Berkman v. State

Decision Date04 September 2012
Docket NumberNo. 45A04–1111–CR–583.,45A04–1111–CR–583.
Citation976 N.E.2d 68
PartiesNathan S. BERKMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
CourtIndiana Appellate Court


Mark A. Bates, Office of the Lake County Public Defender, Crown Point, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.



AppellantDefendant Nathan Berkman appeals from his conviction of and sentence for Felony Murder.1 Berkman raises five issues, which we restate as follows:

I. Whether the trial court abused its discretion in denying Berkman's motion to dismiss, which was made on the basis that the instant charge was barred by prohibitions against double jeopardy; II. Whether the trial court abused its discretion in denying Berkman's mistrial motion, which was made on the basis that the trial court abused its discretion in admitting certain testimony from a previous trial;

III. Whether the trial court abused its discretion in admitting certain deposition testimony; and

IV. Whether Berkman's sixty-year executed sentence is inappropriately harsh.

We affirm.


In August of 2008, Berkman owed approximately $2000 to Olen Hawkins, from whom he had frequently purchased cocaine. On August 30, 2008, Berkman telephoned Hawkins, told him that he had the money he owed him, and arranged a meeting in a supermarket parking lot. Between 4:00 and 5:00 p.m., Berkman told Arlene Timmerman, his girlfriend and with whom he lived, that was going to leave to obtain money and cocaine and that he had to go by himself. Berkman left at approximately 6:00 p.m., in Timmerman's car.

Berkman met Hawkins in the supermarket parking lot, parked next to him, and entered Hawkins's vehicle. When Hawkins asked Berkman if he had the money that he owed him, Berkman slit Hawkins's throat “from ear to ear and he robbed him for a couple ounces of dope and a bunch of money.” Tr. p. 1015. Berkman kicked Hawkins's dead body into the passenger seat and drove Hawkins's car back to Timmerman's house, arriving at approximately 9:30 to 10:00 p.m.

When Berkman arrived back at Timmerman's, he yelled for Timmerman. Timmerman went with Berkman to the garage, where she saw Hawkins's dead body in the passenger seat of his car. Berkman told Timmerman that he had cut Hawkins's throat and taken an ounce of cocaine from him. Berkman, Timmerman, and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement until approximately 1:30 or 2:00 a.m.

Late in the evening of August 31, 2008, or early in the morning of September 1, Berkman retrieved a knife from the kitchen, held it to Timmerman's neck, and said, “Get your f* * * * * * a* * downstairs now.” Tr. p. 517. Timmerman managed to elude Berkman, leave, and go to the home of friend Meghan Johnston. At approximately 7:00 or 8:00 a.m. on September 1, 2008, Timmerman called home, Berkman apologized, and Timmerman returned home. Berkman told her later that day that he had formulated a plan to dispose of Hawkins's body, which was still in Hawkins's car in the garage. Early in the morning of September 2, 2008, Berkman drove Hawkins's car to a field with Timmerman following in her car. While Timmerman waited, Berkman doused Hawkins's car with gasoline and set it aflame. Hawkins's burned-out car and remains were discovered on November 19, 2008.

On June 9, 2009, the State charged Berkman with murder and felony murder in the perpetration of robbery, both felonies. On July 27, 2011, a jury acquitted Berkman of murder but failed to reach a verdict on the felony murder count. On August 30, 2011, Berkman's second jury trial began, in which he was charged with felony murder. During its case in chief, the State called Timmerman to testify. Soon thereafter, Timmerman indicated that she was “having an issue[,] and trial was recessed. Tr. p. 463. When questioned by the trial court in chambers, Timmerman said that she was “very nauseous [and] burning up” and afraid that she might be developing a migraine. Tr. p. 466. The trial court determined that Timmerman was unable to testify and ruled that her testimony from the first trial could be read into the record.

Later in the trial, on September 7, 2011, the State indicated that it wished to introduce deposition testimony of Paul Barraza, testimony that had been read into the record in the first trial. The deposition of Barraza had been conducted by Berkman's attorney, and the State did not question Barraza during the deposition. The prosecutor indicated that his office gave Barraza's address and telephone number to an investigator but were unable to serve Barraza with a subpoena on August 8, 2011. The prosecutor also indicated that his office had been unable to contact Barraza via telephone, Barraza was subject to at least one open Lake County arrest warrant, and he believed Barraza to be in Florida avoiding the warrant. The trial court allowed the deposition to be read into the record. The jury found Berkman guilty as charged, and on October 3, 2011, the trial court sentenced him to sixty years of incarceration for felony murder.

I. Whether the Trial Court Abused its Discretion in Denying Berkman's Motion to Dismiss

“On appeal, we will review a trial court's grant of a motion to dismiss an information for an abuse of discretion.” State v. Gill, 949 N.E.2d 848, 849 (Ind.Ct.App.2011) (citing Zitlaw v. State, 880 N.E.2d 724, 728 (Ind.Ct.App.2008), trans. denied ), trans. denied. “In reviewing a trial court's decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances.” Id. (citing Zitlaw, 880 N.E.2d at 728–29). Berkman contends that the trial court abused its discretion in denying his motion to dismiss, which was made on the basis that retrying him for felony murder after his acquittal for murder violated prohibitions against double jeopardy.

A. Richardson Same Actual Evidence Test

Berkman contends that his retrial for felony murder violates Indiana's “actual evidence” test. In Richardson v. State, 717 N.E.2d 32 (Ind.1999), the Indiana Supreme Court held “that two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to ... the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Id. at 49–50. The Richardson court stated the actual evidence test as follows:

To show that two challenged offenses constitute the “same offense” in a claim of double jeopardy, 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.

Berkman's Richardson claim must fail for the simple reason that he has been found guilty of only one crime. See, e.g., Lee v. State, 892 N.E.2d 1231, 1235 (Ind.2008) (“Since Richardson, this Court has decided several cases where there were separate facts to support two convictions, but the case was presented in a way that left a reasonable possibility that the jury used the same facts to establish both.”) (second emphasis added). Because there is no conviction other than the felony murder conviction, there is no other conviction that could have been based on the jury's reliance on the same actual evidence used to establish the elements of felony murder. Berkman's reliance on Richardson is unavailing.

B. Collateral Estoppel

Berkman also contends that the State was barred from trying him again for felony murder by the doctrine of collateral estoppel.

Collateral estoppel, also known as issue-preclusion, 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, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Collateral estoppel is a component of the Fifth Amendment's double jeopardy protections. Id. at 445, 90 S.Ct. 1189. However, collateral estoppel ‘will not often be available to a criminal defendant,’ for ‘it is not often possible to determine with precision how the judge or jury has decided any particular issue.’ 5 Wayne R. Lafave et al., Criminal Procedure § 17.4(a) (3d ed.2007) (quoting Walter V. Schaefer, Unresolved Issues in the Law of Double Jeopardy; Waller and Ashe, 58 Cal. L. Rev. 391, 394 (1970)).

Hoover v. State, 918 N.E.2d 724, 734 (Ind.Ct.App.2009), trans. denied.

Berkman contends that the issues litigated and disposed of in his favor in the first trial, i.e., that he did not murder Hawkins, preclude him from being tried subsequently for felony murder. In order to convict a person of murder, the State is required to prove that he “knowingly or intentionally kill[ed] another human being[,] while a conviction for felony murder may rest upon proof that he “kill[ed] another human being while committing or attempting to commit ... robbery[.] Ind.Code § 35–42–1–1(1); –1(2).

Based on the jury's murder acquittal and failure to reach a verdict on the felony murder charge in the first trial, the only issue of fact that we can say with certainty was litigated and decided against the State was that Berkman had not knowingly or intentionally killed Hawkins. Had the first jury found that Berkman had not killed Hawkins at all, it would have acquitted him of felony murder as well, instead of deadlocking on the charge. However, the State is not required to prove a knowing or intentional killing in order to sustain a felony murder conviction, only a killing—even an accidental one. In order to prevail on his collateral estoppel claim, Berkman must be able to firmly establish that the second jury impermissibly found that he...

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