Hewell v. State

• Decision Date: 11 February 1987
• Docket Number: No. 82A04-8609-CR-269,82A04-8609-CR-269
• Citation: 507 N.E.2d 241
• Parties: Gordon D. HEWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 241

507 N.E.2d 241

Gordon D. HEWELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 82A04-8609-CR-269.

Court of Appeals of Indiana,

Fourth District.

Feb. 11, 1987.

Ordered Published April 29, 1987.

John G. Bunner, Evansville, for appellant.

Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.

CONOVER, Presiding Judge.

Defendant-Appellant Gordon D. Hewell (Hewell) appeals his conviction for Corrupt Business Influence, a class C felony. IND.CODE 35-45-6-2.

We affirm.

ISSUES

Hewell presents four issues for our review. We state them as:

1. whether the trial court properly followed the law of the case;

2. whether Hewell's double jeopardy rights were violated;

3. whether the court erred in failing to dismiss the State's Second Amended Information; and

4. whether the jury verdict was contrary to law and not sustained by sufficient evidence in view of the charging information.

FACTS

Hewell was the object of a sting operation conducted by the Vanderburgh County Prosecutor's Office in late 1982 and early 1983. In November 1982, Neil Thomas (Thomas), Chief Deputy Prosecutor in Vanderburgh County, met with Danny Decker (Decker) who agreed to take part in the operation. Thomas devised a plan where Decker would offer to sell certain pieces of jewelry to the defendant, representing each item as stolen property. In exchange for his cooperation, Decker, who faced his third felony charge, would not be charged as a habitual offender.

Four times in December, 1982, and once in January, 1983, Decker transacted business with the defendant as planned. On December 1st, the defendant paid $400 for a woman's cluster diamond ring. On December 3rd, Decker, this time accompanied by his girlfriend, Cheryl Douglas, sold a man's cluster ring to the defendant. The next meeting took place on December 14th, when Decker, again accompanied by his girlfriend, offered a bracelet to the defendant who purchased it for $200. During the last meeting in December, just before Christmas, Decker sold the defendant two bracelets and a necklace. Finally, on January 19, 1983, the defendant purchased a small ring from Decker. On each of these five occasions, Decker carried a concealed transmitter which recorded the conversation taking place during the transaction. The recordings produced, however, were of poor quality and not introduced at trial. Also, while each item of jewelry offered to the defendant was represented by Decker as stolen property, it was either lawfully purchased to be used for the sting operation or was abandoned property previously turned in to the Evansville Police Department.

On January 19, 1983, after the final meeting between the defendant and Decker, the police arrested the defendant. On Hewell was first tried and convicted for corrupt business influence in 1983. However, on appeal, Judge Ratliff found an unconstitutional seizure of evidence had occurred which was subsequently admitted into evidence and ordered a new trial for Hewell. A new trial was held wherein the unconstitutionally seized items were not admitted into evidence. Again, Hewell was convicted of Corrupt Business Influence. Hewell appeals this conviction.

the same day police searched the defendant's business, Gordon Sales, Inc., and his residence. Police found the small ring purchased that day and the lady's diamond ring previously purchased.

DISCUSSION AND DECISION

Hewell contends the law of the case in his first appeal mandates he be acquitted on retrial. We disagree.

Law of the case designates the doctrine that an appellate court's determination on a legal issue is binding on both the trial court on remand and on the appellate court on a subsequent appeal given the same case and substantially the same facts. Fair Share Organization v. Mitnick (1964), 245 Ind. 324, 198 N.E.2d 765, cert. denied 379 U.S. 843, 85 S.Ct. 82, 13 L.Ed.2d 48; Hinds v. McNair (1980), Ind.App., 413 N.E.2d 586, 607. The rule holds prior appellate decisions conclusive on all questions which have been actually considered and determined in the first appeal. Egbert v. Egbert (1956), 235 Ind. 405, 132 N.E.2d 910; Hinds, supra.

Accordingly, we turn to Judge Ratliff's opinion in Hewell's first appeal to discover what was actually determined by the appellate court.

In Hewell v. State (1984), Ind.App., 471 N.E.2d 1235, the court determined stolen items of silver seized during an unlawful search of Hewell's property contributed to the verdict. An appellate court may only affirm a case in which a constitutional error was made when the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Ortez v. State (1975), 165 Ind.App. 678, 333 N.E.2d 838, trans. denied 1976. Judge Ratliff did not find that to be the case here. Because improperly admitted evidence contributed to the verdict, a new trial was ordered. The law of this case is the illegally seized items could not be entered into evidence. This court made no other legal determinations, and the illegally seized evidence was not offered at the subsequent trial. Therefore, the law of the case was correctly applied by the trial court on remand.

We find no error here.

Hewell next contends the court erred in subjecting him to retrial on the same charges after this court had reversed his original conviction. We cannot agree.

Hewell admits in his appellate brief the reversal of his conviction for trial error as opposed to insufficient evidence would not violate his double jeopardy rights. (Appellant's Br. 29). See Burks v. United States (1978), 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed. 1. A defendant is not entitled to discharge when a new trial is ordered to rectify a trial error. Richardson v. State (1985), Ind.App., 486 N.E.2d 1058, 1065; Williams v. State (1982), Ind., 442 N.E.2d 1063.

Hewell claims his first conviction was reversed on grounds of insufficient evidence. Where the reviewing court finds a clear failure of proof by the State, the only remedy is to direct an acquittal. Suits v. State (1983), Ind.App., 451 N.E.2d 375. Hewell is incorrect in this claim.

Hewell's first conviction was reversed to rectify trial error, namely the admission of improperly seized evidence. The court did not rule upon the sufficiency of the evidence. Therefore, there was no double jeopardy violation here.

Next, Hewell contends the trial court erred in refusing to dismiss the State's Second Amended Complaint. Hewell claims the complaint fails to allege two elements of the offense of receiving stolen property. We disagree.

Hewell was convicted of Corrupt Business Influence. IC 35-45-6-2 which requires the State to prove a pattern of racketeering activity. A pattern of racketeering activity is established when the state proves the defendant engaged in at least two instances of similar intent, result, accomplice, victim or method of commission or are otherwise interrelated by distinguishing characteristics that are not isolated incidents. IC 35-45-6-1. Furthermore,

"Racketeering activity" means to commit, to attempt to commit, or to conspire to commit a violation, or...