Smith v. State

• Decision Date: 02 April 2002
• Docket Number: No. 48S00-0009-CR-550.,48S00-0009-CR-550.
• Citation: 765 N.E.2d 578
• Parties: Omond J. SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

765 N.E.2d 578

Omond J. SMITH, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 48S00-0009-CR-550.

Supreme Court of Indiana.

April 2, 2002.

David W. Stone, IV, Anderson, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. BOEHM, Justice.

Omond Smith was convicted of murder, possession of a handgun without a permit, and possession of a handgun by a convicted felon. He was adjudged a habitual offender and sentenced to a total of 103 years imprisonment. In this direct appeal, Smith contends the State was judicially estopped from seeking an instruction on accomplice liability because it agreed to a guilty plea from another defendant on a theory of the facts that was allegedly inconsistent with Smith's being an accomplice to the killing. He also contends he did not receive effective assistance of counsel. We hold that judicial estoppel based on an inconsistent position in an earlier case does not apply against the State in a criminal case where the parties to the two actions are not the same.

Factual and Procedural Background

Smith was charged with the murder of David Riggs. Smith's first trial resulted in a conviction that was reversed by this Court. Smith v. State, 721 N.E.2d 213 (Ind.1999). After the first trial, Tommy Lampley pleaded guilty to the Class C felony of Assisting a Criminal and became the principal witness in Smith's retrial. The State proceeded on the theory that Smith killed Riggs, but also tendered a jury instruction on accomplice liability, apparently believing the jury might find that Lampley had killed Riggs and Smith had aided Lampley. The only evidence supporting this theory was the testimony of Randall Byrd, who testified that Lampley had told him that Lampley killed Riggs, but would say that Smith was the killer. Although not evidence, during Lampley's testimony Smith accused Lampley of the killing in an outburst before the jury.

The following quite different version of these events is derived largely from Lampley's testimony. Some time after midnight on January 11, 1997, Lampley was walking to a Village Pantry store in Anderson, Indiana, when Smith drove up in a black truck and offered Lampley a ride. Lampley accepted, and Smith drove them to Smith's house at 2223 Park Avenue. According to Lampley, Lampley remained in the truck as Smith entered the house. After waiting several minutes, Lampley got out of the truck and stuck his head into the house, where he observed Riggs sitting on the couch and Smith walking around the living room, apparently looking for something. Smith then requested and received Riggs' permission to search Riggs, and discovered a bag of crack cocaine in Riggs' pocket. Smith accused Riggs of stealing the cocaine, a scuffle ensued, and Smith retrieved a brown suede bag. Lampley testified he saw the handle of a gun sticking out of the bag, backed away from the house, and began walking toward nearby railroad tracks.

Lampley soon heard footsteps behind him, turned around, and saw Riggs running and then hiding behind a bush. Smith soon pulled up in the black truck, pointed the headlights at the bush, and exited the truck, gun in hand. Lampley continued to walk away, and soon heard gunshots. After taking cover behind a dumpster for fifteen to twenty minutes, Lampley returned to find Riggs lying in the street, covered with blood. Riggs had been shot four times and died as a result of the wounds.

In the retrial, Smith was convicted of murder, possession of a handgun without a permit, and possession of a handgun by a convicted felon. This appeal followed.

I. Instruction on Accomplice Liability

The State tendered and received an accomplice liability instruction that "[a] person who knowingly or intentionally aids, induces or causes another person to commit an offense, commits that offense even if the other person has not been prosecuted for the offense, has not been convicted for the offense or has been acquitted of the offense." Smith contends that because the State accepted Lampley's guilty plea under Indiana Code section 35-44-3-2, which has been interpreted to apply to people who did not actively participate in the crime itself, but who assisted a criminal after he or she committed a crime,¹ the doctrine of judicial estoppel precluded an instruction in Smith's trial that was based on Smith's aiding Lampley in the killing.

Smith correctly points out that judicial estoppel has been held to prevent a party from asserting a position in a legal proceeding inconsistent with one previously asserted. Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 (Ind.Ct.App.1998),trans. denied. However, judicial estoppel in this state has been applied only in civil cases, and neither this Court nor the Court of Appeals has applied the doctrine against the State in a criminal case. A few criminal cases have noted the claim that judicial estoppel precluded the State from asserting a particular contention, but in each case the elements of estoppel were found wanting. As a result, none of these decisions considered whether the doctrine may be invoked against the State in a criminal case.² Indeed, although a handful of jurisdictions outside Indiana theoretically allow judicial estoppel against the government in criminal cases, we are aware of no case in which the doctrine has been successfully invoked against the government. In State v. Towery, 186 Ariz. 168, 920 P.2d 290, 304 (.1996), cited by many courts as the leading case allowing judicial estoppel against the State in a criminal proceeding, the court conditioned application of judicial estoppel on (1) identity of parties; (2) identity of question involved; and (3) success in the prior judicial proceeding by the party asserting the inconsistent position.³ Ultimately, the court found no judicial estoppel because the third condition was not met. Id. at 306. As described by the Arizona Supreme Court, the doctrine would not help Smith because of the lack of identity of parties in both this case and Lampley's prosecution. See also Hoover v. State, 552 So.2d 834, 839 (Miss.1989)

(judicial estoppel not applicable against the state in criminal cases where the parties are not identical). In People v. Gayfield, 261 Ill.App.3d 379, 199 Ill.Dec. 123, 633 N.E.2d 919, 925 (1994), the court, without discussion of whether judicial estoppel should apply in a criminal proceeding, rejected the doctrine on the facts of the case, concluding that "there was no certain position taken at one proceeding that was contrary to another proceeding." Accord Commonwealth v. Lam, 453 Pa.Super. 497, 684 A.2d 153, 164 (1996).

Federal courts have been even less receptive to the application of judicial estoppel against the government in criminal proceedings. See United States v. Kattar, 840 F.2d 118, 129-30 n. 7 (1st Cir.1988)

(Judicial estoppel is an "obscure doctrine" that has never been applied against the government in a criminal proceeding.); Nichols v. Scott, 69 F.3d 1255, 1272 (5th Cir.1995) (judicial estoppel not constitutionally mandated and has never been applied against the government in a criminal proceeding); United States v. Garcia, No. 99-10262, 2000 WL 286285, at *1, 2000 U.S.App. LEXIS 4178, at *4 (9th Cir. Mar. 16, 2000) ("Given the unique status of the government as a litigant, and the great degree of latitude that the government enjoys in prosecuting the law and striking plea bargains, we are simply not persuaded that this is a case in which to [apply judicial estoppel].") (citations omitted).

We think the purpose of judicial estoppel is not well served by applying it against the government in criminal cases. As the Garcia court noted, the government possesses unique status as a litigant and enjoys a great degree of latitude in prosecuting the law and striking plea bargains. The purpose of judicial estoppel is to protect the integrity of the judicial process rather than to protect litigants from allegedly improper conduct by their adversaries. Wabash Grain, 700 N.E.2d at 238. It does so by preventing a party and its counsel from playing fast and loose with the courts. GEICO Ins. Co. v. Rowell, 705 N.E.2d 476, 481 (Ind.Ct.App.1999). We do not believe the acceptance of a plea bargain from Lampley on one theory of the case and the prosecution of Smith in a separate action on an alternate theory can be construed as "playing fast and loose" with the courts.

Perhaps more importantly, if, after one defendant is convicted, additional evidence becomes available suggesting the guilt of a second, but on an inconsistent theory, some type of relief may or may not be afforded the first defendant under existing doctrines of law. Immunization of the second defendant due to a mistake in the prosecution of the first, however, is not the appropriate remedy. Accordingly, we hold that where the parties to the criminal proceedings in question are not identical, judicial estoppel does not apply against the State. Here the alleged inconsistency is between the State's position in this case and its "prevailing" by obtaining a guilty plea on an inconsistent theory in Lampley's. We leave for another day the issue of whether judicial estoppel can be applied against the State in a criminal case if the parties in the prior suit are the same, i.e., in a subsequent prosecution of the same defendant.

Smith next contends that even if the instruction was not precluded by judicial estoppel, it was fatally incomplete and misleading. Smith argues that the instruction given, which tracks Indiana Code section 35-41-2-4, should have been supplemented by the Indiana pattern jury instruction for accomplice liability, which adds the following:

To convict the defendant, the State must have proved each of the following elements:

1. [name other person] committed the crime of [name crime aided, induced or caused] in that [name other person] [insert

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