ATTORNEY FOR APPELLANT

Ann M. Skinner

Indianapolis, Indiana  

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Rosemary L. Borek

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

WILLIAM HACKETT,         		)

   						)

	Appellant (Defendant Below), 	)	 

						)	

	      v.					)	Supreme Court

 						)	Cause No. 49S00-9803-CR-186

STATE OF INDIANA,	    		)	

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE MARION SUPERIOR COURT

	The Honorable Tanya Walton Pratt, Judge

	Cause No. 49G01-9608-CF-112962

	ON DIRECT APPEAL

September October 430, 1999

BOEHM, Justice.

	William Hackett was convicted of the murder of Carol Wilson and burglary as a Class

A felony.  He was sentenced to concurrent terms of sixty and forty-five years, respectively.  He raises two issues for our review in this direct appeal: (1) whether he is entitled to a new

trial because an alternate juror observed him in his jail clothes and (2) whether the trial court

erred in its finding of aggravating and mitigating circumstances.  We affirm the trial court.

Factual and Procedural Background

 	The following facts were reported in Hackett’s statement to police.  Hackett began dating Danielle Mason in March or April of 1996.  At the time Mason shared an apartment

with her mother, Carol Wilson. Sometime near the end of June Hackett took a key to the

apartment from Mason’s keyring without her knowledge or permission.  After consuming a

considerable amount of alcohol on June 29, 1996, Hackett used the key to enter the

apartment at around 4:30 a.m.  He went upstairs and found Wilson sleeping naked in her

bedroom.  Hackett got into bed with Wilson and the two had sex.  “[N]o words” were

exchanged but he had “scratches” on his back.  Hackett then “passed out” and awoke several

hours later in Mason’s room.  He noticed blood on his arm, hands and knee and went to the

bathroom to wash it off.  He saw Wilson’s bloodied body lying on the floor in her bedroom,

noticed “a whole lot of blood” on her bed and the wall, and saw a knife with blood on it. 

Hackett checked Wilson’s purse for money but found none.  He then took the bloody knife

and left the apartment, locking the door behind him.  He discarded the knife and key in a

nearby woods.

	Wilson died as the result of multiple stab wounds.  Hackett’s bloody palmprints were

discovered on the wall of Wilson’s bedroom.      

I.  Jail Clothes

	Hackett contends that his conviction must be reversed because an alternate juror

observed him in his jail clothes.  On the morning of the second day of trial a deputy sheriff

walked Hackett and two other inmates past the jury room en route to a holding cell.  The

three men were clad in orange jumpsuits.  The door to the jury room was open, and Hackett

later told the trial court that he had sawhad seenseen “one [juror], eye to eye.”  After a brief colloquy it

was determined that Hackett had seen Ms. Boaz, the alternate.  At Hackett’s request the trial

court questioned Boaz in open court with Hackett, defense counsel and the State present. 

Boaz told the trial court that she had seen an officer walk past with three men in orange

jumpsuits and that she believed one of them to be Hackett.  The trial court told her that it was

“not going to say whether or not [Hackett] was one of those persons,” but asked, if it were

Hackett, would that affect her “ability to give him a fair and impartial trial.”  She responded

“[n]o.”  

	Boaz also told the trial court that she believed another juror had seen Hackett in an

orange jumpsuit, but the two had not spoken about the incident.  The alternate described the

other juror as having “silvery hair.”  Defense counsel then asked that Mr. Poland, apparently

the only juror fitting that description, be questioned.  The trial court admonished Boaz “not

to mention anything that happened in the courtroom with regard to this inquiry,” and she was

then returned to the jury room.  

	Poland was then brought out and asked if he had seen the defendant since court ended

the previous evening.  He responded that he had not, and defense counsel was offered but declined the opportunity to question him further.  The trial court admonished him not to

mention the questioning to the other jurors.  Defense counsel did not ask that any other jurors

be questioned or seek any additional admonishment.

	Hackett asserts that “[t]he presumption of innocence became a nullity when two jurors

observed [him] in jail clothes during trial.”  He points to Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), in which the U.S. Supreme Court held that

compelling a defendant to go to trial in jail garb violates the due process and equal protection

provisions of the Fourteenth Amendment.  Although the defendant in Estelle requested his civilian clothes when he learned he was going to trial, the request was denied and he was

tried “in clothes that were distinctly marked as prison issue.”  Id. at 502.  The Court reasoned that this undermined the presumption of innocence.  “The defendant’s clothing is so likely

to be a continuing influence throughout the trial that, not unlike placing a jury in the custody

of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is

presented of impermissible factors coming into play.”  Id. at 505 (citing Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965)).  As this Court observed in

Gregory v. State, 274 Ind. 450, 454, 412 N.E.2d 744, 747 (1980), a “crucial component in Estelle was that the jury would be continuously influenced throughout the trial by the defendant’s obvious appearance in jail attire.”  

	In Estelle the entire jury viewed the defendant in jail clothes throughout the entire trial.  Here, an alternate juror who did not participate in deliberations viewed the defendant

in jail attire for a matter of seconds.  Greater exposure has been held no basis for reversal.  See Misenheimer v. State, 268 Ind. 274, 282, 374 N.E.2d 523, 529 (1978) (entire jury waiting in hallway inadvertently saw the defendant taken through a barred door from a lock-

up area); see also Bailey v. State, 519 N.E.2d 1238 (Ind. 1988) (three jurors and an alternate viewed the defendant in the custody of the sheriff).

	Hackett also suggests that the trial court “erred by failing to determine the extent to

which the exposure of Hackett in jail clothes was viewed or learned of by the jurors.”  After

Ms. Boaz stated that she thought another juror with “silvery hair” saw Hackett in an orange

jumpsuit, defense counsel concluded that the juror was Poland and asked that he be brought

out for questioning.  This was done and resulted in his denying having seen Hackett after

court concluded the previous evening.  Defense counsel did not suggest that any other jurors

be questioned.  Under these circumstances we agree with the State that Hackett has waived

any argument that the trial court failed to take the further action of questioning other jurors

or offering additional admonishments.

II. Sentencing

	Hackett contends that the trial court erred in its finding of aggravating and mitigating

circumstances.1  The trial court’s sentencing order lists the following aggravating circumstances:  (1) a history of criminal delinquent activity; (2) need for corrective treatment

that can best be provided by commitment to a penal facility; (3) Hackett had recently been

sentenced for another offense and was on probation for that offense at the time of the instant

offenses; (4) imposition of a reduced sentence would depreciate the seriousness of the crime;

(5) “the evidence against the defendant was overwhelming;” and (6) “this was a heinous

crime.”  It found Hackett’s youthful age, nineteen, as the sole mitigating circumstance.

	A.  Improper Aggravator(s)

	Of these aggravators Hackett challenges only the fourth one, arguing it was improper

to aggravate his sentence on the basis that a reduced sentence would depreciate the

seriousness of the offense because the trial court never considered giving him a sentence

below the presumptive.  As this Court has noted on many occasions, “this aggravator cannot

be used to justify an enhanced sentence.  This aggravating factor may be used only when

considering the imposition of a sentence of shorter duration than the presumptive sentence.” 

Ector v. State, 639 N.E.2d 1014, 1016 (Ind. 1994); accord Garrett v. State, 714 N.E.2d 618, 622 (Ind. 1999); Jones v. State, 675 N.E.2d 1084, 1088 (Ind. 1996).  Although this Court has upheld a “sentence enhancement based upon a finding that a sentence less than an enhanced term sought by the prosecution would depreciate the seriousness of the crime,” Ector, 639 N.E.2d at 1016 (emphasis in original), the trial court made no such finding here.  Accordingly it erred in considering this factor to be aggravating.

	Hackett also suggests, albeit obliquely, that the trial court improperly considered his

denial of guilt to be aggravating.2  Although there is no mention of it in the sentencing order, Hackett quotes the trial court’s sentencing statement in which it observed that “the evidence

against you was overwhelming at the trial.  And you -- you’re either a -- a -- a very evil

person or a very sick person because you are still in total denial.”  Hackett contends that,

because he “was well within his rights to continue to assert his belief that he was not guilty,”

the trial court could not aggravate his sentence on that basis.  We find no merit to this

argument.  

	The trial court’s sentencing statement merely mentioned that Hackett was “still in total

denial” despite “overwhelming” evidence of his guilt.  This did not infringe upon his

privilege against self-incrimination when he admitted in his statement to police that he had

had sex with Wilson, woke up in another room with blood on him, observed Wilson’s bloody

and dead body, denied any memory of the stabbing but disposed of the knife after leaving the

apartment, and pursued an intoxication defense at trial.  Hackett’s situation is unlike

Angleton v. State, 686 N.E.2d 803, 816 (Ind. 1997), where we held that it was improper to consider that the defendant “knew what happened, and it was just a question of whether or not the [police] could eventually put it together, as to what happened” as an aggravating

circumstance.  The finding of error in Angleton was predicated on the constitutional privilege against self-incrimination that “protects [defendants] from having to confess to the police.” 

Id.  Although Hackett essentially confessed to the police, he then prepared a brief statement to the trial court before sentencing in which he stated “[i]n my heart, I feel that I did not

commit the offense.  I am hopeful that the person who killed Caroline Wilson will be found

and arrested.  I cooperated with the police, because I wanted them to locate the person who

committed the crime. . . .”  The trial court did not err in saying that Hackett was “still in total

denial” nor did this infringe upon his privilege against self-incrimination.    

	B. Failure to Find a Mitigator

	Hackett argues that the trial court should have found his alcoholism and intoxication

on the night of the crime as a mitigating circumstance.   He asserts that the State presented

no evidence to contradict that he was intoxicated at the time of the killing or that he was an

alcoholic.  He also points out that the trial court gave two instructions on intoxication, that

he presented a witness to support it as a defense at trial, and that he admitted to the

“moderate” use of alcohol in the presentence report.3

	The finding of mitigating circumstances is within the discretion of the trial court.  Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997).  An allegation that the trial court failed to identify or find a mitigating circumstance requires the defendant to establish that the

mitigating evidence is both significant and clearly supported by the record.  Carter v. State, 711 N.E.2d 835, 838 (Ind. 1999).  The trial court is not obligated to accept the defendant’s contentions as to what constitutes a mitigating circumstance.  Legue, 688 N.E.2d at 411.

	This Court has previously rejected a claim that a trial court failed to find as a

mitigating circumstance that the defendant “was an alcoholic and was drunk at the time the

offense was committed . . . .”  See Wilson v. State, 533 N.E.2d 114, 117 (Ind. 1989) (per curiam).  “The fact that appellant was drunk at the time the offense was committed went only

to his ability to form intent which question was fully presented to the jury and determined

by [it].”  Id.  More recently, in Legue , 688 N.E.2d at 411, this Court observed that 

	we are reluctant to hold that mitigating consideration is necessarily required for 

	sentencing when, at the time of an offense, the defendant was intoxicated. . . .  

	Finding such circumstance to be mitigating may involve the consideration and 

	evaluation of various factors, among them the degree of intoxication and the

defendant’s culpability in the knowing and voluntary consumption of alcohol.  These

matters are best left to the sound discretion of the trial court.  

The trial court heard all the evidence relating to intoxication at trial and additional evidence

relating to Hackett’s alleged alcoholism at sentencing. Although it mentioned the possibility

that Hackett was “sick,” the trial court did not make a specific finding of mitigation based

on alcoholism or intoxication at the time of the offense.  This was not an abuse of discretion.

	C. Sentence Enhancement

	In sum, the trial court found several aggravating circumstances, only one of which was improper, and did not abuse its discretion by failing to find mitigating circumstances.  A

single aggravating circumstance may be sufficient to enhance a sentence.  See Angleton v. State, 714 N.E.2d 156, 160 (Ind. 1999).  When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld. 

Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998).  In light of the other significant aggravating circumstances, we affirm the sentence enhancement here.

Conclusion

	The judgment of the trial court is affirmed.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.