ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN C. BOHDAN KAREN M. FREEMAN-WILSON
Deputy Public Defender Attorney General of Indiana
Fort Wayne, Indiana
PRISCILLA J. FOSSUM
Deputy Attorney General
SUPREME COURT OF INDIANA
MARK P. MURRAY, )
) Supreme Court Cause Number
v. ) 02S00-0007-CR-449
STATE OF INDIANA, )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Frances C. Gull, Judge
Cause No. 02D04-9905-CF-258
ON DIRECT APPEAL
January 24, 2002
A jury found Mark Murray guilty of felony murder, burglary as a Class
A felony, and battery as a Class C felony. In this appeal,
he challenges the felony murder conviction contending the evidence is not sufficient to
support the conviction and that the conviction violates the double jeopardy provision of
the Indiana Constitution. We disagree with both contentions and therefore affirm.
The facts most favorable to the verdict show that Murray decided to confront
Anthony Watson about his verbal abuse of a mutual female friend. In
the evening hours of May 17, 1999, accompanied by two associates: Thomas
Thompson and David Jackson, Murray proceeded to Watsons house. Thompson drove his
van and Jackson brought along an aluminum baseball bat. After arriving at
the house, Murray and Jackson exited the van while Thompson stayed behind.
Murray kicked in the front door, and he and Jackson entered. Murray
then began yelling at Watson who was apparently asleep on the living room
couch and did not respond. What occurred next is a matter of
dispute. Jackson testified at trial that while wielding the baseball bat, Murray
struck Watson in the head. Murray testified in his own defense, denied
handling the bat, and said he did not see anyone strike Watson with
it. According to Murray, he merely hit Watson a few times in
the head with his fist. In any event, the baseball bat was
discarded and later recovered from a dumpster. DNA analysis revealed that a
bloodstain found on the bat was consistent with Watsons blood type. An
autopsy revealed that Watson died as a result of blunt force injury to
The State charged Murray with murder, felony murder, burglary as a Class A
felony, and battery as a Class C felony. A jury acquitted Murray
of murder but returned guilty verdicts on the remaining charges. The trial
court vacated the burglary and battery convictions and sentenced Murray to sixty years
imprisonment for felony murder. This appeal ensued. Additional facts are set
forth below where relevant.
Murray challenges the sufficiency of the evidence arguing his conviction is based on
the incredibly dubious testimony of one witness: David Jackson. He also
contends the State failed to prove that he intended to commit a felony
when he entered Watsons home. When reviewing a claim of insufficient evidence,
we consider only evidence that supports the verdict and all reasonable inferences drawn
therefrom. Warren v. State, 725 N.E.2d 828, 834 (Ind. 2000). We
neither reweigh the evidence nor do we judge the credibility of witnesses.
Id. We will uphold a conviction if there is substantial evidence of
probative value from which a jury could have found the defendant guilty beyond
a reasonable doubt. Id.
Under the incredible dubiosity rule, a court will impinge upon the jurys responsibility
to judge the credibility of witnesses only when confronted with inherently improbable testimony
or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Tillman v. State,
642 N.E.2d 221, 223 (Ind. 1994); Gaddis v. State, 253 Ind. 73, 251
N.E.2d 658, 661-62 (1969). Application of this rule is limited to cases,
such as Gaddis, where a sole witness presents inherently contradictory testimony which is
equivocal or the result of coercion and there is a complete lack of
circumstantial evidence of the appellants guilt. Tillman, 642 N.E.2d at 223.
In this case, Murray concedes he entered Watsons home by kicking in the
door. He also concedes that the aluminum baseball bat introduced into evidence caused
Watsons death. However, Murray complains there was no forensic evidence to support
the contention that he ever handled the bat on the evening of May
17, 1999, and that Jacksons testimony placing the bat in Murrays hand was
purchased, self-serving, and conflicting. Br. of Appellant at 14. In support
of these latter points, Murray directs our attention to: Jacksons plea agreement
given in exchange for his trial testimony; Jacksons pre-trial statement to investigating officers,
later recanted, in which Jackson denied responsibility for the presence of the bat;
and the testimony of witnesses which Murray contends support his own trial testimony
that he never had possession of the baseball bat.
Although Jacksons trial testimony was inconsistent in some respects with his pre-trial statement,
it was not equivocal, and Jackson did not contradict himself on the witness
stand. The fact that a witness gives trial testimony that contradicts earlier
pre-trial statements does not necessarily render the trial testimony incredibly dubious. Davenport v.
State, 689 N.E.2d 1226, 1230 (Ind. 1997). As for the alleged corroborating
witnesses, at most their testimony was at odds with Jacksons testimony. However,
that does mean that Jacksons testimony was incredibly dubious. See Berry v.
State, 703 N.E.2d 154, 160 (Ind. 1998) (declining to apply the incredible dubiosity
rule where there were inconsistencies in the testimony among witnesses, but no one
witness contradicted himself). Concerning Jacksons plea agreement, Murray thoroughly cross-examined Jackson on
its terms and conditions. That Jacksons testimony was different from Murrays testimony
was a matter for the jurys determination. It is for the trier
of fact to resolve conflicts in the evidence and to decide which witnesses
to believe or disbelieve. Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind.
2001). In sum, Murray has not shown that the incredible dubiosity rule
is applicable in this case.
The information charging Murray with felony murder alleged burglary as the underlying felony.
In turn, battery as a Class C felony apparently was alleged as
the offense underlying the burglary offense.
See footnote In relevant part, the burglary statute
provides: A person who breaks and enters the building or structure of another
person, with intent to commit a felony in it, commits burglary . .
. . I.C. § 35-43-2-1. Murray claims the evidence was
not sufficient to sustain the felony murder conviction because the State failed to
show that he intended to commit a felony when he broke and entered
Watsons house. Rather, according to Murray, the evidence supports the view that
he intended only to commit battery as a Class A misdemeanor and not
battery as a Class C felony. In support, Murray points to his
own testimony that his intent on entering the house was to fight [Watson],
R. at 431, and other evidence that he says demonstrates that they were
going to have a talking to [Watson], R. at 253. Regardless of
Murrays alleged subjective intent, the record shows that once inside the house, Murray
struck a fatal blow to Watsons head with a baseball bat. The
jury was not bound to accept Murrays contention, and although the fact of
breaking and entering is not itself sufficient to prove entry with intent to
commit a felony, such intent may be inferred from the defendants subsequent conduct
once inside the premises.
Eveler v. State, 524 N.E.2d 9, 11 (Ind.
1988) (rejecting defendants claim the evidence was not sufficient to prove that he
broke and entered the victims apartment with the intent to commit the felonies
alleged). We conclude the evidence in this case was sufficient to sustain
Murrays conviction for felony murder.
Murray also claims an Indiana double jeopardy violation based on his convictions for
burglary and battery. Citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999),
he argues there was a reasonable possibility that the evidentiary facts used by
the jury to establish the essential elements for burglary and battery were also
used by the jury to establish the essential elements for felony murder.
See id. at 53. Murray acknowledges that the trial court was correct
in deciding that convictions for all three of the offenses could not be
allowed to stand . . . . Br. of Appellant at 20.
However, without cogent argument or citation to authority, Murray asserts the trial
court should have vacated the felony murder conviction instead of the battery conviction.
Murray is mistaken. Even before Richardson, this Court held when a
prosecutor obtains convictions against a defendant for both felony murder and the underlying
felony, the defendant may only be sentenced for the greater charge. Hobson
v. State, 675 N.E.2d 1090, 1094 (Ind. 1996) (citing Zenthofer v. State, 613
N.E.2d 31, 35 (Ind. 1993)). An appropriate remedy to prevent a double
jeopardy violation is to withhold judgment on the lesser-included offense and to sentence
the defendant for the greater felony. See id. This is essentially
the remedy the trial court used here. Murrays claim on this issue
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
In pertinent part the charging information reads:
On or about the 17th day of May, 1999, in the County of
Allen and in the State of Indiana, said defendant, Mark P. Murray, did
kill another human being, to wit: Anthony Wayne Watson, while committing or
attempting to commit Burglary, to wit: by striking at and/or against the
head of Anthony Wayne Watson with a baseball bat, causing him to die,
being contrary to the form of the statute in such case made and
R. at 12. The battery statute provides in relevant part: A
person who knowingly or intentionally touches another person in a rude, insolent, or
angry manner commits battery, a Class B misdemeanor. However, the offense is:
. . . a Class C felony if it results in serious bodily
injury to any other person or if it is committed by means of
a deadly weapon[.] Ind. Code § 35-42-2-1(a)(3). Although the charging information
here is not a model of clarity, Murray makes no claim that it
is defective. Nor does Murray contend that he was misled by the
information or that his defense was in any way affected by the wording
of the information.
See Wisehart v. State, 693 N.E.2d 23, 63 (Ind.
1998) (rejecting defendants claim that the charging information was defective despite the fact
that the burglary supporting the felony murder count did not allege an intent
to commit a specific felony).