Elmore v. State

• Decision Date: 08 November 1978
• Docket Number: No. 1178S255,1178S255
• Parties: Jimmie Lee ELMORE, Andrea Lamb and Johnny Montgomery, Appellants, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 893

382 N.E.2d 893

269 Ind. 532

Jimmie Lee ELMORE, Andrea Lamb and Johnny Montgomery, Appellants, v. STATE of Indiana, Appellee.

No. 1178S255.

Supreme Court of Indiana.

Nov. 8, 1978.

Bruce N. Bagni, Bagni, Giddings & Sherman, Indianapolis, for appellants.

[269 Ind. 533] Theodore L. Sendak, Atty. Gen., David L. Steiner, Deputy Atty. Gen., Indianapolis, for appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This case comes to us on a transfer petition from the Court of Appeals, Second District. Following a bench trial in the Marion Criminal Court on March 12, 1976, appellants Elmore, Lamb and Montgomery were convicted of theft and conspiracy to commit theft. Each was fined $100 and sentenced to one to ten years imprisonment for the theft and two to fourteen years for the conspiracy. On appeal, the judgment of the trial court was affirmed. Elmore v. State, (1978) Ind.App., 375 N.E.2d 660. However, the Court of Appeals with one judge dissenting held, Sua sponte, that the "lesser offense of theft is merged into the greater offense of conspiracy" and thus remanded the cause for vacation of the theft sentence. Id. at 661. The state petitions this court to transfer this case and to set aside the judgment of the Court of Appeals.

The principal question for our review is whether it was proper for the trial court to convict appellants of both theft and of conspiring to commit the same theft, and to impose separate sentences thereon. This question once again raises the problem of when cumulative punishments may be properly imposed for multiple offenses arising from the same criminal act or course of conduct. An examination of this question requires us to review several of our recent decisions which appear to be in conflict.

Today, the problem of when a trial court may impose multiple punishments upon convictions on multiple counts at a single trial is a problem controlled largely by the Double Jeopardy Clause of the Fifth Amendment, which provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The Double Jeopardy Clause was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. The Clause has been held to embody three separate but related prohibitions: (1) a rule which bars a reprosecution for the same offense after acquittal; (2) a rule barring reprosecution for the same offense after conviction, and; (3) a rule barring multiple punishment for the same offense. North Carolina v. Pearce, (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The rules barring reprosecution and multiple punishment are related in that a defendant may not be reprosecuted in a second trial for the Same offense nor may he be twice sentenced for the Same offense in a single proceeding. In other words, the prosecution may not do in one trial what it is prohibited from doing in two trials. The crucial inquiry in either situation requires a determination of whether the Offenses are the Same for purposes of double jeopardy.

The United States Supreme Court, as the final arbiter in matters of constitutional interpretation, has developed a test for determining whether offenses are the same under the Double Jeopardy Clause:

"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."

Blockburger v. United States, (1932) 284 U.S. 299, 304, 52 S.Ct. 180, 182, 75 L.Ed. 306, 309; See also Gore v. United States, (1958) 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405. The so called Blockburger test was recently reaffirmed and further developed in Brown v. Ohio, (1977) 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194. In holding that under the Blockburger test a lesser included offense is the same as the greater offense, the Brown court stated: "This test emphasizes the elements of the two crimes. 'If each requires proof that the other does not, the Blockburger test would be satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes. . . . ' Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975)". Thus, the test to be applied in situations such as the present case is well established.

Although the decisions of this state's courts have cited Blockburger only occasionally, the vast majority of our cases have reached results in harmony with the dictates of the Double Jeopardy Clause. In accord with the same principles expressed by the Supreme Court in Brown v. Ohio, supra, we have consistently refused to allow cumulative punishments to be imposed where defendants are convicted of both a greater and lesser included offense such as armed robbery and inflicting injury in the commission of a robbery. Bobbitt v. State, (1977) Ind., 361 N.E.2d 1193; Swininger v. State, (1976) Ind., 352 N.E.2d 473; Thomas v. State, (1976) 264 Ind. 581, 348 N.E.2d 4. See also Hudson v. State, (1976) Ind., 354 N.E.2d 164 (vacating sentence for rape where appellant was convicted and sentenced for rape and armed rape); Kokenes v. State, (1938) 213 Ind. 476, 13 N.E.2d 524 (robbery and armed robbery). Cf. Johnson v. State, (1974) 262 Ind. 164, 313 N.E.2d 535. Similarly, our results are consistent with Harris v. Oklahoma, (1977) 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054, in which the Supreme Court, following Brown, held that where a felony murder conviction requires proof of the underlying felony, the Double Jeopardy Clause bars prosecution for the lesser felony after conviction of felony murder, i. e., the underlying felony is a lesser included offense of felony murder. See Williams v. State, (1978) Ind., 373 N.E.2d 142; Candler v. State, (1977) Ind., 363 N.E.2d 1233.

While the results of our decisions have been generally correct under double jeopardy analysis, the reasoning used to reach these results has engendered some confusion in the lower courts. Compare Elmore, supra, 375 N.E.2d at 667-68 (White, J., for the court), With id. at 668-70 (Buchanan, J., dissenting). Some of the confusion is attributable to our use of the term "merger" where other language would have been more appropriate.

The doctrine of merger of offenses developed in early common law and was applied only where a defendant's conduct constituted both a felony and a misdemeanor. Because of the procedural differences between the trial of felonies and the trial of misdemeanors, the misdemeanor was said to merge into the felony. W. LaFave and A. Scott, Criminal Law p. 494 (1972). However, felonies were never merged into felonies nor were misdemeanors merged into misdemeanors. Pivak v. State, (1931) 202 Ind. 417, 175 N.E. 278. While it is doubtful whether the doctrine of merger ever existed in this state, it is clear that its application would have been limited to cases where the Identical criminal act constituted both a felony and a misdemeanor. Id. at 202 Ind. 422-423, 175 N.E. 281. A principal reason supporting the doctrine was that a failure to merge the misdemeanor into the felony, when both were committed by the same act, would allow the defendant to be twice punished for the same act. Id. at n. 1. It is evident, in light of the doctrine's history and purpose, that common law merger is an inadequate vehicle for resolving modern problems posed where multiple felonies arise from a single criminal act. Accordingly, any language in our decisions which could be read as giving new life to the merger doctrine is hereby disapproved.

Prior to the time when double jeopardy analysis was made obligatory on the states by Benton v. Maryland, supra, this court dealt with reprosecution and multiple punishment issues by applying what is called the "identity of offense" or "same evidence" test. See generally Comment, Twice in Jeopardy, 75 Yale L.J. 262, 269-273 (1965). This test was developed to secure the rights found in the double jeopardy provision of the state constitution. Ind.Const. art. 1, § 14. Durke v. State, (1932) 204 Ind. 370, 183 N.E. 97. Thus it was early recognized that questions of the type presented by the instant case were essentially double jeopardy rather than merger problems. In the context of a second trial following an earlier prosecution for offenses arising from the same act, the "identity of offense" test has been described as follows:

"This test, as usually stated in the opinions of this court, is whether if what is set out in the second indictment had been proved under the first, there could have been a conviction, or stated another way: would the same evidence be necessary to secure a conviction in the pending, as in the former prosecution."

Foran v. State, (1924) 195 Ind. 55, 60, 144 N.E. 529, 530. See also Tungate v. State, (1958) 238 Ind. 48, 147 N.E.2d 232; Ford v. State, (1951) 229 Ind. 516, 98 N.E.2d 655; Durke v. State, (1932) 204 Ind. 370, 183 N.E. 97; State v. Elder, (1879) 65 Ind. 282. From this general rule, Justice Bobbitt held that it logically followed that if an accused can be prosecuted on separate charges in different trials for offenses growing out of the same act or circumstances, he could be prosecuted for all or any number of them in a single trial. "Under such procedure the accused could be found guilty on any or all of the offenses charged." Tungate, supra, at 238 Ind. 52-53, 147 N.E.2d 234. The obvious similarity between the "identity of offense" test and the federal double jeopardy standard was recognized by this court in Dunkle v. State, (1961) 241 Ind. 548, 551, 173 N.E.2d 657, 658.

"The recognized test, in determining the identity in similar crimes charged, is the difference or lack of difference in the evidence necessary to establish one particular crime as compared with that required to establish the other...