November 2008 Posts

Enhancement of multiple counts with same weapon inappropriate

The following post is from Andy Krull of the Indiana Public Defender Council in response to a double jeopardy inquiry.

TITLE: Miller v. State
CITE: (6-25-03), Ind., 790/437
SUBJECT: Double jeopardy – repeated use of single weapon to enhance several convictions
HOLDING: Ct. has recognized a series of statutory construction & common law that supplements constitutional protections afforded by Indiana Double Jeopardy Clause. Pierce v. State, 761/826 (Ind. 2002). Pierce applied rule that two crimes may not be enhanced by same bodily injury. This was application of broader rule previously expressed by Justice Sullivan prohibiting conviction & punishment for enhancement of crime where enhancement is imposed for “very same behavior or harm” as another crime for which D has been convicted & punished. Repeated use of weapon to commit multiple separate crimes is not “the very same behavior” precluding its use to separately enhance resulting convictions. Rather, as here, use of single deadly weapon during commission of separate offenses may enhance level of each offense. Gates v. State, 759/631 (Ind. 2001). D’s convictions for class B felony criminal confinement, class B felony robbery, & two counts of class A felony criminal deviate conduct did not violate Indiana Double Jeopardy Clause. Held, transfer granted, memorandum opinion of Ct.App. vacated, judgment affirmed; Sullivan, J., concurring.

RELATED CASES: Rawson, App., 865/1049 (because D’s conduct involved multiple victims & separate & distinct acts, there was no DJ violation for convictions of attempted aggravated battery, intimidation & criminal recklessness); Marshall, App., 832/615 (Ct. affirmed multiple enhancements on three counts of child molesting even though D only held knife to victim’s throat once); Rodriguez, App., 795/1054 (enhancing D’s convictions for Rape as class A felony & Criminal Confinement as class B felony because a shotgun was used during both crimes did not violate prohibition against double jeopardy)

Holloway, App., 773/315 (D’s convictions for both criminal deviate conduct & rape as Class A felonies violated common law double jeopardy principles because serious bodily injury supporting both convictions stemmed from single criminal episode, despite fact that multiple blows were delivered)

Spears, 735/1161 (Ct. reduced Class A robbery conviction to C felony because jury used same evidentiary facts to support murder & elevated robbery convictions)

Walker, App., 758/563 (it was improper for evidence of use of handgun to be used to enhance both voluntary manslaughter conviction & robbery conviction)

TITLE: Vandergriff v. State
CITE: (5th Dist., 8-6-04), Ind.App., 812/1084
SUBJECT: Double jeopardy claim – battery & neglect of dependent
HOLDING: D’s convictions for neglect of dependent & battery of his infant son (CV) did not violate Indiana Double Jeopardy Clause. D challenged his conviction under actual evidence test, which prohibits multiple convictions if there is a reasonable possibility that evidentiary facts used by fact-finder to establish essential elements of one offense may also have been used to establish essential elements of second challenged offense. Davis v. State, 770/319 (Ind. 2002). Here, even assuming jury relied on same incident to establish two offenses, additional evidentiary facts were required to prove each offense. D’s act of touching CV establishes that he knowingly placed CV in situation that endangered his life or health, resulting in bodily injury, & that D knowingly touched CV in a rude, insolent or angry manner, resulting in bodily injury. Yet, to find D guilty of neglect, jury also had to find that CV was a dependent & that D had the care, custody, & control of CV. To find D guilty of Class D felony battery, jury was required to find that CV was less than fourteen years of age & D was at least eighteen years of age. While same evidence may have established that CV was a dependent & under fourteen years of age, clearly additional evidentiary facts were required to prove that D had the care, custody & control of CV & that D was at least eighteen years of age. Thus, there was no constitutional double jeopardy violation. Considering statutes, charging instruments, evidence & arguments of counsel, Ct. also held that two convictions did not violate common law rule prohibiting dual convictions for same act. Facts supporting these two crimes were separate & distinct, thus there was no common law double jeopardy violation. Held, judgment affirmed.

Howard 481/1315 (convictions for both neglect & battery violated double jeopardy; cause remanded with instructions to vacate sentence imposed for battery).

Thursday, November 20th, 2008 | Posted in Research | No Comments »

Put the Judge on Notice of CR4 Problems

The following post is from Stacy Uliana of the Indiana Public Defender Council in response to a Criminal Rule 4 question.

TITLE: Chambers v. State
CITE: (4th Dist.; 05-3-06), Ind.App., 848/298
SUBJECT: Word “objection” not required to preserve issue for appeal
HOLDING: Although defense counsel did not use the word “objection” when the State requested a continuance of the trial date beyond the 70-day speedy trial limit, the defense counsel’s statement reminding the judge that the defendant had filed a speedy trial request was in nature of an objection and was sufficient to preserve issue for appeal. Held, convictions reversed.

Thursday, November 20th, 2008 | Posted in Research | No Comments »

Search warrant – probable cause supported by trash search

Rotz v. State, 45A03-0709-CR-453

3rd Dist.; 10-06-08, Ind.App. 894 N.E.2d 989

Attorney: James E. Foster

Holding: Trial court properly denied Defendant’s motion to suppress. Extrinsic evidence is inadmissible when an affidavit in support of a search warrant is attacked as not showing probable cause on its face. However, where Defendant alleges that the affidavit contained misstatements and omissions, State may offer evidence to rebut such allegations. Here, in applying for search warrant, the officer filed an affidavit stating, in part, that: (1) a shipment from a company known to supply propagation, irrigation, lighting and various other products for marijuana grow operations was delivered to Defendant’s home; (2) Defendant has a criminal history including an arrest for possession of marijuana in Indiana and possession of narcotics equipment in Florida; (3) blinds were drawn and basement widows on the north and south side of Defendant’s home were covered. The officer also conducted a trash search in which he found marijuana stems and leaves, an empty container of Zig Zag rolling papers, and burnt hand-rolled marijuana cigarette butts. The fact that the officer failed to include in the affidavit that the shipment was received sometime in 2005 and the outcomes and dates of the arrests did not invalidate the warrant. The officer also alleged that marijuana grow operations continue for long periods of time, often several years. Although the shipment to Defendant’s house alone may not have constituted reasonable suspicion to search Defendant’s trash, Defendant’s prior arrests for drug offenses and the observation of Defendant’s windows being covered corroborated the shipment and established reasonable suspicion that Defendant was growing marijuana. Thus, the results of the trash search properly established probable cause for the search warrant. Held, judgment affirmed.

Thursday, November 20th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Waiver of counsel – defendant with questionable mental illness

Drake v. State, 77A04-0803-CR-158

4th Dist.; 10-28-08, Ind.App. 895 N.E.2d 389

Attorney: John Pinnow

Holding: Defendant did not voluntarily, knowingly and intelligently waive his right to counsel. Court considers four factors when determining whether a knowing and intelligent waiver of counsel occurred: (1) the extent of the court’s inquiry into the defendant’s decision, (2) other evidence in the record that establishes whether defendant understood the dangers and disadvantages of self-representation, (3) defendant’s background and experience, and (4) the context of defendant’s decision to proceed pro se. Poynter v. State, 749 N.E.2d 1122, 1126 (Ind. 2001). Here, trial court warned Defendant that “there are several procedural matters when you are trying a case that you won’t know what to do. . . you don’t have the expertise to select a jury for example.” Also, trial court warned that Defendant could not simultaneously represent himself and claim that he has no idea what is going on during the proceedings. But, trial court did not advise Defendant of any other disadvantages of proceeding without counsel or any of the advantages that counsel could provide. Moreover, Defendant’s only prior contacts with the criminal justice system were three guilty pleas to misdemeanors during which he was represented. Also, trial court originally granted a motion for competency evaluation, which was withdrawn by Defendant when proceeding pro se. Defendant’s father believed Defendant suffered from manic depression and was a “conspiracist in his thought process.” But, Defendant’s decision to proceed pro se was tactical in nature because he thought the public defender worked with the prosecutor and he would not be advised of everything if he was represented.

A trial court does not have to order a competency evaluation every time a defendant asserts his or her right to proceed without counsel. But, the sparse record, coupled with Defendant’s questionable mental capacity, leads to conclusion that trial court should have inquired further in Defendant’s background, education and abilities. Thus, Defendant did not make a voluntary, knowing and intelligent waiver of his right to counsel. Held, judgment reversed.

NOTE: In dicta, Court of Appeals suggests sixteen advisements and inquiries that should be conducted before a defendant is permitted to proceed pro se.

Thursday, November 20th, 2008 | Posted in Indiana Court of Appeals | No Comments »

Denial of request to file belated appeal affirmed

Newton v. State, 18S00-0804-CR-151

10-07-08, Ind. 894 N.E.2d 192

Attorney: L. Ross Rowland

Holding: Trial court lacked authority to grant request for belated appeal from prior order denying appeal, under Indiana Post Conviction Rule 2. Trial court initially granted motion, but then sua sponte rescinded order and dismissed appeal because Defendant did not timely file an appeal from trial court’s denial. Thus, trial court lacked authority to grant Defendant’s untimely request for permission to file belated appeal. Held, judgment affirmed. Shepard, C.J. and Sullivan, J., filed separate concurring opinions; Rucker, J., dissenting, would allow case to proceed because Defendant’s sixty-year sentence for conspiracy and confinement has never received appellate scrutiny.

Thursday, November 20th, 2008 | Posted in Indiana Supreme Court | No Comments »

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