ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN KAREN M. FREEMAN-WILSON
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
PRISCILLA J. FOSSUM
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MARK P. MURRAY, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 02S00-0007-CR-449
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9905-CF-258
ON DIRECT APPEAL
January 24, 2002
RUCKER, Justice
A jury found Mark Murray guilty of felony murder, burglary as a Class
A felony, and battery as a Class C felony. In this appeal, he challenges
the felony murder conviction contending the evidence is not sufficient to
support the conviction and that the conviction violates the double jeopardy
provision of the Indiana Constitution. We disagree with both contentions
and therefore affirm.
Facts
The facts most favorable to the verdict show that Murray decided to
confront Anthony Watson about his verbal abuse of a mutual female friend.
In the evening hours of May 17, 1999, accompanied by two associates:
Thomas Thompson and David Jackson, Murray proceeded to Watson’s house.
Thompson drove his van and Jackson brought along an aluminum baseball bat.
After arriving at the house, Murray and Jackson exited the van while
Thompson stayed behind. Murray kicked in the front door, and he and
Jackson entered. Murray then began yelling at Watson who was apparently
asleep on the living room couch and did not respond. What occurred next is
a matter of dispute. Jackson testified at trial that while wielding the
baseball bat, Murray struck Watson in the head. Murray testified in his
own defense, denied handling the bat, and said he did not see anyone strike
Watson with it. According to Murray, he merely hit Watson a few times in
the head with his fist. In any event, the baseball bat was discarded and
later recovered from a dumpster. DNA analysis revealed that a bloodstain
found on the bat was consistent with Watson’s blood type. An autopsy
revealed that Watson died as a result of blunt force injury to the head.
The State charged Murray with murder, felony murder, burglary as a
Class A felony, and battery as a Class C felony. A jury acquitted Murray
of murder but returned guilty verdicts on the remaining charges. The trial
court vacated the burglary and battery convictions and sentenced Murray to
sixty years imprisonment for felony murder. This appeal ensued.
Additional facts are set forth below where relevant.
Discussion
I.
Murray challenges the sufficiency of the evidence arguing his
conviction is based on the incredibly dubious testimony of one witness:
David Jackson. He also contends the State failed to prove that he intended
to commit a felony when he entered Watson’s home. When reviewing a claim
of insufficient evidence, we consider only evidence that supports the
verdict and all reasonable inferences drawn therefrom. Warren v. State,
725 N.E.2d 828, 834 (Ind. 2000). We neither reweigh the evidence nor do we
judge the credibility of witnesses. Id. We will uphold a conviction if
there is substantial evidence of probative value from which a jury could
have found the defendant guilty beyond a reasonable doubt. Id.
A.
Under the incredible dubiosity rule, a court will impinge upon the
jury’s responsibility to judge the credibility of witnesses only when
confronted with inherently improbable testimony or coerced, equivocal,
wholly uncorroborated testimony of incredible dubiosity. Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 251 N.E.2d
658, 661-62 (1969). “Application of this rule is limited to cases, such as
Gaddis, where a sole witness presents inherently contradictory testimony
which is equivocal or the result of coercion and there is a complete lack
of circumstantial evidence of the appellant’s guilt.” Tillman, 642 N.E.2d
at 223.
In this case, Murray concedes he entered Watson’s home by kicking in
the door. He also concedes that the aluminum baseball bat introduced into
evidence caused Watson’s death. However, Murray complains there was no
“forensic evidence” to support the contention that he ever handled the bat
on the evening of May 17, 1999, and that Jackson’s testimony placing the
bat in Murray’s hand was “purchased,” “self-serving,” and “conflicting.”
Br. of Appellant at 14. In support of these latter points, Murray directs
our attention to: Jackson’s plea agreement given in exchange for his trial
testimony; Jackson’s pre-trial statement to investigating officers, later
recanted, in which Jackson denied responsibility for the presence of the
bat; and the testimony of witnesses which Murray contends support his own
trial testimony that he never had possession of the baseball bat.
Although Jackson’s trial testimony was inconsistent in some respects
with his pre-trial statement, it was not equivocal, and Jackson did not
contradict himself on the witness stand. The fact that a witness gives
trial testimony that contradicts earlier pre-trial statements does not
necessarily render the trial testimony incredibly dubious. Davenport v.
State, 689 N.E.2d 1226, 1230 (Ind. 1997). As for the alleged corroborating
witnesses, at most their testimony was at odds with Jackson’s testimony.
However, that does mean that Jackson’s testimony was incredibly dubious.
See Berry v. State, 703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the
incredible dubiosity rule where there were inconsistencies in the testimony
among witnesses, but no one witness contradicted himself). Concerning
Jackson’s plea agreement, Murray thoroughly cross-examined Jackson on its
terms and conditions. That Jackson’s testimony was different from Murray’s
testimony was a matter for the jury’s determination. “It is for the trier
of fact to resolve conflicts in the evidence and to decide which witnesses
to believe or disbelieve.” Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind.
2001). In sum, Murray has not shown that the incredible dubiosity rule is
applicable in this case.
B.
The information charging Murray with felony murder alleged burglary
as the underlying felony. In turn, battery as a Class C felony apparently
was alleged as the offense underlying the burglary offense.[1] In relevant
part, the burglary statute provides: “A person who breaks and enters the
building or structure of another person, with intent to commit a felony in
it, commits burglary . . . . ” I.C. § 35-43-2-1. Murray claims the
evidence was not sufficient to sustain the felony murder conviction because
the State failed to show that he intended to commit a felony when he broke
and entered Watson’s house. Rather, according to Murray, the evidence
supports the view that he intended only to commit battery as a Class A
misdemeanor and not battery as a Class C felony. In support, Murray points
to his own testimony that his intent on entering the house was to “fight
[Watson],” R. at 431, and other evidence that he says demonstrates that
“they were going to have a talking to [Watson],” R. at 253. Regardless of
Murray’s alleged subjective intent, the record shows that once inside the
house, Murray struck a fatal blow to Watson’s head with a baseball bat.
The jury was not bound to accept Murray’s contention, and although the fact
of breaking and entering is not itself sufficient to prove entry with
intent to commit a felony, such intent may be inferred from the defendant’s
subsequent conduct once inside the premises. Eveler v. State, 524 N.E.2d
9, 11 (Ind. 1988) (rejecting defendant’s claim the evidence was not
sufficient to prove that he broke and entered the victim’s apartment with
the intent to commit the felonies alleged). We conclude the evidence in
this case was sufficient to sustain Murray’s conviction for felony murder.
II.
Murray also claims an Indiana double jeopardy violation based on his
convictions for burglary and battery. Citing Richardson v. State, 717
N.E.2d 32 (Ind. 1999), he argues there was a reasonable possibility that
the evidentiary facts used by the jury to establish the essential elements
for burglary and battery were also used by the jury to establish the
essential elements for felony murder. See id. at 53. Murray acknowledges
that “the trial court was correct in deciding that convictions for all
three of the offenses could not be allowed to stand . . . .” Br. of
Appellant at 20. However, without cogent argument or citation to
authority, Murray asserts the trial court should have vacated the felony
murder conviction instead of the battery conviction. Murray is mistaken.
Even before Richardson, this Court held “when a prosecutor obtains
convictions against a defendant for both felony murder and the underlying
felony, the defendant may only be sentenced for the greater charge.”
Hobson v. State, 675 N.E.2d 1090, 1094 (Ind. 1996) (citing Zenthofer v.
State, 613 N.E.2d 31, 35 (Ind. 1993)). An appropriate remedy to prevent a
double jeopardy violation is to withhold judgment on the lesser-included
offense and to sentence the defendant for the greater felony. See id.
This is essentially the remedy the trial court used here. Murray’s claim
on this issue fails.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] In pertinent part the charging information reads:
On or about the 17th day of May, 1999, in the County of Allen and in
the State of Indiana, said defendant, Mark P. Murray, did kill another
human being, to wit: Anthony Wayne Watson, while committing or
attempting to commit Burglary, to wit: by striking at and/or against
the head of Anthony Wayne Watson with a baseball bat, causing him to
die, being contrary to the form of the statute in such case made and
provided.
R. at 12. The battery statute provides in relevant part: “A person who
knowingly or intentionally touches another person in a rude, insolent, or
angry manner commits battery, a Class B misdemeanor. However, the offense
is: . . . a Class C felony if it results in serious bodily injury to any
other person or if it is committed by means of a deadly weapon[.]” Ind.
Code § 35-42-2-1(a)(3). Although the charging information here is not a
model of clarity, Murray makes no claim that it is defective. Nor does
Murray contend that he was misled by the information or that his defense
was in any way affected by the wording of the information. See Wisehart v.
State, 693 N.E.2d 23, 63 (Ind. 1998) (rejecting defendant’s claim that the
charging information was defective despite the fact that the burglary
supporting the felony murder count did not allege an intent to commit a
specific felony).