Schiro v. Farley, 510 U.S. 222, 4 (1994)

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Cite as: 510 U. S. 222 (1994)

Opinion of the Court

to consume drugs and alcohol. When Laura Luebbehusen tried to escape, Schiro restrained and raped her at least once more. Then, as Laura Luebbehusen lay or slept on the bed, Schiro realized that she would have to die so that she would not turn him in. He found the vodka bottle and beat her on the head with it until it broke. He then beat her with the iron and, when she resisted, finally strangled her to death. Schiro dragged her body into another room and sexually assaulted the corpse. After the murder, he attempted to destroy evidence linking him to the crime.

II

At the time of the crime, the State of Indiana defined murder as follows:

"A person who:

"(1) knowingly or intentionally kills another human being; or

"(2) kills another human being while committing or attempting to commit arson, burglary, child molesting, criminal deviate conduct, kidnapping, rape or robbery; "commits murder, a felony." Ind. Code 35-42-1-1 (Supp. 1978).

Schiro was charged with three counts of murder. In Count I he was charged with "knowingly" killing Laura Luebbehusen; in Count II with killing her while committing the crime of rape; and in Count III with killing her while committing criminal deviate conduct. App. 3-5. The State sought the death penalty for Counts II and III.

At trial, Schiro did not contest that he had killed Laura Luebbehusen. Indeed, in closing argument, Schiro's defense attorney stated: "Was there a killing? Sure, no doubt about it. Did Tom Schiro do it? Sure . . . . There's no question about it, I'm not going to try . . . and 'bamboozle' this jury. There was a killing and he did it." App. to Brief for Respondent 24. Instead, the defense argued that Schiro

225

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