244
Stevens, J., dissenting
made a postverdict finding equivalent to a determination that Schiro was guilty of intentional murder. The Court attempts to justify this anomalous result by relying on the improbable assumption that the jury may not have resolved the intent issue in Schiro's favor. The Court advances three reasons in support of that assumption: Schiro's "confession to the killing, the instruction requiring the jury to find intent to kill, and the uncertainty as to whether the jury believed it could return more than one verdict." Ante, at 236.5 None justifies the majority's result.
As to Schiro's confessions, such statements must be evaluated in the context of the entire record. Even though they would have been sufficient to support a guilty verdict on the intentional murder count, it is quite wrong to suggest that they necessitated such a verdict. See Schiro v. State, 451 N. E. 2d 1047, 1068 (Ind. 1983) (Prentice, J., concurring and dissenting) (stating that a finding of intentional killing "was not compelled"). The record as a whole, including the experts' testimony, is fully consistent with the conclusion that the jury rejected the prosecutor's submission on the intent question.
5 The Court correctly avoids reliance upon the quite different rationale— namely, the distinction between a "knowing" killing and an "intentional" killing—that the Indiana Supreme Court adopted. Noting that Count I merely required the jury to find that Schiro had "knowingly" killed his victim, whereas the aggravating circumstance supporting the death penalty required proof that he had "intentionally" killed, the court concluded that the verdict on Count I "could not be considered to have included any conclusion" on the intent issue raised at the sentencing hearing. Schiro v. State, 533 N. E. 2d 1201, 1208 (Ind. 1989). Yet because an "intentional" killing requires greater awareness of the consequences of the act than a "knowing" killing, such an illusory distinction is plainly unsatisfactory. As the dissenting justices pointed out, the difference between the two states of mind is insignificant and, in this instance, esoteric: "To accord the difference, one would have to believe that a person can be presently unaware that he is strangling another, while at the same time having a goal presently in mind to strangle such other person." Id., at 1209.
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