Cameron v. State

• Decision Date: 25 November 1980
• Docket Number: No. 480S98,480S98
• Parties: Clay CAMERON, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 1194

412 N.E.2d 1194

274 Ind. 436

Clay CAMERON, Appellant, v. STATE of Indiana, Appellee.

No. 480S98.

Supreme Court of Indiana.

Nov. 25, 1980.

John R. Politan, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-appellant Clay Cameron was charged in Marion Superior Court with commission of a felony while armed, to-wit: robbery, Ind. Code § 35-12-1-1 (Burns 1975) (Count One); commission of a felony while armed, to-wit, rape, § 35-12-1-1 (Count Two); and inflicting injury during the commission of a robbery, § 35-13-4-6 (Count Three). He was convicted by a jury on March 22, 1977, of armed rape and inflicting injury during the commission of a robbery, and received sentences of twenty years and life imprisonment, respectively. Cameron then appealed those convictions to this Court. On January 3, 1979, this Court reversed the convictions and ordered a new trial for Cameron. Ind., 383 N.E.2d 1039. The sole issue disposed of on that appeal concerned the trial court's interposing himself into the jury deliberations and emphasizing a particular instruction to the jury.

On remand, Cameron's case came to trial for the second time on October 15, 1979. At this trial, the jury convicted him of armed rape under § 35-12-1-1 and of armed robbery under the same statute. He was sentenced to twenty-five and fifteen year terms, respectively, to be served consecutively. This appeal followed. Appellant Cameron presents three issues for our review, concerning: (1) whether Cameron's right against double jeopardy was violated; (2) whether the trial court erred in failing to grant a mistrial after an alleged violation of a discovery order; and (3) whether there is sufficient evidence to sustain the verdict on the question of insanity.

The evidence showed that on July 19, 1976, at approximately 11:00 a. m., appellant Cameron entered Swan's Record Shop in Indianapolis, where the victim, S. P., was working. S. P. had known Cameron for about one year, and she testified that Cameron came into the store usually once a day. S. P. also stated that he usually had been drinking prior to coming to the store. On the day in question, Cameron waited until no customers were in the store, and then locked the door and moved a window sign to indicate the store was closed. He drew a small pocket knife and advanced toward the victim, demanding the money from the cash register. Cameron held S. P. at knifepoint while removing the money from the drawer. Cameron then forced S. P. into an upstairs room at the rear of the store, where he ordered her to disrobe. He then raped her with the knife blade held against her throat, and later forced her to commit oral sodomy on him. Cameron then stabbed her in the lower chest area at least once, and cut three of her fingers as she tried to grab the weapon. When Cameron stumbled and fell, S. P. ran from the premises to a nearby store and sought assistance. Cameron was apprehended a short while later in a tavern a few blocks from the record shop.

I.

Appellant Cameron first contends he was twice placed in jeopardy for the same offense, in contravention of the Fifth and Fourteenth Amendments to the United States Constitution, and article one, section fourteen of the Indiana Constitution. Appellant asserts that, because allegedly no verdict was returned on the armed robbery charge in the first trial, he was thereby acquitted of that charge. However, he argues, he was retried on this charge in the second trial and found guilty. Thus, he contends that Price v. Georgia, (1970) 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, requires a reversal of his armed robbery conviction.

This argument is without merit for several reasons. Even a cursory examination of the record of the two trials should have revealed to appellate counsel that the factual assertions upon which he bases this issue are indisputably contrary to the facts clearly revealed in the record. First, appellant Cameron clearly was not acquitted of armed robbery at the first trial. Cameron was initially charged in a separate court with armed robbery. This armed robbery was a part of the inflicting injury offense. This separate count was apparently dismissed prior to the first trial. The language of the armed robbery charge (Count One) was crossed out in preliminary instruction number three, indicating this language was omitted when the preliminary instructions were given. Preliminary instruction number three reveals that Count Two, the armed rape charge, was renumbered "Count One, " and Count Three, the inflicting injury charge, was renumbered "Count Two." Preliminary instruction number four likewise refers to only two counts. The final instructions make no reference to armed robbery constituting one of the counts in the information. However, final instruction number twenty-two does state that armed robbery is a lesser-included offense of inflicting injury during the commission of a robbery. The final instructions also define armed robbery and instructed the jury that, alternatively, they could convict on this offense.

Thus, it is not true, as appellant claims, that he was charged with three offenses in the first trial. Obviously, no verdict was returned on the separate armed robbery count, because this charge was not given to the jury as a separate count. As will be shown, a separate verdict on this offense, in addition to a verdict on the inflicting injury charge, would have been improper. Armed robbery was presented only as a lesser-included offense of the inflicting injury charge, and the jury chose to find Cameron guilty of the greater offense. Thus, as will also be shown, appellant was not acquitted of anything in the first trial. The record also reveals that the armed robbery count was dropped "by agreement of the parties" prior to the second trial, and deletion procedures were used in the instructions in the second trial similar to those used in the first trial. Clearly, then, neither was armed robbery submitted to the jury as a separate count in the second trial.

More fundamentally, appellant's argument completely ignores the operation of principles of lesser-included offenses. Commission of a felony while armed, as initially charged in Count One, is a lesser included offense of inflicting injury during the commission of a robbery, the crime charged in the original Count Three. Pinkston v. State, (1978) 268 Ind. 627, 628-29, 377 N.E.2d 1355, 1356; Bobbitt v. State, (1977) 266 Ind. 164, 168, 361 N.E.2d 1193, 1196; Pinkler v. State, (1977) 266 Ind. 467, 471, 364 N.E.2d 126, 128; Roberts v. State, (1977) 266 Ind. 72, 80, 360 N.E.2d 825, 829; Swininger v. State, (1975) 265 Ind. 136, 143, 352 N.E.2d 473, 478-79. See Goodpaster v. State, (1980) Ind. 402 N.E.2d 1239; Bean v. State, (1978) 267 Ind. 528, 529, 371 N.E.2d 713; Roddy v. State, (1979) Ind.App., 394 N.E.2d 1098. Thus, charging Cameron in Count Three with inflicting injury also, in effect, necessarily charged him with armed robbery. Snodgrass v. State, (1980) Ind., 406 N.E.2d 641, 643 (opinion on rehearing); Webb v. State, (1972) 259 Ind. 101, 103, 284 N.E.2d 812, 813. The prosecution could not have proved that Cameron inflicted injury with a dangerous or deadly weapon during the commission of a robbery (Count Three) without also proving that he committed a robbery while armed with a dangerous or deadly weapon. See Ind.Code §§ 35-12-1-1, 35-13-4-6 (Burns 1975). Generally, in terms of its legal effect, a separate armed robbery count "adds nothing to the case. It dos not level an additional allegation or charge against the defendant." Snodgrass v. State, supra, 406 N.E.2d at 643 (emphasis in original).

In Webb v. State, supra, the defendant was charged with robbery and armed robbery. We explained in Webb that where the offense charged in one count was necessarily included in the offense charged in the other, "only the greater count was required to authorize the giving of instructions upon both crimes and a conviction upon either." Webb v. State, supra, 259 Ind. at 103, 284 N.E.2d at 813. Stated another way, a finding of guilt of the greater offense is a finding of guilt of all necessarily-included lesser offenses. Goodpaster v. State, supra; Snodgrass v. State, supra; Webb v. State, supra.

Therefore, just as adding or retaining the separate armed robbery count did not add anything to this case, neither did dismissing the armed robbery count take anything away from the case. Separately charging armed robbery was an unnecessary formality, and the court wisely removed armed robbery, as a separate charge, from the jury's consideration. Further, Cameron could not properly have been convicted of armed robbery and inflicting injury. Pinkston v. State, supra; Bobbitt v. State, supra. See Snodgrass v. State, supra. The armed robbery charge, however, effectively remained a part of the case, as a lesser-included offense of the inflicting injury charge. The jury was clearly instructed to that effect in both trials, after the separate armed robbery count had been deleted. Whereas, in the first trial the jury found Cameron guilty of the greater offense, in the second trial the jury merely opted for the lesser-included offense. In neither trial was Cameron acquitted of armed robbery. In fact, the jury's finding in the first trial that appellant committed the inflicting injury crime presupposes a finding that he committed armed robbery, a necessary part of the greater crime. The second trial thus did not result in a conviction on a charge of which Cameron had previously been acquitted. Therefore, Cameron was not placed in jeopardy twice for the same crime. This issue is without merit.

II.

Appellant Cameron next argues the trial court erred by failing to grant a mistrial after an alleged violation of the court's discovery order. Shortly after beginning his cross-examination of the victim, counsel...