Holsinger v. State

DICKSON, Justice,

concurring in part and dissenting in part.

I concur in Part I, concur in result with Part II, and dissent from Part III of the majority opinion.

As to Part I, I write separately to emphasize that a defendant's failure to request an admonishment, standing alone, does not necessarily result in waiver. Although Dresser v. State, 454 NE.2d 406 (Ind.1983) advises that admonishment is the "correct procedure to employ against an improper argument," id. at 407, it continues with the following important qualification: "Where it is obvious, from the nature and degree of misconduct, that no admonishment could suffice, the motion for one may be dispensed with." Id. at 408; see also Leach v. State, 699 N.E.2d 641, 644 n. 4 (Ind.1998) ("We disagree with the State and agree with the defendant that, in cases such as this, an instruction will not cure the error.") Dresser recognizes that merely objecting to improper argument is not enough and advises in general that the correct procedure is to request admonishment followed by a motion for mistrial, but it expressly acknowledges that a request for an admonishment is not necessary in some circumstances. Neither Robinson v. State, 698 N.BE2d 548 (Ind.1998), nor Brown v. State, 572 N.E.2d 496 (Ind.1991), hold to the contrary. Although the language in both is "the failure to request an admonishment or move for a mistrial results in waiver of the issue," Robinson, 698 N.E.2d at 552; Brown, 572 N.E.2d at 498, in both cases, the defendants not only failed to seek an admonishment but also failed to move for mistrial. When an admonishment would be futile, the failure to request one does not preclude appellate review of a denial of an otherwise timely motion for mistrial.

With respect to Part II, I agree with the concurring in result opinion of Justice Boehm that the admission of Lopez's prior consistent statement was harmless error.

As to Part III of the majority opinion, I agree that the trial court's sentence of life imprisonment without parole was improperly based on non-statutory aggravating cireumstances, and that it must be vacated. I am unable, however, to join the majority's evaluation of the trial court's consideration of the evidence related to mitigating cireumstances, and I disagree with the sentence imposed.

Contrary to the majority's conclusion in Part IIIB, I believe that the trial court's explanation was adequate as to mitigating cireumstances. The sentencing statement advises that the trial court gave consideration to the defendant's expressions of condolences, his claim that his role as an accessory was relatively minor, and his contention that he was acting under substantial domination of another. A sentencing judge is not obligated to make an affirmative finding expressly negating each potentially _ mitigating circumstance. Crawley v. State, 677 N.E.2d 520, 528 (Ind. 1997). The determination that a civreum-stance is mitigating is within the trial court's discretion, and the court is not obligated to explain why it finds a cireum-stance not to be mitigating. Taylor v. State, 681 N.E.2d 1105, 1112 (Ind.1997). The trial court is not required to give the same weight to proffered mitigating circumstances as the defendant does. Thacker v. State, 709 N.E.2d 3, 10 (Ind.1999). I cannot fault the trial court's consideration of mitigating cireumstances. Its sentencing statement here is easily equivalent to or much more detailed than many other sentencing statements that we have affirmed.

Having determined that the sentence imposed by the trial court was erroneous, the majority elects to engage in appellate reweighing to determine the sentences to be imposed and expresses its evaluation by assigning various general weights to each aggravating and mitigating circumstance found. While some members of this Court have often chosen to employ this method of analysis, this should not be understood as the exclusive or prescribed methodology for trial or appellate sentencing evaluations.

Matters that may be appropriate for consideration are extraordinarily diverse and often defy quantification or precise analogous comparison to opposing considerations. - Determining the appropriate criminal sentence is an act of subjective judgment, the quintessence of a judge's function. The analysis cannot be circumscribed to any single mathematical formula or methodology. The requirement of general sentencing statements to explain the sentencing decision assures fairness and propriety, and permits judicial review. But reasonable latitude is permitted in the way trial and appellate judges undertake to evaluate and determine the sentences to be imposed.

With respect to the majority's reweighing of the aggravating and mitigating circumstances and consideration of the jury's recommendation, I agree with the conclusions that the aggravating cireumstances outweigh the mitigating circumstances but that life without parole is not an appropriate sentence. I disagree, however, with the decision to order that the sentences for murder be served concurrently. Notwithstanding the mitigating circumstances found by the majority, the fact that the defendant was convicted of killing two people weighs heavily in my judgment. For the two murder counts, merely imposing the equivalent of a single fully enhanced sentence is insufficient. I would require that sentences on the murder counts be served consecutively to each other and consecutively to the concurrent twenty-year sentences for the other counts.