Griffin v. State
| Decision Date | 10 February 1998 |
| Docket Number | No. 18A02-9609-CR-602,18A02-9609-CR-602 |
| Citation | 692 N.E.2d 468 |
| Parties | Eddie GRIFFIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Eddie Griffin was tried for felony murder, robbery, and conspiracy to commit robbery in connection with the robbery and killing of David Turner. In Griffin's first trial, the jury acquitted him of felony murder and was unable to reach a verdict on the robbery and conspiracy charges. Griffin was retried and convicted by a jury of robbery, 1 a Class A felony, and conspiracy to commit robbery, 2 a Class A felony. He appeals, raising the following issues for our review:
I. Whether principles of double jeopardy and collateral estoppel preclude Griffin's retrial on robbery and conspiracy to commit robbery.
II. Whether the trial court erred by admitting a transcript of Griffin's co- conspirator's testimony from the first trial.
III. Whether the trial court erred by excluding evidence that Griffin's co-conspirator made statements, during the same time period as the conspiracy to rob Turner, that he desired to kill somebody.
IV. Whether the trial court erred by excluding psychological evidence regarding Griffin's ability to form the requisite intent to commit the crimes.
We affirm.
In June of 1993, a long-time friend of Griffin's, Joe Hartman, was awaiting sentencing on criminal charges to which he had pled guilty in Henry County. Hartman wanted to avoid sentencing by leaving town, but he needed money to do so. Griffin, Hartman, and two of their friends, Scott Ransom and Shane Craig, discussed ways in which they could obtain money so that they could all leave town together. The four men agreed that they would set up a drug deal with the victim, David Turner, and rob him of a large quantity of marijuana.
On June 15, 1993, Hartman paged Turner and arranged to meet him at a Muncie hotel for the purpose of purchasing ten pounds of marijuana. Hartman met Turner and brought him and the ten pounds of marijuana to a residence where Griffin, Craig, and Ransom were waiting. The four men attacked Turner and robbed him of the marijuana. Turner died in the incident.
All four men were charged with felony murder, robbery, and conspiracy to commit robbery. Craig and Ransom pled guilty to robbery. Hartman and Griffin went to trial. Hartman was convicted as charged. Griffin was acquitted of felony murder, and a mistrial was declared on the robbery and conspiracy charges because the jury was unable to reach a verdict. Griffin was retried on those charges and convicted. Griffin appeals from those convictions.
I. Double Jeopardy/Collateral Estoppel
Griffin first contends that under principles of double jeopardy, his acquittal for felony murder precluded his subsequent reprosecution for robbery and conspiracy. He argues that the State was not required to prove anything different or additional to gain convictions for robbery or conspiracy in the second trial than it was required to prove for felony murder in the first trial.
The recent case of Games v. State, 684 N.E.2d 466 (Ind.1997), reh'g granted, opinion modified on other grounds, 690 N.E.2d 211, changed the law on double jeopardy in Indiana. The supreme court held that the determination of whether the defendant's conduct constitutes more than one offense is to be made by examining only the statutory elements comprising the offenses without regard to the manner in which the offenses were charged, the jury was instructed, or the nature of the underlying proof necessary to prove the elements, as in pre-Games cases. Id. at 477. 3 The double jeopardy determination is made according to the Blockburger test:
"[W]here 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, 284 U.S. at 304, 52 S.Ct. at 182.
Here, as in Games, the question is whether murder and Class A robbery constitute the same offense for double jeopardy purposes. In Games, our supreme court held that convictions for both Class A robbery and murder did not violate double jeopardy principles because:
"[E]ach statute requires proof of an additional fact which the other does not: Murder requires a knowing or intentional killing; Class A Robbery requires that property be taken, resulting in some type of bodily injury to a person other than the defendant."
Games, 684 N.E.2d at 477. 4 Under this analysis, Griffin's retrial for robbery following his acquittal for felony murder does not offend double jeopardy principles.
Similarly, murder and conspiracy to commit robbery are not the same offense for double jeopardy purposes. Under IC 35-41-5-2, a conspiracy exists upon proof that a person, with the intent to commit a felony, agrees with another to commit that felony and that an overt act was taken in furtherance of that agreement. Thus, conspiracy requires proof of an agreement, an element not required by the murder statute. As noted above, murder requires proof of a killing, an element not required by the conspiracy statute. Thus, murder and conspiracy to commit robbery each contain an element that the other does not and are not the same offense for double jeopardy purposes.
Griffin also claims, for the first time on appeal, that the State was collaterally estopped from retrying the robbery and conspiracy charges. Griffin's motion to dismiss and related trial objections were based only on double jeopardy grounds. No collateral estoppel claim was submitted to the trial court. Absent the trial court's ruling on the issue, we will not consider it on appeal. See Dixon, 509 U.S. at 712, 113 S.Ct. at 2864 n. 17 ().
Griffin next contends that the trial court erred in admitting the testimony of his co-conspirator, Shane Craig. The testimony was admitted in the form of a transcript of Craig's testimony from the first trial because Craig refused to testify in the second trial despite the court's order that he do so. The trial court declared Craig unavailable under Ind.Evidence Rule 804(a)(2) and admitted the transcript which was read to the jury. Record at 2138.
The evidence was admissible under Ind.Evidence Rule 804(b)(1) which provides:
Admission of former testimony of an unavailable witness is a matter of trial court discretion. Lowery v. State, 478 N.E.2d 1214, 1223 (Ind.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). A witness' refusal to testify renders him unavailable for purposes of using his prior testimony. Kellems v. State, 651 N.E.2d 326, 328 (Ind.Ct.App.1995).
Here, Craig was unavailable by reason of having refused to testify. Griffin had a full opportunity at the first trial to cross examine Craig and, in fact, thoroughly performed such cross examination. Griffin's motive in the first trial was similar, if not identical, to his motive in the second trial: present the best possible defense to the criminal charges against him. The trial court properly admitted the transcript of Craig's testimony from the first trial. 5
Issue III--Exclusion of Co-Conspirator's Extrinsic Offenses
The trial court excluded evidence concerning an apartment fire that occurred the night before Turner's murder. Griffin sought to elicit testimony from witnesses that heard Shane Craig state that he started the apartment fire, knowing that there were people inside, and that he desired to kill somebody. The trial court excluded the testimony on hearsay and relevance grounds, Record at 2703-06, and Griffin made an offer to prove. Record at 2780.
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ind.Evidence Rule 401. Evidence that Craig committed other acts does not have any tendency to make it more probable or less probable that Griffin committed the crimes with which he was charged. Craig's desire to kill somebody was of no relevance in Griffin's second trial because the responsibility for the victim's death was not at issue. The trial court properly excluded the evidence on relevance grounds.
IV. Exclusion of Evidence Regarding Ability to Form Intent
The trial court also excluded evidence from Griffin's psychologists concerning Griffin's mental and physical state and his consequent inability to form an agreement. The trial court excluded the evidence in reliance on Ind.Evidence Rule 704(b) which provides: "Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." See Record at 1963. The witness is restricted to "observable fact, leaving any appropriate conclusions as to intent, belief, or feelings to the trier of fact." Weaver...
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