Long v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Susan K. Carpenter Karen Freeman-Wilson

Public Defender of Indiana Attorney General of Indiana

J. Michael Sauer Christopher L. Lafuse

Deputy Public Defender Deputy Attorney General

Indianapolis, Indiana Indianapolis, Indiana

In The

INDIANA SUPREME COURT

)

ROGER LEON LONG, )

Defendant-Appellant, )

)

v. ) 28S00-9907-CR-388

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

)

________________________________________________

APPEAL FROM THE GREENE SUPERIOR COURT

The Honorable David Holt, Judge

Cause No. 28D01-9710-CF-501

________________________________________________

On Direct Appeal

March 9, 2001

DICKSON, Justice

The defendant-appellant, Roger Long, was convicted of murder;[1]

conspiracy to commit murder, a class A felony;[2] criminal deviate conduct,

a class A felony;[3] and criminal confinement, a class B felony[4] for a

1995 criminal episode in Linton, Indiana, that resulted in the death of

Pamela Foddrill.[5] Long was sentenced to life imprisonment without parole

for the murder conviction. The trial court also imposed consecutive

sentences of fifty years for conspiracy to commit murder, fifty years for

criminal deviate conduct, and twenty years for criminal confinement.

In this direct appeal, Long alleges various errors, which we have

rearranged as follows: (1) presence of a witness in the courtroom during

trial; (2) insufficient evidence for conspiracy to commit murder; (3)

insufficient evidence for criminal deviate conduct as a class A felony; (4)

insufficient evidence for criminal confinement as a class B felony; (5)

criminal deviate conduct sentence as a violation of federal Double Jeopardy

Clause; (6) criminal confinement conviction as a violation of Indiana

Double Jeopardy Clause; and (7) use of an improper aggravating circumstance

in sentencing for life without parole.

1. Presence of Testifying FBI Agent in Courtroom

Long contends that the trial court erroneously allowed FBI Agent

Dunn, a testifying witness, to remain in the courtroom throughout the

trial. The defense requested, and the trial court ordered, a separation of

witnesses pursuant to Indiana Evidence Rule 615, which provides:

At the request of a party, the court shall order witnesses excluded so

that they cannot hear the testimony of or discuss testimony with other

witnesses, and it may make the order on its own motion. This rule

does not authorize the exclusion of (1) a party who is a natural

person, or (2) an officer or employee of a party that is not a natural

person designated as its representative by its attorney, or (3) a

person whose presence is shown by a party to be essential to the

presentation of the party's cause.

The trial court permitted the prosecutor to retain at counsel table both

Indiana State Police Trooper Daniel Conley as an officer of the State

(under clause (2)) and FBI Agent Gary Dunn as a person essential to the

presentation of the State's case (pursuant to clause (3)). Long challenges

the presence of Agent Dunn but not of Trooper Conley. Record at 1376-80.

The basic premise of Rule 615 is that, upon request of any party,

witnesses should be insulated from the testimony of other witnesses. To

serve this general objective, the rule's exceptions should be narrowly

construed and cautiously granted. A party seeking to exempt a witness from

exclusion as "essential to the presentation of the party's cause" under

clause (3) must convince the trial court that the "witness has such

specialized expertise or intimate knowledge of the facts of the case that a

party's attorney would not effectively function without the presence and

aid of the witness." Hernandez v. State, 716 N.E.2d 948, 950 (Ind.

1999)(citations omitted). An exclusion under clause (3) would thus be

inappropriate in cases where a person excluded under clauses (1) or (2) can

provide the expertise and knowledge adequate to assist counsel. Likewise,

permitting a party to retain more than one witness in the courtroom under

clause (3) to assist during trial would be especially questionable.[6] The

determination of whether a witness qualifies for the exemption found in

clause (3) is within the trial court's discretion and is subject to review

for an abuse of that discretion. Fourthman v. State, 658 N.E.2d 88, 90

(Ind. Ct. App. 1995).

To support his contention that the trial court abused its discretion,

Long, while acknowledging various reasons the prosecutor gave the trial

court, argues that Agent Dunn's presence "may have been a convenience, but

fell far short of being 'essential.'" Br. of Defendant-Appellant at 17.

In requesting Agent Dunn's exception as "essential" under Rule 615, the

State explained that Trooper Conley and Agent Dunn had divided many of the

responsibilities of the investigation, often working separately,

particularly when interviewing witnesses in Ohio and Illinois. As noted by

Long, "forty-five non-police, non-expert witnesses testified for the

State," thirteen search warrants were issued, and sixty-six exhibits were

offered into evidence by the State. Br. of Defendant-Appellant at 16. In

preparation for this seven-day trial, the police conducted over 500 witness

interviews and executed thirty searches during three to four years of

police work covering leads in Ohio, Illinois, and Indiana.

Notwithstanding the important purpose of Rule 615 to minimize

prospective witnesses from exposure to the testimony of other witnesses and

our preference that the rule's exceptions be narrowly construed and

cautiously granted, we decline to find that the trial court abused its

discretion in finding Agent Dunn within the Rule 615 exception for persons

essential to the presentation of the prosecutor's case.

2. Conspiracy to Commit Murder

Long contends that there was insufficient evidence to convict him of

conspiracy to commit murder. Specifically, he contends that none of the

alleged overt acts were committed in the course of the conspiracy.

The State charged that Long, with the intent to commit murder, did

agree with others to commit the murder and that Long or one of his

accomplices "did perform one or more of the following overt acts in

furtherance of the agreement, to-wit: abduct, confine, rape or dispose of

the body of Pamela Foddrill." Record at 376. The statute defining the

crime of conspiracy requires the State to "allege and prove that either the

person or the person with whom he agreed performed an overt act in

furtherance of the agreement." Ind.Code § 35-41-5-2(b).

Long argues that the only evidence relating to an agreement to kill

specified that the agreement occurred on the day of the murder, after the

confinement and rape were accomplished, and about twelve days after the

abduction. From this, he contends that the abduction, confinement, and

rape were not "in furtherance of a conspiracy that did not yet exist." Br.

of Defendant-Appellant at 21. He further asserts that the remaining

charged overt act, disposal of the body, did not occur "during the life of

the conspiracy" and therefore does not satisfy the statutory definition of

an overt act in furtherance of the agreement. Br. of Defendant-Appellant

at 23.

Because the overt acts were charged in the disjunctive, only one

overt act need be proven to establish the crime of conspiracy. The

evidence indicates that, after the murder, Long and his accomplices

disposed of the victim's body by driving to a secluded wooded area and

dumping it. To support his contention that the post-murder disposal is not

a valid overt act to establish conspiracy, Long quotes language from

Grunewald v. United States, 353 U.S. 391, 401-02, 77 S.Ct. 963, 972, 1

L.Ed.2d 931, 942 (1957): "acts of covering up, even though done in the

context of a mutually understood need for secrecy, cannot themselves

constitute proof that concealment of the crime after its commission was

part of the initial agreement among the conspirators." In contrast to the

Indiana conspiracy statute's requirement of an overt act in furtherance of

the agreement, the Grunewald Court was interpreting a federal conspiracy

statute that specifies that "one or more of such persons do any act to

effect the object of the conspiracy." Id. at 393 n.1, 77 S.Ct. at 968 n.1,

1 L.Ed.2d at 937 n.1 (emphasis added). The Grunewald reasoning thus does

not apply to the Indiana statute. While disposing of a victim's body may

not have satisfied the federal statute's requirements, it is an act "in

furtherance" of the agreement to murder and thus may constitute a valid

overt act under the Indiana conspiracy statute.

Finding that one of the charged overt acts, disposal of the victim's

body, was proven by the evidence, we reject Long's claim of insufficient

evidence to prove conspiracy.

3. Criminal Deviate Conduct as a Class A Felony

Long contends that his conviction for criminal deviate conduct should

be reduced from a class A felony to a class B felony because of the absence

of evidence that he used or threatened to use deadly force.

The relevant portions of the statute defining the offense of criminal

deviate conduct provide: "A person who knowingly or intentionally causes

another person to perform or submit to deviate sexual conduct when the

other person is compelled by force or imminent threat of force . . .

commits criminal deviate conduct, a Class B felony. An offense . . . is a

Class A felony if it is committed by using or threatening the use of deadly

force . . . ." Ind.Code § 35-42-4-2 (emphasis added). The State alleged

that Long committed criminal deviate conduct by "using or threatening the

use of deadly force, to-wit: by holding her down and threatening to kill

her." Record at 378.

Long does not dispute that the evidence was sufficient to establish

that the victim was compelled by force or imminent threat of force to

perform or submit to deviate sexual conduct, thus supporting the conviction

as a class B felony. He argues, rather, that there was no evidence that

the offense of criminal deviate conduct was committed by using or

threatening to use deadly force, as required for conviction as a class A

felony. To justify the enhanced penal consequences that result from the

class A felony designation, the force used must be of such a nature that it

meets the statutory definition of "deadly force"--that which "creates a

substantial risk of serious bodily injury." Ind.Code § 35-41-1-7. While

the victim's submission was clearly compelled by force, thus justifying

class B felony treatment, we find no evidence from which it can be

reasonably inferred that the force used for the deviate conduct was

"deadly." We conclude that there was insufficient evidence to establish

that Long employed deadly force when he compelled the victim to perform or

submit to deviate sexual conduct and therefore grant this request to modify

his conviction for criminal deviate conduct from a class A felony to a

class B felony.[7]

4. Criminal Confinement as a Class B Felony

Long also contends that his conviction for criminal confinement

should be reduced from a class B felony to a class D felony. The State

charged that the defendant committed criminal confinement by knowingly or

intentionally removing the victim by force from one place to another, which

resulted in serious bodily injury, namely fractured bones. The criminal

confinement statute provides:

A person who knowingly or intentionally:

(1) confines another person without the other person's consent;

or

(2) removes another person, by fraud, enticement, force, or

threat of force, from one (1) place to another;

commits criminal confinement, a Class D felony. However, the offense

is a Class C felony if the other person is less than fourteen (14)

years of age and is not the person's child, and a Class B felony if it

is committed while armed with a deadly weapon or results in serious

bodily injury to another person.

Ind.Code § 35-42-3-3.

The defendant argues that, while there was evidence that the victim

suffered fractured bones, there was no evidence that these injuries

resulted from her being forcefully removed from one place to another and

that, for this reason, there was insufficient evidence to prove the serious

bodily injury element of criminal confinement as a class B felony. The

State argues that "the jury could have inferred that Foddrill's injuries to

her nose and eye socket were caused during her movement from one place to

another . . . .," Br. of Appellee at 13, but does not identify any

evidence tending to prove this assertion. We find that the evidence was

insufficient to establish that the conduct constituting the charged offense

of criminal confinement resulted in serious bodily injury, as required to

constitute a class B felony.

We grant the defendant's request to modify his sentence for criminal

confinement. Because the facts of this case do not qualify for class B

felony treatment, we find that the criminal confinement conviction should

be imposed as a class D felony. Rather than remand this matter to the

trial court for the purpose of determining the appropriate sentence for

this count as a class D felony, we will make the determination, "mindful of

the penal consequences that the trial court found appropriate." Richardson

v. State, 717 N.E.2d 32, 54 (Ind. 1999). Finding four aggravating

circumstances proven and that they outweighed three mitigating

circumstances found, the trial court imposed the maximum enhancement of the

offense as a class B felony. We likewise impose the maximum enhancement of

the offense, but as a class D felony, sentencing the defendant to three

years on this count, to run consecutively with his other sentences in this

case.

5. Criminal Deviate Conduct Sentence and Double Jeopardy

The defendant contends that his sentence for criminal deviate conduct

violates the Double Jeopardy Clause of the United States Constitution

because he was also sentenced to life without parole based in part on the

finding that he intentionally killed Pamela Foddrill while committing or

attempting to commit criminal deviate conduct. The State does not dispute

this claim and suggests that the convictions for murder and criminal

deviate conduct be merged.[8]

Accordingly, although the defendant remains convicted for both

offenses, his sentence for criminal deviate conduct is vacated by reason of

the existence of the greater life without parole sentence for the murder.

6. Indiana Double Jeopardy

The defendant contends that the Double Jeopardy Clause of the Indiana

Constitution[9] requires that we vacate his conviction for criminal

confinement.[10] He argues that there is a reasonable possibility that the

jury used the evidence of the victim's abduction in establishing both the

offense of conspiracy to commit murder and that of criminal confinement.

To establish that two challenged offenses constitute the same offense

under the actual evidence test and thus violate the Indiana Double Jeopardy

Clause, the defendant must demonstrate a reasonable possibility that the

evidentiary facts used by the fact-finder to establish the essential

elements of one offense may also have been used to establish the essential

elements of a second challenged offense. Richardson, 717 N.E.2d at 53.

The essential elements of the offense of conspiracy to commit murder

are: (1) the defendant (2) agreed with one or more other persons to commit

the crime of murder (3) with the intent to commit murder and (4) the

defendant or one of the persons to the agreement performed an overt act in

furtherance of the agreement. Ind.Code § 35-41-5-2. The essential

elements of the charged offense of criminal confinement in this case are:

(1) the defendant (2) knowingly or intentionally (3) removed the victim by

force from one place to another. Ind.Code § 35-42-3-3.

The charging information identified four alternative overt acts:

abduction, confinement, rape, and disposal of the body. He argues that

there is a "reasonable possibility that the evidentiary facts used by the

jury to establish the overt acts of 'abduction' or 'confinement' for

Conspiracy to Commit Murder may have also been used to establish the

essential elements of removal by force for the Criminal Confinement." Br.

of Defendant-Appellant at 28. If the jury relied only on the evidence

showing the defendant's knowing or intentional removal of the victim from

one place to another to establish both the confinement charge and the

conspiracy charge based on abduction or confinement as the overt act, the

convictions for both conspiracy and criminal confinement would have been

based on the same evidence and thus would violate the Indiana Double

Jeopardy Clause. The issue before us, however, is not merely whether it is

possible that this occurred, but rather whether the likelihood of this

occurrence is sufficiently substantial for us to conclude that it is

reasonably possible that this occurred.

In Griffin v. State, 717 N.E.2d 73 (Ind. 1999), we were confronted

with a similar issue. The jury was instructed that the charge of

conspiracy to commit robbery could be established by various alleged overt

acts, one of which was the completed robbery itself. Noting the extensive

evidence of the other alleged overt acts, we rejected the claim of double

jeopardy and emphasized: "To establish that two offenses are the same

offense under the actual evidence test, the possibility must be reasonable,

not speculative or remote." Id. at 89.

In the present case, the evidence indicated that Long and others

forcibly abducted the victim, a mentally retarded woman, and took her to a

residential attic where they confined her for several days, possibly more

than a week, during which they compelled her to engage in multiple acts of

oral, anal, and vaginal intercourse. After killing her, her assailants

moved her body to a nearby shed, where it remained for several days before

they removed it to a rural wooded site in Illinois.

In argument to the jury, the State did not restrict itself to the

abduction as the overt act for conspiracy, although these elements received

emphasis. The prosecutor argued "there was at least one or more overt act,

at least one act taken toward the commission of that crime and we have

alleged abduct, confine, rape or dispose. Only one of those has to be

proven. We believe we've proved all four." Record at 3107.

The trial court's final Instruction No. 8, in part, advised the jury

that the State "must allege and prove that either the person or the person

with whom he agreed performed an overt act in furtherance of the

agreement." Id. at 701, 3140. The court's Instruction No. 9, enumerating

the elements of the offense of conspiracy to commit murder as charged in

this case, included its advisement that, to convict Long of conspiracy to

commit murder, the State must have proved that Long agreed with another

person to commit murder, that he did so with the intent to commit murder,

and that Long or one of the other persons to the agreement performed one or

more overt acts in furtherance of the agreement by either abducting,

confining, raping, or disposing of the body of Pamela Foddrill. Id. at

703, 3140-41. As to the charge of criminal confinement, the court's

Instruction No. 7 authorized conviction upon finding proof beyond a

reasonable doubt that Long knowingly or intentionally removed the victim by

force from one place to another. Id. at 700, 3139.

In view of the extensive evidence of the protracted criminal episode

and the court's instructions which clearly authorized any one of several

bases for finding the overt act element, we find no sufficiently

substantial likelihood that the jury relied on the evidence of the

abduction by removal to establish the overt act element of the conspiracy

charge. The possibility is remote and speculative and therefore not

reasonable. Because there is no reasonable possibility that the jury used

the same evidentiary facts to establish the essential elements of both

criminal confinement and conspiracy to commit murder, we reject Long's

claim that his convictions on these counts violated the Indiana Double

Jeopardy Clause.

7. "Torture" as an Aggravating Circumstance

Long contends that his sentence of life imprisonment without parole

was based in part upon an aggravating circumstance that did not exist at

the time the crime was committed. The State concedes this point.

The State charged, and the trial court found proven beyond a

reasonable doubt the existence of three aggravating circumstances: (1) Long

was on probation for theft, a felony;[11] (2) Long intentionally killed the

victim while committing or attempting to commit criminal deviate

conduct;[12] and (3) Long tortured the victim.[13] The criminal episode

culminating in the murder of Pamela Fodrill occurred between August 18,

1995 and December 2, 1995. It was not until 1996 that the Indiana General

Assembly added "that the defendant burned, mutilated, or tortured the

victim while the victim was alive" to the list of enumerated statutory

aggravating circumstances. P.L. 228-1996. The legislation specifically

declares that this aggravating circumstance may only be relied upon for

crimes committed after June 30, 1996. Id. Capital sentences and sentences

of life imprisonment without parole are governed by the same statute,

imposed under the same standards, and are subject to the same requirements.

Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998).

Upon finding a substantial irregularity in a trial court decision to

impose the death penalty or life without parole, we have various options.

Among these are: 1) remand to the trial court for a clarification or new

sentencing determination, 2) affirm the sentence based upon a finding of

harmless error, or 3) independently reweigh the proper aggravating and

mitigating circumstances at the appellate level. Lambert v. State, 675

N.E.2d 1060, 1065 (Ind. 1996); Bivins v. State, 642 N.E.2d 928, 957 (Ind.

1994). This Court has the constitutional authority to review and revise

criminal sentences. Ind. Const. art. 7, § 4. As in Bivins, we find the

sentence imposed by the trial court to be appropriate by reason of both the

harmless error doctrine and independent appellate reweighing.

In addition to the three aggravating circumstances, the trial court

found three mitigating circumstances: (1) Long is functionally illiterate

and has a limited education, having dropped out of school in the eighth

grade; (2) Long is mentally deficient, having a limited intellectual

functioning, but is not mentally retarded; and (3) Long has not had

significant family support throughout his life. Record at 866. Long does

not contend that the evidence established other mitigating circumstances

that should also be considered.

In its sentencing order, the trial court explained the following

specific facts and reasons that supported the aggravating circumstance that

Long intentionally killed the victim while committing or attempting to

commit criminal deviate conduct:

The evidence is replete with violent sexual acts, including repeated

acts of deviate conduct, committed upon the unwilling and resisting

Pamela. When it was obvious to the perpetrators that the victim could

withstand no more she was murdered. The repeated striking of blows to

her head by a baseball bat and the repeated stabbings with a knife

leave no doubt that the death was intended. And even after her death

the body of the victim was used in an effort to satisfy sexual lust.

Record at 864. The trial court further explained:

Not only did he [Long] act in total disregard for human life but also

it is clear that he intended to kill. He intentionally participated

in the planning and the commission of the kidnapping, the confinement,

the repeated rapes and acts of sexual abuse, the inhumane, degrading

torture, and the brutal death. He was actively involved and

physically present during the entire sequence of criminal activity

that culminated in the intentional killing of Pamela Foddrill, and the

concealment of her physical remains.

Id. We are convinced that, absent consideration of the torture aggravator

in the sentencing decision, the trial court would nevertheless have imposed

the sentence of life imprisonment without parole.

Furthermore, upon independent appellate reweighing of the aggravating

and mitigating circumstances found by the trial court, but excluding the

torture aggravator, and with due regard for the recommendation of the jury,

we find that the mitigating circumstances are substantially outweighed by

the aggravating circumstances. Long's limited education, his limited

intellectual functioning, and his lack of significant family support

throughout his life, are mitigating circumstances that appeal to our

compassion. In our judgment, however, they do not supply sufficient

explanation for Long's conduct or otherwise offset the gravity of the

aggravating circumstances, particularly Long's conduct in intentionally

killing while committing or attempting to commit criminal deviate conduct.

Finding that excluding the "torture" aggravator would not have

altered the trial court's sentencing decision, and finding further that the

two remaining aggravating circumstances outweigh the mitigating

circumstances such that the appropriate penalty for this offense and

offender is life imprisonment without parole, we affirm the judgment of the

trial court.

Conclusion

We affirm Long's conviction for murder and sentence of life

imprisonment without parole, and his conviction for conspiracy to commit

murder. As to the conviction for criminal confinement, we modify the

judgment from a class B felony to a class D felony and impose a consecutive

sentence of three years. As to the criminal deviate conduct conviction, we

modify the judgment from a class A felony to a class B felony and vacate

the sentence thereon.

SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur. Sullivan, J.,

concurs except as to footnote 6.

-----------------------

[1] Ind.Code § 35-42-1-1.

[2] Ind.Code § 35-41-5-2; Ind.Code § 35-42-1-1.

[3] Ind.Code § 35-42-4-2(b)(1).

[4] Ind.Code § 35-42-3-3(2).

[5] Today, we also decide the cases of Long's companions, John Redman

and Jerry Russell, who were each separately tried for their roles in these

crimes. Redman v. State, --- N.E.2d --- (Ind. 2001); Russell v. State, ---

N.E.2d --- (Ind. 2001).

[6] In Vinson v. State, 735 N.E.2d 828, 831 (Ind. Ct. App. 2000), the

Court of Appeals approved the retention of two police officer witnesses at

counsel's table during the trial notwithstanding a separation of witnesses

order. Construing the Rule 615 exceptions generously instead of narrowly,

the court stated that "if a witness falls within one of the exemptions

enumerated under Indiana Evidence Rule 615, that witness shall be allowed

to remain in the courtroom." Id. Although we declined to grant transfer

in Vinson, we disapprove of its treatment of the Rule 615 issue.

[7] We do not determine the sentence to be imposed because of our

resolution of the defendant's double jeopardy claim in part 5, below.

[8] The State does not argue for any distinction on the grounds that

the defendant was convicted for one count of criminal deviate conduct but

that the trial court, in imposing the life without parole sentence on the

murder count, found that the defendant committed "repeated acts of deviate

conduct." Record at 864.

[9] Ind. Const. art. 1, § 14.

[10] In the alternative, he argues that the Indiana Double Jeopardy

Clause requires that his criminal confinement conviction be reduced from a

class B felony to a class D felony. We do not separately address this

claim because we have already determined that Long's conviction for

criminal confinement must be modified from a class B to a class D felony.

[11] Ind.Code § 35-50-2-9(b)(9)(C).

[12] Ind.Code § 35-50-2-9(b)(1)(D).

[13] Ind.Code Ann. § 35-50-2-9(b)(11) (Michie 1998).