Thacker v. State, 49S00-9710-CR-524

Citation709 N.E.2d 3
Decision Date16 April 1999
Docket NumberNo. 49S00-9710-CR-524,49S00-9710-CR-524
PartiesMark Anthony THACKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtSupreme Court of Indiana

Patricia Caress McMath, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

BOEHM, Justice.

Mark Thacker was convicted of murder, conspiracy to commit murder, burglary, and two counts of conspiracy to commit burglary, all in connection with the death of Monique Hollowell.

In this direct appeal Thacker challenges:

(1) the decision of the trial court to send certain exhibits into the jury room after deliberations had begun,

(2) his sentence for each of the three conspiracy convictions where there was evidence of only one agreement,

(3) the sufficiency of the evidence on the two conspiracy to commit burglary convictions, and

(4) his sentence of 175 years as manifestly unreasonable.

We affirm the convictions for murder, burglary and conspiracy to commit murder, and vacate the two conspiracy to commit burglary convictions.

Factual and Procedural Background

Monique Hollowell was strangled to death in her home in the early morning hours of February 29, 1996. Thacker was charged by information with eight counts: murder, felony murder, conspiracy to commit murder, two counts of conspiracy to commit burglary, two counts of burglary and criminal deviate conduct. One count of burglary and the criminal deviate conduct count were dismissed during the trial.

Thacker's Version of Events

Evidence at trial consisted primarily of Thacker's statements to the police. Thacker's version follows. He and Anthony Hollowell were friends from childhood. In late 1995, Anthony and Thacker began to discuss a plan to kill Monique, Anthony's wife. The two hoped to collect under an insurance policy on Monique's life and start their own business. Although willing to help, Thacker was unwilling to be the killer. Anthony then asked Richard White to join the plan and commit the murder. The three planned to make the murder appear as if it had occurred in the course of a robbery while Anthony was out of town. Anthony was to break the glass in the back door of the apartment to provide access to the apartment. Thacker's role was not to kill Monique, but rather only to confirm she was dead. Hollowell agreed to pay $20,000 to Thacker and $10,000 to White for the murder. After the plan had been formulated, Thacker and White brought in Frank Turnley to help White carry out the actual killing. White was to pay Turnley $5,000 of his $10,000.

On the afternoon of February 28, Thacker and Turnley went to the Hollowells' apartment to verify that Anthony had broken the glass in the back door as agreed. Thacker then met Turnley and White at a gasoline station sometime after 11:00 p.m. that night. Turnley and White were to go to the Hollowells' apartment to commit the murder. Thacker would visit the apartment later to confirm that Monique was dead. Thacker then picked up his brother-in-law, Maurice Hunt, and the two proceeded to the Hollowells' apartment. Thacker purposefully brought Hunt along to serve as a witness that he did not kill Monique. Sometime between leaving White and Turnley at the gasoline station and arriving at the Hollowells' apartment, Thacker returned to his own apartment and watched David Letterman on television. When Thacker and Hunt arrived at the Hollowells' apartment around 2:00 a.m., White and Turnley were gone and Monique was dead. Shortly thereafter, Thacker, Hunt, Turnley and White met at a second gasoline station where Turnley and White recounted the details of Monique's murder.

Other Evidence

The State offered several witnesses to dispute Thacker's version of events. Anthony Hollowell testified that he did not ask Thacker to kill his wife and that he had nothing to do with his wife's murder. Similarly, Richard White testified that he had no part in Monique's murder. Hunt, Thacker's brother-in-law, denied seeing Thacker on the day of the murder. Thacker's wife testified that after Thacker left their apartment at 7:00 p.m. on the 28th, he did not return until approximately 3:20 a.m., long after the Letterman show was over. She also testified that she saw Turnley in the Thackers' car in their apartment parking lot at approximately 8:00 a.m. on February 29. A screwdriver found under the driver's seat of Thacker's car matched the gouge in the door of the Hollowells' apartment through tool identification markings but analysis of the screwdriver revealed no glass or wood fragments and the tool could not be conclusively linked to the Hollowells' door.

Jury Deliberations

After deliberations had begun, the jury sent a note to the trial court asking for copies of the transcripts of the two taped statements given to police by Thacker and a copy of a letter Thacker wrote to Anthony Hollowell while Thacker was in jail awaiting trial. The letter and the tapes had been admitted at trial but transcripts of the tapes had not. After a hearing, and over Thacker's objection, the trial court sent all of the admitted exhibits to the jury, including the tapes and the letter, but did not send the unadmitted transcripts of the tapes.

The jury returned guilty verdicts on all six remaining counts. The trial court merged the murder and felony murder convictions and sentenced Thacker to sixty-five years for murder, fifty years for conspiracy to commit murder, twenty years for each count of conspiracy to commit burglary and twenty years for the burglary, all to be served consecutively for a total sentence of 175 years.

I. Exhibits to the Jury
A. Indiana Code § 34-36-1-6

Thacker argues that the trial court committed reversible error when it sent the trial exhibits to the jury room after deliberations had begun. Citing Powell v. State, 644 N.E.2d 855 (Ind.1994), Thacker contends that the trial court's decision to "allow the jury to review specific pieces of evidence 'alone and unguided by the court' " violated his substantive right to be present when the jury reviews evidence as protected by Indiana Code § 34-36-1-6 (1998). 1 The statute provides:

If, after the jury retires for deliberation:

(1) there is a disagreement among the jurors as to any part of the testimony; or

(2) the jury desires to be informed as to any point of law arising in the case; the jury may request the officer to conduct them into court, where the information required shall be given in the presence of, or after notice to, the parties or the attorneys representing the parties.


As explained in Bouye v. State, this section is triggered where (1) the jurors "explicitly indicate[ ] a disagreement" as to any part of the testimony or (2) the jurors desire to be informed as to any point of law. 699 N.E.2d 620, 627-28 (Ind.1998). In this case, neither occurred. Rather, the jury merely requested to review certain exhibits. See also Gibson v. State, 702 N.E.2d 707 (Ind.1998) (statute inapplicable where jury requested to view evidence and did not show disagreement); Robinson v. State, 699 N.E.2d 1146 (Ind.1998) (statute inapplicable where jury note did not suggest disagreement). Sending the exhibits admitted at trial to the jury was not error under the statute.

B. Case Law Standard

If the statute is inapplicable, the trial court should consider three factors in deciding whether to permit the jury to take a copy of the exhibits into the jury room.

(1) whether the material will aid the jury in a proper consideration of the case;

(2) whether any party will be unduly prejudiced by submission of the material; and

(3) whether the material may be subjected to improper use by the jury.

Robinson v. State, 699 N.E.2d at 1150 (citing Thomas v. State, 259 Ind. 537, 540, 289 N.E.2d 508, 509 (1972)). Thacker argues that the tapes of his statements to police were subject to "undue influence" and "misuse" by the jury and that the trial court's failure to supervise the jury while it listened to the tapes is reversible error requiring a new trial. Thacker asserts that the crucial difference between his case and those where tape recordings were properly submitted to the jury is that here they were given to the jury after deliberations had begun and after a specific request by the jury for the tapes.

As we concluded in Robinson, the same factors govern a trial court's decision to send exhibits to the jury before or during deliberations. 699 N.E.2d at 1150. In this case, all three factors support the trial court's decision. If the jury requests particular pieces of information, presumptively that information will aid the jury in proper consideration of the case. In the absence of any showing as to why that is not the case, the first factor is satisfied. Next, there is no evidence of prejudice or, as Thacker puts it, "undue influence," because the trial court gave the jury all of the admitted exhibits, not only those it requested, in order to avoid any emphasis, real or perceived, on a particular exhibit. Finally, in response to Thacker's concern that the jury could improperly rely on the unadmitted transcripts, the trial court did not give them to the jury and sent only admitted exhibits. Accordingly, the trial court did not abuse its discretion in sending all of the admitted exhibits to the jury.

II. Multiple Conspiracy Convictions

The State charged Thacker 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 Thacker guilty as to all three.

Thacker argues that because "[o]nly one agreement was entered into and that was to kill Monique Hollowell" the trial court erroneously sentenced him on all three conspiracy convictions. Thacker is...

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