APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT, The Honorable Larry J. McKinney, Judge.
Shepard, C.j., Givan, Pivarnik, and Dickson, JJ., concur.
This is a direct appeal from two convictions for murder, I.C. § 35-42-1-1, and a conviction for burglary, I.C. § 35-43-2-1. A jury returned verdicts of guilty on all counts. The jury also recommended a death sentence. Appellant received a death sentence for the murder. I.C. § 35-50-2-9. There is no record before the court showing that a sentence for burglary was given.
There are twenty-one issues on appeal: (1) whether the right to an impartial jury was denied by the exclusion of prospective jurors who could not conscientiously consider the death penalty; (2) whether several prospective jurors were improperly excluded due to their views on the death penalty; (3) whether the trial court erred in admitting into evidence several State's exhibits which consisted of photographs depicting the victims and the crime scene; (4) whether there is sufficient evidence to support the convictions; (5) whether the trial court erred in refusing the tendered penalty phase Instruction No. 3 and in editing the tendered penalty phase Instruction No. 2; (6) whether the trial court erred in giving penalty phase Instructions No. 4 and No. 12; (7) whether the trial court erred in refusing to admit into evidence appellant's Exhibit B, a report documenting the death penalty positions of various religious organizations; (8) whether the trial court denied him the right to be heard at the sentencing hearing; (9) whether the trial court failed to find, value and weigh all existing mitigating circumstances; (10) whether the death penalty statute has reduced the arbitrary, capricious and random selection of those sentenced to death; (11) whether death by electrocution is cruel and unusual punishment under the Eighth Amendment of the United States Constitution; (12) whether the death penalty statute violates Article 1, § 18 of the Indiana Constitution; (13) whether the death penalty statute is unconstitutional due to the degree of prosecutorial discretion it vests in charging; (14) whether the death penalty statute is unconstitutional because it does not provide for the automatic exclusion of jurors who would always vote for the death penalty in murder cases; (15) whether the death penalty statute is unconstitutional because it does not require the jury to make written findings of fact; (16) whether the death penalty statute is unconstitutional because it does not specifically guide the sentencer's discretion in weighing the aggravating circumstances and the mitigating circumstances; (17) whether the death penalty statute is unconstitutional because it does not require the sentencer to find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (18) whether the death penalty statute is unconstitutional because it does not prescribe specific rules to govern appellate review of death sentences; (19) whether the death penalty statute is unconstitutional because it does not require any comparative proportionality review; (20) whether the death penalty statute is unconstitutional because it does not require a finding of specific intent to kill in order for the death penalty to be imposed when the underlying charge is felony murder; (21) whether the death penalty statute is unconstitutional because it permits burglary to be employed as an aggravating circumstance where burglary is also an independent offense.
These are the facts from the record that support the determination of guilt. This series of tragic events involves appellant, D. H. Fleenor, appellant's estranged wife, Sandra Sedam, the wife's mother, Nyla Harlow, and the wife's stepfather, Bill Harlow.
On December 12, 1982, between 3:00 p.m. and 4:00 p.m., appellant purchased a .22 Colt Peacemaker. During the course of the afternoon, he consumed approximately four beers, and he smoked a marijuana cigarette. He did not appear to be drunk or out of control to his companion.
Between 4:00 p.m. and 5:00 p.m., Sandra Sedam and Nyla Harlow were Christmas shopping at a department store. At the store, they encountered appellant, and they talked to him for about ten minutes. Appellant was agitated and might have been drinking before this conversation.
At approximately 6:30 p.m., appellant sought out Sandra Sedam at a church service. He behaved properly in the church, he apologized for the earlier meeting, and then he left.
Afterwards, he was given a ride to the area of the Harlow's home, and he entered it.
At 7:30 p.m., Bill Harlow, Nyla Harlow, Sandra Sedam, Sandra's little boy Justin, and Bill Harlow's grandchildren Billy and Angie returned home from church. Bill and Nyla started talking about appellant showing up at the church. At that point, appellant appeared in the hallway, and he shot Bill. He then ordered the two women and the children to sit on the couch. Thereafter, he allowed Nyla to go to her husband Bill, who was on the floor. As she assisted Bill, appellant shot her in the head. He ordered Sandra, Billy and Angie to carry Nyla into the bedroom. Subsequently, appellant, Sandra, Billy, Angie and Justin drove to the home of James Sedam, Sandra's brother. Appellant then ordered Angie to tell James that they were going out of town for a few days. They then returned to the Harlow's home. Bill Harlow was conscious, and he asked about his wife. Bill asked appellant not to leave him there. Appellant then said to Sandra, "You know I have to. . I can't let him suffer any more". Immediately thereafter, appellant shot Bill Harlow again. The next morning, appellant fled to Tennessee with Sandra, Billy, Angie and Justin accompanying him. While in Tennessee, appellant called his mother in Indiana, and he told her that he thought he killed the Harlows. Testimony established that the Harlow's both died from gunshot wounds to the head.
Appellant contends that the trial court denied him a fair trial. Specifically, he argues that the exclusion of jurors who could not conscientiously consider the death penalty created a "conviction prone" jury.
Appellant relies on Grigsby v. Mabry (8th Cir., 1985), 758 F.2d. 226, cert granted sub nom Lockhart v. McCree (1985), 106 S.Ct. 59, to support his position. The United States Supreme Court has now ruled against appellant's position. See Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137; see also Burris v. State (1984), Ind., 465 N.E.2d 171.
In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors come from many different backgrounds, and have many different attitudes and preDispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.
Appellant argues that the trial court erred in excluding several prospective jurors for cause due to their opposition to the death penalty.
The United States Supreme Court set out the standard to be followed on voir dire in death penalty cases in Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. The Court held that the jury impartiality to which a criminal defendant is entitled precludes a state from carrying out a sentence of death if the jury that imposed or recommended the death penalty "was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 785. Only when a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings" can he be struck for cause. 391 U.S. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21. Indiana has followed this decision in Lamar v. State (1977), 266 Ind. 689, 366 N.E.2d 652, and Monserrate v. State (1971), 256 Ind. 623, 271 N.E.2d 420.
It has been clearly recognized that the Witherspoon standard can present a dilemma to the trial court when some of a juror's answers about his belief in the death penalty are equivocal. It is then the duty of the trial court to pursue the matter further until it is established that the juror is "irrevocably committed" to vote against the death penalty. Lamar v. State, supra.
Daniels v. State (1983), Ind., 453 N.E.2d 160, 166.
Appellant specifically challenges the exclusion of veniremen Yarnell, Adams, and Smith. The kernel of his claim is that each venireman allegedly responded that they could consider the death penalty. Appellant's claim, however, is not sustained when each venireman's testimony is viewed in its entirety.
The pertinent part of Yarnell's testimony is set forth here
Q. Is it absolutely impossible - would it be absolutely impossible for you to consider the death penalty?
A. I'm afraid it would be, and in looking down the road as to what it might-how it might affect me.
Q. Well, let me just give you a moment, sir, and I want you to just think about this question. Is there a possible situation in which you could impose the death penalty as you are here today, right now? I ask you for your answer - yes or no. Can you conceive of a - of a situation in which you would as a juror vote to impose the death penalty?
A. I really can't conceive of it no. . .
Court: Okay now, uh, I . . . hate to ask you the same question again, but is it possible for you to consider it or is it not possible for you to consider it?
A. I don't feel like I could consider it. . .
Court: And if you were to be on the jury in this case, you could not consider it.
The pertinent part of Adam's testimony is set forth here:
Q. Okay. Would you automatically vote against recommending the death penalty? This is a general question, not this case.
A. Would I automatically what - what is it again?
Q. Vote against the death penalty recommendation.
Court: Now, let me ask you. . . does that mean that in any case, no matter how aggravated the situation, if you were to be a juror in the death penalty phase of the case, that you would automatically vote no.
Court: . . . does that mean that you would not consider the death penalty?
Court: So, you're now gonna give me an unequivocal yes?
The pertinent part of Smith's testimony is set forth here:
Q. Okay. And when you - if you get to the second phase, can you consider the death penalty?
Q. You can't consider the death penalty?
Q. Alright. Can you imagine any case in which the death penalty ...