Redman v. State, 52A02-9603-CR-162

• Decision Date: 06 May 1997
• Docket Number: No. 52A02-9603-CR-162,52A02-9603-CR-162
• Citation: 679 N.E.2d 927
• Parties: Kevin L. REDMAN, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 927

679 N.E.2d 927

Kevin L. REDMAN, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 52A02-9603-CR-162.

Court of Appeals of Indiana.

May 6, 1997.

Transfer Denied July 16, 1997.

Eugene C. Hollander, Indianapolis, for Appellant-Defendant.

Pamela Carter, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

The appellant, Kevin L. Redman (Redman) brings this interlocutory appeal challenging the trial court's order denying his motion to dismiss and his motion objecting to retrial of the attempted murder count.

The sole issue for review is whether the trial court erred in denying Redman's aforementioned motions in the context of double jeopardy considerations.

The facts of this case are undisputed and are as follows: On September 14 of 1992, a jury found Redman guilty of attempted murder, aggravated battery and carrying a handgun without a license. The trial court issued a sentencing order on November 11, 1992. In that sentencing order, the trial court sentenced Redman to 45 years on the attempted murder conviction. Furthermore, the trial court imposed a three-year sentence for the conviction of carrying a handgun without a license. However, the court found that "the conviction of Aggravated Battery merges with the conviction of Attempted Murder" and did not impose a sentence upon that conviction. Record at 78.

Redman appealed his convictions to this court. In an unpublished opinion, we agreed with Redman's contention that the jury instruction upon the attempted murder charge was improper and reversed the decision of the trial court. We further affirmed Redman's conviction on the aggravated battery charge and remanded with instructions to the trial court to either sentence Redman upon the aggravated battery conviction or conduct a new trial upon the attempted murder charge, "as dictated by the State's desire to reprosecute for attempted murder." Slip Op. at 7, Redman v. State, No. 52A02-9303-CR-116, 630 N.E.2d 241 (February 21, 1994).

After remand, Redman filed a motion with the trial court urging it dismiss the attempted murder charge and objecting to a retrial. The trial court denied defendant's motion, and it is from this denial that the defendant now appeals.

Redman claims that a second prosecution against him for the attempted murder charge is in violation of the principle of double jeopardy. Although we are impressed with the surface appeal of this argument, we must disagree.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution reads, in part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. ¹ These twenty words generally mean that a defendant may not receive multiple punishments for the same offense, may not be retried for an offense once acquitted and may not be retried for an offense once convicted. North Carolina v. Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. One example of the principle is that defendants may not also be found guilty of included offenses. For example, a defendant charged with murder may not also be convicted of battery if it arises out of the same conduct. E.g., Derado v. State (1993) Ind., 622 N.E.2d 181 (double jeopardy considered in the context of jury instructions). Neither can the defendant in the present case be convicted of both attempted murder and aggravated battery when the two offenses are based upon one act--pulling the trigger.

A defendant may, however, be charged with two crimes at the same time even if those crimes arose out of a single offense and would violate double jeopardy. Thompson v. State (1972) 259 Ind. 587, 290 N.E.2d 724. Double jeopardy considerations are not violated by the charges themselves. The defendant is only subject to one judicial proceeding and, so long as there is a conviction upon but one of the charges, the defendant will not face multiple punishments.

While the double jeopardy principle of protection from multiple punishments is implicated above, the much less-invoked protection against multiple trials is also an issue. This principle most frequently involves the included offense doctrine. The logic behind the doctrine is that if one crime is an included offense of a second crime, then the crime is the same 'offense' for double jeopardy purposes. Therefore, if one is tried and acquitted of an included offense, the state is thereby precluded from trying him at a later time on the greater offense. Also, if the defendant is tried and convicted of the included offense, the state is precluded from later trying him on the greater offense. The same holds true if the first offense tried is the greater. See, Brown v. Ohio (1977) 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187; Jeffers v. U.S. (1977) 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168.

As mentioned, one of the most basic propositions of double jeopardy considerations is that after a trial, the state may not reprosecute the defendant for the same offense. However, a problem arises when the trial is conducted and the decision of the trial court is reversed upon appeal. Historically, upon reversal, a defendant could not assert double jeopardy as a bar to a new trial. "[O]nce a court has vacated the conviction of an accused to grant a new trial, that person is placed in a position as if he had never been tried upon that charge at all." Moore v. State (1995) Ind.App., 653 N.E.2d 1010, 1019, trans. denied, (citing Causey v. State (1971) 256 Ind. 19, 266 N.E.2d 795). However, when an appellate court reverses for insufficient evidence, retrial is barred. Id.

In Burks v. United States (1978) 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the Supreme Court pointed out the difference between a reversal for sufficiency and a reversal for procedural error. When it comes to trial error, the reversal says nothing about the innocence or guilt of the defendant. While reversal for insufficiency says that the government has failed to prove its case, reversal for trial error does not. Id.; See also, Warner v. State (1991) Ind., 579 N.E.2d 1307, 1311. The Burks Court said that the most reasonable justification for allowing retrial upon trial error is that: " '[i]t would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.' " Burks, supra, 437 U.S. at 15, 98 S.Ct. at 2149 (citation omitted).

The problem arising in this case involves a combination of the principles described above. Here there are two convictions, one is reversed because of procedural error, and the defendant asserts that the remaining conviction acts as a bar to the subsequent reprosecution of the reversed conviction. As mentioned above, oftentimes greater and included offenses are tried under the same indictment or information. Thompson, supra, 290 N.E.2d at 724. However, trial courts often enter convictions upon both offenses yet sentence only upon one or "merge" ² the two convictions. See Mason v. State (1989) Ind., 532 N.E.2d 1169, cert. denied 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428. In fact, this court has in the past expressed its understanding as to why the trial court might reasonably fail to vacate the conviction upon the included offense:

We acknowledge that a trial court might understandably prefer not to vacate a conviction of a lesser offense in light of a conviction on the greater offense if there is any likelihood of an appellate reversal of the greater conviction. If, in such instance, there was no conviction of record on the lesser offense, quite obviously such conviction could not be affirmed. While the appellate forum, in reversing the greater conviction, might remand, giving authority to the trial court to enter a conviction upon the lesser offense, trial courts are not required to be so clairvoyant as to anticipate that prospect.

Abron v. State (1992) Ind.App., 591 N.E.2d 634, 637, trans. denied. There we left in place a cocaine dealing conviction but remanded the case to the trial court with instructions to vacate the conviction on the included offense of possession.

The case upon which Redman relies, Buie v. State (1994) Ind., 633 N.E.2d 250, reh'g denied, is highly analogous to the case at hand. In Buie, the defendant was convicted of, among other things, murder and conspiracy to commit murder. On appeal, our Supreme Court reversed the murder conviction because of a defective jury instruction. The court then turned to a double jeopardy analysis.

The conspiracy offense required that the defendant agree to commit a felony and engage in some overt act toward committing that felony. Buie pointed out that "where the overt act element of a conspiracy charge is the underlying offense, convictions and sentences for both would constitute multiple punishments for the same offense," thus violating double jeopardy. Id. at 261. The court further noted that if the State has obtained a conviction for conspiracy based upon the underlying offense, "the State may not subsequently pursue a prosecution for the underlying offense." Id. The court held that a subsequent prosecution for the reversed murder charge was barred by double jeopardy.

Buie concluded that the murder, which was an included offense of the conspiracy as charged, could not be retried because of the preexisting conviction on conspiracy, the greater offense. In Moore, supra, 653 N.E.2d at 1010, this court dealt with the question before us here--whether the defendant can be retried upon the greater charge after an appellate reversal while a conviction upon the included charge remains. In Moore, we concluded that the defendant could. We noted that "Buie does not address whether a greater offense may be reprosecuted after reversal when a conviction upon an included offense remains in place." Id. at 1020. We also noted that,...