Jury undecided so judge orders death

Michael W. Hoskins
January 1, 2008
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An Evansville judge has handed down the first death sentence since Indiana lawmakers changed the jury's role six years ago. The sentence also is likely the first execution order resulting from a penalty-phase hung jury since 1993.

The execution of Daniel Ray Wilkes is set for Jan. 25, 2009, but that will likely be delayed for years by appeals and could have potential to reach the Supreme Court of the United States as an issue of first impression about whether a death sentence can follow a hung jury, as well as whether a judge has the power to base an execution decision on the jury's finding in the guilt phase.

The appellate wheels delving into those legal issues come from Friday's hearing in Evansville, where Vanderburgh Circuit Judge Carl Heldt issued a death sentence for Wilkes. He'd been convicted in December 2007 on three counts of murder for the April 2006 killings of an Evansville mother and her two daughters, ages 13 and 8. While jurors agreed on the guilt phase of the trial, they came back deadlocked 11-1 on the penalty Wilkes should face for the crimes. Judge Heldt took on that task.

A judge has not gone through this since the change, according to Clark County Prosecutor Steve Stewart, who tracks death penalty cases and runs a Web site on those cases at

U.S. Supreme Court rulings in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), held the Sixth Amendment requires a jury to find aggravating factors necessary for imposing the death penalty in capital cases.

Indiana lawmakers made the changes following the Ring ruling. Judges now need to follow a jury's sentencing recommendation, unlike before when judges only needed to consider that recommendation and could enter a different penalty.

Other states require a judge to sentence a defendant to life in prison without parole if a jury can't reach a unanimous death penalty verdict. But in Indiana, that decision is up to a judge.

In Wilkes' case, the issue centered on whether Judge Heldt could rely on the juror's sealed verdicts in the 11-1 deadlock, Stewart said. The judge unsealed those verdicts and announced in court that jurors had unanimously found the existence of aggravators, and that the aggravators outweighed the mitigators, Stewart said. They just couldn't agree on whether the death penalty was appropriate, he said.

Judge Heldt said in court that state law is clear that the court can't consider a jury's indecision, Stewart said.

"The judge also personally found, based on the evidence, that there were aggravators beyond reasonable doubt and the death penalty was appropriate," Stewart said. "Of course, we've got some obvious appealable issues here on the defendant's part, and a first-impression issue at least following Ring v. Arizona."

Stewart said he believes Indiana caselaw is strong enough to uphold the sentence, especially with a three-year-old decision in Holmes v. State, 820 N.E.2d 136 (Ind. 2005), which involved a hung jury from 1993. The court held that because Indianapolis man Eric Holmes was convicted of two intentional murders and robbery, the aggravators of multiple murders and intentional felony murder were proven beyond a reasonable doubt and no violation of Apprendi occurred.

"We're on pretty solid ground here," Stewart said. "But they always go to federal court on habeas grounds. Whether the SCOTUS would grant cert is always the question. But I don't know of any case in the country that would be on that point right now. If it's still unanswered by the time it gets to that level, they could take it."

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