ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PATRICK E. CHAVIS III JEFFREY A. MODISETT
Indianapolis, Indiana Attorney General of Indiana
SUSAN D. BURKE RANDI E. FROUG
Indianapolis, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
BRYCE D. POPE, )
) Supreme Court Cause Number
v. ) 02S00-9807-CR-411
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
CRIMINAL DIVISION, ROOM 4
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9709-CF-553
ON DIRECT APPEAL
October 25, 2000
A jury convicted nineteen-year-old Bryce Pope of two counts of murder, two counts
of felony murder, and one count of robbery in connection with the shooting
deaths of Richard Dergins and his wife Sara. The trial court sentenced
Pope to two consecutive terms of life in prison without parole for each
murder conviction and to a term of fifty years for the robbery conviction
to be served consecutively to the life terms. The trial court did
not impose sentences on the felony murder convictions. In this direct appeal
Pope raises six issues for our review which we rephrase as follows: (1)
did the trial court err in refusing Popes tendered jury instruction concerning the
effect of a prior conviction on witness credibility; (2) did the trial court
abuse its discretion in refusing to allow into evidence an exhibit of bullets
and related testimony that the bullets may have looked similar to those recovered
at the crime scene; (3) was Pope denied a fair trial because the
trial court did not supply the jury with a verdict form advising that
it could exercise mercy by recommending a term of years even if the
State proved beyond a reasonable doubt the statutory elements for life without parole;
(4) did the trial court err in reading an instruction that alleged aggravating
circumstances conjunctively as well as alternatively; (5) was the jury properly instructed that
the State was required to prove an intentional killing to support one of
the aggravating circumstances for life without parole; and (6) did the trial court
consider non-statutory aggravating circumstances when imposing sentences of life without parole.
We affirm the convictions for murder and robbery but remand for a clarification
of the trial courts sentencing order.
Facts and Procedural History
The facts most favorable to the verdict show that Pope was a neighbor
of Richard and Sara Dergins. He was a friend of the Dergins
teenage son and at times spent the night at the Dergins home.
Pope was aware the couple kept large sums of money in the house.
In the afternoon hours of August 29, 1997, Pope, along with sixteen-year-old
Aaron Thomas, went to the Dergins home purportedly to return a hand tool
that Pope had borrowed earlier. Pope was armed with a .38 caliber
revolver, and Thomas was armed with a .380 caliber semi-automatic pistol. When
Mr. Dergins answered the door, Pope produced the handgun and ordered him back
into the house. When Mr. Dergins pleaded you dont want to do
this, Pope responded shut up and wheres the money at. R. at
755-56. After ordering Mr. Dergins throughout the house at gunpoint, Pope retrieved
a black pouch containing an undetermined amount of cash. Pope then ordered
both Richard and Sara Dergins to lie face down on the floor and
fired his weapon. Arriving on the scene police recovered two .35 caliber
bullets which were designed to be fired from a .38 caliber revolver but
could not have been fired from a .380 caliber semi-automatic pistol. A
subsequent autopsy revealed that both Richard and Sara died as a result of
a gunshot wound to the back of the head. Later bragging to
a friend about the events of the day Pope proclaimed, Im a murderer.
R. at 690.
Pope was charged with two counts of murder, two counts of murder in
the perpetration of a robbery, and one count of robbery resulting in serious
bodily injury. In a separate request for a sentence of life without
parole, the State alleged as an aggravating circumstance that Pope committed a multiple
murder and that he committed an intentional killing while committing robbery. After
a three-day jury trial, Pope was found guilty as charged. The following
day the jury reconvened for the penalty phase of trial. After the presentation
of evidence, the jury returned a verdict recommending life without parole. At
sentencing the trial court found that the State proved beyond a reasonable doubt
that Pope intentionally killed the victims while committing a robbery and that he
committed a multiple murder. The court further concluded that the aggravating circumstances
outweighed the mitigating circumstances and imposed two consecutive life sentences without parole for
the murder convictions. The trial court also sentenced Pope to fifty years
for the robbery. No sentence was imposed on the felony murder convictions.
This direct appeal followed. Additional facts are set forth below where
Pope contends the trial court erred in refusing his tendered jury instruction concerning
the effect of a prior conviction on witness credibility. The record shows that
Popes accomplice, Aaron Thomas, testified at trial after entering into a plea agreement
with the State. Thomas has a lengthy juvenile record including four adjudications for
theft, two for receiving stolen property, and one for criminal conversion. He
was confronted with his criminal past on cross-examination.
See footnote At the close of
the guilt phase of trial, Pope tendered the following instruction:
The fact that a witness has previously been convicted of a felony, or
a crime involving dishonesty or false statement, is also a factor you may
consider in weighing the credibility of that witness. The fact of such
a conviction does not necessarily destroy the witness credibility, but is one of
the circumstances you may take into account in determining the weight to be
given to his testimony.
R. at 69. The trial court declined to give the instruction.
Pope contends it erred in doing so because the instruction represents a correct
statement of the law, there was evidence in the record to support giving
the instruction, and the substance of the instruction was not covered by other
instructions. See Hartman v. State, 669 N.E.2d 959, 960-61 (Ind. 1996).
Popes argument fails for two reasons. First, contrary to Popes assertion, the
record shows that the substance of witness credibility was covered by other instructions
the trial court gave. R. at 1028-30. On this ground alone
the trial court did not err in refusing to give Popes tendered instruction.
Second, an instruction directed to the testimony of one witness erroneously invades
the province of the jury when the instruction intimates an opinion on the
credibility of a witness or the weight to be given to his testimony.
Fox v. State, 497 N.E.2d 221, 225 (Ind. 1986); see also Webb
v. State, 259 Ind. 101, 105-07, 284 N.E.2d 812, 814-15 (Ind. 1972) (finding
error, although not fundamental error, in the trial court giving an instruction declaring
that the credibility of a witness could be attacked by evidence that the
witness had been convicted of a crime where the instruction applied only to
one witness); compare Black v. State, 287 N.E.2d 354, 358 (Ind. Ct. App.
1972) (holding that where several witnesses were impeached by evidence of prior convictions
there was no error in giving an instruction concerning the effect of prior
convictions on the weight to be given to a witness testimony). In this
case Popes tendered instruction appears to be general in nature applying to all
witnesses. However, the record is clear that only one witness was impeached
by evidence of his criminal convictions. Because the instruction applied to one
witness only, it was improper. For this additional reason the trial court
correctly refused to give Popes tendered instruction.
Pope next contends the trial court erred in not allowing him to pursue
evidence that Aaron Thomas may have possessed bullets which could have been consistent
with those used in the murders of the Dergins. Brief of Appellant
at 19. This allegation of error is based on the following facts.
Popes mother testified at trial that approximately ten days before the shootings
Thomas was a passenger in her car. According to her, as Thomas
exited the car she saw bullets rolling around on the front seat and
floor in the area where Thomas had been seated. Apparently she retrieved
the bullets but later threw them away. Through his mother, Pope sought
to introduce as an exhibit bullets that allegedly looked similar to those she
discovered in the car. Over the States relevancy objection the trial court
did not allow the exhibit into evidence and precluded further questioning on the
subject. Popes apparent theory was that the two bullets found at the
crime scene matched those in Thomas possession. Thus, Pope argued before the
trial court and again on appeal that he should have been allowed to
introduce the exhibit at trial to show it was more likely than not
that Thomas fired the fatal shots.
Relevant evidence is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence. Evid. R.
401. We first observe that it would be only marginally relevant in
this case if the bullets in Thomas possession were the same bullets
that police recovered from the crime scene. The fact that a person
has in his possession the same instrumentality as that used in a crime
has only the slightest tendency to support an inference that the person committed
the crime. That is especially so where possession of the instrumentality is
remote in time from the date the crime occurred. See, e.g., Short
v. State, 443 N.E.2d 298, 307 (Ind. 1982); Williams v. State, 714 N.E.2d
671, 673 (Ind. Ct. App. 1999) (both cases declaring that the mere possession
of stolen property is less probative of guilt of theft when that possession
is not recent in relation to the commission of the theft). In
this case we do not view Thomas possession of the questioned bullets as
even marginally relevant. Not only were the bullets admittedly not the same,
but also there is no evidence in the record that any witness compared
the bullets recovered at the crime scene with Popes proposed exhibit. In
addition, there is no evidence in the record that Popes mother had any
familiarity with firearms in general or bullets in particular. Further, Thomas possessed
the bullets over a week before the Derginses were murdered. There is
simply no link between the bullets recovered at the crime scene and the
bullets Pope proposed to introduce into evidence. A decision concerning the relevance
of proferred evidence is left to the sound discretion of the trial court,
and its decision is afforded a great deal of deference on appeal.
Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). We will only
reverse a trial court upon a showing that the trial court manifestly abused
its discretion and the defendant was denied a fair trial
State, 455 N.E.2d 1117, 1119 (Ind. 1983).
There was no abuse of
Pope next contends the trial court erred during the penalty phase of trial
by failing to inform the jury that it could exercise what he characterizes
as a mercy option, that is, recommend a term of years even if
the State proved beyond a reasonable doubt the statutory elements necessary for imposition
of a sentence of life without parole. More specifically, Pope complains that
none of the six verdict forms the trial court submitted to the jury
contained the mercy option.
Under Indiana Code § 35-50-2-9 the jury may recommend . . . life
imprisonment without parole only if it finds: (1) the state has proved
by a reasonable doubt that at least one (1) of the aggravating circumstances
listed in subsection (b) exists; and (2) any mitigating circumstances that exist are
outweighed by the aggravating circumstance or circumstances. Ind. Code § 35-50-2-9(e), (k)
(emphasis added). It is thus apparent that the statute does not mandate
the jury to recommend life without parole, but only gives it that option.
In this case, the record shows that in both the preliminary and final
instructions of the penalty phase of trial the trial court instructed the jury
in part as follows:
If the State does prove beyond a reasonable doubt the existence of at
least one aggravating circumstance and you further find that such aggravating circumstance outweighs
any mitigating circumstances, you may recommend that the penalty of life imprisonment without
parole be imposed or you may recommend that the defendant not be sentenced
to life imprisonment without parole and that the defendant be sentenced instead to
a fixed term of years of imprisonment and be eligible eventually for parole.
R. at 1045-46, 1076. Although not using the precise term, the trial
court in essence instructed the jury that it could exercise the so-called mercy
option by declining to impose life without parole even if the State carried
its statutory burden of proof. The instruction is consistent with Article 1,
Section 19 of the Indiana Constitution, which provides that a jury in a
criminal case shall have the right to determine the law and the facts.
See also Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994) (commenting
that because of Art. 1, § 19, a jury in a criminal case
is not bound to convict even in the face of proof of guilt
beyond a reasonable doubt). Here, Pope does not take issue with the
instructions. Nor does he challenge the verdict forms the trial court gave
the jury. Rather, his complaint is that the jury was never able
to exercise the option to grant him mercy because none of the verdict
forms provided the appropriate language. IV.
Each verdict form began, We, the jury, find followed by an outline of
the States statutory burden of proof regarding aggravating and mitigating circumstances. R.
at 144-46. Where the jury found that the statutory burden was met,
the verdict form provided we, the Jury, therefore recommend that the defendant be
sentenced by the Court to Life Imprisonment Without Parole. R. at 144.
Where the jury found that the statutory burden was not met, the
verdict form provided we, the Jury, therefore recommend that the defendant be sentenced
by the Court to a Term of Years. R. at 145-46.
It is true the trial court did not give the jury a verdict
form specifically advising that it could recommend the defendant be sentenced to a
term of years even if the State carried its burden of proof.
Had the defendant requested such a verdict form, the trial court would have
erred in failing to give it.
See Seay v. State, 698 N.E.2d
732, 734 (Ind. 1998) (finding error in refusing to give a verdict form
permitting the jury to render a verdict that the defendant was not a
habitual offender even if it found that the State proved beyond a reasonable
doubt that the defendant had accumulated two prior unrelated felonies), adopting Duff v.
State, 508 N.E.2d 17, 23 (Ind. 1987) (separate opinion of Dickson, J.).
However, the record shows that Pope did not object at trial to the
verdict forms given by the trial court nor did he submit forms of
See footnote We have held when the jury was permitted to retire
without sufficient forms of verdict, the number of forms submitted cannot be considered
as reversible error where the record does not show that the accused tendered
or requested any other forms.
Schiro v. State, 451 N.E.2d 1047, 1062
(Ind. 1983) (quoting Kirkland v. State, 235 Ind. 450, 134 N.E.2d 223 (1956)).
Thus, Pope has waived this claim of error unless fundamental error occurred.
Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996). Fundamental error
is error that represents a blatant violation of basic principles rendering the trial
unfair to the defendant and thereby depriving the defendant of fundamental due process.
Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). The error
must be so prejudicial to the rights of the defendant as to make
a fair trial impossible. Id. In determining whether a claimed error
denies the defendant a fair trial, we consider whether the resulting harm or
potential for harm is substantial. Townsend v. State, 632 N.E.2d 727, 730
(Ind. 1994). The element of harm is not shown by the fact
that a defendant was ultimately convicted. Id. Rather, it depends upon
whether the defendants right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth to which he would
have been entitled. Id.
We conclude that Pope was not denied his right to a fair trial.
If the jury were inclined to recommend against life without parole, then
it could have simply found either (a) the State failed to prove beyond
a reasonable doubt the existence of one or more aggravating circumstances, or (b)
the State did prove the existence of one or more aggravating circumstances, but
they did not outweigh the mitigating circumstances. And, the jury could have
done so even in the face of proof beyond a reasonable doubt to
the contrary. See Bivins, 642 N.E.2d at 946. Although told in
the instructions that it could exercise mercy on Popes behalf, the jury obviously
declined to do so when it recommended life without parole. No fundamental error
occurred on this issue.
The State alleged the existence of two aggravating circumstances: multiple murder under
Indiana Code § 35-50-2-9(b)(8)
See footnote and felony murder under Indiana Code § 35-50-2-
9(b)(1)(G). At the penalty phase of trial the trial court read the
following as a preliminary as well as a final instruction:
On or about the 29th day of August, 1997, in the County of
Allen in the State of Indiana, said defendant, Bryce D. Pope, did:
(1) intentionally kill another human being, to wit: Richard Dergins, while committing or
attempting to commit Robbery, to wit: by discharging a firearm at and against
the head of Richard Dergins, resulting in the death of Richard Dergins, and/or
the defendant committed another Murder, to wit: killing Sara Dergins, being contrary to
the form of the statute in such a case made and provided: and,
(2) intentionally kill another human being, to wit: Sara Dergins, while committing or
attempting to commit Robbery, to wit: by discharging a firearm at and against
the head of Sara Dergins, resulting in the death of Sara Dergins, and/or
the defendant committed another Murder, to wit: killing Richard Dergins, being contrary to
the form of the statute in such case made and provided.
R. at 125, 135 (emphasis added). According to Pope, because the
aggravating circumstances are worded conjunctively as well as alternatively, it is impossible to
know whether the jury unanimously found any charged aggravating circumstance proven beyond a
reasonable doubt. Pope explains: it therefore becomes apparent that one or
more members of the jury could have found the first aggravator proven, but
not the second, while others could have found the second proven, but not
the first. Brief of Appellant at 33. At trial, Pope did
not object to the instructions. In this appeal, he seeks to
avoid waiver by claiming fundamental error.
Before a jury may recommend life without parole it must unanimously find beyond
a reasonable doubt the existence of at least one (1) of the aggravating
circumstances listed in subsection (b). . . . Ind. Code § 35-50-2-9(k)(1);
Bivins, 642 N.E.2d at 947 (discussing the jurys obligation under the death penalty
statute). Here the use of and/or appears to have given the jury
the option to recommend life without parole where less than all members of
the jury found any single charged aggravator to have been proven beyond a
reasonable doubt. Such an option is contrary to the mandate of the
Nonetheless, even if the trial court erred in giving the instruction, the error
was not fundamental. This is so because the jury indicated by its
guilt phase verdict that it found at least one of the charged aggravators
to have been proven beyond a reasonable doubt: that Pope committed multiple
murder. In the guilt phase of trial, the jury unanimously found Pope
guilty beyond a reasonable doubt of the murders of Richard Dergins and Sara
Dergins. Thus the jury unanimously found beyond a reasonable doubt the existence
of a charged statutory aggravating circumstance, meeting the mandate of Ind. Code §
35-50-2-9(k)(1). We conclude therefore that the claimed error here does not represent
a blatant violation of
basic principles rendering the trial unfair or depriving Pope of fundamental due process.
The (b)(1) aggravating factor requires proof beyond a reasonable doubt that a defendant
committed the murder by intentionally killing the victim[s] while committing or attempting to
commit robbery. Ind. Code § 35-50-2-9(b)(1)(G). Pope asserts that during the
penalty phase of trial, the jury was never required to, nor given an
opportunity to, determine whether an intentional murder occurred. Brief of Appellant at
36. Pope is mistaken. The record shows that in both its
preliminary and final instructions the trial court advised the jury, among other things,
In the second or penalty phase of this trial, the State has filed
an Application for life imprisonment without parole by alleging the existence of at
least one aggravating circumstance as follows. On or about the twenty-ninth day
of August, nineteen ninety-seven in the County of Allen and the State of
Indiana, said defendant, Bryce D. Pope, did one: intentionally kill another human being,
to wit: Richard Dergins while committing or attempting to commit robbery. . .
. The law provides for the penalty of life imprisonment without parole
upon conviction for the crime of murder under the following circumstances. The defendant
committed the murder by intentionally killing the victim while committing or attempting to
commit the crime of robbery and/or the defendant committed another murder. The State
must prove to you beyond a reasonable doubt each and every material element
of the aggravating circumstances alleged and further prove to you that any mitigating
circumstances are outweighed by aggravating circumstances.
R. at 1042-44; 1073-74 (emphasis added).
See footnote The jury was properly instructed.
We find no error on this issue. VI.
For his last allegation Pope contends the trial court erred in imposing sentences
of life imprisonment without parole because it considered non-statutory aggravating circumstances. A sentence
of life without parole is subject to the same statutory standards and requirements
as the death penalty. Ajabu v. State, 693 N.E.2d 921, 936 (Ind.
1998). In this case the States request for life without parole was
based upon two statutory aggravators: an intentional killing during the commission of
a robbery and multiple murder. See Ind. Code § 35-50-2-9(b)(1)(G), (b)(8).
Following deliberations after the penalty phase of trial the jury recommended that life
without parole be imposed. After a subsequent sentencing hearing, the trial court
entered judgment and sentences on the convictions, ordered life without parole be imposed,
and issued the requisite sentencing statement.
In its written sentencing order the trial court found that the State had
proven beyond a reasonable doubt the existence of two statutory aggravating circumstances: (1)
Pope committed the murders by intentionally killing the victims while committing or attempting
to commit robbery, Ind. Code § 35-50-2-9(b)(1)(G); and (2) Pope committed another murder
at any time, Ind. Code § 35-50-2-9(b)(8). The trial courts reference to
these life without parole aggravating factors was correct. However, the trial court
also noted the following aggravating factors: Richard Dergins was over the age
of sixty-five, and the nature and the circumstances of the crime, namely: the
victims welcomed the defendant into their home numerous times and trusted him, the
defendant planned to kill the victims after robbing them even before he approached
the front door, Sara Dergins suffered agony not only from the death of
her husband who was shot first but from the agony of impending fate
at the defendants hand as she lay prone on the floor, and the
profane treatment of the victims prior to their deaths. R. at 158.
The trial court then recited a number of mitigating circumstances including Popes
youth, he had been raised in a strict religious environment, was gainfully employed
from age fifteen until the time of his arrest, had never been adjudicated
a delinquent as a juvenile, and had only a minor criminal historya misdemeanor
conviction for a minor consuming alcohol and possession of marijuana. R. at
157-58. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial
court sentenced Pope to life in prison without parole for both murder convictions.
The trial court also imposed a sentence of fifty years for the
robbery conviction. The trial court did not impose sentence on the two
felony murder convictions. In weighing the aggravating and mitigating
circumstances, the trial court did not separate its findings concerning the life without
parole sentence from those relating to the robbery sentence.
The enumerated aggravating factors set forth in the general felony sentencing statute do
not limit the matters that the trial court may consider in determining sentence.
Ind. Code § 35-38-1-7.1(d). However, we have held when the death
sentence is sought, courts
must . . . limit the aggravating circumstances eligible for consideration to those
specified in the death penalty statute, Indiana Code Section 35-50-2-9(b). Bivins, 642
N.E.2d at 955. The same is true for a sentence of life
without parole. In this case it is not altogether clear whether the
trial court relied on non-capital aggravators when imposing sentences for life without parole.
This matter needs clarification. Accordingly, we must remand for a new
We affirm Popes convictions for two counts of murder and one count of
robbery. We vacate Popes convictions for two counts of felony murder.
This case is remanded for a new sentencing order consistent with this opinion.
SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.
DICKSON, J., concurs in result.
Evidence of juvenile adjudications is generally not admissible. . . .
The court may, however, in a criminal case allow evidence of a
juvenile adjudication of a witness other than the accused if the conviction of
the offense would be admissible to attack the credibility of an adult and
the court is satisfied that admission of evidence is necessary for a fair
determination of the issue of guilt or innocence.
Ind. Evidence Rule 609(d).
Footnote: This is so only because in this instance the trial court
submitted special verdict forms to the jury. We have rejected the requirement
of written findings for juries in capital cases.
Wrinkles v. State, 690
N.E.2d 1156, 1168 (Ind. 1997); Harrison v. State, 644 N.E.2d 1243, 1259 n.28
(Ind. 1995). The same is true in life without parole cases.
See Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998) (finding a sentence
of life without parole is subject to the same statutory standards and requirements
as the death penalty). Thus, a proper verdict form would require the
jury to recommend either a sentence of life without parole or a term
The record shows the following exchange:
Court: Counsel has both received the Courts final instruction and sample verdict
[Defense Counsel]: Yes Your Honor.
[Prosecutor]: Yes Judge.
Court: And for the record, I believe yesterday . . . last
evening in chambers, we discussed the verdict forms and the Courts final instructions
and made some changes to the Courts Final instructions which I have provided
to counsel this morning. Are they [sic] changes reflective of our discussions
in chambers yesterday gentlemen?
[Defense Counsel]: Yes Your Honor and that did away with necessity for
the defendant to tender instructions along those lines.
R. at 1041.
Footnote: Subsection (b)(8) specifically provides [t]he defendant has committed another murder, at
any time, regardless of whether the defendant has been convicted of that murder.
This subsection is considered in cases involving double or multiple murders for
which the defendant is being tried in one proceeding.
Hough v. State,
560 N.E.2d 511, 519 (Ind. 1990).
An identical instruction was given concerning Sara Dergins. R. at