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Justices vacate life sentence

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The Indiana Supreme Court vacated a convicted murderer's sentence of life in prison without parole because the trial court judge didn't have the authority to impose the sentence after the jury failed to reach a unanimous sentencing recommendation.

Kyle Kiplinger appealed his sentence of life in prison without parole following his convictions of murder and felony murder for the rape and death of Bobbi Jo Braunecker. Kiplinger and Darrick O'Brien gave her a ride home following a party and beat her and knocked her unconscious so O'Brien could have sex with her. They killed her and left her body in a river.

The state sought life without parole based on the qualifying aggravating circumstance that Kiplinger intentionally killed Braunecker while committing or attempting to commit rape. The jury found him guilty, but was unable to reach a unanimous decision on a sentence recommendation. The jury never returned a special verdict form finding the state proved the aggravating circumstance beyond a reasonable doubt, only that the state proved that the charged aggravating circumstance outweighed any mitigating circumstances. The judge then sentenced him to life without parole.

In Kyle Kiplinger v. State of Indiana, No. 62S00-0809-CR-486, Kiplinger argued the jury never found the charged aggravating circumstance had been proven by a reasonable doubt. The state claimed that the jury determined that the state had proved the charged aggravating circumstance outweighed the mitigating circumstances on a "special verdict form," and that this sufficiently demonstrated that the jury had found an aggravating circumstance beyond a reasonable doubt.

The jury in Kiplinger's trial wasn't able to reach a unanimous decision on the life sentence and its guilt phase verdicts don't necessary establish that the aggravating circumstance was proven beyond a reasonable doubt, wrote Justice Frank Sullivan.

"The jury found that the State had proved the charged aggravating circumstance out-weighed the mitigating circumstances. We acknowledge that it would be permissible to infer that the jury unanimously found the existence of the charged aggravating circumstance from this finding," he wrote. "We are unable, however, to infer that the jury found beyond a reasonable doubt that the State had proved the aggravating circumstance."

When a jury is unable to reach a unanimous decision as to the existence of an aggravating circumstance and the Sixth Amendment prohibits the trial judge from imposing a sentence of life without possibility of parole under Indiana Code Section 35-50-2-9(f), a new penalty phase trial is required.

The justices remanded for re-sentencing. If the state dismisses its request for the life sentence, then Kiplinger should be re-sentenced to a term of years. If not, then the trial court shall convene a new penalty phase jury.

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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