ATTORNEY FOR APPELLANT

Deborah K. Smith  

Thorntown, Indiana

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Kimberly Macdonald   

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

JAMES R. WILLEY,             		)

   						)

	Appellant (Defendant Below), 	)	 

						)	

	v.					)	Supreme Court

 						)	Cause No. 06S00-9712-CR-654

STATE OF INDIANA,	    		)	

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE BOONE SUPERIOR COURT

	The Honorable Steve David, Special Judge

	Cause No. 06D01-9703-CF-23

	ON DIRECT APPEAL

June 17, 1999

BOEHM, Justice.

	A jury convicted James R. Willey of felony murder, involuntary manslaughter,

conspiracy to commit aggravated battery, conspiracy to commit burglary as a Class A felony, and burglary as a Class A felony.  Three of the counts were “merged” into the remaining two at sentencing, and Willey was sentenced to consecutive terms of fifty years for conspiracy

to commit burglary and sixty-five years for felony murder. 

	In this direct appeal, Willey contends that: (1) the trial court erred in admitting

testimony regarding the results of a polygraph examination; (2) the statement he gave to

police should have been suppressed as involuntary; (3) the trial court erred in allowing

hearsay statements by several witnesses regarding threats that Willey had made to the victim

and her fear of him; (4) the admission of several autopsy photographs of the victim

constitutes fundamental error; (5) his dual convictions and sentences for felony murder and

conspiracy to commit burglary violate federal double jeopardy; and (6) the trial court

improperly found two aggravating circumstances at sentencing.  We affirm the convictions

and sentence.

Factual and Procedural Background

	On March 12, 1997, Willey left Indiana for Florida where he stayed with his aunt. 

Eight days later, Janice Willey’s body was found in her garage by her son.  She had been

smothered, strangled and beaten with a sledgehammer.  Janice and Willey were married in

1963 and divorced in 1987.  Shortly after the divorce, Willey returned to the residence and

the two lived together until the fall of 1996 when Willey moved out of the home at Janice’s

request.  Willey retained a key to the home and returned virtually every day until Janice

started using a deadbolt in early 1997. 

	On March 23, 1997, police investigating Janice’s death spoke with Roger Barnard, a friend of Willey’s.  The following day, when police attempted to speak with him again,

Barnard shot and killed himself in the parking lot of a tavern.  

	On March 25, a Florida police officer spoke with Willey at the request of Indiana

authorities.  The officer told Willey that Barnard had shot himself and had implicated Willey

in Janice’s death before he died.  In fact, Barnard had said nothing about Willey.  The officer

asked Willey if he would be willing to take a polygraph examination and Willey replied that

he would submit to a polygraph in either Florida or Indiana, whichever the police preferred. 

The next day several Indiana State and Boone County police officials flew to Florida to meet

with Willey. 

	Willey agreed to meet with the officers at a Florida police station to give a statement

and take a polygraph examination.  At the station, the polygraph examiner, a reserve officer

of the Boone County Sheriff’s Department, orally advised Willey of his Miranda rights and

also gave him a written “Advice of Rights - Interrogation” form, which recited the Miranda

rights and also included a waiver of the right to remain silent and the right to legal counsel. 

Willey signed the form after reading it.  He also read and signed a “Polygraph Waiver”

which also included a statement of Miranda rights.  Willey signed a third document entitled

“Stipulation” stating that he waived his privilege against self-incrimination as to information

resulting from the polygraph examination.  The stipulation was orally reviewed point-by-

point and signed by Willey.  Willey declined the opportunity to have the interview recorded

in audio or video.

	In the polygraph interview Willey denied involvement in Janice’s death.  The polygraph certified examiner, Officer Klingler, after discussing the exam with Boone County

Sheriff Hudson, who was also polygraph certified, concluded that the test indicated

deception.  He then confronted Willey with his interpretation and asked Willey how it

occurred.  Willey initially made some admissions, and after individual questioning by the

other officers over the next few hours agreed to make a statement at about 10:00 p.m.  He

was given the option of writing or typing the statement himself, but asked Boone County

Sheriff Hudson to type it for him.  Willey then gave a statement that in substance admitted

to an agreement with Barnard to “rough up” Janice while Willey was in Florida.  Willey also

admitted to giving Barnard $7,000 in cash, some guns, and a watch “to hold for me . . . while

I was in Florida.”1

	According to Hudson, Willey appeared to be alert and coherent and to understand everything that was happening at the time he signed the statement.  Hudson reviewed

Willey’s Miranda rights before beginning the statement, read each paragraph to Willey

“word-for-word” after it was typed, and had Willey read and initial each paragraph after the

entire statement was typed.  

	Several days later the police transported Willey to Indiana.  At that time Willey was

again advised of his Miranda rights and agreed to talk to the transporting officers.  When

asked if the written statement was true, Willey stated that it was.  Willey was also asked

about each point in his typewritten statement to police and agreed that each was true.  Willey

also volunteered that “[i]f I just wanted [Janice’s] ass kicked, I would have done it myself.” 

	Willey was charged with conspiracy to commit aggravated battery, conspiracy to

commit burglary as a Class A felony, involuntary manslaughter, felony murder, and burglary

as a Class A felony.  He filed a pretrial motion to suppress his statement to police and all

evidence pertaining to the polygraph examination.  Both motions were denied after a hearing. 

A jury found Willey guilty of all charges.

I. Admissibility of Polygraph Results

	In his pretrial “Motion to Suppress and Exclude All Evidence Pertaining to Polygraph

Examination,” Willey raised several grounds for the inadmissibility of “all evidence” relating

to the polygraph examination.2  At trial Willey did not object to much of the polygraph examiner’s testimony, including the questions asked and the answers given.  But when the

State asked the polygraph examiner if he arrived “at a determination -- as to whether or not

the Defendant had told the truth on the relevant questions,” Willey objected on the ground

that the stipulation did not permit the trial court or jury to hear the results of the polygraph

test. 

	As this Court recently observed in Sanchez v. State, 675 N.E.2d 306, 308 (Ind. 1996), there are four prerequisites to the admission of polygraph results: (1) the prosecution,

defendant, and defense counsel3 must all sign a written stipulation providing for the defendant’s submission to the examination and for the subsequent admission at trial of the

results; (2) notwithstanding that stipulation, the admissibility of the test results is at the trial

court’s discretion regarding the examiner’s qualifications and the test conditions; (3) the

opposing party shall have the right to cross-examine the examiner if his or her graphs and opinion are offered into evidence; (4) the jury be instructed that, at most, the examiner’s

testimony tends only to show whether the defendant was being truthful at the time of the

examination, and that it is for the jury to determine the weight and effect to be given to the

examiner’s testimony.  The stipulation contained the following eight paragraphs:

	1. The above-named individual has requested that he be given a polygraph 	 	examination by a qualified Boone County Law Enforcement Officer.

	2. That Pamela Buchanan, Prosecuting Attorney, consents to said polygraph

 	examination.

	3. That the examiner will be competent polygraph examiner and qualified by his 

	education, training and experience to testify as an expert witness in interpreting the 

	results of the polygraph examination performed by him and the use of the polygraph 

	as a means of detection of deception.

	4. That the questions of the examiner, the answers by the individual any interrogation 

	or other things relating to said examination, may be admitted as evidence, either on 

	behalf of the State of Indiana or on behalf of the individual, subject to the discretion 

	of the Court trying such case.

	5. That the above-named individual hereby waives his constitutional privilege against 

	self-incrimination to the extent that the same may be involved in the presentation of 

	evidence in the foregoing matters.

	6. The above-named individual also understand that without his consent to the use of 

	these test results, said test results would otherwise be inadmissible.

	7. The defendant’s polygraph chart recordings, the examiner’s various work sheets 

	and all questions other than the relevant test questions are not to be introduced into 

	evidence.

	8. It is further understood by all parties that upon signing this Agreement and 

	Stipulation, it is not only binding upon them individually; but upon all further parties 

	and their successors in interest, i.e. such other counsel as the State or the defendant 

	may retain or employ for any trial or hearing involving this indictment.

	The stipulation is a contract between the State and Willey.  Atkinson v. State, 581 N.E.2d 1247, 1250 (Ind. 1991).  Contract law principles therefore control its use and

interpretation, including the well settled doctrine that an ambiguity is to be construed against

the party who prepared the contract.  See Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1132 (Ind. 1995); Rosenbaum Bros. v. Nowak Milling Corp., 222 Ind. 108, 112, 51 N.E.2d 623, 624 (1943).  Sheriff Hudson testified that he took a copy of a polygraph stipulation from an

adjoining county with him to Florida and called the Boone County Prosecutor’s officer for

further instruction.  After typing the stipulation from this form he faxed it to the prosecutor’s

office for its approval before presenting it to Willey.  Willey took no part in the preparation

of the stipulation, asked no questions about it, and made no changes to it.  Accordingly, any

ambiguity in the stipulation is to be construed against the State.  

	Paragraph four of the stipulation plainly and unambiguously allows the admission of

the examiner’s relevant test questions and Willey’s answers, and these were not objected to

at trial.  Rather, Willey’s objection was to the examiner’s opinion as to Willey’s truthfulness. 

The stipulation is ambiguous on this point. See USA Life One Ins. Co. v. Nuckolls, 682 N.E.2d 534, 538 (Ind. 1997) (a contract “is ambiguous only if it is ‘susceptible to more than

one interpretation and reasonably intelligent persons would differ as to its meaning’”)

(quoting Commercial Union Ins. v. Moore, 663 N.E.2d 179, 181 (Ind. Ct. App. 1996); Haxton v. McClure Oil Corp., 697 N.E.2d 1277, 1280 (Ind. Ct. App. 1998) (“A contract is ambiguous if reasonable people would find it subject to more than one interpretation.”).  The

State points to paragraph four, which provides that “the questions of the examiner, the

answers by the individual [and] any interrogation or other things relating to said examination, may be admitted as evidence . . . .”  However, in the context of a polygraph stipulation

entered into without the assistance of counsel, “other things” is too vague to alert a

reasonable defendant that the polygraph examiner will be permitted to give an opinion that

the defendant was deceptive or a liar.  The ambiguity of paragraph four is further

compounded by other paragraphs.  Paragraph three specifically provides that “the examiner

will be a competent polygraph examiner and qualified by his education, training and

experience to testify as an expert witness in interpreting the results of the polygraph

examination,” but it does not spell out that this testimony might be offered in court against

the defendant, or that “interpreting the results” may include an opinion as to truthfulness. 

Moreover, paragraph seven explicitly excludes from introduction into evidence at trial what

a reasonable person might believe to be at least part of the polygraph “results,” the polygraph

chart recordings and examiner’s worksheets.  Cf. Sisson v. State, 353 S.E.2d 836, 838 (Ga. Ct. App. 1987) (“‘The results’ of a lie detector test can be interpreted to be (1) the charts

resulting from a graphing of the responses of the person tested, and/or (2) the opinion of the

expert based on those charts.”).

	Other Indiana cases provide examples of stipulations that unambiguously provide for

the admission of a polygraph examiner’s opinion testimony regarding the defendant’s

truthfulness in answering questions.  See, e.g., Willis v. State, 268 Ind. 269, 273, 374 N.E.2d 520, 523 (1978) (stipulation provided “any interrogation or other things related to said

examination including the results and the opinions of the examiner relating to said

examination, be admitted as evidence”); Taylor v. State, 409 N.E.2d 1246, 1249-50 (Ind. Ct. App. 1980) (“I UNDERSTAND FURTHER that the results of this polygraph (lie detector)

test may be used in court against me or for me, that it may become an exhibit in any trial in

which I may be involved.  I FURTHER STIPULATE, UNDERSTAND AND AGREE that

the person administering said polygraph (lie detector) test, may explain, analyze or discuss

all or any portion of said test in open court . . . .”).  This stipulation does not.

	In addition to failing the Sanchez test requirement that the stipulation provide for “admission at trial of the [polygraph] results,” there is a separate and equally serious problem

with admissibility of this examiner’s opinion.  Willey submitted to the polygraph after being

informed, falsely, that Barnard had implicated him in the crime.  It is true, as the State points

out, that police deception does not vitiate a Miranda waiver and render a confession

inadmissible, but is rather one consideration that must be viewed in determining the “totality

of the circumstances.”  See, e.g., Frazier v. Cupp, 394 U.S. 731, 739, 89 S. Ct. 1420, 22 L. Ed.  2d 684 (1969); Ward v. State, 408 N.E.2d 140, 143 (Ind. Ct. App. 1980).  This is based in significant part on the view that the confession is easily understood by even the most

limited suspect to be a serious act and one that potentially has severe adverse consequences. 

One does not easily suppose that a false confession will be elicited by a false report of an

accusation.  The admissibility of a confession is predicated on its reliability, not on an

agreement that it may be admitted.  

	The same is not true of a stipulation to take a lie detector test.  Viewed as a matter of

contract, the stipulation is based on a misrepresentation of fact.  One can easily imagine that

an innocent suspect, confronted with a false report that a perpetrator had implicated the suspect, would agree to a lie detector test in the belief that it would exonerate the suspect. 

Moreover, the product of the deception does not share the reliability of a confession.  Indeed,

the courts of this state have repeatedly and correctly expressed severe reservations about the

reliability of polygraph results.  See, e.g., Madison v. State, 534 N.E.2d 702, 704 (Ind. 1989) (“the value of polygraph examinations is highly questionable . . .”); Reid v. State, 267 Ind. 555, 559, 372 N.E.2d 1149, 1152 (1978) (“in any given case, unreliable results may be

produced in a polygraph test by influences that cannot be controlled or compensated for by

a competent examiner”); Vacendak v. State, 264 Ind. 101, 110, 340 N.E.2d 352, 357 (1976) (“the degree of accuracy of these tests, currently rated at eighty percent[], is not sufficiently

accurate to mandate their admission on the question of guilt or innocence”) (footnote

omitted); Sauzer-Johnsen v. Sauzer, 544 N.E.2d 564, 569 (Ind. Ct. App. 1989) (“Polygraphs are inherently unreliable.”).  In order for this evidence to be admissible, it must be agreed to

in unambiguous terms and the stipulation agreement, like any other contract, must not be the

product of misrepresentation or mistake of fact. See, e.g., Park 100 Investors, Inc. v. Kartes, 650 N.E.2d 347, 349 (Ind. Ct. App. 1995) (“where one employs misrepresentation to induce

a party’s obligation under a contract, one cannot bind the party to the terms of the

agreement”); Martin Bros. Box Co. v. Orem, 117 Ind. App. 110, 112, 69 N.E.2d 605, 605-06 (1946) (“where there is any mistake of the contracting parties by which one of them has in

mind one thing as the subject matter of the contract and the other party has in mind

something entirely different, and the terms of the contract are such that it will mean either

the one or the other, there is no meeting of the minds, and therefore no contract”).

	Even though the trial court erred when it allowed this testimony, the error is harmless

“if its probable impact on the jury, in light of all of the evidence in the case, is sufficiently

minor so as not to affect the substantial rights of the parties.”  Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995); Ind. Trial Rule 61.  Willey admitted his involvement in an agreement

with Barnard to harm his ex-wife in a detailed typewritten statement to police, see supra note 1, and subsequently told the police that “[i]f I just wanted [Janice’s] ass kicked, I would have

done it myself.”  Based on these statements, it is clear that Willey was not telling the truth

when he denied any involvement in Janice’s death.  Equally important, taken at face value,

Willey’s own account of these events amounts to an admission that he conspired with

Barnard to commit a burglary and was an accomplice to a felony murder.  He concedes that

he and Barnard agreed that Barnard would enter Janice’s garage to commit a battery. 

Because that battery resulted in death, this is an admission to the felony murder and

involuntary manslaughter charges.  Because the polygraph examiner’s testimony, at most,

had a slight impact on the jury’s verdict, we hold that its erroneous admission was harmless.

II. Statement to Police

	  Willey also contends that the trial court erred when it denied his motion to suppress

his statement to the police because (1) he did not receive proper Miranda warnings

“throughout the interview process;” (2) he was not advised of the possible charges against

him; and (3) the statement was drafted by the police.  Willey concedes that the language in

the rights form that he read and signed complies with Miranda, but argues that the “one time reading” of the Miranda warnings shortly after 3:00 p.m. was not sufficient to properly advise him of his rights.  He points to the events following the initial advisement and waiver

of those rights.  The polygraph examination lasted until approximately 6:00 p.m., and then

the polygraph examiner discussed his conclusions with Willey and asked Willey for a

possible explanation of his finding of deception between 6:30 and 7:40.  Sheriff Hudson

interviewed Willey from 7:50 to 8:30, followed by Detective Knox’s interview from 8:40 to

9:20.  Detective Crane next interviewed Willey from 9:30 to 9:55, and then Marshal Effler

talked to Willey briefly.  All of the investigators returned to the interview room at

approximately 10:00 to finalize a statement from Willey.  Sheriff Hudson asked Willey if he

remembered being advised of his right to remain silent and the right to an attorney, and

Willey stated that he did.  The typewritten statement was then prepared, which Willey signed

at 10:40 p.m. 

	The Miranda warnings need not be repeated “if the circumstances surrounding the

interruption or adjournment of the process have not deprived the suspect of the opportunity

to make an informed and intelligent assessment of his interests involved in the interrogation.”

Heavrin v. State, 675 N.E.2d 1075, 1081 (Ind. 1996) (quoting Shane v. State, 615 N.E.2d 425, 427 (Ind. 1993)).  The rationale supporting this rule is that “if the interruption is part

of a continual effort by the police to gather information from the suspect, there can be little

doubt as to the suspect’s interest in the matter.”  Shane, 615 N.E.2d at 427.  Sheriff Hudson testified that Willey’s demeanor and alertness remained the same throughout the questioning.

Moreover, Willey did not leave the police station at any time.  Rather, he was questioned

continuously with a thirty minute break after the polygraph examination and ten minute breaks between interviews with each officer.  Willey’s interest remained clear throughout

this process and there was no need for each officer to readvise Willey of the Miranda

warnings.  Id.

	Willey also asserts error based on the alleged failure of the police to notify him of the

possible charges facing him.  However, Willey testified at trial that Sheriff Hudson told him

he could be charged with four or five different offenses, including murder.  Moreover, there

is no need to inform suspects of all potential charges before taking a statement because of

innumerable unknown factors that may affect the resulting formal charges.  Armour v. State, 479 N.E.2d 1294, 1298 (Ind. 1985); see also Allen v. State, 686 N.E.2d 760, 773 (Ind. 1997), cert. denied, ___ U.S. ___, 119 S. Ct. 807, 142 L. Ed. 2d 667 (1999) (rejecting contention that confession should be suppressed because investigating officers failed to notify defendant

of the reasons for the interrogation) (citing Colorado v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 954 (1987)).  Nor is Willey’s confession rendered involuntary because a police

officer typed it.  Willey was given the option of writing or typing the statement himself, but

requested that Sheriff Hudson type the statement for him.  The Sheriff was thorough and

patient in typing the statement.  He read every word of each typed paragraph to Willey and

asked whether it was correct before moving on to the next.  After the statement was typed

Willey initialed each paragraph and signed the statement twice.

	In sum, none of these three bases asserted by Willey renders his statement

involuntary. 

III. Admissibility of Hearsay Statements

	Willey next argues that the trial court erred when it overruled several of his hearsay

objections.  Eight witnesses, including the Willeys’ son, Willey’s sister, a co-worker and

close friends of Janice’s, police officers and a psychologist testified that Janice had told them

that she feared Willey and/or that Willey had threatened to kill her.  James Willey Jr.

testified that he spoke with Janice shortly after a May 5, 1996 incident that resulted in police

being called to his parent’s home.  He testified that his mother sounded afraid and upset. 

The State then asked if Janice told him “what was making her scared,” and defense counsel

objected based on hearsay.  The trial court overruled the objection and the witness responded

	[s]he said that he had threatened her life, that he would kill her and that she was 

	scared and as a result she had packed her bags and had moved out.  She had left.  She 

	had called 911 when things got too violent.  I mean, she didn’t say he had struck her, 

	just that he had clearly threatened and she was afraid for her life and so she called 

	911, they responded, they escorted her out of the house and she left. 

The testimony of the other seven witnesses is sufficiently similar to that quoted above that

its admissibility stands or falls under the same analysis that applies to this statement.4  

	At trial, the State asserted that this testimony was admissible because it was offered

to prove motive or intent, not the truth of the matter asserted.  However, it is readily apparent that this testimony was offered to prove the matter asserted, specifically that Willey had

threatened Janice.  Therefore, it is hearsay and inadmissible unless one of the exceptions

applies.  Motive and intent of the defendant are potentially relevant to the admissibility of

prior “bad acts” under Evidence Rule 404(b), but do not constitute an exception to the

hearsay rule.  On appeal, the State argues that this testimony falls under the state of mind

exception to the hearsay rule: “These comments directly establish Janice’s state of mind at

the time she made the statements and demonstrate her fear of Defendant.”  See Ind. Evidence Rule 803(3).

	 In addition to the requirement that hearsay fall under an exception to be admissible,

the Rules of Evidence also mandate that only relevant evidence is admissible.  Evid. R. 402. 

This Court recently observed that a “victim’s state of mind is relevant where it has been put

in issue by the defendant.”  Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997) (citing Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995); see also Lock v. State, 567 N.E.2d 1155, 1159-60 (Ind. 1991) (hearsay statements admissible to show the victim’s state of mind, in

part, because the relationship between the victim and defendant “was one of the contested

issues at trial”); 13 Robert L. Miller, Jr., Indiana Practice § 803.103A at 613 (2d ed. 1995) (admissibility under Rule 803(3) requires, among other things, that “the declarant’s

state of mind must be relevant to an issue in the case”) (citing United States v. Neely, 980 F.2d 1074, 1083 (7th Cir. 1992)).

	The record does not support the State’s claim that Willey put in issue his relationship

with Janice.  During opening statement the prosecutor noted that the Willeys were divorced and read Willey’s typewritten statement to the police, see supra note 1, which included the statements “I have threatened Janice before.  I was mad at Janice because she booted me out

last November 1996.”  Defense counsel’s opening statement made no specific mention of the

nature of the relationship between Willey and Janice.  Rather, defense counsel merely stated

that Willey “repudiates that statement in some respects and by that I mean to say he will

testify and tell you that that statement, regardless of what it says, is not really accurate in all

respects and he’ll explain that to you.”  It was clear from the outset of the trial that the

Willeys were divorced and that their relationship was strained.  This is not a situation as in Angleton, where the “defendant put the victim’s state of mind at issue by portraying her as a happily married wife who peacefully spent her time writing love notes and poems for her

husband.”  686 N.E.2d at 809.  

	The State also asserts that Willey’s alleged threats and Janice’s fear of him were

relevant because Willey testified at trial that he had not threatened Janice.  These witnesses

testified in the State’s case in chief, before Willey took the stand.  The State cannot bootstrap

this evidence into admissibility by putting it in, forcing a denial, and then claiming it was put

in issue by the defendant.  In sum, because Janice’s fear of Willey was not relevant to any

issue in the case and Willey did not place her state of mind in issue, we hold that the trial

court abused its discretion by allowing these witnesses to offer hearsay testimony regarding

Willey’s threats and Janice’s fear of him.5

	We disregard error in the admission of evidence unless it affects the substantial rights

of a party.  Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995).  An error will be found harmless if its probable impact on the jury, in light of all the evidence in the

case, is sufficiently minor that it did not affect the substantial rights of a party.  Id.  For the same reasons described in Part I., supra, the erroneous admission of this testimony was harmless error.

IV. Admission of Photographs

	Willey contends that the trial court erred by admitting several autopsy photographs

that showed the victim’s body in an altered condition.  Three of these photographs showed

the interior of the victim’s skull and one showed the pathologist’s gloved hands holding the

brain.  Because Willey did not object to these photographs at trial, any challenge is waived

on appeal. Woods v. State, 677 N.E.2d 499, 504 (Ind. 1997). Willey acknowledges the waiver but asserts that the admission of these photographs constitutes fundamental error.6  In order to qualify as fundamental error, an error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible.  Sauerheber v. State, 698 N.E.2d 796, 804 (Ind. 1998) (citing Barany v. State, 658 N.E.2d 60, 64 (Ind. 1995)); see also Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987) (to rise to the level of fundamental error, the error “must

constitute a blatant violation of basic principles, the harm or potential for harm must be

substantial, and the resulting error must deny the defendant fundamental due process”).  The

admission of these photographs does not satisfy this lofty standard. 

V. Double Jeopardy

	Willey next contends that the trial court erred when it sentenced him for both felony

murder and conspiracy to commit burglary.  Willey makes his argument under the federal

“Double Jeopardy Clause which protects against . . . multiple punishments for the same

offense.  North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).” He makes no argument under the Indiana Constitution.7

	Federal double jeopardy claims are controlled by the “same elements” test set forth

in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).  Games v. State, 684 N.E.2d 466, 477 (Ind. 1997), reh’g granted in part, 690 N.E.2d 211 (Ind. 1997), cert. denied __ U.S.__, 119 S. Ct. 98, 142 L. Ed. 2d 78 (1998).  In determining whether there are two offenses or one under Blockburger, the focus is on whether each statutory provision “requires proof of an additional fact which the other does not.”  284 U.S.

at 304.  Willey was convicted of felony murder under Indiana Code § 35-42-1-1(2) and

conspiracy to commit burglary under Indiana Code §§ 35-41-5-2 & 35-43-2-1.  The felony

murder charge required proof of a killing, which the conspiracy charge did not; the

conspiracy charge required proof of an agreement to commit a felony, which the felony

murder charge did not.  Willey’s convictions for felony murder and conspiracy to commit

burglary do not violate the federal Double Jeopardy Clause.  Cf. Valentin v. State, 688 N.E.2d 412 (Ind. 1997) (convictions for conspiracy to commit kidnaping and felony murder

do not violate the federal Double Jeopardy Clause); Grinstead v. State, 684 N.E.2d 482, 486 (Ind. 1997) (convictions for murder and conspiracy to commit murder present no federal

double jeopardy violation).

VI. Sentencing 

	The jury convicted Willey of five counts, but the trial court merged the sentences on

three of those counts and sentenced Willey only for felony murder and conspiracy to commit

burglary as a Class A felony.8  The trial court found several aggravating factors when it sentenced Willey to maximum and consecutive sentences of fifty and sixty-five years.  The

factors uncontested on appeal include Willey’s criminal history, which included a 1986

conviction for operating while intoxicated and a juvenile conviction for theft; the facts and

circumstances of the crime, including that Willey instigated and initiated the crime; the

duration of the conspiracy process and “the great care in the planning process;” and the

brutality of the murder against a victim who was “physically infirmed.”  The trial court found

no mitigating circumstances.

	Willey contends the trial court improperly found as aggravating circumstances his lack

of remorse and that a   reduction in the sentence would depreciate the seriousness of the crime. 

We need not address these contentions because a single aggravating circumstance may be

sufficient to support an enhanced sentence.  Thacker v. State, 709 N.E.2d 3, 10 (Ind. 1999); Sweany v. State, 607 N.E.2d 387, 391 (Ind. 1993).  If the trial court improperly applies an aggravator, but other valid aggravators exist, a sentence enhancement may still be upheld. 

See Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998) (citing Blanche v. State, 690 N.E.2d 709, 715 (Ind. 1998)).  In light of the significant unchallenged aggravating circumstances,

we find that the trial court did not abuse its discretion by imposing enhanced and consecutive

sentences.

Conclusion

	James R. Willey’s convictions and sentences are affirmed.  This is case is remanded for

correction of the clerical errors explained in footnote 8.

	SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.