Hamler v. State
| Decision Date | 27 May 2015 |
| Docket Number | No. 49A02–1407–CR–452.,49A02–1407–CR–452. |
| Citation | 33 N.E.3d 1210 (Table) |
| Parties | Dominique HAMLER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Kimmerly A. Klee, Greenwood, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.
[1] Dominique Hamler appeals his convictions and sentence for murder, Class A felony attempted murder, Class B felony robbery, and Class B felony criminal confinement. We affirm.
[2] The issues before us are:
[3] On November 15, 2012, Thomas Keys, an Indianapolis DJ, called Marvin Finney and asked him to help record a mix tape in memory of a local rapper named “Bango.” Tr. p. 128. Bango had been shot and killed about a week earlier. Hamler was best friends with Bango and also referred to him as a “brother.” Id. at 150. On this date, Hamler was nineteen and would turn twenty in two weeks.
[4] On that same afternoon, Hamler was having his hair braided at his father's house when Nathaniel Armstrong and James McDuffy came to the house. Armstrong said, “We gonna get ‘em,” and Hamler left with Armstrong and McDuffy. Id. at 246. Hamler and Armstrong were overheard at another house having a conversation in which one of them said they were going to “get the motherf* * *ers” who had killed Bango. Id. at 406. A couple hours later, Armstrong returned to the house, grabbed some guns, and stated, “We found the motherf* * *ers,” before leaving again. Id. at 409.
[5] At about 5:00 p.m., Finney and Keys arrived at a music studio operated by Carlton Hart in Indianapolis to work on the mix tape for Bango. They were let into the studio by Dontee Robinson and led into a room where McDuffy and an unidentified man with “Asian eyes” were waiting for them. Id. at 137. Robinson and McDuffy began asking Finney and Keys who killed Bango and insinuating that Keys knew who had killed him. Keys denied having any knowledge about the murder. McDuffy then pulled out a handgun, and Robinson pulled out an assault rifle. McDuffy and Robinson patted down Finney and Keys, removed the belongings from their pockets, and told Finney and Keys that they would not be going home if they did not disclose what they knew about Bango's murder.
[6] At this point, Hamler walked into the room, appearing very aggressive and mad. He pointed an assault rifle at Finney and Keys and yelled, “Which one of you all killed my brother, Bango?” Id . at 150. Not receiving a satisfactory response, Hamler then said, “Why they ain't tied up yet?” Id. at 151. Hamler and McDuffy then punched Finney, who was then tied up with zip ties by the man with “Asian eyes.” Keys also was punched and kicked to the ground and tied up with zip ties. Hamler and McDuffy continued questioning Finney and Keys; Hamler also demanded that Finney unlock his phone so Hamler could see with whom he had been communicating.
[7] At some point, Armstrong and a second unidentified man, who was bald, came into the room. Armstrong took a box cutter and sliced Keys's leg with it. After Armstrong and the bald man came into the room, Finney heard someone say, Id. at 158. Armstrong then told McDuffy to duct tape Finney's and Keys's mouths shut, and he did so. The group also placed zip ties tightly around Finney's and Keys's necks. Hamler, Robinson, Armstrong, and the bald man left the room to get gloves and “finish it off.” Id. at 162. When these four returned to the room wearing work gloves, the bald man began discussing various ways they could kill Finney and Keys. There was continued discussion of whether Finney and Keys knew who had killed Bango, and the need to “do this for Bango,” while Bango's music played in the background. Id. at 166.
[8] Finally, the lights were turned off, Finney and Keys were left in the room, while the other six men—Hamler, McDuffy, Robinson, Armstrong, and the two unidentified men—left. Then, one of the men returned to the room. Finney could not identify who had returned and could only say that he was wearing black and had dreadlocks; this could have described either Hamler or Robinson. This person then began shooting at both Finney and Keys. Keys was shot and killed, while Finney was shot in both wrists and played dead. Afterwards, Finney managed to flee from the studio and seek help at a nearby drugstore at approximately 8:00 p.m.
[9] Hamler, Armstrong, and McDuffy returned to Hamler's father's house. Hamler, who was sweaty and appeared nervous, gave his father a handgun “to put up.” Id. at 247. Armstrong also returned to the other house he had been at earlier and said that “We got the motherf* * *ers” and that they bound the victims with duct tape, “worked them over,” shut off the lights, and then opened fire. Id. at 410–11.
[10] The State charged Hamler with murder, felony murder, Class A felony attempted murder, Class A felony robbery, Class B felony criminal confinement, and Class B felony conspiracy to commit criminal confinement. The robbery count alleged both that Hamler had been armed with a deadly weapon and that the robbery had resulted in serious bodily injury to Keys and Finney. At trial, the jury was instructed that the offense of robbery is a Class B felony if it is committed while armed with a deadly weapon and that it was required to find that Hamler had been armed with a deadly weapon. The jury found Hamler guilty as charged. However, the trial court did not enter judgments of conviction for felony murder or conspiracy to commit criminal confinement. It also entered judgment for robbery as a Class B felony instead of a Class A felony. It imposed sentences of sixty-five years for murder, fifty years for attempted murder, ten years for robbery, and fifteen years for criminal confinement, all to be served consecutively for a total sentence of 140 years. Hamler now appeals.
[11] Hamler first contends his conviction for robbery must be reduced to a Class C felony because of double jeopardy concerns, given his convictions for murder and attempted murder. Under Article 1, Section 14 of the Indiana Constitution, “ ‘[T]wo or more offenses are the “same offense” ... if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.’ “ Cross v. State, 15 N.E.3d 569, 571 (Ind.2014) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999) (emphasis in original) (footnote omitted)). Under the Richardson “actual evidence” test, the Indiana Double Jeopardy Clause is not violated if “the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.” Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002). In addition to the “actual evidence” test, there are “ ‘a series of rules of statutory construction and common law that supplements the constitutional protections” ’ outlined in Richardson. Cross, 15 N.E.3d at 571 (quoting Miller v. State, 790 N.E.2d 437, 439 (Ind.2003) ). One such rule “prohibit[s] conviction and punishment ‘for an enhancement of a crime where the enhancement is imposed for the very same behavior or harm as another crime for which the defendant has been convicted and punished.” ’ Miller, 790 N.E.2d at 439 (quoting Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)). Hamler's argument that his conviction for Class B felony robbery causes a double jeopardy conflict with his convictions for murder and attempted murder arises from this particular rule.
[12] At the time of the crime, in order to elevate robbery from a Class C to a Class B felony, the State was required to prove either that it was committed while armed with a deadly weapon or resulted in bodily injury to anyone other than a defendant. Ind.Code § 35–42–5–1 (2012). Robbery was elevated to a Class A felony if it resulted in serious bodily injury to anyone other than a defendant.1 Id. Hamler claims that the bodily injuries to Finney and Keys established both his convictions for murder and attempted murder and also established a bodily injury enhancement to make the robbery a Class B felony. He relies upon Williams v. State, 757 N.E.2d 1048 (Ind.Ct.App.2001), trans. denied. In that case, the defendant was convicted of both attempted murder and Class A felony robbery based upon shooting the victim in the head. The majority in Williams held that the robbery conviction had to be reduced to a Class C felony because there was no evidence of any other injuries presented other than the shot to the head that occurred as part of the robbery. Williams, 757 N.E.2d at 1070. Judge Baker dissented on this issue, believing that the robbery conviction only had to be reduced to a Class B felony and stating, “Because Williams was armed with a deadly weapon, double jeopardy protections do not prohibit convicting Williams of class-B-felony robbery and attempted murder.” Id. at 1070 (Baker, J., dissenting).
[13] After Williams was decided, our supreme court issued opinions consistent with Judge Baker's dissent. In Gross v. State, 769 N.E.2d 1136 (Ind.2002), the defendant was convicted of both murder and Class A felony robbery when he shot and killed the robbery victim. The court agreed that the Class A felony robbery conviction could not stand but ordered that it be reduced to a Class B felony, not a Class C felony. Specifically, the court noted that the State had charged the defendant “with both the bodily injury variety of Class B felony robbery...
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