ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Geoff Davis
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
ROBERT RICHARDSON, II ) Defendant-Appellant, ) ) v. ) 67S01-9910-CR-506 ) STATE OF INDIANA, ) Plaintiff-Appellee. ) ________________________________________________
APPEAL FROM PUTNAM CIRCUIT COURT The Honorable Diana LaViolette, Judge Cause No. 67C01-9609-CF-74_________________________________________________
On Petition To Transfer
October 1, 1999
With today's decision, we address the application of the Indiana Double Jeopardy
Clause, Article I, Section 14 of the Indiana Constitution, as distinct from its federal
counterpart in the Fifth Amendment to the United States Constitution.
The defendant-appellant, Robert Richardson, II, was convicted of robbery as a
class C felony
and battery as a class A misdemeanor.
The defendant was sentenced to
eight years imprisonment for the robbery and one year for the battery. The sentences
were to run consecutively for a total of nine years imprisonment. On appeal, he contends
that the convictions violate the Double Jeopardy Clause of the Indiana Constitution. The
Court of Appeals affirmed the convictions. Richardson v. State, 687 N.E.2d 241 (Ind. Ct.
App. 1997). We grant transfer.
Prohibitions against double jeopardy protect the integrity of jury acquittals and the finality interest of defendants, shield against excessive and oppressive prosecutions, and ensure that defendants will not undergo the anxiety and expense of repeated prosecution and the increased probability of conviction upon reprosecution. See footnote 3 Robert Matz, Note, Dual Sovereignty and the Double Jeopardy Clause: If at First You Don't Convict, Try, Try Again, 24 Fordham Urb. L.J. 353, 356-57 (1997) (citations omitted). While double jeopardy provisions are found in both the U.S. Constitution and the Indiana Constitution,
the defendant in this case does not allege any violation of the federal Double Jeopardy
Rather, he claims the protection of the Indiana Double Jeopardy Clause.
The analysis and application of double jeopardy provisions have proven to be a significant judicial challenge. Commentators note that double jeopardy provisions, which appear straightforward and simple, are often extremely difficult to apply and the underlying jurisprudence enormously challenging and complex. See footnote 5 Recently, in a series of decisions, this Court acknowledged that some of our decisions during the past twenty years misapplied federal double jeopardy jurisprudence. See Grinstead v. State, 684 N.E.2d 482 (Ind. 1997); Games v. State, 684 N.E.2d 466 (Ind. 1997), modified on other grounds, 690 N.E.2d 211 (Ind. 1997). We did not, however, address whether the Double Jeopardy Clause of the Indiana Constitution provides identical or different protections than its federal counterpart. See footnote 6 Today, with our opinions in this case and its companion
cases, we address this issue.
Webster, An American Dictionary of the English Language 768 (1856). This
definition of "offense," however, does not explain the meaning of "same offense," which
has become a term of art. It is not surprising that, "[f]or decades, commentators and
judges have attempted to define which offenses are the same, and the problem continues
to be the focus of much of the contemporary scholarly criticism of double jeopardy
doctrine." Nancy J. King, Portioning Punishment: Constitutional Limits on Successive
and Excessive Penalties, 144 U. Pa. L. Rev. 101, 129 n.81 (1995).
Despite the lack of discussion at the 1850-51 Convention regarding Indiana's Double Jeopardy Clause, this Court has recognized that the intent of the framers and ratifiers derived from English common law double jeopardy principles. See State v. Elder, 65 Ind. 282, 284 (1879) ("That no person shall be put in jeopardy twice for the same offence is a common-law principle, which, we believe, is incorporated into the constitution of each of the States which compose the United States."). With the understanding that the constitutional protection against double jeopardy is one of the "least understood" and "most frequently litigated provisions of the Bill of Rights," Whalen v. United States, 445 U.S. 684, 699, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715, 728- 29 (1980) (Rehnquist, J., dissenting), "[i]t has always been an accepted judicial technique to have resort to the common law in order to ascertain the true meaning of the double jeopardy clause," Jay A. Sigler, A History of Double Jeopardy, 7 Am. J. Legal Hist. 283, 283 (1963) (hereinafter Sigler, History). Thus, understanding our Double Jeopardy Clause requires that we go beyond its text. The common law is helpful in determining
the framers' understanding of the term "same offense."
Scholars trace double jeopardy principles back to ancient Greek, See footnote 9 Roman, See footnote 10 and biblical See footnote 11 sources. While some historians trace double jeopardy protections in England to the dispute between King Henry II and Archbishop Thomas à Becket in 1176, See footnote 12 the earliest treatise on the English common law, published in the late twelfth century, did not directly mention double jeopardy protections. Sigler, History, supra, at 291 (referring to Ranulf de Glanville, A Treatise on the Laws and Customs of the Kingdom of England Composed in the Time of King Henry the Second). In the English case reporters between 1290 and 1535, "the word 'jeopardy' occurs only eleven times in
reports involving criminal cases, and in only three of these instances was it used in the
statement that a man's life shall not be twice 'put in jeopardy' for the same offense."
Marion S. Kirk, "Jeopardy" During the Period of the Year Books, 82 U. Pa. L. Rev. 602,
604-05 (1934) (footnotes omitted).
During the 1600s and 1700s, double jeopardy protections were further examined by Lord Edward Coke and William Blackstone. See footnote 13 Lord Coke only found double jeopardy protections in the three pleas of autrefois acquit (former acquittal), autrefois convict (former conviction), and former pardon. Sigler, History, supra, at 296. By the late 1700s, a fourth plea of autrefois attaint See footnote 14 was also recognized. Id. Writing 100 years after Coke, Blackstone began using the phrase "jeopardy" more often, noting that "the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim of the common law of England that no man is to be brought into jeopardy of his life, more than once, for the same offence." 4 William Blackstone, Commentaries on the Laws of England *329 (1769).
As a further indicator of the framers' understanding of the common law of double jeopardy, we note that the early American colonies departed in some respects from English common law, recognizing broader double jeopardy protections. For example, the
bar against double jeopardy for Lord Coke depended on the reasons for the prior acquittal, See footnote 15 whereas early American double jeopardy law barred retrial for any prior acquittal. Blackstone described double jeopardy protections as applying only to criminal felony prosecutions, whereas early American double jeopardy protections applied to all criminal prosecutions. Under English common law, jeopardy did not attach until a verdict or acquittal was actually rendered, thus allowing retrials following hung juries or mistrials, whereas early American double jeopardy law barred reprosecution in certain hung jury or mistrial circumstances. Further, early English double jeopardy protections were developed in the context of criminal law practice and procedure different from that which existed and continues to exist in this country. When Coke formulated the double jeopardy prohibition against second prosecutions for the same offense, there did not exist the same number of closely related offenses as we have today. As one commentator has noted, "the law distinguished among rape, arson, and murder, but not between 'intimidating any person from voting' and 'interfering with his right to vote.'" Larry Simon, Note, Twice in Jeopardy, 75 Yale L.J. 262, 279 (1965). See footnote 16 "At the time of Henry
III there were only eleven felonies. In Coke's time the number had risen to thirty." Id. at
279 n.75. By the time the U.S. Constitution was ratified, England had 160 different
Also, early American colonies and states embodied double jeopardy principles in statutory and organic laws, unlike England. In 1641, the Bay Colony of Massachusetts drafted the Body of Liberties, which led to the adoption of the Massachusetts Code of 1648. "The fact that the Bay Colony reduced double jeopardy protection to a written form and expanded it beyond the common law guarantee demonstrates that the colonists regarded the concept to be fundamental." Charles L. Cantrall, Double Jeopardy and Multiple Punishment: An Historical and Constitutional Analysis, 24 S. Tex. L.J. 735, 765 (1983). See footnote 17 Although New Hampshire was the first (and only) state to include double jeopardy protections in its state constitution prior to the ratification of the U.S. Constitution, See footnote 18 id. at 766, almost every state has now included some type of protection against double jeopardy in its state constitution, Sigler, History, supra, at 307-08; Simon, supra, at 262.
As states developed and applied their respective double jeopardy principles, two
divergent analyses appeared for determining whether the offenses are the same: (1) the behavioral approach; and (2) the evidentiary approach. Id. at 269-70. The "behavioral approach focuses on the defendant's conduct rather than on the prosecutor's evidence. Courts which use this approach adopt an act, transaction, or intent test." Id. at 270 (emphasis omitted). This behavioral approach (also referred to as the same transaction or same conduct approach) was explicitly rejected early by the Indiana Supreme Court in State v. Elder, 65 Ind. 282 (1879). See footnote 19 The Elder Court noted that two lines of Double Jeopardy Clause interpretation appeared throughout the nation. One line held that state double jeopardy clauses provide "a more liberal rule . . . in favor of the accused." Id. at
284. This more liberal rule was the same transaction/conduct test, which prohibited
multiple prosecutions arising out of the "same state of facts, although they may include
several offences." Id. at 285. Under the other line of interpretation, the evidentiary
approach, state double jeopardy clauses "mean no more than the common-law principle."
Id. at 284. After reviewing Indiana court decisions and the decisions from other state and
federal courts, the Elder Court rejected the more liberal test, stating that it could "not
adopt the rule held in some States, that the accused can not, in any case, be convicted but
once upon the same facts when they constitute different offences . . . ." Id. at 286-87.
The evidentiary approach (also referred to as the same evidence test) is apparent in the English common law case of The King v. Vandercomb & Abbot, 2 Leach 708, 168 Eng. 455 (1796). That court explained the test as follows: "if crimes are so distinct that evidence of the one will not support the other, it is as inconsistent with reason, as it is repugnant to the rules of law, to say that they are so far the same that an acquittal of the one shall be a bar to a prosecution for the other." Id. at 717, 168 Eng. at 460. See footnote 20 However, American jurisprudence in the last two centuries provides no single, generally accepted
articulation of the same evidence test. Rather, the test has assumed three separate
a "required evidence test,"
an "alleged evidence test,"
and an "actual
evidence test."See footnote
Simon, supra, at 269-270. See also Haynes v. State, 288 S.E.2d 185,
188-90 (Ga. 1989) (discussing these three tests in extensive detail).
In discerning the approach required by the Indiana Constitution, we first note that "[e]arly decisions of this Court interpreting our Constitution . . . have been accorded strong and superseding precedential value." Collins v. Day, 644 N.E.2d 72, 76 (Ind. 1994). See footnote 24 In seeking the proper interpretation of our Double Jeopardy Clause, we draw from cases involving subsequent prosecutions because double jeopardy claims in multiple punishments cases did not emerge until after 1930, See footnote 25 and because this Court has not
distinguished between double jeopardy protections in multiple punishment cases and those in subsequent prosecution cases. Our double jeopardy case law appears to fall into five different subsequent prosecution categories_those following a conviction; See footnote 26 a mistrial or the discharge of the jury or defendant; See footnote 27 a successful appeal; See footnote 28 an acquittal; See footnote 29 and a civil
Our earliest jurisprudence demonstrates that this Court did not limit itself to any single formulation of the evidence test, such as an "actual evidence test," a "required evidence test," or an "alleged evidence test," in determining whether the offenses were the same. In the cases most contemporaneous (1859 to 1884) with the adoption of the 1851 Constitution, this Court did not identify a singular test or restrict the double jeopardy inquiry to the statutory elements or charging instruments, but instead considered all of the circumstances and evidence available to the reviewing court to determine whether the offenses were the same.
After the ratification of our Constitution in 1851, the Indiana Supreme Court
considered whether the convictions were the "same offense" in Winiger v. State, 13 Ind.
540 (1859). In Winiger, the defendant was first convicted of assault and battery and then
tried for the crime of riot, each arising out of the same event. Noting "conflict in the
decisions of some of the sister states," the Winiger Court considered whether double
jeopardy was violated, holding that "the true rule, in prosecutions for offenses of this
character, is, that where the gravamen of the riot consists in the commission of an assault
and battery, then, a conviction for that assault, &c., would be a bar to a prosecution for a
riot . . . ." Id. at 541. However, "where the commission of an assault and battery was
merely incidental to the riot, then a conviction for the one would not bar a prosecution for
the other . . . ." Id. Thus, "[t]he question would be, is the one act included in the
Id. Looking to the evidence introduced at trial, the Court reversed the second
conviction, finding that the Double Jeopardy Clause was violated because "the gravamen
of the riot was the assault and battery." Id.
In Brinkman v. State, 57 Ind. 76 (1877), the defendant was indicted twice for selling alcohol to a minor on the same day. He was tried and convicted on the first indictment, and then tried and convicted on the second indictment. Addressing the
defendant's double jeopardy claim, the Court looked to the testimony introduced at the
first trial which established that the defendant had sold alcohol twice to the minor, once
in the morning and once in the afternoon. Again, without reciting any particular test, the
Court looked to the testimony introduced at the second trial and found that it, too,
established that the defendant had sold alcohol twice to the same minor, once in the
morning and once in the afternoon. However, the Court noted that nothing in the record
of either the first or second trial identified whether the convictions were for the morning
sale or the afternoon sale, and that the indictments merely gave the date but did not
differentiate between the time of day the crimes occurred. The Court found that a new
trial was required because, "by the mode, adopted by the prosecution, of giving evidence
as to both sales on each indictment, both convictions may have been secured for the same
selling." Id. at 79. The Court found this problematic because the jury in the first trial,
"having the evidence as to both alleged sales before them, [could have] found that [the
morning sale] was not satisfactorily established, but that the [afternoon sale] was . . . ."
Id. Then, in the second trial:
the evidence as to both alleged sales was given, and the court was satisfied that [the morning sale], regarded as not proved by the jury [in the first trial], was not proved [in the second trial], but that the [afternoon sale] was, and convicted the defendant [of the afternoon sale]; the conviction would be justified by the evidence for the State, and the defendant be twice convicted for the same offence [the afternoon sale].
In Greenwood v. State, 64 Ind. 250 (1878), the defendant challenged his
conviction for a second assault and battery because he had already been convicted of
assault and battery upon a different victim arising out of the same fight. The defendant
argued that, regardless of "how many soever of assaults and batteries he may have
committed during the period of excitement at the ball, they all amounted in law to but one
offence . . . ." Id. at 253. Without reciting a particular "test," the Court looked to the
testimony introduced at the first trial and, emphasizing the evidence presented, found that
the defendant committed two separate assaults and batteries against two different victims
arising from the same fight. Id. at 253-54. Thus, no double jeopardy violation occurred.
In State v. Elder, 65 Ind. 282 (1879), the defendant was indicted for three counts of attempting to produce a miscarriage upon Elizabeth Bradburn by: (1) inserting an instrument into her uterus; (2) using the hand of another; and (3) administering a large quantity of medicine. Before the case went to trial, the defendant filed an answer asserting double jeopardy as an affirmative bar, arguing that he had previously been acquitted in a prosecution charging the murder of "a certain child, unnamed, of one Elizabeth Bradburn, by . . . inserting [an] instrument into the uterus of the said Elizabeth Bradburn, and passing it about the fetus, thereby causing the miscarriage of the said Elizabeth Bradburn, and the death of said child." Id. at 283-84. The trial court found for the defendant and dismissed the second indictment. Writing for a unanimous Court, Judge Biddle See footnote 32 reversed, articulating the test as follows: if the facts show two or more
offenses, but "the lesser offence is not necessarily involved in the greater, and when the
facts necessary to convict on a second prosecution would not necessarily have convicted
on the first," double jeopardy will not prevent two convictions, even though "the offences
were both committed at the same time and by the same act." Id. at 285. In finding that
the defendant was not being twice prosecuted for the same offense, the Court noted:
An indictment for the murder of the unnamed child of Elizabeth Bradburn is by no means the same as an indictment charging the employment of certain means, with the intent to procure the miscarriage of Elizabeth Bradburn, although the same means were used to commit the offence in both cases. The lesser offence is not involved in the greater; the offences are not committed against the same person, and bear no resemblance to each other, either in fact or intent; the facts necessary to support a conviction on the [miscarriage charge] would not necessarily have convicted, nor would they even have tended to convict, upon the [murder charge].
Id. at 286. The Court concluded, "We can not adopt the rule held in some States, that the accused can not, in any case, be convicted but once upon the same facts when they constitute different offences . . . ." Id. at 286-287.
The defendant in Jenkins v. State, 78 Ind. 133 (1881), was tried and convicted of assault and battery. He was also tried and convicted in a second trial for assault and battery, despite his claim of double jeopardy. The Court reversed the second conviction, noting that "[i]t is always necessary for one who [claims double jeopardy] to show that the offence for which he was convicted is the same as that involved in the prosecution in
which the evidence is offered." Id. at 134. Without reciting any particular test, it held
that "[t]he evidence fairly shows that the offence for which the appellant was convicted
[at the first trial] is the same as that described in the indictment in the case at bar." Id.
See also Foran v. State, 195 Ind. 55, 61, 144 N.E. 529, 531 (1924) ("The offenses
charged must not only be the same in law, as would be shown by the instruments which
charged the offenses, but that such offenses must be the same in fact.").
Beginning in Davidson v. State, 99 Ind. 366 (1885), however, this Court, without expressly overruling precedent or noting a change in jurisprudence, shifted its consideration away from the available evidence to the statutory requirements. See footnote 33 In his first trial, the defendant was convicted of unlawfully carrying a deadly weapon. In a subsequent prosecution, he was convicted of threatening to use a pistol during the same transaction. The Court found these convictions did not violate double jeopardy, even though the "two prosecutions grew out of, and were based upon, the same transaction." Id. at 367. The Court stated that the test is whether the charged crimes "are so far distinct that the evidence which would sustain one would not sustain the other." Id. at 368. The charged crimes were (1) unlawfully carrying a deadly weapon, and (2) threatening to use
a pistol. The Court looked to the statutory elements and held that "a material difference
[existed] between the two offences defined by section 1984 [drawing or threatening to
use a weapon], and those declared by section 1985 [carrying a concealed weapon or
carrying a weapon openly with intent to injure someone], even conceding that the same
pistol is used in every instance." Id. at 367.
In State v. Reed, 168 Ind. 588, 81 N.E. 571 (1907), the Court found no double jeopardy violation when, in one trial, the defendant was charged with giving liquor to an intoxicated person in violation of statute and then convicted in a different trial (on the same day) of selling liquor to the same intoxicated person in violation of the same statute. The Court held that the statute defined three separate crimes: selling, bartering, and giving away liquor to an intoxicated person. Id. at 590, 81 N.E. at 572. The Court articulated the test as follows: "'would the same evidence be necessary to secure a conviction in the pending, as in the former, prosecution?'" Id. at 591, 81 N.E. at 572 (quoting Smith v. State, 85 Ind. 553, 557 (1882)). The Court then looked to the identity of the challenged conviction, focusing on the essential elements necessary to convict: "Proof of a sale of intoxicating liquor by appellee to the person named in the indictment was one of the elements of the offense charged in this case, the proof of which was essential to conviction . . . ." Id. However, "in the former case, not a sale, but a gift, of intoxicating liquor by appellee to the person named in the affidavit was an essential element to be established by the evidence to secure conviction." Id. at 591-92, 81 N.E. at 572. Thus, the Court held, "It is evident therefore that the evidence necessary to secure
appellee's conviction of a charge of selling in violation of § 2219 . . . would not have
justified his conviction of the giving in violation of the same section charged in the
former case." Id. at 592, 81 N.E. at 572.
The defendant in Woodworth v. State, 185 Ind. 582, 114 N.E. 86 (1916), pled guilty to the charge that he sold alcohol to a person on May 1 without a license. The defendant was thereafter convicted of a separate charge of keeping and operating a place where alcohol was sold, also on May 1. The defendant contended that the evidence of the sale was also the evidence of keeping and operating the place and, therefore, that he was being convicted for the same offense. The Court rejected his argument without relying upon any particular test, finding that the statute "defines two separate and distinct" crimes. Id. at 585, 114 N.E. at 87. Looking to the statutory definitions, the court held:
The gravamen of the first offense defined by the section of the statute under consideration is the unlawful sale of intoxicating liquors by a person without a license, while that of the second offense defined is the keeping and operating of a place where such liquors are sold in violation of law, or the having of such liquors in possession for such purpose.
Id. at 585-86, 114 N.E. at 87.
In Durke v. State, 204 Ind. 370, 183 N.E. 97 (1932), the defendant was convicted of burglary and then convicted of conspiracy to commit a felony (burglary), arising out of the same transaction. He claimed double jeopardy prohibited the second conviction. The Court noted that "'[t]he courts of this state . . . have leaned more strongly to the 'identity of offense' test, which is that the second charge must be for the same identical act and
crime as [the first offense].'" Id. at 377-78, 183 N.E. at 100 (quoting Foran, 195 Ind. at
60, 144 N.E. at 530). This test asks: "'Would the same evidence be necessary to secure a
conviction in the pending, as in the former prosecution.'" Id. at 378, 183 N.E. at 100
(quoting Foran, 195 Ind. at 60, 144 N.E. at 530 (quoting Smith, 85 Ind. at 557)) (other
citations omitted)). Instead of looking to the specific evidence actually introduced at
trial, the Court looked to what evidence would, in general, be necessary to secure
convictions for both crimes:
[T]he essential proof in a prosecution for burglary would not be sufficient to convict one charged with the crime known as "conspiracy to commit a felony"_burglary. In the latter case the evidence must show a uniting or confederation of two or more persons to commit the burglary. In order to convict of the offense in the present case, it would not be necessary to prove actual participation in the felony, but in order to convict one charged with burglary, there must be proof connecting the party with the overt act.
Id. Thus, a prosecution for burglary would not prohibit a prosecution for conspiracy to commit a felony (burglary). Id. See also Dunkle v. State, 241 Ind. 548, 551, 553-54, 173 N.E.2d 657, 659-60 (1961) (looking to "well established rules of statutory construction, as well as upon the definition of the terms used . . . [o]ur conclusion then is that to draw a weapon within the purview of § 448 . . . is a separate and distinct offense from that of pointing or aiming a weapon under § 452 . . . . Appellant was not therefore twice convicted for but one offense . . . .").
In 1978, the analysis under the Indiana Constitution was merged with the federal
constitutional test: See footnote 34 "Now that we are bound by the federal Double Jeopardy Clause, it is more necessary than ever that we be in line with federal standards." Elmore v. State, 269 Ind. 532, 537, 382 N.E.2d 893, 896 (1978). Although the Elmore Court erroneously concluded that the federal Supremacy Clause See footnote 35 required that the federal test govern all Indiana claims, it is clear that this Court, by 1978, considered both the Indiana Double Jeopardy Clause and the federal Double Jeopardy Clause to require the same test_a statutory "identity of offense" or "same evidence" test. Id. (noting the "obvious similarity" between the state and federal double jeopardy standards). Thus, when the Elmore Court merged our state double jeopardy analysis with the federal double jeopardy analysis, it was not a radical departure from our then-existing state constitutional analysis. The Elmore Court defined Indiana's "identity of offense" or "same evidence" test: "whether if what is set out in the second indictment had been proved under the first, there could have been a conviction, or stated another way: would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution." Id. (quoting Foran, 195 Ind. at 60, 144 N.E. at 530). Similarly, the Elmore Court defined what it called "the Blockburger 'identity of offense' or 'same evidence' test," id. at 540, 382 N.E.2d at 897, as "'the difference or lack of difference in the evidence necessary to
establish one particular crime as compared with that required to establish the other
crime.'" Id. at 537, 382 N.E.2d at 896 (quoting Dunkle, 241 Ind. at 551, 173 N.E.2d at
658) (citations omitted). From this comparison, the Elmore Court concluded that "our
method of analysis in cases involving multiple count offenders closely paralleled the
methodology employed by federal courts for protecting Fifth Amendment guarantees."
In 1982, this Court in Tawney v. State, 439 N.E.2d 582 (Ind. 1982), introduced a new approach, in which a reviewing court was required to "look to the manner in which the offenses are charged and not merely to the statutory definitions of the offenses." Id. at 588. This analysis looked to the specific factual allegations regarding the means by which the charged offenses were alleged to have been committed. As we have noted, "Tawney did not attribute this additional requirement to an independent state double jeopardy protection found in Article 1, Section 14 of the Indiana Constitution." Carter v. State, 686 N.E.2d 834, 838 (Ind. 1997). Rather, it relied upon lesser-included jury instruction case law. See Tawney, 439 N.E.2d at 588.
During the twenty years following Elmore, this Court frequently decided double jeopardy issues by looking to the offenses as charged, believing that this approach was required by federal double jeopardy jurisprudence, and often referring in passing to the Indiana Constitution. We have recently recognized that this methodology is an inaccurate statement of federal double jeopardy law as established by Blockburger. Carter, 686 N.E.2d at 837; Grinstead, 684 N.E.2d at 486; Games, 684 N.E.2d at 474. Considering
Elmore's merger of Indiana double jeopardy law into federal constitutional analysis and
its declaration that our state's double jeopardy jurisprudence must "be in line with federal
standards," 269 Ind. at 537, 382 N.E.2d at 896, it is not surprising that we did not
separately evaluate the Indiana Constitution as an additional, independent source of
double jeopardy protection. Instead, we generally addressed double jeopardy claims by
applying the prevailing understanding of federal jurisprudence and merely referred to the
Indiana Double Jeopardy Clause. This Court today recognizes that these post-Elmore,
pre-Games cases do not constitute precedent regarding the application of the Indiana
Double Jeopardy Clause. Our action today should be understood to supercede these
From our review of the constitutional text, the history and circumstances surrounding its adoption, and the earliest cases interpreting and applying the provision, we conclude that Indiana's Double Jeopardy Clause was intended to prevent the State
from being able to proceed against a person twice for the same criminal transgression.
While none of the early cases presented a comprehensive analysis, a generally articulated
test, or a standard of review for double jeopardy claims
, the holdings in these decisions
do reflect a common theme. A criminal transgression was a person's conduct that
violated a statutorily defined crime. In seeking to determine whether two criminal
transgressions were the same, this Court in its earliest decisions did not restrict its review
only to a comparison of statutory elements of the crime or to an analysis of the language
in the charging instruments. Rather, this Court also reviewed the actual evidence
presented at trial when available.
Synthesizing these considerations, we therefore conclude and hold that two or more offenses are the "same offense" in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense. See footnote 37 Both of these
considerations, the statutory elements test and the actual evidence test, are components of
the double jeopardy "same offense" analysis under the Indiana Constitution.
elements of one of the challenged offenses could, hypothetically, be established by
evidence that does not also establish the essential elements of the other charged offense.
In this case, defendant Richardson contends that his convictions for robbery and
class A misdemeanor battery violate double jeopardy. Robbery as a class C felony is
defined as follows:
A person who knowingly or intentionally takes property from another person or from the presence of another person: (1) by using or threatening the use of force on any person; or (2) by putting any person in fear; commits robbery, a class C felony.
Ind. Code § 35-42-5-1 (1993). The defendant was charged as follows: "Robert M. Richardson II . . . on or about the 31st day of August, 1996 . . . did then and there knowingly or intentionally take property from another person, to-wit: a wallet containing $700 belonging to Jeffrey W. Koenig by using or threatening the use of force." Record at 4. Under the statutory elements test, we focus on the essential elements comprising the charged offense of robbery: (1) the defendant (2) knowingly or intentionally (3) took property from (4) Koenig (5) by using or threatening the use of force on Koenig. The defendant could not be convicted at trial if these essential elements were not established. See footnote 42 Although the State may choose to do so, it is not required to include
detailed factual allegations in the charging instrument. See Ind. Code § 35-34-1-2.
example, in this case, the State could have charged as follows: Robert M. Richardson, II,
on or about the 31st day of August 1996 did intentionally take property belonging to
Jeffrey W. Koenig by using force. Had the State chosen to do so, the charging
information would have been valid, as the essential elements were specified.
The second offense at issue in this case is battery, as a class A misdemeanor. The statute provides that "[a] person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery . . . ." Ind. Code § 35-42-2-1 (1993). The offense becomes a class A misdemeanor if "it results in bodily injury to any other person." Id. The charging instrument alleged that the defendant "on or about the 31st day of August, 1996 . . . did then and there knowingly or intentionally touch another person in a rude, insolent or angry manner that resulted in bodily injury in that the said defendant beat a certain Jeffrey W. Koenig with his fist to the extent that the said [Koenig] suffered bodily injury." Record at 5. The essential elements of the class A
misdemeanor battery charge are: (1) the defendant (2) knowingly or intentionally (3)
touched (4) Koenig (5) in a rude, insolent, or angry manner (6) resulting in bodily injury
Having identified the essential elements comprising the offense, we compare the essential elements of the two challenged offenses. Each offense must contain at least one element which is separate and distinct from the other offense so that the same evidence is not necessary to convict for both offenses. See Durke, 204 Ind. at 378, 183 N.E. at 101 (citing Foran, 195 Ind. at 60, 144 N.E. at 530 (citing Smith, 85 Ind. at 557)). In this case, the essential elements of the offense of battery as a class A misdemeanor include the element of a resulting bodily injury, which is not included in the essential elements of robbery. Furthermore, battery requires a touching in a rude, insolent, or angry manner, whereas robbery merely requires the use or threat of force. Also, an essential element of the robbery is the taking of some type of property from Koenig, which is separate and distinct from the essential elements of the battery. Under our statutory elements test, each offense of which the defendant was convicted contains at least one essential element that is separate and distinct from the other offense, and, therefore, the State could hypothetically prove separate offenses without using the same evidence. Thus, under the
statutory elements test, there is no double jeopardy violation.
establish the essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.
This second test in our Indiana Double Jeopardy Clause "same offense" analysis differs significantly from federal jurisprudence under Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. "The Blockburger test has nothing to do with the evidence presented at trial. It is concerned solely with the statutory elements of the offenses charged." Grady v. Corbin, 495 U.S. 508, 521 n.12, 110 S.Ct. 2084, 2093 n.12, 109 L.Ed.2d 548, 564 n.12 (1990), overruled on other grounds, United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (second emphasis added). See footnote 47
Koenig was pushed over the side of the bridge. The men left Koenig and returned to the
party, bragging about what they had just done.
The defendant contends that the evidence of the beating prior to the robbery forms the basis of both convictions. We note, however, that the evidence presented at trial also demonstrated that, after the defendant and his companions beat Koenig and took his billfold_thus completing the robbery_they then pushed Koenig off the bridge. While this post-robbery conduct could potentially indicate a subsequent, factually separate battery justifying a separate conviction, there was no actual evidence to prove the element of resulting bodily injury from this separate conduct. See footnote 48 From the evidence presented, we find that the defendant has demonstrated a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the essential elements of the class A misdemeanor battery. Application of the actual evidence test thus discloses that convicting and sentencing the defendant on both of these offenses violates the Indiana Double Jeopardy Clause.
the Indiana Constitution, we vacate the conviction and sentence for battery as a class A
misdemeanor. This cause is remanded to the trial court for disposition consistent with
SHEPARD, C.J., concurs. SULLIVAN, J., concurs with separate opinion. SELBY, J., concurs in result with separate opinion. BOEHM, J., concurs in result with separate opinion, in which SELBY, J. concurs.
Susan K. Carpenter
Gregory L. Lewis
Jeffrey A. Modisett
Public Defender of Indiana
Deputy Public Defender
Indianapolis, IndianaAttorneys for Appellee
Attorney General of Indiana
Deputy Attorney General
Susan K. Carpenter
Gregory L. Lewis
Jeffrey A. Modisett
ROBERT RICHARDSON II,
Appellant (Defendant below),
STATE OF INDIANA,
Appellee (Plaintiff below).
) Supreme Court No.
) Court of Appeals No.
I congratulate Justice Dickson on his comprehensive and enlightening analysis. I concur because I believe his formulation encompasses those limited number of specific
situations (deemed superseded) where this court has been unwilling to impose multiple
punishments upon a defendant who commits two crimes at the very same time against the
same victim. At this time, however, I am unwilling to extend this formulation beyond these
My own analysis suggests that these situations fall into five categories:
1. Conviction and punishment for a crime which is a lesser included offense of
another crime for which the defendant has been convicted and punished. Examples of this
situation are provided by such cases as Bivins v. State, 642 N.E.2d 928, 945 (Ind. 1994)
(vacating a conviction for theft because it was a lesser-included offense of robbery), and
Wethington v. State, 560 N.E.2d 496, 506 (Ind. 1990) (vacating a conviction for theft
because it was a lesser-included offense of robbery).
However, this category does not include situations where the two crimes have
different victims, e.g., Reaves v. State, 586 N.E.2d 847, 851 (Ind. 1992), or where the
crimes occur separate and independent of each other, e.g., Bean v. State, 460 N.E.2d 936,
943 (Ind. 1984).
2. Conviction and punishment for a crime which consists of the very same act as another crime for which the defendant has been convicted and punished. An example of this
situation is Jones v. State, 523 N.E.2d 750, 754 (Ind. 1988) (vacating a Battery conviction
because the information showed that the identical touching was the basis of a second Battery
3. Conviction and punishment for a crime which consists of the very same act as
an element of another crime for which the defendant has been convicted and punished. Mr.
Richardson's situation in this case falls into this category. Another example is Wethington
v. State, 560 N.E.2d 496, 508 (Ind. 1990) (vacating a Confinement conviction because the
confinement was coextensive with the behavior or harm necessary to establish an element
of a Robbery conviction).
We have not extended relief, however, in situations where the subject behavior or harm is either separate from or more extensive than that necessary to constitute the element of the first crime. Examples of relief being denied on this basis include Webster v. State, 628 N.E.2d 1212, 1214 (Ind. 1994) (affirming Attempted Rape, Criminal Deviate Conduct and Confinement convictions because the confinement extended beyond that necessary to establish an element of the Attempted Rape and Criminal Deviate Conduct convictions); Purter v. State, 515 N.E.2d 858, 860 (Ind. 1987) (affirming Rape and Confinement convictions because the confinement extended beyond that necessary to establish an element of the Rape conviction); Edwards v. State, 479 N.E.2d 541, 545 (Ind. 1985) (affirming Attempted Rape and Confinement convictions because the confinement extended beyond
that necessary to establish an element of the Attempted Rape conviction).
4. Conviction and punishment for an enhancement of a crime where the
enhancement is imposed for the very same behavior or harm as another crime for which the
defendant has been convicted and punished. The legislature has provided that the
punishment classification of certain crimes may be enhanced if the behavior which
constitutes the crime is accompanied by certain specified additional behavior or causes
certain specified additional harm.See footnote
In situations where a defendant has been convicted of
one crime for engaging in the specified additional behavior or causing the specified
additional harm, that behavior or harm cannot also be used as a enhancement of a separate
crime; either the enhancement or the separate crime is vacated. Recent examples include
Kingery v. State, 659 N.E.2d 490, 496 (Ind. 1995) and Moore v. State, 652 N.E.2d 53, 60
(Ind. 1995), both reducing a Class A enhancement to a Robbery conviction because the very
same killing that was the basis of the enhancement was also the basis of a Murder
conviction. Today's decision in Scott E. McIntire, No. 79S00-9706-CR-381, _ N.E.2d _
(Ind. October 30, 1999), also falls into this category.
On the other hand, where separate victims are involved or the behavior or harm that
is the basis of the enhancement is distinct and separate, no relief will be provided. See
Woods v. State, 677 N.E.2d 499, 501-02 (Ind. 1997) (affirming Class A enhancement to a
Robbery conviction because the serious bodily injury that was the basis of the enhancement
was separate and distinct from that which was the basis of a Murder conviction); Jackson v.
State, 625 N.E.2d 1219, 1222 (Ind. 1993) (same); Hansford v. State, 490 N.E.2d 1083, 1089
(Ind. 1986) (affirming Class A enhancements to Burglary and Robbery convictions because
the serious bodily injuries that were the bases of the enhancements were inflicted on
5. Conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the very same act as another crime for which the defendant has been convicted and punished. Conspiracy requires an agreement
by two or more people to commit a crime and an overt act in furtherance of the agreement.
While a defendant can be guilty of both conspiracy to commit a crime and the underlying
crime itself, what is at stake in this category is assuring that indeed the conspiracy is a
separate and distinct act from the underlying crime. Put more concretely, in situations
where the overt act itself is no more than the underlying crime, any time two or more
persons commit a crime, at least one will be guilty of both conspiracy and the underlying
crime _ the element of agreement can be inferred from their concerted action and the overt
act found in their commission of the crime.
This point was explained in Chiesi v. State, 644 N.E.2d 104, 106 (Ind. 1994). There the defendant was charged with both Conspiracy to Commit Murder and Murder. While this case turned to some extent on the adequacy of the charging information, the defendant cited Buie v. State, 633 N.E.2d 250, 261 (Ind. 1994), as authority for setting aside the conspiracy conviction. But we noted that, It is evident that in Buie the conspiracy to commit and the subject crime were committed virtually simultaneously and that the only overt act completing the conspiracy was the murder itself . . . . [U]nlike Buie where the conspiracy and killing constituted a single offense, in the case at bar, appellant not only entered into a lengthy conspiracy but committed several overt acts following the conspiracy in order to participate in the carrying out of the actual murder. Chiesi, 644 N.E.2d at 106-07. Donald Guffey v. State, No. 33S04-9910-CR-507, _ N.E.2d _ (Ind. October 30, 1999), which we decide today falls into this category.
Susan K. Carpenter Jeffrey A. Modisett
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Geoff Davis
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
ROBERT RICHARDSON II, )
Appellant (Defendant below) ) Supreme Court No.
STATE OF INDIANA, )
Appellee (Plaintiff below). )
ON PETITION TO TRANSFER
October 1, 1999
SELBY, J., concurring in result.
What is double jeopardy? I believe that when asked this question, most people, and indeed most Hoosiers, would say that it is to be tried twice for the same crime. The answer likely would be just this simple, without regard to notions of multiple punishment,
dual convictions, the meaning of an offense and the like. Double jeopardy is a bedrock
principle of our constitutional law. See Benton v. Maryland, 395 U.S. 784, 89 S. Ct.
2056, 23 L. Ed. 2d 707 (1969); Elmore v. State, 382 N.E.2d 893 (Ind. 1978).
Nevertheless, as Justice Boehm points out, confusion over double jeopardy is not new.
__ N.E.2d __, __ (Ind. 1999) , Slip op at 6. Although the decisions announced today
fairly characterize the importance of the concept of double jeopardy to criminal law, they
lose sight of what for many citizens is thought to be a straightforward idea -- a person
cannot be tried twice for the same crime. I join in Justice Boehm's opinion because I
believe that it is the most consistent with what double jeopardy ought to be under Article
I, § 14 of the Indiana Constitution.
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
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
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
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)
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
_ some constitutional and some not _ and require different treatment.See footnote
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
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
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
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
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
and then recentSee footnote
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 evidenceSee footnote 13 test to secure the rights found in the double jeopardy provision of the state constitutionSee 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
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
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
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
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
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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