Hoover v. State
| Decision Date | 31 December 2009 |
| Docket Number | No. 55A05-0907-CR-423.,55A05-0907-CR-423. |
| Parties | Alan HOOVER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Steven C. Litz, Monrovia, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Alan Hoover was charged with murder, felony murder, and Class A felony robbery. Robbery was the predicate offense for the alleged felony murder. A jury acquitted Hoover of murder, deadlocked on felony murder, and convicted him of robbery. Indiana's double jeopardy statutes bar retrial for the same offense if "the former prosecution resulted in an acquittal or a conviction of the defendant (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). We therefore conclude that Hoover's conviction for the underlying robbery precludes retrial on the greater, mistried count of felony murder. We further hold that the jury verdicts are not inconsistent, and in making that determination we do not take into account hung counts. Further, there is sufficient evidence to sustain Hoover's robbery conviction, Hoover is unable to show prejudice from the trial court's allegedly deficient felony-murder instruction, and the trial court did not err by refusing to instruct the jury on the lesser-included offense of theft. We affirm Hoover's robbery conviction but remand with instructions to dismiss the felony-murder count with prejudice.
Hoover was forty-six years old and lived in Mooresville, Indiana. He had a nineteen-year-old daughter Casi and a son-in-law named Jon. Hoover was also lifelong friends with a man named Mike Wilson. In late summer 2008, Hoover needed a place to stay. He moved into Wilson's trailer and lived with Wilson for approximately two months. Toward the end of October, however, Wilson requested that Hoover move out.
On the evening of October 26, Wilson went to a bar to play pool and throw darts. Later on he stopped by a friend's trailer. Witnesses saw Wilson that night with his cell phone, keys, and a large amount of cash. Wilson returned home around 12:26 a.m. Meanwhile Hoover was spending the evening with Casi and Jon. The three of them watched television together at Jon's parents' house in Wilbur, Indiana. Hoover left sometime between 11:30 and 11:50 p.m.
Afterward Hoover drove to Wilson's trailer allegedly to retrieve some belongings. Wilson was inside. Hoover and Wilson soon fought. According to Hoover, Wilson was intoxicated and attacked him with a walking stick. Hoover began punching wildly. He struck Wilson several times. They fell over some cement blocks in the trailer hallway, and Wilson wound up unconscious.
At about 12:45 a.m., Hoover returned to Jon's parents' house and knocked on Casi and Jon's bedroom door. He told them that he had just been in a fight and that Wilson was unconscious. Hoover asked Casi and Jon to come with him to Wilson's trailer in case Wilson woke up. He wanted to "get the rest of his stuff because he didn't want to have to confront Wilson again if he was awake when [they] got back." Tr. p. 575. Jon drove Hoover and Casi to the trailer. They took Jon and Casi's car. Hoover left his own car outside Jon's parents' house. On the way to Wilson's trailer, Hoover told Casi that he had taken Wilson's keys so that Wilson would be unable to leave if he awoke.
Jon, Casi, and Hoover arrived at the trailer and found Wilson lying dead or unconscious in the hallway. They stood around talking and apparently had trouble deciding what to do. Hoover picked up a DVD player from the TV stand. He said it was his and took it out to the car. The three of them walked in and out of the trailer, smoked cigarettes, checked Wilson's pulse, but ultimately called 911. At some point Casi saw Hoover take money from Wilson's wallet and place the wallet back in Wilson's pocket.
Police were dispatched to the trailer. Paramedics attempted to revive Wilson but pronounced him dead at the scene. An autopsy later revealed that Wilson died from blunt force trauma to the back of the head. Detectives noticed that there was no money in Wilson's wallet. Law enforcement also went to Jon's parents' house to impound Hoover's car. Police found what was later confirmed as Wilson's cell phone lying on the ground in front of Hoover's vehicle. When Hoover was taken into custody, police found two sets of keys on his person, one of which belonged to Wilson.
The State charged Hoover with murder, felony murder, and Class A felony robbery. The charging information alleged as follows:
1. ... [O]n or about October 26 or 27, 2008, in Morgan County, State of Indiana, Alan James Hoover did knowingly kill another human being, to-wit: Michael R. Wilson.
2. ... [O]n or about October 26 or 27, 2008, in Morgan County, State of Indiana, Alan James Hoover did kill another human being, to-wit: Michael R. Wilson, while committing or attempting to commit robbery.
3. ... [O]n or about October 26 or 27, 2008, in Morgan County, State of Indiana, Alan James Hoover did knowingly take property, to-wit: United States currency, keys and/or a cell phone, from another person or in the presence of another person, to-wit: Michael J. Wilson, by using force on any person, to-wit: Michael J. Wilson, resulting in serious bodily injury to any person other than the defendant, to-wit: Michael J. Wilson.
At trial Hoover tendered two final instructions which were refused by the trial court. His first proposed instruction concerned felony murder:
The court has instructed you that in order to convict Mr. Hoover of felony murder, the State must prove that he killed Mr. Wilson while committing robbery. You are further instructed that the robbery and the killing must be part of one uninterrupted transaction that is continuous in its purpose and objective. In other words, to convict Mr. Hoover of felony murder, you must first find that Mr. Hoover committed robbery. You must then find that Mr. Wilson's death was a direct result of that robbery.
Id. at 86. The trial court denied Hoover's requested language and instructed the jury that "[t]he elements of Felony Murder as charged in this case are that the accused must, in Morgan County, Indiana: (1) kill (2) another human being (3) while committing or attempting to commit robbery." Id. at 102. Hoover also asked for an instruction on the lesser-included offense of theft. The trial court denied this request as well and instructed the jury only on Class A felony robbery: "The elements of Robbery as charged in this case are that the accused must, in Morgan County, Indiana: (1) knowingly (2) take property from another person or from the presence of another person (3) by using force on any person (4) resulting in serious bodily injury to any person other than a defendant." Id. at 103. With regard to intentional murder, the jury was instructed that "[t]he elements of Murder as charged in this case are that the accused must, in Morgan County, Indiana: (1) knowingly (2) kill (3) another human being." Id. at 99.
Hoover was found guilty of robbery but not guilty of murder. The jury was unable to reach a unanimous decision on felony murder. The trial court entered judgment on the conviction for robbery and dismissed the felony-murder charge without prejudice. Hoover now appeals.
Hoover raises five issues which we reorder and restate as follows: (I) whether the jury verdicts are inconsistent, (II) whether there is insufficient evidence to sustain his robbery conviction, (III) whether the trial court erred by refusing his tendered instruction on felony murder, (IV) whether the trial court erred by refusing to instruct the jury on simple theft, and (V) whether double jeopardy bars retrial for felony murder.
Hoover argues that the verdicts returned in this case are irreconcilable and that his robbery conviction should therefore be set aside. Jury verdicts are not reviewable for inconsistency under federal law, United States v. Powell, 469 U.S. 57, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), but Indiana courts "ha[ve] looked and will continue to look at verdicts to determine if they are inconsistent." Marsh v. State, 271 Ind. 454, 393 N.E.2d 757, 761 (1979); accord Powell v. State, 769 N.E.2d 1128, 1131 (Ind.2002), reh'g denied. When we review a claim of verdict inconsistency, we take corrective action only when the verdict is extremely contradictory and irreconcilable. Powell, 769 N.E.2d at 1131. A jury verdict may be inconsistent or even illogical but nevertheless permissible if it is supported by sufficient evidence. Id. In resolving a claim of verdict inconsistency, we neither interpret nor speculate about the thought process or motivation of the jury in reaching its verdict. Id. Further, an acquittal on one count and a conviction on another will survive a claim of inconsistency if there is sufficient evidence to support the conviction. Id. Neuhausel v. State, 530 N.E.2d 121, 123 n. 2 (Ind.Ct.App.1988).
We first note that Hoover asks us to reconcile (1) his conviction of robbery, (2) his acquittal of murder, and (3) the jury's inability to reach a decision on felony murder. However, our review is for "verdict" inconsistency, and mistried counts are not verdicts. See Black's...
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