Gary Burris

Executed November 20, 1997 by Lethal Injection in Indiana


69th murderer executed in U.S. in 1997
427th murderer executed in U.S. since 1976
1st murderer executed in Indiana in 1997
5th murderer executed in Indiana since 1976


Since 1976
Date of Execution
State
Method
Murderer
(Race/Sex/Age at Murder-Execution)
Date of
Birth
Victim(s)
(Race/Sex/Age at Murder)
Date of
Murder
Method of
Murder
Relationship
to Murderer
Date of
Sentence
427
11-20-97
IN
Lethal Injection
Gary Burris

B / M / 23 - 40

12-17-56
Kenneth Chambers

B / M / 31

01-29-80
Handgun
None
02-20-81
11-22-91

Summary:
Kenneth Chambers was a cab driver in Indianapolis. His nude body was found in an alley near Fall Creek Parkway, face down and stuck to the ground by a pool of his frozen blood. There was a small caliber gunshot wound to the right temple. The cab company log revealed that Burris had called for a cab and was Chambers' last fare. A witness testified that Burris returned to his apartment with Emmett Merriweather and James Thompson with wads of money and a cab driver's run sheet and clipboard. Burris was arrested at the apartment of his girlfriend where a .38 caliber handgun was found. The ISP Lab confirmed it to be the murder weapon.

Citations:
Burris v. State, 465 N.E.2d 171 (Ind. June 29, 1984) (Direct Appeal).
Burris v. Indiana, 105 S. Ct. 816 (1985) (Cert. denied).
Burris v. State, 558 N.E.2d 1067 (Ind. 1990) (PCR).
Burris v. State, 687 N.E.2d 190 (Ind. 1997) (PCR)
Burris v. State, 642 N.E.2d 961(Ind. November 4,1994)(PCR)
Burris v. Indiana, 116 S. Ct. 319 (1995) (Cert. denied)
Burris v. Farley, 845 F. Supp. 636 (N.D. Ind. 1994) (Habeas).
Burris v. Farley, 51 F.3d 655 (7th Cir. 1995) (Affirmed) (Habeas).
Burris v. Indiana, 116 S. Ct. 747 (1996) (Cert. denied).
Burris v. Parke, 72 F.3d 47 (7th Cir. 1995) (Habeas).
Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (Habeas).
Burris v. Parke, 948 F. Supp. 1310 (N.D. Ind. 1996) (Habeas).

Final / Special Meal:
Steak, lobster, salad with thousand island and bleu cheese dressing, baked potato, cheesecake and two espressos.

Last Words: "Beam me up."

Internet Sources:

Clark County Prosecuting Attorney (Gary Burris)

EXECUTED BY LETHAL INJECTION 11-20-97 1:00 AM
DOB: 12-17-56
DOC#: 11746 Black Male

Marion County Superior Court Judge John Tranberg
Prosecutor: J. Gregory Garrison, John D. Tinder
Defense: Thomas Alsip, L. Craig Turner
Date of Murder: January 29, 1980
Victim(s): Kenneth W. Chambers B/M/31 (No relationship to Burris)
Method of Murder: shooting with .38 handgun

Conviction: Felony-Murder
Sentencing: February 20, 1981 (Death Sentence)
Aggravating Circumstances: b(1) Robbery
Mitigating Circumstances: sociopathic personality, accomplices could have committed murder, acts were insufficient to warrant death, abandoned by his parents (presented at 2nd trial), raised in house of prostitution, at age 12 he was declared a ward of county due to neglect, obtained GED

Direct Appeal:
Burris v. State, 465 N.E.2d 171 (Ind. June 29, 1984)
Conviction Affirmed 5-0 DP Affirmed 5-0
Pivarnik Opinion; Givan, Debruler, Hunter, Prentice concur.
Burris v. Indiana, 105 S. Ct. 816 (1985) (Cert. denied)

PCR:
Burris v. State, 558 N.E.2d 1067 (Ind. 1990)
(Appeal of PCR denial by Special Judge Roy Jones)
DP Vacated 3-2 and remanded due to ineffective counsel - referring to Burris as "street person" and failure to investigate and present mitigators; Shepard Opinion; Debruler, Dickson concur; Givan, Pivarnik dissent.

Burris v. State, 687 N.E.2d 190 (Ind. 1997)
(Order declining to authorize successive PCR attacking conviction) Shepard, Dickson, Sullivan, Selby, Boehm concur.

On Remand: Burris was again sentenced to death on 11-22-91 by Judge Patricia J. Gifford after a hung jury in the death phase.

Direct Appeal:
Burris v. State, 642 N.E.2d 961(Ind. November 4,1994)
DP Affirmed 5-0; Givan Opinion; Shepard, Dickson, Debruler, Sullivan concur.
Burris v. Indiana, 116 S. Ct. 319 (1995)

Habeas:
Petition for Writ of Habeas Corpus filed on 12-09-02 in the U.S. District Court, Northern District of Indiana.
Writ denied by U.S. District Court Judge Allen Sharp on 01-27-94.

Burris v. Farley, 845 F. Supp. 636 (N.D. Ind. 1994) (Petition for Habeas Writ on conviction only; Writ Denied)
Burris v. Farley, 51 F.3d 655 (7th Cir. 1995) (Affirmed) (Appeal of denial of Habeas Writ; Affirmed 3-0)
Opinion by Judge Frank H. Easterbrook; Judge Daniel A. Manion, Judge Richard D. Cudahay.
Burris v. Indiana, 116 S. Ct. 747 (1996) (Cert. denied)

Petition for Writ of Habeas Corpus filed on 11-13-95 in U.S. District Court, Northern District of Indiana.
Burris v. Parke, 72 F.3d 47 (7th Cir. 1995) (Dismissal of Habeas Writ on grounds of "abuse of writ" Affirmed;
Per Curiam Opinion, Cudahay dissents; Stay of Execution Denied)
Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (Vacated dismissal of Habeas Writ with directions for District Court to consider on the merits; Judge Richard A. Posner, Judge Daniel A. Manion, Judge Michael Kanne)
Burris v. Parke, 948 F. Supp. 1310 (N.D. Ind. 1996)
(Petition for Habeas Writ; Denied by Judge Allen Sharp)
Burris v. Parke, 116 F.3d 256 (7th Cir. 1997) (Appeal of denial of Habeas Writ)
Affirmed 2-1; Judge Frank H. Easterbrook, Daniel A. Manion, Judge Cudahay dissents.

Burris v. State, 684 N.E.2d 193 (Ind. August 26, 1997) (Order setting execution date)
Burris v. Parke, 130 F.3d 782 (7th Cir. November 15, 1997)
(Request to Recall Mandate dismissed 2-1; Judge Easterbrook Opinion, Manion concurs, Cudahay dissents.)
Burris v. Parke, 118 S.Ct. 462 (November 19, 1997) (Application for stay denied)

BURRIS WAS EXECUTED BY LETHAL INJECTION 11-20-97 1:00 A.M. EST. HE WAS THE 75TH CONVICTED MURDERER EXECUTED IN INDIANA SINCE 1900, AND 5TH SINCE THE DEATH PENALTY WAS REINSTATED IN 1977.

Amnesty International

Burris was convicted of the Jan. 29, 1980, murder of Indianapolis cab driver Kenneth Chambers, whom he robbed of $40, then ordered to strip naked before shooting him point-blank in the head and leaving his body in an alley. Witnesses to the execution said Burris said, "beam me up" prior to being given a lethal dose of chemicals in the execution chamber at Indiana State Prison. He was pronounced dead just before 1 a.m. local time. The Indiana Supreme Court turned down his final appeals on Wednesday.

Death penalty opponents said Burris should not have been executed. Amnesty International said Burris was brain-damaged after he shot himself accidentally with his own gun in a robbery attempt in 1976, and that Burris received a miserable legal defense at his murder trial. During the death penalty phase of the trial, jurors did not learn of his childhood living amid prostitutes and drug dealers. Burris had been told his real mother abandoned him in a trash can as a baby.

He was sentenced to death a 2nd time in a 1991 court proceeding, but just 11 hours before Burris' November, 1995 date with the executioner, an appeals court judge halted the process to review his convoluted legal history. Several judges right up to the U.S. Supreme Court reviewed his case and decided he should be executed.

Earlham World Online

"Protesting Death Until the End," by Richard W. Smith.

During the last hours of Gary Burris' life, close to 100 demonstrators, including 7 Earlham students, participated in a protest and candlelight vigil, imploring Governor Frank O'Bannon to commute Gary's execution to life imprisonment with chants of, "Pick up the phone! -- Give Gary life!" and "Pick up the phone! -- Don't kill tonight!" and "Hey, Frank! -- Pick up the phone!"

For reasons lost in obscurity, executions in Indiana are committed shortly after midnight. Because of the time difference between Indianapolis and Michigan City, Indiana where the execution was committed at the State Prison, the execution was scheduled to begin after 1:00 a.m. Indianapolis time. This caused some inconvenience if not hardship to some of us who were ill-prepared to brave the near-freezing temperatures during that extra hour.

The demonstration was well organized and proceeded for the most part with dignity and elements of funeral solemnity which included a very moving rendition of "Amazing Grace", The Lord's Prayer, and other prayers including those for Kenneth Chambers and his family. Kenneth Chambers was the cab driver who was robbed and murdered 17 years ago; Gary Burris was being executed for his part, along with two others, in those crimes, which he maintained to the very end he could not remember.

The camaraderie and shared grief and tears, not only for the injustices of the loss Gary Burris and that of his family and friends, but also for the loss shared by the family and friends of Kenneth Chambers, were perhaps the most deeply felt elements of the demonstration. The brief flurry of media coverage, particularly that of the local TV stations, was almost a distraction for many of us. The brief circus atmosphere that they provided soon gave way to the more solemn candlelight death vigil shortly after the TV cameras and reporters left to get their coverage on the 11 o'clock news.

There were many memorable signs, slogans, and quotes there that expressed abolitionist sentiments: there was the big orange sign that said simply, "'Thou Shalt Not Kill'- God"; another prominent sign with the message, "Honk if you oppose the death penalty"; several expressed variations of, "'An eye for an eye only makes the whole world blind'--Mahatma Gandhi" ; and "The Death Penalty Is Dead Wrong!"; Also, "Why do we KILL PEOPLE when they KILL PEOPLE to show that it's wrong to KILL PEOPLE"; and one of my favorites, " 'For me, the unnegotiable bedrock on which a society must be built is that killing by anyone, under any conditions, cannot be tolerated. And that includes the government.' -- Sister Helen Prejean, author of "Dead Man Walking" ".

The hospitality of St. Thomas Aquinas Church was very much appreciated by many of us. Their offer of coffee, rest-rooms, and WARMTH where we could thaw out were most welcome. A meeting after the death vigil was held there to discuss future plans to abolish the death penalty in Indiana. There was the optimistic hope that Gary's execution would be the very last one in Indiana.

Amnesty International - Oberlin College

Fight Against the Death Penalty

The State of Indiana has scheduled the execution of Gary Burris for November 20, at 12:01 a.m. CST. The Parole Board voted against recommending clemency. Gary's life is now in the hands of Governor Frank O'Bannon, who can still grant clemency in the form of commuting Gary Burris' sentence to life in prison without the possibility of parole, which is an option the juries and judges who have considered Gary's case never had. Gary's case was tried to different juries twice on the issue of the death penalty at a time when a death sentence was the only alternative to a sentence whereby Gary could do as little as 30 years of actual time in prison, a sentence the Indiana Attorney General's Office, in papers filed with the courts, admitted would have been appropriate based upon the facts of the case and various mitigating factors. Neither jury could unanimously vote in favor of the death sentence.

Due to a subsequent change in the laws, a judge and jury trying this case today could consider a sentence of life without parole and there have been numerous more heinous murders with fewer mitigating factors successfully prosecuted as life without parole cases in Marion County since the change in the law. The Parole Board's decision to deny a recommendation of clemency was not even unanimous. In a 4-1 vote, Member Tom Jeffers, appointed by Gov. O'Bannon himself (who as a legislator authored Indiana's death penalty statute) dissented from the Board's decision and recommended that clemency be granted. Neither jury, even when having death or 30 years as the only alternatives, could vote to kill Gary Burris. No judge who sat through the trial and heard the evidence ever had the option of imposing a life without parole sentence on Gary Burris. No appellate court ever had the option of a life without parole sentence. The only person with that option, which is a punishment more severe than even the juries who tried the case after hearing all of the evidence could agree upon, is Gov. O'Bannon.

We express compassion for the family of the murdered victim. We know, however, that executing Gary would not right that wrong. It would only perpetuate a cycle of violence that demonstrates that the death penalty has no deterrent effect and sends just the opposite message to the citizenry. Consider that in the last three years Indiana has come within hours of executing Gary Burris and has executed Gregory Resnover and Tommie Smith. Yet, for the third consecutive year Marion County, and Indianapolis, the county and city in which all of these crimes occurred and where there was the most media coverage of the executions, is on track to set another record for the number of homicides in a year. The granting of clemency will demonstrate the sanctity of human life and demonstrate that the answer to violence and killing is not more violence and more killing.

To understand a bit more about some of the mitigating factors relevant to the clemency issue before the Governor a biographical sketch of Gary Burris is helpful. Gary was abandoned as an infant and doesn't know the names of his parents or his birth date. Gary was raised by Jewel, a pimp and nightclub owner, and told he had been found in a trash can. Jewel used the boy to time the prostitutes' customers, run drugs and illegal alcohol on Sundays, and as a shield from the law during frequent raids. Though police witnessed Gary's presence in this center of vice and crime, he was not removed from it. At 13, Gary watched as Jewel shot and killed a woman and was carted off to jail and eventually prison. Finally Gary was placed in a foster home. When asked, he told his foster mother that for Christmas he just wanted a birth certificate or some information as to who he was. Gary did not choose a life of crime, he was born into it.

Gary's death sentence was based on testimony of a "jailhouse informant" who avoided being tried as an habitual criminal and received a reduced sentence in exchange for his testimony about a "confession" Gary allegedly made while awaiting trial and two co-defendants who, after being arrested for the murder, both implicated Gary as the triggerman in return for much more lenient sentences than the life without parole sentence Gary is requesting. One of them is a free man walking our streets today. In fact, prior to and during trial the Prosecutor offered a plea agreement to Gary that is less harsh than a life without parole sentence. Senior officials at the Indiana State Prison have sworn, under oath, that Gary Burris is a model prisoner. He has been given a position of trustee for some years. During the 17 years Gary has been on death row, there have been escape attempts and a hostage incident. Gary took no part in these events. He is highly respected by inmates, guards and officials alike.

The State of Indiana cannot present Gary Burris with a birth certificate, but they have served him with a death warrant.

ABOLISH Archives

Thurs., 10-23-97 - INDIANA EXECUTION ALERT

The State of Indiana has set an execution date for death-row inmate Gary Burris. Burris is scheduled to be executed on November 20, 1997.

The case of Gary Burris was subject of an Urgent Action by Amnesty International in 1995. Burris' lawyers were back then able to persuade a U.S. Circuit Court to hear his 2nd federal habeas corpus motion. Apparently, the federal court recently denied relief, and the execution date should be considered extremely serious.

Preparing for the execution, death row guards already threw 2 convicts into "the Hole", or administrative segregation, for fear of erupting violence around the execution, wrote 1 of them, Lorenzo L. Stone-Bey (DOC # 10006). After the 1994 execution of Ajamu Nassor in Indiana, an officer was knifed to death in retaliation.

Burris is an accused murderer of a taxi driver. His supporters offered a strong case in mitigation and argued his personal background should lead to a commutation of his death sentence. They said Burris was an orphan and grew up in a brothel, where he was led into a life of crime. They also claimed Burris might be innocent of murder.

Indiana resumed state killing in 1981, and to date has executed 4 condemned men. The last execution in the state was in 1996.

Burris v. State, 465 N.E.2d 171 (Ind.1984) (Direct Appeal).

Defendant was convicted before the Marion Superior Court, Criminal Division, John Tranberg, J., of murder, and he appealed. The Supreme Court, Pivarnik, J., held that: (1) selection of death-qualified jury was not improper; (2) felony-murder information was not deficient because it failed to specifically include intent element of underlying robbery in its language; (3) defendant had no standing to object to search of girl friend's apartment; (4) although penalty-phase instruction was erroneous, error was harmless; (5) lack of written jury findings does not make death penalty statute unconstitutional; (6) trial court did not err in imposing death penalty without a specific jury determination that defendant had been convicted of murder as principal or as an accomplice; and (7) evidence supported trial court's findings as to existence of aggravating circumstance justifying death penalty. Affirmed. Prentice, J., concurred in result.

PIVARNIK, Justice.
Defendant-appellant Gary Burris was convicted of Murder, Ind.Code 35-42- 1-1 (Burns Repl.1979), at the conclusion of a jury trial in Marion Superior Court on December 4, 1980. The State sought the death penalty and the jury returned a recommendation of death. The trial court sentenced Burris to death on February 20, 1981. After several extensions of time in which to file his appellate brief, Burris now appeals his conviction and sentence.

The defendant raises twelve errors on appeal, concerning: 1) whether the jury was improperly selected because of the questioning methods used during voir dire; 2) whether the information for felony-murder is insufficient by its failure to specifically include the intent element of the underlying robbery in its language; 3) whether the trial court erred in admitting certain evidence seized from the apartment where the defendant was arrested; 4) whether the trial court erred in failing to disclose to the jury the full details of a plea agreement made to a witness for the prosecution; 5) whether certain physical evidence was erroneously admitted because of alleged breaks in the chain of custody; 6) whether final instruction 32 properly covered subsidiary and incidental evidence; 7) whether the prosecutor used inflammatory and prejudicial language in the final argument of the penalty phase of trial; 8) whether the jury was properly instructed on weighing aggravating and mitigating circumstances, and whether the jury should return written findings of fact; 9) whether the trial court erred in imposing the death penalty without a specific jury determination that the defendant had been convicted of murder as a principal or as an accomplice; 10) whether there is proportionality review of death penalty cases in Indiana; 11) whether the defendant received effective assistance of counsel during the trial court proceedings; and 12) whether there is sufficient evidence to support the trial court's findings as to the existence of an aggravating circumstance justifying the death penalty.

The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock. After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide. Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple. Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305. On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as "Williams."

1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named "Emmett" and "James." As Williams recalled, Emmett was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time.

Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmett Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State's Exhibit 16 as being similar to the .38 pistol.

Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver's run sheet. The defendant burned the run sheet and flushed the remains down the toilet.

Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant's front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together.

After some police investigation, Emmett Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins' apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol's trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge.

A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a "contact wound." By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim's blood type and the bloodstain on the recovered .38 pistol were both type A.

One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant's story as follows: The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the "M & L Club" (Kirby said he was not sure "M & J Social Club" was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their "roscoes" (pistols).

Inside the "M & J Social Club" the defendant said to his friends that he was ready to get some "paper" (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab. After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver's clothes were thrown out. Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, "Man, take the money, take the cab, leave me alone, I'm not going to bust you, you know, I'm a street fellow, too." This plea for mercy had no effect on the defendant. The victim's hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics.

* * * * Thus, the cold-blooded nature of this murder, the character of the offender, and the compliance of the trial court with Ind.Code 35-50-2-9, lead us to conclude that the death penalty was not arbitrarily or capriciously applied, and is reasonable and appropriate. This cause is remanded to the trial court for the purpose of setting a date for the death sentence to be carried out. GIVAN, C.J., and DeBRULER and HUNTER, JJ., concur. PRENTICE, J., concurs in result.

Burris v. State, 558 N.E.2d 1067 (Ind. 1990) (PCR).

Defendant was convicted of murder and sentenced to death, in the Marion Superior Court, John Tranberg, J., and defendant appealed. The Supreme Court, 465 N.E.2d 171, affirmed. Defendant then petitioned for postconviction relief. The Superior Court, Roy F. Jones, Special Judge, denied petition, and defendant appealed. The Supreme Court, Shepard, C.J., held that: (1) prosecutor did not misrepresent the law or improperly condition the jury when prosecution repeatedly told jurors that they would only recommend death sentence to judge and that judge would make final decision; (2) defendant did not receive ineffective assistance of counsel at guilt phase of trial; and (3) defense counsel's maligning statements about defendant at close of guilt phase, inconsistent use of intoxication as mitigator, and failure to develop and present mitigating evidence, fell below standard of reasonable performance under prevailing professional norms, thus warranting reversal of death sentence on grounds of ineffective assistance of counsel. Affirmed in part; reversed and remanded in part. Givan, J., dissented in opinion in which Pivarnik, J., joined.

We reverse the post-conviction court's finding that Burris was not denied the effective assistance of trial counsel at the penalty phase of his trial. We vacate the death penalty and remand for a new sentencing hearing. The post-conviction court is otherwise affirmed. DeBRULER and DICKSON, JJ., concur. GIVAN, J., dissents with opinion in which PIVARNIK, J., joins.

Burris v. State, 642 N.E.2d 961 (Ind. 1994) (Sucessive PCR).

After conviction for felony murder and death sentence were affirmed on appeal, 465 N.E.2d 171, petition was filed for postconviction relief. The Marion Superior Court, Roy F. Jones, Special Judge, denied relief. Appeal was taken. The Supreme Court, Shepard, C.J., 558 N.E.2d 1067, affirmed in part, and reversed and remanded in part. After death sentence was again imposed at new penalty phase proceeding, appeal was taken. The Supreme Court, Givan, J., held that: (1) trial court could impanel new jury without any effort to determine if original jury could be reassembled; (2) photographs of victim did not cause undue prejudice and were admissible to explain police officer's testimony; and (3) defendant was properly sentenced to death. Affirmed. Sullivan, J., concurred in result and filed a separate opinion.

GIVAN, Justice. Appellant was convicted of Felony Murder in January of 1981. At that time, the jury recommended the death penalty and the trial court followed the jury recommendation. This Court affirmed the trial court on direct appeal. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809. Subsequently, appellant filed a petition for post-conviction relief in the trial court. That petition was denied; however, on appeal, this Court reversed in part, holding that defense counsel did not adequately represent appellant during the sentencing presentation to the jury. This Court ordered the case remanded for a new sentencing hearing before a jury. Eleven years had expired since the original sentencing jury decision and the trial court assembled a new jury to hear evidence and make a recommendation to the trial court as to the sentencing.

After hearing the evidence and deliberating, the jury informed the trial court that they were hopelessly deadlocked. The trial court then discharged the jury and proceeded to enter judgment ordering the death penalty.

In January of 1980, appellant and his companions, James Thompson and Emmett Merriweather, with appellant being the leader, decided that they would call a cab, then they would rob the driver, and no matter who the driver was they would kill him. North Side Cab Company of Indianapolis dispatched their driver, Kenneth Chambers, in response to the call. After directing the driver where to go, the three men announced a robbery. They directed the driver to stop near an alley, required him to remove all of his clothing, took him into the alley, made him lie face down on the ground, and tied his hands behind him. Appellant then placed the muzzle of his pistol against the victim's temple and shot him. Several hours later the victim's body was discovered lying in a frozen pool of his own blood.

* * * *