Cherry v. State, 1079S273

Docket NºNo. 1079S273
Citation414 N.E.2d 301, 275 Ind. 14
Case DateJanuary 07, 1981
CourtSupreme Court of Indiana

Page 301

414 N.E.2d 301
275 Ind. 14
Richard S. CHERRY, Appellant (Defendant below),
STATE of Indiana, Appellee (Plaintiff below).
No. 1079S273.
Supreme Court of Indiana.
Jan. 7, 1981.

[275 Ind. 16]

Page 303

John D. Clouse and Michael C. Keating, Evansville, for appellant.

Theodore L. Sendak, Atty. Gen., Frank A. Baldwin, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Richard S. Cherry, was charged with rape, a class A felony, Ind.Code § 35-42-4-1 (Burns 1979 Repl.), criminal deviate conduct, a class A felony, Ind.Code § 35-42-4-2 (Burns 1979 Repl.), and being an habitual offender, Ind.Code § 35-50-2-8 (Burns 1979 Repl.). He was found guilty by a jury on Counts I and II as class B felonies and guilty on Count III. He was sentenced to fifteen, fifteen, and thirty years, respectively, the sentences to be served consecutively. In his appeal he raises twelve issues, but due to our disposition of the case under issue one, we need only consider the following seven issues:

1. Whether the trial court erred in allowing the state to refile two counts against defendant after once dismissing them;

2. Whether Indiana's rape shield act is unconstitutional;

3. Whether members of the prosecutor's staff may testify against a defendant;

4. Whether certain former recorded testimony of a witness was erroneously admitted;

5. Whether defendant was entitled to a discharge under Ind.R.Crim.P. 4(B);

[275 Ind. 17] 6. Whether the court erred in giving certain instructions and refusing to give others; and

7. Whether the court erred in considering certain aggravating circumstances in determining the sentence.

A summary of the facts from the record most favorable to the state shows that on the evening of December 23, 1977, the victim and a girl-friend walked to a tavern in Evansville, Indiana. They sat at a table and had something to drink. The victim testified that defendant came up to their

Page 304

table and asked her to dance. She stated that she danced with him several times and may have had more drinks. Her friend left the tavern sometime during the evening, but the victim stayed until approximately 3:00 a. m. At this time, she asked defendant to drive her home and he agreed.

The victim testified that defendant stopped the car about a block from her home and told her to take her clothes off. She refused and tried to get out of the car, but the door wouldn't open. Defendant then pushed her down, threatened to kill her and choked her, causing scratches on her neck. He forced her to have intercourse with him and then forced her to have oral sex with him. After this, the victim asked defendant to take her to the home of her former husband because she was afraid her present husband wouldn't believe her. Defendant dropped her off at her former husband's home around 4:00 a. m. She then called the police and the rape crisis line and went to the hospital.


Defendant first alleges that it was error for the state to refile two counts against him after once dismissing them. Defendant was originally charged early in 1978, with three counts arising from the instant crime: Count I, rape, a class A felony; Count II, criminal deviate conduct, a class A felony; and Count III, habitual offender. In May, 1978, defendant moved to sever the counts and this motion was granted. The state indicated it would try defendant only on Counts II and III. A jury trial in June, 1978, resulted in a guilty verdict on Count II and a hung jury on Count III. The trial court found there were aggravating circumstances and sentenced defendant to forty years' imprisonment on the criminal deviate conduct count. After the sentencing, the state [275 Ind. 18] made a motion to dismiss Counts I and III and this motion was granted.

Defendant filed a motion to correct errors and later a supplemental motion to correct errors. These motions were granted by the trial court in November, 1978, on the basis of prejudicial testimony admitted during the trial and defendant's poor physical condition which had not been attended to for several months preceding and during the trial while he was held in jail. After defendant had been granted a new trial on December 11, 1978, the state refiled the other two counts against him on January 9, 1979, and January 29, 1979. A second jury trial was held in April, 1979, without the introduction of the improper and prejudicial testimony. This trial resulted in guilty verdicts on all three counts. However, the jury at this time found defendant guilty of both rape and criminal deviate conduct as class B felonies rather than class A felonies as charged. The trial court again found aggravating circumstances and sentenced defendant to serve fifteen, fifteen, and thirty year terms consecutively. Defendant is now serving a sixty year term of imprisonment rather than the forty year term he was given at his first trial.

Defendant argues that allowing the state to refile the two counts which they had dismissed after the sentencing at the original trial violated his double jeopardy and due process rights. It is clear that defendant's double jeopardy argument must fail since there had been no trial on the rape charge as of the time of dismissal and the trial on the habitual offender count had ended in a hung jury. In both those situations double jeopardy does not bar further prosecution. Harlan v. State, (1921) 190 Ind. 322, 130 N.E. 413; Crim v. State, (1973) 156 Ind.App. 66, 294 N.E.2d 822.

However, the timing of the state's actions in this case does raise a serious due process question. We must consider the issue of "prosecutorial vindictiveness" under the principles enunciated by the United States Supreme Court in Blackledge v. Perry, (1974) 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, and North Carolina v. Pearce, (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

The Supreme Court first addressed the situation where a judge imposed an increased penalty on a criminal defendant at a second trial [275 Ind. 19] after he had successfully appealed his first trial. The Court held that due process prohibits actual vindictiveness in resentencing and said that:

Page 305

"... since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.

"In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding." (Footnotes omitted.) North Carolina v. Pearce, (1969) 395 U.S. 711, 725-726, 89 S.Ct. 2072, 2080-2081, 23 L.Ed.2d 656, 669-670.

The rationale of Pearce was extended to prosecutorial conduct in Blackledge v. Perry, supra. In Blackledge the defendant was convicted in state court on a misdemeanor assault charge. When he exercised a statutorily granted right to demand a trial de novo on appeal, the prosecutor obtained a felony assault indictment based upon the same conduct. Upon review before the Supreme Court it was held that the prosecution's unexplained filing of an increased charge violated the defendant's due process rights, even in the absence of any evidence that the prosecutor acted in bad faith or maliciously. The Court stated that:

"A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. (Citation omitted.)

"Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process." 417 U.S. 21, 28, 94 S.Ct. 2098, 2102-2103, 40 L.Ed.2d 628, 634-635.

Questions of prosecutorial vindictiveness are not easy to resolve because two antithetical interests are brought into conflict. One is the [275 Ind. 20] due process right of the defendant to be free of apprehension that he will be subjected to an increased punishment if he exercises his right to attack his conviction and the other is the substantial discretion traditionally accorded the prosecutor in controlling the decision to prosecute. Blackledge and its progeny show that there must be a balancing of the defendant's interest against that of the state in order to protect both these interests. Blackledge, supra; United States v. Andrews, (6th Cir. 1980) 612 F.2d 235; Miracle v. Estelle, (5th Cir. 1979) 592 F.2d 1269; Jackson v. Walker, (5th Cir. 1978) 585 F.2d 139; United States v. Groves, (9th Cir. 1978) 571 F.2d 450; United States v. Alvarado-Sandoval, (9th Cir. 1977) 557 F.2d 645; United States v. Jamison, (D.C.Cir.1974) 505 F.2d 407.

In analyzing Blackledge and Pearce, we find it is clear that when the prosecution has occasion to file more numerous or more severe charges for the same basic criminal conduct against an accused after the accused has successfully exercised his statutory or constitutional rights to an appeal, the prosecution bears a heavy burden of proving that any increase in the number or severity of the charges was not motivated by a vindictive purpose. There is no question in the instant case of the increased harshness of the penalty for defendant when the state refiled the two additional charges against him. The defendant's interest here is a substantial one considering both the increased sentence which he received and the addition of two felony convictions to his record.

On the other hand, the state has offered no reason for refiling the two additional charges. We find no unusual...

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