ATTORNEY FOR APPELLANT
Jan B. Berg
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
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IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
FRANK TURNLEY, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9812-CR-757
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9603-CF-034571
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
March 21, 2000
BOEHM, Justice.
Frank Turnley was convicted of murder, felony murder, conspiracy to
commit murder, two counts of conspiracy to commit burglary, two counts of
burglary, and criminal deviate conduct. He was sentenced to an aggregate
term of 145 years imprisonment. In this direct appeal he contends: (1) the
trial court committed fundamental error by giving the reasonable doubt
instruction recommended by a majority of this Court in Winegeart v. State,
665 N.E.2d 893, 902 (Ind. 1996), and (2) he cannot be convicted of three
counts of conspiracy when there was only one agreement to commit a
burglary. We vacate the conspiracy to commit murder conviction and one of
the conspiracy to commit burglary convictions, but otherwise affirm the
trial court.
Factual and Procedural Background
Monique Hollowell was strangled to death in her home in the early
morning hours of February 29, 1996. A week later, Turnley told a detective
that he had information about the crime. After being advised of and
waiving his Miranda rights, Turnley gave a statement to police. According
to the statement, Mark Anthony Thacker approached him on the morning of
February 28 with a proposal to burglarize the home of a mutual
acquaintance, Anthony Hollowell. Anthony was going to be out of town and
his wife Monique had recently received a tax refund check of approximately
two thousand dollars. Thacker proposed that they break into the
Hollowells’ home in the daytime when no one would be home. Thacker added
that, if the men were unable to locate the money, they would return that
evening and take Monique’s purse. Turnley agreed.
At about noon, the two went to the Hollowells’ home. Turnley served
as a lookout while Thacker broke a window in a rear door to gain entry. A
search of the house failed to locate any money. According to Turnley,
Thacker said, “[W]e’ll just have to come back tonight,” and the pair left.
The pair returned to the Hollowells’ apartment at about 12:30 a.m. on
February 29. After an unsuccessful search for money downstairs, Thacker
took a knife from the kitchen and the two proceeded up the stairs. They
had a brief conversation outside of Monique’s room, in which Thacker
stated, “[W]e have to kill her now . . . . [I]f we can’t creep past and
get the purse, I have to kill her.” Thacker then entered the room, jumped
on top of Monique, who was sleeping in her bed, and began to choke her.
According to Turnley, Thacker pulled him into the room. While Thacker was
choking Monique, Turnley restrained her hands for a few seconds. After
Monique lost consciousness, Turnley placed his finger in her vagina and
Thacker poured a bottle of toilet bowl cleaner on her face. Thacker then
searched dresser drawers and a purse but found no money. Monique died as
the result of manual strangulation.
Thacker and Turnley were each charged with eight counts: murder,
felony murder, conspiracy to commit murder, two counts of conspiracy to
commit burglary, two counts of burglary and one count of criminal deviate
conduct. Thacker was tried first, convicted of six counts, and sentenced
to 175 years imprisonment. See Thacker v. State, 709 N.E.2d 3, 5 (Ind.
1999). Turnley was then tried, convicted of all eight counts, and
sentenced to 145 years imprisonment.
I. Reasonable Doubt Instruction
Turnley argues that the trial court erred in giving the reasonable
doubt instruction recommended by a majority of this Court in Winegeart v.
State, 665 N.E.2d 893, 902 (Ind. 1996). He concedes that he did not object
to this instruction at trial, but contends the instruction is fundamentally
erroneous. As we have observed in several cases, giving this instruction
is not error, let alone fundamental error. See Williams v. State, ___
N.E.2d ___, ___ (Ind. 2000), 2000 WL 254379; Dobbins v. State, 721 N.E.2d
867, 874-75 (Ind. 1999); Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999);
Barber v. State, 715 N.E.2d 848, 851-52 (Ind. 1999); Williams v. State, 714
N.E.2d 644, 650 (Ind. 1999), cert. denied, 120 S. Ct. 1195 (2000).
II. Multiple Conspiracy Convictions
Turnley also contends that one of his two conspiracy to commit
burglary convictions and his conspiracy to commit murder conviction should
be vacated because the evidence presented at trial proved only one
agreement.[1] Indiana has long followed the rule that where there is
evidence of only one agreement, there can be only one conspiracy
conviction, even if the agreement is to commit multiple crimes. See
Thacker v. State, 709 N.E.2d 3, 7 (Ind. 1999); see also Braverman v. United
States, 317 U.S. 49, 53 (1942). The “one conspiracy, one conviction rule
derives from the notion that the agreement is the criminal act, and
therefore one agreement supports only one conspiracy, even if multiple
crimes are the object of the agreement.” Thacker, 709 N.E.2d at 8.
The State charged Turnley with three counts of conspiracy: one for
conspiring to commit murder, one for conspiring to commit burglary when
Thacker and Turnley went to the Hollowells’ on the afternoon of February 28
and another for conspiring to commit burglary when they returned early on
February 29. The jury found Turnley guilty as to all three. Turnley
admitted in his statement to the police and at trial—and concedes in this
appeal—that he conspired with Thacker on the morning of the 28th to
burglarize the Hollowells’ home. However, he contends that the evidence
presented at trial was of a single agreement to commit burglary, not of
three separate agreements (two to commit burglary and one to commit
murder).
The State responds that Thacker and Turnley made three separate
agreements. In support of the second conspiracy to commit burglary, the
State points to Turnley’s testimony at trial. Turnley responded
affirmatively when asked on cross-examination, “So, it was decided . . .
after you went over there the first time and Mr. Thacker couldn’t find any
money inside the apartment, that he’d come back later that evening?”
Turnley later testified, consistent with his statement to police, that he
and Thacker had agreed on the morning of February 28 to return that evening
to take Monique’s purse if they were unsuccessful in the afternoon.
Because the evidence regarding the second conspiracy to commit burglary was
conflicting, the State contends it was the jury’s prerogative to conclude
that there were two separate agreements to commit burglary. In support of
a separate agreement to commit murder, the State points to Turnley’s
statement to police in which he said that, before Thacker and he entered
Monique’s bedroom, Thacker told him, “[W]e have to kill her now.” When
asked why Thacker made that statement, Turnley responded, “I have no idea.
He uh, if we can’t creep past and get the purse, I have to kill her.”
A. Conspiracy to Commit Burglary
We agree with Turnley that there was only one agreement to commit a
burglary. The agreement was to attempt to locate the money during the
afternoon, while Monique was at work, but it also contemplated returning
that evening if the money could not be found. After the afternoon burglary
proved unfruitful, the men returned twelve hours later to try again to
locate the money. As the United States Supreme Court observed in
Braverman, 317 U.S. at 53:
Whether the object of a single agreement is to commit one or many
crimes, it is in either case that agreement which constitutes the
conspiracy which the statute punishes. The one agreement cannot be
taken to be several agreements and hence several conspiracies because
it envisages the violation of several statutes rather than one.
Here, Turnley committed and was properly convicted of two burglaries.
These crimes, however, were committed pursuant to a single agreement to
steal money from Monique Hollowell. Accordingly, only one conspiracy to
commit burglary conviction (Count IV) can stand.[2]
B. Conspiracy to Commit Murder
The Braverman rule does not apply, however, to the conspiracy to
commit murder count. Although the original agreement to steal Monique’s
money envisioned the possibility of two separate burglaries, it did not
envision killing her. The State argues that there is evidence that Thacker
and Turnley formed a separate agreement to kill Monique at the top of the
stairs immediately before entering her room. Under this view, Thacker’s
statement that Monique must be killed followed by Turnley’s assisting in
the killing formed an agreement to do Monique in.
Even if the evidence supported an agreement apart from participation
in the murder, the conspiracy to commit murder count must be vacated
because it would violate the Indiana Double Jeopardy Clause. See Ind.
Const. art. I, § 14. As this Court recently explained in Richardson v.
State, 717 N.E.2d 32, 53 (Ind. 1999),
To show that two challenged offenses constitute the “same offense” in
a claim of double jeopardy, a 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.
The conspiracy to commit murder charge, which was read to the jury as part
of the preliminary instructions, alleged that Turnley agreed with Thacker
to murder Monique by strangulation and that Turnley’s restraint of Monique
on a bed was the overt act in furtherance of that agreement. The murder
charge, also read to the jury as part of the preliminary instructions,
alleged that Turnley knowingly killed Monique by manual strangulation.[3]
Under these instructions, there is at least a reasonable possibility—indeed
a high probability—that the jury used the same evidentiary fact—the
restraining and strangulation of Monique—to prove an essential element of
the conspiracy to commit murder (the overt act) and also the essential
element of murder. Thus, even if there was a separate agreement to murder,
conviction of conspiracy to commit murder and murder would violate the
Indiana Double Jeopardy Clause. Accordingly, we remand to the trial court
with instructions to vacate this count.
Conclusion
Frank Turnley’s convictions for murder, criminal deviate conduct, two
counts of burglary, and one count of conspiracy to commit burglary (Count
IV) are affirmed. This case is remanded with instructions to vacate Count
III (conspiracy to commit murder) and Count VI (conspiracy to commit
burglary).[4]
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] As an alternative, Turnley asserts that there is insufficient evidence
to support these convictions. We need not address this contention, which
essentially duplicates the issue as framed in the text, because we vacate
two of the conspiracy convictions on other grounds.
[2] We note that the jury was not instructed on the "one conspiracy, one
conviction" rule. Rather, the trial court gave a single instruction
defining the crime of "conspiracy." No other instruction suggested that
the State needed to prove separate agreements to prove each separate
conspiracy count. The jury may very well have been left with the
impression that one agreement could support more than one conspiracy count.
[3] The closing arguments of counsel were not included in the record of
proceedings.
[4] There appears to be a clerical error in Part 2 of the Abstract of
Judgment, which lists Count V as running concurrently with other counts.
This is at odds with the trial court's sentencing statement that "Count
Five [twenty years] will be run consecutively to sentence imposed on Counts
One [sixty-five years], Seven [twenty years], Six [twenty years] and Eight
[twenty years]." It is also at odds with the statement in Part 3 of the
Abstract that the total sentence is 145 years. When preparing an amended
abstract to reflect the vacated counts, the trial court can easily correct
this clerical error as well.