WPCG 2:BcR Z+#|o"m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR2R  . 2New Century SchoolbookTimes RomanTimes Roman BoldNew Century Schoolbook ItalicBQck QuoteSingle spaced indented quote v C   (  Cd  ( ( ( Opin InitInitial Opinion codes pЊ #  ( (    П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)5 EllipsisParagraph Ellipsis <;X` hp x (#%'0*,.8135@8:gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"X^?Sf}}SSS}?S?F}}}}}}}}}}FFoSaSFSu}So}o}oS}}FF}F}}}}SaF}}}}ox2xS?SS*SSSSSSSSSS}FooooooooooSFSFSFSF}}}}}}}}}}o}}}}}}ooooooo}oooo}}}}}}}}SFSFSFSFa}FFFFF}}}}}}SSSaaaaFFF}}}}}}}ooo}F}SaF}}}}}NX?q}So}}}}}EN}K}K-oo}SS}}SoKF*RRdE|>gn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS2{=,cR3c6c:"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%ifQpQ=bp=:f=p\ifQQAp_\\U=o=o=3============f=iiiiiQQQQQK=K=K=K=p\\\\pppp~\ip\\~\\ziiiiQQQQpQQQQbbbbbbppK=K=K=K=pfz=z=z=z=z=pppp\\QQQzQzQzQzQ~A~A~Apppppp~\zUzUzUpz=pQzQ~A~\~\p\pNo3w\=QNNfffMDf=f=3GG\==\\pp%G=ooee3o<>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQXHYYY66^E@@@@(JEEE66;,1N11@@@A9<16%7,7(7,A6C/A1>1P7A/:,A1E12156(7(>4E/A1H>E>9(6144>986@9999999999999999999(((((((666666666666666666661111111444444444444>>>>>>>>>>>>>>>>>>>>A7AA>E>1 Opin Init #  ( (    П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)Final Other  ##  ( ( ` `  #\  PCsP# dd_P  <  i   SUPREME COURT OF THE UNITED STATES  uB< * ` ` ( ( *(  _Pdd #[ P['CdP# I A 1 a (1)(a) i) a) I A 1 a (1)(a) i) a)-#[ P['CdP# ( ( , , ) (9 C No. 92!7549 ) !   J  #o P['Cn&P# ddh Ӌ %k=K uB  ddh < #[ P['CdP#&92!7549"DISSENT  uBn %SCHIRO v. FARLEY%l=K uB  ddh < #[ P['CdP#&92!7549"DISSENT  uBn %SCHIRO v. FARLEY`B؃ C THOMAS SCHIRO, PETITIONER v. ROBERT n ԚFARLEY, SUPERINTENDENT, INDIANA  J #STATE PRISON, et al. o  hhx  on writ of certiorari to the united states court 1 of appeals for the seventh circuit $6 hxf #[ P['CdP# d [January 19, 1994] -,   #o P['Cn&P#  Jv $Footnotes#[ P['CdP# ff X01Í Í01Í Í , , #o P['Cn&P#X` hp x (#%'0*,.8135@8: sylvania, 477 U.S. 79 (1986) (applying preponderanceofevidence standard to sentencing considerations under state mandatory minimum statute satisfies due process). This view stems from the lower standard of proof required to establish sentencing factors in noncapi uB tal cases. United States v. Mocciola, 891 F. 2d 13, 16!17 (CA1 1989) But reliance upon this principle cannot sustain such a practice in a capital case where the sentencing factors"just as the elements at trial"must be proved beyond a reasonable doubt. That is what happened here.  9H1 d d,II؃  2  Having failed to convict Schiro of intentional murder after a full trial, the State plainly could not retry him for that offense after the jury was discharged. An estoppel that would bar a retrial should equally foreclose a death sentence predicated on a postverdict reexamination of the central issue resolved by the jury against the State. Schiro's execution will nonetheless go forward because the trial judge made a postverdict finding equivalent to a determination that Schiro was guilty of intentional murder. The Court attempts to justify this anomalous result by relying on the improbable assumption that the jury may not have resolved the intent issue in Schiro's favor. The Court advances three reasons in support of that assumption: Schiro's confession to the killing, the instruction requiring the jury ton"   find intent to kill, and the uncertainty as to whether the jury believed it could return more than one verdict.  J Ante, at 14.R F uB ԍ FTN    XgEpXFr  ddf < The Court correctly avoids reliance upon the quite different rationale"namely, the distinction between a knowing killing and an intentional killing"that the Indiana Supreme Court adopted. Noting that Count I merely required the jury to find that Schiro had knowingly killed his victim, whereas the aggravating circumstance supporting the death penalty required proof that he had intentionally killed, the court concluded that the verdict on Count I could not be considered to have included any conclusion on the in uB tent issue raised at the sentencing hearing. Schiro v. State, 533 N.E.2d 1201, 1208 (Ind. 1989). Yet because an intentional killing requires greater awareness of the consequences of the act than a knowing killing, such an illusory distinction is plainly unsatisfactory. As the dissenting justices pointed out, the difference between the two states of mind is insignificant and, in this instance, esoteric: To accord the difference, one would have to believe that a person can be presently unaware that he is strangling another, while at the same time having a goal presently in mind to strangle such other  uB? person. Id., at 1209.R None justifies the majority's result.  As to Schiro's confessions, such statements must be evaluated in the context of the entire record. Even though they would have been sufficient to support a guilty verdict on the intentional murder count, it is quite wrong to suggest that they necessitated such a  J verdict. See Schiro v. State, 451 N.E.2d 1047, 1068 (1983) (Prentice, J., concurring and dissenting) (stating that a finding of intentional killing was not compelled). The record as a whole, including the experts' testimony, is fully consistent with the conclusion that the jury rejected the prosecutor's submission on the intent question.  The Court also seeks support from the trial court's Instruction No.8, which informed the jury that to sustain the charge of murder, the State had to prove  JX intent. Ante, at 12. nXnF uB ԍ FTN    XgEpXFr  ddf < Specifically, Instruction No.8 provided that to sustain the charge of murder, the State must prove (1) that the defendantU"## engaged in the conduct which caused the death of Laura Luebbehusen, and (2) that when the defendant did so, he knew the conduct would or intended the conduct to cause the death of Laura Luebbehusen. App. 22!23. The instruction further stated that [i]f you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, and that the defendant was not insane at the time of the murder, then  uB you should find the defendant guilty. Id., at 23.  Most naturally read, however,XH"   that instruction referred only to the knowing or intentional murder charge in Count I. It did not, as the Court's opinion suggests, expressly refer to both felony  J and intentional murder, ante, at 12; on the contrary, it made no mention of felony murder. In Indiana, intent to kill is not an element of felony murder. Accordingly, the definition of murder in Instruction No.4 clearly indicated that a person commits murder either when he  J knowingly or intentionally kills someone or when he [k]ills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery. App. 21; Ind. Code  t! 35!42!2!1 (Supp. 1978). If Instruction No.8 were intended to refer to the felony murder charges in Counts II and III, it plainly misstated the  J law. The instruction did accurately state the elements of the knowing or intentional murder charge in Count I, however. It is worth noting that not one of the seven opinions that various members of the Indiana Supreme Court wrote at different stages of this litigation construed that instruction as applicable to Counts II and  J III. HF uB ԍ FTN    XgEpXFr  ddf < If, as the Court assumes, the jury believed that it was required to find a knowing or intentional killing in order to convict Schiro on  uBF any of the three murder counts, ante, at 12!13, there is no rational explanation for its failure to return a guilty verdict for intentional murder (Count I) if it believed convicting Schiro of killing during the commission of rape (Count II) also required a knowing or intentional killing. I "  Ԍ Finally, the Court surmises that the jury might have  J believed it could only return one verdict. Ante, at 11. In view of the trial court's instruction that the jury foreman must sign and date the verdict(s) to which you all agree, App. 28, this speculation is unfounded. Similarly unwarranted is the majority's reliance upon isolated remarks by the prosecution and defense counsel to substantiate this speculation. Defense counsel understandably urged the jury to return only one verdict because he was seeking a verdict that would exonerate his client or minimize his culpability. Any one of seven of the ten forms submitted to the jury would have served that purpose. In fact, after defense counsel made the amorphous reference to one verdict in his closing argument, he went on to suggest that the jurors consider first the question of insanity, because depending on  J that, you may just stop there or go on. App. to Brief for Respondents 17 (emphasis added).  As to the prosecutor's comment about one verdict,  J id., at 27, if that statement meant that the jury could only return one of the 10 forms, it blatantly misstated  J Indiana law.ZF uB  ԍ FTN    XgEpXFr  ddf < The judge's final instructions to the jury set forth no limitation on the number of verdicts it might properly return, and Indiana  uB juries have regularly found a defendant guilty of both mens rea murder and felony murder with respect to a single killing. See,  uB e.  ! g., Roche v. State, 596 N.E.2d 896 (Ind. 1992); Lewis v. State,  uB 595 N.E.2d 753 (Ind. App. 1992); Hopkins v. State, 582 N.E.2d 345 (Ind. 1991).Z More plausibly, the comment referred to a verdict in the general sense as the jury's one opportunity to return one or more verdict forms. In any event, we should not uphold a death sentence based on such an insubstantial and improper predicate.  Nothing the Indiana Supreme Court said supports the Court's speculation about the jury's reasons for failing to return a guilty verdict on Count I. Moreover, the Court "   refuses to acknowledge that the only way the jury could use the verdict forms submitted to it to express the conclusion that Schiro was guilty on Count II and not guilty on Counts I and III was to do just what it did" that is, to authorize the foreman to sign the verdict form for felony murder and to leave blank those forms  J for intentional murder and criminal deviate conduct. K F uBx ԍ The Court's suggestion that the jury may have reached a guilty  uB/ verdict on Count II . . . without ever deliberating on Count I," ante, at 12, is not only pure speculation, but highly improbable. Presumably jurors would normally begin their deliberations with the first count in the indictment or the first verdict form the court submitted to them.  uB   FTN    XgEpXFr  ddf < It is also noteworthy that the record explains why the jury concluded that Schiro was not guilty of killing while committing or attempting to commit criminal deviate conduct as charged in Count  uB0 III" namely, that Schiro killed his victim prior to the deviate  uB sexual conduct on which the charge was based rather than while he was engaged in that predicate felony. Thus the record fully supports the jury's disposition of the three counts at the guilt phase of the trial as well as its decision at the penalty phase.  Once found not guilty of intentional murder, Schiro could not thereafter have been prosecuted a second time for that offense. Given that Schiro admitted the killing, the only issue that the jury's verdict on Count I could possibly have resolved in his favor is the intent issue. Since there is not even an arguable basis for assuming that the jury's verdict on Count I was grounded on any other issue, the collateral estoppel component of the Double Jeopardy Clause also precluded the State from attempting to prove intentional murder at the penalty phase to support a sentence of death.  As Justice Stewart explained in his opinion for the  J Court in Ashe v. Swenson, 397 U.S. 436, 444 (1970) (footnotes omitted):  BQ C  , , ( N N  The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic ap "  Ԯproach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to `examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.' The inquiry `must be set in a practical frame and viewed with an eye to  JH all the circumstances of the proceedings.' Sealfon v.  J United States, 332 U.S. 575, 579. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.ul BQ Xd   ( , , A fair appraisal of the general verdict of acquittal on Count I compels the conclusion that Schiro's death sentence rests entirely on the trial judge's constitutionally impermissible reexamination of the critical issue resolved in Schiro's favor by the jury's verdict on Count I. The Court's contrary conclusion rests on a technically restrictive approach that amounts to a rejection of the rule of collateral estoppel in capital sentencing proceedings.  I respectfully dissent.