Anthоny C. DURHAM, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 684S235
Supreme Court of Indiana
June 15, 1984
Rehearing Denied July 27, 1984.
464 N.E.2d 321
The judge also ordered that appellant‘s sentences be served consecutively. He acted well within his discretion in doing so, as the same circumstances will support both enhancement of a sentence and an order that sentences be served consеcutively. “A court may, upon consideration of relevant facts and information, increase the basic penalties, impose consecutive sentences or both.” Humes v. State, (1981) Ind., 426 N.E.2d 379, 384. The sentences imposed in the instant case are not manifestly unreasonable.
Appellant further alleges error in the admission of a photograph of the body of the decedent, claiming it was unduly gruesome and inflammatory, and introduced by the State to provoke a reaction from the witness and unduly prejudice the jury against him.
The decision to admit photographic evidence rests with the trial judge, and will be reversed only upon the showing of an abuse of discretion. Loy v. State, (1982) Ind., 436 N.E.2d 1125; Crane v. State, (1978) 269 Ind. 299, 380 N.E.2d 89. The exhibit was introduced to reinforce Cozette‘s testimony that Anthony held an ashtray, and not the steel bar аs alleged by appellant. It was the only photograph depicting the ashtray. We find no abuse of discretion in the admission of the photograph, which was relevant to the issue of self-defense and explanatory of testimony from the witness stand. See Epps v. State, (1977) 267 Ind. 177, 369 N.E.2d 404; Ball v. State, (1980) Ind.App. 406 N.E.2d 305.
Appellant finally contends the trial court erred in admitting testimony of a prior threat made by him against the victims. The testimony was that appellant had verbalized his intent to kill Cozette and Anthony during an incident which occurred several weeks prior to the crimes for which he was convicted.
Evidence is relevant if it tends to prove an element of the charge. Wilson v. State, (1982) Ind., 432 N.E.2d 30. The trial court has broad discretion in ruling on the relevance of such evidence. Id.; Turpin v. State, (1980) 272 Ind. 629, 400 N.E.2d 1119. The testimony concerning a prior threat was probаtive on the issue of intent. We find no abuse of discretion in the court‘s admitting of the testimony.
The trial court is in all things affirmed.
All Justices concur.
Linley E. Pearson, Atty. Gen., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
HUNTER, Justice.
This case is before this Court upon the defendant‘s petition to transfer. He contends that the state should not have been allowed to refile the habitual offender count against him as the jury in a prior trial on the sаme underlying felony made a determination that he was not a habitual offender. The Court of Appeals, Second District, affirmed the trial court‘s action which allowed the state to reinstate the habitual offender charge against defendant. Durham v. State, (1984) Ind.App., 458 N.E.2d 287. Although we likewise affirm the trial court‘s action, we now grant transfer in order to consider how the United States Supreme Court‘s decision in Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, affects our case law on this issue. The opinion and decision of the Court of Appeals are hereby vacated. The decision of the trial court is affirmed.
The defendant was convicted by a jury of carrying a handgun without a license, a Class D felony,
We have not before considered a situation in which the state has refiled a habitual offender count along with refiling the underlying felony charges where the jury had previously found defendant not to be a habitual offender in a trial involving the same underlying felonies. However, we have considered other situations in which a habitual offender count is filed against a defendant using the same prior convictions that have been used in a previous habitual offender determination, and we have established certain general principles which guide us here. We have consistently emphasized the unique status of the habitual offender statute and held that it does not establish a separate offense, but rather provides for the imposition of a more severе sentence for the substantive crime charged. We have explained that habitual criminality is a status for the en-
We have further exрlained that the same prior convictions may be used to establish the status of habitual offender in a later trial when a jury in a previous case has found that the status of habitual offender was not established. We explained our reasoning for this in the following manner:
“It is clear that the habitual offender charge in the instant case is based upon the fact of two prior felony сonvictions. The action of the trial court at the previous habitual offender trial did not operate to ‘acquit’ defendant of the two prior felony convictions. Its action involved only the sentencing to be imposed upon the 1977 rape charge and a determination of defendant‘s status as an habitual offender based upon the evidence presented аt that time. It is clear that there is nothing to prevent the state from alleging the fact of the prior felony convictions again at the instant trial since those two prior convictions do still exist.”
Hall v. State, 273 Ind. at 516-517, 405 N.E.2d at 53 (emphasis in original).
The United States Supreme Court has generally held that there are fundamental distinctions between a sentence and an acquittal, such that double jeopardy guarantees do not apply to sentencing determinations. However, they considered the unique aspects of death penalty determinations in Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, and found that a jury decision against the death penalty in a particular case would operate as a final acquittal on the death penalty issue on a retrial of the same case. We find there are significant differences between a death penalty determination and a habitual offender determination which convince us that Bullington does not apply to habitual offender determinations.
The death penalty is the most extreme penalty authorized by law and for that reason alone warrants unique treatment. It can only be applied within the specific facts of a particular case. The habitual offender status, however, is a continuing status of a pаrticular defendant as long as he has two or more felony convictions on his record. The state may use this status any time the defendant commits a further crime and a jury‘s determination that a defendant is not a habitual offender during a particular trial is not an “acquittal” of that defendant‘s status as a habitual offender. A defendant cannot be “acquitted” of that status any more than he can be “acquitted” of being a certain age or sex or any other inherent fact. If a defendant can be retried on the basic underlying felonies in a particular case, there is no double jeopardy prohibition against the state also charging him as a habitual offender as long as the prior felonies remain on his record.
In Bullington, the Court found that the death penalty procedure there was similar to a trial in many important respects and that the state should not have a second attempt to “prove its case.” We pointed out one of the significant differences between a death penalty proceeding and a habitual offender proceeding was that the death penalty proceeding involved a cоnsideration of the particular facts underlying the substantive offense. We explained:
“The recent United States Supreme Court case of Bullington v. Missouri, (1981) [451] U.S. [430], 101 S.Ct. 1852, 68 L.Ed.2d 270, is not applicable since it involved a bifurcated death-penalty procedure wherein the jury returned a verdict fixing the punishment at life imprisonment and not at death. The defendant was granted a new trial on the substantive charge. The Supreme Court held that the state could not ask for the death
penalty a second time since the sentencing procedure at the defendant‘s first trial was like the trial on the question of guilt or innocence and involved a consideration of the particular facts underlying the substantive offense. Bullington v. Missouri, supra. “Because the habitual offender statute does not create new or separate offenses and the habitual offendеr proceeding does not deal with the underlying facts on the substantive charge, the use of prior convictions at more than one habitual offender proceeding does not constitute double jeopardy. Our legislature has decided that an enhanced punishment of thirty additional years is appropriate for all individuals who are convicted of a felony when it is dеtermined that they also have two prior felony convictions. There are no constitutional or collateral estoppel barriers to prevent the state from exacting that punishment each time a different felony is committed as long as the prior convictions do still exist.”
Baker v. State, 425 N.E.2d at 101 (emphasis added).
In this case, the refiled habitual offender information does not create any new offense against defendant but is a sentencing choice associated with the underlying felony charge. We approve the Court of Appeals’ conclusion that:
“the conviction that triggered the invocation of the habitual criminal statute was set aside. Consequently, any penalty associated with that conviction was also abandoned. Hence, there is no error in charging Durham again with a violation of the habitual criminal statute upon retrial.”
Durham v. State, 458 N.E.2d at 288.
Defendant also contends that the state should be barred from refiling the habitual offender count because of the doctrine of prosecutorial vindictiveness. In Cherry v. State, (1981) Ind., 414 N.E.2d 301, we found that there was prosecutorial vindictiveness when the state refiled two counts which had been dismissed after the defendant had bеen convicted and sentenced on one count. Here, however, there is no increase in the number or severity of the charges filed after defendant‘s successful appeal.
Furthermore, in Cherry, the prosecution had shown satisfaction with the defendant‘s conviction and sentence on one of three counts because they dismissed the other two counts after sentencing was completed. Later, the prosecution refilled the two dismissed charges when the defendant successfully won a new trial on the single conviction. Those circumstances showed prosecutorial satisfaction with one conviction and reliance thereon by the defendant. There is no evidence of this type of satisfaction with a conviction on one chаrge in this case. We find that the defendant here was not penalized in any way for asserting his right to appeal and there was no prosecutorial vindictiveness.
For all of the foregoing reasons, transfer is granted; the opinion and decision of the Court of Appeals are vacated, and the trial court‘s judgment is affirmed.
GIVAN, C.J., and PIVARNIK, J., concur.
DeBRULER, J., dissents with opinion in which PRENTICE, J., concurs.
PRENTICE, J., dissents with opinion.
DeBRULER, Justice, dissenting.
I think the order of the triаl court refusing to dismiss the habitual offender count should be reversed with the instructions to grant that dismissal. Upon reading the case of Bullington v. Missouri, (1981) 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, I am convinced from its holding and the reasoning by which it is reached, that it applies to this case and if retried upon the habitual offender count, appellant Durham will have been twice placed in jeopardy of life and limb in violation of the Fifth Amendment, applicable to the states through the Fourteenth Amendment.
The verdicts of the jury were guilty of illegal possession of a firearm, guilty of illegal possession of a police radio, and
In Bullington v. Missouri, supra, the jury returned a verdict of guilty of murder, and then an additional vеrdict rejecting the death penalty and fixing the penalty at life imprisonment. One of the aggravating circumstances was “a substantial history of serious assaultive criminal convictions.” The defense then filed a motion for a new trial which was granted by the trial judge because of a current decision of the U.S. Supreme Court regarding jury composition. The prosecution then filed a notice that it would seek the death penalty on retrial on the basis of the same aggravating circumstances. The trial court there, unlike the trial court here, struck the notice on a defense motion premised on a double jeopardy bar to the imposition of the death penalty after the jury declined to impose it. The Supreme Court of Missouri reversed the trial сourt. On certiorari, the U.S. Supreme Court, basing its decision on the double jeopardy clause, reversed.
It has certainly been the general rule that the protection against being twice placed in jeopardy in the Fifth Amendment, unlike the due process clause, does not extend to sentencing processes, and does not protect against a more severe sentence upon retrial and reconviction. North Carolina v. Pearce, (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Death at the hands of the state is a more severe sentence than life imprisonment, and it is therefore apparent that the Supreme Court departed from the general rule in the Bullington case.
As I see it, the fact that death was the more severe sentence is not at all at the core of the court‘s reasoning, but it providеd the impetus for the additional judicial vigilance which uncovered the additional protective aspect of the double jeopardy clause. That which is at the core is the jury‘s decision reached after a sentencing procedure which had the “hallmarks” of a trial on guilt or innocence. Those hallmarks include (1) a duty of the prosecution to prove аdditional facts to justify a particular sentence, (2) a separate and identifiable procedure including standards to guide the jury‘s decision, (3) the binding quality of the jury‘s, (4) proof beyond a reasonable doubt, and (5) the ability of a court to view the procedure and rationally declare whether or not the prosecution has proved its case for the sentence sought. Thе jury sentencing procedure under our habitual offender statute had these hallmarks, and therefore the jury‘s verdict resolving the habitual offender claim of the prosecution in favor of the appellant must bar a thirty year enhancement on the basis of the habitual offender statute, of a sentence meted out to him upon retrial and reconviction for these two undеrlying offenses with which he stands charged. Any such enhancement is, as I see it, now barred by the Fifth Amendment.
PRENTICE, J., concurs.
PRENTICE, Justice, dissenting.
I dissent.
I would not permit the State to refile, in the same case, an habitual offender count, alleging the same two prior felonies upon which a negative finding had previously been returned. It is immaterial that a retrial upon the underlying felony was appropriate following a favorable ruling upon the Defendant‘s motion to correct errors.
As previously expressed, neither would I permit the filing of an habitual offender count alleging more than two prior felony convictions without also requiring special findings (not now authorized). Under the present practice of permitting more than
In the Matter of Jimmy E. FULCHER.
No. 983 S 344.
Supreme Court of Indiana.
June 21, 1984.
Jimmy E. Fulcher, pro se.
Gregory M. Fudge, Staff Atty., Indianapolis, for the Indiana Supreme Court Disciplinary Com‘n.
DISCIPLINARY ACTION
PER CURIAM.
This disciplinary action was commenced by the Supreme Court Disciplinary Commission, pursuant to
There being no objection raised to such findings, this Court now adopts and accepts as its own the findings of fact as tendered by the appointed Hearing Officer.
Accоrdingly, we now find that the Respondent, a duly licensed attorney in this state, was employed in February, 1981, to represent a client in a bankruptcy proceeding. The Respondent was paid $360.00 for his services. The petition was filed in federal court and a meeting of creditors was scheduled for April 9, 1981; the debtors failed to appear at this meeting. The court rescheduled the meeting of creditors for May 26, 1981, and then again on July 29, 1981; neither the debtors nor the Respondent appeared on each date. On September 1, 1981, the bankruptcy petition was dismissed.
Thereafter, Respondent represented to his client that he would prepare and file a motion to set aside the Order of Dismissal. The motion was prepared, but not filed; Respondent falsely told his client that the motion to set aside the Order of Dismissal had been filed. A demand for a refund of any unused fees was made by this client, but Respondent failed to provide an accounting or any refund.
In light of the above findings of fact, this Court now further finds that Respondent‘s conduct in failing to attend two creditor‘s meetings and failing to file a motion to set aside the dismissal order constitutes neglect of a legal matter entrusted to him in violation of