Jeffrey A. Cleary v. State of Indiana
23 N.E.3d 664
| Ind. | 2015Background
- On Nov. 4, 2010 Jeff Cleary, after heavy drinking, struck a service vehicle and killed the driver; his BAC was .24. He was charged with multiple OWI-related offenses (Counts I–V) and several infractions (Counts VI–VIII).
- First jury (Dec. 2011): convicted Cleary of two lesser OWI misdemeanors (Counts IV–V) and some infractions, but deadlocked on the greater felony/counts (Counts I–III).
- Trial court denied Cleary’s motion to force entry of judgment on the guilty verdicts and allowed the State to retry Cleary on all counts; retrial set for Aug. 2012.
- Second jury convicted Cleary on Counts I–V and found liability on infractions; the court entered judgment and imposed a 14-year sentence on the Class B felony (Count I).
- Cleary appealed claiming statutory and constitutional double jeopardy violations based on the first jury’s guilty verdicts on lesser offenses and the deadlock on greater counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Cleary) | Held |
|---|---|---|---|
| Whether Indiana Code § 35-41-4-3(a) (implied acquittal) barred retrial on greater offenses when first jury convicted on lesser-included offenses but deadlocked on greater ones | Statute does not bar retrial because a conviction under the statute requires entry of judgment; no judgment had been entered and a hung jury on greater counts does not imply acquittal | The guilty verdicts on lesser offenses implied acquittals of greater offenses; trial court was required to enter judgment, so retrial was barred | Held for State: implied-acquittal provision does not apply where jury affirmatively deadlocked on greater offenses; retrial permissible |
| Whether trial court was required under Ind. Code § 35-38-1-1 to enter judgment on the lesser guilty verdicts immediately, which would have barred retrial | The court had discretion to postpone entry pending resolution of legal issues; brief postponement was justified | Court should have entered judgment promptly; withholding judgment improperly allowed retrial | Held for State: statute does not compel entry when a new trial is granted after a hung jury; postponement here was lawful |
| Whether retrial after a hung jury violated Indiana constitutional double jeopardy (Art. 1, § 14) under Richardson tests (statutory-elements or actual-evidence) | Retrial after hung jury is a continuation of jeopardy (continuing-jeopardy doctrine); no prior acquittal existed so Richardson’s tests do not apply | Retrial exposed Cleary to double jeopardy because guilty lesser verdicts at first trial effectively acquitted greater counts | Held for State: continuing-jeopardy permits retrial after hung jury; no double jeopardy violation under Indiana Constitution |
| Whether Garrett (extension of Richardson) requires application of the actual-evidence test here | Garrett applies where an acquittal on one charge and retrial on another raise risk State used evidence from acquitted charge; not implicated where there was no acquittal on greater counts | Garrett supports blocking retrial because lesser verdicts functioned as acquittals | Held for State: Garrett does not apply because Cleary was not acquitted on the greater counts and there was only one criminal act at issue; no ‘second bite’ concern |
Key Cases Cited
- Green v. United States, 355 U.S. 184 (U.S. 1957) (jury verdict on lesser offense can operate as implied acquittal of greater charge when jury is silent on greater charge)
- Price v. Georgia, 398 U.S. 323 (U.S. 1970) (extends Green: implied acquittal forbids retrial when jury convicted of lesser-included and was silent on greater charge)
- Johnson v. Louisiana, 406 U.S. 356 (U.S. 1972) (hung jury does not amount to acquittal; retrial permitted)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (two-part test—statutory-elements and actual-evidence—for when offenses are the same under Indiana Constitution)
- Garrett v. State, 992 N.E.2d 710 (Ind. 2013) (applies Richardson’s actual-evidence test where there is an acquittal on one charge and retrial on another after a hung jury)
- Griffin v. State, 717 N.E.2d 73 (Ind. 1999) (retrial after hung jury is continuation of jeopardy; no double jeopardy violation)
- Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005) (court may decline to enter judgment after guilty verdict on lesser-included when jury deadlocks on greater charge; retrial allowed)