Griffin v. State
692 N.E.2d 468
Ind. Ct. App.
1998
Check Treatment

*1 reasons, reverse the foregoing we For the sup- GRIFFIN, Appellant-Defendant, v. motion to

trial court’s denial of Carter’s Eddie press.

Reversed. Indiana, Appellee-Plaintiff. STATE No. 18A02-9609-CR-602. SULLIVAN, JJ., concur. BARTEAU and Appeals of Indiana. Court of ORDER Feb. handed down heretofore This on December opinion its this cause PUBLICATION”; “NOT FOR marked counsel, having thereaf- appellant, by Opinion, alleg- its Petition to Publish

ter filed in this case

ing therein that the decision legal and factual issues of substan-

involves praying public importance

tial the Court published, said

to order its decision following

petition particularly is more in the figures,

words and to-wit:

(H.I.) Court, having peti- examined said

And advised, duly being

tion and now finds appellant’s Opinion Petition Publish granted opin- that this

should be Court’s appeal should now be ordered

ion this

published.

IT as fol- IS THEREFORE ORDERED

lows: appellant’s to Publish

1. The Petition opinion

Opinion granted and this Court’s

heretofore handed down this cause 30, 1997, marked “NOT FOR

December published. is now ordered

PUBLICATION” counterparts. constitutional Id. Were certain minimal standards. If the Indiana federal below claim, case, protects separate analyses the asserted Indiana Constitution would be neces- this the below the federal minimal stan- has not fallen sary. protections regarding as the in- Taylor, analysis required.” dards. No further stops vestigatory stitutions, are consistent under both con- protec- note that the 639 N.E.2d at 1053. We separate analysis of the Fourth provided by tions the Indiana Constitution necessary. is not See Id. Amendment provided by those its be more extensive than *2 Rivers, Muncie, A. Geoffrey Appellant- for Defendant. Modisett, General,

Jeffrey Attorney A. Black, General, Deputy Attorney Preston W. Indianapolis, Appellee-Plaintiff. for OPINION KIRSCH, Judge. murder,

Eddie Griffin tried robbery, commit killing connection with the trial, David Turner. Griffin’s first him jury acquitted murder and was a verdict on the unable to reach conspiracy charges. Griffin was retried by A jury robbery,1 convicted a Class robbery,2 felony, conspiracy to commit felony. appeals, raising He the fol- lowing issues our review: principles jeopar- I. Whether estoppel dy preclude and collateral retrial on robbery. to commit by ad- II. the trial court erred Whether mitting eo- transcript of Griffin’s (conspiracy); IC IC 1. See 35-42-5-1. 2. See IC 35-41-5-2 35-42-5-1 (robbery). charged with from the All four were conspirator’s men murder, robbery, to commit trial. first robbery. pled guilty to and Ransom court erred ex- III. Whether robbery. Hartman and Griffin went trial. co- cluding that Griffin’s evidence Hartman was convicted as statements, during conspirator made *3 murder, acquitted and mistri- was conspir- period as the the same time conspira- the and al was declared on Turner, to acy rob that he to desired cy charges jury the was to because unable somebody. kill on reach a verdict. Griffin was retried those by ex- IV. the trial court erred Whether appeals and charges convicted. from psychological re- cluding evidence those convictions. ability the to form garding - to commit the requisite intent crimes, AND DECISION DISCUSSION We affirm. Jeopardy/Collateral Estoppel I. Double principles Griffin first contends that under AND FACTS PROCEDURAL HISTORY jeopardy, his for acquittal of double 1993, long-time In June of friend precluded subsequent reprosecu- his Hartman, Griffin’s, awaiting was sentenc- Joe conspiracy. He argues tion for and ing charges pled on to which had criminal he to required prove that the State was not guilty Henry County. Hartman wanted gain anything or additional to different town, by leaving he sentencing avoid but for or victions the Griffin, Hartman, money needed to do so. prove second trial than it was for friends, and and two of their Scott Ransom felony murder in the first trial. ways they Craig, which discussed money they that all could obtain so could State, The recent case of v. Games together. agreed leave The four town men (Ind.1997), reh’g granted, 684 N.E.2d 466 drug they up would set deal with the grounds, opinion on other 690 modified victim, Turner, large David and rob him of a 211, changed jeop the law on double marijuana. quantity of The court ardy supreme Indiana. paged On June Hartman Turner that the determination of whether the defen arranged and to meet him at a Muncie hotel conduct constitutes more one of dant’s than purpose purchasing pounds examining only for the ten fense is to made the be marijuana. statutory comprising Hartman met Turner elements the offenses brought pounds marijuana regard him the the in which the ten without manner Griffin, jury Craig, charged, to a where and Ran- offenses were the was instruct residence ed, waiting. underlying proof four men the som were attacked nature elements, marijuana. necessary prove pre Turner robbed him of the as in incident., Turner 477.3 jeop- died cases. Id. at The double Games (1990), involving punish- adopted multiple 3. a case a "same Games was 548 conduct” ments case evaluating whereas a subse- jeopardy involves rule federal double quent prosecution. purpose cases, Games prosecution subsequent claims in a rule bring jurispru- Indiana in line with federal that is different than the "same elements” test set interpreting jeopardy protec- dence States, Blockburger forth in 299, v. United 284 U.S. tions contained in the constitution. Id. at federal 180, (1932). 52 76 L.Ed. 306 In S.Ct. identifying jurisprudence, 474. federal such overruling Grady, the Court stated there is largely upon relied United States authority, Grady, proposition except no Dixon, 688, 2849, U.S. 113 S.Ct. 125 509 Jeopardy that the federal Double Clause has dif- (1993), providing proper L.Ed.2d 556 analysis as punishment meanings in the successive ferent determining jeopardy federal double Dixon, prosecution successive contexts. 509 Dixon, the noted claims. In Court that the feder- 704, at S.Ct. at Given U.S. 113 2860. these Jeopardy al Double "serves the function Clause Dixon, given supreme statements in punishment preventing both successive express court's declaration that Dixon the con- 704, prosecution[.]” at successive Id. 113 S.Ct. cases, jeopardy analy- trolling law in double Grady at bin, The Court overruled v. Cor- also 2084, 110 S.Ct. 109 L.Ed.2d

471 ardy claims, according determination is made Griffin also for the first time on Blockburger test: appeal, that collaterally State was es- topped retrying from and con- act “[W]here same or transaction con- spiracy charges. Griffin’s motion to dismiss statutory stitutes a violation of two distinct objections only related trial were based provisions, applied the test to be to deter- on double grounds. No collateral mine whether there are two offenses or estoppel claim was submitted the trial one, only provision is whether each re- ruling court. Absent the trial court’s on the quires proof of an additional fact which the issue, appeal. we will not it consider See other does not.” Dixon, 509 U.S. at 113 S.Ct. at n. 2864 Blockburger, 284 U.S. at S.Ct. (while noting possible implications of col- issue, estoppel lateral Court did not question *4 decide issue because neither lower court robbery whether murder and Class A consti it). ruled on tute the same jeopardy offense for double purposes. supreme court Admissibility Issue of Co- II — convictions for both Class A rob Conspirator’s Prior Trial bery and jeop murder did not violate double Testimony ardy principles because: Griffin next contends that the trial court requires proof “[E]aeh statute of an addi- admitting erred in testimony of his co- tional fact which the other does not: conspirator, Craig. testimony The knowing Murder a or intentional transcript admitted the form of a of killing; A Robbery requires Craig’s testimony from the first trial because property be resulting type in some Craig testify refused to in the second trial bodily injury person to a other than despite the court’s order that he do so. The the defendant.” trial court Craig declared unavailable under Games, 684 N.E.2d 477.4 Under this 804(a)(2) anal- Ind.Evidence Rule and admitted ysis, Griffin’s retrial for following his transcript which jury. was read to the acquittal not does offend Record at 2138. jeopardy principles. double The evidence was admissible under Similarly, conspiracy murder and 804(b)(1) provides: Ind.Evidence Rule which commit are not the same offense for “(b) Hearsay Exceptions. The follow- jeopardy purposes. Under IC 35-41- ing by are not hearsay excluded rule if 5-2, conspiracy a upon proof exists that á the declarant is unavailable as a witness. person, with the felony, intent to commit a (1) agrees with another to commit that Testimony. Testimony Former giv- and that an overt act was taken further hearing en as a witness at another Thus, agreement. ance of that same or proceeding, a different or in a requires proof agreement, of an an deposition compliance element taken with law in required by not the murder statute. As proceed- course of the same or another above, requires proof noted of kill ing, party against a if the whom the testimo- ing, offered, or, an element conspira ny not is now in a civil action or Thus, cy statute. interest, murder and proceeding, predecessor a had commit each opportunity contain element that and similar motive to devel- direct, cross, the other op testimony by does not and are not the same or redi- jeopardy purposes. offense for double rect examination.” applies provide sis set forth in Games also in the subse- statute was amended in 1984 to that the quent prosecution context. bodily offense is a Class B if it results in injury. The offense remained a Class A if analyzed 4. Games statute in effect in bodily injury. it resulted in serious The 1984 1982 which made the offense a Class A if amendment does not affect the double it resulted in either ly injury or serious bodi- analysis. person to a other than a defendant. The 472 Regarding Exclusion of Evidence former IV.

Admission Ability of trial Form Intent is matter an unavailable witness State, Lowery v. 478 discretion. from trial court also excluded evidence denied, (Ind.1985), 1214, 1223 cert. N.E.2d psychologists concerning Griffin’s Griffin’s 1098, 106 900 89 L.Ed.2d S.Ct. physical his consequent state and mental (1986). testify renders A witness’ refusal trial inability agreement. to form an purposes using his him unavailable court excluded the evidence reliance State, 651 testimony. Kellems v. prior 704(b) provides: Rule Ind.Evidence (Ind.Ct.App.1995). N.E.2d 328 testify opinions “Witnesses by rea Craig was unavailable intent, guilt, cerning or innocence in a crimi- testify. had refused son case; falsity allegations; nal truth or first to cross opportunity full at the truthfully; has testified or whether witness fact, and, per thoroughly examine conclusions.” Record at 1963. The legal See formed such cross examination. fact, leav- witness is restricted to “observable similar, trial was if not motive in first intent, any appropriate conclusions as to ing identical, in the trial: to his motive second belief, feelings trier of to the fact.” Weav- possible defense to the crim best State, (Ind.1994) er v. charges against him. The trial court inal prior adop- (although case was decided Craig’s properly transcript *5 admitted Evidence, court ex- tion of Indiana Rules of testimony from the first trial.5 plicitly require the Rules “do not stated that result.”). a different Co-Conspirator’s of Issue III—Exclusion Extrinsic Offenses psychological reports the the One that has trial court excluded states Griffin The trial court excluded evidence concern- life;” functioning everyday in has “problems apartment night that the ing an fire occurred “poor judgment insight;” “easily agi and to sought before Turner’s murder. impulsive;” “problems un tated and and has that heard testimony elicit from witnesses derstanding being what is said him.” Rec Craig apart- state that he started the report the ord at 372-73. Another contains fire, people knowing that were ment there “I psychologist’s that not know statement do inside, somebody. to kill and that he desired if it legal meaning ‘conspiracy’, but the testimony on The trial court excluded planning thought careful implies and and/or hearsay grounds, and at relevance Record activity I think that would be would this 2703-06, prove. made offer to Griffin’ beyond reports him.” at 376. Record Both Record impermissible regarding contain conclusions Relevant evidence “evidence intent. of fact to It was trier any any tendency to make existence The evidence make determinations. such consequence fact that is of the determina properly excluded. probable of the more or less tion action Affirmed. probable than it would be without the evi Rule Evidence dence.” Ind.Evidence FRIEDLANDER, other J.,

that committed acts does concurs. any it tendency probable have to make more SULLIVAN, J., part in dis- concurs probable or less that Griffin committed part. in sents Craig’s with crimes which he was kill somebody was of no relevance desire SULLIVAN, part Judge, concurring in responsi trial Griffin’s second because dissenting part. bility for the death was not at issue. victim’s II, respect to III properly fully the evi I concur with Parts excluded I, I grounds. and IV. As Part dissent. dence relevance testimony’s admissibility independent a con- under evidence of the existence of 5. Given 804(b)(1), prerequisite as a of the Evid.R. we need not reach Griffin’s admission 801(d)(2)(E). required provide under Rule State was Ind.Evidence contention that the Although majority highlights quires proof the fact of an element not inherent felony that as a Class robbery, murder Class A Class A does not do not constitute the same offense for double require proof any element that is not jeopardy purposes, it pose truly does not felony under murder. pertinent question: Are as a Class A Stated somewhat differently, in order to murder the same offense convict of A robbery, the State must jeopardy purposes? for double Our 1) 2) taking demonstrate: a property, that, Court has felony-murder “when a bodily serious injury or death. In order to results from a killing the commission of a here, convict of murder the State must robbery, is the lesser included 1) 2) taking demonstrate: property, seri- felony-murder.” Eddy offense of the v. State 3) death, ous bodily injury or death. It (1986) Ind., 496 N.E.2d 29. See also is of no moment that may satisfy death both (1984) Ind., Collier State 470 N.E.2d 1340. the second and third elements of the pointed As that court out in Kennedy v. murder. prove The State must still each (1996) Ind., State 674 N.E.2d “the prove felony element to including conviction for murder while in the commis- taking.6 sion of a proof could not occur without accompanying felony.” The it majority apparent becomes to me that opines here that requires simply knowing Games test does not work here. killing intentional robbery Theoretically, felony murder, while Class A per its statu- requires elements, property tory resulting merely be any serious or death and that enumerated there- felonies be committed or at- fore each tempted contains element not and that a human being is killed. (Burns the other. I.C. 35-42-1-1 Ed.Repl.1994). Code Therefore, each of the enumerated felonies is majority upon relies supra, *6 an included offense of felony murder. In 466, for its conclusion that the order to determine felony whether murder retrial here does not offend jeopardy. double underlying and the felony constitute the Games, Supreme Court determined crime, same one felony must look to murder that one only should look statutory to the Here, charged. however, as even if we look elements of the offenses in order to deter- charged, offenses as they we find that mine whether a jeopardy prohibition are the same for double purposes. exists. Id. at 477. dispositive question under provision Games is “whether each re- Although decided before our Su quires proof additional fact that preme Court analogous addressed an situa other does not.” Blockburger v. United (1994) Ind., tion in Buie v. State 633 N.E.2d (1932) States 52 S.Ct. 250. There the court noted that “where the 182, 76 L.Ed. 306. overt act element of the charge is

Games has not rendered the lesser offense, includ- the underlying and where the State ed impotent offense doctrine in Indiana. As has obtained a conviction for concludes, majority A Class re- upon based the commission of underlying 1) 2) quires: property offense, subsequently pur State not either or death Felony prosecution results. sue a underlying offense.” requires:l) murder the underlying felony or Id. at 261. The same result would follow if 2) attempt, death. The first element acquitted defendant had been of the con felony proof (1997) of the charge. See Redman v. State all requirements Ind.App., that fel- 679 N.E.2d trans denied. The —thus ony. The requirement second Supreme mur- Court has not seen fit to revisit or der is death. Although felony murder re- overrule Buie. example, However, charged State has lish murder. as Games has so robbery resulting us, bodily injury, commandingly serious told we shall not look to the death. prove every the State still must as It does not matter how the offense element of the Class A charged in order to estab- State has murder. clear that Games has

It done appears pre-

nothing prior Court to disturb here is lesser-

cedent that charge.

included offense reason, I. I Part

For this dissent THOMPSON,

Anthony Tyrone

Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE of

No. 10A04-9601-CR-8. Appeals

Court Indiana.

Feb.