Jackson v. State
| Decision Date | 05 October 2017 |
| Docket Number | Court of Appeals Case No. 82A04-1609-CR-2074. |
| Citation | 84 N.E.3d 706 |
| Parties | Marquell M. JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant : Matthew J. McGovern, Anderson, Indiana
Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
[1] Marquell M. Jackson appeals his convictions and sentence, following a jury trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four counts of attempted robbery, as Level 3 felonies; two counts of aggravated battery, as Level 3 felonies; and for being found to have been a member of a criminal gang, a sentencing enhancement. Jackson raises seven issues for our review, but we address only the following five issues:
[2] We hold that the trial court committed fundamental error when it permitted the State to amend the charge on the criminal gang enhancement such that the charge no longer stated an offense under Indiana law. We also hold that two of Jackson's convictions violate Indiana's prohibitions against double jeopardy because they were enhanced by the same bodily injury as Jackson's conviction for burglary, as a Level 1 felony. In light of those holdings, we reverse Jackson's criminal gang enhancement and remand with instructions for the trial court to vacate that enhancement. We also reverse the two of Jackson's convictions that are based on the same bodily injury as his conviction for burglary, as a Level 1 felony, and we remand with instructions for the court to enter judgment of conviction on lesser-included offenses on those counts. And we instruct the court to resentence Jackson in accordance with this opinion.1 On the remaining issues, we affirm.
[3] In October of 2015, Jeremy Herbert lived in a second-floor apartment above the 711 Tavern in Evansville. Herbert's apartment was one of two second-floor apartments above the 711 Tavern; one could access those two apartments from the street by gaining entry through an exterior door that Herbert could remotely open. Herbert also had video surveillance on that door. Once through that door, visitors would go upstairs to a hallway common to both apartments. One apartment had a door off the hallway; Herbert's apartment had a doorframe in which he had hung a sheet to "act as the doorway." Tr. Vol. IV at 153. Logan Orth stayed intermittently at Herbert's apartment and sold marijuana out of the apartment.
[4] On October 25, Jackson and his friend, Diego Thomas, learned that Orth had one-half pound of marijuana in Herbert's apartment. Jackson and Thomas decided that they would go to Herbert's apartment "[t]o rob them" of that marijuana. Id. at 9. However, upon approaching the exterior door, they "saw [the] camera above the door" and abandoned their plan. Id.
[5] The next day, Jackson and Thomas again decided to rob Orth at Herbert's apartment. This time, Jackson and Thomas obtained the assistance of Jarvice Sears, Corey Cain, and O'Neill Bruin to help them carry out their plan. The five confederates acquired two firearms and some face masks to use in the commission of the invasion. They agreed to equally split any marijuana and money they seized from Orth.
[6] Shortly before 9:00 p.m., the group approached the exterior door to Herbert's apartment and observed the surveillance camera. They then "debate[d]" among themselves "whether ... [to] keep on going ... or just leave." Id. at 17. Jackson advocated for continuing forward, and, after about five minutes of discussion, the cohort agreed. Thomas then "pulled the camera out [of] the wall," the five men went through the exterior door,2 they "pulled back" the sheet to Herbert's apartment, and they entered the apartment. Id. at 18-19.
[7] At that time, about ten people, including Orth and Herbert, were inside the apartment "smoking blunts." Id. at 156. The five intruders demanded the occupants' marijuana and money. Sears pulled out a firearm. Jackson told the occupants that Sears "ain't playing with you all." Id. at 25. Nonetheless, Orth also pulled out a firearm, and a gunfight ensued. Sears shot Orth twice and Orth shot Sears once. The confederates then fled the apartment. On the way out, Cameron Kendall, a resident in the other upstairs apartment, came into the hallway. Sears shot Kendall in the stomach. Kendall, a former sniper for the United States Army, returned fire at the confederates, striking Sears once, Thomas once, and Bruin twice.
[8] Jackson and his cohort made their way outside, but Sears collapsed shortly after and Thomas remained with him until police arrived. The other three eventually drove to a hospital and were arrested thereafter. No one died from the gunfight.
[9] While in prison, Jackson made several phone calls that the State recorded. The State advised Jackson prior to the phone calls that it would record them and that they could be used against him at trial. Undeterred, in one call Jackson stated that Tr. Vol. III at 108. In another call, Jackson again commented that he could be convicted of burglary. Following several inaudible comments relating to his alleged participation in the events at the apartment, Jackson then stated that "[w]hen everything started happening I ran because I didn't know, I knew but I didn't know, so when I seen what I didn't know, then I ran." Id. at 111.
[10] The State charged Jackson with sixteen offenses and a criminal gang enhancement. The State's original charge of the criminal gang enhancement tracked the language of Indiana Code Section 35-50-2-15(b) (2015) and stated, in relevant part, that, "on October 26, 2015, [Jackson] knowingly or intentionally was a member of a criminal gang while committing the underlying offense." Appellant's App. Vol. II at 56. However, three days before Jackson's trial, the State amended that language to instead allege that Jackson "was a known member of a criminal gang[ ] while committing the underlying felony offense." Id. at 97. Jackson did not object to the State's amendment of the charging information on the criminal gang enhancement.
[11] The trial court ordered Jackson's ensuing jury trial to be bifurcated between the substantive offenses and the criminal gang enhancement. During the first phase, numerous witnesses, including some of his confederates, testified and described the events of October 26, 2015. The State also introduced, over his objections, Jackson's jailhouse phone calls as described above. The jury found Jackson guilty as charged.
[12] Jackson's jury trial then proceeded to the second phase on the criminal gang enhancement allegation. In his introductory remarks to the jury at the start of that proceeding, Jackson's attorney stated:
I'll keep it straight to the point on this one. The Court's instruction number 2 says that the State has alleged that Mr. Jackson was a known member of a gang while committing the underlying felony offenses and, not or, and Mr. Jackson committed the felony offenses at the direction of or in affiliation with a criminal gang. Number 1 was a known member . Number 2, at the direction or an affiliation. Keep those two factors in mind when you listen to the evidence. I don't think it will be sufficient to convince you beyond a reasonable doubt ....
Tr. Vol. V at 164-65 (emphases added). The State then called Thomas as a witness, and he redescribed the events of October 26, 2015. In a short cross-examination, Jackson's attorney questioned Thomas as follows:
Id. at 178. The State then called Evansville Police Department Detective Keith Whitler, who investigated the October 26, 2015, incident. He stated that Jackson and his cohort acted together in the commission of those offenses, but he did not testify to any prior known gang involvement by Jackson. Finally, the State called Bruin. Bruin, like Thomas, described the events of October 26, 2015. The totality of Bruin's cross-examination is as follows:
[13] The court gave the jury four instructions on the criminal gang enhancement. The court's instruction number two recited the State's charging information, namely, that Jackson "was a known member of a gang while committing the underlying felony offenses ...." Appellant's App. Vol. III at 57. However, the court's instruction number three informed the jury that, to find Jackson guilty under the enhancement, the jury had to find that he "knowingly or intentionally was a member of a criminal gang while committing the offense ...." Id. The jury found Jackson guilty on the enhancement.
[14] Thereafter, the trial...
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Jackson v. State
...the information for the criminal gang enhancement. The Court of Appeals agreed and reversed the enhancement. Jackson v. State , 84 N.E.3d 706, 711–14 (Ind. Ct. App.) (" Jackson I "), clarified on reh'g , 88 N.E.3d 1106 (Ind. Ct. App. 2017) (" Jackson II "). It instructed the trial court on ......
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Jackson v. State
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