In the Supreme Court of Indiana
Cause No. 49S00-9801-DP-55
Walter Dye, Appellant (Defendant Below),
v.
State of Indiana, Appellee (Plaintiff Below).
Appeal From The Marion Superior Court
The Honorable Patricia J. Gifford, Judge
Cause No. 49G04-9608-CF-112831
On Direct Appeal
September 30, 1999
BOEHM, Justice.
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 Dyecontends that (1) the State committed numerous discovery
violations; (2) his right to be freefrom 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 excusetwo jurors for cause upon his motion;
(4) his jury was not selected from a representativecross-section of
the community; (5) the trial court erred when it modified his
tenderedpenalty phase instruction on clemency; and (6) death is not
the appropriate sentence basedon the weighing of aggravating and
mitigating circumstances and the “residual doubt” of hisguilt. We
affirm.
Factual and Procedural Background
Myrna Dye decided to leave Dye, her husband of
four years, in early July, 1996. According to Myrna, the couple
constantly fought, their sexual relationship had becomenonexistent,
and Dye had become “real grouchy” toward Myrna's daughter Hannah
Clay,who lived with the couple. On Monday July 15, Myrna signed a
lease for a furnishedapartment located seven blocks from where she
and Dye resided. That evening Dyeconfronted Myrna about her plans to
leave, and she confirmed his suspicions. According toMyrna, Dye
appeared “kind of angry” and told her “I can have something done to
you andhave an alibi because I would be at work.” He added, “I'm
going to make sure you sufferthe rest of your life, and everybody is
going to know who been there.” The next day, whileDye was at work,
Myrna and Hannah moved out.
The following Sunday, July 21, Myrna and another
of her daughters, Potrena Jones, went to work the night shift at a
nursing home. Hannah remained at the apartment withMyrna'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 ofMyrna's daughters. Theresa was supposed to
have worked the afternoon shift at the samenursing 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 twochildren. Theresa's boyfriend, John Jennings, eventually
answered the phone, and Myrnahad harsh words for both of them.
At the end of their shift, Myrna and Potrena took
the bus home. As they approachedthe apartment at about 8:00 a.m.,
they saw several police cars. They soon learned thatHannah's
partially nude body had been found in the apartment and that Celeste
andLawrence were missing. An autopsy later revealed that Hannah had
been beaten with whatthe pathologist believed to be a crowbar and a
hammer. Her body sustained blunt forceinjuries as well as ligature
strangulation and stab wounds to the neck and hand. The bluntforce
injuries were applied with such force “to have crushed the front of
the chest wall backtoward the spine, crushing the heart and the
lungs in between.” A rape kit was collectedduring the autopsy.
Although the swabs of her body showed no evidence of sperm, a
wetwashcloth 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 policeofficer found a bundled comforter
among some tall weeds along an alley near Myrna'sapartment. 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 thehead with a fist. Lawrence had also
been hit in the left lower chest and liver, and Celeste hadbeen
stabbed with a knife. Lawrence had been strangled with a lamp cord
taken fromMyrna's apartment, and Celeste had been strangled with an
extension cord.
Investigators collected a great deal of physical
evidence that pointed to Dye as thekiller. 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 werefound on papers strewn on the bedroom floor. One of
these papers had the palmprints inHannah's blood from both Dye and
Hannah. Police seized Dye's shoes during the executionof a search
warrant at his residence, and Hannah's blood was found in the inner
stitching andfibers of the shoes. Finally, analysis of DNA in the
sperm found on the washcloth matchedDye'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 lefthis residence on the night of
the murders. However, he testified at trial that he walked to
getcigarettes at about 2:45 a.m. on the night of the killing and
kept walking to Myrna'sapartment, because Myrna had told him days
earlier that she would be off work on Sundaynight. 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, andclocked in at work at 5:26
a.m.
A jury convicted Dye of three counts of murder.
The jury recommended that thedeath penalty be imposed, and the trial
court followed that recommendation and sentencedDye to death.
I. Alleged Discovery Violations
Dye contends that the State violated the
discovery rules of Marion County bybelatedly disclosing several
pieces of evidence. He also argues that these “egregious”violations
deprived him of his “state and federal due process rights and his
right to presenta defense.”See footnote
2
Trial courts are given wide
discretion in discovery matters because they havethe duty to promote
the discovery of truth and to guide and control the proceedings.
Braswell v. State, 550 N.E.2d 1280, 1283 (Ind. 1990). They are
granted deference indetermining what constitutes substantial
compliance with discovery orders, and we willaffirm their
determinations as to violations and sanctions absent clear error and
resultingprejudice. Id.; Kindred v. State, 524 N.E.2d 279, 287 (Ind.
1988). When remedial measuresare warranted, a continuance is usually
the proper remedy, but exclusion of evidence maybe appropriate where
the violation “has been flagrant and deliberate, or so misleading or
insuch bad faith as to impair the right of fair trial.” Kindred, 524
N.E.2d at 287.
A. The Crowbar
The day after the killings a crowbar was
discovered in the alley running behindMyrna's apartment. The
crowbar's existence was promptly disclosed to the defense, as wasa
report that it had been tested for the presence of human blood and
tested positive. OnMarch 13, 1997, detectives, at the direction of
the prosecutor's office, again interviewedMyrna and Theresa. Myrna
confirmed that Dye had owned a crowbar similar or identicalto the
one found. The detective promptly advised a deputy prosecutor of
what he hadlearned, and the deputy instructed him to write an
interdepartmental memo memorializingthe conversation. The detective
wrote the memo and gave it to a paralegal in the prosecutor'soffice.
The paralegal apparently misfiled the memo and failed to route it to
the prosecutorsor defense attorneys who would try the case.See
footnote
3
As a result, Myrna's statements that
thecrowbar belonged to Dye were not disclosed to the defense until
August 13, 1997, threeweeks before Dye's trial was to begin. Upon
receipt of the memo, defense counsel filed a motion to exclude any
evidence relating to the crowbar, contending that the State's
belateddisclosure of the interdepartmental memo “is in total and
complete violation of the Rules ofDiscovery of the Marion Superior
Court, is contemptuous, and is deserving of the most severe
sanctions.” The trial court conducted a hearing on the motion and
denied the motionto exclude the evidence, observing that “[t]here
are other remedies available to thedefendant.”
Dye points to Rule 7 of the Rules of Organization
and Procedure of the MarionSuperior Court, Criminal Division.
Section 1(a) of that rule provides that “[t]he court atinitial
hearing will automatically order the State to disclose and furnish
all relevant items andinformation under this Rule to the defendant(s)
within twenty (20) days from the date of theinitial hearing . . . .”
The information here, however, was not known to exist within
twentydays of the initial hearing, but rather was uncovered by the
State months later during thecourse of its preparation for trial.
Under these circumstances, the State nevertheless had theobligation
to make timely disclosure of the evidence to the defense. The five
month delayhere can hardly be viewed as timely. Nevertheless,
accepting the State's explanation at facevalue, the belated
disclosure was not flagrant or deliberate, and disclosure
neverthelessoccurred 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 continuancewas not clear error, and in any event he has not
demonstrated any resulting prejudice.See footnote
4
Kindred, 524 N.E.2d at 287.
Dye also asserts error based on the State's
belated disclosure of Theresa Jones' March13 statement to
detectives. Theresa told police that she had owned a crowbar similar
to theone described by Myrna, but after being shown the crowbar
found near the crime scene toldpolice that it was not hers. She also
told police that she could not recall whether her crowbarwas in the
trunk of her car when it was repossessed. This conversation was
alsomemorialized in the same misfiled memo described above and not
disclosed to the defenseuntil the memo surfaced three weeks before
trial. Dye argues that, because of the belateddisclosure, he had an
“inadequate opportunity to effectively use this information. Had
timeallowed, the defense could have explored the repossession of
Theresa's car and if thecrowbar was, indeed, in the trunk.” He
contends that the State's belated disclosure of thisevidence
constitutes a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed.2d 215 (1963). We disagree.
As a threshold matter, there was no Brady
violation because the evidence wasdisclosed to the defense three
weeks before trial, see Williams v. State,714 N.E.2d 644, 648-49
(Ind. 1999), and the defense had ample opportunity to pursue any
avenues raised by itsdisclosure and to adjust its strategy
accordingly. Moreover, Brady and its progeny apply toevidence that
is “material” to guilt or punishment, i.e., evidence that creates a
reasonableprobability of a different result of a proceeding. See,
e.g., United States v. Bagley, 473 U.S.667, 682, 105 S. Ct. 3375, 87
L. Ed. 2d 481 (1985). Theresa's statement to the police ishardly
exculpatory or material to Dye's guilt. She told police that her
crowbar was differentfrom the one found near the crime scene, and
questioning those individuals who repossessed her car would, in the
best case scenario to the defense, have disclosed that no crowbar
wasfound in her trunk. This would not exculpate Dye nor would it
materially add to his defensein 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, fingerprintexaminer 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 compareda number of unidentified latent fingerprints
from the crime scene with those submitted byJennings, and found no
matches. According to the State, it did not receive Donnelly's
reportuntil the evening of September 9, and it turned the report
over to the defense early thefollowing morning. In addition, the
prosecutor's office directed a detective to transportJennings for a
blood draw on August 22. DNA analysis excluded Jennings as the
contributorof any of the unknown DNA from the crime scene. Defense
counsel objected to both theadmission of the fingerprint comparisons
and DNA analysis of Jennings on the ground of itslate disclosure.
The State responded that it requested this analysis after
identifying thedefense theory that someone else, possibly Jennings,
had committed the murders. Dyeinitially sought exclusion of the
evidence, but was instead granted a continuance until thenoon hour.
The trial court observed that it agreed “with the State in that I
believe that theyhad 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
nosanctions imposed.”
We find the State's explanation for the belated
disclosure more than adequate underthe circumstances. Although its
late decision to test these materials was a reasonableresponse to an
expected defense trial theory, it nevertheless ran the risk, in the
event of eithera fingerprint or DNA match, of providing the defense
with powerful evidence to bolster itscase. However, the results
instead exculpated Jennings. This at most forced a minoradjustment
to the defense theory that some unidentified person may have
committed thekillings.
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 scientificevidence
. . . . [Dye] could not later challenge the scientific evidence
about which he did notyet know.” In addition, Dye's opening
statement spoke in generalities about the possibilitythat someone
other than Dye had committed the killings: “We are not going to be
able to tellyou who killed these children. We do not know.” However,
Dye made no specific mentionof Jennings by name as the possible
perpetrator during opening statement. His expresseddecision not to
challenge the scientific evidence hardly prevented him from
challengingscientific evidence not yet known at the time of his
opening statement. The trial courtgranted a continuance to allow
Dye's expert to compare the fingerprints. Had Dye's expertconcluded
that any of the prints found at the crime scene were Jennings', he
could havepresented 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 testimonyof his
fingerprint expert, and the obvious inference is that his expert's
conclusions weresimilar to those of Donnelly. The trial court's
continuance until the noon hour was anadequate remedy under these
circumstances and Dye has demonstrated no prejudice as aresult of
this ruling.
C. Other Alleged Violations
As a final point, Dye quotes from his pretrial
motion for continuance, filed daysbefore trial, which alleged other
discovery violations. However, Dye makes no separateargument
regarding these alleged violations and accordingly any claim of
error is waived forthe failure to present a cogent argument. Ind.
Appellate Rule 8.3(A)(7).See footnote
6
II. Failure to Provide Miranda Warnings
Dye argues that some statements he made to police
should have been suppressedbecause police failed to provide him with
the Miranda warnings before questioning him.See footnote
7
At about noon on July 22, two
detectives went to Dye's place of employment to talk to himabout
Hannah's murder and the disappearance of Lawrence and Celeste. They
informed Dye that he was neither a suspect nor under arrest but that
they needed to ask him some questionsin light of allegations by the
family that he had made threats towards Myrna. He agreed toaccompany
the detectives to the police station, and they explained that police
departmentpolicy required that he be handcuffed and placed in the
backseat during his ride there. Thehandcuffs were removed upon
arrival and Dye was taken to an interview room, where hespoke to
detectives for about forty-five minutes. Dye told the detectives
that he had neverbeen to Myrna's apartment but had a pretty good
idea where it was located. He also said thathe had never left his
residence on the night of the murder. When asked if he were
capableof committing this crime, Dye replied “[i]f I ever had the
thought, never the kids.” Thisstatement was made before the bodies
of Celeste and Lawrence had been discovered. Muchlater in the
day,See footnote
8
the detectives arranged a time on
Wednesday at which to pick Dye up fromwork to transport him for a
blood draw. Detectives explained that they sought a bloodsample
because it was possible that Hannah had been raped. At the agreed
upon time onWednesday, a detective picked Dye up at work. Dye rode,
unrestrained, in the front seat ofthe detective's car. En route to
the blood draw, the detective heard Dye breathing heavilyand 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 ablood sample, nothing more. . .
.”
Miranda warnings are required only in the context
of custodial interrogation. SeeMiranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Custodialinterrogation
is “questioning initiated by law enforcement officers after a person
has beentaken into custody or otherwise deprived of his freedom of
action in any significant way.” Id. The Supreme Court has further
explained interrogation as “either express questioningor its
functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01,
100 S. Ct. 1682,64 L. Ed. 2d 297 (1980). Custody has been described
as “whether there [was] a 'formalarrest or restraint on freedom of
movement' of the degree associated with a formal arrest.” Stansbury
v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 128 L. Ed. 2d 293
(1994) (percuriam) (quoting California v. Beheler, 463 U.S. 1121,
1125, 103 S. Ct. 3517, 77 L. Ed. 3d1275 (1983) (per curiam) (in turn
quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct.711, 50 L.
Ed. 2d 714 (1977) (per curiam)). Based on these authorities, this
Court hasdescribed the custody issue as whether a reasonable person
in the accused's circumstanceswould believe that he or she is free
to leave. Cliver v. State, 666 N.E.2d 59, 66 (Ind. 1996). A police
officer's unarticulated plan to arrest or suspicions about a suspect
has no bearingon the issue; rather, “the only relevant inquiry is
how a reasonable man in the suspect'sposition would have understood
his situation.” Stansbury, 511 U.S. at 324 (quotingBerkemer v.
McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317
(1984)).
As to the statements made during the initial
interview with police, the State does notcontest that the police
questioned Dye. Accordingly, the issue turns on whether Dye was
incustody at the time. Dye relies on Loving v. State, 647 N.E.2d
1123 (Ind. 1995), in which this Court reversed a conviction because
the defendant was subjected to custodialinterrogation without being
advised of his Miranda rights. Although the officers in Lovingdid
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, thenhandcuffed and placed in the back of a
marked police car to be taken to the police stationwhere he was
questioned without ever being told that he was free to leave. Id. at
1125. ThisCourt held that, “[p]articularly in view of the initial
use of handcuffs, . . . a reasonable personin the defendant's
circumstances would not have believed himself to be free to leave
butwould 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 specificallytold that he was being handcuffed
as a matter of standard procedure during transportation tothe police
station, where the handcuffs were immediately removed as promised.
Bothdetectives testified at the suppression hearing that Dye was
free to leave the interview at anytime, and the totality of the
circumstances surrounding the interview lead us to conclude thata
reasonable person in these circumstances would not have considered
his freedom ofmovement restrained to the degree associated with a
formal arrest. Accordingly, the trialcourt did not err when it
denied Dye's motion to suppress the statements made during
hisinitial interview with police.
The alleged Miranda violation en route to the
blood draw presents issues of bothinterrogation and custody. Here,
the detective's asking Dye what was wrong does not constitute
interrogation under Miranda or the functional equivalent of
questioning underInnis. See Hopkins v. State, 582 N.E.2d 345, 348
(Ind. 1991) (“volunteered statements areadmissible absent Miranda
warnings”); see also Loving, 647 N.E.2d at 1126. Moreover, Dyewas
not in custody at the time the statement was made. The blood draw
was arranged inadvance to take place over Dye's lunch hour, and he
was transported in the front seat of thepolice car without any type
of restraint. The trial court properly denied Dye's motion
tosuppress.
III. Rulings on Challenges for Cause
Dye argues that the trial court improperly
excluded one juror for cause anderroneously denied his motion to
exclude two other jurors for cause. He contends that thisviolated
his “state and federal rights to due process and to an impartial
jury.”See footnote
9
A. Excused for Cause
The trial court excluded for cause one juror who
expressed strong views opposing thedeath penalty. In response to a
question on the jury questionnaire about the circumstancesunder
which he believed the death penalty would be appropriate, the juror
responded “[t]osave society or mankind as a whole when there is no
defense.” The prospective juror furtherexplained this as “[t]he
Hitler argument” and was then questioned at some length by the
trialcourt, State, and defense counsel. The prospective juror stated
during this questioning thathe could recommend the death penalty in
a case of an individual similar to Adolph Hitler and possibly
Oklahoma City bomber Timothy McVeigh. However, he later observed
that thiscase involved the alleged killing of three individuals and
agreed that he “could neverconsider” recommending the death penalty
for such a crime. When asked whether he wouldbe able to follow his
oath as a juror and consider the death penalty “as a viable option
in thiscase” 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 constitutionis “whether the juror's views
would 'prevent or substantially impair the performance of hisduties
as a juror in accordance with his instructions and his oath.'”
Wainwright v. Witt, 469U.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
questis 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 thata juror's bias
be proved with unmistakable clarity. Deference must be paid to the
trial courtwho 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 theState 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 atthe outset that they will not recommend
a death sentence even if the State proves one or morestatutory
aggravating circumstance are incapable of following the court's
instructions and are accordingly properly excused for cause. The
questioning described above demonstratedthat this prospective
juror's views on the death penalty would have prevented him
fromfollowing the court's instructions and his oath.
Dye contends that it was nevertheless error for
the trial court to excuse the juror forcause because he stated that
he “could consider the death penalty under certain circumstancesand
in fact, believed it to be an appropriate penalty.” As explained
above, the relevantinquiry is not whether the prospective juror
could recommend the death penalty in anyconceivable case, including
genocide or the most famous of mass murders. Rather, the issueis
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 tothe death penalty. See, e.g.,
Davis v. State, 598 N.E.2d 1041, 1047 (Ind. 1992) (after beingasked
if there are “any circumstances” under which prospective juror could
vote torecommend the death penalty, juror responded “No sir”);
Benirschke v. State, 577 N.E.2d576, 582-83 (Ind. 1991) (prospective
jurors indicated they were opposed to the death penaltyand “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 deathpenalty”); Burris v. State, 465 N.E.2d
171, 178 (Ind. 1984) (“all of the excused veniremenstated 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, severalcases imply that the necessary inquiry is
whether the prospective juror could recommend thedeath 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 anycircumstances that you can imagine uh, as
have been described to you in this case[.]” Thejuror responded “No”
and this Court upheld the removal for cause under Witt. We
observedthat “[t]here need be no ritualistic adherence to a
requirement that a prospective juror makeit unmistakably clear that
he or she would automatically vote against the imposition of
capitalpunishment.” Id. Similarly, in Daniels v. State, 453 N.E.2d
160, 167 (Ind. 1983), this Courtreviewed the removal for cause of a
prospective juror who, after initially stating he did notbelieve in
the death penalty, stated that he thought it might be warranted in
the case of theassassination of a president. The following colloquy
then took place between the trial courtand 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 recommendationof the death sentence?”
A. “No.”
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 outtheir duties in the case
before them. A juror's willingness to recommend a death
sentenceunder other circumstances is irrelevant to that inquiry.
Because the prospective juror herestated that his views on the death
penalty would render him unable to follow the court'sinstructions
and his oath, exclusion was proper under the federal constitutional
standard ofWitt.
2. Exclusion Under Indiana Code §
35-37-1-5(a)(3)
Most of our death penalty cases have been
resolved under federal constitutionalstandards, 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 quotingthe statute);
Underwood, 535 N.E.2d at 513 (applying Witt). However, Dye also
objectedat 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
personentertains such conscientious opinions as would preclude the
person from recommending thatthe death penalty be imposed.”
Accordingly, we must address whether the exclusion of thisjuror
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
11
Dye suggests that exclusion was improper under
the statute because the prospectivejuror stated that he could
consider the death penalty under some circumstances. The
statutespeaks in terms of preclusion from recommending the death
penalty and does not specificallyaddress whether the preclusion must
be in the particular case only or in all cases, no matterhow 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 verynarrow exception (Hitler)
that did not apply to Dye's case. The juror went on to explain
hisunequivocal opposition to the death penalty under his limited
knowledge of the facts ofDye's case (the killing of three children).
Although his opinions may not have precluded arecommendation of
death in every hypothetical case, they did preclude a
recommendationof the death penalty in this case. For the same
reasons already explained, we believe this isall that is required
under the statute. Accordingly, because the prospective
juror'sconscientious 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
B. Failure to Excuse for Cause
Dye also argues that the trial court erred by
failing to excuse two prospective jurorsfor cause upon his motion.
Although both of these jurors at some point expressed the viewthat
they would automatically vote to impose the death penalty in the
case of a knowing orintentional murder, their views were tempered by
subsequent questioning. Both jurors weretold that the law required
them to make a recommendation after weighing the aggravatingand
mitigating circumstances. The first juror agreed that there was a
“possibility” that shewould not recommend the death penalty and
agreed she could set aside her personal beliefsand follow the law
and her oath. The other juror also stated that it was “possible”
that hewould vote against the death penalty and agreed that he would
weigh the aggravators andmitigators in good faith and apply the law
as it was given to him.
Dye contends that exclusion for cause was
required by Morgan v. Illinois, 504 U.S.719, 112 S. Ct. 2222, 119 L.
Ed. 2d 492 (1992). In Morgan, the Supreme Court held that thetrial
court's refusal to inquire whether prospective jurors would
automatically vote to imposethe death penalty upon conviction
violated the Due Process Clause of the FourteenthAmendment. However,
in this case the trial court did inquire about the possibility that
thesejurors would vote automatically to impose the death penalty and
defense counsel wereafforded the same opportunity to inquire. This
questioning revealed that these prospectivejurors understood that
both the law and their oath were contrary to their view favoring
anautomatic recommendation of death and agreed that they would
follow the law and their oath. The trial court did not err by
excluding them.See footnote
13
IV. Fair Cross-Section of the Jury Pool
Dye argues that his jury was not selected from a
venire that represented a fair cross-section of the community.
Before trial 150 prospective jurors completed questionnaires
thatincluded a question about race. After reviewing the
questionnaires, Dye discovered that onlyeighteen of the 150
potential jurors identified themselves as African-American.See
footnote
14
He fileda “Motion to Stay
Proceedings or Dismiss the Information Based upon Racial
Discriminationin the Jury Venire” which sought either time to allow
investigation of the racial disparity,supplementation of the venire
pursuant to Indiana Code § 33-4-5-2(d)&(e), or dismissal ofthe
information. The trial court denied the motion.
In order to make a prima facie showing of a
violation of the fair cross-sectionrequirement, a defendant must
establish
(1) that the group alleged to be excluded is a
“distinctive” group in the community;
(2) that the representation of this group in
venires from which juries are selected is not fair and reasonable in
relation to the number of such persons in the community;
and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct.
664, 58 L. Ed. 2d 579 (1979).
Dye acknowledges that he bears the burden of
establishing a Duren violation, see, e.g., Bond v.State, 533 N.E.2d
589, 591 (Ind. 1989), and concedes that he cannot meet the third
prong ofDuren based on the record before us. He nevertheless asserts
error based on the trial court'sdenial of his motion to stay the
proceedings or supplement the venire pursuant to IndianaCode §
33-4-5-2(d)&(e). That statute provides that “[t]he jury
commissioners maysupplement voter registration lists and tax
schedules . . . with names from lists of personsresiding in the
county that the jury commissioners may designate as necessary to
obtain across section of the population of each county
commissioner's district. . . .” Ind. Code § 33-4-5-2(d) (1998). The
supplemental sources “may consist of such lists as those of
utilitycustomers, persons filing income tax returns, motor vehicle
registrations, city directories,telephone directories, and driver's
licenses. . . .” Id. § 33-4-8-2(e). As noted above, Dyemade no
showing that supplementation was necessary to comply with Duren, and
we see nobasis for requiring trial courts under such circumstances
to utilize this discretionary statutoryprovision for supplementation.
The use of voter registration lists complied with
statute. See Ind. Code § 33-4-5-2(1998).See footnote
15
In addition, the trial court also
had a duty to comply the constitutionalrequirements set forth in
Duren, which it did. It was not required to supplement the voter's
registration lists. See Bradley v. State, 649 N.E.2d 100, 103-04
(Ind. 1995) (“Absentconstitutional infirmity, however, we decline to
construe [Indiana Code § 33-4-5-2(d)] so asto convert an option into
a mandate.”). Nor was the trial court required to grant Dye a
stayfor further investigation of systematic exclusion. Dye did not
raise the issue until daysbefore trial when a lengthy continuance
would have been required to conduct the study Dyerequested.See
footnote
16
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 denialof
Dye's motion for a stay was not an abuse of discretion.
V. The Clemency Instruction
Dye contends that the trial court erred when it
instructed the jury on clemency. Indiana Code § 35-50-2-9(d)
provides, in relevant part, that “[t]he court shall instruct the
juryconcerning . . . the availability of good time credit and
clemency.”See footnote
17
Dye tendered aninstruction that
provided:
The Governor of Indiana has the power, under
Indiana Constitution, to grant reprieve, commutation, or pardon to a
person convicted and sentenced for murder. The 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
throughcomplete and accurate information about the possibility of
clemency. . . . The speculationthat jury could have entertained is
endless.”See footnote
18
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
thegiving of the instruction; and (3) the substance of the tendered
instruction is not covered bythe other instructions given. Byers v.
State, 709 N.E.2d 1024, 1028-29 (Ind. 1999). The lastsentence 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 thetrial court was not a statement
of law at all. Rather, it was a statement of historical
practicesurrounding 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 futureGovernors' actions.
Although the exercise of the power to grant clemency may have
beenrare under current and prior Indiana Governors, there is no way
to determine whether afuture 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 ofclemency by former Ohio Governor Richard
Celeste to women convicted of killing orassaulting husbands or
companions alleged to have physically abused them). The trial
courtdid not err by modifying Dye's tendered instruction on clemency.
VI. Appropriateness of the Death Sentence
As a final point, Dye attacks the appropriateness
of his death sentence. According tostatute, a death sentence is
subject to “automatic review” by this Court. See Ind. Code §
35-50-2-9(j)(1998). Although this Court has the constitutional
authority to review and revisesentences, Ind. Const. art. VII, § 4,
it will not do so unless the sentence imposed is“manifestly
unreasonable in light of the nature of the offense and the character
of theoffender.” Ind. Appellate Rule 17(B). The Court has explained
this standard as “notwhether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, andobviously so.”
Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997), cert. denied, ___
U. S.___, 119 S. Ct. 104, 142 L. Ed. 2d 83 (1998)). In reviewing a
death sentence, however, wehave noted that “these harsh requirements
'stand more as guideposts for our appellate reviewthan as immovable
pillars supporting a sentence decision.'” Id. (quoting Spranger v.
State, 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 doesnot 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
Thejury found that the aggravator
outweighed any mitigators and recommended that the deathpenalty be
imposed. After a sentencing hearing at which Dye presented the
testimony of anadditional witness, the trial court agreedSee
footnote
22
and imposed the death sentence.
The trial court's sentencing order explicitly
rejected Dye's “residual doubt” argument, finding that the evidence
“was more than sufficient to prove beyond a reasonable doubt thatthe
defendant committed the murders with which he was charged. There is
no 'residual doubt' when considering the reasonable doubt standard.”
The trial court's sentencing orderrecounted some of the evidence
against Dye including that his left palmprint was found ona table
near where Hannah was found, that his bloody fingerprint was found
on a garmenttag lying near Hannah's body, and that his semen was
found on a wash cloth found next toher body.
Dye's residual doubt argument on appeal focuses
on a few pieces of unidentified evidence, specifically hairs found
on Hannah's chest, a dried crusty substance found on herthigh and
pubic hair, as well as the absence of Dye's footprints outside the
apartment, theabsence of his fingerprints in the area where he must
have picked up a knife and the absence of fingerprints on the hammer
believed to have been used to bludgeon Hannah and Celeste. He also
points to a fingerprint that was found on a glass in Myrna's
apartment and was compared to twenty people who may have been inside
the apartment (including Dye), but remained unidentified. Defense
counsel was free to argue -- and did argue -- these items tothe jury
in both the guilt and penalty phases and to the trial court at
sentencing. However,in light of the significant physical evidence
that connected Dye to these murders, the jury andtrial court were
not persuaded by these few loose ends. Some of this evidence is
arguably attributable, as the State points out, to the fact that
Myrna's furnished apartment “was afilthy, oft-rented unit with used
carpeting, used furniture and a dirty mattress.” We are no 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 throughthe proffered mitigating evidence,See footnote
23
we are not persuaded to revise this
sentence.
Conclusion
Walter Dye's convictions for murder and death
sentence are affirmed.
SHEPARD, C.J., and DICKSON and SELBY, JJ., concur.
SULLIVAN, J., concurs with separate opinion.
*****
SULLIVAN, Justice, concurring.
I concur in the Court's opinion. I write to
provide additional review of theappropriateness 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
accompanyingstrong 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 relyingon the
judgment of the trial court, this Court conducts its own review of the
mitigating andaggravating 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 makesIndiana's
capital punishment statute constitutional.”) (citations omitted).
As to the appropriateness of the death penalty
in this case, the statute guides thisCourt'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
oneaggravating 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 penaltywith the aggravating
circumstance that Dye committed multiple murders (those of HannahClay
and Celeste Jones), id. § 35-50-2-9(b)(8).
To prove the existence of this aggravating
circumstance at the penalty phase of thetrial, the State relied upon
the evidence from the earlier guilt phase of the trial (with respectto
which the jury had found Dye guilty of the two murders, as well as the
murder ofLawrence Cowherd). The death penalty statute requires that
any mitigating circumstancesbe weighed against any properly proven
aggravating circumstances. The Court's opinion accurately describes
Dye's argument in favor of mitigating circumstances. The juryreturned
a unanimous recommendation that a sentence of death be imposed.
Once the jury has made its recommendation, the
jury is dismissed, and the trial courthas the duty of making the final
sentencing determination. First, the trial court must findthat the
State has proved beyond a reasonable doubt that at least one of the
aggravatingcircumstances 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 areoutweighed 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 considerthe jury's recommendation. Id. §
35-50-2-9(e). The trial court must make a record of itsreasons 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 areasonable 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 courtfound only that Dye's
history of prior criminal conduct was not significant (he had
beenconvicted of two Class A misdemeanors _ Driving While License
Suspended in 1989 andBattery 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
alsoconsidered, but did not find to exist, additional statutory
mitigating circumstances and otherpurported mitigating circumstances
offered by Dye. I agree with the trial court's and thisCourt's
analyses of the mitigation in this case and find the mitigating weight
to be in the lowrange.
As required by our death penalty statute, the
trial court specifically found that theaggravating circumstance
outweighed the mitigating circumstances. The trial court alsogave
consideration to the jury's recommendation. The trial court imposed
the sentence ofdeath.
Based on my review of the record and the law, I
agree that the State has provenbeyond a reasonable doubt an
aggravating circumstance authorized by our death penaltystatute and
that the mitigating circumstances that exist are outweighed by that
aggravatingcircumstance. I conclude that the death penalty is
appropriate for Dye's murder of HannahClay, Celeste Jones and Lawrence
Cowherd III.
*****
Footnotes:
Footnote:
1 Dye testified at trial that, in the course of his sexual
practices with Myrna, he would sometimesejaculate in a washcloth and
had done so the Wednesday before Myrna left him. Myrna testified that,
afterDye had ejaculated on her, she would either take a bath or clean
herself with a washcloth. However, shetestified that her last sexual
contact with Dye was in the early part of June and that she had taken
no dirtywashcloths with her when she moved.
Footnote:
2 “Due process” is a term found in the Fourteenth Amendment of
the U.S. Constitution. It does notappear in the Indiana Constitution.
The closest state analog is the “due course of law” provision in
ArticleI, Section 12. Dye does not cite that provision, let alone
offer a separate analysis based on the stateconstitution. Accordingly,
any state constitutional claim is waived. Valentin v. State, 688 N.E.2d
412(Ind. 1997).
Footnote:
3 Rule 5.3(b) of our Rules of Professional Conduct require that
“[a] lawyer having directsupervisory authority over [a] nonlawyer
shall make reasonable efforts to ensure that the person's conductis
compatible with the professional obligations of the lawyer.” Although
sending a memorandum to theappropriate attorneys is a clerical task
appropriately assigned to a paralegal, the prosecutors assigned to
acase nevertheless bear the ultimate burden of ensuring compliance
with the discovery rules. This isespecially true under the
circumstances here, where a deputy prosecutor knew of -- indeed,
requested thatdetectives take -- an important statement from a crucial
witness. That this is a death penalty case onlyheightens the need for
attorneys within the prosecutor's office to ensure that paralegals are
turning over alldiscovery in a timely manner.
Footnote:
4 Dye also suggests that he was misled by some answers given by
State's witnesses during pretrialdepositions. However, he does not
contend that these answers were not correct according to the
witness'sknowledge at the time of their respective depositions.
Moreover, Dye had the opportunity to re-deposethese witnesses before
trial, in light of the information belatedly disclosed to him on
August 13. Thispresents no basis for reversal.
Footnote:
5 Dye also mentions evidence of shoeprints but then notes that
the trial court excluded thisevidence. Accordingly, any belated
disclosure of this evidence presents no basis for reversal.
Footnote:
6 The State does not assert waiver but instead addresses the
issue on its merits, pointing out thatthree of the witnesses mentioned
in the motion were not called at trial by the State, the complained
ofportion of another witness's testimony was not presented at trial,
an expert's report was timely disclosed,an amended transcript of a
witness's statement was issued merely to correct “inaudibles” from an
earliertranscript, and Dye learned of the oral statements of two other
witnesses more than a week in advance oftrial which was sufficient
time to render them nonprejudicial to his case.
Footnote:
7 Dye captions his argument in terms of “state and federal rights
self-incrimination and to counsel”but merely cites Article I, Sections
11-13 without making any separate analysis based on the
stateconstitution. Any claim of error under the Indiana Constitution
is waived. See Valentin v. State, 688N.E.2d 412 (Ind. 1997).
Footnote:
8 After this interview with police, Dye spent several more hours
with police but points to nostatements made during this time that
should be suppressed. Accordingly, we need not address whether
anycustodial interrogation occurred subsequent to the initial
interview described above.
Footnote:
9 Once again, any state constitutional claim is waived for the
failure to make a separate argumentunder the Indiana Constitution. See
supra notes 2 and 7.
Footnote:
10 See Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20
L. Ed. 2d 776 (1968). TheWitherspoon standard, as commonly applied at
the time, permitted excusing only those jurors who make“unmistakably
clear (1) that they would automatically vote against the imposition of
capital punishmentwithout regard to any evidence that might be
developed at the trial of the case before them, or (2) that
theirattitude toward the death penalty would prevent them from making
an impartial decision as to thedefendant's guilt .” Id. at 522 n.21 (emphasis
in original). In Witt, the Supreme Court made clear that theCourt's
holding in Witherspoon “focused only on circumstances under which
prospective jurors could not be excluded; under Witherspoon's facts it
was unnecessary to decide when they could be.” Witt, 469 U.S.at 422 (emphasis
in original). Witt concluded that the quoted footnote language from
Witherspoon was“dicta” and “not controlling.” Id.
Footnote:
11 Dye contends that this statute is a codification of the
standard set forth by the United StatesSupreme Court in Witherspoon.
This is incorrect. Although the statutory language is somewhat similar
toWitherspoon, the statutory provision has been on the books in a
virtually identical form for over a century -- long before Witherspoon.
See Kerr, supra § 21.6d, at 149 n.42.
Footnote:
12 Dye quotes the following language from this Court's opinion in
Baird v. State, 604 N.E.2d 1170,1185 (Ind. 1992), “[o]nly jurors who
state, without equivocation or self-contradiction, that they would
notvote for death in any case can be excluded . . . .” Baird cites
Witherspoon and Lamar v. State, 266 Ind.689, 366 N.E.2d 652 (1977), an
Indiana case applying Witherspoon, as support. Baird does not cite
thestatute, and Lamar cites the statute without quoting the language
of subsection (3). Lamar instead citesand applies Witherspoon. As
explained above, the federal constitutional standard of Witherspoon
has beenreplaced by Witt. Moreover, Baird did not purport to be
interpreting the statute.
Footnote:
13 As the State points out, even if a trial court erroneously
refuses to remove for cause jurors whodeclare that they will vote to
impose death automatically, a death sentence may be affirmed if the
jurorswere nevertheless removed through the use of peremptory
challenges. See Ross v. Oklahoma, 487 U.S. 81,108 S. Ct. 2273, 101 L.
Ed. 2d 80 (1988). The relevant inquiry is whether any such jurors sat
on the jurywhich ultimately sentenced the defendant to death. Id. at
85-86. In Dye's case, both jurors were excusedthrough the use of
peremptory challenges and he does not contend that the use of these
challenges preventedhim from excusing other prospective jurors who
would have voted to impose death automatically.
Footnote:
14 It was later revealed during voir dire that one of the
eighteen was mentally handicapped and haderroneously listed her race
as African-American.
Footnote:
15 In addition, this Court has expressed approval of the use of
voter registration lists from which toselect a pool of prospective
jurors. See, e.g., Fields v. State, 679 N.E.2d 1315, 1318 (Ind. 1997);
Bradleyv. State, 649 N.E.2d 100, 104-05 (Ind. 1995); Concepcion v.
State, 567 N.E.2d 784, 788 (Ind. 1991)(citing Burgans v. State, 500
N.E.2d 183 (Ind. 1986)); Smith v. State, 475 N.E.2d 1139, 1142-43
(Ind.1985).
Footnote:
16 In his reply brief, Dye asks that this Court take judicial
notice of the results of a not-yet-completed study in a pending
capital case that examines the possible systematic exclusion of
AfricanAmericans from jury venires in Marion County. Evidence Rule
201(a) permits courts to take judicialnotice of a fact that is “not
subject to reasonable dispute in that it is either (1) generally known
within theterritorial jurisdiction of the trial court, or (2) capable
of accurate and ready determination by resort tosources whose accuracy
cannot reasonably be questioned.” The study alluded to here is not a
propersubject of judicial notice. According to the limited information
in the reply brief, the study has taken weeksor months and a similar
study has never before been done. Its subject matter is neither
“generally known”within the jurisdiction nor do the conclusions of
such a study seem to be “capable of accurate and readydetermination”
by resort to sources that cannot be reasonably questioned.
Footnote:
17 This language was added to the statute in 1993. See Pub. L.
250-1993, § 2, 1993 Ind. Acts4481.
Footnote:
18 Dye concedes that giving an instruction that tells the jury
that the governor has the power tocommute a sentence does not violate
the Eighth Amendment, applicable to the states through the
FourteenthAmendment. See California v. Ramos, 463 U.S. 992, 103 S. Ct.
3446, 77 L. Ed. 2d 1171 (1983).
Footnote:
19 “The Governor may grant reprieves, commutations, and pardons,
after conviction, for alloffenses except treason and cases of
impeachment, subject to such regulations as may be provided by law.”
Ind. Const. art. V, § 17. Such applications are to be filed with the
parole board, which shall make arecommendation to the Governor after
(1) notifying (A) the sentencing court, (B) the victim of the crime
ornext of kin, and (C) the prosecuting attorney for the county where
the conviction was obtained and (2)conducting an investigation and (3)
hearing. Ind. Code § 11-9-2-1 to -2 (1998).
Footnote:
20 The State also alleged, on a separate charging instrument
filed on the same day, that Dye killedLawrence after murdering Hannah.
However, the jury was not presented with this second
aggravatingcircumstance nor did the trial court make any mention of it
in its sentencing statement or sentencing order.
Footnote:
21 A Marion County probation officer testified that Dye was
compliant during his probationarysentence for a Class A misdemeanor
battery offense against Myrna. “He did what he was supposed to do. He
finished his counseling and he paid his money and he kept his
appointments.” Dr. Odie Bracy, III, aclinical neuropsychologist,
testified that overall Dye “presented fairly normally. . . . [H]e was
verycooperative, very friendly, presented no problems whatsoever
during the entire day. . . . He showed a goodcapability to learn, to
comprehend, to follow instructions, and exhibited an excellent memory.”
ThreeMarion County corrections' officers testified that they had never
had any problems with Dye during hispretrial incarceration. Finally, a
public information officer from the Department of Correction testified
that186 of the 1536 men serving sentences in the general prison
population for murder were convicted ofmultiple killings. She
testified that twenty-seven of the fifty men on death row were there
for multiplemurders. On cross-examination the witness testified that
multiple murder means two or more and that shedid not have the
statistics for those who committed three murders.
Footnote:
22 The trial court found that the State had proven the
aggravating circumstance beyond areasonable doubt and found as a
mitigating circumstance that “[a]lthough he defendant's history of
priorcriminal conduct cannot be considered significant, the
circumstances surrounding [his] battery conviction[against Myrna in
1992 was] significant.”
Footnote:
23 Dye contends that the evidence “presented to the jury
primarily painted [him] as an average Joewith no serious
psychopathology.” He points to his stable work history, compliance
with probation termsand corrections officers while awaiting trial, his
brother's testimony that he was not capable of the killings,and a
letter from his daughter telling him that she missed and loved him.
However, Dye points to only onepotentially mitigating circumstance
alleged to have been overlooked by the trial court based on
thisevidence. Citing Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct.
1699, 90 L. Ed. 2d 1 (1986), hecontends that the trial court
apparently overlooked the testimony from corrections officers about
hiscompliant behavior because “it does not appear in [the] sentencing
order.” In Skipper, the Supreme Courtheld that it was error for a
state trial court to exclude the testimony of jailers and a “'regular
visitor' to thejail to the effect that petitioner had 'made a good
adjustment' during his time spent in jail.” Id. at 3. TheCourt
observed that the exclusion of this “relevant mitigating evidence
impeded the sentencing jury's abilityto carry out its task of
considering all relevant facets of the character and record of the
individualoffender.” Id. at 8. Unlike Skipper's jury, Dye's jury heard
this testimony and nevertheless recommendedthat death be imposed.
Skipper presents no basis for reversal here.
