Dunlop v. State

¶1concurring and dissenting.

¶2I concur with the Court’s opinion except as to the sentence of life without parole. The law permits sentence of life without parole only if the State proves that the mitigating circumstances are outweighed by the aggravating circumstances.1See Ind.Code § 35 — 50—2—9(i)(2) (Supp.1994). I do not believe the standard was met in this case.

¶3The sole aggravating circumstance proved by the State in this case was the so-called “felony murder” aggravator— that “[the] defendant committed the murder by intentionally killing the victim while committing or attempting to commit ... Robbery.” See id. § 35-50-2-9(b)(l)(G) (Supp.1994). While this is a serious aggra-vator, we have never accorded it weight in the “highest range,” a designation we have heretofore only given the “multiple murder” aggravating circumstance of Ind.Code § 35 — 50—2—9(b)(8).2 In any event, I would assign the mitigating circumstances here— Defendant’s youth, dysfunctional upbringing, drug and alcohol addiction, extreme remorse and the fact that the jury unanimously found him to be mentally ill — equal if not greater weight. I think it is also worthy of note that the jury was unable to make a unanimous recommendation in favor of a life without parole sentence.

¶4The trial court found “there were many mitigating circumstances” in this case. First, the trial court found that “[Defendant suffered from the effects of an extremely dysfunctional family.” (R. at 1067.) I will discuss the expert testimony on this point below. Second, the trial court took into consideration that the jury unanimously found Defendant to be mentally ill.3 Third, the trial court found that Defendant “was very remorseful” and noted that, rather than fleeing the jurisdiction, he immediately went home where he showed “signs of conscience guilt.” (R. at 1070.)

¶5In addition to the trial court’s findings, I would assign mitigating weight to Defen*599dant’s youth — he was twenty at the time of his crime — and to the expert testimony presented at trial.

¶6At trial, Dr. Robert Smith, who holds doctorate degree in psychology, testified for the defense. Dr. Smith is a clinical psychologist and specializes in the treatment of alcohol and other drug addictions. He practices in five hospitals and maintains a full-time private practice in the Cleveland area. In Dr. Smith’s opinion, Defendant suffered from a mental disease or defect at the time the killing occurred. It was also Dr. Smith’s opinion that Defendant’s capacity to appreciate the criminality of his conduct was impaired as a result of his intoxication and use of cocaine.

¶7Dr. Smith’s opinion was based on a two day examination of Defendant, including a diagnostic interview, a series of psychological tests, a personality test, and an assessment of Defendant’s use of alcohol and drugs.4 According to Dr. Smith’s testimony, Defendant experienced a traumatic childhood, enduring a neglected home life. During his younger years, Defendant witnessed his mother abuse alcohol, marijuana, and cocaine. After his father abandoned him, his mother began a series of relationships with abusive men. At one time, Defendant saw his step-father hold a gun to his mother’s head. Additionally, Defendant had a long history of serious alcohol and drug abuse. His abusive stepfather introduced him to marijuana at the impressionable age of seven and by the age of fourteen, he was abusing alcohol. Defendant was placed in a foster home for several months, and afterwards resided with his grandmother whose husband was also an alcoholic. Defendant dropped out of high school at the tenth grade level.

¶8Dr. Smith testified that Defendant suffered from several psychological disorders, cocaine dependence, cannabis dependence, alcohol abuse, and a personality disorder at the time the murder occurred. In addition, the personality test showed that Defendant had a “mixed personality disorder” meaning that Defendant suffered from two distinct disorders, paranoia and anti-social behavior. This personality test, along with an alcohol screening test, uncovered that Defendant did in fact abuse alcohol. Dr. Smith testified that Defendant could be rehabilitated.

¶9Mr. Rick Gustafson, a psychiatric social worker who earned a masters degree in social work at Indiana University, also testified for the defense. Mr. Gustafson maintains a private practice and has counseled at psychiatric hospitals as well as chemical dependency centers. At trial, Mr. Gustafson’s testimony corroborated with that of Dr. Smith’s regarding Defendant’s dysfunctional childhood. He testified that Defendant suffered from depression with thoughts of dying.

¶10Dr. Rodney Deaton, a court-appointed psychiatrist, diagnosed Defendant with a psychiatric disorder called “polysubstance dependence,” a disorder recognized in the Diagnostic and Statistical Manual (fourth edition). Dr. Deaton testified that a person suffering from polysubstance dependence is dependent on at least three different substances. In Defendant’s case, he suffered from long-term usage of cocaine, marijuana, and alcohol that led to a “significant impairment.” Dr. Deaton stated that Defendant was “clearly suffering” from this psychiatric disorder at the time the killing occurred. Dr. Deaton further testified that cocaine intoxication can produce a delusional state, recognized as a mental disorder and paranoia. Dr. Deaton also stated that alcohol can have an adverse affect on a person’s ability to understand the consequences of his or her actions. Finally, Dr. Deaton testified that Defendant had expressed remorse over the killing of the victim. Another court-appointed *600psychiatrist, Dr. Carrie Dixon,5 found that because Defendant was under the influence of cocaine and alcohol, Defendant was not of sound mind on the night of the killings. However, it was the opinion of Dr. Dixon that Defendant was not suffering from a mental disease or defect on the night of the killings.

¶11After weighing the numerous mitigating factors identified by the trial court and expert testimony — Defendant was twenty years old at the time of the offense, Defendant expressed extreme remorse, Defendant grew up in a severely dysfunctional family full of violence and drug abuse, Defendant suffered from cocaine, marijuana, and alcohol addictions, and Defendant suffered from personality disorders — as well as the jury’s unanimous determination that Defendant was mentally ill and the jury’s inability to reach a unanimous recommendation that Defendant be sentenced to life without parole, I would find that the sole aggravating circumstance does not outweigh the mitigating circumstances.