of the offense because the trial court never considered giving him a sentence below the presumptive. As this Court has noted on many occasions, this aggravator cannot be used to justify an enhanced sentence. This aggravating factor may be used only when considering the imposition of a sentence of shorter duration than the presumptive sentence. Ector v. State, 639 N.E.2d 1014, 1016 (Ind. 1994); accord Garrett v. State, 714 N.E.2d 618, 622 (Ind. 1999); Jones v. State, 675 N.E.2d 1084, 1088 (Ind. 1996). Although this Court has upheld a sentence enhancement based upon a finding that a sentence less than an enhanced term sought by the prosecution would depreciate the seriousness of the crime, Ector, 639 N.E.2d at 1016 (emphasis in original), the trial court made no such finding here.
Accordingly it erred in considering this factor to be aggravating.
Hackett also suggests, albeit obliquely, that the trial court improperly considered his denial of guilt to be aggravating.See footnote 2 Although there is no mention of it in the sentencing order, Hackett quotes the trial court's sentencing statement in which it observed that the evidence against you was overwhelming at the trial. And you -- you're either a -- a -- a very evil person or a very sick person because you are still in total denial. Hackett contends that, because he was well within his rights to continue to assert his belief that he was not guilty, the trial court could not aggravate his sentence on that basis. We find no merit to this argument.
The trial court's sentencing statement merely mentioned that Hackett was still in total denial despite overwhelming evidence of his guilt. This did not infringe upon his privilege against self-incrimination when he admitted in his statement to police that he had had sex with Wilson, woke up in another room with blood on him, observed Wilson's bloody body, denied any memory of the stabbing but disposed of the knife after leaving the apartment, and pursued an intoxication defense at trial. Hackett's situation is unlike Angleton v. State, 686 N.E.2d 803, 816 (Ind. 1997), where we held that it was improper to consider that the defendant knew what happened, and it was just a question of whether or
not the [police] could eventually put it together, as to what happened as an aggravating
circumstance. The finding of error in Angleton was predicated on the constitutional privilege
against self-incrimination that protects [defendants] from having to confess to the police.
Id. Although Hackett essentially confessed to the police, he then prepared a brief statement
to the trial court before sentencing in which he stated [i]n my heart, I feel that I did not
commit the offense. I am hopeful that the person who killed Caroline Wilson will be found
and arrested. I cooperated with the police, because I wanted them to locate the person who
committed the crime. . . . The trial court did not err in saying that Hackett was still in total
denial nor did this infringe upon his privilege against self-incrimination.
B. Failure to Find a Mitigator
Hackett argues that the trial court should have found his alcoholism and intoxication on the night of the crime as a mitigating circumstance. He asserts that the State presented no evidence to contradict that he was intoxicated at the time of the killing or that he was an alcoholic. He also points out that the trial court gave two instructions on intoxication, that he presented a witness to support it as a defense at trial, and that he admitted to the moderate use of alcohol in the presentence report.See footnote 3
The finding of mitigating circumstances is within the discretion of the trial court.
Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997). An allegation that the trial court failed to
identify or find a mitigating circumstance requires the defendant to establish that the
mitigating evidence is both significant and clearly supported by the record. Carter v. State,
711 N.E.2d 835, 838 (Ind. 1999). The trial court is not obligated to accept the defendant's
contentions as to what constitutes a mitigating circumstance. Legue, 688 N.E.2d at 411.
This Court has previously rejected a claim that a trial court failed to find as a mitigating circumstance that the defendant was an alcoholic and was drunk at the time the offense was committed . . . . See Wilson v. State, 533 N.E.2d 114, 117 (Ind. 1989) (per curiam). The fact that appellant was drunk at the time the offense was committed went only to his ability to form intent which question was fully presented to the jury and determined by [it]. Id. More recently, in Legue , 688 N.E.2d at 411, this Court observed that
we are reluctant to hold that mitigating consideration is necessarily required for sentencing when, at the time of an offense, the defendant was intoxicated. . . . Finding such circumstance to be mitigating may involve the consideration and evaluation of various factors, among them the degree of intoxication and the defendant's culpability in the knowing and voluntary consumption of alcohol. These matters are best left to the sound discretion of the trial court.
The trial court heard all the evidence relating to intoxication at trial and additional evidence relating to Hackett's alleged alcoholism at sentencing. Although it mentioned the possibility that Hackett was sick, the trial court did not make a specific finding of mitigation based on alcoholism or intoxication at the time of the offense. This was not an abuse of discretion.
C. Sentence Enhancement
In sum, the trial court found several aggravating circumstances, only one of which was
improper, and did not abuse its discretion by failing to find mitigating circumstances. A
single aggravating circumstance may be sufficient to enhance a sentence. See Angleton v.
State, 714 N.E.2d 156, 160 (Ind. 1999). When a trial court improperly applies an aggravator
but other valid aggravating circumstances exist, a sentence enhancement may still be upheld.
Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998). In light of the other significant
aggravating circumstances, we affirm the sentence enhancement here.
SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.
sections). Although the State addresses Hackett's claims regarding the aggravating and mitigating circumstances, it also melds Appellate Rule 17(B) into its argument. We address only the claim raised by Hackett.
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