Mers v. State

• Citation: 496 N.E.2d 75
• Decision Date: 08 August 1986
• Docket Number: No. 1283S431,1283S431
• Parties: Steven A. MERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Supreme Court of Indiana

Page 75

496 N.E.2d 75

Steven A. MERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 1283S431.

Supreme Court of Indiana.

Aug. 8, 1986.

Susan K. Carpenter, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.

DICKSON, Justice.

Steven A. Mers was convicted by a jury of burglary, a class C felony ¹ and was also found to be a habitual offender. ² The trial court sentenced him to the maximum term of eight (8) years imprisonment on the burglary conviction and enhanced the sentence by thirty (30) years for the habitual offender determination. This direct appeal urges that error resulted from each of the following trial court actions:

1. refusing to dismiss the habitual offender count as violative of the prohibition against double jeopardy;

2. refusing to allow evidence that defendant had been previously found not to be a habitual offender based upon the same prior felonies;

3. denying defendant permission to inform the jury of the habitual offender penalty;

4. denying defendant's motion for a continuance made shortly prior to trial;

5. failing to exclude evidence or grant a continuance upon the State's failure to fully disclose names of witnesses;

6. failing to admonish the jury regarding alleged improper statements made by the prosecutor during his closing argument; and,

7. denying defendant's motion for a directed verdict at the close of the State's evidence on the habitual offender count.

Defendant seeks reversal of the burglary conviction and the habitual offender determination and requests in the alternative a new trial or resentencing on the burglary conviction alone.

We affirm.

ISSUE I

On February 26, 1981, defendant was convicted of theft and sentenced to three years imprisonment. On March 15, 1982, the defendant was convicted of a new offense of theft, and given a sentence of two years. These two unrelated felony convictions became the basis of a subsequent habitual criminal charge brought against defendant in conjunction with a charge of theft, a class D felony, wherein defendant was convicted of the theft, but the jury found that the defendant "is not an habitual offender" on May 5, 1983. In the case now before us, jury trial was held June 13 and 14, 1983, wherein defendant was charged in Count I with Burglary, a class C felony, and in Count II with being a habitual offender, which charge was predicated upon the same two felony convictions which were used in the previous habitual offender proceeding wherein defendant was acquitted. Defendant now asserts that the trial court erred in denying his motion to dismiss asserting that the double jeopardy provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States, and Article 1, Section 14 of the Constitution of Indiana, are violated Defendant admits that this Court has already decided this exact issue contrary to his contentions. Durham v. State (1984), Ind., 464 N.E.2d 321 (DeBruler and Prentice, JJ., dissenting); Dixon v. State (1982), Ind., 437 N.E.2d 1318 (Prentice, J., dissenting as to this issue); Harris v. State (1981), Ind., 427 N.E.2d 658 (Prentice and DeBruler, JJ., dissenting); Baker v. State (1981), Ind., 425 N.E.2d 98 (Prentice and DeBruler, JJ., dissenting). However, defendant requests that we reexamine our position and presents a cogent challenge to the underlying rationale supporting these decisions.

when a defendant is twice placed on trial for being a habitual offender by reason of the same two prior underlying felony convictions, particularly when the first results in an acquittal.

In Durham, this Court reviewed our prior decisions and summarized:

We have consistently emphasized the unique status of the habitual offender statute and held that it does not establish a separate offense, but rather provides for the imposition of a more severe sentence for the substantive crime charged. We have explained that habitual criminality is a status for the enhancement of punishment upon the conviction of an additional, substantive crime. The purpose of the statute is to more severely penalize those persons whom prior sanctions have failed to deter from committing felonies. (Citations omitted.)

464 N.E.2d at 323-24. The Durham opinion also explained that "the refiled habitual offender information does not create any new offense against defendant but is a sentencing choice associated with the underlying felony charge." 464 N.E.2d at 325. Our decisions in Dixon and Baker hold that even though the underlying felonies used to enhance a defendant's sentence had been used in a prior habitual charge resulting in an acquittal, double jeopardy does not bar a habitual criminal finding "since the habitual charge is not a prosecution, but rather, a sentence enhancement...." Dixon, 437 at 1320. The issue was more extensively explored in Baker, following decisions of the United States Supreme Court in Ashe v. Swenson (1970), 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and Bullington v. Missouri (1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.

The Fifth Amendment Double Jeopardy provision was held in Ashe to incorporate as a due process requirement the collateral estoppel doctrine which was described as "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any lawsuit."

In Bullington, a jury in a bifurcated death penalty sentencing proceeding returned a verdict rejecting the death penalty and imposing a life sentence. After the defendant was granted a new trial on the substantive charge, the U.S. Supreme Court prohibited the state from future attempts to impose the death penalty following new trial. In applying the prohibition of double jeopardy, Bullington identified the following considerations: (1) the jury was presented with a choice between two alternatives and standards to guide their decision, (2) the prosecution was required to establish certain facts beyond a reasonable doubt, (3) the defendant was subjected to embarrassment, expense, ordeal, and anxiety and insecurity, with the attendant risk that the prosecution, with its superior resources, could wear down a defendant thereby leading to an erroneous result.

In the recent case of Arizona v. Rumsey (1984), 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164, the United States Supreme Court, in discussing the application of Bullington, has emphasized the collateral estoppel aspect:

The double jeopardy principle relevant to respondent's case is the same as that invoked in Bullington: an acquittal on the merits by the sole decision-maker in the proceeding is final and bars retrial on the same charge. Application of the Bullington principle renders respondent's death sentence a violation of the Double Jeopardy Clause because respondent's initial sentence of life imprisonment 467 U.S. at 211, 104 S.Ct. at 2310, 81 L.Ed.2d at 171. Both Bullington and Rumsey were discussed in Poland v. Arizona (1986), --- U.S. ----, 106 S.Ct. 1749, 90 L.Ed.2d 123, which emphasized that the focus of Bullington is whether the sentencer has decided that the prosecution has not proved its case for the death penalty and hence "acquitted" petitioner.

was undoubtedly an acquittal on the merits of the central issue in the proceeding--whether death was the appropriate punishment for respondent's offense.

Following the decision of this Court in his appeal, the defendant in Baker sought habeas corpus relief in the federal courts. Baker v. Duckworth, (7th Cir.1985), 752 F.2d 302, cert. denied, --- U.S. ----, 105 S.Ct. 3483, 87 L.Ed.2d 618 rejected both general double jeopardy and collateral estoppel arguments:

In this case, unlike Bullington, two independent juries considered Baker's prior criminal record in sentencing him for two unrelated thefts. Under these circumstances, this court cannot find that the first jury's decision not to enhance Baker's first theft sentence operated as an acquittal of the habitual offender status with regard to a subsequent, and distinct theft.

752 F.2d at 305. Responding further to Baker's argument that the first jury's failure to declare him a habitual offender amounted to collateral estoppel, the court disagreed:

First, this court cannot ascertain with certainty the basis for the first jury's refusal to declare petitioner an habitual offender. The jury may have decided that the prosecution failed to prove Baker's previous convictions beyond a reasonable doubt, as required by statute. [Citation omitted.] Alternatively, the jury may have decided that even though the prosecution had proved Baker's prior convictions beyond a reasonable doubt, Baker did not deserve an enhanced sentence. (Emphasis supplied.)

752 F.2d at 306.

In the instant case, defendant urges that the Bullington factors should apply to habitual offender determinations, and argues that the majority opinion in Baker was incorrect in its discussion of the "ultimate issue of fact" in a habitual offender proceeding. In Baker, we stated:

However, the finding that a defendant is or is not an habitual offender is not an "ultimate issue of fact" in the sense discussed in Ashe. Only the fact of the various convictions, and not the facts underlying those convictions, is determinative of a defendant's habitual offender status.

425 N.E.2d at 101. Defendant urges that the "ultimate issue" determined by his prior "acquittal" was whether he is a habitual offender. We agree in part, but would carry the analysis further. In the prior habitual offender proceeding, the jury had just found the defendant guilty of class D theft. In the totality of said conviction coupled with the State's contention that defendant had previously been convicted of two unrelated felonies, the jury declined to find defendant to be a habitual offender. However, when the...