Prowell v. State

On Direct Appeal

DICKSON, Justice.

In this direct appeal, the defendant-appellant, Vincent J: Prowell, challenges his death sentence for the murders of Denise Powers and Chris Fillbright. On May, 23, 1993, Powers sat in her automobile waiting for Fillbright. As Fillbright approached the automobile door, the defendant shot him in the back of his head, at close range. As Powers was screaming, .the defendant shot her twice, also at close range, in the face and in her right side, piercing her lung and heart. An eyewitness observed the shootings and identified the defendant as the shooter. The defendant pled guilty to both murders. The trial court ordered the death penalty.

The defendant alleges various errors, four of which are reviewable in this direct appeal:¹ (1) improper admission of victim impact evidence; (2) applicability of the option of life imprisonment without parole; (3) insufficiency of the trial court order imposing the death sentence; and (4) improper consideration of factual issues in sentencing. In addition, the defendant requests that this Court revise his death sentence to a term of years.

1. Victim Impact Evidence

The defendant first contends that the substantial amount of victim impact evidence— testimony, poems, and photographs — admitted at his sentencing hearing requires reversal of his sentence.²

In Bivins v. State, 642 N.E.2d 928 (Ind.1994), cert. denied, — U.S. -, 116 S.Ct. 783, 133 L.Ed.2d 734 (1996), we explained that, in death penalty proceedings, courts may consider only the aggravating circumstances specified in the death penalty statute. Thus, “the admissibility of the victim impact evidence ... hinges upon its relevance to the death penalty statute’s aggravating and mitigating circumstances.” Id. at 967.

It is significant that the present ease does not involve a jury, whose opaque “yes” or “no” recommendation would not reflect the factors leading to its decision. See Ind. Code 35-50-2-9(d) (If “the judgment was entered on a guilty plea, the court alone shall conduct the sentencing hearing.”). In capital eases, the trial court must enter a written sentencing order to ensure that only proper matters are considered by the trial court. Benirschke v. State, 577 N.E.2d 576, 579 (Ind.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992), Daniels v. State, 561 N.E.2d 487, 491 (Ind.1990).

The trial court’s sentencing order disclosed that the trial court based its sentencing judgment upon the finding and weighing of the charged aggravating factor (the defendant committed two murders) and several mitigating factors (no significant history of prior criminal conduct, youth in a dysfunctional family, and possible exposure to physical and emotional abuse). Record at 270-71. Because the trial court’s sentencing order does not refer to any evidence characterized by the defendant as “victim impact evidence,” we conclude that any alleged error in admitting such evidence did not affect the sentence imposed. We “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Ind.Trial Rule 61.

2. Option of Life Imprisonment Without Parole

The second sentencing issue raised by the defendant is the applicability of Indiana Code Section 35-50-2-9(g), which gives the judge the option of sentencing the death-qualified defendant to life in prison without parole as an alternative to sentencing the defendant to death. This section took effect on July 1, 1993 and the Act specifically provided that the life without parole provision “only applies] to murders committed after June 30, 1993.” P.L. 250-1993 § 3. The murders in this case were committed on May 27,1993.

The défendant claims that this limiting provision denies him equal protection of the law. He acknowledges that this question was decided adversely to him in State v. Alcorn, 638 N.E.2d 1242, 1245 (Ind.1994), but claims that Alcorn was wrongly decided. We decline to revisit Alcorn.

3. Sentencing Order

The third sentencing error claimed by the defendant is an alleged deficiency in the sentencing order. He claims that the order: (1) lacks the specific facts and reasons which support the court’s finding of aggravating and mitigating circumstances; and (2) is perfunctory and conclusory in the manner in which it describes how the aggravators and mitigators have been balanced.

In a capital sentencing order, the trial court must: (1) identify each mitigating and aggravating circumstance found;. (2) include the specific facts and reasons which lead the court to find the existence of each circumstance; (3) articulate that the, mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence; and (4) pet forth the trial court’s personal conclusion that the sentence is appropriate punishment for this offender and this crime. Harrison v. State, 644 N.E.2d 1243, 1262 (Ind.1995). This evaluation need not be lengthy, merely thorough. See Roark v. State, 644 N.E.2d 565, 571 (Ind.1995).

In identifying the aggravating circumstances, the trial court expressly found that the State established the charged aggravating factor listed in the death penalty statute by proving “beyond a reasonable doubt that the defendant ... committed two murders,” Record at 269, because “[t]he Defendant — plead guilty to Murder ... by knowingly killing Denise Powers ...” and that “[t]he Defendant ... plead guilty to Murder ... by knowingly killing Christopher Fillbright ...” Id. The recitation of the facts and reasons for this particular aggravator will often be brief when the defendant has pled guilty, because this “aggravating circumstance [is] by [its] nature factual and, if listed, requires no further substantiation.” Hammons v. State, 493 N.E.2d 1250, 1254 (Ind.1986). The trial court satisfied the Harrison standard for the discussion of aggravating circumstances and supporting facts and reasons.

In its discussion of mitigating circumstances, the sentencing statement specifically addressed each statutory mitigating circumstance, expressly determining which applied in this case. The first was that “[t]he defendant has no significant history of prior criminal conduct.” Record at 270. See Ind.Code § 35-50-2-9(c)(l) (1993). Recognizing the difficulty of including the facts and reasons to explain a lack of a criminal history — as opposed to stating reasons for finding that the defendant has a criminal history — we observe that the trial court, in its sentencing order specifically noted its consideration of the “information contained in the presen-tence report filed by the Adult Probation Department and the independent report submitted by the defendant.” Record at 271. The second mitigating circumstance identified by the trial court was “evidence of other circumstances appropriate for consideration as mitigating circumstances....” Record at 270. See Ind.Code § 35-50-2-9(c)(8) (1993). The specific facts and reasons which led the court to find the existence of this circumstance were that “the defendant grew up in a dysfunctional family and may have been subjected to physical and emotional abuse.” Record at 270. This is sufficient.

As to its articulation of the evaluation and balancing of aggravating and mitigating circumstances, the trial court’s order states that it finds the “aggravating circumstances far outweigh any consideration of mitigating circumstances” and that “having considered all the evidence in the case, the aggravating and mitigating circumstances presented, ... the presentence report filed by the Adult Probation Department and the independent report submitted by the defendant, ... the imposition of the death penalty as to the defendant ... is appropriate and proper_” Record at 271. This balancing description is similar to ones accepted as adequate in other cases. See Benirschke v. State, 577 N.E.2d 576, 581 (Ind.1991), cert. denied, 505 U.S. 1224, 112 S.Ct. 3042, 120 L.Ed.2d 910 (1992); Williams v. State, 669 N.E.2d 1372, 1389 (Ind.1996), cert. denied, — U.S. -, 117 S.Ct. 1828, 137 L.Ed.2d 1034 (1997). The trial court’s statement, although brief, adequately establishes that the court evaluated and balanced the mitigating and aggravating circumstances.

4. Consideration of Factual Issues in Sentencing

The defendant contends that the trial court erred in its factual considerations regarding sentencing because it: (1) failed to find the defendant’s mental condition as a mitigating factor; and (2) improperly found and considered non-statutory aggravating circumstances.

First, the defendant claims that the trial court failed to give mitigating weight to the testimony presented by defense neuropsy-chologist, Dr. Joel Dill, because the sentencing order states that “[t]here was no evidence that the defendant ... was under any type of influence of extreme mental or emotional disturbance at the time the murders ... were committed,” and “[t]here is no evidence that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law, was substantially impaired as a result of mental disease or defect or of intoxication.” Record at 270. Dr. Dill testified that the defendant has a paranoid personality disorder, an essential feature of which “is the general expectation of being exploited, interpreting the actions of people as being deliberating demeaning or threatening and usually are present in a variety of contexts” which results in the defendant reading “hidden or demeaning or threatening meanings into benign remarks or events.” Record at 662-63. He testified that the defendant’s scores on tests indicated that the defendant “would be impulsive, tending to act out of his emotions.” Record at 666. Dr. Dill also testified that the personality disorder was caused by “problems or difficulties that date back to childhood.” Record at 661.

While a trial court’s failure to find mitigating circumstances clearly supported by the record may imply that they were overlooked and not properly considered, the sentencing judge is not obligated to credit or weigh such evidence the same as the defendant does, nor must the judge necessarily explain the lack of a mitigation finding. Games v. State, 535 N.E.2d 530, 545 (Ind.1989), cert. denied, 493 U.S. 874, 110 S.Ct. 205, 107 L.Ed.2d 158; Hammons v. State, 493 N.E.2d 1250, 1254-55 (Ind.1986).

The defendant argues that the evidence demonstrates the existence of 'mitigating circumstances under Indiana Code Section 35-50-2-9(e)(2) and (6). However, to constitute such statutory mitigators, the evidence must show that the defendant suffered from an “extreme mental or emotional'disturbance when the murder was committed” or that his “capacity to appreciate the criminality of [his] conduct or to conform that'conduct to the requirements of law was substantially impaired as a result of mental disease or defect.” Ind.Code §§ 35-50-2-9(c)(2); (c)(6) (1993) (emphasis added). Addressing these factors, the trial court expressly found that “[t]here was no evidence that the defendant ... was under any type of influence of extreme mental or emotional disturbance at the time the murders ... were committed,” and “[t]here is no evidence that the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of the law, was substantially impaired as a result of mental disease or defect or of intoxication.” Record at 270. We decline to find that the trial court overlooked or improperly considered the evidence. The trial court did not err in its determination that the defendant failed to establish the existence of the (c)(2) and (c)(6) mitigators.

Because of his citation to Evans v. State, 598 N.E.2d 516 (Ind.1992), we understand the defendant also to argue that the trial court should have considered the defendant’s mental condition as a mitigating circumstance pursuant to Indiana Code Section 35-50-2-9(c)(8) (“Any other circumstances appropriate for consideration.”). We find, however, that.the trial court did expressly find that the defendant’s circumstances qualified for consideration as an “any other” mitigating circumstance-permitted by section (c)(8). The court found, as a mitigating circumstance, that “the defendant grew up in • a dysfunctional family and may have been subjected to physical and emotional abuse.” Record at 270. Wé conclude that the trial court neither overlooked nor failéd to consider the defendant’s mental condition as a (c)(8) mitigating circumstance.³

The defendant next asserts that, “[i]n his sentencing order,” the trial judge improperly “considered the ‘nature and circumstances of the offense,’ which is not a statutory aggravator.” Brief of Defendants Appellant at 57. We first observe that the circumstances of the crime often provides an appropriate context for consideration of the alleged aggravating and mitigating circumstances. Inclusion of the nature and circumstances of the offense in a trial court’s sentencing order does not necessarily compel a conclusion that such matters were improperly considered and weighed as aggravating circumstances.

In the present case, contrary to the defendant’s assertion, there is no such reference in the court’s written sentencing order. The,reference to the nature and circumstances of the offense occurred during the trial court’s oral remarks at the time of sentencing. ■ There are two reasons why these comments do not amount to the improper consideration of a non-statutory aggravating circumstance. First, as discussed above, our capital sentencing procedure requires that the trial court identify and articulate its reasons in a separate written sentencing order. In the absence of clear contrary indications in the record, we will assume the sentencing order fully discloses the factors considered by the sentencing judge. Cf. Bellmore v. State, 602 N.E.2d 111, 128-29 (Ind.1992) (reversing because trial court’s oral explanation upon announcing his decision to impose the death penalty clearly named a non-statutory factor as the determinative factor, notwithstanding omission of said factor in written sentencing statement). Second, notwithstanding the trial court’s perfunctory statement that it must consider the nature and circumstances of the crime, the trial judge’s oral comments, read in context, consider the nature and circumstance of mitigating, not aggravating, factors. At the sentencing hearing, the defendant asked the trial court to find a mitigating circumstance because he “acted under strong provocation.” Record at 142. The defendant’s version of the murders included a contention that Fill-bright approached him, made derogatory racial remarks, and physically threatened him. The defendant claims he shot Fillbright because Fillbright made a movement which the defendant interpreted as “maybe going for a gun.” Record at 115. When Powers then also moved inside the car, the defendant fired at her. The trial court, in its sentencing remarks, expressed doubt as to this explanation:

Another [pre-sentencing] statement revealed that the Defendant believed Mr. Fillbright was about to pull a gun. I do not believe this, as Mr. Fillbright was shot in the back of the head, execution style, at close range. The Defendant also stated he believed Ms. Powers was attempting to pull something from her purse. All the physical evidence shows that Ms. Powers was shot in the back of the head, in the side of her face as she was attempting to get out of her ear. The Defendant’s explanation for shooting Ms. Powers is just not believable.

Record at 929-30. The trial court further mentioned the fact that the defendant drove a ear over Fillbright, which is also related to the defendant’s mitigation claim that he felt threatened. We agree with the State’s argument that consideration of the defendant’s driving conduct was relevant to show that Fillbright “could not possibly have been a threat to [the] defendant” after he had just been shot in the head at close range. Brief of Appellee at 24.

We conclude that the trial court properly considered both aggravating and mitigating circumstances and imposed the death penalty in accordance with Indiana law.

5. Review of Sentence

The defendant’s final contention is that this Court should modify and revise his death sentence to a term of years. He urges that such a revised sentence is appropriate because of various mitigating factors: “the defendant’s total lack of criminal history, his violent and bizarre childhood, his recognized mental illness which contributed to the commission of the crime, his limited intelligence, and his adjustment to institutionalization.” Brief of Defendant-Appellant at 62.

This Court is empowered to review and revise criminal sentences. Ind. Const. art. 7, § 4. Sentences imposing the death penalty are subject to our “automatic review” under the Court’s rules. Ind.Code § 35-50-2-9(j) (Supp.1996). Our sentence review rule prescribes that a reviewing court “will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.” Ind.Appellate Rule 17(B). “Manifestly” is the adverb form of “manifest” which dictionaries define to mean “[c]learly apparent to the sight or understanding; obvious,” American Heritage Dictionary, 763 (2d College Ed.1985), and “readily perceived by the eye or the understanding; evident; obvious; apparent; plain,” Random House College DICTIONARY 813 (Revised Ed.1984). Thus, the issue is not whether in our judgment the sentence is unreasonable, but whether it is clearly, plainly, and obviously so. In reviewing death sentences, however, this Court has noted that these harsh requirements “stand more as guideposts for our appellate review than as immovable pillars supporting a sentence decision.” Spranger v. State, 498 N.E.2d 931, 947 n. 2 (1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 536 (1987). Because the defendant has requested our independent review of his sentence, we now examine whether, in light of the nature of the offense and the character, of the offender, the death penalty is manifestly unreasonable.

The nature of the offense is clear. The defendant pled guilty to two counts of Murder: the knowing killings of Denise Powers and Christopher Fillbright with a handgun. The defendant presents conflicting versions of the incident. At the guilty plea hearing, the defendant testified that as he was returning from the mailbox, Fillbright made “racial slurs and insinuation,” Record at 512, whereupon the defendant took his mail to his apartment, came back out into the parking lot, and shot Fillbright and Powers, using the weapon he usually carried with him. Record at 513. The defendant admitted that, when he shot Fillbright and Powers, he had “a high probability of knowing” that the shots could kill the victims. Record at 522. In his tape-recorded confession given to police on the morning following the murders, however, the defendant denied hearing any words from Fillbright or Powers. The defendant told police that, as he returned to his apartment from the common mail box area of his apartment complex, he observed Powers and Fillbright in the yard outside Powers’s apartment. Although Fillbright said nothing, the defendant perceived Fill-bright to exhibit a menacing look. About twenty minutes later, the defendant left his apartment and walked to his car. There the defendant observed Fillbright with “this look like he was about to draw on me.” Record at 529.⁴ The defendant told police that when Fillbright, about to enter another car parked about six feet away, appeared to reach under his shirt, “something just clicked in me” and he shot Fillbright. Record at 535. He said that he then shot Powers inside the car when he saw her reach toward her purse.

Denise Powers had been waiting for Fill-bright. As Fillbright approached the car and reached for the door handle, the defendant shot him in the back of his head at close range, killing him almost instantly, and then walked around to the driver’s side door and shot Powers. An eyewitness testified that Powers was heard crying and screaming, “Help, help me please, help.” Record at 582. The forensic pathologist who performed the autopsy testified that he believed Powers had turned her head and was looking at the defendant as he shot her in the face. While leaving the scene of the shootings, the defendant drove his car over Fillbright.

It is regarding the character of the offender that the defendant directs most of his argument seeking our revision of the sentence. Prior to these murders, the defendant had no criminal record. Witnesses described him as intelligent and - regularly employed. His family has several members with college educations and advanced degrees. As discussed in Part 4, supra, a neuropsyehologist, Dr. Dill, opined that the defendant’s paranoid personality disorder results in the defendant perceiving threatening meanings from benign remarks or events.

The defendant’s mother testified in considerable detail regarding the abusive relationships in which she was involved following her divorce when the defendant was two years of age. He experienced frequent physical violence and emotional abuse of both his mother and himself. The defendant’s mother testified that as a child, he was extremely frightened, often fearing “for his life.” Record at 713. He attended private schools because he was frightened of people and needed to avoid the larger crowds at public schools. Several other witnesses testified that the defendant, both during childhood and as an adult, had a history of unrealistically perceived threats and unfounded fears for his safety. The evidence regarding the defendant’s childhood and adult life appears consistent with Dr. Dill’s opinion that the defendant suffers from paranoid personality disorder which may have been a factor in the defendant’s conduct in committing the murders. The State did not present any contrary psychological testimony or evidence about the defendant’s life experiences.

However, considering both the nature of the murders and the defendant’s character as revealed by the record, we are not persuaded to revise the sentence and we conclude that the trial court properly imposed the death penalty in accordance with Indiana law.

Conclusion

The judgment of the trial court and the sentence of death is affirmed. Further proceedings shall be in accordance with Indiana Criminal Rule 24(G).

SHEPARD, C.J., and SELBY and BOEHM, JJ. concur. SULLIVAN, J., dissents with separate opinion.

1 . The defendant also raises three issues which pertain to the guilt phase of the proceedings: (1) there was an insufficient factual basis for the trial court to accept his plea of guilty; (2) he gave an involuntary confession; and (3) his car was unlawfully searched. We have recently reiterated that, when a defendant pleads guilty, he may challenge only sentencing errors on direct appeal, not alleged errors involving his guilty plea or conviction. Tumulty v. State, 666 N.E.2d 394 (Ind.1996). The proper forum for the determination of claims such as the lack of factual basis and other attacks upon the conviction itself is the post-conviction proceeding. Id. at 396. See also Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235, 243 (1973) (the entry of a guilty plea waives any constitutional claims of error in the admission or exclusion of evidence prior to its entry). See, e.g., Butler v. State, 658 N.E.2d 72 (Ind.1995). The defendant, in his reply brief, acknowledges this longstanding rule, but claims that the purposes of that rule do not apply to a death penalty case and that judicial economy would best be served by this Court deciding these claims on direct appeal. We disagree.

2 . The State does not dispute that certain impact evidence was improperly admitted. However, the State contends that "any error in its admission does not require reversal.” Brief of Appel-' lee at 13.

3 . Additionally, we note that, upon pronouncing sentence, the trial court stated that it had been faced with the decision to impose the death penalty once before. In that situation, the trial court noted that the defendant was mentally ill and that he "rejected the death penally recommenda-lion from the Jury on that case because I personally do not believe that we should execute mentally ill individuals. That case and the [present case] do not have any similarities....” Record at 931. '

4 . A transcription of the audiotaped confession was admitted for limited purposes during the hearing at which the plea was taken, Record at 524-39, and then later, during the sentencing hearing, it was readmitted without limitation and played in open court. Record at 615.