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Tuesday, April 12, 2016

Ind. Decisions - Supreme Court decides two today

In William Clyde Gibson III v. State of Indiana, a 13-page, 5-0 opinion, Chief Justice Rush writes:

William Clyde Gibson III pleaded guilty to murdering Stephanie Kirk, and the trial court sentenced him to death. Gibson directly appeals his sentence to this Court, raising four issues: (1) whether there was insufficient evidence to prove two aggravators—that he murdered Kirk while committing two forms of criminal deviate conduct—beyond a reasonable doubt; (2) whether allowing the State to amend the charging information was fundamental error; (3) whether the court manifestly abused its discretion in weighing mitigators and aggravators; and (4) whether his death sentence is inappropriate in light of his character and the nature of the offense. We affirm the trial court in all respects.
In Scott Hitch v. State of Indiana, a 19-page, 5-0 opinion, Justice Rucker writes:
Scott Hitch appeals the trial court’s determination declaring he committed a crime of domestic violence. Concluding there was no violation of Hitch’s Sixth Amendment right to trial by jury, and further concluding the evidence was sufficient to sustain the determination, we affirm the judgment of the trial court. * * *

In Blakely v. Washington, the United States Supreme Court held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” * * *

According to Hitch the firearm prohibition constitutes punishment within the meaning of the Sixth Amendment and thus the underlying facts supporting the prohibition—a determination of domestic violence—must be found by a jury and proven beyond a reasonable doubt. Otherwise, Hitch contends, the prohibition is in violation of his Sixth Amendment right to trial by jury as explicated in Apprendi, Blakely and Southern Union. The State counters the firearm prohibition is not a punishment at all, but instead “the intent and effect of a domestic violence determination in Indiana is to facilitate compliance with the pre-existing federal law that prohibits domestic violence offenders from possessing firearms.” * * *

It is difficult to determine legislative intent in this case because as with most Indiana statutes there is no available legislative history and the statute does not contain a purpose statement. However we have noted that “[i]n the absence of a stated purpose, one way to determine legislative intent is to examine where the statute is located within the Code.” Jensen v. State, 905 N.E.2d 384, 390 (Ind. 2009) (citation omitted). And as the Court of Appeals has pointed out, “Section 35-38-1-7.7, which directs the trial court to determine whether a defendant committed a crime of domestic violence, is located in the criminal code.” Goldsberry v. State, 821 N.E.2d 447, 465 (Ind. Ct. App. 2005). According to the court this placement along with the legislature’s explicit declaration that the statute is “an act to amend the Indiana Code concerning criminal law and procedure” demonstrates “the legislature intended the sanction to be a criminal punishment.” Id.

Although we agree location of the statute within the criminal code represents a strong indication the legislature intended a punitive intent, this fact alone is not dispositive. As discussed in slightly more detail later in this opinion the statute also advances a legitimate regulatory purpose, namely public safety by ensuring firearms are kept out of the hands of domestic abusers. * * *

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect, three factors—affirmative disability or restraint, traditional aims of punishment, and application to criminal behavior—point in favor of treating the effect of the firearm prohibition statute as punitive. The remaining factors, particularly factor seven—excessiveness—point in the other direction. As we indicated earlier although “no one factor is determinative,” Wallace, 905 N.E.2d at 379, we nonetheless give “greatest weight” to factor seven, Pollard, 908 N.E.2d at 1153, and “our task is not simply to count the factors on each side, but to weigh them.” Wallace, 905 N.E.2d at 379 (citation omitted). After weighing these factors we conclude the firearm prohibition statute is non-punitive. But even if the balancing of these factors indicated that statute was slightly punitive, the statute is not so punitive in effect that we can say with certainty the statute negates our assumption the legislature intended to create a civil, non-punitive regulatory regime. * * *

The statute makes clear domestic violence includes a person who “was cohabitating with or had cohabitated with the defendant as a spouse . . . .” I.C. § 35-31.5-2-78(2)(C) (emphasis added). Therefore, regardless of whether the second cohabitation was romantic the parties’ first romantic cohabitation satisfies the statutory mandate. Thus, the evidence was sufficient to sustain the trial court’s domestic violence determination and thus its judgment was not clearly erroneous.

Conclusion. We affirm the judgment of the trial court.

Rush, C.J., and David, J., concur.
Massa, J., concurs in result with separate opinion in which Dickson, J., joins. [which begins, at p. 16]

Massa, J., concurring in result with separate opinion.

I agree with the holding of the Court today, that the loss of firearm privileges which accompanies a “crime of domestic violence” determination by a trial judge at sentencing does not violate Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and its progeny. I do not, however, concur in the Court’s rationale, because I believe it begins a slow march in the wrong direction.

[More] See this April 14th NWI Times story by Dan Carden on the Hitch opinion, headed "Indiana high court OKs restriction on right to bear arms ."

Posted by Marcia Oddi on April 12, 2016 02:46 PM
Posted to Ind. Sup.Ct. Decisions