Spivey v. State

Decision Date29 January 2002
Docket NumberNo. 41S00-0002-CR-76.,41S00-0002-CR-76.
PartiesJ.L. SPIVEY, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Supreme Court

John P. Wilson, Greenwood, IN, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. DICKSON, Justice.

A jury found the defendant, J.L. Spivey, guilty of murder (felony murder),1 burglary as a class A felony,2 and conspiracy to commit burglary3 in connection with the death of John Hughes in Greenwood, Indiana, in June of 1997. Finding that Count II, charging burglary "must be merged" into Count I, charging felony murder, the trial court only imposed sentences for the defendant's convictions for murder and conspiracy to commit burglary. Record at 310, 326. This direct appeal presents two claims: 1) that the defendant's convictions violate the Double Jeopardy Clause of the Indiana Constitution and 2) that the trial court erred in limiting cross-examination. We affirm his convictions.

Indiana Double Jeopardy Clause

The defendant's first contention is that his convictions and sentences for murder and conspiracy to commit burglary violate the Indiana Double Jeopardy Clause, Article 1, Section 14 of the Indiana Constitution, as explicated in Richardson v. State, 717 N.E.2d 32 (Ind.1999). The defendant claims that under the actual evidence test he may not be properly convicted of felony murder and conspiracy to commit a felony when the two offenses share an element. In this case the underlying felony for felony murder was burglary, and the overt act in the conspiracy referred to elements of the same burglary. The defendant argues that, applying the Richardson actual evidence test, the Indiana Double Jeopardy Clause is violated because the jury used the evidence of breaking and entering with intent to commit theft to prove common elements of both conspiracy to commit burglary and felony murder.

In Richardson, we reviewed the history of the Indiana Constitution's Double Jeopardy Clause to ascertain and articulate a single comprehensive rule synthesizing and superseding previous formulations and exceptions. We explained that two offenses are the "same offense" in violation of the Indiana Double Jeopardy Clause 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." Id. at 49. In the present case the defendant claims a violation of the Indiana Double Jeopardy Clause not under the statutory elements test but under the actual evidence test. To show that two challenged offenses constitute the same offense under the actual evidence test, "a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53.

Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury's determination. Richardson, 717 N.E.2d at 54 n. 48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind.2000)

. The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims. The language expressing the actual evidence test explicitly requires evaluation of whether the evidentiary facts used to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense. The test is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense. Application of this principle has been articulated in different ways. Compare Richardson, 717 N.E.2d at 54 ("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"), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.1999) ("the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing the essential elements of robbery as a Class A felony").4

Although denying any connection with the death of Hughes, the defendant at trial admitted conspiracy to commit burglary and commission of the burglary. Record at 1124-25, 1411. The jury was instructed that to find the defendant guilty of the murder charge, the evidence must prove that the defendant or his accomplice killed Hughes while committing or attempting to commit burglary, which was defined as the breaking and entering of a building of another person with the intent to commit a felony therein. Record at 216-17 (Court's Final Instructions 10 & 11). As to the charge of conspiracy to commit burglary, the jury instructions permitted the jury to understand that the overt act element could be either the completed burglary or only the breaking and entering, but the killing of Hughes was not identified as a possible overt act.5 The evidentiary facts proving the essential elements of felony murder established that Hughes was killed in the course of the defendant's commission of burglary. Although these same facts thus established the essential elements of burglary, they did not also prove the agreement element of conspiracy. Similarly, the evidentiary facts used by the jury to establish that the defendant committed conspiracy to commit burglary, although including proof of breaking and entering and intent to commit a felony, did not also establish that Hughes was killed during the burglary. Thus, although the evidence proving each offense also proved some elements of a second offense, in neither case did the same evidentiary facts establish all of the essential elements of both offenses. In other words, the offenses of felony-murder and conspiracy were each established by the proof of a fact not used to establish the other offense.6 The defendant has thus failed to demonstrate a violation of the Indiana Double Jeopardy Clause under the Richardson actual evidence test.

As we hold today in Pierce v. State, 761 N.E.2d 826, 829-30 (Ind.2001), this Court continues to recognize a series of rules of statutory construction and common law that are separate and in addition to the protections afforded by the Indiana Double Jeopardy Clause. However, the defendant's convictions for felony-murder and conspiracy to commit burglary do not qualify for relief under these rules.

Justice Sullivan has urged that an offender should not be punished for the crime of conspiracy where the overt act element of conspiracy "is the very same act as another crime for which the defendant has been convicted and punished." Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). He explains that this rule is required to assure that "the conspiracy is a separate and distinct act from the underlying crime." Id. Here, the conspiracy to commit burglary is sufficiently distinct from the offense of felony-murder. As an overt act of the conspiracy, the burglary was completed when the defendant entered the residence of John Hughes with the intent to commit theft. The defendant was not convicted and sentenced for burglary because the trial court merged the burglary count into the murder count. The defendant's crime of murder, however, required not only the burglary but also the death of Hughes, which is not part of the overt act for the conspiracy to commit burglary. Thus the overt act was not the same as the crime of murder, and the offenses of conspiracy and murder are sufficiently distinct to permit the defendant to be separately convicted and punished for each.

We find no error under the Indiana Double Jeopardy Clause or under any rules of statutory construction and common law.

Limitation on Cross-Examination

The defendant's second contention is that the trial court abused its discretion in limiting the scope of cross-examination of two witnesses. The defendant asserts, "[T]he events which resulted in the death of John Hughes had occurred subsequent to the burglary and after the Defendant, Spivey[,] had left the scene." Br. of Appellant Defendant at 28. He claimed at trial that the death was caused by a subsequent beating of Hughes inflicted by Jason Singleton, a relative of Carla Summers. The defendant argues that "[b]y its cross-examination of Carla Summers and [Jason] Singleton, the defense was trying to show that the motive for the intentional homicide was to cover up the involvement of Singleton in this crime and possibly to protect Carla Summers." Id. (emphasis in original).

The victim was John Hughes, an elderly man of 83 or 84 who lived alone in a mobile home. Carla Summers helped Hughes on a daily basis with basic everyday tasks. She cleaned, ran errands, took him to the doctor's office, and helped him in other similar ways. Singleton was a co-perpetrator in the charged crimes and a relative of Summers by marriage. It was through Summers that Singleton met the victim and became aware that there may be money kept in lockboxes in his kitchen. The defendant and Singleton went to the mobile...

To continue reading

Request your trial
234 cases
  • Kendall v. State
    • United States
    • Indiana Appellate Court
    • April 18, 2005
    ...and common law that are separate and in addition to the protections afforded by the Indiana Double Jeopardy Clause. Spivey v. State, 761 N.E.2d 831, 834 (Ind.2002). One of these rules prohibits "`[c]onviction and punishment for a crime which is a lesser-included offense of another crime for......
  • Wadle v. State
    • United States
    • Indiana Supreme Court
    • August 18, 2020
    ...a "single comprehensive rule" for resolving all substantive double-jeopardy claims under the Indiana Constitution. Spivey v. State , 761 N.E.2d 831, 832 (Ind. 2002). But despite this lofty goal, subsequent application of the rule quickly proved untenable, ultimately forcing the Court to ret......
  • Hines v. State
    • United States
    • Indiana Supreme Court
    • May 19, 2015
    ...have been used to establish a single element of each of two offenses does not constitute a double jeopardy violation, Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002), but proper application of the actual evidence test in light of the totality of circumstances otherwise compels the conclusio......
  • Henderson v. State
    • United States
    • Indiana Supreme Court
    • June 6, 2002
    ...of one offense also establish only one or even several, but not all, of the essential elements of a second offense. Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002). In the present case the jury was separately instructed as to the essential elements of each of the challenged criminal offens......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT