Russell v. State

clearly some there is ly While erroneous. court’s conclu- to trial

evidence factors, that seven Hale on each of the

sions any fac- of the is conclusive on

evidence and, to if not shifted the burden were

tors clearly support injured employee, would contrary conclusion. example, point I to the first two

By way of court, that the trial Custom

conclusions of right

indirectly discharge retained a

indirectly paid crane The evi- operator. supporting these conclusions was that

dence requested assign Cannon could have

Custom was operator if it dissatis- crane different assigned and that Custom with the one

fied operator of the

paid Cannon for the services opera- compensated in turn

and Cannon every independent contractor Virtually

tor. rights indirect

arrangement involves such obligations. policy public it is the

If third-party tort feasors and their liabil-

allow

ity insurers to use the Indiana Worker’s

Compensation Act as shield liability their

immunize themselves injuries resulting in

wrongful serious acts another, employee pоlicy ‍​‌‌​‌​​​‌​‌​‌​‌​‌‌​‌‌‌​​​​‌‌​‌‌‌​​‌​​‌​​​​​‌​‌‌‌‍it is a then re-examined. would not

which should be way, policy in this would not shift

apply the injured employee, and

the burden to this case to the trial court

would remand

further consideration. RUSSELL, Appellant-Defendant,

Sherrell Indiana, Bloomington, Harper, D. Teresa Attorney Appellant. Indiana, Appellee-Plaintiff. STATE Modisett, Attorney Jeffrey A. General 49A02-9803-CR-224. No. Attorney Indiana, Deputy Froug, E. Randi Appeals Indiana. Court of Indiana, General, Attorneys for Indianapolis, Appellee. 23, 1999. June Aug. Denied 1999.

Transfer OPINION

FRIEDLANDER, Judge Murder,1 charged Sherrel Russell Arson, felony,2 after her room- class (West 1998). (West 1998). §Ann. 35-43-1-1 § Ind.Code Ind.Code Ann. 35-42-1-1 Dicken, mate, injuries Dick- object Nicole died from the car. Russell tоok an from her jacket pocket gas and when Dicken on reached en sustained Russell set fire toward pump Liquid splashed handle. Dicken’s gas jury onto station. The Russell not at found chest. A arms and fire started in front of of murder Russell guilty but convicted of engulfed Passersby Russell and Dicken. Homicide, felony,3 a class as a Reckless C put stopped and out the flames. sat Russell included murder. The lesser offense of nearby and did not assist Dicken Dicken. felony. Russell of a class A convicted body. was burned on over Dick- 75% her restated, presents one issue for As Russell shortly en smoke died from inhalation after review: arriving hospital. at (1) Do Russell’s convictions for reckless above, As noted Russell was convicted homicide, fire, by setting victim on homicide, felony, reckless class C and ar- (2) arson, bodily injury, in serious son, a class violate existing Indiana’s double I, § 14 under Article of the Russell claims that Indiana has had a separate Indiana which is separate аnaly and distinct jeop- and distinct from the federal prior analy sis to the time when the federal ardy analysis, where the convictions incor- analysis converged sis and Indiana’s and be victim, injury porate the same to the same came coterminous. Russell contends requiring thus the class A arson may again. two be viewed as distinct conviction to be a class B lowered to felo- (Ind. ny? Games 1997), on grounds, other modified that, The evidence after an eve- discloses — denied, N.E.2d 211 cert. alcohol, ning consuming Russell and Dick- -, 119 S.Ct. 142 L.Ed.2d 78 stopped Bigfoot en at a station gas on the (Ind. and Grinstead Indianapolis approximately southside of at 1997), Supreme Court announced February a.m. on 3:00 at the While previous interpretations Indiana’s of the station, gas argu- Russell and Dicken were regard federal double clause with ing. multiple punishments did comport jurisprudence explained in U.S. v. station, ostensibly Russell entered the to Dixon, 509 U.S. pay gas, while Dicken waited outside L.Ed.2d 556 gas. ear in pump order to While Supreme The Indiana Court ad- has not inside, Russell the cashier and others told question dressed the whether separate that she was afraid her would take roommate jeopardy analysis pur- distinct double exists money upon her apart- their to their return See, suant e.g., to the Indiana Constitution. ment and that she did not want cashier to Brown v. n. 4 operation authorize pump. of the She said (the (Ind.1998) proposed deemed the gas did not pay she want to since she state constitutional claim waived for failure always expected was pay. opened Russell provide authority independent analysis). or argument the door and continued the Russell’s contention that a dis- shouting at Dicken. Dicken entered sta- tinct jeopardy analysis state double exists spoke tion and As the Russell. two viable remains finds some station, walked out of the Russell told the concurring opinion Justice Sullivan’s manager to оperation pump authorize of the Games. Justice Sullivan stated: that everything “okay.” fully however, concur in opinion, pump, At the engaged the two an alter- because, whatever the nuances of federal point cation. At one pushed Dicken Russell Dixon, constitutional this area after .law ground. to the get opinion Dicken told Russell to today’s change in makes no (West 1998). § Ind.Code Ann. 35-41-1-4 statutory “yield law in Indiana constitutional or same-elements test would precedential clear regard and so the value and consistent results.” Id. at 1236. our is not affected. earlier cases Shep- As noted Chief Justice Randall T. ard in Second Wind the Indiana Bill N.E.2d at 481-82. Games Rights, 22 Ind. L. Rev. the 575, 578 (Ind. State, In Moore v. 691 1232 N.E.2d ability courts’ to address state constitutional recently Ct.App.1998), Guffey and more in v. dependent upon litigants properly claims is State, (Ind.Ct.App.1999),4 raising analyzing and the claims. Russell jeopardy this court has held that the double properly has raised the historiсal existence analysis is the same under the federal and separate jeopardy and distinct double anal- reading state constitutions. close ysis upon based the Indiana Constitution. materially analysis Moore reveals different Russell contends that Indiana’s double by presented than that Russell. jeopardy analysis predates analy- the federal Moore, appellant the advocated “Long sis: before the United States Su- adoption by analysis Indiana of the federal preme holding Court’s that the federal dou- developed Blockburger which after v. United jeopardy applicable ble clause was to the States, 299, 180, 284 52 76 S.Ct. L.Ed. through Amendment, states the Fourteenth (1932). post-Blockburger 306 The federal begun Indiana jeopar- had its distinct double analysis expanded jeopardy protec- double dy analysis.” Appellant (citing Brief of at 6 by tions and was followed Indiana courts. 784, Maryland, Benton v. 395 U.S. contentions, According to Mоore’s (1969)). 2056, Arguably, 23 L.Ed.2d 707 adopt expanded protections should those as analyses converged federal and after separate jeopardy analy- Indiana double Thus, essence, argues Benton. Russell complaint sis. Moore’s chief that was under analysis that Indiana used the federal as it test, Blockburger a same-elements most dou- expanded in pre- evolved and the direction jeopardy foreclosed, ble claims would be by ferred Indiana. After announced Dixon thereby working hardship upon defendants. jeopardy pro- the retraction of federal double urged Moore that defendants should be able tections, Indiana can still trace a line of argue jeopardy analysis the double jeopardy protections began double which be- beyond looks the elements of the crimes and converged. fore the federal and state lines instruments, extends to the pronouncement in Dixon marks di- instructions, рroof and the at trial as had the vergence of the lines were intertwined Blockburger, federal after and be- period for a of time. expanded jeopardy analysis fore the double Moore, appellant As did the Russell Moore, was retracted Dixon. See 691 admits that her double claim would N.E.2d at 1234 n. 3. fail under the same-elements analytical proposed argument strictly Under framework test. makes her She under by appellant, compared the Moore court: persua- the Indiana Constitution. ‍​‌‌​‌​​​‌​‌​‌​‌​‌‌​‌‌‌​​​​‌‌​‌‌‌​​‌​​‌​​​​​‌​‌‌‌‍Russell language detail, sively, though great argues similar within the Indiana and constitutions; observed the fact-sen- an historical basis for a exists using two-pronged jeopardy analysis sitive nature of test distinct double under the evolved; which had and concluded that the Indiana Constitution.5 car, Although Guffey court followed the decision than the offense would not have been Moore, offense)). it noted that at least two recent casеs lesser included always found that Games cannot be "limited to a John, comparison specific statutory strict terms used In Boehm v. Town St. 675 N.E.2d 318 (Ind. 1996), Cohn, Guffey, to define the elements of crime.” each v. Ratliff (Ind. 1998), (citing supreme explained 705 N.E.2d at n. 5 Moore v. 698 our some of (Ind.Ct.App.1998) appropriate N.E.2d nied; new trans. de means to raise claims under Goudy pur v. the Indiana Constitution. Russell does not (Ind. 1997) (attempted carjacking port requests was a lesser to raise a new claim. Instead shе robbery attempted existing jeopar included offense of where the review under the Indiana double vehicle, property dy analysis taken awas motor but if the which she tracks from the mid- Thus, robbery present. taken in the had been other 1800’s to the we do not find her that, early as both committed at the same time State, 476, In Kokenes v. 213 Ind. ishments. upon within built the theme Kokenes. This (1938), upon the 13 524 court relied N.E.2d upon line of relied state common law cases clause of the the Indiana proposition for the that a defendant cannot cases, earlier as well as great be and sentenced for both a convicted finding a that a defendant should er and a included offense. In lesser Carter greater the the not of both and be convicted State, 205, (1951), v. 229 Ind. 96 N.E.2d 273 robbery, of offenses for a lesser included Kokenes, upon the court and relied footnoted robbery. The single act of Kokenes court Elder, Jackson to determine that a dе and quoted approvingly: decision an 1879 fendant not be sentenced for a could both greater a included and lesser offense. the facts constitute but one 1. When 557, 104 State, 230 Ind. N.E.2d 729 Steffler v. offence, may susceptible be though it of (1952), examined the the court elements parts, larceny as in division into steal- informations, two crimes and the ing several articles of at the same Jackson, law in and relied common time, pros- belonging person, to the same a Elder, Kоkenes, and Carter. Russell cites judgment stealing a ecution to final representative which can cases trace a line part the articles will be a bar to a Jackson, Elder, from the in decisions and stealing any subsequent prosecution See, State, e.g., v. Kokenes. Sandlin 461 articles, part the other stolen (Ind.1984); State, N.E.2d 1116 James v. 274 same act. 304, (1980); Ind. 411 N.E.2d 618 Pointon v. facts constitute two or When the State, 44, (1980); 274 Ind. 408 N.E.2d 1255 offences, more wherein the lesser offence 649, Franks 262 Ind. 323 221 necessаrily greater—as is involved an an assault is involved assault and Contemporaneously, another line of cases battery, battery and in- an assault is as developed intermingled analy with battery and in- in an assault volved Kokenes, Jackson, their progeny. sis and felony, larceny tent and a is to commit gradually incorporated line This of cases fed robbery-cmci in a involved when facts eral and constitutional claims with fed necessary 'prosecu- to convict on second eral and In Thompson state common law. necessarily tion have on would convicted 587, (1972), Ind. first, prosecution then the first denied, cert. S.Ct. judgment be a bar second. will to the final argued L.Ed.2d defendant that, pursuant 3. But when the same facts constitute to the Fifth and Fourteenth offences, two or more wherein the lesser Amendments to the United States Constitu necessarily § offence is not involved tion and Art. 14 of the Indiana Constitu tion, greater, necessary separate selling and when the facts his convictions for and prosecution possessing drugs jeop convict on a second not violated would illicit first, necessarily ardy protections. convicted The court noted prohi have on the prosecution then will the first not be a bar bitions the double clauses and second, although law interpreting to the the offences were federal and state common engage analy- presentation of failure to the Boehm ses as a in the her claim. flaw Ratliff clauses, (confinement) jeop- rape kidnapping and determined that double crimes of Instead, relying ardy implicated. separate Id. would be viewed as and distinct statutes, law, upon state federal common requires proof crimes because each of an Havener; Carter, including law state common additional fact which the other does not. Id. Kokenes, the court held that the defen- Apparently referring to the same distinctions dant not be convicted or sentenced on could Elder, observed court State v. greater included both a and lesser offense. 285, regarding Ind. at the circumstances Id.; see also Bean 267 Ind. though which constitute crimes (1978) (following Thompson, N.E.2d 713 committed “at the same time and without mention of federal or state constitu- act,” id., same the court said: tions, the court determined it was error However, in jeopar- this case the double judgment premeditаted to enter a for both dy issue does not arise from the simulta- murder). murder and rape neous acts of and confinement but clarify In an effort to the branch of double rather from the in two convictions counties jeopardy regarding multiple punishment and one, continuing uninterrupted the difference between the same offense and clearly act of confinement. It is estab- act, the same in Elmore v. lished that where a defendant has been (1978), specifi- 269 Ind. punished рarticu- once convicted and for a cally disapproved portions Thompson. crime, principles lar finality of fairness and Thompson The Elmore court noted that in- require subjected that he not be the correctly determined that double possibility punishment by of further being implicated analysis. was not its Id. The tried or sentenced second time for the Elmore court also found that Indiana became sovereign power. same offense the same jeopardy analysis, bound federal double Id. at972.6 analysis, i.e. the after the Unit- narrowing gap The between State and Supreme ed States Court’s decision Ben- analyses federal closed Bevill v. 784, 2056, Maryland, v. ton 395 U.S. 89 S.Ct. State, (Ind.1985). 472 N.E.2d 1247 With 23 L.Ed.2d Id. dissenting Justice Pivarnik favor the Yet, the path 'court continued on the taken Blockburger ‍​‌‌​‌​​​‌​‌​‌​‌​‌‌​‌‌‌​​​​‌‌​‌‌‌​​‌​​‌​​​​​‌​‌‌‌‍analysis, the court reviewed the State, by Thompson in Haggard and Bean v. defendant’s claim that his convictions and 445 N.E.2d 969 on other modified attempted sentences for both murdеr and State, grounds, Bailey v. 472 N.E.2d 1260 burglary bodily injury with as a Class A (Ind.1985). in Haggard The defendant ar- felony violated the Indiana Art. gued that his convictions for criminal confine- 1, § 14 and the Fifth Amendment of the rape ment and the consecutive prohibit United States Constitution sentences violated the double clause multiple punishments for the same offense. of the United States Constitution. The court Pearce, (citing Id. North v. Carolina 395 examined the facts and circumstances to con- 711, 2072, 89 S.Ct. 23 L.Ed.2d 656 clude that the duаl convictions violated “one (1969) grounds, overruled on other Alabama principles of the most fundamental of crimi- Smith, 794, 2201, v. 490 U.S. person may nal law ... that a not be twice State, Thompson L.Ed.2d 865 punished arising for a offense (1972)). 587, 259 Ind. 290 N.E.2d 724 The operative one set of Id. at circumstances.” informations, analyzed charging court (citing Hutcherson v. 269 Ind. elements, statutory and the evidence and (1978); Bean, 267 Ind. found: 371 N.E.2d Thompson, 259 Ind. 724). unavoidable, Haggard 259 Ind. 290 N.E.2d The conclusion is therefore The claim, recоgnized Blockburger analysis, appellant’s and consonant with that law, approved attempted charge, in state common wherein the murder and the bur- Haggard 6. The court went on to that because are or dual explain they prosecution sovereigns. neither the Indiana nor the federal Constitution Id. court noted that Indiana would bar a state the same con- would bar Id. at prosecutions such statute. prosecution subject duct which was the of a 972 n. 1. prior analysis it has had a it includes the federal because charge that to the extent

glary inju- bodily analysis evolving that has been since distinct of resultant the added element punishment shortly Indiana ry, upon and seek after ratification of are based injuri- stabbing require and the same the same and G'i'instead Constitution. Games person. consequences to the same analysis when ous to use the federal argue jeopardy violations defendants upon relied The Bevill court Id. at 1254. Rus- under the United States Constitution. constitutions, as well as and federal contends, agree, is enti- and we that she sell law, to conclude Indiana common analysis under the Indiana Consti- tled to burglary conviction had class defendant’s place that was in before Benton B tution a class bur and entered as to be vacated parallel and in Id.; Maryland, that evolved Flowers v. see also glary instead. analysis (Ind.1985) conjunction until with the federal (relying Be Dixon, disentangled, аnd that is now a dis- proposition that mul vill and Elmore again. tinct once but their en tiple crimes occurred distinct bodily injury could for the same hancement particular to Russell’s cir- We turn now stand); Malott v. using jeop- pre-Dixon cumstances (Ind.1985) (vacating the conviction bur ardy applicable to under examination claims injury bodily where glary resulting in serious Constitution, wherein courts look the Indiana attempted the defendant was convicted beyond elements of the crimes and view victim, shooting of the murder for the same instruments, instruc- multiple punishment violated stating Moore, tions, proof and the at trial. See pro and state double “both federal charged n. 3. Russell was N.E.2d at 1234 886). hibitions.” Id. at murder, a class A In Bustamante The two-count Information stated: analyzed the court COUNT crimes, informations, of the the elements Russell, February on or about Sherrel the evidence conclude: knowingly kill human did another ease, mur appellant committed Dicken, -by setting being, namely: Nicole house, by setting fire to his der means of Dicken, person fire to the of Nicole there- the murder imposed on and the sentence by injuries upon inflicting mortal Nicole injury charge punishes him for the fatal he Dicken, die; causing Nicole Dicken to by on wife that instrumentali inflicted his II COUNT felony A sentence for ty. Imposition of an 35-43-1-1(a)(2), based on arson I.C. under Russell, February Sherrel on or about bodily injury ‍​‌‌​‌​​​‌​‌​‌​‌​‌‌​‌‌‌​​​​‌‌​‌‌‌​​‌​​‌​​​​​‌​‌‌‌‍on the infliction of serious fire, by knowingly, means of did fire, pun means of Gloriа Bustamante Dicken, damage property of Nicole name- injury. appellant twice for the same ishes Dicken, ly: clothing of Nicole under cir- 1, § 14 the Indiana Article This offends life, endangered human cumstances that Fifth Amendment of Constitution and the bodily injury to Nicole serious Constitution, pro which the United States Dicken, that is: death.... multiple punishment for the same hibit at Record (1988), Ind., 517 King v. State offense. trial, giving supported At the evidence (1985), Ind., 383; Bevill State homicide, a class of an instruction on reckless Therefore, thirty- 472 N.E.2d 1247. felony, as a lesser included offense of C year imposed by the trial court sentence jury murder. The was instructed: vacated. on the arson count must be murder, Included in the crime of at 1323. Id. case, charged in this is the lesser included using Indiana cases the Indiana Constitu- homicide. offense reckless provide documenting an tion a traceable line recklessly person A who kills another proposition historical basis for Homicide, being Reckless adopt a human commits does not need felony. a Class C separate and distinct permissibly gain the defendant of Reckless used to a class A To convict proven have Homicide the State must each arson conviction and to the reckless following elements: of the homicide conviction. defendant, Russell; Sherrel The subsection of the arson statute under recklessly, 1. did focus, charged which Russell was has as its kill, life, protection proper- “the of human not of being, human to-wit: Ni- 3. another ty.” See Bustamante v. 557 N.E.2d at cole Dicken. sentence, (vacating an arson where the

defendant was convicted of murder for the wife, same fire which killed his because the 1, § sentence offended “Article 14 of the person engages in A conduct “reckless- Indiana Constitution and the Fifth Amend- ly” engages plain, if in the conduct in she ment of the States conscious, United unjustifiable disregard prohibit multiple punishment might harm result and the disregard Id.). Thus, involves a substantial deviation from ac- same offense”. the class A arson ceptable standards of conduct. conviction could not be sustained without the life, injury despite to human fulfill- State charge, Record at 307-08. As to arson ing damage property by the element of was instructed: alleging producing evidence that Dick- The crime of arson is defined statute as clothing en’s was set on fire. As in Busta- follows: mante, single episode of arson was the who, person explo- means of fire or instrumentality single which caused a death. intentionally knowingly damages sive or Therefore, imposed two sentences were any person under circum- injurious consequences, same to the same life, endanger stances that human commits victim, during confrontation. See However, B Class (Ind.1990). Bowling v. felony if offense is a Class A it results in bodily injury bodily injury either or serious Accordingly, Russell to relief is entitled on any person other than the defendant. jeoрardy grounds employing To convict the defendant State must separate analy- Indiana Constitution and its proven following have each of the ele- not, however, grant sis. We do Russell ments: requests. requests relief she Russell that defendant, Russell; Sherrel arson, felony, A the conviction for as a class knowingly, 1. did Instead, felony. B be reduced to a class as fire, 2. means argument, noted State at oral damage Dicken, 3. of Nicole felony class A arson conviction should stand namely: and Russell’s reckless homicide conviction jeopardy should be vacated on double Dicken, clothing of Nicole grounds. proved The State the elements to 4. under circumstances endan- sustain the conviction for arson as class A a life, gered human homicide, felony. The reckless based bodily inju- in which resulted serious the same death used to convict Russell of Dicken, ry to Nicole is: death. arson, felony, A as class is subsumed Record at 303. arson сonviction. above, explained As Russell was con Judgment part, affirmed and reversed homicide, victed of reckless aas class C part. felony, A class Un pre-Dixon analysis,

der the and as argues, Russell under the Indiana double BAILEY, J., concurs. jeopardy analysis applicable multiple pun ishments, BAKER, J., opinion. the death of Nicole Dicken was im- dissents dissenting Judge,

BAKER, CO., Petitioner, & W.H. PAIGE view, my In we dissent. respectfully I identical issue recently have confronted different from the a conclusion rеached TAX BOARD OF STATE holding in the instant case. majority’s COMMISSIONERS, (Ind.Ct.App. N.E.2d 1232 Moore v. Respondent. 1998), alternative is that “the better we held No. 49T10-9611-TA-00157. with federal double consistent to remain analysis and utilize Tax Court of Indiana. when our courts are test ‘same elements’ June un analyze claims asked 1236; Id. at der the Indiana Constitution.” States, 284 U.S. Blockburger v. United

see (1932). 299, 304, 76 L.Ed. Moore, I would

For the reasons stated analysis is that the double

conclude federal and state under both the

the same Therefore, should

constitutions. statutory elements of the of

focus on question determine whether

fenses impose separate pun

legislature “intended arising in the multiple offenses

ishments for Games v. [incident].”

course of 466, 474 modi grounds, 690 N.E.2d on other

fied — denied, --, S.Ct. cert.

L.Ed.2d 78 reckless further hold ‍​‌‌​‌​​​‌​‌​‌​‌​‌‌​‌‌‌​​​​‌‌​‌‌‌​​‌​​‌​​​​​‌​‌‌‌‍that our would do not constitute

homicide and arson statutes Blockburger because

the same offense under proof of an additional provision requires

each Specifi- not.

element which the other does requires

cally, a reckless reckless homicide re-

killing, while arson as Class intentionally

quires person that a or know- Berry v.

ingly damage property. See (Ind.1998) (holding that and Class

convictions for murder Blockburger test

arson did not violate the though were based on the

even both offenses fire). Therefore, death

same trial court did not would find thаt jeopardy rights un-

violate Russell’s double

der the Indiana Constitution. notes Russell the same act. clause was invoked Indiana’s discharge a defendant. Miller (em Elder, (1879) Ind. State (1856) (implicitly overruled State Ind. 325 Relying phasis supplied). inter alia (1866)); Walker, 26 Ind. 346 see also Chief Kokenes, the decision in the court found that Shepard, Second Wind Justice robbery armed a “double sentence for Rights, 22 L. at Indiana Bill stemming Ind. Rev. robbery” episode from a Russell, recognized Indiana’s 578. As could not Havener v. stand. 234 Ind. used in the clause first 148, 151, 125 barring prosecutions. context of successive through A line the 1950’s of cases from applied multiple pun- the clause was Later 1980’s, root, and Elder at with Jackson their

Case Details

Case Name: Russell v. State

Court Name: Indiana Court of Appeals

Date Published: Jun 23, 1999

Citation: 711 N.E.2d 545

Docket Number: 49A02-9803-CR-224

Court Abbreviation: Ind. Ct. App.