Townsend v. State

Decision Date14 February 1989
Docket NumberNo. 885,885
Citation533 N.E.2d 1215
PartiesJohnny TOWNSEND, Jr., and Phillip McCollum, Appellants, v. STATE of Indiana, Appellee. S 339.
CourtIndiana Supreme Court

Ellen S. Podgor, David H. Nicholls, Pauper Appellate Counsel, Crown Point, for appellant Townsend.

James F. Stanton, Merrillville, for appellant McCollum.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.


Johnny Townsend and Phillip McCollum were tried jointly in the Lake Superior Court, Criminal Division, and were found guilty of the November 28, 1983 murders of Hal and Margaret Fuller. Townsend and McCollum were sentenced to death. The court found as aggravating circumstances that both murders were committed intentionally while the defendants were committing or attempting to commit robbery, and that the murders were committed while having previously committed another murder. Townsend and McCollum appeal directly to this court raising several issues which we consolidate and restate as follows:

1. whether the prosecutor abused his discretion in determining to initiate capital prosecution;

2. whether the court erred in admitting Townsend's statement over his contention that it was not voluntarily made;

3. whether the court erred in admitting the co-defendants' statements;

4. whether the court erred in denying Townsend's motion to suppress evidence seized from McCollum's residence 5. whether there was sufficient evidence to support the jury's verdict of guilty as to Townsend;

6. whether there was sufficient evidence to support the finding of the existence of aggravating circumstances as to Townsend;

7. whether the death penalty statute is unconstitutional for lack of clear and objective standards to follow in weighing the aggravating and mitigating circumstances;

8. whether the court correctly weighed the aggravating and mitigating circumstances;

9. whether the aggravating factor that the defendant committed another murder is unconstitutional;

10. whether Townsend's sentence was proper;

11. whether McCollum's sentence was proper;

12. whether McCollum received ineffective representation of counsel.

The facts most favorable to the State show that on December 2, 1983, the bodies of Hal and Margaret Fuller were discovered in their Gary home. Mr. and Mrs. Fuller were 65 and 63 years of age respectively. Mr. Fuller had suffered ten stab wounds, and died as a result of one of those wounds which lacerated his lung and his liver. Mrs. Fuller suffered nine stab wounds, fractured ribs, and a cutting wound, and died of those wounds which lacerated the lung and heart. Mr. Fuller's open wallet was found on the floor at his feet. A serrated steak knife which carried human blood was found in the driveway outside the house.

Marchell De Neal and Theresa Santos made a statement to the police on December 3. Theresa Santos was the girlfriend of Johnnie Townsend. Marchell De Neal had been Phillip McCollum's girlfriend. The girls told police that on November 28, 1983, Townsend and McCollum drove them to the house where both Townsend and McCollum lived. The men got a radio and took it to another house, and came out with $20.00 and a bag of marijuana. The girls noticed that Townsend's hand was wrapped in bandages soaked with blood. Townsend explained the injury by saying he had been in a fight. The car that was being driven matched in appearance the Fullers' car. Townsend drove the girls places until December 2, 1983, when he told Theresa Santos that the car was stolen and the owners were dead. He said he was going to burn the car and destroy the keys. Later, McCollum and Townsend told the girls they had not killed anyone.

On December 4, 1983, a Lake County Sheriff's Police Officer located a car in a rural part of the county. It was a 1979 brown and tan Chevrolet Caprice Classic registered in the name of Margaret Fuller. Latent fingerprints which were identified by an expert witness as belonging to both Johnnie Townsend and Phillip McCollum were found on and in the Fuller car.

The police learned that McCollum and Townsend lived at 1409 East 35th Court in Gary, two blocks away from the Fullers' house. Ms. Willie Mae Donald also lived at that house. She admitted the police and gave them some blood-soaked items of clothing, a knife, a money pouch with coins, other coins, and a cigarette lighter. Ms. Donald indicated there were other items there, and signed a consent to search.

McCollum made a statement to police in which he said he was 18 years old, single, and unemployed. He stated that on November 20, 1983, he was high on drugs and his confederate suggested going to the Fullers' house. McCollum said he did not know the Fullers, but the confederate did, and it was the confederate's idea to kill them. With the confederate, McCollum went to the Fullers' house, where they talked with Mr. Fuller for a while. Then the confederate started stabbing Mr. Fuller before Mr. Fuller began a telephone call to his nephew, Pee Wee. McCollum said he went up and started stabbing Mrs. Fuller. Mrs. Fuller said "please don't kill me," but McCollum told her to shut up and kept on stabbing her. McCollum then stated he went into the kitchen and his confederate asked him to help him with Mr. Fuller. McCollum said, "Okay" and stabbed Mr. Fuller one time in the chest. McCollum also said that when the confederate started stabbing Mr. Fuller, the drugs and wine caused McCollum's mind to go blank. They did not find any money, but they took a radio, which they later sold. They took the Fullers' car and drove it over a three or four day period.

Townsend also made a statement, in which he said that he and another person went to the Fullers' house. Townsend stated that Mr. Fuller was going to call his nephew "Pee Wee" for him, but when Mr. Fuller picked up the phone, Townsend stabbed him in the back. They wrestled for the knife and in the struggle Townsend was wounded. Townsend stated he stabbed Mr. Fuller in the stomach. Townsend's accomplice was in the other room with Mrs. Fuller. Townsend stated that when his accomplice came back to the kitchen, Mr. Fuller was not dead, and the accomplice "finished him". The two men searched the dresser drawers. Townsend saw that Mrs. Fuller was still breathing, and the accomplice "finished her off". They took a radio, which they later sold for a "dime bag of reefer" and about $25.00. This was after they had picked up Theresa Santos and Marchell De Neal. When they heard that the Fullers' murder was known, they took the car and abandoned it. Townsend admitted it was his idea to rob the Fullers. They took a knife, coins, a lighter, a radio, and two bottles of wine. Townsend identified the coins and lighter recovered from McCollum's house as the ones taken from the Fuller home. Townsend also stated they left their bloody clothing at the accomplice's house.


Appellant Townsend claims Prosecutor Jack Crawford abused his discretion in determining to initiate capital prosecution. Townsend asserts Crawford not only employed an arbitrary and capricious manner, but further used a consideration of "race" in violation of Townsend's right to equal protection.

To succeed on an equal protection claim, Townsend must show the existence of purposeful discrimination and he must prove that the purposeful discrimination had a discriminatory effect on him. Thus, he must prove that the decision-makers in his case acted with discriminatory purpose. McCleskey v. Kemp (1987), 481 U.S. 279, 282, 107 S.Ct. 1756, 1766, 95 L.Ed.2d 262, 278. " '[D]iscriminatory purpose'... implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." McCleskey, 481 U.S. at 298, 107 S.Ct. at 1769, 95 L.Ed.2d at 282(citation omitted).

Townsend gives several examples in his attempt to prove the existence of purposeful discrimination. He cites Prosecutor Crawford's filing an information rather than an indictment. He points to Prosecutor Crawford's lack of a written policy on death penalty selection and complains Prosecutor Crawford failed to follow his own stated procedure on death penalty decisions. Townsend claims these examples, in addition to Crawford's statement, evidence his improper use of discretion in choosing to proceed with the death penalty.

Townsend asserts that since Crawford filed this case by information as opposed to a grand jury indictment, he chose to deprive the grand jury of the right to compare this case with other murder cases. However, as Townsend acknowledges, an Indiana prosecutor has the discretion to commence a capital case by information rather than indictment. Bieghler v. State (1985), Ind., 481 N.E.2d 78, 94, cert. denied 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349. Townsend also complains the jury did not have the opportunity to compare this case with other Lake County murder cases. Townsend asserts such a review would have helped them to realize that the facts and the defendant in this case were not of the heinous caliber usually seen in Lake County homicides. He asserts such jury review of murder cases would be unnecessary if a grand jury had previously considered this fact. However, one cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. See McCleskey, 481 U.S. at 306-07, 107 S.Ct. at 1774, 95 L.Ed.2d at 288. Lack of review by the grand jury or trial jury does not show purposeful discrimination.

Townsend complains of Prosecutor Crawford's lack of a written policy on death penalty selection. However, as Townsend recognizes, Indiana law does not require a written policy for determination of who will be prosecuted with a death penalty charge. Further, there is no constitutional...

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