Russelll v. State
| Decision Date | 23 June 1999 |
| Docket Number | 49a02-9803-cr-224 |
| Citation | 711 N.E.2d 545 |
| Parties | SHERRELL RUSSELL Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
ATTORNEY FOR APPELLANT: TERESA D. HARPER, Bloomington, Indiana
ATTORNEYS FOR APPELLEE: JEFFREY A. MODISETT, Attorney General of Indiana, RANDI E. FROUG, Deputy Attorney General, Indianapolis, Indiana
OPINION - FOR PUBLICATION
Sherrel Russell was charged with Murder,1 and Arson, a class A felony,2 after her roommate, Nicole Dicken, died from injuries Dicken sustained when Russell set Dicken on fire at a gas station. The jury found Russell not guilty of murder but convicted Russell of Reckless Homicide, a class C felony,3 as a lesser included offense of murder. The jury convicted Russell of arson, a class A felony. As restated, Russell presents one issue for review:
Do Russell's convictions for (1) reckless homicide, by setting the victim on fire, and (2) arson, resulting in serious bodily injury, violate Indiana's existing double jeopardy analysis under Article I, ' 14 of the Indiana Constitution, which is separate and distinct from the federal double jeopardy analysis, where the convictions incorporate the same injury to the same victim, thus requiring the class A felony arson conviction to be lowered to a class B felony?
The evidence discloses that, after an evening of consuming alcohol, Russell and Dicken stopped at a Bigfoot gas station on the southside of Indianapolis at approximately 3:00 a.m. on February 9, 1997. While at the gas station, Russell and Dicken were arguing. Russell entered the station, ostensibly to pay for gas, while Dicken waited outside by the car in order to pump the gas. While inside, Russell told the cashier and others that she was afraid her roommate would take her money upon their return to their apartment and that she did not want the cashier to authorize operation of the pump. She said she did not want to pay for the gas since she was always expected to pay. Russell opened the door and continued the argument by shouting at Dicken. Dicken entered the station and spoke to Russell. As the two walked out of the station, Russell told the manager to authorize operation of the pump and that everything was "okay."
At the pump, the two engaged in an altercation. At one point Dicken pushed Russell to the ground. Dicken told Russell to get in the car. Russell took an object from her jacket pocket and reached toward the gas pump handle. Liquid splashed onto Dicken's arms and chest. A fire started in front of Russell and engulfed Dicken. Passersby stopped and put out the flames. Russell sat nearby and did not assist Dicken. Dicken was burned on over 75% of her body. Dicken died from smoke inhalation shortly after arriving at the hospital.
As noted above, Russell was convicted of reckless homicide, a class C felony, and arson, a class A felony.
Russell claims that Indiana has had a separate and distinct double jeopardy analysis prior to the time when the federal analysis and Indiana's analysis converged and became coterminous. Russell contends that the two may be viewed as distinct again.
In Games v. State, 684 N.E.2d 466 (Ind.1997), modified on other grounds, 690 N.E.2d 211 (Ind. 1997), cert. denied, 119 S.Ct. 98 (1998), and Grinstead v. State, 684 N.E.2d 482 (Ind. 1997), the Indiana Supreme Court announced that Indiana's previous interpretations of the federal double jeopardy clause with regard to multiple punishments did not comport with federal jurisprudence as explained in U.S. v. Dixon, 509 U.S. 688 (1993).
The Indiana Supreme Court has not addressed the question whether a separate and distinct double jeopardy analysis exists pursuant to the Indiana Constitution. See, e.g., Brown v. State, 703 N.E.2d 1010, 1015 n.4 (Ind. 1998) (). Russell's contention that a separate and distinct state double jeopardy analysis exists and remains viable finds some support in Justice Sullivan's concurring opinion in Games. Justice Sullivan stated:
I fully concur in the opinion, however, because, whatever the nuances of federal constitutional law in this area after Dixon, today's opinion makes no change in Indiana constitutional or statutory law in this regard and so the precedential value of our earlier cases is not affected.
Games v. State, 684 N.E.2d at 481-82.
In Moore v. State, 691 N.E.2d 1232 (Ind. Ct. App. 1998), and more recently in Guffey v. State, 705 N.E.2d 205 (Ind. Ct. App. 1999),4 this court has held that the double jeopardy analysis is the same under the federal and state constitutions. A close reading of Moore reveals a materially different analysis than that presented by Russell.
In Moore, the appellant advocated for adoption by Indiana of the federal analysis which developed after Blockburger v. United States, 284 U.S. 299 (1932). The post-Blockburger federal analysis expanded double jeopardy protections and was followed by Indiana courts. According to Moore's contentions, Indiana should adopt those expanded protections as the separate Indiana double jeopardy analysis. Moore's chief complaint was that under a same-elements Blockburger test, most double jeopardy claims would be foreclosed, thereby working a hardship upon defendants. Moore urged that defendants should be able to argue that the double jeopardy analysis looks beyond the elements of the crimes and extends to the charging instruments, jury instructions, and the proof at trial as had the federal analysis after Blockburger, and before the expanded double jeopardy analysis was retracted in Dixon. See Moore, 691 N.E.2d at 1234 n.3.
Under the analytical framework proposed by the appellant, the Moore court: compared the similar language within the Indiana and federal constitutions; observed the fact-sensitive nature of using the two-pronged test which had evolved; and concluded that the Blockburger same-elements test would "yield clear and consistent results." Id. at 1236. As noted by Chief Justice Randall T. Shepard in Second Wind for the Indiana Bill of Rights, 22 IND. L. REV. 575, 578 (1989), the courts' ability to address state constitutional claims is dependent upon litigants properly raising and analyzing the claims. Russell has properly raised the historical existence of a separate and distinct double jeopardy analysis based upon the Indiana Constitution.
Russell contends that Indiana's double jeopardy analysis predates the federal analysis: "Long before the United States Supreme Court's holding that the federal double jeopardy clause was applicable to the states through the Fourteenth Amendment, Indiana had begun its distinct double jeopardy analysis." Brief of Appellant at 6 (citing Benton v. Maryland, 395 U.S. 784 (1969)). Arguably, the state and federal analyses converged after Benton. Thus, in essence, Russell argues that Indiana used the federal analysis as it evolved and expanded in the direction preferred by Indiana. After Dixon announced the retraction of federal double jeopardy protections, Indiana can still trace a line of double jeopardy protections which began before the federal and state lines converged. The pronouncement in Dixon marks the divergence of the lines which were intertwined for a period of time.
As did the appellant in Moore, Russell admits that her double jeopardy claim would fail under the Blockburger same-elements test. She makes her argument strictly under the Indiana Constitution. Russell persuasively, though not in great detail, argues that an historical basis exists for a separate and distinct double jeopardy analysis under the Indiana Constitution.5
Russell notes that, as early as 1856, Indiana's double jeopardy clause was invoked to discharge a defendant. Miller v. State, 8 Ind. 325 (1856) (implicitly overruled by State v. Walker, 26 Ind. 346 (1866)); see also Chief Justice Shepard, Second Wind for the Indiana Bill of Rights, 22 IND. L. REV. at 578. As recognized by Russell, Indiana's double jeopardy clause was first used in the context of barring successive prosecutions. Later the clause was applied to multiple punishments. In Kokenes v. State, 213 Ind. 476, 13 N.E.2d 524 (1938), the court relied upon the double jeopardy clause of the Indiana Constitution, as well as earlier Indiana cases, to support a finding that a defendant should not be convicted of both the greater and the lesser included offenses of robbery, for a single act of robbery. The Kokenes court quoted an 1879 decision approvingly:
1. When the facts constitute but one offence, though it may be susceptible of division into parts, as in larceny for stealing several articles of property at the same time, belonging to the same person, a prosecution to final judgment for stealing a part of the articles will be a bar to a subsequent prosecution for stealing any other part of the articles, stolen by the same act.
2. When the facts constitute two or more offences, wherein the lesser offence is necessarily involved in the greater--as an assault is involved in an assault and battery, as an assault and battery is involved in an assault and battery with intent to commit a felony, and as a larceny is involved in a robbery--and when the facts necessary to convict on a second prosecution would necessarily have convicted on the first, then the first prosecution to a final judgment will be a bar to the second.
3. But when the same facts constitute two or more offences, wherein the lesser offence is not necessarily involved in the greater, and when the facts necessary to convict on a second prosecution would not necessarily have convicted on the first, then the first prosecution will not be a bar to the second, although the offences were both committed at the same time and by the same act.
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