ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Christopher L. Lafuse
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
INDIANA SUPREME COURT
ROGER LEON LONG, )
v. ) 28S00-9907-CR-388
STATE OF INDIANA, )
APPEAL FROM THE GREENE SUPERIOR COURT
The Honorable David Holt, Judge
Cause No. 28D01-9710-CF-501
On Direct Appeal
March 9, 2001
The defendant-appellant, Roger Long, was convicted of murder;
See footnote conspiracy to commit murder, a
class A felony;See footnote criminal deviate conduct, a class A felony;See footnote and criminal confinement,
a class B felonySee footnote for a 1995 criminal episode in Linton, Indiana, that
resulted in the death of Pamela Foddrill.See footnote 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.
1. Presence of Testifying FBI Agent in Courtroom
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.
2. Conspiracy to Commit Murder
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.
See footnote 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
Fourthman v. State, 658 N.E.2d 88, 90 (Ind. Ct. App.
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, to-wit: 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
3. Criminal Deviate Conduct as a Class A Felony
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: "A person who knowingly or intentionally causes another person to perform
or submit to deviate sexual conduct when the other person is compelled by
force or imminent threat of force . . . commits criminal deviate conduct,
a Class B felony. An offense . . . is a Class
A felony if it is committed by using or threatening the use of
deadly force . . . ." 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 such a nature that it meets the statutory
definition of "deadly force"--that which "creates a substantial risk of serious bodily injury."
Ind.Code § 35-41-1-7. While the victim's submission was clearly compelled by
force, thus justifying class B felony treatment, we find no evidence from which
it can be reasonably inferred that the force used for the deviate conduct
was "deadly." We conclude that there was insufficient evidence to establish that
Long employed deadly force when he compelled the victim to perform or submit
to deviate sexual conduct and therefore grant this request to modify his conviction
for criminal deviate conduct from a class A felony to a class B
4. Criminal Confinement as a Class B Felony
Long also contends that his conviction for criminal confinement should be reduced from
a class B felony to a class D felony. The State charged
that the defendant committed criminal confinement by knowingly or intentionally removing the victim
by force from one place to another, which resulted in serious bodily injury,
namely fractured bones. The criminal confinement statute provides:
A person who knowingly or intentionally:
(1) confines another person without the other person's consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from
one (1) place to another;
commits criminal confinement, a Class D felony. However, the offense is a
Class C felony if the other person is less than fourteen (14) years
of age and is not the person's child, and a Class B felony
if it is committed while armed with a deadly weapon or results in
serious bodily injury to another person.
Ind.Code § 35-42-3-3. 5. Criminal Deviate Conduct Sentence and Double Jeopardy
The defendant argues that, while there was evidence that the victim suffered fractured
bones, there was no evidence that these injuries resulted from her being forcefully
removed from one place to another and that, for this reason, there was
insufficient evidence to prove the serious bodily injury element of criminal confinement as
a class B felony. The State argues that "the jury could have
inferred that Foddrill's injuries to her nose and eye socket were caused during
her movement from one place to another . . . .," Br.
of Appellee at 13, but does not identify any evidence tending to prove
this assertion. We find that the evidence was insufficient to establish that
the conduct constituting the charged offense of criminal confinement resulted in serious bodily
injury, as required to constitute a class B felony.
We grant the defendant's request to modify his sentence for criminal confinement.
Because the facts of this case do not qualify for class B felony
treatment, we find that the criminal confinement conviction should be imposed as a
class D felony. Rather than remand this matter to the trial court
for the purpose of determining the appropriate sentence for this count as a
class D felony, we will make the determination, "mindful of the penal consequences
that the trial court found appropriate." Richardson v. State, 717 N.E.2d 32,
54 (Ind. 1999). Finding four aggravating circumstances proven and that they outweighed
three mitigating circumstances found, the trial court imposed the maximum enhancement of the
offense as a class B felony. We likewise impose the maximum enhancement
of the offense, but as a class D felony, sentencing the defendant to
three years on this count, to run consecutively with his other sentences in
The defendant contends that his sentence for criminal deviate conduct violates the Double
Jeopardy Clause of the United States Constitution because he was also sentenced to
life without parole based in part on the finding that he intentionally killed
Pamela Foddrill while committing or attempting to commit criminal deviate conduct. The
State does not dispute this claim and suggests that the convictions for murder
and criminal deviate conduct be merged.
Accordingly, although the defendant remains convicted for both offenses, his sentence for criminal
deviate conduct is vacated by reason of the existence of the greater life
without parole sentence for the murder.
6. Indiana Double Jeopardy
The defendant contends that the Double Jeopardy Clause of the Indiana Constitution
that we vacate his conviction for criminal confinement.
He argues that there
is a reasonable possibility that the jury used the evidence of the victim's
abduction in establishing both the offense of conspiracy to commit murder and that
of criminal confinement.
To establish that two challenged offenses constitute the same offense under the actual
evidence test and thus violate the Indiana Double Jeopardy Clause, the 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. Richardson, 717 N.E.2d
The essential elements of the offense of conspiracy to commit murder are:
(1) the defendant (2) agreed with one or more other persons to commit
the crime of murder (3) with the intent to commit murder and (4)
the defendant or one of the persons to the agreement performed an overt
act in furtherance of the agreement. Ind.Code § 35-41-5-2. The essential
elements of the charged offense of criminal confinement in this case are: (1)
the defendant (2) knowingly or intentionally (3) removed the victim by force from
one place to another. Ind.Code § 35-42-3-3.
The charging information identified four alternative overt acts: abduction, confinement, rape, and disposal
of the body. He argues that there is a "reasonable possibility that
the evidentiary facts used by the jury to establish the overt acts of
'abduction' or 'confinement' for Conspiracy to Commit Murder may have also been used
to establish the essential elements of removal by force for the Criminal Confinement."
Br. of Defendant-Appellant at 28. If the jury relied only on
the evidence showing the defendant's knowing or intentional removal of the victim from
one place to another to establish both the confinement charge and the conspiracy
charge based on abduction or confinement as the overt act, the convictions for
both conspiracy and criminal confinement would have been based on the same evidence
and thus would violate the Indiana Double Jeopardy Clause. The issue before
us, however, is not merely whether it is possible that this occurred, but
rather whether the likelihood of this occurrence is sufficiently substantial for us to
conclude that it is reasonably possible that this occurred.
In Griffin v. State, 717 N.E.2d 73 (Ind. 1999), we were confronted with
a similar issue. The jury was instructed that the charge of conspiracy
to commit robbery could be established by various alleged overt acts, one of
which was the completed robbery itself. Noting the extensive evidence of the
other alleged overt acts, we rejected the claim of double jeopardy and emphasized:
"To establish that two offenses are the same offense under the actual evidence
test, the possibility must be reasonable, not speculative or remote." Id. at
In the present case, the evidence indicated that Long and others forcibly abducted
the victim, a mentally retarded woman, and took her to a residential attic
where they confined her for several days, possibly more than a week, during
which they compelled her to engage in multiple acts of oral, anal, and
vaginal intercourse. After killing her, her assailants moved her body to a
nearby shed, where it remained for several days before they removed it to
a rural wooded site in Illinois.
In argument to the jury, the State did not restrict itself to the
abduction as the overt act for conspiracy, although these elements received emphasis.
The prosecutor argued "there was at least one or more overt act, at
least one act taken toward the commission of that crime and we have
alleged abduct, confine, rape or dispose. Only one of those has to
be proven. We believe we've proved all four." Record at 3107.
The trial court's final Instruction No. 8, in part, advised the jury that
the State "must allege and prove that either the person or the person
with whom he agreed performed an overt act in furtherance of the agreement."
Id. at 701, 3140. The court's Instruction No. 9, enumerating the
elements of the offense of conspiracy to commit murder as charged in this
case, included its advisement that, to convict Long of conspiracy to commit murder,
the State must have proved that Long agreed with another person to commit
murder, that he did so with the intent to commit murder, and that
Long or one of the other persons to the agreement performed one or
more overt acts in furtherance of the agreement by either abducting, confining, raping,
or disposing of the body of Pamela Foddrill. Id. at 703, 3140-41.
As to the charge of criminal confinement, the court's Instruction No. 7
authorized conviction upon finding proof beyond a reasonable doubt that Long knowingly or
intentionally removed the victim by force from one place to another. Id.
at 700, 3139.
In view of the extensive evidence of the protracted criminal episode and the
court's instructions which clearly authorized any one of several bases for finding the
overt act element, we find no sufficiently substantial likelihood that the jury relied
on the evidence of the abduction by removal to establish the overt act
element of the conspiracy charge. The possibility is remote and speculative and
therefore not reasonable. Because there is no reasonable possibility that the jury
used the same evidentiary facts to establish the essential elements of both criminal
confinement and conspiracy to commit murder, we reject Long's claim that his convictions
on these counts violated the Indiana Double Jeopardy Clause.
7. "Torture" as an Aggravating Circumstance
Long contends that his sentence of life imprisonment without parole was based in
part upon an aggravating circumstance that did not exist at the time the
crime was committed. The State concedes this point.
The State charged, and the trial court found proven beyond a reasonable doubt
the existence of three aggravating circumstances: (1) Long was on probation for theft,
See footnote (2) Long intentionally killed the victim while committing or attempting to
commit criminal deviate conduct;See footnote and (3) Long tortured the victim.See footnote The criminal
episode culminating in the murder of Pamela Fodrill occurred between August 18, 1995
and December 2, 1995. It was not until 1996 that the Indiana
General Assembly added "that the defendant burned, mutilated, or tortured the victim
while the victim was alive" to the list of enumerated statutory aggravating circumstances.
P.L. 228-1996. The legislation specifically declares that this aggravating circumstance may
only be relied upon for crimes committed after June 30, 1996.
Capital sentences and sentences of life imprisonment without parole are governed by
the same statute, imposed under the same standards, and are subject to the
same requirements. Ajabu v. State, 693 N.E.2d 921, 936 (Ind. 1998).
Upon finding a substantial irregularity in a trial court decision to impose the
death penalty or life without parole, we have various options. Among these
are: 1) remand to the trial court for a clarification or new
sentencing determination, 2) affirm the sentence based upon a finding of harmless error,
or 3) independently reweigh the proper aggravating and mitigating circumstances at the appellate
level. Lambert v. State, 675 N.E.2d 1060, 1065 (Ind. 1996); Bivins v.
State, 642 N.E.2d 928, 957 (Ind. 1994). This Court has the constitutional
authority to review and revise criminal sentences. Ind. Const. art. 7, §
4. As in Bivins, we find the sentence imposed by the trial
court to be appropriate by reason of both the harmless error doctrine and
independent appellate reweighing.
In addition to the three aggravating circumstances, the trial court found three mitigating
circumstances: (1) Long is functionally illiterate and has a limited education, having
dropped out of school in the eighth grade; (2) Long is mentally deficient,
having a limited intellectual functioning, but is not mentally retarded; and (3) Long
has not had significant family support throughout his life. Record at 866.
Long does not contend that the evidence established other mitigating circumstances that
should also be considered.
In its sentencing order, the trial court explained the following specific facts and
reasons that supported the aggravating circumstance that Long intentionally killed the victim while
committing or attempting to commit criminal deviate conduct:
The evidence is replete with violent sexual acts, including repeated acts of deviate
conduct, committed upon the unwilling and resisting Pamela. When it was obvious
to the perpetrators that the victim could withstand no more she was murdered.
The repeated striking of blows to her head by a baseball bat
and the repeated stabbings with a knife leave no doubt that the death
was intended. And even after her death the body of the victim
was used in an effort to satisfy sexual lust.
Record at 864. The trial court further explained:
Not only did he [Long] act in total disregard for human life but
also it is clear that he intended to kill. He intentionally participated
in the planning and the commission of the kidnapping, the confinement, the repeated
rapes and acts of sexual abuse, the inhumane, degrading torture, and the brutal
death. He was actively involved and physically present during the entire sequence
of criminal activity that culminated in the intentional killing of Pamela Foddrill, and
the concealment of her physical remains.
Id. We are convinced that, absent consideration of the torture aggravator in
the sentencing decision, the trial court would nevertheless have imposed the sentence of
life imprisonment without parole.
Furthermore, upon independent appellate reweighing of the aggravating and mitigating circumstances found by
the trial court, but excluding the torture aggravator, and with due regard for
the recommendation of the jury, we find that the mitigating circumstances are substantially
outweighed by the aggravating circumstances. Long's limited education, his limited intellectual functioning,
and his lack of significant family support throughout his life, are mitigating circumstances
that appeal to our compassion. In our judgment, however, they do not
supply sufficient explanation for Long's conduct or otherwise offset the gravity of the
aggravating circumstances, particularly Long's conduct in intentionally killing while committing or attempting to
commit criminal deviate conduct.
Finding that excluding the "torture" aggravator would not have altered the trial court's
sentencing decision, and finding further that the two remaining aggravating circumstances outweigh the
mitigating circumstances such that the appropriate penalty for this offense and offender is
life imprisonment without parole, we affirm the judgment of the trial court.
We affirm Long's conviction for murder and sentence of life imprisonment without parole,
and his conviction for conspiracy to commit murder. As to the conviction
for criminal confinement, we modify the judgment from a class B felony to
a class D felony and impose a consecutive sentence of three years.
As to the criminal deviate conduct conviction, we modify the judgment from a
class A felony to a class B felony and vacate the sentence thereon.
SHEPARD, C.J., and BOEHM, and RUCKER, JJ., concur. Sullivan, J., concurs except
as to footnote 6.
Ind.Code § 35-42-1-1.
Footnote: Ind.Code § 35-41-5-2; Ind.Code § 35-42-1-1.
Footnote: Ind.Code § 35-42-4-2(b)(1).
Footnote: Ind.Code § 35-42-3-3(2).
Footnote: Today, we also decide the cases of Long's companions, John Redman and
Jerry Russell, who were each separately tried for their roles in these crimes.
Redman v. State, --- N.E.2d --- (Ind. 2001); Russell v. State, ---
N.E.2d --- (Ind. 2001).
Vinson v. State, 735 N.E.2d 828, 831 (Ind. Ct. App. 2000),
the Court of Appeals approved the retention of two police officer witnesses at
counsel's table during the trial notwithstanding a separation of witnesses order. Construing
the Rule 615 exceptions generously instead of narrowly, the court stated that "if
a witness falls within one of the exemptions enumerated under Indiana Evidence Rule
615, that witness shall be allowed to remain in the courtroom." Id.
Although we declined to grant transfer in Vinson, we disapprove of its
treatment of the Rule 615 issue.
We do not determine the sentence to be imposed because of our
resolution of the defendant's double jeopardy claim in part 5, below.
Footnote: The State does not argue for any distinction on the grounds that
the defendant was convicted for one count of criminal deviate conduct but that
the trial court, in imposing the life without parole sentence on the murder
count, found that the defendant committed "repeated acts of deviate conduct." Record
Ind. Const. art. 1, § 14.
In the alternative, he argues that the Indiana Double Jeopardy Clause requires
that his criminal confinement conviction be reduced from a class B felony to
a class D felony. We do not separately address this claim because
we have already determined that Long's conviction for criminal confinement must be modified
from a class B to a class D felony.
Footnote: Ind.Code § 35-50-2-9(b)(9)(C).
Footnote: Ind.Code § 35-50-2-9(b)(1)(D).
Footnote: Ind.Code Ann. § 35-50-2-9(b)(11) (Michie 1998).