Long v. State
| Decision Date | 09 March 2001 |
| Docket Number | No. 28S00-9907-CR-388.,28S00-9907-CR-388. |
| Citation | 743 N.E.2d 253 |
| Parties | Roger Leon LONG, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Karen Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
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 felony4 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.
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.
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, towit: 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.
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: 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...
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