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05/22/85 FRANK R. DAVIS v. STATE INDIANA

filed.: May 22, 1985.

FRANK R. DAVIS, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW).



APPEAL FROM THE MARSHALL CIRCUIT COURT THE HONORABLE MICHAEL D. COOK, JUDGE

Hunter, J. Givan, C.j., Prentice And Pivarnik, JJ., Concur. DeBRULER, J., Concurs And Dissents With Opinion.

Author: Hunter

HUNTER, J.

The defendant, Frank R. Davis, pled guilty on January 12, 1984, to two counts of murder, Ind. Code § 35-42-1-1 (Burns 1985 Repl.), and two counts of attempted murder, Ind. Code §§ 35-41-51-1; 35-42-1-1 (Burns 1985 Repl.). Under the terms of the plea agreement, the state agreed to dismiss four counts of criminal deviate conduct and two counts of felony murder but reserved the right to seek imposition of the death penalty, Ind. Code § 35-50-2-9 (Burns 1985 Repl.) on the two murder counts. A sentencing hearing was conducted on January 18, 1984, during which both the state and the defendant introduced evidence. On January 25, 1984, the court imposed a sentence of death on the two murder counts and consecutive terms of fifty years each on the two counts of attempted murder.

Defendant raises six issues in this direct appeal which we have consolidated into the following four issues:

1. Whether it was reversible error for the trial court to find the existence of a statutory aggravating circumstance which was not charged by the state and which was in addition to the two statutory aggravating circumstances charged by the state;

2. Whether it was reversible error for the trial court to find that the evidence supported a finding that both murders were committed while committing the underlying felony of child molesting when the actual act of molestation had been completed prior to the act of killing;

3. Whether it was reversible error for the trial court to find that the evidence supported a finding of the aggravating circumstance of "lying in wait" in both murders; and

4. Whether the trial court erred by failing to consider certain alleged mitigating circumstances.

A review of the facts from the record shows that the charges in this case arose from three separate incidents. On January 10, 1983, a fifteen year old boy, J.S., left a store in LaPorte, Indiana, where he had been playing a video game. It was about 5:00 p.m. and his route home took him through a cornfield. As he walked through the field, he noticed that someone was following him. Then that man ran on ahead of J.S. and waited for him at the end of the cornfield. When J.S. got close to the man, the man grabbed him, pulled out a gun, and forced J.S. into a wooded area. Then the man told J.S. to sit down and started talking to him. The man knew J.S.'s name, where he lived, his sister's name, and his girlfriend's name. When J.S. asked the man how he knew all of that, the man said, "Well, I just do."

After a little while, the man made J.S. move to another part of the woods and tied a wire around J.S.'s neck. The other end of the wire was around his own hand. The man then took down the boy's pants and performed oral sex on him. Then he told J.S. he was going to take the wire off his neck, but instead pulled it tighter until J.S. passed out. When J.S. regained consciousness, the man did take the wire off of his neck and forced him to go to a different part of the woods and lie down on his stomach.

J.S. pleaded with the man not to shoot him, but the man said that if he let him go, he would tell the police what happened. J.S. said he wouldn't tell and finally the man said he would knock him unconscious. He hit the boy on the back of the head with the gun and the boy pretended to be unconscious. The man continued hitting him with the gun, about eight or nine times. Then he pushed the boy with his foot to see if he moved and ran off.

J.S. lay still for several minutes to be sure the man had gone and then got up. He was bleeding a great deal and felt dizzy and light-headed but he was able to walk to his house. His mother immediately took him to the hospital. J.S. said the man told him his name was Frank but J.S. had never seen him before. At the sentencing hearing, J.S. identified defendant as the man who had done these things to him.

The second incident occurred on June 16, 1983, when defendant saw a teenage boy, D.R., at the home of one of his relatives. Defendant gave D.R. and other youths in that neighborhood rides on his motorcycle. He and D.R. made plans to meet later in the evening. That night, about 10:00 p.m., defendant hid and waited for D.R. by some railroad tracks. He heard D.R. walk by that location and called out to him. D.R. stopped and both he and defendant drank a beer.

After a few minutes, D.R. said it was late and he had to go home. Defendant then threatened D.R. with a knife and tied a wire around his hands and neck. He took him into some weeds beside the tracks. Defendant performed oral sex on D.R. and then choked him fatally with his hands. Finally defendant carried D.R.'s body across a fence and left the body in some weeds.

The third incident occurred on June 18, 1983, when two teenage boys, E.F. and J.L., decided to go camping at a camp area just south of LaPorte, Indiana. They took a tent, sleeping bags, cooking gear, and an axe. After they set up their tent, they went to get firewood. While they were walking along some railroad tracks looking for dry firewood, they saw defendant sitting beside the tracks. He was smoking a marijuana cigarette and asked the two boys if they wanted to share it. The boys accepted his offer and defendant told them his name was Frank Davis. The three talked for a short time about growing marijuana and the boys told defendant where they were camping.

Later that evening, defendant came to the boys' campsite riding a motorcycle. He brought more marijuana cigarettes and the three sat inside the tent for about half an hour. Defendant left on his motorcycle when it was getting dark. The boys sat around their campfire for awhile and then J.L. went to sleep in the tent while E.F. lay down in his sleeping bag outside the tent. Some campers next to the boys were partying and were playing loud music. Consequently, E.F. had trouble going to sleep and got up and sat on the picnic table for a time. Eventually, he did lie down and go to sleep.

Meanwhile defendant had returned to the camp area to watch the boys. He did not make his presence known to the boys but was in his own words, "lurking around, waiting." He watched the boys go to sleep and waited while the people at the next campsite quieted down. Then he went into the tent and woke up J.L. He forced J.L. to go down by the railroad tracks with him at knifepoint. Then he tied up J.L. with wire and performed oral sex on him. Defendant and J.L. then walked a little further along the tracks. Finally, defendant strangled J.L. with a piece of wire and dragged his body off into the weeds. Defendant kissed the dead boy and left him there.

Then defendant went back to the boys' campsite and woke up E.F. He told him that J.L. had been hurt while riding the motorcycle and needed help. E.F. got up and went so quickly with defendant that he did not pause to get his eyeglasses. However, he did pick up the axe when defendant told him to. When defendant and E.F. got away from the campsite and out by the railroad tracks, defendant used his knife to force E.F. to lie down. He took the axe and tied E.F.'s hands with wire. Defendant performed oral sex on E.F. and then made him roll over on his stomach. He hit E.F. on the head with the axe four times. E.F. only remembered being hit once before he lost consciousness. He woke up in the hospital with four wounds on his head. The blows to his head damaged his peripheral vision and he has suffered seizures, dizziness, headaches, nausea, and nightmares and had difficulty walking.

E.F. told the police that a man named Frank Davis was his assailant and defendant was subsequently arrested. He gave a statement to police about his involvement in all four crimes and this statement was introduced as evidence at the sentencing hearing.

I.

Defendant's first issue raises a question of first impression for this Court in the application of the death penalty statute, Ind. Code § 35-50-2-9 (Burns 1985 Repl.). Defendant contends that it was reversible error for the trial court to find the existence of an aggravating circumstance to support the imposition of the death penalty which was not charged by the state, in addition to finding the existence of the two aggravating circumstances which were specifically charged by the state.

The record shows that the state charged that the murders of D.R. and J.L. were committed while committing child molesting and were committed by lying in wait. These are two of the specific aggravating circumstances which are listed in the death penalty statute. The state did not charge the aggravating circumstance of having committed another murder, but on the murder count of J.L. the trial court specifically found that one aggravating circumstance was the previous murder of D.R. The court also found that the two aggravating circumstances charged by the state were supported by the evidence.

In considering the language of the death penalty statute, we find that the state's burden is divided into two separate stages. First the state must allege "at least one of the aggravating circumstances" in the information seeking the death penalty; then at the sentencing hearing, the state "must prove beyond a reasonable doubt the existence of at least one of the aggravating circumstances alleged." Ind. Code § 35-50-2-9 (emphasis added). This language clearly does not limit the state to alleging or proving only one of the statutory aggravating circumstances. Thus there is no error when the state alleges and proves two aggravating circumstances as it did in the instant case.

We further conclude that there was no error in this case when the trial court found there was a statutory aggravating circumstance in addition to the two aggravating circumstances proved by the state as such finding was appropriate as part of the court's careful consideration of the specific facts and circumstances of this case. The two separate stages of our death penalty statute correspond with the two stages of a death penalty proceeding described by the United States Supreme Court as the "definition stage" and the "selection stage." Zant v. Stephens, (1983) U.S. , 103 S. Ct. 2633, 77 L. Ed. 2d 235. The Court said:

"Our cases indicate, then, that statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime."

Zant v. Stephens, 77 L. Ed. 2d at 250-251 (footnote omitted).

In this case, the two statutory aggravating circumstances alleged by the state in the information provided the proper narrowing function at the "definition stage" so that the defendant in this case is adequately differentiated in a rational and objective way from defendants in other murder cases where the death penalty may not be imposed. The trial court at the sentencing hearing, or "selection stage," is not required to ignore other possible aggravating factor when the individualized determination of the sentence is being made.

In this case, the court explained its reasons for finding the additional aggravating circumstance in the following way:

"3. The defendant has committed another murder at anytime regardless of whether he has been convicted of that other murder pursuant to I.C. 35-50-2-9 (b) (8).

"This aggravating circumstance was not enumerated on a sheet separate from the charging information as were Counts XI through XVI seeking the death penalty. However, the evidence clearly shows that the defendant was on notice of the existence of this aggravating circumstance prior to the time of entering his pleas of guilty and the acceptance of the pleas of guilty and entry of conviction by the court. Although the State failed to have the specific aggravating circumstance specifically enumerated on a separate page, the court determines that that failure does not bar the presentation of evidence on this aggravating circumstance nor does it prevent the finding of the existence of this aggravating circumstance beyond any reasonable doubt. Brewer vs. State, 417 N.E.2d 889 (page 906).

"The evidence introduced clearly establishes beyond a reasonable doubt and the defendant's confession substantiates beyond a reasonable doubt that the defendant, Frank Davis, murdered D.R. on or about June 16, 1983, and the defendant, Frank Davis, murdered J.L. on or about June 19, 1983, and further that the defendant committed the murder of J.L. knowing that he had committed the murder of D.R."

We find no error in the court's finding of the additional aggravating circumstance in this case since defendant did have specific notice of the two aggravating circumstances the state had alleged and the state's burden to prove beyond a reasonable doubt the existence of these two aggravating circumstances did not change. During the sentencing phase of the proceeding, the trial court was properly to consider the specific circumstances of the instant offenses and the nature of the defendant. The court had before it defendant's guilty pleas to the commission of the two murders and the two attempted murders. Therefore, it could properly consider the conviction on the first murder count as an aggravating circumstance in deciding to recommend the death penalty on the other murder count. See Judy v. State, (1981) 275 Ind. 145, 416 N.E.2d 95.

Defendant did have notice of the specific reasons for the filing of the death penalty information and obviously was aware that the court would consider all the facts surrounding the crimes during the sentencing hearing. There was no error in the court's finding of the additional aggravating circumstance of the commission of another murder under the circumstances of this case.

Furthermore, this Court has carefully reviewed the procedure for sentencing set out in our death penalty statute. We have found that our statute provides that the death penalty may be imposed if the circumstances of the offense and the character of the offender both warrant. The necessary standards and guidance for making the sentencing decision are found by looking at our criminal statutes and procedural rules in their entirety. The sentencing procedure adequately protects each individual's constitutional rights. Williams v. State, (1982) Ind. , 430 N.E.2d 759; Brewer v. State, (1981) 275 Ind. 338, 417 N.E.2d 889; Judy v. State, (1981) 275 Ind. 145, 416 N.E.2d 95.

Our statute limits the imposition of death sentences so as to insure that they will not be inflicted arbitrarily or capriciously in accord with the decisions and opinions of the United States Supreme Court. Gregg v. Georgia, (1976) 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859; Proffitt v. Florida, (1976) 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913; Jurek v. Texas, (1976) 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929. The trial court used the proper standards in making the sentencing determination in this case. The finding of the additional circumstance was within its proper discretion and was not the sole basis for the imposition of the death penalty.

II.

Defendant next alleges that there was not sufficient evidence to prove that the murders of D.R. and J.L. were committed "while committing the underlying felony of child molesting." Ind. Code § 35-50-2-9 (b) (1). He contends that the actual sexual act was completed in each case before the murder occurred and therefore the two murders were not committed "while" committing the underlying felony of child molesting. We do not agree with defendant's narrow interpretation of the word "while." Although we have not previously considered this word as it is used in the death penalty statute, we have repeatedly found that the phrase "while committing" denotes a continuing chain of events under our felony-murder statute. In other words, when there is a close proximity in terms of time and distance between the underlying felony and the homicide and there is no break in the chain of events from the inception of the felony to the time of the homicide, we treat the two events as part of one continuous transaction. Stroud v. State, (1979) 272 Ind. 12, 395 N.E.2d 770.

According to Webster, the word "while" has more than one meaning, but the primary meaning of the word when it is used as a conjunction is "during the time that" or "as long as." Webster's Third Dictionary (Unabridged ed. 1961).This clearly implies a continuity of action over a span of time. The use of the word "while" in our felony murder statute comports with this definition as do our older cases. In Bissot v. State, (1876) 53 Ind. 408, we found that a homicide was deemed committed during the perpetration of a felony if the homicide was within the res gestae of the felony. And in a civil case, we specifically held that the term "while" "is the equivalent of and means during the time they are stockholders in the company." Stafford v. St. John, (1905) 164 Ind. 277, 289, 73 N.W. 596, 600 (emphasis added). We find no reason to believe that the legislature intended a different meaning of the word "while" in the death penalty statute than has been used for that word in the felony murder statute and in older cases.

The Supreme Court of Ohio reached a similar Conclusion when it considered the use of the word "while" as it was used in the Ohio death penalty statute. The court said:

"The term 'while' does not indicate, as appellant contends, that the killing must occur at the same instant as the attempted rape, or that the killing must have been caused by the attempt, but rather, indicates that the killing must be directly associated with the attempted rape as part of the continuous occurrence, a situation present in the instant cause."

State v. Cooper, (1977) 52 Ohio St. 2d 163, 370 N.E.2d 725, 736, rev'd on other grounds Cooper v. Ohio, (1978) 438 U.S. 911, 98 S. Ct. 3137, 57 L. Ed. 2d 1157.[Footnote 1]

In carefully reviewing the evidence, we find that both murders occurred very close in time and location to the completion of the sexual acts. D.R. was tied with wire before the sexual act was performed and then defendant strangled him with his hands while he was still bound with the wire. In the case of J.L., defendant again tied him with the wire before performing the sexual act. Defendant then allowed the boy to get up and started walking with him along the railroad tracks. He strangled J.L. with some wire before they had walked very far. We find this evidence shows that in both cases there was a close proximity in terms of time and distance between the sexual act and the homicide and there was no break in the chain of events. Here, in both cases, the felonies and the homicides were so closely connected in time, place, and continuity of action as to be one continuous transaction. In both case, the homicides were committed while committing the acts of child molesting within the meaning of the statute.

III.

Defendant next contends that there was not sufficient evidence to prove that the murders of D.R. and J.L. were committed "by lying in wait." Ind. Code § 35-50-2-9 (b) (3). The elements constituting "lying in wait" have not previously been discussed by this Court but there is a well defined meaning of that phrase in the common law. A concise definition of "lying in wait" was given by Justice Traynor of the California Supreme Court in his Concurring opinion in People v. Thomas, (1953) 41 Cal. 2d 470, 480, 261 P. 2d 1, 7: "Lying in wait requires the elements of waiting, watching, and concealment for the purpose of taking a victim unawares." California courts have further defined the phrase as:

"a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation."

Richards v. Marin County Superior Court, (1983) 146 Cal. App. 3d 306, 194 Cal. Rptr. 120, 124. See also Domino v. Superior Court of Alameda County, (1982) 129 Cal. App. 3d 1000, 181 Cal. Rptr. 486.

Other jurisdictions have considered various aspects of this phrase. The Supreme Court of North Carolina defined the element of concealment in State v. Allison, (1979) N.C. , 257 S.E. 2d 417. It said that lying in wait refers to:

"a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim. An assailant who watches and waits in ambush for his victim is most certainly lying in wait. However, it is not necessary that he be actually concealed in order to lie in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin's presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait. Certainly one who has lain in wait would not lose his status because he was not concealed at the time he shot his victim. The fact that he reveals himself or the victim discovers his presence will not prevent the murder from being perpetrated by lying in wait. Indeed, a person may lie in wait in a crowd as well as behind a log or a hedge."

257 S.E. 2d at 425 (citations omitted).

The Arizona Supreme Court found that while concealment is an essential element of murder by lying in wait, the victim's discovery of the defendant's presence before the murder does not prevent a finding of murder by lying in wait. State v. Miller, (1974) 110 Ariz. 489,520 P. 2d 1113, 1114. Other courts have considered the facts of each specific case in light of the common law definition of lying in wait and found that there was sufficient evidence to establish murder by lying in wait. Moser v. State, (1975) Nev. , 544 P. 2d 424; People v. Ward, (1972) 27 Cal. App. 3d 218, 103 Cal. Rptr. 671; People v. Rosoto, (1962) 58 Cal. 2d 304, 23 Cal. Rptr. 779, 373 P. 2d 867; People v. Sutic, (1953) 41 Cal. 2d 483, 261 P. 2d 241; People v. Tuthill, (1947) 31 Cal. 2d 92, 187 P. 2d 16.

However, in some cases, the courts have found there was not sufficient evidence to find that the murders were committed by lying in wait: Richards v. Marin County Superior Court, 194 Cal. Rptr. 126 (no attempt at concealment); Domino v. Superior Court of Alameda County, (1982) 129 Cal. App. 2d 1000, 181 Cal. Rptr. 486 (murder committed one to five hours after the period of lying in wait); Poeple v. Merkouris, (1956) 46 Cal. 2d 540, 297 P. 2d 999 (no attempt at either concealment or secrecy).

Although Indiana cases have not discussed the elements of "lying in wait," they have held that the act of "lying in wait with a deadly weapon" is a specific circumstance which can be used to enhance a penalty and can be proof of a defendant's specific intent to commit murder. In these cases, the actions involved in the "lying in wait" always included the elements of waiting, watching, concealment, and taking the victim by surprise. Vasquez v. State, (1983) Ind. , 449 N.E.2d 284; Andrews v. State, (1982) Ind. , 441 N.E.2d 194; Petillo v. State, (1950) 228 Ind. 97, 89 N.E.2d 623. Therefore, we find that the common law definition does apply in Indiana and the ...


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