James H. Voyles , Dennis E. Zahn , Mark C. Webb , Symmes, Voyles, Zahn, Paul & Hogan , Indianapolis, for Appellant .
Pamela Carter , Attorney General , Lisa M. Paunicka , Deputy Attorney General , Indianapolis, for Appellee .
ON DIRECT APPEAL
We are called upon to review Paula Willoughby 's conviction for Murder, Indiana Code § 35-42-1-1 , and Conspiracy to Commit Murder, I.C. § 35-41-5-2 , a Class A felony, as well as her consecutive sentences totaling 110 years. We affirm the convictions, but reduce the sentence to forty years on the Murder count, and thirty years on the Conspiracy to Commit Murder count.
Paula Willoughby , Kevin Spore , and Douglas Stueber were co-workers at an Indianapolis business. Willoughby, a married mother of two children, apparently disenchanted with her husband, began an extra-marital affair with co-worker Stueber in June of 1991 . Desiring to be free of the constraints of marriage without suffering the coincident inconvenience of divorce, and aware of insurance on her husband's life, Paula Willoughby asked Douglas Stueber to kill Paula's husband, Darrell Willoughby .
At trial, Douglas Stueber testified that he talked with co-worker Kevin Spore in hopes of finding an assassin for hire. Stueber testified that Paula Willoughby 's co- defendant , Kevin Spore , agreed to kill Darrell Willoughby for $700.00. Stueber further testified that the trio eventually devised a plan to kill, in a drive-by shooting, Darrell Willoughby . Paula Willoughby provided Douglas Stueber with a list of family vehicles and license-plate numbers, and described the route which Darrell followed to work each morning; Stueber agreed to drive the vehicle and provide the weapon for the drive-by shooting.
Early in the morning of July 1, 1991 , the Willoughbys' neighbors noticed two men sitting in a truck parked down the road from the Willoughby family residence. Later that morning, at approximately 6:30 a.m., police were notified of a motorcycle accident occurring on Georgetown Road alongside the Indianapolis Motor Speedway. Officers arriving at the scene discovered that a motorcycle had crashed into the Speedway's Gate Six, and that the motorcycle's driver, Darrell Willoughby , was dead. While investigating the accident scene, officers discovered blood spots and spent bullet-shell casings in the road. Examining Darrell Willoughby 's body, they discovered multiple gunshot wounds.
That same morning, after word of Darrell Willoughby 's murder reached the community, police received an anonymous telephone call informing them that Paula Willoughby had been having an extra-marital affair. The evening of Darrell Willoughby 's murder Police then arrested Stueber as a suspect in Darrell Willoughby 's murder. In the course of a series of statements made to police, Stueber admitted driving the truck used in the drive-by shooting scheme, and implicated Paula Willoughby and Kevin Spore in the murder and conspiracy to commit murder. Both Paula Willoughby and Kevin Spore were arrested later that day.
Paula Willoughby , accompanied by her brother and Douglas Stueber , met with investigators. Willoughby denied having an affair with anyone, including Stueber. Continuing their investigation, police obtained a search warrant for Stueber's apartment and truck, executed the warrant, and discovered that Stueber's truck matched the description of the truck that neighbors had seen parked near the Willoughbys' residence the morning of the murder. Investigators discovered a box of .22 caliber ammunition in Stueber's apartment. The shell casings in that box matched the shell casings found at the crime scene. Police discovered numerous photos of Paula Willoughby in Stueber's truck.
Initially, all three suspects were charged together for the murder and conspiracy to commit the murder of Darrell Willoughby . Later, as a result of Stueber's original statement to police, he was given limited immunity, and his trial was severed from the trial of the other co- defendants .
Paula Willoughby and Kevin Spore went to trial on murder and conspiracy to commit murder charges on March 9, 1992 . After a mistrial resulting from a police-officer witness mentioning a polygraph exam, a second trial began on August 3, 1992 . ( R. at 1212, 1565 .) At the end of the second trial, the jury returned a guilty verdict against Paula Willoughby on both the murder and conspiracy counts, but found Co- Defendant Kevin Spore not guilty on both counts. The trial court sentenced Paula Willoughby to the maximum sentence on both counts: sixty years on the murder count, fifty years on the conspiracy to commit murder count, and ordered Willoughby to serve these sentences consecutively.
DISCUSSIONWilloughby, now before us on direct appeal, raises six issues:
I. Whether Willoughby's second trial, after the mistrial triggered by a police officer's comment about a polygraph exam, constituted double jeopardy.
II. Whether the State took improper advantage of the mistrial by later filing a second information expanding the dates of the conspiracy charged in the second trial.
III. Whether a black juror was improperly excused from Willoughby's jury panel .
IV. Whether hearsay evidence was erroneously admitted.
V. Whether Willoughby's motion for mistrial during her second trial was erroneously denied where the State allegedly implicitly referred to police attempts to have Willoughby submit to a polygraph examination, and where the State allegedly referred, during closing arguments, to her co- defendant 's failure to testify.
VI. Whether Willoughby's sentences totaling 110 years are proper.
As to issues I through V, because we answer each of these questions in the negative, the decision of the trial court is affirmed. As to issue VI, we affirm the trial court 's decision to sentence consecutively. However, we reduce Willoughby's sixty-year murder sentence to forty years, and her fifty-year conspiracy to commit murder sentence to thirty years. Each of these issues is developed below. Facts supplement each discussion as necessary.
We first examine the issue of whether the prohibition against double jeopardy bars a second trial after a State's witness causes a mistrial. Willoughby argues that the prohibition against double jeopardy as set forth in both the United States Constitution and the Indiana Constitution should have prevented her retrial after the trial court declared a mistrial. During Willoughby's first trial, a State's witness, Officer William Jones , described the steps he took to investigate Darrell Willoughby 's murder, and recounted in Q: Okay. Was there anything mentioned about Doug Stueber at that point?
detail various events which occurred during his investigation. (R. at 1156-82.) During this examination, the following exchange between Officer Jones and the prosecutor took place
Q: Okay. Did you have any opportunity then to have photographs taken of Mr. Stueber's truck?
Q: And, when did you do that?
A: We photographed Doug Stueber 's truck as it sat in front of Paula Willoughby 's residence on July 2 nd.
Q: And, did you personally observe the vehicle at that time?
A: Yes, I observed the vehicle.
Q: I believe you've previously testified to the jury that on the evening of July 1 st you'd received a report of Mr. Stueber's truck being at that location, and actually ran a license check, is that correct?
Q: All right. And, did you observe the same license number, on the evening of July 2 nd, that had been previously reported to you on July 1 st?
Q: Did you have the opportunity, at that time, on July 2 nd--having observed his truck--to interview or talk with Doug Stueber ?
Q: And where did that take place?
A: I'd gone to Paula Willoughby 's house to inform her of our previous arrangement for her to take a polygraph test.
Immediately upon mention of a polygraph test, Willoughby's counsel moved for a mistrial. ( R. at 1183-84 .) The trial court granted Willoughby's motion for a mistrial , but found that Officer Jones' comments were not intended to force Willoughby into moving for a mistrial:
I would note for the record that the police officer's comment was not made as a result of an intentional question by the prosecutor ; rather, it was a relatively innocuous question by the prosecutor that invoked that response. Nor, do I believe that the--based upon what I know at this time--that the police officer involved intentionally used the word polygraph with the intent of getting that information before the jury properly. At least, as far as I'm concerned, I hope that the prosecutor and the police officer didn't do it intentionally. I see no evidence of that--or, heard no evidence of that. And, these kinds of things unfortunately do happen--by accident.
After the mistrial, the State filed a motion to dismiss the charges , which the trial court granted. ( R. at 99 .) The State later filed a new information which again charged murder and conspiracy to commit murder. ( R. at 1230-31 .) The Defendants filed a motion to dismiss the charges , arguing that the second trial would violate prohibitions against double jeopardy. In denying the Defendants ' motion to dismiss , the trial court stated:
Well first of all I want to say I believe that mention of the word polygraph by the detective was in this situation inadvertent. It was in response to a question what did you do next. He said he want [sic] over to Mrs. Willoughbys [sic] house and offered her a polygraph. That's when the problem took place. I believe it was inadvertent. The State didn't intentionally cause the mistrial. Although sometimes you wonder whether or not police detectives are fully versed in all the intricacies of the law. None the less [sic] I believe in this situation .