Powell v. State, 081820 INSC, 19S-CR-527

Docket Nº:19S-CR-527
Opinion Judge:GOFF, JUSTICE.
Party Name:Alain Kiiwon Powell, Jr., Appellant (Defendant), v. State of Indiana, Appellee (Plaintiff).
Attorney:ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Chandra K. Hein Deputy Attorney General Indianapolis, Indiana
Judge Panel:Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
Case Date:August 18, 2020
Court:Supreme Court of Indiana

Alain Kiiwon Powell, Jr., Appellant (Defendant),


State of Indiana, Appellee (Plaintiff).

No. 19S-CR-527

Supreme Court of Indiana

August 18, 2020

Argued: November 13, 2019

Appeal from the Tippecanoe Circuit Court, No. 79C01-1703-F1-4 The Honorable Sean M. Persin, Judge

On Petition to Transfer from the Indiana Court of Appeals, No. 18A-CR-1812

ATTORNEY FOR APPELLANT Bruce W. Graham Graham Law Firm P.C. Lafayette, Indiana

ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Chandra K. Hein Deputy Attorney General Indianapolis, Indiana



Most everyone would agree that intentionally shooting at and killing two persons (one immediately after the other) amounts to two separate murders. Reasonable persons would also likely conclude that robbing a person and then brutally beating and injuring that person (all in the same encounter) amount to two separate criminal acts: robbery and aggravated battery. Other scenarios, however, are less clear. Is the baker who sells four loaves of bread on Sunday subject to four counts of violating the "blue law" or only one? Does the theft of a single package in which several articles of property belong to multiple persons amount to one offense or multiple offenses? Does every punch thrown upon a single victim amount to a separate act of battery? Are two pulls of the trigger one attempted murder or two? Does it matter if the defendant aimed at two victims rather than one? What if he had aimed at the same person but on different days and at different locations?1

The answer to these questions depends on whether the applicable statute permits the division or fragmentation of a defendant's criminal conduct into distinct "units of prosecution." If the statute defines a separate offense for certain discrete acts (e.g., each loaf of bread sold or each victim harmed) within that course of conduct, the separate charges (and corresponding convictions) may stand. But if the statute fixes no separate penalty for each of these acts, and unless those acts are sufficiently distinct "in terms of time, place, [and] singleness of purpose," then a court may impose only a single conviction.

The defendant here, during an escalating confrontation, fired five to six shots in rapid succession at two victims sitting in an adjacent vehicle, seriously injuring one of them. In these circumstances, may a court convict on one count of attempted murder (for the single act of shooting) or two (one for each victim)? While our attempted-murder statute contains no clear unit of prosecution, we find sufficient evidence of the defendant's dual purpose in firing his weapon: intent to kill both victims. Accordingly, we hold that the defendant's actions, despite their proximity in space and time, amount to two distinct, chargeable offenses.

Facts and Procedural History

In March 2017, Travis Nichols purchased a Ford Taurus from Tyler Howard. When Howard subsequently borrowed the car and failed to return it, Travis and his companions drove to Howard's house in an apparent attempt to reclaim the vehicle. Expecting an altercation, Howard summoned a group of friends, among whom included Alain Powell, Jr. Upon arriving at the house, Powell found Travis parked just outside, sitting in the driver's seat of a black Cadillac. Travis's wife, Davyn Nichols, sat in the front passenger seat, while a third person, Troy Clements, occupied the rear. Powell pulled up to the car's front passenger window and, while the parties exchanged heated words, began loading a gun. As Travis threw the car into gear and started pulling away, Powell fired five to six shots in rapid succession at the vehicle. Travis and Clements emerged from the chaos virtually unscathed. Davyn, on the other hand, having been struck by two bullets, barely escaped with her life.

The State charged Powell with three counts of attempted murder (one count for each victim), criminal recklessness, carrying a handgun without a license, and several counts of battery. The jury found Powell guilty as charged except for the attempted murder of Clements.2 The trial court entered judgment of conviction and sentenced Powell to an aggregate term of sixty-four years (two consecutive thirty-two-year terms for each attempted murder, along with a concurrent sentence of five years for the unlicensed carrying of a handgun).

On appeal, Powell argued that his two attempted-murder convictions violated the state constitutional protection against double jeopardy, and that there was insufficient evidence showing his intent to kill Davyn.[3]

In a unanimous opinion, the Court of Appeals affirmed in part and reversed in part. Powell v. State, 127 N.E.3d 1280 (Ind.Ct.App. 2019). Citing the "ongoing animosity between the parties," and the fact that Powell had fired multiple times at Davyn's side of the car, the panel found sufficient evidence to support both attempted-murder convictions. Id. at 1283. But with "no additional evidence that Powell intended to kill a specific victim or took additional steps to kill a specific victim," the panel concluded that both convictions violated double jeopardy. Id. at 1285. To remedy this violation, the panel vacated Powell's attempted-murder conviction for Davyn. Id.

The State petitioned for transfer, which we granted, thus vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A).

Standard of Review

We apply a de novo standard of review to questions of statutory law. Johnson v. State, 87 N.E.3d 471, 472 (Ind. 2017). Sufficiency-of-the-evidence claims, on the other hand, warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility. Perry v. State, 638 N.E.2d 1236, 1242 (Ind. 1994). Rather, we consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence. Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018). We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt. Id.

Discussion and Decision

The thrust of the parties' arguments focuses on Powell's act of firing multiple shots at Travis's car and whether his actions warrant separate attempted-murder convictions. Powell argues that double jeopardy prohibits his separate convictions based on his single act of shooting. The State, on the other hand, contends that, when separate victims are involved, there is no double jeopardy violation. Each pull of the trigger amounted to "separate acts" designed to kill each person, the State insists, and the fact that Powell "unleashed his violence at multiple people close in time and space does not make it a single crime." Appellee's Br. at 21, 22; Reply in Support of Trans. at 4.

We agree with the State that the separate victims here warrant Powell's dual convictions, but the reasoning through which we reach that decision calls for careful explanation.

In part I of this opinion, we lay out the basic framework for analyzing claims of multiplicity-a branch of substantive double jeopardy based on "the charging of a single offense in several counts."4 Gerberding v. United States, 471 F.2d 55, 58 (8th Cir. 1973). See also Taylor v. State, 929 N.E.2d 912, 920 (Ind.Ct.App. 2010) (using the same term in the same context). In Part II, we apply this analytical framework to Powell, ultimately concluding that the separate attempted-murder convictions may stand.

I. Whether the State may charge a single offense in multiple counts depends on the crime's statutory definition and the defendant's actions.

Substantive double-jeopardy claims principally arise in one of two situations: (1) when a single criminal act or transaction violates multiple statutes with common elements, or (2) when a single criminal act or transaction violates a single statute and results in multiple injuries. Wadle v. State, ____ N.E.3d ____ (Ind. 2020) (slip op. at 22-23). Our decision today in Wadle implicates the former scenario; this case implicates the latter. The question here is not whether one offense is included in the other (attempted murder is clearly the same as attempted murder). See Hurst v. State, 464 N.E.2d 19, 21 (Ind.Ct.App. 1984). Instead, we ask whether "the same act may be twice punished" as "two counts of the same offense."5See Kelly v. State, 527 N.E.2d 1148, 1154 (Ind.Ct.App. 1988), aff'd, 539 N.E.2d 25, 26 (Ind. 1989).

Our legislature possesses the inherent authority, subject to certain constitutional limitations, to define crimes and fix punishments. State v. Clark, 247 Ind. 490, 495, 217 N.E.2d 588, 590-91 (1966). This prerogative extends to defining whether a single statutory offense will "subsist for a definite period or cover successive, similar occurrences."6 Hines v. State, 30 N.E.3d 1216, 1220 (Ind. 2015). In resolving a claim of multiplicity, our task is to determine whether the statute permits punishment for a single course of criminal conduct or for certain discrete acts-the "successive, similar occurrences"-within that course of conduct. Id.; Taylor, 929 N.E.2d at 920. Put differently, we ask whether-and to what extent-the applicable statute permits the fragmentation of a defendant's criminal act into distinct "units of prosecution."7 Peter Westen & Richard Drubel, Toward a General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 111-12. See also Bell v. United States, 349 U.S. 81, 82-83 (1955) (the legislative branch is responsible for defining the proper "unit of prosecution").

This inquiry involves a two-step process.

First, we review the text of the statute itself. If the statute, whether expressly or by judicial...

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