Thomas v. State
| Decision Date | 13 March 2002 |
| Docket Number | No. 34A04-0106-CR-230.,34A04-0106-CR-230. |
| Citation | 764 N.E.2d 306 |
| Parties | Reginald J. THOMAS, Appellant-Defendant, v. STATE of Indiana, Appellee-Appellee. |
| Court | Indiana Appellate Court |
John (Jack) F. Crawford, Crawford & DeVane, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Reginald Thomas ("Thomas") was charged and pled guilty to conspiracy to deliver cocaine in Cass Superior Court. He was also charged with dealing in cocaine,1 as a Class B felony, in Howard Superior Court, and that same, alleged offense was also one of the overt acts charged in the conspiracy in Cass Superior Court. He filed a motion to dismiss the charge in Howard Superior Court, which was denied. He has filed this interlocutory appeal raising one issue: whether the trial court erred when it denied his motion to dismiss under the Indiana Double Jeopardy Clause, which protects against a second prosecution for the same offense.
We reverse.
On January 14, 1999, Thomas was charged with dealing in cocaine in Howard Superior Court. The charging information reads as follows:
[O]n or about the 19th day of November, 1998, at the County of Howard and the state of Indiana, REGINALD J. THOMAS, did then and there unlawfully, knowingly, or intentionally deliver cocaine, pure or adulterated in an aggregate weight of less than three (3) grams to Confidential and Reliable Informant 5662, at or near the Bob Evans Restaurant, located at 1850 U.S. 31 By Pass South, Kokomo, Howard County, Indiana.
Appellant's App. p. 7 (emphases added).
Also in January 1999, Thomas was charged with conspiracy to deliver cocaine,2 as a Class A felony, in Cass Superior Court. On March 2, 2000, an amended information was filed in Cass Superior Court and provided:
[O]n or about November, 1998—February, 1999, Reginald J. Thomas conspired with Confidential Informant 4981 to deliver cocaine to Cass County, State of Indiana, to-wit: from Cass County, Confidential Informant 4981 contacted Reginald J. Thomas in Indianapolis to arrange for Reginald J. Thomas to provide cocaine to Confidential Informant 4981, and thereafter (1) on November 19, 1998 both Confidential Informant 4981 and Reginald J. Thomas drove to Kokomo, Indiana to effect the transfer of cocaine from Reginald J. Thomas to Confidential Informant 4981; (2) on December 1, 1998 both Confidential Informant 4981 and Reginald J. Thomas drove to Westfield, Indiana to effect the transfer of more than three (3) grams of cocaine from Reginald J. Thomas to Confidential Informant 4981; and (3) on February 12, 1999, both Confidential Informant 4981 and Reginald J. Thomas drove to Westfield, Indiana to effect the transfer of more than three (3) grams of cocaine from Reginald J. Thomas to Confidential Informant 4981 and after each transfer of cocaine Confidential Informant 4981 returned to Cass County, Indiana.
Appellant's App. p. 22 (emphases added). Confidential Informant 5662 noted in the Howard County charging information is the same person as Confidential Informant 4981 in the Cass County charging information. Appellant's App. p. 57.
On March 2, 2000, Thomas pled guilty to the charge of conspiracy to deliver cocaine, as a Class A felony, in Cass Superior Court. At the guilty plea hearing he admitted to the charges set forth in the charging information and specifically admitted that he did in fact transfer cocaine to the Confidential Informant in Howard County on November 19, 1998, in furtherance of the conspiracy. Appellant's App. pp. 36, 38. He was sentenced to serve twenty years with sixteen years suspended, four years executed, and placed on probation for sixteen years.
On November 13, 2000, Thomas filed a motion to dismiss the pending charge of dealing in cocaine in Howard County. In his motion, Thomas argued that prosecution of the Howard County charge was barred by Article I, Section 14 of the Indiana Constitution because Thomas was previously prosecuted, convicted, and sentenced in Cass Superior Court for the same acts specified in the charging information in Howard County. The motion was denied and Thomas then filed a request for certification of the trial court's order denying his motion to dismiss for interlocutory appeal. The trial court granted his request, and on June 11, 2001, our court accepted jurisdiction of this interlocutory appeal.
Thomas argues that the trial court erred when it denied his motion to dismiss because he has been convicted and punished in Cass County for conspiracy to deliver cocaine upon the same evidence used to charge him with dealing in cocaine in Howard County; therefore, prosecution of Thomas in Howard County for dealing in cocaine is barred by the Indiana Double Jeopardy Clause. Because the issue before us is a question of law, we review the matter de novo. Wilcox v. State, 748 N.E.2d 906, 909 (Ind.Ct.App.2001), trans. denied.
Article I, Section 14 of the Indiana Constitution provides "[n]o person shall be put in jeopardy twice for the same offense." The Double Jeopardy Clause protects against a second prosecution for the same offense after conviction. Berry v. State, 725 N.E.2d 939, 944 (Ind.Ct.App. 2000).
Prohibitions against double jeopardy protect the integrity of jury acquittals and the finality interest of defendants, shield against excessive and oppressive prosecutions, and ensure that defendants will not undergo the anxiety and expense of repeated prosecution and the increased probability of conviction upon re-prosecution.
Richardson v. State, 717 N.E.2d 32, 37 (Ind.1999) (). In Richardson, our supreme court concluded that two convictions are the same offense in violation of the Indiana Double Jeopardy Clause if "with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Id. at 49. These tests are referred to as the "statutory elements test" and the "actual evidence test." Id. at 50, 52.
Under the statutory elements test, "[e]ach offense must contain at least one element which is separate and distinct from the other offense so that the same evidence is not necessary to convict for both offenses." Id. at 52.3 Under the actual evidence test, to show that the two challenged offenses constitute the same offense "a defendant must demonstrate 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." Id. at 53.
In cases decided after Richardson involving claims of a double jeopardy violation where the defendant was convicted of both conspiracy and the underlying crime, our courts appear to focus their inquiry under the "actual evidence" test on what evidence the jury was instructed to consider when determining the defendant's guilt on the charge of conspiracy. See e.g., Long v. State, 743 N.E.2d 253 (Ind.2001); Lundberg v. State, 728 N.E.2d 852 (Ind. 2000); Chavez v. State, 722 N.E.2d 885 (Ind.Ct.App.2000). For example, in Lundberg, the defendant was convicted of murder and conspiracy to commit murder. Id. at 852. Although evidence was presented of several overt acts, the jury was instructed that it could consider a single overt act—that the defendant shot the victim—in order to find the defendant guilty of conspiracy. Id. at 855. Our supreme court concluded that "[a]lthough the State presented evidence of other overt acts that might support a conviction of conspiracy, it is reasonably possible that the jury used the same evidence to establish the essential elements of both murder and conspiracy to commit murder[;]" therefore, the convictions for murder and conspiracy to commit murder violated the Indiana Double Jeopardy Clause. Id.
However, we cannot perform the Lundberg analysis here because Thomas was not tried for, but rather pled guilty to conspiracy; therefore, the only "actual evidence" is the factual basis established at the Cass County guilty plea hearing.4 Thomas argues that the tests set forth in Richardson do not address the situation in the instant case, contending that "Richardson v. State, leaves us with the somewhat open question of what is the appropriate double jeopardy test under the Indiana Constitution to determine if a subsequent prosecution is barred after a guilty plea to either the conspiracy charge or the underlying offense." Br. of Appellant at 10.
In his opinion concurring in the Richardson result, Justice Boehm argued that Article I, Section 14 should be invoked only as a bar to subsequent prosecutions, contending that "[m]ixing the multiple punishment and subsequent prosecution strands, as has occurred in federal double jeopardy law, results in an unsatisfactory compromise that breeds confusion and impairs the important values underlying the Double Jeopardy Clause." 717 N.E.2d at 57-58 (Boehm, J., concurring opinion). This is readily apparent in this case where the "actual evidence" test is nearly impossible to apply because one conviction is the result of a guilty plea and in the second prosecution, Thomas filed a motion to dismiss. No trial has been held and only the Cass County factual basis evidence has been presented. In his opinion in Richardson, Justice Boehm argued that in cases involving subsequent prosecutions, like the instant case, Indiana should follow the "same conduct" analysis applied in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).5 Thomas urges us to apply that test in this case.
In Grady, the defendant...
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