Susan K. Carpenter
Public Defender of Indiana

Gregory L. Lewis
Deputy Public Defender
Indianapolis, IndianaATTORNEYS FOR APPELLEE

Jeffrey A. Modisett
Attorney General of Indiana

Christopher L. LaFuse
Deputy Attorney General
Indianapolis, Indiana        

convictions here are barred by statutory and common law doctrines, irrespective of constitutional considerations. More broadly, I believe that dual convictions in a single case do not present an Indiana constitutional double jeopardy claim at all. Rather Article I, § 14 should be invoked only as a bar to subsequent prosecutions. Because the majority addresses the constitutional provision, and because I agree that the important and unsettled matter of the scope of double jeopardy protection under the Indiana Constitution must be resolved by this Court, I express my views on that subject.
    Justice Sullivan points to recent decisions of this Court that prohibit (1) conviction and punishment for a lesser included offense of another crime for which the defendant has been convicted and punished; (2) conviction and punishment for two crimes that consist of the same act; (3) conviction and punishment for a crime that consists of the same act as an element of another crime for which the defendant has been convicted and punished; (4) enhancement of a crime where the enhancement is imposed for the same behavior or harm that enhanced another crime or the same behavior that constitutes another crime for which the defendant has been convicted and punished; and (5) conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the same act as another crime for which the defendant has been convicted and punished. For the reasons explained below, I believe the rules announced or followed in these precedents are correct in their results and are accurate statements of Indiana law. In most cases they represent long-standing principles of Indiana law. However, I believe they are not constitutional rules but are rather either direct applications or legitimate descendants of

rules followed at common law and even in Greek and Roman law.See footnote 50 To the extent Indiana precedents refer to the Indiana Constitution in resolving multiple punishment cases the decisions are relatively recent and incorrectly and unnecessarily describe prior common law precedent as based on the Indiana Constitution. Regardless of the origin of these rules, I agree that they are the law of this state. In multiple punishment cases they produce the same results as the majority's analysis yields. I also agree with the test, which the majority describes as “actual evidence,” for evaluating whether we have the same act supporting two convictions.
    I recognize that the majority opinion accurately recounts much of the precedent under the Double Jeopardy Clause of the constitution of this state and other similar constitutional provisions. I also freely concede that many of the recent decisions refer to Article I, § 14, albeit only in passing. However, I believe, as the majority correctly points out, that none of these cases purports to deal with the Indiana Constitution apart from the Fifth Amendment. I justify my willingness to challenge these cases as constitutional precedent on the basis that there is no consistent precedent in this state as to the meaning of this provision. As explained below, many of these precedents rest on very shaky footing and most, if not all, seem to assume an identity of federal and state doctrines that is rejected by every Justice on this Court. Equally significant, our precedent does not support and certainly does not demand that we regard multiple punishment cases as implicating the Double Jeopardy

Clause of the Indiana Constitution.
    The majority relies on subsequent prosecution cases in crafting a test for the multiple punishment context because “this Court has not distinguished between double jeopardy protections in multiple punishment cases and those in subsequent prosecution cases.” I do not agree that this Court has uniformly treated the two as identical. As explained in Part I.A. both before and after the federal Double Jeopardy Clause was held applicable to state prosecutions this Court explicitly stated that multiple punishments imposed in one trial do not present a double jeopardy issue because there was no “former jeopardy.” Finally, my complaints about finding double jeopardy implications in multiple punishment are not grounded merely in a need for doctrinal purity. Mixing the multiple punishment and subsequent prosecution strands, as has occurred in federal double jeopardy law, results in an unsatisfactory compromise that breeds confusion and impairs the important values underlying the Double Jeopardy Clause.
    In sum, I believe Article I, § 14 reflects a value that is most important in the subsequent prosecution context. A test that is intended to fortify the Double Jeopardy Clause but accommodates the needs of multiple punishment doctrine ends up impairing the most important function of the constitutional provision. And, as explained infra in Part I.C, constitutionalizing these common law multiple punishment rules does nothing to restrict the legislature's ability to “pile on” punishments in a single case if it wishes to do so. It thus adds nothing but complication to the protection afforded by the Double Jeopardy Clause, and does so at some cost.

difference between the two. More frequently, after 1969, we find cases correctly citing North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed 2d 656 (1969) , for the proposition that “double jeopardy” bars multiple punishments without focusing on whether the federal and state constitutions are identical in this respect, or precisely what Pearce meant by that language. In my view, however, subsequent prosecutions for a single act and convictions for multiple crimes in a single prosecution turn on entirely different considerationsSee footnote 2 _ some constitutional and some not _ and require different treatment.See footnote 3 As used in this opinion, “multiple punishments” is shorthand for the latter, although the term may fairly describe other situations including some that may implicate constitutional double jeopardy concerns.
    A. Indiana Constitutional and Common Law Precedent

218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941)). The relevant portion of Article I, § 14 provides that “[n]o person shall be put in jeopardy twice for the same offense.” As Justice Scalia pointed out in his dissent in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 798, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994): “'[t]o be put in jeopardy' does not remotely mean 'to be punished,' so by its terms this provision prohibits, not multiple punishments, but only multiple prosecutions.”See footnote 5     
    Second, Indiana authority does not provide a sound footing for applying double jeopardy to multiple punishment cases. Indeed it is very clear that some of the seminal cases cited for the proposition that multiple punishments implicate Article I, § 14 of the Indiana Constitution stand for precisely the opposite conclusion. The majority suggests that multiple punishment challenges under Article I, § 14 first began appearing in the 1930s. See N.E.2d , (Ind. 1999), Slip op. 14 n. 25. Of the eleven cases cited by the majority, seven neither mention “double jeopardy” nor refer to either the federal or the state constitution.See footnote 6 Three other cases recite a defendant's invocation of “double jeopardy”

protection, but the Court's analysis turns on common law principles.See footnote 7 The remaining case rejects the defendant's claim that “constitutional double jeopardy” prohibits separate convictions for drawing and aiming a firearm, citing Blockburger and rules of statutory construction.See footnote 8
    This Court itself did not explicitly state that multiple punishments in one proceeding violated Article I, § 14 until Bevill v. State, 472 N.E.2d 1247, 1253 (Ind. 1985), which was clearly incorrect in citing earlier authority for this assertion. To understand this point, begin with Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938), which the majority cites as an example of a multiple punishment double jeopardy case. That case held that convictions for a greater and lesser included offense (armed robbery and robbery) could not stand. It is not at all clear however, that Kokenes is a constitutional double jeopardy case under either the federal or state constitution. First, although Kokenes cites some double jeopardy cases dealing with subsequent prosecutions, there is no mention in Kokenes of either constitution. The only mention of the term “jeopardy” is to point out that because defendant was convicted of robbery and armed robbery in the same case “there was no former jeopardy.”See footnote 9

Id. at 480, 13 N.E.2d at 526 (emphasis in original). Nonetheless, the robbery conviction was thrown out in Kokenes because a defendant may not be “convicted of committing a robbery and committing a robbery while armed, where the same identical robbery is involved.” Id. at 479, 13 N.E.2d at 526. The Court thus spoke only in common law language, not in constitutional terms, and invoked a rule that bars the dual convictions while in the very same opinion rejecting a claim of “former jeopardy.”
    The authorities cited by Kokenes also demonstrate that it was purely a common law holding. For example, Jackson v. State, 14 Ind. 327, 328 (1860), was cited for the proposition that “the state cannot split up one crime and prosecute it in parts.” Jackson made no mention of the constitution and cites only common law authorities. Kokenes also cited State v. Elder, 65 Ind. 282 (1879), which recognized the common law roots of the “former jeopardy” doctrine and concluded that:
    No person shall be put in jeopardy twice for the same offense is a common-law     principle, which, we believe, is incorporated into the constitutions of each of the     States which compose the United States. This provision, however, has not been     interpreted and applied uniformly throughout all the States. In some it has been held     to mean no more than the common law principle.
Id. at 284. The Elder court summarized the then already confusing state of the law in a set of principles, all of which dealt with whether a subsequent prosecution could be brought. It supported its summary of the law with a series of citations to the distinguished treatises of its day that very clearly dealt only with the problem of subsequent prosecutionsSee footnote 10 and a

long list of cases from Indiana and elsewhere. The first two cited Indiana cases are Jackson, 14 Ind. at 327, and Bruce v. State, 9 Ind. 206 (1857). Neither of these cases made any mention of either the state or federal constitution. Each held a second prosecution barred by reason of a prior prosecution, citing the “rule” that an earlier prosecution for the same offense would bar a second.
    In 1969, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), for the first time held the Fifth Amendment Double Jeopardy Clause applicable to state criminal proceedings. In the same year Pearce announced the federal doctrine that the Fifth Amendment applied to multiple punishments. Three years later in Thompson v. State, 259 Ind. 587, 290 N.E.2d 724 (1972), this Court explicitly rejected a claim that double jeopardy applied to multiple punishments, citing both the Fifth Amendment and Art. I, § 14 of the Indiana Constitution:
    The Double Jeopardy clause is assurance that the State will not be allowed to make repeated attempts to convict an accused for the same offense. U.S. CONST. amen. V and XIV; IND. CONST. Art.1, § 14; See Benton v. Maryland, (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; Green v. United States, (1957), 335 U.S. 184, 78 S.Ct. 221, 23 L.Ed.2d 199, 61 A.L.R.2d 1119; Armentrout v. State, (1938), 214 Ind. 273, 15 N.E.2d 363. Since Appellant has been subjected to only one judicial proceeding for the offenses charged, his claim of double jeopardy is inappropriate.
259 Ind. at 591-92, 290 N.E.2d at 726 (emphasis in original). Thompson nonetheless held the dual conviction impermissible, not as a matter of federal or state constitutional double jeopardy doctrine, but rather as a matter of state law: “[w]e hold that before the court may

enter judgment and impose sentence upon multiple counts, the facts giving rise to the various offenses must be independently supportable, separate and distinct.” Id. at 592, 290 N.E.2d at 727. I take it that this formulation as applied to multiple punishments amounts to essentially the same thing as today's majority's more precise way of putting it -- there should be no reasonable possibility that the same set of facts supports two convictions.
    The Court next used the term “double jeopardy” in the course of an opinion rejecting the defendant's claim that his convictions for asportation and kidnaping were error because the two were separate offenses. Neal v. State, 266 Ind. 665, 366 N.E.2d 650 (1977). “It is only when two offenses require proof of the same fact or act that double jeopardy considerations bar a prosecution for both.” Id. at 667, 366 N.E.2d at 651. The Court did not cite either constitution for this proposition.
    Elmore, 269 Ind. at 382, N.E.2d at 893, seems to be the first case to deal with multiple punishments solely as a constitutional double jeopardy issue. Elmore, citing Pearce, viewed the issue solely as a Fifth Amendment problem and made no mention of the state constitution. Elmore expressly and correctly observed that Thompson was incorrect insofar as it dealt with the federal constitutional standard. But Elmore did not address the question whether Thompson remained a correct statement of Indiana common law. Elmore dealt with a single trial that produced convictions for both theft and conspiracy to commit theft. The Court of Appeals, invoking the common law doctrine of “merger,” held that the two convictions “merged.” On transfer this Court took the view, which was inconsistent

with both venerableSee footnote 11 and then recentSee footnote 12 authorities, that “[t]oday, the problem of when a trial court may impose multiple punishments upon convictions on multiple counts at a single trial is a problem controlled largely by the Double Jeopardy Clause of the Fifth Amendment.” Id. at 533, 352 N.E.2d at 894. Applying Blockburger, the Court found that the convictions were proper because they were not based on the same offense.
    Elmore noted that earlier Indiana authorities had developed a “same evidence”See footnote 13 test “to secure the rights found in the double jeopardy provision of the state constitution”See footnote 14 and observed that this Court's previous holdings on multiple punishments were often consistent with federal double jeopardy even if they did not seem to derive from it. Id. at 536, 352 N.E.2d at 896. Because Fifth Amendment double jeopardy had been held applicable to state criminal proceedings in Benton, Elmore concluded that “[n]ow that we are bound by the federal Double Jeopardy Clause, it more necessary than ever that we be in line with federal standards.” 269 Ind. at 537, 382 N.E.2d at 896.
    Insofar as Elmore has any implication for the state constitution, it turns on the

proposition that because the federal Double Jeopardy Clause applies to the states, the state doctrine (whether common law or constitutional) should be conformed to federal constitutional law. This is contrary to current state constitutional law in Indiana and other states. To be sure, we have often adopted federal constitutional rules in interpreting their state counterpart. See, e.g., Ajabu, 693 N.E.2d at 927 (adopting the rule of Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986), as to self incrimination). But we frequently find Indiana judicial precedent, history or other factors to dictate a different result under the state provision, even where the federal and state constitutions are textually similar or even identical. See, e.g., Brown v. State, 653 N.E.2d 81 (Ind. 1995) (unreasonable search or seizure); Collins v. Day, 644 N.E.2d 72 (Ind. 1994) (equal privileges and immunities); Price v. State, 622 N.E.2d 954 (1993) (free speech). Indeed, all of the opinions in this case tread this independent path.
    The first significantSee footnote 15 post-Elmore authority to refer expressly to Article I, § 14 of the Indiana Constitution appears to be Bevill, 472 N.E.2d at 1247, which cited Thompson as the Indiana authority, paired with Pearce, in referring to “the prohibitions of the Indiana Constitution, Article I, § 14 and the Fifth Amendment of the United States Constitution against multiple punishments for the same offense.” Id. at 1253. It is of course correct that Pearce stated that doctrine as to the Fifth Amendment. But Thompson, which dealt with

convictions in the same trial for possessing and dealing the same drugs, held unequivocally that double jeopardy had nothing to do with multiple punishment. Only after Bevill was decided in 1985, do we find cases referring to double jeopardy and citing state and federal constitutions in dealing with multiple punishments. And in every instance, as Games noted, there is no suggestion that there is any difference between the two constitutions.
    From this line of cases, I take it that notwithstanding the somewhat suspectSee footnote 16 announcement in Pearce that the federal Double Jeopardy Clause bars multiple punishments, there is no such holding in Indiana except to the extent that a number of cases in the last two decades, bound by federal constitutional doctrine as it existed before the U.S. Supreme Court decision in U.S. v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), sometimes recited this federal rule, usually citing Pearce. Although these more recent cases purported to resolve claims under both the state and federal constitutions, they did so without any discussion as to how or where or why this newfound state rule arose. In no case was anyone contending that there was a difference between the two constitutions.

Because federal constitutional law is binding on this Court, these cases' reference to the state constitution was pure dicta. These cases, of which Bevill is an example, appropriately cited Pearce for the proposition that multiple punishments implicate federal double jeopardy protection. But to the extent they cited any authority, for example Thompson, for the same proposition under the Indiana Constitution, they did so inaccurately, and contrary to the express holding of Thompson.
    The sum of this is that, although there is a great deal of dicta on the point, no case from this Court has considered whether the Indiana Constitution raises a bar higher than or different from the Fifth Amendment. And as far as I can see, in no case until Games conformed Indiana's understanding of federal double jeopardy to Dixon, did the Court note any potential for difference.
    B. Non-Constitutional Doctrines Dealing with Multiple Punishments
    I do not mean to suggest that the Indiana cases finding bars to multiple punishment were incorrectly decided in their results. As Justice Sullivan's opinion shows, these cases have in recent years been cited for a number of propositions barring multiple punishment for the same act. However, I believe the decisions that have found Indiana's constitutional provision, or its counterparts in other constitutions, to prohibit multiple punishments have in many, if not most, cases unnecessarily invoked constitutional artillery where a statutory or common law rifle would do the job.
    As noted, Kokenes held that a lesser included offense cannot result in a conviction in addition to the greater offense, but did so solely as a matter of common law. We also have

case law making clear that a conspiracy conviction cannot stand if the overt act is the crime that is the object of the agreement, that a single element cannot enhance two offenses and that the same act and consequences cannot support multiple convictions. Multiple convictions in these cases are barred by the rule established in Thompson that “before the court may enter judgment and impose sentence upon multiple counts, the facts giving rise to the various offenses must be independently supportable, separate and distinct.” 259 Ind. at 592, 290 N.E.2d at 727. See also Candler, 266 Ind. at 440, 363 N.E.2d at 1233 (same); Williams, 266 Ind. at 668, 366 N.E.2d at 642 (same); Franks v. State, 262 Ind. 649, 323 N.E.2d 221 (1975) (convictions and sentences for both felony murder and premeditated murder were error where there was only one killing). Although the Elmore decision disapproved the Thompson rule that facts giving rise to various offenses must be “independently supportable, separate and distinct” as the appropriate standard for Fifth Amendment multiple punishment challenges, I conclude that it is nonetheless a viable doctrine under Indiana common law, as Bevill demonstrated, even if Bevill incorrectly attributed it to the Constitution.
    These common law doctrines are supported by the well-settled rule that legislative reenactment after a statute has been construed by the courts will imply that the statute “was adopted with the interpretation and construction which said courts had enumerated.” McIntyre v. State, 170 Ind. 163, 164, 83 N.E. 1005, 1006 (1907). Whether or not the more recent cases announcing these rules were correct in claiming that they are derived in part from the federal constitution or Article I, § 14 of the Indiana Constitution, there can be no

doubt that these rules have been applied repeatedly over the years. Accordingly, we may assume the legislature intended the criminal laws to be interpreted in concert with these doctrines. This point is particularly powerful in light of the adoption of the 1976 criminal code on the heels of the then recent decisions in Thompson and Candler.
    We also have in Indiana statutory prohibitions based on the Model Penal Code that prohibit convictions for (1) conspiracy and attempt to commit the same crime; and (2) an attempt and the crime attempted. Ind. Code § 35-41-5-3 (1998). As noted in Part II, we have a statutory prohibition against sentencing a person for both a crime and an “included offense” in the same case. Id. § 35-38-1-6.
    These provisions were taken in 1976 from the Model Penal Code and have counterparts in the then proposed but never adopted Federal Criminal Code. The Indiana Criminal Law Study Commission “assumed” that the state and federal constitutional provisions were coextensive. Criminal Law Study Commission, Indiana Penal Code Proposed Final Draft 51 (1974). This assumption was made at the time Blockburger was under severe attack,See footnote 17 and long before the federal constitutional doctrine moved first to Grady, then through Dixon back to an entrenched and refortified Blockburger analysis. At

the time this assumption was expressed, there was, as far as I can see, no explicit contention or suggestion that the state constitutional provision might have a different content from the Fifth Amendment, as Games suggests. Certainly Thompson expressed a different view of both constitutions as of 1972. In any event, even if the Commission's assumption was correct, it does not amount to a commitment of Indiana state law to unknown future federal doctrinal developments. Rather, at best it is a recognition that double jeopardy law as it was understood in 1976 is reflected in some or all of these statutory provisions. However, as already noted, at least some of these rules are derived from common law doctrines that predated both state and federal constitutions and to some extent go beyond the requirements of either constitution. They are nonetheless well understood and generally workable principles that require no constitutional footing.
    The problem of multiple punishments can thus be handled as a matter of common law doctrines or statutory construction, guided either by explicit direction from the legislature, as the cited statutes provide, or by commonly cited rules of statutory construction and presumed legislative intent.
    C. Finding Constitutional Basis for Multiple Punishment Doctrines Accomplishes
     Little

    Finding a constitutional dimension in multiple punishment cases under double jeopardy doctrine does not add to the protection already afforded under other provisions of the state and federal constitutions. As Justice Souter put it in his separate concurring and dissenting opinion in Dixon, the multiple punishment branch of double jeopardy law is

designed to ensure that the accused “is not receiving for one offense more than the punishment authorized.” 509 U.S. at 744. To achieve this, however, we need no further constitutional basis than the Due Process Clause of the Fourteenth Amendment and the due course of law provision of our Indiana Constitution. A sentence in excess of that authorized by law violates these provisions and more. It is not merely an unconstitutional ex post facto increase of sentence; it is an imposition of a penalty never authorized at all. As such, it is plainly invalid. Thus resort to double jeopardy is wholly unnecessary to invalidate a sentence outside the penalties provided by statute. The issue is simply whether the statute does or does not authorize the punishment.
    To make the same point another way, it trivializes the Double Jeopardy Clause to equate it, as federal doctrine does, with legislative intent.See footnote 18 For example, our courts have held that one serious bodily injury cannot elevate both robbery and battery to Class A felonies. Odom v. State, 647 N.E.2d 377 (Ind. Ct. App. 1995). However, the legislature could create a new class of “AA” felonies that consist of “inflicting serious bodily injury by battery in the course of a robbery” with penalties equal to the sum of present sentences for

two Class A felonies. As the Supreme Court noted sixty years ago, “[t]here is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has the power to prohibit and punishing also the completed transaction.” Albrecht v. United States, 273 U.S. 1, 47 S. Ct. 250, 71 L. Ed. 505 (1927). The Indiana Court of Appeals similarly observed,
    there was nothing to prevent the Legislature from enacting a statute making each step     leading up to the sale of intoxicating liquor as a beverage unlawful, and, in doing so,     it made the possession of intoxicating liquor and the maintenance of a place for     persons to congregate for the purpose of drinking separate offenses.

Thompson v. State, 89 Ind. App. 555, 559, 167 N.E. 345, 346 (1929). One can imagine a calibrated criminal code with finely graduated sentences for each aggravating element that would produce in net result the same sentence as multiple punishments for various combinations of crimes under existing law. The General Assembly has wisely chosen not to complicate matters with such an intricate criminal code, but if it did so, there would be no double jeopardy bar.See footnote 19 If all the legislature must do to impose higher penalties is properly identify one combined offense where two were formerly spelled out, the Double Jeopardy Clause presents no check on legislative “piling on.” Similarly, if one objective of the Double Jeopardy Clause is or ought to be restriction of prosecutorial discretion, the omnibus crime does restrict that discretion, if viewed as the alternative to the list of component crimes under current law. But the legislature is also free to create a series of ascendingly

complex crimes, each a lesser included of those above it. Under such a regime, prosecutorial discretion to select the crime to be charged from this smorgasbord is unbounded, just as multiple counts give the prosecutor major bargaining power today. Ultimately the decision rests with the legislature to vest or not vest wider prosecutorial discretion to charge crimes with greater or lesser penalties. This remains true whatever view one has of the Double Jeopardy Clause.
    D. Other Constitutional Provisions Deal with Excessive Punishment
    The conclusion that double jeopardy under Article I, § 14 is not implicated by multiple punishments in the same trial is fortified by the fact that, unlike the federal constitution, the Indiana Constitution includes other provisions that restrict the ability of a prosecutor or a court to “pile on” by finding multiple statutory violations in a single action. First, Article I, § 16 imposes a requirement that penalties be “proportioned to the nature of the offense.” Although courts defer substantially to legislative judgment in setting the penalties for defined crimes, the legislature is not free from restraint under this provision. See, e.g., Conner v. State, 626 N.E.2d 803 (Ind. 1993). Second, the appellate courts of this state are authorized under Article VII, §§ 4 and 6 to “review and revise” sentences, and on occasion do so based on a judgment that the punishment is excessive in relation to the crime or the nature of the offense and the character of the offender. See Ind. Appellate Rule 17(B).See footnote 20

order to reach the conclusion that we have two different crimes, we must look at the facts of the two crimes, and not only the statutes they offend. On the other hand, if the “offense” is solely the actions of the accused, it would be impossible to impose a greater punishment for murdering two victims by the same act, for example burning down a house and killing two inhabitants.See footnote 21
    Take Timothy McVeigh, who by a single act murdered 168 victims in the federal building in Oklahoma City in 1995. If that occurred in this state could prosecutors charge and try McVeigh 168 times, notwithstanding multiple acquittals, until they obtain a conviction because the actual evidence of the death of a victim would be different in each case? We must also consider the possibility of a conviction in one of the earlier trials, but on a lesser included offense or resulting in a lesser sentence than the death penalty. Can the prosecution keep pursuing McVeigh until it obtains the death penalty even after multiple trials do not produce that result? I cite the McVeigh hypothetical to dramatize the point. However, the same issue arises in more commonplace scenarios with multiple victims. Should a driver accused of reckless homicide by running a red light face four separate prosecutions because there were three passengers and a driver in the car the driver hit? The

actual evidence test would presumably permit all of these reprosecutions because the element of the crime -- a victim -- could be supplied by different evidence in each case.
    Collateral estoppel as a nonconstitutional doctrine can bar some reprosecutions. However, I do not think persistent prosecution of the same act should be a constitutional result, and, as Griffin v. State, N.E.2d (Ind. 1999), also decided today, demonstrates, collateral estoppel imposes only minimal restrictions on reprosecution. Because collateral estoppel is derived principally from civil litigation and is grounded in doctrines of judicial economy and fairness, its rules do not take into consideration the important concerns that underlie both Article I, Section 14 and the Fifth Amendment . See footnote 22 These include the onerous toll that is exacted by even a successful defense and a historically deep rooted apprehension that the king should not be permitted to pursue a citizen repeatedly.
    This is substantially the same problem that was presented in Ashe v. Swenson, 397

U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), where a substantial majority of the United States Supreme Court held that collateral estoppel is constitutionally grounded in the Fifth Amendment Double Jeopardy Clause. In Ashe, the Fifth Amendment was held to bar repeated prosecutions based on different victims whom the defendant allegedly robbed at the same poker game. Id. at 447. It seems to me that Dixon, by retreating to Blockburger and rejecting any difference between multiple punishments and subsequent prosecutions, also implicitly rejects Ashe as a matter of federal constitutional law. 509 U.S. at 704-05.
    Indiana cases decided after Ashe but before Dixon applied Ashe to find a bar to the use of evidence of facts “necessarily decided” in a prior trial. See, e.g., Kuchel v. State, 570 N.E.2d 910, 916 (Ind. 1991) (citing Little v. State, 501 N.E.2d 412, 415 (Ind. 1986)). A few speak of barring “the reintroduction or relitigation of facts already established” in the first trial. See, e.g., Boles v. State, 595 N.E.2d 272, 274 (Ind. Ct. App. 1992). These Indiana authorities find collateral estoppel notions to be constitutionally based, as Ashe clearly implied. But these cases deal, at least explicitly, only with the federal constitution and do not mention the Indiana Double Jeopardy Clause. Unless they are also found to be grounded in the state constitution, Dixon seems to leave these notions without constitutional footing.     The Ashe result, as followed in Kuchel, Little and other Indiana cases, is essentially the double jeopardy doctrine that I believe should be followed under the state constitution. For subsequent prosecutions, I would follow the “same conduct” analysis that was adopted in Grady, 495 U.S. at 508, for federal double jeopardy law in the subsequent prosecution context. This is in most cases more or less the same thing as the “same facts”

from earlier Indiana cases. The “same conduct” test is supported by at least some Indiana authority. For example, Clem v. State, 42 Ind. 420 (1873), which is no more “isolated” than several other opinions in the erratic history of double jeopardy in this State described in the majority's opinion. Cf. N.E.2d , (Ind. 1999), Slip op at 17, 24 (citing the following cases employing analysis of both statutory elements and the conduct of the defendant: Winiger v. State, 13 Ind. 540, 541 (1859) (“[t]he question would be, is the one act included in the other?”); Durke, 204 Ind. at 370, 183 N.E. at 97 (describing the “identity of the offense” test as whether the second charge was for the “identical act” as the first).See footnote 23 It is also the test embraced by Thompson although applying only common law prohibitions against multiple punishment. 259 Ind. at 592, 290 N.E.2d at 727 (“facts giving rise to the various offenses must be independently supportable, separate and distinct”).
    Grady held that mere comparison of the statutory elements was insufficient for subsequent prosecutions. Double jeopardy, in addition to requiring a comparison of the statutes, proscribed “any subsequent prosecution in which the government, to establish an

essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 495 U.S. at 521 (footnote omitted). Grady survived for only three years, however, and was rejected by Dixon in favor of an apparent return to the “same elements” test of Blockburger. See Dixon, 509 U.S. at 712. Among the reasons offered by Justice Scalia, writing for a five-justice majority in overruling Grady, was an asserted need for doctrinal consistency between the multiple punishment and subsequent prosecution lines. If a different methodology applied to subsequent prosecutions, the phrase “same offense” would have more than one meaning depending on the context. Id. at 704.
    I agree that it seems anomalous to find two different standards in the same constitutional provision depending on the context. Rather than attempt to reconcile the two under the Indiana Constitution, I would resolve multiple punishment issues by reference to the common law and statutes and remain with the Grady “same conduct” test for subsequent prosecutions. Indeed, as already noted, Justice Scalia in Kurth Ranch, just one year after Dixon, seemed to agree that only subsequent prosecutions trigger double jeopardy concerns. 511 U.S. at 798. Although Grady is no longer the law under the federal Double Jeopardy Clause, I generally agree with the views of Justices Souter, Stevens, White, and Blackmun, who defended Grady in Dixon. See id. at 743-763 (opinion of Souter, J., concurring in the judgment in part and dissenting in part).See footnote 24 Some analysis beyond the raw statutory elements

will always be required in the subsequent prosecution context. Indeed Dixon itself seems to confirm this.See footnote 25
    In sum, I believe the answer to the constitutional claims raised here is not adoption

of a uniform test in the name of doctrinal consistency. Rather it is to recognize that punishment arising out of a single trial does not present a double jeopardy issue. Indeed, as noted earlier, the concern in Indiana cases going back to the rules announced in Elder and quoted in Kokenes is clearly whether a second prosecution may be pursued, not whether two crimes may be charged and convictions result in the same proceeding.See footnote 26
    As a final note, I do not believe the subsequent prosecution issue can be adequately handled by other constitutional provisions. The Due Process Clause of the federal constitution has also been suggested as a bar to subsequent prosecutions for the same act. See Akhil Reed Amar, Double Jeopardy Law Made Simple, 106 Yale L. J. 1807 (1997). Although at some point repetitive prosecution may run afoul of the Due Process Clause, at

least under current precedent, subsequent prosecutions for essentially the same action have been permitted to go forward without mention of due process as Elder and other cases cited in Ashe demonstrate. Moreover, due process gives little guidance to when enough is enough. Rather, invoked as a bar to subsequent prosecution, it seems akin to Justice Stewart's famous test for obscenity: we must know it when we see it. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964) (Stewart, J., concurring). Because we have a specific constitutional provision addressing precisely this issue, I would apply it according to its terms and forego reliance on judicially fashioned remedies under the much more general Due Process Clause.

enter upon the consideration of a constitutional questions where the court can perceive another ground upon which it may properly rest its decision”) (citing Bureau of Motor Vehicles v. Scott, 497 N.E.2d 557, 559 (Ind. 1986)).
    As a preliminary matter, we must be clear about the nature of the inquiry. In evaluating a claim that the statute does not permit convictions for both battery and robbery, we need to look at whether the included offense “is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged.” See Ind. Code § 35-41-1-16(1) (1998). This necessarily involves more than an examination of the statutory elements and requires inspection of both the evidence produced at trial and the charging instrument. To be sure, the definition of “included offense” in Indiana Code § 35-41-1-16(1) looks to the “elements” of the offense, unlike § 35-34-1-2(d), which requires a charging instrument to identify the “facts” of the offense. However, the definition also specifically states that the court must look to the “proof” of the elements, necessarily requiring a look at both the charging instrument and the evidence at trial. The conclusion, it seems to me, is that an “offense” under both sections embraces the statutory prohibition, the charging instrument and the acts of the accused that violate the statute.
    This conclusion seems inescapable when one considers the implications of a contrary view. Surely one robbery is not the same “offense” as another robbery of a different victim on another day merely because the same statute is breached. The example of a felony murder based on a killing incident to a robbery also illustrates this point. A defendant

charged with a felony murder cannot be convicted of both the felony murder and the underlying felony. Many cases so hold. See, e.g., Swafford v. State, 498 N.E.2d 1188, 1191-92 (Ind. 1986). But in order to reach that conclusion one needs to do more than examine the statutes. The felony murder statute does not identify a robbery as the only underlying felony. The statute can be triggered by any of several felonies (arson, robbery, rape, etc.). Ind. Code § 35-42-1-1(2) & (3) (1998). And even if robbery were the only felony in the list, one would still need to examine the charging instrument or the evidence to know whether the robbery supporting the felony murder is the same robbery resulting in the robbery conviction.
    The resolution of Richardson's case is controlled by the lesser included offense statute. Richardson was charged with a battery “that resulted in bodily injury in that the defendant beat a certain Jeffrey W. Koenig with his fist to the extent that [Koenig] suffered bodily injury.” He can be convicted in this proceeding only of that battery, not just any old battery at some other time or place. Evidence at trial demonstrated that the use of force in the robbery was Richardson's beating Koenig with his fist. As a result, we know that the battery constituting the force in the robbery is the same as the battery of which Richardson was convicted, and not the tossing of Koenig off the bridge.See footnote 28 The fact that the evidence at

trial supported this other uncharged battery does not permit the jury to convict on that uncharged battery, or any other crime, for that matter, that was not charged. Hobson v. State, 675 N.E.2d 1090, 1095 n.2 (Ind. 1996) (“A defendant may not be found guilty of a crime that is not charged against him, and if so convicted, the verdict is contrary to law.”). Accordingly, the battery constituting an element of the robbery cannot also support an independent conviction for battery because it is established by “less than all the material elements required to establish the commission” of the elevated robbery.
    I conclude, consistent with the discussion above, that the definition of included offense under Indiana Code § 35-41-1-16(1) necessarily involves a look at the charging instrument and the proof at trial. When we do that, we see that Richardson's convictions for both robbery and battery are not permitted under the Indiana Code, irrespective of constitutional double jeopardy considerations. The dual convictions also fall under the rule, often invoked without reference to the statute, that one crime cannot both enhance another and also support a separate conviction. See, e.g., Kingery v. State, 659 N.E.2d 490, 495-496 (Ind. 1995).

    SELBY, J., concurs.

jeopardy protection based upon an analysis of the Indiana Constitution." 684 N.E.2d at 473 n.7. As discussed below and in the separate opinion of Justice Boehm, the early cases of this Court extensively discuss the application of the Indiana Double Jeopardy Clause. Footnote 7 of Games should not be read for the proposition that there is no independent double jeopardy protection under the Indiana Constitution.

(1991) (citing Peter Westen, The Three Faces of Double Jeopardy: Reflecting on Government Appeals of Criminal Sentences, 78 Mich. L. Rev. 1001, 1062 (1980)).

v. State, 176 Ind.App. 306, 375 N.E.2d 660 (1978); Dunkle v. State, 241 Ind. 548, 173 N.E.2d 657 (1961); Dowd v. Todd, 243 Ind. 232, 184 N.E.2d 4 (1962); Sutton v. State, 248 Ind. 1, 221 N.E.2d 430 (1966) .

273, 15 N.E.2d 363 (1938); Holt v. State, 223 Ind. 217, 59 N.E.2d 563 (1945); State v. Soucie, 234 Ind. 98, 123 N.E.2d 888 (1955); State v. Taylor, 235 Ind. 632, 137 N.E.2d 537 (1956); Johnson v. State, 252 Ind. 79, 246 N.E.2d 181 (1969); Majors v. State, 252 Ind. 672, 251 N.E.2d 571 (1969).

of the State of Indiana to Amend the Constitution 3 (1851). Judge Biddle also joined the aforementioned opinions in Greenwood v. State, 64 Ind. 250 (1878), and Brinkman v. State, 57 Ind. 76 (1877).

6 L.Ed. 165 (1824) (holding that the federal Double Jeopardy Clause does not bar the reprosecution of a defendant for a mistried offense when the jury is unable to reach a verdict). These other aspects, however, are not at issue in this case.

purposes is not warranted because the charged crimes are different on their face. They involve different victims. Similarly, if a defendant is charged with robbing a particular store on Monday and then again on Friday, the offenses are, facially, not the same. If a defendant is arrested and found to possess both cocaine and marijuana on his person, possession of cocaine under Indiana Code section 35-48-4-6 and possession of marijuana under Indiana Code section 35-48-4-11 are, facially, not the same offense.

three years between Grady and Dixon). See also Rutledge v. United States, 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996); Albernaz, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275; Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228; Whalen, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715; Iannelli, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616; Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151 (1915); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915); Gavieres, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489.

Dictionary 134 (6th ed. 1990).

(Ind. 1996) (Sullivan, J.); Archer v. State, 689 N.E.2d 678 (Ind. 1997) (Selby, J.); Weeks v. State, 697 N.E.2d 28 (Ind. 1998) (Boehm, J.).

test for permitting a subsequent prosecution under a different statute requiring proof of different facts from the first proceeding. Hudson, 522 U.S. at 113-14. The genealogy of Blockburger may explain some of the blurring of the important differences between subsequent prosecutions and multiple punishments. Blockburger itself sustained convictions on separate counts based on the same act (a sale of narcotics) because the two statutes (sale of the drug outside of its original package and sale of the drug without a proper request from the purchaser) required proof of different elements. Blockburger cited Gavieres v. United States, 220 U.S. 338, 31 S. Ct. 421, 55 L. Ed. 489 (1911) and Albrecht, 273 U.S. at 1, for this proposition. Gavieres permitted a subsequent prosecution for the same act based on a different statute. It, however, relied on a Massachusetts case was cited with approval in Carter v. McClaughry, 183 U.S. 367, 22 S. Ct. 181, 46 L. Ed. 236 (1902). Gavieres, 220 U.S. at 343. Carter, in turn, involved a multiple-count indictment in the same proceeding. Similarly, Albrecht upheld convictions for selling and possessing the same liquor. 273 U.S. at 11. This line of cases, with the exception of Gavieres, deals with multiple-count indictments, not subsequent prosecutions, and Gavieres relies on multiple punishment cases for its, in my view, incorrect holding. The Supreme Court of the United States in Dixon resolved this issue under the federal constitution, at least for now, with a return to Blockburger, but I see no impediment to our state charting its own course on this point.

the bridge because he was charged with battery by beating Koenig with his fist.

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