Johnson County Circuit Court Judge Larry J. McKinney
Venued from Jefferson County
Prosecutor: Merritt K. Alcorn, Wilmer Goering
Defense: Ted R. Todd, Larry D. Combs
Date of Murder: December 12, 1982
Victim(s): Nyla Harlow W/F/49 (Mother-In-Law); Bill Harlow W/M/58 (Husband of Mother-In-Law)
Method of Murder: shooting with .22 handgun

Trial: Information for Murder filed/PC Hearing (12-20-82); Change of Venue Ordered (03-17-83); Voir Dire (11-07-83; 11-09-83, 11-10-83, 11-14-83; 11-15-83, 11-16-83,); Jury Trial (11-17-83; 11-21-83, 11-23-83, 11-28-83; 11-29-83, 11-30-83 12-01-83); Deliberations 3 hours, 55 minutes; Verdict (12-01-83); DP Trial (12-05-83, 12-06-83); Deliberations 8 hours, 5 minutes; Verdict (12-06-83); Court Sentencing (01-04-84).

Conviction: Murder, Murder, Burglary
Sentencing: January 4, 1984 (Death Sentence; no sentence entered for Burglary)
Aggravating Circumstances: b(1) Burglary; Lying in Wait; 2 murders
Mitigating Circumstances: history of alcohol abuse, stepfather abused him in formative years, low intelligence; IQ 80-90, low tolerance for stress, continuous depression, turbulent childhood, antisocial personality disorder, reckless with poor judgment control, remorseful, he could lead a useful and productive life in prison, he was kind to children

Direct Appeal:
Fleenor v. State, 514 N.E.2d 80 (Ind. October 13, 1987)
Conviction Affirmed 5-0 DP Affirmed 5-0
Debruler Opinion; Shepard, Givan, Pivarnik, Dickson concur.
Fleenor v. Indiana, 109 S. Ct. 189 (1988) (Cert. denied).

PCR:
PCR Petition filed 01-30-89. PCR denied by special Judge Mark Lloyd on 02-12-91.
Fleenor v. State, 622 N.E.2d 140 (Ind. 1993)
(Appeal of PCR denial by Special Judge Mark Lloyd)
Affirmed 5-0; DeBruler Opinion; Shepard, Givan, Dickson, Krahulik concur.
Fleenor v. Indiana, 115 S. Ct. 507 (1994) (Cert. denied)

Habeas:
Petition for Writ of Habeas Corpus filed 08-22-94 in U.S. District Court, Southern District of Indiana.
Petition for Habeas Writ denied by Judge David Hamilton on 02-02-98.
Fleenor v. Farley, 47 F.Supp.2d 1021 (S.D. Ind. February 2, 1998)
Fleenor v. Anderson, 171 F.3d 1096 (7th. Cir. 1999)
(Appeal of Habeas denial, Affirmed 2-1; Posner Opinion; Coffey concurs, Rippey dissents)
Fleenor v. Anderson, 120 S.Ct. 215 (October 4, 1999) (Cert. Denied)
Fleenor v. Anderson, 120 S.Ct. 211 (October 10, 1999) (Cert. Denied)

Fleenor v. State, 718 N.E.2d 752 (Ind. October 25, 1999)
(Order setting date for execution of death sentence)

Schornhorst v. Anderson, 77 F.Supp.2d 944 (S.D. Ind. December 7, 1999)
(Petition to stay execution on grounds of incompetence filed by former attorneys, denied by Judge David Hamilton)

Fleenor v. Anderson, 120 S.Ct. 611 (December 8, 1999) (Stay of execution denied) (Cert. Denied)

FLEENOR WAS EXECUTED BY LETHAL INJECTION 12-09-99 1:37 AM EST. HE WAS THE 77th CONVICTED MURDERER EXECUTED IN INDIANA SINCE 1900 AND 7TH SINCE 1977.

ProDeathPenalty.com

D.H. Fleenor, 41, was sentenced to die in the electric chair for the 1982 murders of Bill and Nyla Harlow. Friends of Fleenor's testified that he bought a .22-caliber pistol on Dec. 12, 1982 -- the day of the killings. The friends dropped Fleenor off near the Harlow home. He went in and waited for them to return from church. With the Harlows were Nyla's daughter and Fleenor's wife Sandra; her son from a previous relationship; and Bill Harlow's 2 grandchildren. As their daughter and three grandchildren looked on, Fleenor shot Bill Harlow in the abdomen. When his mother-in-law went to help, Fleenor shot her in the head. He told his wife to drag her mother's body to another room. Then he left, taking Sandra and the children. Eventually, they returned to the Harlow home to find Bill Harlow still alive. Experts said he could have survived his original gunshot wound. Fleenor shot him again, killing him. Fleenor fled with his wife and the children to Greeneville, Tenn., where police captured him at a relative's home.

Fleenor pleaded not guilty by reason of insanity, claiming that he was under the influence of drugs, alcohol and mental stress. At trial in Johnson County, Fleenor was found guilty on Dec. 1, 1983. The jury recommended the death penalty, which then-Johnson Circuit Judge Larry McKinney imposed on Jan 4, 1984. The Harlows' bodies were found 6 days before Christmas, said Bill Harlow's daughter, Tammy Gilbert. "Now I measure December by those dates," Gilbert said. "Before this happened, all I had to worry about was Christmas Eve, Christmas Day and New Year's Eve. And now Christmas kind of is overshadowed by all the other things that happened. ... This is an every-year thing." Gilbert, who lives in Fortville, supports Fleenor's execution. But she knows better than to think that Fleenor's death will help put the horror of the murders behind her. "It won't bring closure," Gilbert said. "It will just be something that I don't have to deal with anymore. I just want it to be over with."

Many activists opposed to the death penalty continue to flood the governor's office with appeals for clemency. Everyone is entitled to an opinion, Gilbert concedes. But she knows she'll never forget what she saw in her father's house 17 years ago. "My dad and his wife laid in that house for four days before anybody found them," Gilbert said. "There was a spot on the floor where my dad had lain, and somebody covered it with a sheet. And the television had blood spattered on it, and there's a bullet hole -- and then over in front of the window is a Christmas tree, with all kinds of presents underneath it. ... "I go through what I've seen. You just re-create it, over and over again in your mind, and then you start thinking, 'God, what did they go through? What was it like?'"

Amnesty International

In Michigan City, Ind., authorities executed D.H. Fleenor, 48, for killing his parents-in-law in 1982. Bill and Nyla Harlow were shot at their home after attending a church service with Fleenor and his wife. Harlow survived, but Fleenor shot him again before fleeing to Tennessee with his wife and the 3 children.

Fleenor shunned attempts to save his life during the last few months and skipped his own clemency hearing 2 weeks ago, reportedly telling one clemency board member that he was guilty and to show him "no mercy." Moments before his death, however, he declared: "I am not guilty." Fleenor had been on death row for 15 years for the 1982 murders of his parents-in-law, Bill and Nyla Harlow of Madison, Ind.

U.S. District Judge David F. Hamilton on Tuesday rejected a bid to prevent the execution. Hamilton said in his ruling he lacked jurisdiction to decide the appeal lawyers from the Midwest Center for Justice filed without Fleenor's consent. The petition asked Hamilton to stay the execution, appoint a psychiatrist to examine Fleenor and conduct a hearing to determine whether he's mentally competent. The lawyers also asked to be granted next-friend status, which would allow them to appeal Fleenor's sentence on his behalf. But Hamilton said the lawyers had not provided sufficient proof of Fleenor's insanity to justify a new look at the issue. Under the law, Fleenor was presumed sane, and there was no professional opinion to the contrary. A substantial volume of communications between Fleenor and the prison staff showed that Fleenor knew he was about to be executed and why, the judge wrote. The Indiana Supreme Court rejected a similar petition Monday.

Sources: Associated Press, Michigan City News-Dispatch & Rick Halperin

Notre Dame Viewpoint & Observer

(December 7, 1999) - Where will you be on Wednesday night, after your last day of classes? I imagine quite a few of you have big plans to hit the local drinking establishments, or perhaps Turtle Creek and College Park and/or maybe you will just sit around playing Nintendo.

But one man, Mr. D.H. Fleenor, will be at the maximum security prison in Michigan City, getting his last shave and a hair cut and preparing to die at the hands of the state of Indiana. Somewhere he has family and friends, even concerned students and citizens, who may have written to him or visited him while on death row. They will be anxiously praying that at the last second, Governor Frank O'Bannon will put a hold in Mr. Fleenor's execution. Especially when it is politically unpopular to be "soft on crime," it is admittedly difficult to stir up enthusiastic and widespread opposition to the death penalty. Even among citizens and public figures who are ardently opposed to abortion, one finds many just as committed to capital punishment. One can justify the defenseless little baby much more easily than the murderer.

D.H. Fleenor killed two people. He is mentally retarded and has abused alcohol. He and his wife sought help for his habits just days before the murders occurred, but treatment was denied. A recent Indiana law bars the death penalty for the mentally retarded, but this will not affect Mr. Fleenor, who was sentenced before the law's passage. These circumstances do not change the fact the D.H. Fleenor committed murder, and that murder is wrong, but they should challenge us to think about how our society uses the death penalty.

We can express opposition from several perspectives. Death is final and irreversible. The death penalty is expensive, and when considering the legal costs involved, it is more expensive than holding someone in prison for life. Do you want your tax dollars supporting this act? If you support the death penalty because you think the perpetrator of a heinous crime should suffer, consider this: several years ago, Maryland executed a man named John Thanos. Shortly before his death, Thanos remarked that death was a better punishment than sitting in a cell watching "Oprah" for the rest of his life. So why not let him watch "Oprah?" And if you define this as suffering but aren't so inclined to it, why not let him "live with his guilt" and give him a chance to think about it? Why not give him a chance to use the prison libraries or chaplains and make something meaningful out of his life, or to turn himself back to God? We start treading on sensitive ground when we consider the loved ones of victims. If someone killed one of my family members, would I want him to suffer? Would I want him dead, so he could never kill again? Absolutely. As an instinct, I don't think that can be helped. But remember the movie "Dead Man Walking" and how one parent changed his mind on capital punishment?

What is remarkable "but not unusual" in Mr. Fleenor's case is that both the daughter and the granddaughter of Mr. and Mrs. Harlow, the murder victims, testified that they opposed the death penalty, and that the dead couple would also not wish its imposition. Indiana's lawyers, nevertheless, did what they are paid to do, and the state will get its revenge on Mr. Fleenor in the wee hours of Thursday morning unless, by some miracle, we can make it stop. So is D.H. Fleenor being put to death in order to alleviate the sufferings of the victims' family, or because they want assurance he can never hurt them again? Clearly not. First the Harlows were dragged through 15 years of trials and appeals. Now this death may add to their anguish.

In these cases the aggressor and the supreme judge is the state. Does something strike you as wrong about this? Another thought: nations and states used to execute with the guillotine, by hanging or by burning at the stake. Once great public spectacles, we now call them barbaric. Just because most execution in the U.S. is now carried out by lethal injection or the electric chair, just because it is a little more sanitary and is kept within the walls of a high security prison, is execution any less wrong? For those of you who call yourselves pro-life, I especially encourage you to think long and hard about any support you may have for capital punishment. One line I've heard before is that people who commit murder are no longer human. But consider D.H. Fleenor. Somewhere he has a mother; she turned him in for his crime and pleaded for his life. He has a body temperature of 98.6 degrees Fahrenheit. He has a wife and children that he once held in his arms. Perhaps he awaited word of his fate with cold and clammy hands. Perhaps he lies awake at night and wonders what it will be like to get strapped down and wait to die and how much it will hurt. Maybe he cries when he thinks about what events in his children's lives he will miss. Maybe he wishes more than anything that he could take back that night in 1984. Or maybe he doesn't, and this is where our faith is most put to the test.

Some will say that we college students are apathetic. We live in a bubble, and unless we are forced to do otherwise, we will continue to exist in our Abercrombie world, frolicking through fields with gorgeous blondes or just sitting around drinking or watching "Party of Five" or maybe doing some studying because we'll fail if we don't. Can we prove them wrong?

Laura Antkowiak is a senior Government major and is co-president of Notre Dame Right to Life.

ABOLISH Archives

Gov. Frank O'Bannon refused to grant clemency to convicted killer D.H. Fleenor on Wednesday, saying it was not his role to "second-guess" years of judicial proceedings. Although Fleenor did not ask for clemency, O'Bannon said he at least considered it because Fleenor also had not clearly stated that he wanted to die.

O'Bannon said suggestions that Fleenor's present mental state rendered him unfit for the death penalty "is refuted by overwhelming evidence that he knows he is about to die; knows why; and appears to have accepted that he is about to face the ultimate punishment for his crimes." "On this issue, I will not substitute my judgment for the courts and the mental health professionals," O'Bannon said in a five-page basis for his decision. O'Bannon's decision meant only the federal courts could stop Fleenor's execution, scheduled to begin Thursday at 12:01 a.m. CST.

Lawyers from the Midwest Center for Justice filed a petition Wednesday with the 7th U.S. Circuit Court of Appeals, asking the court to stop the execution until psychiatrists can establish that Fleenor is mentally competent to face the state's death chamber. Similar appeals to the Indiana Supreme Court and U.S. District Court in Indianapolis this week already had failed, and center lawyers pledged to take their case to the U.S. Supreme Court if necessary in a last-ditch effort to save Fleenor's life.

Fleenor was scheduled to become the seventh person executed in Indiana since the state reauthorized the death penalty in 1977. He was sentenced to die in Johnson County after he was convicted in the murders of Bill and Nyla Harlow of Madison, his parents-in-law. Fleenor has shunned attempts to save his life the last few months and skipped his own clemency hearing two weeks ago, reportedly telling one clemency board member that he was guilty and to show him "no mercy."

***********

His appeals turned down by the governor and federal courts, convicted murderer D.H. Fleenor chatted with his family and a few prison friends before his imminent execution.

Gov. Frank O'Bannon early Wednesday turned down a clemency request. The governor's office released a 5-page statement saying O'Bannon wouldn't "second-guess years of judicial proceedings" by commuting Fleenor's death sentence. Wednesday night, the U.S. Supreme Court and, earlier, the 7th U.S. Circuit Court of Appeals in Chicago rejected final appeals. That meant Fleenor almost certainly was to die by chemical injection at 1:01 a.m. today Indianapolis time.

Until then, the lawyers -- Tom Schornhorst, Alan Freedman and Carol Heise -- were staying in their offices, pursuing every opportunity to delay the execution despite objections from their former client. "Practicality and his best interests dictate that we stay here and try to stop the execution of someone who is so mentally ill and incompetent that he doesn't even know he's going to be executed," said Heise, who works for the Chicago-based Midwest Center for Justice. "We have to make a choice between litigating his issues or being there with a client who doesn't know he's going to be executed, and who thinks we're working for the state," he said.

Fleenor was convicted of the 1982 murders of Nyla Jean and Bill Harlow of Madison. He shot the pair as their daughter and 3 grandchildren looked on, then came back later and executed Bill Harlow, who experts say could have survived his original gunshot wound.

On Wednesday, Fleenor, 48, spent what probably was his last day alive in a way not much different from every day during his 17 years in prison, according to Department of Correction spokeswoman Pam Pattison. Fleenor also socialized with the 41 other inmates who share Death Row with him, Pattison said. And he telephoned his sister in southern Indiana, Pattison said. He received a message of forgiveness from one witness to the killings. Angie Harlow was 13 when her grandfather and stepgrandmother were killed. Now living in Anderson with a family of her own, Harlow called the prison Wednesday evening. "I believe in forgiveness," she said. Fleenor didn't ask to see a chaplain. But he did ask that prison staff who have come to know him over the years be allowed to visit him, Pattison said. Those staff members shared "idle chitchat," she added.

Fleenor's case has been an unusual one, according to the attorneys who continue trying to represent him. Heise points to his erratic behavior -- firing his attorneys, claiming to be represented by another, nonexistent attorney, and even trying to schedule interviews months after he is scheduled to die -- to bolster their argument that he isn't competent to face the executioner. According to court documents, for example, Fleenor in November told prison staff that he wanted to tell the media "the truth about how his attorneys, the judge, and others lied." Yet according to DOC spokesman Barry Nothstine, Fleenor tore up a request last week from The Indianapolis Star for an interview.

In yet another twist in the case, O'Bannon found himself Wednesday denying clemency to a prisoner who never even asked for it. In his statement, the governor reasoned that Fleenor also never explicitly said he wanted the state to kill him. O'Bannon rejected claims that Fleenor's mental state was deteriorating. "The suggestion that Fleenor's present mental state renders him unfit for the death penalty is refuted by overwhelming evidence that he knows he is about to die; knows why; and appears to have accepted that he is about to face the ultimate punishment for his crimes." The governor's office has received nearly 400 letters, most opposing the execution, said O'Bannon's spokesman, Phil Bremen.

A small group of death penalty opponents pleaded for Fleenor's life -- and for others to oppose all executions -- with placards outside the Governor's Residence at 46th and Meridian streets Wednesday night. "I think it's disgusting and wrong that it's happening, and I want people to know that," said Claire Morrison, a junior at North Central High School. About 50 more anti-death penalty protesters gathered outside the century-old prison in northern Indiana, joined by a few people supporting executions. J.B. Shenk and 2 friends drove across the state from Goshen College for a vigil against the execution. Christ's example shows "we don't take life, but we save life," Shenk said.

Tim Blakley of Indianapolis was demonstrating for the death penalty at his third or fourth execution. He interpreted scriptures to say "the state is God's agent to carry out penalties on the wrongdoer." Blakley said Fleenor's mental status was irrelevant and the execution should go forward. That is essentially what courts decided after looking at the final appeals.

The Indiana Supreme Court on Monday unanimously agreed to let the execution go forward, saying Fleenor's attorneys didn't overcome the presumption of sanity. And Tuesday, Judge David F. Hamilton of the U.S. District Court in Indianapolis, also turned down the appeal. "One wonders what public good is served by executing someone who doesn't even appreciate that retribution is being taken," Heise said.

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D.H. Fleenor was sentenced to death for the murders of his mother-in-law and father-in-law in their Madison home. Fleenor killed , Nyla Jean and Bill Harlow in 1982, shooting them in front of their grandchildren. Fleenor was married to Nyla Jean Harlow's daughter, Sandra. She filed for divorce in November 1982.

At trial, his attorneys argued that Fleenor was stressed over the impending divorce and was drinking heavily. Friends of Fleenor's testified that he bought a .22-caliber pistol on Dec. 12, 1982 -- the day of the killings. The friends dropped Fleenor off near the Harlow home. He went in and waited for them to return from church. With the Harlows were Sandra; her son from a previous relationship; and Bill Harlow's 2 grandchildren. Fleenor shot Bill Harlow in the abdomen. When his mother-in-law went to help, Fleenor shot her in the head. He told his wife to drag her mother's body to another room. Then he left, taking Sandra and the children. Eventually, they returned to the Harlow home to find Bill Harlow still alive. Fleenor shot him again, killing him. Fleenor fled with his wife and the children to Greeneville, Tenn., where police captured him at a relative's home.

At trial in Johnson County, Fleenor was found guilty on Dec. 1, 1983. The jury recommended the death penalty, which then-Johnson Circuit Judge Larry McKinney imposed on Jan 4, 1984.

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On Dec. 12, 1982, D.H. Fleenor bought a gun and used it on his in-laws, killing them both as they arrived home from church. Fleenor was tried and found guilty. He was sentenced to death. His appeals went similarly badly for him.

So here is what the state of Indiana has planned for Fleenor this evening at the Indiana State Prison in Michigan City: "Offender receives shower and new clothing ... at approximately 6 p.m.," according to a Department of Correction memo ("RE: Chronology leading up to execution"). The offender then is transferred to a cell that is adjacent to the execution room. (It seems extravagant to set aside a room exclusively for executions since Indiana does only about one execution a year. But it's the law. People might enjoy having, say, a pingpong table in there the other 364 days, but it would be a violation of Indiana Code 35-38-6-5.)

The law also says, "The death penalty shall be inflicted before the hour of sunrise," which sounds uncomfortable but is no trouble. The deadline is met easily; the execution process begins at 12:01 a.m. Which means Fleenor will be dead in time for the morning news shows, and the anchors will be able to say it happened "today," which in the news business is preferable to saying "yesterday." Right after midnight, a dozen prison officials -- the "cell extraction team," also called the "execution team" -- present themselves at the offender's cell door. They have with them a gurney. The offender walks out of the cell. He always has gone quietly. Nobody says "dead man walking" the way they do in Louisiana; nobody says anything. The offender is placed on the gurney, strapped to the gurney.

Somebody asks for the offender's last words. Often the offender has thought at length about this and has written something down. (The last one, Robert Smith, Jan. 29, 1998, came up with a two-parter: He apologized for being such a screw-up and then quoted Eleanor Roosevelt: "You gain strength, courage and confidence by every experience in which you really stop to look fear in the face.") The offender is rolled into the execution room. There is a phone there, and the superintendent makes a call. He asks someone at the "prison command center" if there is any word of a postponement from the governor or the courts. There never is.

A member of the execution team searches the offender for a vein, finds one and spikes it with a needle. The superintendent makes the phone call again, gets the same answer. A team member starts dripping sodium pentothal into the offender's vein. The offender goes to sleep. The superintendent makes a third and final phone call. A team member gets out the pancuronium bromide, a muscle relaxer. Then he gets out the potassium chloride, and that's pretty much that. There is a doctor on hand. It's his job to pronounce the offender dead. What an unusual assignment for a doctor: The patient is dead -- the operation was a success!

A hearse is waiting. The prison has an arrangement with the Michigan City funeral home of Ott Haverstock (founded 1876) to retrieve the bodies of people who get executed. If all goes as planned, when Fleenor exits the prison gates he will still be warm.

ABOLISH Archives

D. H. Fleenor, white, is scheduled to be executed on 9 December 1999. He was sentenced January 1984 for the murder of his estranged wife's parents, Bill and Nyla Harlow, whom he apparently blamed for the breakup of his marriage. After the shootings, he kidnapped his wife and her son, nephew and niece. Fleenor was physically abused as a child. He has an extremely low I.Q. of 75 and a history of alcohol abuse. Several days before the incident, Fleenor and his wife sought, but were refused, help for his alcohol problem.

Fleenor is mentally retarded. Indiana no longer imposes the death penalty on mentally retarded individuals. Although the newly enacted law prohibiting the execution of mentally retarded persons has been declared non-retroactive, the courts' determination is not binding on the Governor. The Governor can certainly grant clemency to an individual who is mentally retarded. (Over seventy percent of Indiana citizens were found to be concerned about the execution of mentally retarded persons in the 1993 E. McGarrell and M. Sandys study from Indiana University.) D. H. Fleenor's mental state at the time of the homicides and his present mental state render him unfit for the death penalty. The Department of Corrections will not release Fleenor's records without a court order which inhibits his lawyers from gathering information abouthis current mental state.

VICTIMS AND SOME FAMILY MEMBERS PLED FOR HIS LIFE

The victim's daughter, Sandy Sedam, testified at the penalty phase of Fleenor's trial and expressed her opposition to the death penalty as well as the victims' opposition to it's use. Angie Harlow, the Harlows' granddaughter who was also present at the murder, gave testimony at post-conviction that she opposed imposition of capital punishment as well. D. H. Fleenor's mother turned him in to the authorities and testified by pleading for a sentence other than death. Prison officials would testify that Fleenor has been a cooperative prisoner. His clemency hearing is scheduled for 29 November 1999.

BACKGROUND INFORMATION:

As of 12 October 1999, 38 prisoners are under sentence of death in Indiana. Since executions resumed, 6 prisoners have been put to death in the state under its present death penalty laws. The most recent execution in Indiana was Robert Smith in 1998. The method of execution is lethal injection. The power to grant clemency rests with the state governor. The Constitution of Indiana states: "The penal code shall be founded on the principles of reformation, and not vindictive justice."

RECOMMENDED ACTION:

Please telephone/send telegrams/faxes/express/airmail letters: -express sympathy for the victim's family and friends; -urge Governor O'Bannon to grant clemency to D. H. Fleenor by commuting his death sentence; -urge Governor O'Bannon to take into consideration the following in deciding whether to grant clemency: Fleenor's mental retardation, the abuse he suffered in childhood; his alcohol abuse problems and his search for help directly before the killings; his present mental state and his mental state at the time of the homicides; his cooperative attitude in prison; the victims' opposition to the use of the death penalty and the request of some of their family members to not impose the death penalty.

Protests are scheduled at the Governor's Mansion(46th and Meridian) on Nov. 23 and 30 from 5-7p.m. The vigil will be held there on Dec. 8 from 5-7p.m. and from 10p.m.-1:15a.m. Please come and show your support for D. H. Fleenor. (If you have any questions, please call Karen Burkhart 317-839-1618.)

Fleenor v. State, 514 N.E.2d 80 (Ind. 1987). (Direct Appeal)

Defendant was convicted in the Circuit Court, Johnson County, Larry J. McKinney, J., of murder and burglary, and received death sentence. Defendant appealed. The Supreme Court, DeBruler, J., held that: (1) photographs of victims and crime scene were admissible; (2) evidence established that defendant had requisite intent to commit murder; (3) instructions given during penalty phase were not misleading; (4) trial court did not reach final sentencing decision before hearing all evidence; and (5) death penalty statute is not unconstitutional. Affirmed.

DeBRULER, Justice.
This is a direct appeal from two convictions for murder, I.C. § 35-42-1-1, and a conviction for burglary, I.C. § 35-43-2-1. A jury returned verdicts of guilty on all counts. The jury also recommended a death sentence. Appellant received a death sentence for the murder. I.C. § 35-50-2-9. There is no record before the court showing that a sentence for burglary was given.

There are twenty-one issues on appeal: (1) whether the right to an impartial jury was denied by the exclusion of prospective jurors who could not conscientiously consider the death penalty; (2) whether several prospective jurors were improperly excluded due to their views on the death penalty; (3) whether the trial court erred in admitting into evidence several State's exhibits which consisted of photographs depicting the victims and the crime scene; (4) whether there is sufficient evidence to support the convictions; (5) whether the trial court erred in refusing the tendered penalty phase Instruction No. 3 and in editing the tendered penalty phase Instruction No. 2; (6) whether the trial court erred in giving penalty phase Instructions No. 4 and No. 12; (7) whether the trial court erred in refusing to admit into evidence appellant's Exhibit B, a report documenting the death penalty positions of various religious organizations; (8) whether the trial court denied him the right to be heard at the sentencing hearing; (9) whether the trial court failed to find, value and weigh all existing mitigating circumstances; (10) whether the death penalty statute has reduced the arbitrary, capricious and random selection of those sentenced to death; (11) whether death by electrocution is cruel and unusual punishment under the Eighth Amendment of the United States Constitution; (12) whether the death penalty statute violates Article 1, § 18 of the Indiana Constitution; (13) whether the death penalty statute is unconstitutional due to the degree of prosecutorial discretion it vests in charging; (14) whether the death penalty statute is unconstitutional because it does not provide for the automatic exclusion of jurors who would always vote for the death penalty in murder cases; (15) whether the death penalty statute is unconstitutional because it does not require the jury to make written findings of fact; (16) whether the death penalty statute is unconstitutional because it does not specifically guide the sentencer's discretion in weighing the aggravating circumstances and the mitigating circumstances; (17) whether the death penalty statute is unconstitutional because it does not require the sentencer to find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt; (18) whether the death penalty statute is unconstitutional because it does not prescribe specific rules to govern appellate review of death sentences; (19) whether the death penalty statute is unconstitutional because it does not require any comparative proportionality review; (20) whether the death penalty statute is unconstitutional because it does not require a finding of specific intent to kill in order for the death penalty to be imposed when the underlying charge is felony murder; (21) whether the death penalty statute is unconstitutional because it permits burglary to be employed as an aggravating circumstance where burglary is also an independent offense.

These are the facts from the record that support the determination of guilt. This series of tragic events involves appellant, D.H. Fleenor, appellant's estranged wife, Sandra Sedam, the wife's mother, Nyla Harlow, and the wife's stepfather, Bill Harlow.

On December 12, 1982, between 3:00 p.m. and 4:00 p.m., appellant purchased a . 22 Colt Peacemaker. During the course of the afternoon, he consumed approximately four beers, and he smoked a marijuana cigarette. He did not appear to be drunk or out of control to his companion. Between 4:00 p.m. and 5:00 p.m., Sandra Sedam and Nyla Harlow were Christmas shopping at a department store. At the store, they encountered appellant, and they talked to him for about ten minutes. Appellant was agitated and might have been drinking before this conversation. At approximately 6:30 p.m., appellant sought out Sandra Sedam at a church service. He behaved properly in the church, he apologized for the earlier meeting, and then he left. Afterwards, he was given a ride to the area of the Harlow's home, and he entered it.

At 7:30 p.m., Bill Harlow, Nyla Harlow, Sandra Sedam, Sandra's little boy Justin, and Bill Harlow's grandchildren Billy and Angie returned home from church. Bill and Nyla started talking about appellant showing up at the church. At that point, appellant appeared in the hallway, and he shot Bill. He then ordered the two women and the children to sit on the couch. Thereafter, he allowed Nyla to go to her husband Bill, who was on the floor. As she assisted Bill, appellant shot her in the head. He ordered Sandra, Billy and Angie to carry Nyla into the bedroom. Subsequently, appellant, Sandra, Billy, Angie and Justin drove to the home of James Sedam, Sandra's brother. Appellant then ordered Angie to tell James that they were going out of town for a few days. They then returned to the Harlow's home. Bill Harlow was conscious, and he asked about his wife. Bill asked appellant not to leave him there. Appellant then said to Sandra, "You know I have to .. I can't let him suffer any more". Immediately thereafter, appellant shot Bill Harlow again. The next morning, appellant fled to Tennessee with Sandra, Billy, Angie and Justin accompanying him. While in Tennessee, appellant called his mother in Indiana, and he told her that he thought he killed the Harlows. Testimony established that the Harlow's both died from gunshot wounds to the head.

* * * *

The judgment of the trial court is affirmed in all things; the cause is remanded *93 to the trial court for the purpose of fixing a date for the sentence to be carried out. SHEPARD, C.J., and GIVAN, PIVARNIK and DICKSON, JJ., concur.

Fleenor v. State, 622 N.E.2d 140 (Ind. 1993). (PCR)

Defendant's murder conviction and death sentence were affirmed on appeal by the Supreme Court, 514 N.E.2d 80. Defendant's petition for postconviction relief was denied by the Circuit Court, Johnson County, Jeffrey Eggers, J. Defendant appealed. The Supreme Court, DeBruler, J., held that: (1) voir dire examination did not lead jury to believe that responsibility for death penalty rested elsewhere in violation of Eighth Amendment; (2) jury instruction and prosecutor's argument on possible terms of imprisonment were not unconstitutional; (3) jury instructions were adequate; (4) permitting state to use opinion of court-appointed psychiatrist on defendant's future dangerousness during guilt phase was not unconstitutional; and (5) double jeopardy did not prohibit finding of intentional killing on capital penalty issue after conviction based on knowing murders. Affirmed.

Fleenor v. Anderson, 171 F.3d 1096 (7th Cir. 1999). (Habeas)

After his murder conviction and death sentence were upheld on direct appeal, 514 N.E.2d 80, petitioner sought federal habeas corpus relief. The United States District Court for the Southern District of Indiana, David F. Hamilton, J., denied relief. Petitioner appealed. The Court of Appeals, Posner, Chief Judge, held that: (1) judge's voir dire statement to juror that jury's death sentence recommendation was not binding, and could be ignored or accepted, was not misleading under Indiana law; (2) prosecution's rebuttal argument indicating that jury's death recommendation was not final and would be reviewed by sentencing court, state supreme court, and possibly other courts was not reversible error; and (3) prosecutor's rebuttal use during sentencing of report of psychiatrist who had examined petitioner to determine his sanity at time of trial and of murders did not violate petitioner's right to assistance of counsel. Affirmed.