J.L. SPIVEY, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
No. 41S00-0002-CR-76.
Supreme Court of Indiana.
Jan. 29, 2002.
761 N.E.2d 831
Karen Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
A jury found the defendant, J.L. Spivey, guilty of murder (felony murder),1 burglary as a class A felony,2 and conspiracy to commit burglary3 in connection with the death of John Hughes in Greenwood, Indiana, in June of 1997. Finding that Count II, charging burglary “must be merged” into Count I, charging felony murder, the trial court only imposed sentences for the defendant‘s convictions for murder and conspiracy to commit burglary. Record at 310, 326. This direct appeal presents two claims: 1) that the defendant‘s convictions violate the Double Jeopardy Clause of the Indiana Constitution and 2) that the trial court erred in limiting cross-examination. We affirm his convictions.
Indiana Double Jeopardy Clause
The defendant‘s first contention is that his convictions and sentences for murder and conspiracy to commit burglary violate the Indiana Double Jeopardy Clause,
In Richardson, we reviewed the history of the Indiana Constitution‘s Double Jeopardy Clause to ascertain and articulate a single comprehensive rule synthesizing and superseding previous formulations and exceptions. We explained that two offenses are the “same offense” in violation of the Indiana Double Jeopardy Clause if, “with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” Id. at 49. In the present case the defendant claims a violation of the Indiana Double Jeopardy Clause not under the statutory elements test but under the actual evidence test. To show that two challenged offenses constitute the same offense under the actual evidence test, “a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Id. at 53.
Application of the actual evidence test requires the reviewing court to identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury‘s perspective, considering where relevant the jury instructions, argument of counsel, and other factors that may have guided the jury‘s determination. Richardson, 717 N.E.2d at 54 n. 48; see, e.g., Burnett v. State, 736 N.E.2d 259, 262-63 (Ind.2000). The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims. The language ex
Although denying any connection with the death of Hughes, the defendant at trial admitted conspiracy to commit burglary and commission of the burglary. Record at 1124-25, 1411. The jury was instructed that to find the defendant guilty of the murder charge, the evidence must prove that the defendant or his accomplice killed Hughes while committing or attempting to commit burglary, which was defined as the breaking and entering of a building of another person with the intent to commit a felony therein. Record at 216-17 (Court‘s Final Instructions 10 & 11). As to the charge of conspiracy to commit burglary, the jury instructions permitted the jury to understand that the overt act element could be either the completed burglary or only the breaking and entering, but the killing of Hughes was not identified as a possible overt act.5 The evidentiary facts proving the essential elements of felony murder established that Hughes was killed in the course of the defendant‘s commission of burglary. Although these same facts thus established the essential elements of burglary, they
As we hold today in Pierce v. State, 761 N.E.2d 826, 829-30 (Ind.2001), this Court continues to recognize a series of rules of statutory construction and common law that are separate and in addition to the protections afforded by the Indiana Double Jeopardy Clause. However, the defendant‘s convictions for felony-murder and conspiracy to commit burglary do not qualify for relief under these rules.
Justice Sullivan has urged that an offender should not be punished for the crime of conspiracy where the overt act element of conspiracy “is the very same act as another crime for which the defendant has been convicted and punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring). He explains that this rule is required to assure that “the conspiracy is a separate and distinct act from the underlying crime.” Id. Here, the conspiracy to commit burglary is sufficiently distinct from the offense of felony-murder. As an overt act of the conspiracy, the burglary was completed when the defendant entered the residence of John Hughes with the intent to commit theft. The defendant was not convicted and sentenced for burglary because the trial court merged the burglary count into the murder count. The defendant‘s crime of murder, however, required not only the burglary but also the death of Hughes, which is not part of the overt act for the conspiracy to commit burglary. Thus the overt act was not the same as the crime of murder, and the offenses of conspiracy and murder are sufficiently distinct to permit the defendant to be separately convicted and punished for each.
We find no error under the Indiana Double Jeopardy Clause or under any rules of statutory construction and common law.
Limitation on Cross-Examination
The defendant‘s second contention is that the trial court abused its discretion in limiting the scope of cross-examination of two witnesses. The defendant asserts, “[T]he events which resulted in the death of John Hughes had occurred subsequent to the burglary and after the Defendant, Spivey[,] had left the scene.” Br. of Appellant Defendant at 28. He claimed at trial that the death was caused by a subsequent beating of Hughes inflicted by Jason Singleton, a relative of Carla Summers. The defendant argues that “[b]y its cross-examination of Carla Summers and [Jason] Singleton, the defense was trying to show that the motive for the intentional homi
The victim was John Hughes, an elderly man of 83 or 84 who lived alone in a mobile home. Carla Summers helped Hughes on a daily basis with basic everyday tasks. She cleaned, ran errands, took him to the doctor‘s office, and helped him in other similar ways. Singleton was a co-perpetrator in the charged crimes and a relative of Summers by marriage. It was through Summers that Singleton met the victim and became aware that there may be money kept in lockboxes in his kitchen. The defendant and Singleton went to the mobile home to steal the lockboxes. The defendant broke in through the locked door. At this point, the testimony of Singleton and the defendant diverges. Singleton stated that he watched the defendant go into the trailer and after a few moments, stepped inside to observe the defendant hitting the victim in the face with his fists. Singleton then left, and the defendant followed later with the boxes. On the other hand, the defendant testified that both he and Singleton went in the mobile home and, as they were carrying the boxes out, the victim awoke and stood up out of his chair. The defendant stated that he pushed or hit the victim back into his chair and then Singleton hit him in the chest with one of the lockboxes. The defendant stated that he left the home without Singleton and expressed his belief that Singleton intentionally killed Hughes after the defendant was no longer present. The next day, Summers discovered Hughes in his home, covered with blood and unable to speak. Paramedics transported him to the hospital, where he died five days later. The cause of death was blunt force injury to the head resulting in multiple head injuries.
Before trial, the court had granted the State‘s motion in limine seeking, among other things, to preclude evidence regarding prior charged and uncharged acts of Jason Singleton and Carla Summers that did not result in a conviction admissible under Ashton v. Anderson, 258 Ind. 51, 279 N.E.2d 210 (1972). This ruling was consistent with Indiana Evidence Rules 608(b) and 609(a) which generally prohibit a challenge to witness credibility by evidence of specific instances of conduct except for convictions of specific crimes or crimes involving dishonesty or false statement. At trial, the defendant properly presented offers to prove in support of his request for relief from the ruling.
The defendant sought to introduce evidence of dismissed charges that had been brought against Summers for a prior theft involving the victim. The defendant was also prevented from introducing evidence of an incident in which Singleton distracted the victim while Summers may have taken some money from the victim. The defendant contends that this evidence would have bolstered his theory that Singleton intentionally killed the victim to cover up his involvement in the current burglary and past thefts by Summers.
Even if the defendant were correct in this contention, the excluded evidence would not diminish the defendant‘s guilt under the charge of felony murder. The defendant‘s joint participation with Singleton in the class A felony burglary of Hughes renders the defendant guilty of murder for any killing while committing the burglary. See Wieland v. State, 736 N.E.2d 1198, 1202-03 (Ind.2000) (conviction for felony murder upheld for killing by accomplice during flight from robbery); Palmer v. State, 704 N.E.2d 124, 126 (Ind.1999) (felony conviction upheld for killing of accomplice by law enforcement); Seeley v. State, 544 N.E.2d 153, 156-57
If we were to disregard Evidence Rules 608 and 609, and hypothetically assume that the trial court improperly limited the defendant‘s cross-examination of Summers and Singleton, reversal would still not be warranted. Convictions will not be reversed “if the State can demonstrate ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” Standifer v. State, 718 N.E.2d 1107, 1110 (Ind.1999) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674, 686 (1986), and quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967)). The jury was instructed:
In proving felony murder, the State need show only that defendant intended to commit the underlying felony, not the intent to commit murder. A defendant may be convicted of felony murder even though it was his accomplice who killed the victim.
Record at 217 (Court‘s Final Instruction 11). Even viewing the evidence favorable to the defendant, it established that he participated in the burglary and that in the course of the burglary both the defendant and his accomplice struck the elderly victim who died as a result. In light of the information before the jury, the additional evidence of motive for Singleton is of little consequence. We conclude that the trial court did not err in limiting cross-examination, but even if it did, such error would be harmless beyond a reasonable doubt.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and BOEHM, J., concur.
RUCKER, J., concurs in part and dissents in part with separate opinion, in which SULLIVAN, J., joins.
RUCKER, Justice, concurring in part and dissenting in part.
I agree with the majority that Spivey‘s convictions for felony murder and conspiracy to commit burglary do not violate Indiana‘s Double Jeopardy Clause as articulated in Richardson v. State, 717 N.E.2d 32 (Ind.1999). However, Indiana common law dictates that Spivey‘s conviction for conspiracy to commit burglary should be vacated.
In a unanimous opinion, we hold today that this Court has “long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.” Pierce v. State, 761 N.E.2d 826, No. 49S00-0011-CR-710, 2002 WL 118263 (Ind. Jan. 29, 2002). It is true there is case authority standing for the proposition that a defendant may be convicted of both conspiracy to commit a felony and the underlying felony. See, e.g., Griffin v. State, 717 N.E.2d 73, 89 (Ind.1999) (robbery and conspiracy to commit robbery), cert. denied, 530 U.S. 1247, 120 S.Ct. 2697, 147 L.Ed.2d 968 (2000); Witte v. State, 550 N.E.2d 68, 71 (Ind.1990) (murder and conspiracy to commit murder); Sparks v. State, 537 N.E.2d 1179, 1184 (Ind.1989) (burglary and conspiracy to commit bur
In this case Spivey was charged with burglary, felony murder—with burglary alleged as the underlying felony, and conspiracy to commit burglary. The evidence shows and the State concedes that the only overt act supporting the conspiracy charge was the burglary itself. Although the trial court entered no sentence on the burglary conviction, that was not sufficient in my view. Left standing was the conspiracy charge, the overt act for which Spivey has already been punished by reason of the felony murder conviction. If not under the Richardson double jeopardy test,2 then under this Court‘s traditional common law scheme, the convictions for both felony murder and conspiracy cannot stand. I would therefore vacate Spivey‘s conviction for conspiracy to commit burglary. In all other respects I concur with the majority.
SULLIVAN, J., concurs.