Richardson v. State

• Decision Date: 01 October 1999
• Docket Number: No. 67S01-9910-CR-506.,67S01-9910-CR-506.
• Citation: 717 N.E.2d 32
• Parties: Robert RICHARDSON, II Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

717 N.E.2d 32

Robert RICHARDSON, II Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 67S01-9910-CR-506.

Supreme Court of Indiana.

October 1, 1999.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender Indianapolis, Indiana, Attorneys for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Geoff Davis, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

ON PETITION TO TRANSFER

DICKSON, J.

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 felony¹ and battery as a class A misdemeanor.² 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.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 Clause.⁴ 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.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.⁶ Today, with our opinions in this case and its companion cases, we address this issue.

The Double Jeopardy Clause of the Indiana Constitution

Questions arising under the Indiana Constitution are to be resolved by "examining the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." Indiana Gaming Comm'n v. Moseley, 643 N.E.2d 296, 298 (Ind.1994). In construing the Constitution, "`a court should look to the history of the times, and examine the state of things existing when the constitution or any part thereof was framed and adopted, to ascertain the old law, the mischief, and the remedy.'" Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991) (quoting State v. Gibson, 36 Ind. 389, 391 (1871)). Because the "intent of the framers of the Constitution is paramount in determining the meaning of a provision," Eakin v. State ex rel. Capital Improvement Bd. of Managers, 474 N.E.2d 62, 64 (Ind.1985), this Court will consider "the purpose which induced the adoption," id. at 65, "in order that we may ascertain what the particular constitutional provision was designed to prevent," Northern Ind. Bank & Trust Co. v. State Bd. of Fin., 457 N.E.2d 527, 529 (Ind.1983).

When this State was founded in 1816, the framers and ratifiers adopted a double jeopardy provision which provided that, "in all criminal prosecutions, the accused ... shall not ... be twice put in jeopardy for the same offence." IND. CONST. art 1, § 13 (1816). However, our ability to discern the framers' intentions is limited because the journal of the 1816 Constitutional Convention does not report the delegates' remarks or disclose procedural matters informative to the issue.⁷

When the present version of our Constitution was adopted in 1851, the original double jeopardy provision was only slightly modified. Article I, Section 14 provides in part: "No person shall be put in jeopardy twice for the same offense."⁸ The provision was adopted with no debate and has not been modified to date. The "`cardinal principle of constitutional construction [is] that words are to be considered as used in their ordinary sense.'" Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998) (quoting Tucker v. State, 218 Ind. 614, 670, 35 N.E.2d 270, 291 (1941)). Contemporaneous with the adoption of the 1851 Constitution, "offense" was defined as a "crime" or "transgression of law." NOAH 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,⁹ Roman,¹⁰ and biblical¹¹ sources. While some historians trace double jeopardy protections in England to the dispute between King Henry II and Archbishop Thomas a Becket in 1176,¹² 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.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 attaint¹⁴ was also recognized. Id. Writing 100 years after Coke, Black-stone 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,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...