Richardson v. State, 67A01-9705-CR-143

• Citation: 687 N.E.2d 241
• Decision Date: 07 November 1997
• Docket Number: No. 67A01-9705-CR-143,67A01-9705-CR-143
• Parties: Robert RICHARDSON, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 241

687 N.E.2d 241

Robert RICHARDSON, II, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 67A01-9705-CR-143.

Court of Appeals of Indiana.

Nov. 7, 1997.

Susan K. Carpenter, Public Defender, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for Appellant-Defendant.

Jeffrey A. Modisett, Attorney General, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Robert Richardson, II was convicted of Robbery, as a Class C felony, and Battery, as a Class A misdemeanor. He received an enhanced sentence of eight years for the robbery conviction and the maximum sentence of one year for the battery conviction. The trial court ordered the sentences to be served consecutively for a total term of nine years. The sole issue presented for review is whether Richardson's convictions for both robbery and battery violate the double jeopardy clause of the Indiana Constitution.

We affirm.

FACTS

Around midnight on August 30, 1996, Jeff Koenig attended a small gathering in the VanBibber Lake area near Greencastle. People there were drinking, smoking marijuana, and taking LSD. During the course of the party, it became known that Koenig carried a substantial amount of cash with him. ¹

Richardson and Vivian Crouch were also in attendance. Richardson told Crouch that "he was going to take [Koenig] and beat him up and take his money." Later, Koenig left the party with Richardson and two other men allegedly to go to another party in Indianapolis.

The four men traveled into the country where they parked on a steel girder bridge next to a cornfield to urinate. As they stepped out of the car, someone hit Koenig on the back of the head with a beer bottle. The men then kicked and beat Koenig. After the initial beating, they dragged Koenig to the side of the bridge, removed his wallet from his pants pocket and pushed him over the side onto the bank, a few feet below. As Koenig stood up, he was able to see the men in the beam of the car's headlights counting his money. Koenig yelled that the men would not get away with beating and robbing him. After hearing what he believed to be gunshots, Koenig ran into the nearby cornfield for safety.

Richardson and the two others returned to the car and left. Koenig eventually found his way to the Putnamville Correctional Facility. Guards there called the State Police. The responding officer testified that Koenig was bloody and had a bump on the back of his head.

Meanwhile, Richardson and the other two men returned to the party where they bragged about having beaten Koenig and having taken his money. Witnesses saw blood on Richardson and on at least one of the other two men. Richardson was later convicted of robbery and battery.

DISCUSSION AND DECISION

Richardson contends that his convictions for both robbery and battery violate Article 1, § 14 of the Indiana Constitution which states, "No person shall be put in jeopardy twice for the same offense." Specifically, Richardson argues that his convictions amount to multiple punishments for the same offense because the same facts relied upon to prove the force in the robbery were used to prove the battery. Richardson concedes that his claim would fail under a federal double jeopardy analysis. ² However, he asserts that Indiana utilizes its own analysis to interpret the Indiana double jeopardy clause which, he alleges, yields a different result. We disagree.

Our supreme court has not yet decided this issue. The court recently held that when an Indiana court is presented with a federal double jeopardy claim, it must apply the federal standard as articulated in United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556, 573 (1993), namely, that "the 'same elements' test requires that we look only to the statutory elements of the offenses, not to the charging information, the jury instructions outlining the elements of the crime, or the underlying proof needed to establish the elements." ³ Games v. State, 684 N.E.2d 466, 477 (Ind.1997); see also Grinstead v. State, 684 N.E.2d 482, 486 (Ind.1997) (review of multiple punishments under federal law requires we look only to the relevant statutes and no further). In Carter v. State, 686 N.E.2d 834 (Ind.1997), issued just prior to this opinion, our supreme court followed Games and Grinstead in rejecting a federal double jeopardy claim. No state double jeopardy claim was presented in Grinstead or Carter and the Court declined to address the issue in Games. Neither Games, Grinstead, nor Carter was decided based on a state double jeopardy claim. Nevertheless, both the majority and concurring opinions in Games and Carter discuss the Indiana Constitution.

However, two panels of this court have squarely addressed state double jeopardy claims in opinions issued on rehearing. In Valentin v. State, 685 N.E.2d 1100 (Ind.Ct.App.1997) trans. reversed (issue not properly before Court of Appeals), one majority panel held that the Indiana Constitution requires more than the federal inquiry into the statutory elements of the offenses and concluded that we must also determine whether the same act constitutes the factual basis for both offenses. Id. 685 N.E.2d at 1101-02. Again, in Thorpe v. State, 686 N.E.2d 1296 (Ind.Ct.App.1997) trans. reversed (issue not properly before Court of Appeals), another majority panel utilized the same two-prong analysis and held that the double jeopardy clause of the Indiana Constitution was violated where the informations were based on the same injuries to the victim. Id. 4, at 1298.

The majority opinions in both Valentin and Thorpe rely on a footnote in Games which states:

In presenting the general claim that his sentences violate the double jeopardy provisions of the Indiana and United States Constitutions, the defendant cites both constitutions. However, the defendant does not provide Indiana authority, and we find none from this Court, establishing an independent state double jeopardy protection based upon an analysis of the Indiana Constitution. Of the cases cited by the defendant in support of his double jeopardy argument, only Bevill v. State, 472 N.E.2d 1247 (Ind.1985) mentions the Indiana Constitution. However the mention in Bevill is only a recitation of the defendant's claim that it violated the Indiana Constitution. Bevill resolves the claim utilizing an analysis based upon the federal provision. The defendant presents no argument urging that the Indiana Constitution provides double jeopardy protections different from those under the federal constitution. Because the defendant fails to present an argument based upon a separate analysis of the Indiana Constitution, "we will only analyze this under federal double jeopardy standards." Gregory-Bey- "Bey v. State, 669 N.E.2d 154, 157 n. 8 (Ind.1996).

Games, 684 N.E.2d at 473 n. 7 (citations omitted) (emphasis in original). This footnote has generated confusion. While some language in the footnote intimates that Indiana does not have a separate double jeopardy standard, other language suggests that it does. ⁴ Although Carter did not present a state constitutional claim, the court reiterated its observation in Games that it could find no supreme court authority establishing independent state double jeopardy protection based on Article 1, Section 14 of the Indiana Constitution. Carter, at 837. But see Sullivan, J., concurring in result, (separate and distinct double jeopardy analysis required under Indiana Constitution). Id. at 840. Like the majority in Games and Carter, we can find no Indiana authority from our supreme court which establishes an independent state double jeopardy protection based upon an analysis of the Indiana Constitution. See id. We disagree with both Valentin and Thorpe and conclude that consideration of double jeopardy claims under Article 1, § 14 of the Indiana Constitution does not require a separate inquiry.

We are, of course, bound by United States Supreme Court precedent when confronted with a federal double jeopardy claim, but we may interpret double jeopardy claims under the Indiana constitution differently. See Games, 684 N.E.2d at 477 (a state is free to impose greater restrictions as a matter of its own law). Before the Double Jeopardy Clause of the Fifth Amendment was made applicable to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969), Indiana's double jeopardy standard focused on "the difference or lack of difference in the evidence necessary to establish one particular crime as compared with that required to establish the other crime." Dunkle v. State, 241 Ind. 548, 551, 173 N.E.2d 657, 658 (1961). The Dunkle formula, known as the "identity of offense" or "same evidence" test, was used to analyze double jeopardy claims under the state constitution. Elmore v. State, 269 Ind. 532, 536, 382 N.E.2d 893, 896 (1978).

Our supreme court has explicitly acknowledged the similarity between the federal "same offense" test established in Blockburger and the Indiana "identity of offense" test. Id. at 537, 382 N.E.2d at 896. Both tests focus on the statutory elements of the crimes charged. Compare Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17 (1975) (statutory elements of the crimes charged, not the substantial overlap in the proof offered to establish those crimes, are the focus of the test) with Elmore, 269 Ind. at 537, 382 N.E.2d at 897 (ultimate focus on identity of offenses and not on whether the offenses spring from the same act or operative circumstances). Thus, both state and federal inquiries focus on the offenses rather than on the underlying act.

In Elmore, our supreme court emphasized the need to maintain consistency between Indiana and federal double jeopardy standards:

[U]ntil recently, our method of analysis in cases involving...