Lee v. State, No. 27S04-0805-PC-226.

• Decision Date: 03 September 2008
• Docket Number: No. 27S04-0805-PC-226.
• Parties: Roderick LEE, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).
• Court: Indiana Supreme Court

892 N.E.2d 1231

Roderick LEE, Appellant (Petitioner below), v. STATE of Indiana, Appellee (Respondent below).

No. 27S04-0805-PC-226.

Supreme Court of Indiana.

September 3, 2008.

Susan K. Carpenter, Public Defender of Indiana, Anne-Marie Alward, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 27A04-0705-PC-257.

BOEHM, Justice.

Multiple convictions do not violate Indiana's Double Jeopardy Clause if they logically could have been based on the same facts, but in light of the evidence, the instructions, the charges, and the argument of counsel, there is no reasonable possibility that the jury actually used exactly the same set of facts to establish both convictions.

Facts and Procedural History

Roderick Lee was convicted of burglary and attempted armed robbery and sentenced to consecutive twenty-year terms on each count. On direct appeal, the Court of Appeals affirmed Lee's convictions and sentences. Lee v. State, No. 27A05-0110-CR-452, 769 N.E.2d 711 (Ind.Ct.App. June 4, 2002), trans. denied. Lee sought post-conviction relief, claiming that he received ineffective assistance of counsel at trial and on appeal because his attorney, who represented him at both stages, did not argue that Lee's convictions violated Indiana's Double Jeopardy Clause under the "actual evidence" test articulated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The post-conviction court denied relief, finding that Lee's convictions did not violate the actual evidence test, and because there was no violation, the attorney's failure to raise the issue was not ineffective assistance. A majority of the Court of Appeals affirmed, but on different grounds. Lee v. State, 880 N.E.2d 1278 (Ind.Ct.App.2008). The Court of Appeals concluded that Lee's convictions violated a "relaxed" but not a "literal" application of the actual evidence test. Id. at 1283-84 & n. 3. However, the Court of Appeals further concluded that his attorney's failure to raise the double jeopardy issue was not deficient performance because case law before sentencing inconsistently applied the relaxed and literal applications, and case law before direct appeal, particularly Spivey v. State, 761 N.E.2d 831 (Ind.2002), favored the literal application. Lee, 880 N.E.2d at 1284-86. Judge Kirsch dissented, reasoning that Lee's convictions did not constitute double jeopardy under the actual evidence test. Id. at 1286-87. We granted transfer.

Standards of Review

In post-conviction proceedings, the defendant bears the burden of proof by a preponderance of the evidence. Henley v. State, 881 N.E.2d 639, 643 (Ind.2008). To establish a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel performed deficiently and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McManus, 868 N.E.2d 778, 790 (Ind.2007) (citation omitted). Failure to satisfy either prong will cause the claim to fail. Henley, 881 N.E.2d at 645. Therefore, if we can dismiss an ineffective assistance claim on the prejudice prong, we need not address whether counsel's performance was deficient. Id.

Indiana Double Jeopardy

Article I, Section 14 of the Indiana Constitution provides that "No person shall be put in jeopardy twice for the same offense." In Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999), this Court developed a two-part test for Indiana double jeopardy claims, holding that

two or more offenses are the "same offense" in violation of Article I, Section 14 of the Indiana Constitution, 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.

Burglary and attempted armed robbery each contain an element not shared by the other. Lee therefore does not contend that his convictions and sentences violate the "statutory elements" test, which is substantially equivalent to the "same elements" test used in federal double jeopardy analysis under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

Lee contends that his convictions and sentences violate the "actual evidence test," an analysis not required by the federal constitution. We first articulated this method of double jeopardy analysis in Richardson.

Under this inquiry, the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.

717 N.E.2d at 53. Spivey v. State explained further that

The test is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense. In other words, under the Richardson actual evidence test, the Indiana Double Jeopardy Clause is not violated when 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.

761 N.E.2d 831, 833 (Ind.2002).

Application of this test requires the court to "identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective...." Spivey, 761 N.E.2d at 832. In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel. Id., 761 N.E.2d at 832 (Ind.2002); Richardson, 717 N.E.2d at 54 n. 48.

Lee was convicted of burglary and attempted armed robbery as B felonies. For the burglary conviction, the State was required to establish that Lee, (1) knowingly or intentionally, (2) broke and entered a building, (3) with the intent to commit a felony, and (4) either (a) was armed with a deadly weapon, or (b) the building was a dwelling.¹ For attempted armed robbery, the State needed to establish that Lee, (1) while armed with a deadly weapon, (2) took a substantial step toward the commission of, (3) knowingly or intentionally, (4) taking property from another person or from the presence of another person, (5) either by (a) using or threatening the use of force, or (b) putting a person in fear.²

The evidence presented at trial indicated that on the evening of September 26, 2000, Dell Riley and her ten-year-old daughter, Ashley, were at their home in Marion, Indiana. Ashley was upstairs in her bedroom when Dell heard a knock at the door. When Dell opened the door, Lee and two others barged into the home, repeatedly pointed guns at her, threatened her, and demanded money. After Ashley heard the noise and came downstairs, Lee continued to threaten Dell and demand money. While Lee was looking through Dell's purse, Dell and Ashley escaped safely through the back door and called the police. This evidence boils down to four facts: Lee barged into the home, had a gun, made threats, and demanded money.

These facts can properly support both convictions. Burglary is supported by the barging into a home (intentional breaking and entering into a dwelling); demanding money (intent to commit a felony); and possession of a gun (armed with a deadly weapon). Attempted armed robbery is established by possession of the gun (armed with a deadly weapon); the threats or demands for money (substantial step to take property); the threats or demands (the mens rea); and the threats (putting another in fear). We have held that Indiana's Double Jeopardy Clause requires charges to be prosecuted "in a manner that insures that multiple guilty verdicts are not based on the same evidentiary facts." Richardson, 717 N.E.2d at 53 n. 46. Lee points out that the barging into the house could, as a logical matter, satisfy both the breaking and entering of burglary and the substantial step required for attempted armed robbery. Thus, if there is a reasonable possibility that the jury used the fact of Lee's barging into a residence—instead of the threats and demands for money—to establish the substantial step and mens rea elements of attempted armed robbery, both convictions cannot stand because the facts establishing attempted armed robbery—possession of a gun, barging into a home, and making threats—would also establish burglary.

Since Richardson, this Court has decided several cases where there were separate facts to support two convictions, but the case was presented in a way that left a reasonable possibility that the jury used the same facts to establish both. For example, in Bradley v. State, 867 N.E.2d 1282 (Ind.2007), the defendant was charged with confinement and aggravated battery arising out of a domestic dispute in which he stabbed his wife and also pinned her over a toilet and repeatedly struck her head with a hammer. The jury could have found that the stabbing supported the aggravated battery and the hammer injury supported confinement. However, because the charges listed both the hammer injury and the knife wound as facts supporting aggravated battery, we found there was a reasonable possibility that the jury may have used the hammer injury to support both charges, and the convictions violated double jeopardy. Similarly, we have found double jeopardy violations when the facts supporting a first crime are offered in the charges or jury instructions as the only "overt act"...