Spears v. State
| Citation | 735 N.E.2d 1161 |
| Decision Date | 06 October 2000 |
| Docket Number | No. 49S00-9908-CR-430.,49S00-9908-CR-430. |
| Parties | Joshua E. SPEARS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Supreme Court of Indiana |
Kathleen M. Sweeney, Indianapolis, Indiana, Attorney for Appellant.
Karen Freeman-Wilson, Attorney General of Indiana, Eileen Euzen, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Joshua E. Spears was convicted of murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony. The trial court merged the felony murder and the murder convictions and the conspiracy to commit robbery and the robbery convictions, and sentenced Spears to sixty-five years for murder to be served consecutively with fifty years for robbery. In this direct appeal, Spears contends that (1) the Indiana Double Jeopardy Clause requires that his Class A felony robbery conviction be reduced to a Class C felony, and (2) the trial court found an improper aggravating circumstance, failed to find significant mitigating circumstances supported by the record, and imposed a manifestly unreasonable sentence. We remand to the trial court with instructions to reduce the robbery conviction to a Class C felony and otherwise affirm the judgment of the trial court.
In August of 1998, Jeremy Gross was an employee of the Convenient Food Mart in Indianapolis. Gross planned to rob the store and invited Spears and James Learned to join him. Learned declined, but at approximately 2:40 a.m. on August 26, Spears and Gross approached the Convenient Mart where Christopher Beers was the sole employee on duty. The doors of the store were locked from 12:00 a.m. to 6:00 a.m., but Beers could allow people to enter by "buzzing" them in. Immediately after Beers allowed Gross and Spears to enter, Gross, who was following Spears, raised a handgun, shot Beers in the abdomen, and continued shooting at the fallen clerk as he walked behind the counter. Spears initially stood beside Gross when he opened fire but then ran to the video recorder serving four surveillance cameras. When the eject button did not work, Spears took the entire VCR. Spears and Gross then grabbed $650 from the cash register, disabled the two telephones in the building, and fled. Beers followed outside and attempted to use the payphone. He managed to take the phone off the hook, but then collapsed on the sidewalk, where he died of multiple gunshot wounds.
Spears and Gross disposed of the VCR and gun in a nearby pond. They then went to Learned's trailer to count their money. Witnesses, including a passing motorist, led police to Gross, who later confessed and implicated Spears. Spears was charged with murder, felony murder, conspiracy to commit robbery, and robbery as a Class A felony.1 A jury found him guilty of all counts. The trial court merged the felony murder and murder convictions, also merged the conspiracy to commit robbery and robbery convictions, and then sentenced Spears to sixty-five years for murder and fifty years for robbery, to be served consecutively.
Spears contends that his dual convictions for murder and robbery as a Class A felony violate the Indiana Double Jeopardy Clause. He bases his claim on the "actual evidence test" enunciated by this Court in Richardson v. State, 717 N.E.2d 32 (Ind.1999). The Indiana Double Jeopardy Clause prohibits multiple convictions if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Richardson, 717 N.E.2d at 53; accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind.1999). Serious bodily injury differentiates the Class A felony from robbery as a Class C felony. Ind.Code § 35-42-5-1 (1998). Where a robbery conviction is elevated to a Class A felony based on the same serious bodily injury that forms the basis of a murder conviction, the two cannot stand. Logan v. State, 729 N.E.2d 125, 136-37 (Ind.2000); Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.2000); Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.1999); Hampton v. State, 719 N.E.2d 803, 808-09 (Ind.1999).
Here, the jury was instructed that to find Spears guilty of robbery as a Class A felony the State had to prove that he knowingly took property from another person by putting that person in fear or using or threatening the use of force and that serious bodily injury resulted to the other person. The State argues that Spears' claimed violation of the actual evidence test should fail because "the jury could have reasonably applied different evidence to support each offense." Specifically, the State points to the fact that Gross fired several shots at Beers. However, the charging information, which was read to the jury as part of the instructions, alleged that the serious bodily injury was the "death" of Christopher Beers. Moreover, no other serious bodily injury was asserted as a basis for the elevation of the robbery during closing argument. Under these circumstances there is at least a reasonable possibility—if not a near certainty— that the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony. The fact that more than one shot was fired does not alter this conclusion. Absent a specific instruction requiring the jury to base a Class A felony robbery conviction on a serious bodily injury other than death, there is a reasonable possibility that the jury used the same evidentiary facts to support a murder conviction and a Class A robbery conviction. Accordingly, the robbery conviction must be reduced to a Class C felony.2
The State argues that the Indiana Double Jeopardy claim should fail for a number of novel reasons, none of which have merit. First, the State contends the state constitutional argument is waived because Spears "failed to make any separate analysis based on the state constitution and failed to provide an analysis of the `statutory elements' component in Richardson."3 Spears cited the applicable provision of the Indiana Constitution—Article I, Section 14—and this Court's landmark opinion in Richardson interpreting that provision. Spears noted that the "actual evidence" test set forth in Richardson and a comparison of the statutory elements were alternative means of reviewing a state constitutional double jeopardy claim. He presented a cogent argument citing cases that have applied the "actual evidence" test. There was no need to provide any analysis of the alternative ground based on the statutes alone. Spears' dual convictions do not violate the statutory elements test, and Spears made no such claim. His contention based on the actual evidence test was argued and preserved.
Next, the State contends that this case should be remanded to the trial court "for the trial court's ruling on whether the two crimes are the same for double jeopardy purposes." The State contends that this "intensely factual determination" is best made by the trial court, then reviewed by this Court for an abuse of discretion. It is true that a determination of the "reasonable possibility" component of the Richardson test turns on an analysis of the evidence. The instructions and the arguments of counsel are also relevant to that determination. Although we have not expressly ruled on the standard of review in double jeopardy cases, we have frequently treated reasonable possibility as a matter of law for de novo review by the appellate courts. See, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind.2000); Cutter v. State, 725 N.E.2d 401, 410 (Ind. 2000). The State points out that we have deferred to trial courts' findings as to the existence vel non of a "serious evidentiary dispute" for the purpose of instructions on lesser included offenses. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998). Here, we have no finding by the trial court. Even if we were to adopt a standard of review analogous to that applied to the instruction issue, de novo review is appropriate where the trial court made no finding. Cf. id.
Finally, the State argues that, should this Court find a double jeopardy violation, the proper remedy is remand for a retrial on the robbery count. The State cites no double jeopardy precedent for this result, nor do we find any. To the contrary, both before and after Richardson, the remedy for double jeopardy violations has routinely been to reduce or vacate one of the convictions. Turnley v. State, 725 N.E.2d 87, 91 (Ind.2000); Cutter, 725 N.E.2d at 410, State's pet. for reh'g denied; Wise, 719 N.E.2d at 1201; Richardson, 717 N.E.2d at 55; Bunch v. State, 697 N.E.2d 1255, 1257 (Ind.1998). The State was given one opportunity to try Spears on the charges it selected, the evidence it presented, and the closing argument it chose to make. It is not entitled to a second bite of the apple.
Spears attacks the trial court's findings of aggravating and mitigating circumstances in its sentencing statement. He also contends that the aggregate sentence is manifestly unreasonable.
The trial court found four aggravating circumstances, no mitigating circumstances, and imposed maximum, consecutive sentences. The trial court found the following aggravating circumstances: (1) a prior history of juvenile delinquency, (2) prior attempts at rehabilitation had failed, (3) Spears' involvement with street gangs, and (4) "the facts of this particular case." The trial court further explained that the last of these was based on (1) "the degree of planning that was involved before the commission of the crime," (2) the crime being "an absolute brutal execution of Chris Beers and that it was done in connection with a Robbery," and (3) "the substantial steps [that] were taken to conceal the...
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