Natalie E. Murrell v. State of Indiana

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL C. WIENEKE GREGORY F. ZOELLER
Wieneke Law Office, LLC Attorney General of Indiana
Greencastle, Indiana
IAN MCLEAN
FILED
Deputy Attorney General
Indianapolis, Indiana
Jan 25 2012, 8:49 am
CLERK
IN THE of the supreme court,
court of appeals and
tax court
COURT OF APPEALS OF INDIANA
NATALIE E. MURRELL, )
)
Appellant-Defendant, )
)
vs. ) No. 67A01-1106-CR-251
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE PUTNAM CIRCUIT COURT
The Honorable Matthew L. Headley, Judge
Cause No. 67C01-1101-FC-1
JANUARY 25, 2012
OPINION - FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Defendant-Appellant Natalie E. Murrell appeals her two convictions of attempted
trafficking with an inmate, one as a Class C felony and one as a Class A misdemeanor,
Ind. Code § 35-44-3-9 (2009), and the sentence imposed upon those convictions. We
affirm in part and remand in part.
ISSUES
Murrell raises three issues, which we restate as:
I. Whether the finder of fact erred by rejecting Murrell’s defense of duress.
II. Whether the penalty for Murrell’s Class C felony conviction violates
Article I, Section 16 of the Indiana Constitution (“the proportionality
clause”).
III. Whether the case should be remanded to clarify Murrell’s sentence.
FACTS AND PROCEDURAL HISTORY
On January 1, 2011, Murrell came to the Putnamville Correctional Facility (“the
prison”) to visit inmate Willie Davis. Murrell is the aunt of two of Davis’ children.
Murrell set off security devices as she attempted to enter the prison. During questioning
by a correctional officer, Murrell admitted that she had contraband on her person and
turned over four cellular telephones and a bag of tobacco.
The State charged Murrell with two counts of attempted trafficking with an
inmate. The Class C felony charge addressed the cellular telephones, and the Class A
misdemeanor charge focused on the tobacco. The case was tried to the bench. At trial,
Murrell conceded that she brought the contraband to the prison to give to Davis. She
asserted a defense of duress, claiming that persons unknown to her had called her and
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threatened her with harm if she did not deliver the contraband to Davis. The trial court
determined that Murrell was guilty and subsequently sentenced her to three years on the
Class C felony conviction and one year on the Class A misdemeanor conviction, with all
but one hundred and eighty days suspended to probation. This appeal followed.
DISCUSSION AND DECISION
I. DURESS
Murrell argues that she presented sufficient evidence to support her defense of
duress and that the State failed to rebut her defense. When reviewing a claim that the
State has failed to present sufficient evidence to rebut a defense, we apply the same
standard as to other challenges to the sufficiency of the evidence. Gallagher v. State, 925
N.E.2d 350, 353 (Ind. 2010). A conviction must be affirmed if the probative evidence
and reasonable inferences drawn from the evidence could have allowed a reasonable trier
of fact to find the defendant guilty beyond a reasonable doubt. Id. We consider only the
probative evidence and reasonable inferences supporting the judgment. Joslyn v. State,
942 N.E.2d 809, 811 (Ind. 2011).
Duress is a defense provided by statute. The governing statute provides:
It is a defense that the person who engaged in the prohibited conduct was
compelled to do so by threat of imminent serious bodily injury to himself or
another person. With respect to offenses other than felonies, it is a defense
that the person who engaged in the prohibited conduct was compelled to do
so by force or threat of force. Compulsion under this section exists only if
the force, threat, or circumstances are such as would render a person of
reasonable firmness incapable of resisting the pressure.
Ind. Code § 35-41-3-8 (1977). The compulsion that will excuse a criminal act must be
clear and conclusive. Love v. State, 271 Ind. 473, 393 N.E.2d 178, 179 (1979). Such
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compulsion must arise without the negligence or fault of the defendant who claims this
defense. Id. Furthermore, the alternative with which the defendant is faced must be
instant and imminent. Id.In this case, on December 31, 2010, Davis called Murrell and asked her to bring
him cellular telephones and tobacco or his fellow inmates would stab him. Davis gave
Murrell’s telephone number to unidentified individuals, who called Murrell several times
on that day and threatened to “have somebody mess [her] up” unless she brought
contraband to the prison. Tr. p. 14. One of the individuals who had called Murrell had
also promised to pay for her medicine. Pursuant to the telephone calls, Murrell met with
an unknown person at a liquor store at 10:00 p.m. on December 31, 2010, and the person
gave her the cellular telephones and tobacco. The next day, Murrell went to the prison
and was caught as she attempted to enter.
We conclude that the trial court did not err by rejecting Murrell’s defense of
duress. She was threatened, but she was also promised that she would receive money for
medicine in exchange for delivering the contraband. Given this evidence of a potential
reward to Murrell, we cannot say that the compulsion she faced was clear and conclusive.
Furthermore, even if the threats were valid, the threatened harm to Murrell’s person was
no longer imminent by the time she arrived at the prison. She could have contacted the
police for help at any time after she received the contraband and before going to the
prison the next day, and she failed to do so. Murrell’s argument is a request to reweigh
the evidence, which we cannot do. See Hensley v. State, 583 N.E.2d 758, 761 (Ind. Ct.
App. 1991) (determining that the evidence did not support a defendant’s defense of
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duress where the threatened harm was not imminent; the defendant had ample time to
seek help from the authorities before he left the state, thereby violating a condition of his
probation). We find no error.
II. PROPORTIONAL PENALTY
Murrell argues that her Class C felony conviction for attempted trafficking of
cellular telephones to Davis is disproportionately harsh and violates the proportionality
clause of the Indiana Constitution. That section provides, “All penalties shall be
proportioned to the nature of the offense.” Ind. Const. art. I, § 16. Our review under the
proportionality clause of a legislatively-sanctioned penalty is very deferential. State v.
Moss-Dwyer, 686 N.E.2d 109, 111 (Ind. 1997). We begin with a presumption of
constitutional validity, and therefore the party challenging the statute labors under a
heavy burden to show that the statute is unconstitutional. Id. at 112. We will not disturb
the legislative determination of the appropriate penalty for criminal behavior except upon
a showing of clear constitutional infirmity. Id. at 111-12. A legislatively-determined
penalty will be deemed unconstitutional by reason of its length only if it is so severe and
entirely out of proportion to the gravity of the offense committed as to shock public
sentiment and violate the judgment of reasonable people. Foreman v. State, 865 N.E.2d
652, 655 (Ind. Ct. App. 2007), trans. denied.
A person who knowingly or intentionally delivers an article to an inmate without
prior authorization from a prison official commits a Class A misdemeanor. Ind. Code §
35-44-3-9. However, the offense is elevated to a Class C felony if the article in question
is a controlled substance, a deadly weapon, or “a cellular telephone or other wireless or
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cellular communications device.” Id. At the time Murrell committed her crimes, the
advisory sentence for a Class C felony was four years, with a minimum of two years and
a maximum of eight years. Ind. Code § 35-50-2-6 (2005).
Murrell’s proportionality claim has two aspects. First, she argues that assigning
Class C felony status to trafficking in cellular telephones as well as to trafficking in
controlled substances and deadly weapons is disproportionate because “cellular
telephones are inherently benign. They can be used to facilitate nefarious acts, but unlike
deadly weapons and controlled substances, they do not pose any inherent danger.”
Appellant’s Br. pp. 4-5. Thus, because cellular telephones are not as dangerous as
weapons or controlled substances, Murrell contends, it is constitutionally inappropriate to
impose the same penalty for those items.
We find this Court’s opinion in Foreman to be instructive. In that case, Foreman
was convicted of disclosure of confidential information relating to the lottery, a Class A
felony. On appeal, Foreman argued that his crime should not have been punished as a
Class A felony because the penalty range was not proportional to the nature of the
offense. Specifically, Foreman contended that his crime was not a threat to public safety
like other Class A felonies, including crimes of violence or drug trafficking. This Court
disagreed, noting that Foreman’s disclosure of confidential lottery information had the
potential to undermine public confidence in the lottery and to hinder the generation of
revenue for the state. Furthermore, such a crime is difficult to detect, which justifies a
higher penalty for the sake of deterrence. Based upon these considerations, this Court
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concluded that the penalty imposed upon Foreman was not disproportionate even though
his crime was dissimilar to other Class A felony offenses. Foreman, 865 N.E.2d at 659.
Here, we cannot conclude that Murrell’s Class C felony conviction for attempting
to provide cellular telephones to an inmate violates the proportionality clause. The
presence of cellular telephones in a prison undermines discipline and can facilitate other
misconduct. Furthermore, inmates with cellular telephones can direct criminal activity
from behind bars, thereby defeating the purpose of removing convicted criminals from
society to serve their sentences. See United States v. Byers, 649 F.3d 197, 203 (4th Cir.
2011) (affirming the convictions of an incarcerated individual who had used a contraband
cellular telephone to arrange the murder of a witness against him in a pending case), cert.
denied, 132 S.Ct. 468 (2011). Based on these considerations, we cannot conclude that
Murrell’s punishment for a Class C felony is disproportionate merely because trafficking
in cellular telephones is treated similarly to trafficking in controlled substances and
weapons. See Foreman, 865 N.E.2d at 659.
Next, Murrell contends that her punishment violates the proportionality clause
because she is being punished much more severely for trafficking in cellular telephones
than an inmate would be punished for possessing a cellular telephone. Murrell notes that
an inmate who possesses a cellular telephone in a county jail is guilty of a Class A
misdemeanor, Ind. Code § 35-44-3-9.6 (2010), but no statute directly addresses inmates
at state prisons who possess cellular telephones. Thus, she contends, her Class C felony
conviction is unconstitutional because inmates who would use the telephones for criminal
ends are punished less severely than the people who merely bring them to the prison. We
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disagree. It would be difficult, if not impossible, for an incarcerated person to possess a
cellular telephone if a visitor did not bring one into the prison. Therefore, the legislature
could have reasonably decided it is easier to deter contraband by punishing most harshly
those who attempt to bring contraband into a prison. We cannot conclude that punishing
Murrell for trafficking in cellular telephones more severely than an inmate would be
punished for possessing the same item is so severe and entirely out of proportion to the
gravity of the offense committed as to shock public sentiment and violate the judgment of
reasonable people. Therefore, Murrell’s proportionality clause claim is without merit.
III. SENTENCING
Murrell notes that at her sentencing hearing, the trial court stated that the sentences
for her Class C felony conviction and her Class A misdemeanor conviction would be
served concurrently, but in the final order, the trial court ordered her to serve her
sentences consecutively. Murrell contends that we should instruct the trial court to
clarify that her sentences are to be served concurrently. The State agrees that the case
should be remanded for clarification but does not express an opinion as to whether
concurrent or consecutive sentences are appropriate.
The approach employed by Indiana appellate courts in reviewing sentences in non-
capital cases is to examine both the written and oral sentencing statements to discern the
findings of the trial court. McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007). Rather
than presuming the superior accuracy of the oral statement, we examine it alongside the
written sentencing statement to assess the conclusions of the trial court. Id. This Court
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has the option of crediting the statement that accurately pronounces the sentence or
remanding for resentencing. Id.In this case, neither the trial court’s oral sentencing statement nor the written
sentencing order identifies any grounds that would support the imposition of consecutive
sentences. In the absence of such grounds, the trial court’s oral statement ordering
Murrell to serve concurrent sentences is more appropriate. Consequently, we remand
with instructions for the trial court to correct its written sentencing order to impose
concurrent sentences upon Murrell’s convictions.
CONCLUSION
We affirm Murrell’s convictions but remand for correction of her sentence.
Affirmed in part and remanded in part.
NAJAM, J., and BROWN, J., concur.
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