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ATTORNEYS FOR APPELLANT John Andrew Goodridge Evansville, Indiana William Wayne Gooden Mt. Vernon, Indiana ATTORNEYS FOR AMICUS CURIAE MARION COUNTY PUBLIC DEFENDER AGENCY Joel M. Schumm Indianapolis, Indiana Ann M. Sutton Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana Stephen R. Creason Deputy Attorney General Indianapolis, Indiana

FILED
Dec 10 2009, 9:41 am
of the supreme court, court of appeals and tax court

CLERK ______________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 10S00-0808-DP-453 DANNY RAY WILKES, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ Appeal from the Clark Circuit Court, No. 10C01-0705-MR-158 The Honorable Carl A. Heldt, Special Judge _________________________________ On Direct Appeal _________________________________ December 10, 2009 Boehm, Justice. In this direct appeal, Daniel Wilkes appeals his murder convictions and death sentence. We affirm Wilkes's murder convictions and death sentence.

In the

Facts and Procedural History In the spring of 2006, Daniel Wilkes met Donna Claspell and Michael Baker while all three were being treated at a drug rehabilitation center. After discharge, Wilkes stayed with Donna and her two daughters, eight-year-old Sydne Claspell and thirteen-year-old Avery Pike. Wilkes told Baker that one night he awoke to find Avery hunching on his leg, and that he and Avery then engaged in mutual oral sex. Wilkes later admitted to molesting Avery on a total of three or four occasions. On the evening of April 23 or the early morning of April 24, Donna found Wilkes and Avery together and told Wilkes that he would have to leave the home. Around eight o'clock the next morning, Donna's neighbors observed Baker picking up Wilkes at the home, and one heard Wilkes say something like, I've got to get out of here. That night, according to Baker, Wilkes kept looking out the windows and expressed concern that the police would come for him. On April 26, the bodies of Donna, Sydne, and Avery were found in their home. Donna and Sydne were in the master bedroom. Donna had sustained multiple injuries, including a deep cut wound to the neck and blows to the head from a hammer and another blunt instrument. A knife was found under Donna's shoulder. Sydne had died from at least twenty-seven blows to the head, back, and shoulders from a hammer head and claw. Avery was found in her bedroom naked and face down on the bed. Her hands were bound behind her back with a cord, her ankle was tied to the bedpost, and she had been strangled with a piece of clothing. DNA and serological tests were performed on several items from Donna's home and also on clothing Wilkes was wearing at the time of his arrest. Donna's blood was found on the ball and claw of a hammer and on a level found at the home, and also on a shirt and hat worn by Wilkes. Sydne's blood was found on the claw of the hammer and on Wilkes's shirt and her DNA was found on Wilkes's shoe. Wilkes confessed to the murders under circumstances described below. Wilkes was charged with all three murders. The State filed a death penalty request alleging as a statutory aggravating circumstance of each murder that Wilkes had committed multiple murders and, as to Sydne, that the victim was less than twelve years old. 2

The jury found Wilkes guilty of all three murders. In the penalty phase, the jury found all four aggravating circumstances and found that the aggravating circumstances outweighed the mitigating circumstances, but could not agree on a sentencing recommendation. After discharging the jury, the trial court conducted the sentencing. The court accepted the jury's findings and independently found the aggravating circumstances and that the aggravating circumstances outweighed the mitigating circumstances. sentenced Wilkes to death. In this direct appeal, Wilkes challenges his convictions and his sentence, arguing that: I. II. III. IV. The trial court erred in admitting transcripts and recordings of four interviews in which he acknowledged his guilt; The trial court erred in admitting evidence of his molesting of Avery, expert testimony regarding a presumptive test for blood, and opinion testimony on guilt; Indiana's death penalty statute violates the Indiana Constitution's requirement of separation of powers and the Federal Sixth Amendment; and Wilkes was not sentenced properly. I. Admissibility of Wilkes's Interviews At trial, over Wilkes's objection, the State introduced transcripts of four interviews in which Wilkes acknowledged his guilt. A videotape of the first interview and audio recordings of the other three were also admitted. Wilkes argues that the trial court erred in admitting these because the interviews were given involuntarily in violation of his right to remain silent. Unlike the Federal Constitution, Indiana law imposes on the State the burden of proving beyond a reasonable doubt that a confession is voluntary. Lego v. Twomey, 404 U.S. 477, 488

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