Baker v. State

• Decision Date: 01 September 1981
• Docket Number: No. 680S169,680S169
• Citation: 425 N.E.2d 98
• Parties: Gregory A. BAKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 98

425 N.E.2d 98

Gregory A. BAKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 680S169.

Supreme Court of Indiana.

Sept. 1, 1981.

Richard M. Salb, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Frederick N. Kopec, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Gregory A. Baker, was convicted by a jury of theft, a class D felony, Ind.Code § 35-43-4-2 (Burns 1979 Repl.) and of being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.) and was sentenced to consecutive terms of two and thirty years' imprisonment. His direct appeal raises the following issues all related to the habitual offender phase of the proceedings:

1. Whether the trial court erred in allowing the prosecutor to file the habitual offender count using the same two prior felonies which had been used during the habitual offender proceeding at a previous trial;

2. Whether the court erred in granting the state's motion in limine which prevented defendant from making any reference to a prior jury decision involving the same two prior felonies used by the state in this habitual offender count;

3. Whether the habitual offender sentence constitutes multiple punishment for the same "offense" since the sentence on his last felony conviction was increased because of the existence of the same prior felony convictions;

4. Whether defendant's prior conviction for shoplifting, alleged to be a felony conviction, was actually a misdemeanor conviction and was improperly admitted into evidence; and

5. Whether the prosecutor's conduct in filing the habitual offender count was an act of prosecutorial vindictiveness.

A summary of the facts from the record shows that the theft charge arose from defendant's unauthorized use of another person's American Express Card. The information which charged defendant with this theft was filed on June 15, 1978. The state filed the amended information adding the habitual offender count on November 21, 1979. The trial on these counts was held on November 26, 1979, with guilty verdicts returned by the jury on both counts.

The record also shows that defendant was tried and convicted on an unrelated theft charge one week prior to the instant trial on November 19, 1979. At that trial, there was an habitual offender count based upon the same two prior felony convictions which were used at the instant trial. On November 19, 1979, the jury found defendant guilty on the theft charge but returned a verdict of not guilty on the habitual offender count.

I.

Defendant first argues that constitutional prohibition against double jeopardy and the related doctrine of collateral estoppel bar the state from reusing prior felony convictions in support of an habitual offender charge where a prior habitual offender proceeding, based on the same prior felony convictions, had resulted in a verdict of acquittal.

This Court has not considered this precise issue but has considered the doctrine of collateral estoppel as it applies to habitual offender proceedings in Hall v. State, (1980) Ind., 405 N.E.2d 530. In that case, the defendant was found guilty of rape in 1977, but the habitual offender count against him was dismissed by the court on the basis that the state's exhibits were not sufficient to show a knowing and voluntary plea of guilty at his two prior felony convictions. At a subsequent trial on a charge of murder, the same two prior felony convictions were presented to the jury as were used in the 1977 rape conviction. A third prior felony was also presented at that time. The defendant was then found guilty of involuntary manslaughter and was found to be an habitual offender. He argued that the doctrine of collateral estoppel prevented the state from using the same two prior felonies at the murder trial that had been used at his previous rape trial. We unanimously held that the doctrine of collateral estoppel did not apply in his case where the previous habitual offender count had been dismissed. We now find that the doctrine of collateral estoppel similarly does not apply to the instant case where the previous habitual offender proceeding resulted in a not guilty verdict.

This Court has consistently emphasized the unique status of the habitual offender statute. This statute has historically provided for greater punishment than would ordinarily be imposed upon the substantive crime charged. The individual is subjected to the greater sentence neither for the prior crimes nor for the status of habitual offender, but rather the enhanced sentence is imposed for the last crime committed. Comstock v. State, (1980) Ind., 406 N.E.2d 1164; Wise v. State, (1980) Ind., 400 N.E.2d 114. The purpose of the statute is to more severely penalize those persons whom prior sanctions have failed to deter from committing felonies. Hall v. State, supra; Norris v. State, (1979) Ind., 394 N.E.2d 144; Parks v. State, (1979) Ind., 389 N.E.2d 286. It is widely recognized that since habitual criminality is a vehicle for the enhancement of punishment upon the conviction of an additional, substantive crime, prior convictions used to establish the fact of habitual criminality at one trial can be used again after a subsequent felony conviction. This is based upon the reasoning that the use of the prior convictions is for a determination of status only and the additional punishment is imposed for each new crime not for crimes for which the defendant has already been convicted and punished. Hall v. State, supra; People v. Anderson, (1979) Colo.App., 605 P.2d 60; State v. Rogers, (1979) 93 N.M. 519, 602 P.2d 616; Pearson v. State, (1975) Tenn., 521 S.W.2d 225.

It is well settled that both this Court and the United States Supreme Court have upheld recidivist statutes against cruel and unusual punishment, double jeopardy, ex post facto, and due process arguments. Rummel v. Estelle, (1980) 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382; Spencer v. Texas, (1967) 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606; Hall v. State, supra. The doctrine of collateral estoppel is embodied in the constitutional guaranty against double jeopardy. This doctrine provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ashe v. Swenson, (1970) 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469; Town of Flora v. Indiana Service Corp., (1944) 222 Ind. 253, 53 N.E.2d 161. However, the finding that a defendant is or is not an habitual offender is not an "ultimate issue of fact" in the sense discussed in Ashe. Only the fact of the various convictions, and not the facts underlying those offenses, is determinative of a defendant's habitual offender status.

The existence of a felony conviction begins at the instant a court issues a final judgment of conviction in that particular case. The action of a court at a later habitual offender hearing does not operate to "acquit" the defendant of that prior conviction or change the fact that the prior conviction does still exist. The action of the subsequent court involves only the enhanced penalty to be imposed upon a defendant after he has been convicted of a subsequent crime. Our statute provides that each time a defendant with two prior felony convictions is convicted of another felony, the state is allowed to then charge him with being an habitual offender. The statute further provides that there must be a determination of defendant's status as an habitual offender based upon the evidence presented at that time. Ind.Code § 35-50-2-8 (Burns 1979 Repl.). Even if there is a determination made in one case that a defendant is not an habitual offender based upon the evidence presented at that time, there is nothing to prevent the state from alleging the fact of the prior felony convictions again at a later trial since those two prior convictions do still exist. Hall v. State, supra. The repeated use of prior convictions as a determinant of status does not constitute double jeopardy and thus does not invoke the doctrine of collateral estoppel.

The recent United States Supreme Court case of Bullington v. Missouri, (1981) --- U.S. ----, 101 S.Ct. 1852, 68 L.Ed.2d 270, is not applicable since it involved a bifurcated death-penalty procedure wherein the jury returned a verdict fixing the punishment at life imprisonment and not at death. The defendant was granted a new trial on the substantive charge. The Supreme Court held that the state could not ask for the death penalty a second time since the sentencing procedure at the defendant's first trial was like the trial on question of guilt or innocence and involved a consideration of the particular facts underlying the substantive offense. Bullington v. Missouri, supra.

Because the habitual offender statute does not create new or separate offenses and the habitual offender proceeding does not deal with the underlying facts on the substantive charge, the use of prior convictions at more than once habitual offender proceeding does not constitute double jeopardy. Our legislature has decided that an enhanced punishment of thirty additional years is appropriate for all individuals who are convicted of a felony when it is determined that they also have two prior felony convictions. There are no constitutional or collateral estoppel barriers to prevent the state from exacting that punishment each time a different felony is committed as long as the prior convictions do still exist. There was no error here.

II.

Defendant next argues that the trial court erred in granting the state's motion in limine preventing him from making any reference to the jury about his prior habitual offender proceeding. However, we find that defendant has misconstrued the purpose of a motion in limine.

It is well settled that motions in limine are used before trial as protective orders against prejudicial questions and...