Cleary v. State

• Decision Date: 15 January 2015
• Docket Number: No. 45S03–1404–CR–295.,45S03–1404–CR–295.
• Citation: 23 N.E.3d 664
• Parties: Jeffrey A. CLEARY, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

23 N.E.3d 664

Jeffrey A. CLEARY, Appellant (Defendant below)
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 45S03–1404–CR–295.

Supreme Court of Indiana.

Jan. 15, 2015.

23 N.E.3d 666

James H. Voyles, Jr., Jennifer M. Lukemeyer, Voyles Zahn & Paul, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 45A03–1212–CR–518

DAVID, Justice.

On November 4, 2010, and for what was not the first time in his life, Jeff Cleary drank and then chose to get behind the wheel of his car. Unlike in the past, however, this time his decision led to the tragic death of a sixty-three-year-old man.

The State charged Cleary with multiple offenses related to his drunk driving. A jury returned guilty verdicts on some offenses, but reported that it was deadlocked on others. Cleary was then retried on all the offenses and found guilty as-charged by a second jury. We find no violation of either Indiana's statutory or constitutional double jeopardy protections, and therefore affirm.

Facts and Procedural History

On the afternoon of November 4, 2010, Jeff Cleary drove to Giovanni's Restaurant in Munster, Indiana, for lunch and drinks with two other individuals. Over the course of the next six to seven hours, Cleary ordered six drinks—all doubles of Absolut Vodka and water—and the table shared a bottle of wine. Later that evening, Cleary went to the Country Lounge in Hobart, Indiana. He had most of another glass of wine and left after approximately forty-five minutes.

Cleary then left the Country Lounge, intending to go home. By that point it was nearly midnight, pitch-black, sleeting, and windy. Cleary called his wife on his cell phone. As Cleary was placing his call, he struck a service vehicle parked on the shoulder of the road. The service truck was parked, with its emergency lights activated, behind a semi that had a flat tire. Phillip Amsden, the service truck driver, was between the service truck and the semi. The impact of Cleary's vehicle pushed the service truck into the semi, pinning Amsden. Amsden died at the scene. Cleary claimed to be uninjured.

A paramedic evaluating Cleary at the crash scene noted that Cleary appeared drunk, with blood-shot eyes, slurred speech, and smelling of alcohol. State Troopers similarly noticed an overwhelming odor of alcohol and that Cleary's eyes were watery, his speech slurred, and his reactions slow. Cleary was placed in custody and transported to a local hospital. While there he was given several field sobriety tests and consented to a blood draw. Cleary failed each field sobriety test and his blood draw showed a blood-alcohol concentration of 240 milligrams per deciliter, or a BAC of .24.

23 N.E.3d 667

The State charged Cleary with five criminal charges and three infractions, all flowing from the November 4, 2010, collision:

• Count I : Causing death when operating a motor vehicle with a BAC of at least 0.15, a class B felony. Ind.Code § 9–30–5–5(b) (2010).

• Count II : Causing death when operating a motor vehicle while intoxicated, a class C felony. Ind.Code § 9–30–5–5(a).

• Count III : Operating a motor vehicle with a BAC of at least 0.15, a class A misdemeanor. Ind.Code § 9–30–5–1(b) (2010).

• Count IV : Operating a motor vehicle while intoxicated in a manner endangering a person, a class A misdemeanor. Ind.Code § 9–30–5–2(b) (2010).

• Count V : Operating a motor vehicle while intoxicated, a class C misdemeanor. Ind.Code § 9–30–5–2(a).

• Count VI : Failure to yield to a recovery vehicle, a class A infraction. Ind.Code §§ 9–21–8–35(c) (2010), 9–21–8–54(a) (2010).

• Count VII : Improper lane movement, a class C infraction. Ind.Code §§ 9–21–8–11 (2010), 9–21–8–49 (2010).

• Count VIII : Possessing more than one driver's license, a class C infraction. Ind.Code §§ 9–24–11–4(a) (2010), 9–24–11–8(a) (2010).

Cleary went to trial on all eight counts, and on December 14, 2011, a jury returned guilty verdicts on Counts IV and V, and found Cleary had committed the infractions alleged in Counts VI and VII. It deadlocked, however, on Counts I, II, and III.

The State did not move for a judgment on the verdicts, but Cleary did. The trial court allowed Cleary and the State until January 12, 2012, to submit briefs on the issue. It held a hearing on January 30, 2012, after which it denied Cleary's motion to compel an entry of judgment on the verdicts. It permitted the State to retry Cleary on all eight counts and set the second trial for August 27, 2012.

Cleary's second jury found him guilty of Counts I through V and liable for Counts VI and VII.¹ The State moved for judgments on the verdicts as to Counts I, VI, VII, and VIII, and the trial court entered judgments of convictions as to those counts only. The trial court fined Cleary $1500 for the three infractions and suspended his driving privileges for two years. For the class B felony conviction on Count I, the trial court suspended Cleary's driving privileges for an additional five years and imposed a sentence of fourteen years in the Indiana Department of Correction.

Cleary appealed, arguing that his second prosecution should have been barred by double jeopardy, that the trial court abused its discretion in admitting evidence of Cleary's blood draw, and that his fourteen-year sentence was inappropriate in light of his character and the nature of the offense. The Court of Appeals affirmed, Cleary v. State, 2 N.E.3d 765, 766 (Ind.Ct.App.2014), with Judge Crone dissenting as to Cleary's double jeopardy claim, id. at 773.

We granted transfer and summarily affirm the Court of Appeals with respect to its resolution of Cleary's evidentiary issue and request for sentence revision. Cleary v. State, 7 N.E.3d 992 (Ind.2014) (table); Ind. Appellate Rule 58(A)(2). We write only on Cleary's claim of a double jeopardy violation.

23 N.E.3d 668

Discussion

Cleary's double jeopardy argument is multifaceted. For starters, several provisions of the Indiana Code govern the entry of judgments of conviction and prohibit retrial in certain circumstances. Cleary says those provisions operate together in a manner that prohibit his retrial. Cleary couples this statutory claim with a constitutional one, arguing that Indiana's constitutional double jeopardy protections apply to his case and were violated by his retrial and subsequent convictions.

Both of these challenges are reviewed de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind.2011). And in short summary, we reject them both. As we explain below, the fact that Cleary's jury affirmatively deadlocked on his greater offenses is significant—and fatal to his claim—for several reasons. For one thing, it takes his case out of the scope of the implied acquittal doctrine. And as a consequence, the statutory provisions upon which Cleary relies do not bar his retrial. Second, in both Indiana and federal jurisprudence, hung juries do not create double jeopardy implications. As such, this aspect of his claim must also fail.

I. Indiana's Statutory Double Jeopardy Protections

We begin with Cleary's statutory claim. Cleary says that the Indiana Code required the trial judge here to enter judgments of conviction on the first jury's guilty verdicts, and if it had done so then those convictions would have statutorily prohibited his retrial on the same offenses. Additionally, he says those convictions would have implied acquittals in the charges for which his jury deadlocked, meaning the State could not retry those deadlocked charges, either. The Court of Appeals has previously resolved this very issue, in a way that rejects Cleary's view of how the statutes operate. This Court has not squarely addressed the question until today, but we likewise find Cleary's application of the statutes to be incorrect.

Indiana Code § 35–41–4–3 (2008) codifies protections against being placed in jeopardy more than once for the same offense. It provides, in relevant part, that “[a] prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if: (1) the former prosecution resulted in an acquittal or a conviction of the defendant.” Ind.Code § 35–41–4–3(a). It also incorporates an “implied acquittal” principle by providing that “[a] conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.” Ind.Code § 35–41–4–3(a)(l ) ; Haddix v. State, 827 N.E.2d 1160, 1165 (Ind.Ct.App.2005), trans. denied.

Cleary's first jury reached a verdict of guilty on the lesser-included OWI misdemeanors—those charges not requiring proof that Cleary caused Amsden's death or proof of a BAC greater than 0.15—and it deadlocked on the greater offenses. It is unequivocal that if the trial court had entered a judgment...