Nunn v. State
| Decision Date | 08 April 1998 |
| Docket Number | No. 48A02-9701-CR-57,48A02-9701-CR-57 |
| Citation | 695 N.E.2d 124 |
| Parties | Trevor T. NUNN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Trevor Nunn appeals his convictions and sentences for five counts of Attempted Murder, class A felonies. The dispositive issue presented is whether the prohibition against double jeopardy precludes five convictions and five separate sentences for five shots fired at a single victim in the space of a few seconds.
The facts most favorable to the State establish that Officer Darron Sparks was driving his marked police car and wearing his uniform when he responded to a call that Nunn had battered his girlfriend and was armed. Sparks knew Nunn by sight and saw him walking along the street. Sparks pulled to the curb, called to Nunn and turned his bright lights on Nunn. Nunn walked toward Sparks. When about a half block distant, Nunn began running toward Sparks and pulled out a handgun. He fired a shot as he came around Sparks' car door, striking Sparks in the forearm and knocking him down. Nunn then stood above Sparks, pointed the gun at Sparks' head and fired four more shots before walking away. The last four shots did not injure Sparks. Following the jury's guilty verdicts, the trial judge sentenced Nunn to fifty years on each of the five counts of attempted murder with the sentences to run consecutively. 1
The double jeopardy clause of the Fifth Amendment to the United States Constitution embodies three separate but related prohibitions. It protects against a second prosecution for the same offense after an acquittal, a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. Jackson v. State, 625 N.E.2d 1219, 1221 (Ind.1993). Here, we are concerned with the third prong of the protection, but not in the usual scenario where one offense is found to be included within another. 2
Instead we are required to consider whether Nunn's actions constitute multiple offenses, or whether they combined to create one offense of attempted murder. Clearly, had Nunn succeeded in killing the officer there would have been only one murder, since there was only one victim. See, e.g., Pasco v. State, 563 N.E.2d 587 (Ind.1990). Equally clearly, a person may properly be found guilty of murdering someone and be found guilty of separate attempts to murder that same victim. Johnston v. State, 578 N.E.2d 656 (Ind.1991). In Johnston, the defendants beat the victim and tried to kill him. When they returned to bury him, they found the victim still alive and again tried to kill him. They took the victim to a river where they threw him off a bridge. They missed the river, went down to the victim, found him still alive and finally succeeded in killing him. Id. at 658.
Yet our decisions have long recognized that actions which are sufficient in themselves to constitute separate criminal...
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Hines v. State
...extended to two distinct criminal offenses, we disagree. See Buchanan, 913 N.E.2d at 720–21 (ultimately relying on Nunn v. State, 695 N.E.2d 124, 125 (Ind.Ct.App.1998), trans. denied ). First, within constitutional limitations, our Legislature has the inherent power to define crimes, State ......
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Powell v. State
...nature of attempting to define precisely" when otherwise independent criminal acts "coalesce into a single offense." Nunn v. State , 695 N.E.2d 124, 125 (Ind. Ct. App. 1998). See also Jeffrey M. Chemerinsky, Note, Counting Offenses , 58 Duke L.J. 709, 726–28 (2009) (outlining the flaws in t......
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Wilcox v. State, 49A02-0008-CR-537.
...a second prosecution for the same offense after a conviction, and multiple punishments for the same offense. See Nunn v. State, 695 N.E.2d 124, 125 (Ind. Ct.App.1998). The question whether an offense is the "same" as a subsequent one for double jeopardy purposes differs depending upon wheth......
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Cohen v. State
...our supreme court relied on Nunn v. State, 601 N.E.2d 334, 339 (Ind.1992), opinion modified on other grounds on remand, 695 N.E.2d 124 (Ind.Ct.App.1998), which concluded [a]n intent to kill sufficient to sustain a murder conviction can be established in several ways. The intent to kill may ......