ATTORNEY FOR APPELLANT
Jan B. Berg
ATTORNEYS FOR APPELLEE
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
FRANK TURNLEY, ) )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-9812-CR-757
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9603-CF-034571
ON DIRECT APPEAL
March 21, 2000
Frank Turnley was convicted of murder, felony murder, conspiracy to commit murder, two
counts of conspiracy to commit burglary, two counts of burglary, and criminal deviate
conduct. He was sentenced to an aggregate term of 145 years imprisonment.
In this direct appeal he contends: (1) the trial court committed fundamental
error by giving the reasonable doubt instruction recommended by a majority of this
Court in Winegeart v. State, 665 N.E.2d 893, 902 (Ind. 1996), and (2)
he cannot be convicted of three counts of conspiracy when there was only
one agreement to commit a burglary. We vacate the conspiracy to commit
murder conviction and one of the conspiracy to commit burglary convictions, but otherwise
affirm the trial court.
Factual and Procedural Background
Monique Hollowell was strangled to death in her home in the early morning
hours of February 29, 1996. A week later, Turnley told a detective
that he had information about the crime. After being advised of and
waiving his Miranda rights, Turnley gave a statement to police. According to
the statement, Mark Anthony Thacker approached him on the morning of February 28
with a proposal to burglarize the home of a mutual acquaintance, Anthony Hollowell.
Anthony was going to be out of town and his wife Monique
had recently received a tax refund check of approximately two thousand dollars.
Thacker proposed that they break into the Hollowells home in the daytime when
no one would be home. Thacker added that, if the men were
unable to locate the money, they would return that evening and take Moniques
purse. Turnley agreed.
At about noon, the two went to the Hollowells home. Turnley served
as a lookout while Thacker broke a window in a rear door to
gain entry. A search of the house failed to locate any money.
According to Turnley, Thacker said, [W]ell just have to come back tonight,
and the pair left. The pair returned to the Hollowells apartment at
about 12:30 a.m. on February 29. After an unsuccessful search for money
downstairs, Thacker took a knife from the kitchen and the two proceeded up
the stairs. They had a brief conversation outside of Moniques room, in
which Thacker stated, [W]e have to kill her now . . . .
[I]f we cant creep past and get the purse, I have to
kill her. Thacker then entered the room, jumped on top of Monique,
who was sleeping in her bed, and began to choke her. According
to Turnley, Thacker pulled him into the room. While Thacker was choking
Monique, Turnley restrained her hands for a few seconds. After Monique lost
consciousness, Turnley placed his finger in her vagina and Thacker poured a bottle
of toilet bowl cleaner on her face. Thacker then searched dresser drawers
and a purse but found no money. Monique died as the result
of manual strangulation.
Thacker and Turnley were each charged with eight counts: murder, felony murder,
conspiracy to commit murder, two counts of conspiracy to commit burglary, two counts
of burglary and one count of criminal deviate conduct. Thacker was tried
first, convicted of six counts, and sentenced to 175 years imprisonment.
Thacker v. State, 709 N.E.2d 3, 5 (Ind. 1999). Turnley was then
tried, convicted of all eight counts, and sentenced to 145 years imprisonment.
I. Reasonable Doubt Instruction
Turnley argues that the trial court erred in giving the reasonable doubt instruction
recommended by a majority of this Court in Winegeart v. State, 665 N.E.2d
893, 902 (Ind. 1996). He concedes that he did not object to
this instruction at trial, but contends the instruction is fundamentally erroneous. As
we have observed in several cases, giving this instruction is not error, let
alone fundamental error. See Williams v. State, ___ N.E.2d ___, ___ (Ind.
2000), 2000 WL 254379; Dobbins v. State, 721 N.E.2d 867, 874-75 (Ind. 1999);
Ford v. State, 718 N.E.2d 1104, 1105 (Ind. 1999); Barber v. State, 715
N.E.2d 848, 851-52 (Ind. 1999); Williams v. State, 714 N.E.2d 644, 650 (Ind.
1999), cert. denied, 120 S. Ct. 1195 (2000).
II. Multiple Conspiracy Convictions
Turnley also contends that one of his two conspiracy to commit burglary convictions
and his conspiracy to commit murder conviction should be vacated because the evidence
presented at trial proved only one agreement.
Indiana has long followed the
rule that where there is evidence of only one agreement, there can be
only one conspiracy conviction, even if the agreement is to commit multiple crimes.
See Thacker v. State, 709 N.E.2d 3, 7 (Ind. 1999); see also
Braverman v. United States, 317 U.S. 49, 53 (1942). The one conspiracy,
one conviction rule derives from the notion that the agreement is the criminal
act, and therefore one agreement supports only one conspiracy, even if multiple crimes
are the object of the agreement. Thacker, 709 N.E.2d at 8.
The State charged Turnley 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 Turnley guilty as to all three. Turnley admitted in his
statement to the police and at trialand concedes in this appealthat he conspired
with Thacker on the morning of the 28th to burglarize the Hollowells home.
However, he contends that the evidence presented at trial was of a
single agreement to commit burglary, not of three separate agreements (two to commit
burglary and one to commit murder).
The State responds that Thacker and Turnley made three separate agreements. In
support of the second conspiracy to commit burglary, the State points to Turnleys
testimony at trial. Turnley responded affirmatively when asked on cross-examination, So, it
was decided . . . after you went over there the first time
and Mr. Thacker couldnt find any money inside the apartment, that hed come
back later that evening? Turnley later testified, consistent with his statement to
police, that he and Thacker had agreed on the morning of February 28
to return that evening to take Moniques purse if they were unsuccessful in
the afternoon. Because the evidence regarding the second conspiracy to commit burglary
was conflicting, the State contends it was the jurys prerogative to conclude that
there were two separate agreements to commit burglary. In support of a
separate agreement to commit murder, the State points to Turnleys statement to police
in which he said that, before Thacker and he entered Moniques bedroom, Thacker
told him, [W]e have to kill her now. When asked why Thacker
made that statement, Turnley responded, I have no idea. He uh, if
we cant creep past and get the purse, I have to kill her.
Conspiracy to Commit Burglary
We agree with Turnley that there was only one agreement to commit a
burglary. The agreement was to attempt to locate the money during the
afternoon, while Monique was at work, but it also contemplated returning that evening
if the money could not be found. After the afternoon burglary proved
unfruitful, the men returned twelve hours later to try again to locate the
money. As the United States Supreme Court observed in Braverman, 317 U.S.
Whether the object of a single agreement is to commit one or many
crimes, it is in either case that agreement which constitutes the conspiracy which
the statute punishes. The one agreement cannot be taken to be several
agreements and hence several conspiracies because it envisages the violation of several statutes
rather than one.
Here, Turnley committed and was properly convicted of two burglaries. These crimes,
however, were committed pursuant to a single agreement to steal money from Monique
Hollowell. Accordingly, only one conspiracy to commit burglary conviction (Count IV) can
Conspiracy to Commit Murder
The Braverman rule does not apply, however, to the conspiracy to commit murder
count. Although the original agreement to steal Moniques money envisioned the possibility
of two separate burglaries, it did not envision killing her. The State
argues that there is evidence that Thacker and Turnley formed a separate agreement
to kill Monique at the top of the stairs immediately before entering her
room. Under this view, Thackers statement that Monique must be killed followed
by Turnleys assisting in the killing formed an agreement to do Monique in.
Even if the evidence supported an agreement apart from participation in the murder,
the conspiracy to commit murder count must be vacated because it would violate
the Indiana Double Jeopardy Clause.
See Ind. Const. art. I, § 14.
As this Court recently explained in Richardson v. State, 717 N.E.2d 32,
53 (Ind. 1999),
To show that two challenged offenses constitute the same offense in a claim
of double jeopardy, a 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
The conspiracy to commit murder charge, which was read to the jury as
part of the preliminary instructions, alleged that Turnley agreed with Thacker to murder
Monique by strangulation and that Turnleys restraint of Monique on a bed was
the overt act in furtherance of that agreement. The murder charge, also
read to the jury as part of the preliminary instructions, alleged that Turnley
knowingly killed Monique by manual strangulation.
Under these instructions, there is at
least a reasonable possibilityindeed a high probabilitythat the jury used the same evidentiary
factthe restraining and strangulation of Moniqueto prove an essential element of the conspiracy
to commit murder (the overt act) and also the essential element of murder.
Thus, even if there was a separate agreement to murder, conviction of
conspiracy to commit murder and murder would violate the Indiana Double Jeopardy Clause.
Accordingly, we remand to the trial court with instructions to vacate this
Frank Turnleys convictions for murder, criminal deviate conduct, two counts of burglary, and
one count of conspiracy to commit burglary (Count IV) are affirmed. This
case is remanded with instructions to vacate Count III (conspiracy to commit murder)
and Count VI (conspiracy to commit burglary).
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
As an alternative, Turnley asserts that there is insufficient evidence to support
these convictions. We need not address this contention, which essentially duplicates the
issue as framed in the text, because we vacate two of the conspiracy
convictions on other grounds.
We note that the jury was not instructed on the "one conspiracy,
one conviction" rule. Rather, the trial court gave a single instruction defining
the crime of "conspiracy." No other instruction suggested that the State needed
to prove separate agreements to prove each separate conspiracy count. The jury
may very well have been left with the impression that one agreement could
support more than one conspiracy count.
The closing arguments of counsel were not included in the record of
There appears to be a clerical error in Part 2 of the
Abstract of Judgment, which lists Count V as running concurrently with other counts.
This is at odds with the trial court's sentencing statement that "Count
Five [twenty years] will be run consecutively to sentence imposed on Counts One
[sixty-five years], Seven [twenty years], Six [twenty years] and Eight [twenty years]."
It is also at odds with the statement in Part 3 of the
Abstract that the total sentence is 145 years. When preparing an amended
abstract to reflect the vacated counts, the trial court can easily correct this
clerical error as well.