ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John Pinnow Karen M. Freeman-Wilson
Special Assistant to the State Public Defender Attorney General
of Indiana
Greenwood, Indiana
Christopher L. LaFuse
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JERRY E. RUSSELL, SR., )
Defendant-Appellant, )
)
v. ) 28S00-9912-CR-692
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable David Holt, Judge
Cause No. 28D01-9810-CF-624
________________________________________________
On Direct Appeal
March 9, 2001
DICKSON, Justice
The defendant, Jerry E. Russell, 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] Russell 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, Russell raises five issues which we reorder as
follows: (1) that his wife was allowed to testify over his assertion of
spousal privilege; (2) that there was insufficient evidence to convict him
of confinement as a class B felony; (3) that there was insufficient
evidence to convict him of deviate sexual conduct as a class A felony; (4)
that his confinement conviction in light of his murder conviction violates
the Indiana double jeopardy clause; and (5) that the trial court relied
upon an improper aggravator to sentence him to life without parole.
1. Spousal Privilege
Russell claims that the trial court erred in allowing his former wife
to testify regarding statements he made to her during their marriage. The
State argues that Russell's confessions to unspeakable crimes should not be
protected by the law of privileged marital communication. Br. of Appellee
at 9. At a hearing during trial out of the presence of the jury, the trial
court ruled that some of the communications would be excluded from evidence
and others would be admitted.
Russell's former wife was permitted to tell the jury about statements
he made to her before his arrest in which he admitted participation with
Long and Redman in the sexual assaults on Pamela Foddrill. When Russell
made these disclosures to his wife, he threatened that he would kill her if
she revealed them. She also testified regarding the content of Russell's
telephone calls to her after his arrest from jail in which he instructed
her to lie to police about his prior statements and to provide police with
false information. These telephone communications were not accompanied by
any threat.
Indiana law has long protected the privacy of marital communications.
This Court recognized over one hundred years ago that "[w]here the
criminal, in seeking advice and consolation, lays open his heart to his
wife, the law regards the sacredness of their relation, and will not permit
her to make known what he communicated, even as it will not ask him to
disclose it himself." Beyerline v. State, 147 Ind. 125, 130, 45 N.E. 772,
774 (Ind. 1896). "Strong public policy grounds favor promotion and
preservation of marital confidences even if truthful and invaluable
testimony in certain cases is excluded." Rode v. State, 524 N.E.2d 797,
799 (Ind. Ct. App. 1988)(citing Shepard v. State, 257 Ind. 229, 277 N.E.2d
165, 167 (1971); Bergner v. State, 397 N.E.2d 1012, 1019 (Ind. Ct. App.
1979). Subsequent termination of the marriage does not extinguish the
privilege. Shepard, 257 Ind. at 234, 277 N.E.2d at 168; Bergner, 397
N.E.2d at 1019; Perry v. Randall, 83 Ind. 143 (1882). We have held that
where a spouse's testimony concerns disclosures by the other spouse not
made in reliance upon the marital relationship but because the disclosing
spouse was in need of his mate's assistance and attempted to coerce by
force and fear, the testimony is not within the spousal privilege and is
admissible. Carlyle v. State, 428 N.E.2d 10, 12 (Ind. 1981); see Rode, 524
N.E.2d at 200. Communications between spouses intended to be transmitted
to a third person have also been found to be not privileged. Perkins v.
State, 483 N.E.2d 1379, 1383 (Ind. 1985). In addition, we have held that a
wife may disclose a threat made to her by her husband. Rubalcada v. State,
731 N.E.2d 1015, 1022 (Ind. 2000); Carlyle, 428 N.E.2d at 12.
Despite Russell's threats during his pre-arrest disclosures to his
wife, the content otherwise communicated clearly falls within the marital
privilege. The trial court erred in permitting Russell's former wife to
testify regarding these statements. As to the post-arrest telephone calls,
however, the statements were not disclosures made within the confines of
the marital relationship, but rather were an attempt by Russell to persuade
his wife to communicate to a third party. See Perkins, 483 N.E.2d at 1383;
Carlyle, 428 N.E.2d at 12. We decline to find error in permitting this
testimony.
With regard to the erroneously admitted statements, even erroneously
admitted evidence may not require reversal if the error is found to be
harmless. Ford v. State, 704 N.E.2d 457, 460 (Ind. 1998). A harmful error
is one that causes prejudice to the appellant's substantial rights. Id.
(citing Martin v. State, 622 N.E.2d 185, 188 (Ind. 1993)); see Ind.Evidence
Rule 103(a).
Notwithstanding the significant inculpatory nature of the erroneously
admitted testimony, its admission was harmless given the very substantial
evidence of guilt properly admitted. Russell admitted in the presence of
his wife and another that he had engaged in sex with Foddrill and that they
had killed her to keep her quiet. Record at 2619. While incarcerated,
Russell admitted to one inmate that he was part of the abduction of
Foddrill and engaged in anal and vaginal sex with her, id. at 2898-99, and
to another inmate admitted that he was there when Foddrill was killed and
that he took pictures of Hubbell and Foddrill engaged in sexual acts, id.
at 2578-79. Wanda Hubbell, an eyewitness to most of the episode, testified
to Russell's major role in the sexual attacks, murder, and disposal of the
body. We conclude that the overwhelming evidence of guilt renders harmless
the erroneously admitted testimony, and that the error did not affect
Russell's substantial rights.
2. Criminal Confinement as a Class B Felony
Russell contends 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. This
same claim is presented by Russell's co-perpetrator, Roger Long. As to
this issue, substantially the same evidence was presented at both Russell's
and Long's trials. For the reasons discussed in our opinion in Long v.
State, --- N.E.2d --- (Ind. 2001), we conclude that there was insufficient
evidence to permit a jury to find beyond a reasonable doubt that the
victim's injuries resulted from the charged criminal offense of criminal
confinement by removing the victim from one place to another, and we vacate
the conviction as a class B felony and impose it as a class D felony.
Rather than remand this matter to the trial court for the purpose of
determining the appropriate sentence for criminal confinement 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 that the four aggravating circumstances
outweighed five mitigating circumstances, the trial court imposed the
maximum enhancement of the offense as a class B felony. We likewise impose
the maximum enhancement of the offense as a class D felony, sentencing
Russell to three years on this count, to run consecutively to his other
sentences in this case.
3. Criminal Deviate Conduct as a Class A Felony
Russell contends that there was insufficient evidence of deadly force
to prove criminal deviate conduct as a class A felony. He requests that
his conviction on this count be reduced to a class B felony. As in the
previous issue, this same claim is also presented by Russell's co-
perpetrator, Roger Long. As to this issue, substantially the same evidence
was presented at both Russell's and Long's trials.
For the reasons discussed in our opinion in Long v. State, --- N.E.2d
--- (Ind. 2001), we conclude that there was insufficient evidence to
establish that Russell employed deadly force when he compelled the victim
to perform or submit to deviate sexual conduct, and therefore grant his
request to modify his conviction for criminal deviate conduct from a class
A felony to a class B felony. As in the conviction on criminal
confinement, we find no need to remand for resentencing. We impose the
maximum enhancement resulting in a sentence of twenty years for this count,
to run consecutively to his other sentences.
4. Indiana Double Jeopardy
Russell contends that the Double Jeopardy Clause of the Indiana
Constitution[6] requires that we vacate his conviction for criminal
confinement.[7] He argues that there is a "reasonable possibility that the
evidence used to establish the overt act of abducting Foddrill may also
have been used to establish the forceful removal that was alleged in the
confinement charge." Br. of Defendant-Appellant at 46.
This is the same claim presented by Russell's co-perpetrator, John
Redman. For the reasons explained today in Redman v. State, --- N.E.2d ---
(Ind. 2001), to prevail in his claim that the two convictions violate the
Indiana Double Jeopardy Clause under the actual evidence test, it is not
sufficient merely to show that the same evidence may have been used to
prove a single element of two criminal offenses. Rather, he must
demonstrate a reasonable possibility that the same evidentiary facts were
used to prove the body of essential elements that comprise both of the
offenses. See Richardson, 717 N.E.2d at 53. Furthermore, Russell must
establish not merely that it is possible that the jury used the same
evidentiary facts to establish the essential elements of both offenses, but
rather that the likelihood of this occurrence is sufficiently substantial
for us to conclude that it is reasonably possible that this occurred.
Redman, --- N.E.2d at ---; Richardson, 717 N.E.2d at 53.
As charged against Russell, the essential elements of the offense of
criminal confinement 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. As to conspiracy to commit murder, Russell was charged with
agreeing with one or more persons to commit the crime of murder, with the
intent to commit murder, and that Russell or his accomplices performed one
of the following overt acts in furtherance of the agreement: abduction,
confinement, rape, storage of the body, and disposal of the body. Record
at 172-73. The evidence indicated that Russell, Long, and Redman
forcibly abducted Pamela Foddrill, 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, Russell,
Long, and Redman left her body in the attic for several days, then moved it
to a nearby shed, and then 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 that Russell and his accomplices "abducted
her, they confined her, they raped her, they disposed of the body. They're
plead in the alternative. They're all true, but you need only find that one
is true to convict." Record at 3118.
The trial court's final Instruction No. 5, 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 666, 3160. The court's Instruction No. 6, enumerating
the elements of the offense of conspiracy to commit murder as charged in
this case, included its advisement that, to convict Russell of conspiracy
to commit murder, the State must have proved that Russell agreed with
another person to commit murder, that he did so with the intent to commit
murder, and that Russell 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, storing, or disposing of the body of Pamela
Foddrill. Id. at 667, 3161. As to the charge of criminal confinement, the
court's Instruction No. 9 authorized conviction upon finding proof beyond a
reasonable doubt that Russell knowingly or intentionally removed the victim
by force from one place to another. Id. at 671, 3163-64.
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 Russell's
claim that his convictions on these counts violated the Indiana Double
Jeopardy Clause.
Improper Aggravator
Russell contends that he was sentenced using an aggravating
circumstance that was not listed in the statute at the time the crime was
committed. This same claim is also presented, conceded by the State, and
discussed in our opinion in Long, --- N.E.2d ---. As in Long, we find that
Russell's sentence of life imprisonment without parole is appropriate by
reason of both the harmless error doctrine and independent appellate
reweighing.
The State charged, and the trial court found proven beyond a
reasonable doubt, the existence of three aggravating circumstances: that
Russell intentionally killed Pamela Foddrill while committing or attempting
to commit criminal deviate conduct or rape,[8] that Foddrill was a victim
of criminal confinement or rape,[9] and that Russell tortured her.[10] We
agree that the State proved beyond a reasonable doubt that as a major
participant in her death, Russell intentionally killed Foddrill. He
intended that she be killed, and he supplied the knife Redman used to stab
Foddrill. We also find beyond a reasonable doubt that Russell committed
criminal deviate conduct upon Foddrill, and that she was a victim of
criminal confinement and rape.
The trial court considered five mitigating circumstances: (1)
Russell's limited education and mental deficiency (although the court found
this did not rise to the level of a legal defense or negate
responsibility); (2) his family history of neglect; (3) Russell's
participation, while incarcerated, in Bible correspondence courses and his
intention to minister to others; (4) his expression of sorrow for the
victim and the victim's family; and (5) Russell's help is needed to care
for a disabled brother and his mother who is blind and diabetic. Russell
contends that the trial court did not give adequate weight to his
significantly subaverage intellectual functioning and substantial
impairment of adaptive behavior. He emphasizes that his family history
reveals significant evidence of neglect and argues that the neglect further
exacerbated his mental condition.
We are convinced that, absent consideration of the torture aggravator
in the sentencing decision, the trial court would nevertheless have
sentenced Russell to life imprisonment without parole.
Furthermore, upon independent appellate reweighing of the aggravating
and mitigating circumstances found by the trial court, but excluding any
consideration of the torture aggravator, and considering Russell's argument
that his mental deficiencies deserve additional weight, and with due regard
for the recommendation of the jury, we find that such mitigating
circumstances are substantially outweighed by the aggravating
circumstances. We are cognizant of and sympathetic to Russell's mental
limitations, his history of family neglect, his Bible study and desire to
minister to others, his expression of sorrow, and the needs of his mother
and brother. In our judgment, however, these factors do not supply
sufficient explanation for Russell's conduct or otherwise offset the
gravity of the aggravating circumstances.
Finding that excluding the "torture" aggravator would not have
altered the trial court's sentencing decision, and finding further 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 Russell's conviction for murder and his sentence of life
imprisonment without parole. We also affirm his conviction for conspiracy
to commit murder. As to criminal confinement, we modify the judgment from
a class B felony to a class D felony and impose a sentence of three years,
to be served consecutively. As to criminal deviate conduct, we modify the
judgment from a class A felony to a class B felony and impose a sentence of
twenty years, to be served consecutively.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[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 Russell's companions, Roger
Long and John Redman, who were each separately tried for their roles in
these crimes. Long v. State, --- N.E.2d --- (Ind. 2001); Redman v. State,
--- N.E.2d --- (Ind. 2001).
[6] Ind. Const. art. 1, § 14.
[7] In the alternative, he argues that the Double Jeopardy Clause at
least requires that his criminal confinement conviction be reduced to a
class D felony. We do not separately address this claim because, in part 2
above, we have already determined that Russell's conviction for criminal
confinement must be modified from a class B to a class D felony.
[8] Ind.Code § 35-50-2-9(b)(1).
[9] Ind.Code § 35-50-2-9 (b)(13).
[10] Ind.Code Ann. § 35-50-2-9(b)(13) (Michie 1998).