ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Eugene C. Hollander Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
INDIANA SUPREME COURT
ANDREW RUSSELL LUNDBERG, )
v. ) 51S00-9808-CR-438
STATE OF INDIANA, )
APPEAL FROM THE MARTIN CIRCUIT COURT
The Honorable R. Joseph Howell, Judge
Cause No. 51C01-9703-CF-N16
On Direct Appeal
May 24, 2000
The defendant-appellant, Andrew Russell Lundberg, appeals from his convictions for the 1996 murder
of John Isenhour, Jr., and conspiracy to commit murder.See footnote The trial court
imposed a sixty-five-year sentence for murder and a fifty-year sentence for conspiracy, to
run consecutively. We hold that the defendant was not entitled to discharge
for delay under Indiana Criminal Rule 4(C) and that, under the facts of
this case, the Indiana Double Jeopardy Clause prohibits his conspiracy conviction.
Speedy Trial Under Criminal Rule 4(C)
The defendant contends that the trial court erroneously denied his motion for discharge
under Indiana Criminal Rule 4(C), which provides for the discharge of a defendant
held to answer a criminal charge for a period aggregating more than one
year, except when the delay is caused by the defendant or by reason
of emergency or congestion of the court calendar. The defendant concedes that
his motion for change of venue caused a 210-day delay but contends that
he was entitled to be discharged when he was not brought to trial
by February 5, 1998.
The defendant's jury trial was scheduled to begin on September 30, 1997.
On September 25, 1997, at a pre-trial hearing, the defendant amended his witness
list, adding the name of an expert witness. The State, not having
had the opportunity to depose the witness or to address the evidence in
preparation for trial, sought a continuance to afford it time for further discovery.
The defendant objected, asserting that he had stated his intention to use
an expert witness in a filing on January 15, 1997,
See footnote but acknowledged that
he did not obtain this witness until approximately thirty days before trial.
The trial court ordered the defendant to produce his expert witness on September
29, 1997, at a hearing to determine the reliability of the expert's scientific
evidence, with the State to take a deposition following the hearing. The
defendant's expert did not appear at the hearing, but sent two affidavits to
be used in lieu of his testimony: one describing his qualifications as
a psychiatrist, and the other describing his proposed testimony. The State sought
a continuance or an exclusion of the witness due to the defendant's late
disclosure of the witness, and the defendant objected, asking the trial court to
proceed with the trial and to allow the State to take a deposition
at some time during the trial. The trial court expressed concerns about
the feasibility of the defendant's request, noting that the affidavit produced by the
expert raised questions requiring a hearing to determine the scientific reliability of the
evidence; that both parties might be prejudiced if the trial court were unable
to determine before trial whether to permit the expert testimony, thus preventing the
parties from referring to the evidence in opening argument; and that this procedure
might require a significant delay in the middle of trial.
The trial court granted the continuance, finding that, although it had attempted to
conduct the necessary proceedings to resolve the issues, it was unable to do
so because of the defendant's actions, specifically the defendant's late amendment of his
witness list, his retention and consultation with an expert within 30 days of
trial, his failure to provide to the State a written report of the
expert's conclusions, and his failure to present the expert at a scheduled hearing
or make the expert available to the State for pretrial discovery. The
trial court also "notifie[d] the parties that, when rescheduling the jury trial now
vacated . . . , the cause shall receive priority consideration, but the
court's trial calendar and the timeliness of notice by counsel that the cause
is ready for trial will affect when the cause reasonably may be tried."
Record at 841. The court ordered that the defendant contact his
expert and notify the State when the expert would be available to be
deposed and that a hearing on the reliability issue would be scheduled once
a deposition had been obtained.
On November 3, 1997, the defendant notified the trial court that the witness
would appear by agreement for a hearing on December 17, 1997. A
hearing on the reliability of the scientific evidence was held on that date.See footnote
On January 6, 1998, the trial court scheduled the jury trial to
begin on April 21, 1998. On April 3, 1998, the defendant filed
a motion for discharge pursuant to Criminal Rule 4(C). The jury trial
began on April 21, 1998, and on April 29, 1998, out of the
jury's presence, the trial court conducted a hearing on the defendant's motion for
discharge. The court denied the defendant's motion, finding that the delays about
which the defendant complained were a direct result of the defendant's failure to
obey the court's pretrial orders and the defendant's desire to present the testimony
of the expert witness.
The defendant's failure to comply with the trial court's order that the witness
appear for a hearing and deposition before trial caused a 78-day delay when
the evidence reliability hearing was rescheduled for December 17, 1997. Under Criminal
Rule 4(C), the time allowed for the jury trial to begin was thus
extended by 78 days to April 24, 1998. Because the trial commenced
on April 21, 1998, the trial court did not err in refusing to
discharge the defendant under Criminal Rule 4(C).
The defendant contends that his conviction and sentence for conspiracy to commit murder
should be vacated because the conspiracy was proven by the same facts as
those used to establish the murder conviction. The defendant argues that he
received multiple convictions for the commission of a single act and, citing cases
addressing the Double Jeopardy Clause of the Indiana Constitution, urges that principles of
double jeopardy apply.
To show that two challenged offenses constitute the same offense under the actual
evidence test of 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 v. State, 717 N.E.2d
32, 53 (Ind. 1999); Guffey v. State, 717 N.E.2d 103, 106 (Ind. 1999).
In closing argument, the State summarized the facts that it believed established the
conspiracy, including the defendant's admission that there was a plan to kill the
victim because Phillip Foutch, the defendant's friend and employer, wanted the victim dead
and the actions undertaken by Foutch and the defendant in preparing to kill
the victim. These acts included: "target practice [to show Foutch that
the defendant could use the gun], shooting in[to] a block of wood [while
Foutch listened outside the house to see if the shot could be heard],
using [Patrick] Hanover as a lure, [purchasing] the fireworks [and setting them off
immediately after the shooting to cover the sound of the gun shot], choosing
Fort Rittner Bridge [as a location for disposing of the body], [storing near
the murder scene] the gloves, [and] the trash bags." Record at 3262.
The State also noted that an agreement could be inferred from the
way the parties acted, particularly that "it all happened quickly as if there
was a plan and . . . before [the victim] was falling on
the ground, here comes [Foutch] to . . . get the supplies needed
to take care of the body," record at 3262, and that the whole
affair, including disposing of the body off a bridge in an isolated location,
returning and cleaning the murder scene, and disposing of the soiled carpet at
a different, isolated location took no more than an hour and a half.
Evidence at trial showed that Foutch purchased the gun just a few days
before the shooting, that the day after the shooting Foutch wrote checks from
which both the defendant and Hanover received money, and that the defendant became
Foutch's partner and was added to Foutch's checking account around the time of
the killing. Further, the police obtained evidence of the checks and the
block of wood containing a "test" shot based upon information from the defendant,
who denied that there was a conspiracy, but confirmed that he told the
police about this evidence. Hanover, who was present when the victim was
shot but denied knowledge of a plan, testified that the shooting appeared to
him to have been very well planned. Thus, there is evidence in
the record from which a jury could find a conspiracy to commit murder.
The actual evidence test, however, does not evaluate whether the evidence is sufficient
to support a conviction, but whether there is a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of murder
may also have been used to establish the essential elements of conspiracy to
commit murder. Despite the evidence of other overt acts, the jury was instructed
A person conspires to commit a felony when, with the intent to commit
the felony, he agrees with another person to commit the felony. . .
. 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. To convict the defendant of conspiracy to commit murder, the State
must have proved each of the following elements: the defendant, . .
. (1) agreed with Phillip Foutch to commit the crime of murder, to-wit:
to intentionally kill a human being, to-wit: John A. Isenhour, Jr., (2)
with the intent to commit a crime, and (3) [the defendant] performed an
overt act in furtherance of the agreement to knowingly or intentionally kill another
human being, to-wit: [the defendant] shot John A. Isenhour, Jr. with a three
fifty seven (.357) handgun at the home of Phillip Foutch. . . .
If the State did prove each of these elements, beyond a reasonable doubt,
you should find the defendant guilty of the crime of conspiracy to commit
Record at 3300-01 (emphasis added). Thus, the jury was instructed that it
could consider a single overt actthat the defendant shot the victimin order to
find the defendant guilty of conspiracy. Although the State presented evidence of
other overt acts that might support a conviction of conspiracy, it is reasonably
possible that the jury used the same evidence to establish the essential elements
of both murder and conspiracy to commit murder. Because such convictions thus
violate the Indiana Double Jeopardy Clause, we vacate the conviction for conspiracy to
The defendant's conviction for murder is affirmed, and his conviction for conspiracy to
commit murder is vacated.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
Ind. Code § 35-42-1-1.
Ind. Code §§ 35-41-5-2; 35-42-1-1.
The defendant's "Production of Witnesses and Exhibits," filed January 15, 1997, included:
"#11. Expert Psychologist or psychiatrist identity undetermined at present."
Record at 425. It appears that nothing further was disclosed until the
State contacted the defendant on September 19, 1997, to determine whether the defendant
planned to present expert testimony.
Footnote: It appears from argument that the State chose not to depose the
expert due to the cost, instead obtaining its own expert who reviewed the
affidavit of Dr. Davis and participated in the evidentiary hearing.
Footnote: In light of our resolution of this issue, we need not consider
the defendant's claims of error in amending the charging instrument to add the
conspiracy charge or insufficient evidence to support the conspiracy conviction.