Beattie v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Matthew Jon McGovern Gregory F. Zoeller

Evansville, Indiana Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the FILED

Apr 08 2010, 2:34 pm

Indiana Supreme Court

_________________________________ CLERK

of the supreme court,

court of appeals and

tax court

No. 82S01-0907-CR-307

SHEWANDA BEATTIE, Appellant (Defendant below),

v.

STATE OF INDIANA, Appellee (Plaintiff below).

_________________________________

Appeal from the Vanderburgh Circuit Court, No. 82C01-0705-FB-490

The Honorable David D. Kiely, Judge

_________________________________

On Transfer from the Indiana Court of Appeals, No. 82A01-0805-CR-247

_________________________________

April 8, 2010

Dickson, Justice.

When a jury returns logically inconsistent verdicts in the same case, must Indiana courts

accept the inconsistency as insulated from judicial review, or are such verdicts subject to review

and, if so, on what basis? To address variations in Indiana case law on this issue, we granted

transfer. Adhering to the historically prevailing rule of Indiana jurisprudence and of the United

States Supreme Court, holding that inconsistent verdicts are permissible and not subject to appel-

late review, we affirm the judgment of the trial court.

During the defendant's jury trial on charges of Dealing in Cocaine, Possession of Cocaine

Within 1,000 Feet of a Family Housing Complex, and Possession of Marijuana, the jury was also

instructed on and provided a verdict form for Possession of Cocaine as a lesser-included offense

of Dealing in Cocaine. The jury returned verdicts finding the defendant not guilty of both Deal-

ing in Cocaine and Possession of Cocaine, but guilty of Possession of Cocaine Within 1,000 Feet

of a Family Housing Complex and Possession of Marijuana. The defendant appealed, presenting

two claims: (1) irreconcilable verdicts and (2) erroneous admission of evidence resulting from an

unconstitutional search and seizure. Rejecting the defendant's assertion of an improper search

and a resulting error in admission of evidence, the Court of Appeals nevertheless reversed be-

cause "the inconsistency in the jury's verdicts leaves us unable to determine what evidence the

jury believed." Beattie v. State, 903 N.E.2d 1050, 1057 (Ind. Ct. App. 2009). We granted trans-

fer to address the appellate review of claims of inconsistent verdicts. As to the claim of eviden-

tiary error, we summarily affirm the Court of Appeals pursuant to Indiana Appellate Rule

58(A)(2).

The defendant seeks appellate acquittal or new trial on her conviction of Possession of

Cocaine Within 1,000 Feet of a Family Housing Complex, arguing that such conviction is fatally

inconsistent with her acquittal on the charge of possession of the same cocaine. In support of her

argument, she asserts that Indiana appellate courts review verdicts for consistency and will take

corrective action when verdicts are extremely contradictory, which she alleges applies in this

case.

The State principally responds that the past approach in several Indiana appellate cases

reviewing claims of inconsistent verdicts has been eroded by new developments in United States

Supreme Court jurisprudence holding that irreconcilable verdicts do not require appellate relief.

The State argues that "merely because the jury chose not to enter two guilty verdicts for the same

conduct of possessing cocaine does not require that the count on which the jury did enter a find-

ing of guilt be reversed." Appellee's Br. at 10.

Federal jurisprudence on this issue derives primarily from two cases, Dunn v. United

States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), and United States v. Powell, 469 U.S.

2

57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), which addressed conflicting post-Dunn cases. In

Dunn, the jury acquitted the defendant upon charges of unlawful possession of intoxicating liq-

uor and unlawful sale of intoxicating liquor but convicted him of maintaining a common nuis-

ance by keeping intoxicating liquor for sale at a specified place. In the last opinion authored by

Justice Oliver Wendell Holmes and delivered on the day of his retirement, the Supreme Court

affirmed, stating: "That the verdict may have been the result of compromise, or of a mistake on

the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such

matters." Dunn, 284 U.S. at 394, 52 S. Ct. at 191, 76 L. Ed. at 359. After the Dunn decision,

some courts concluded that the holding prohibited the review of verdicts for consistency.1 Other

courts determined that Dunn created the "permissible inconsistent verdict rule" to which certain

limited exceptions could be made.2

Almost fifty-three years later, the Court in Powell described Dunn as holding that "a

criminal defendant convicted by a jury on one count could not attack that conviction because it

was inconsistent with the jury's verdict of acquittal on another count." Powell, 469 U.S. at 58,

105 S. Ct. at 473, 83 L. Ed. 2d at 464. Acknowledging that inconsistent verdicts "present a situa-

tion where 'error,' in the sense that the jury has not followed the court's instructions, most certain-

ly has occurred," the Court in Powell rejected as "hardly satisfactory" a policy of granting the

defendant a new trial on the conviction in such situations. Id. at 65, 105 S. Ct. at 477, 83 L. Ed.

2d at 468–69. After reviewing interpretations and applications of Dunn in several other cases,

the unanimous Powell Court strongly reaffirmed the rule in Dunn, insulating inconsistent jury

verdicts from review.3 It also emphasized that criminal defendants are already afforded protec-

tion against jury irrationality or error by the availability of an independent review for sufficiency

1

See Harris v. Rivera, 454 U.S. 339, 102 S. Ct. 460, 70 L. Ed. 2d 530 (1981); Standefer v. United

States, 447 U.S. 10, 100 S. Ct. 1999, 64 L. Ed. 2d 689 (1980).

2

See United States v. Brooks, 703 F.2d 1273 (11th Cir. 1983); United States v. Morales, 677 F.2d

1 (1st Cir. 1982); United States v. Hannah, 584 F.2d 27 (3d Cir. 1978).

3

The opinion included the following footnote: "Nothing in this opinion is intended to decide the

proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on

one count logically excludes a finding of guilt on the other. Cf. United States v. Daigle, 149 F. Supp. 409

(DC), aff'd per curiam, 101 U.S. App. D.C. 286, 248 F.2d 608 (1957), cert. denied, 355 U.S. 913 (1958)."

Powell, 469 U.S. at 69 n.8, 105 S. Ct. at 479 n.8, 83 L. Ed. 2d at 471 n.8. A similar claim has been made

in some Indiana cases in which a defendant was convicted both for murder and voluntary manslaughter.

See, e.g. Patton v. State, 668 N.E.2d 253, 254 (Ind. 1996); Butler v. State, 647 N.E.2d 631, 636 (Ind.

1995). In each case, however, the multiple convictions did not involve the same victim, and the trial court

judgments were affirmed.

3

of evidence. The Dunn rule was also followed in Standefer v. United States, 447 U.S. 10, 25,

100 S. Ct. 1999, 2009, 64 L. Ed. 2d 689, 701 (1980) ("While symmetry of results may be intel-

lectually satisfying, it is not required."). It should be noted, however, that the Court in Powell

grounded its decision on its "supervisory powers over the federal criminal process" and held that

"nothing in the Constitution" would require the Dunn rule against reviewing inconsistent ver-

dicts. Powell, 469 U.S. at 65, 105 S. Ct. at 477, 83 L. Ed. 2d at 469. Thus, states are not consti-

tutionally precluded from formulating a different rule.

Almost from the time of our state's founding, Indiana courts have overwhelmingly re-

fused to interfere with jury verdicts alleged to be inconsistent or irreconcilable. In Morris v.

State, 1 Blackf. 37 (Ind. 1819), this Court held: "[I]t cannot be supposed, that where there are

two charges in an indictment, that an acquittal as to one can possibly vitiate the verdict of guilty

as to the other." Id. at 37. Similarly, in Flowers v. State, 221 Ind. 448, 48 N.E.2d 56 (1943), this

Court rejected a claim of fatal inconsistency, quoting with agreement from Dunn that

"[c]onsistency in the verdict is not necessary" and "[t]hat the verdict may have been the result of

a compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset

by speculation or inquiry into such matters." Id. at 450, 48 N.E.2d at 57 (quoting Dunn, 284

U.S. at 393–94, 52 S. Ct. at 190–91, 76 L. Ed. at 358–59). See also Sichick v. State, 89 Ind.

App. 132, 166 N.E. 14 (1929), trans. not sought. This refusal to consider claims of logically in-

consistent verdicts has been the predominant thrust in almost all of the approximately eighty-six

Indiana appellate decisions addressing this issue.

An abrupt deviation from this line of authority, however, occurred in Marsh v. State, 271

Ind. 454, 393 N.E.2d 757 (1979), in which the defendant claimed unlawfully inconsistent ver-

dicts of guilty of voluntary manslaughter and not guilty by reason of insanity of assault and bat-

tery with intent to kill. Acknowledging that Flowers had not been overruled, the Marsh Court

nevertheless surveyed several federal and state cases that questioned Dunn and then declared:

We therefore conclude that the better, and de facto, rule is not a narrow interpreta-

tion of Dunn v. United States, supra. Rather this Court has looked and will con-

tinue to look at verdicts to determine if they are inconsistent. While perfectly log-

4

ical verdicts should not be demanded, extremely contradictory and irreconcilable

verdicts warrant corrective action by this Court.

Id. at 460, 393 N.E.2d at 761. In reaching this position, the Court acknowledged that it had

"never [] reversed a case on the basis of inconsistent verdicts" but had previously "evinced con-

cern over the possibility of inconsistent verdicts." Id. (citing Pulliam v. State, 264 Ind. 381, 345

N.E.2d 229 (1976); Livingston v. State, 257 Ind. 620, 277 N.E.2d 363 (1972); Buckner v. State,

252 Ind. 379, 248 N.E.2d 348 (1969); Evans v. State, 224 Ind. 428, 68 N.E.2d 546 (1946)).

While articulating the possibility of corrective action for inconsistent verdicts, the Court affirmed

the conviction, ultimately concluding that the verdicts were not logically inconsistent because the

trial testimony provided "a line of reasoning which the jury could have adopted in reaching the

two verdicts in this case." Marsh, 271 Ind. at 462, 393 N.E.2d at 762.

But in the thirty years since Marsh suggested that verdict correction might be possible for

"extremely contradictory and irreconcilable verdicts," this approach has for the most part been

either ignored or not applied. Numerous cases have continued to hold that logically inconsistent

jury verdicts are permissible and have omitted any consideration or application of the "extremely

contradictory and irreconcilable verdicts" evaluation criteria expressed in Marsh. See, e.g. Peck

v. State, 563 N.E.2d 554 (Ind. 1990); Dorsey v. State, 490 N.E.2d 260 (Ind. 1986); Totten v.

State, 486 N.E.2d 519 (Ind. 1985); James v. State, 472 N.E.2d 195 (Ind. 1985); Douglas v. State,

441 N.E.2d 957 (Ind. 1982); Easley v. State, 427 N.E.2d 435 (Ind. 1981); Tillman v. State, 426

N.E.2d 1149 (Ind. 1981); Hicks v. State, 426 N.E.2d 411 (Ind. 1981); Woodrum v. State, 498

N.E.2d 1318 (Ind. Ct. App. 1986), trans. not sought; Brinker v. State, 491 N.E.2d 223 (Ind. Ct.

App. 1986), trans. not sought.

Other Indiana cases have mentioned the Marsh approach but have declined to grant any

relief on claims of extremely contradictory and irreconcilable verdicts, declining to apply it be-

cause the challenged conviction was found to be not necessarily inconsistent under the facts of

each case. See, e.g. Powell v. State, 769 N.E.2d 1128 (Ind. 2002); Mitchell v. State, 726 N.E.2d

1228 (Ind. 2000); Hodge v. State, 688 N.E.2d 1246 (Ind. 1997); Jackson v. State, 540 N.E.2d

1232 (Ind. 1989); Parrish v. State, 453 N.E.2d 234 (Ind. 1983); Dixon v. State, 777 N.E.2d 110

5

(Ind. Ct. App. 2002), trans. not sought; Nelson v. State, 664 N.E.2d 386 (Ind. Ct. App. 1996),

trans. denied.

Until the present case, only one Indiana appellate decision has ever granted relief upon a

claim that logically inconsistent verdicts were returned against a single defendant. In Owsley v.

State, 769 N.E.2d 181 (Ind. Ct. App. 2002), trans. denied, the court noted the Marsh language

permitting appellate "corrective action" when verdicts are "extremely contradictory and irrecon-

cilable." According minimal recognition of the many ensuing opinions of this Court that did not

follow Marsh, the Owsley court declared that, until this Court explicitly directs otherwise, "we

are compelled to look at verdicts to determine whether they are consistent." Id. at 184. Ac-

knowledging that "no Indiana case has ever reached the point of having to take such action," id.

at 187, the Court of Appeals concluded that "[i]f the [Marsh] rule that we are to review verdicts

for inconsistencies is to have any meaning, we are compelled to reverse Owsley's conspiracy

conviction because of its irreconcilable inconsistency with his acquittal for possession of co-

caine." Id. at 188. What the Owsley court appears to have discovered, however, is that it is dif-

ficult, if not impossible, to give meaning to the Marsh requirement that challenged verdicts be

"extremely" contradictory and irreconcilable. The Marsh criteria in essence calls for a binary

evaluation: either the challenged verdict is or is not contradictory and irreconcilable. The result

in Owsley is that any logically contradictory verdict, not just those that are extremely so, quali-

fies for appellate reversal and remand for a new trial on the conviction. The modifier "extreme-

ly" is surplusage.

An analogous result occurred when the present appeal was considered by the Court of

Appeals. The court acknowledged the federal rule of Dunn and Powell, holding that verdicts are

not reviewable on the ground of inconsistency, but, citing Marsh, concluded that "Indiana has an

independent tradition of reviewing inconsistent verdicts." Beattie, 903 N.E.2d at 1054. While

recognizing that the Indiana Supreme Court has not necessarily followed Marsh, the Court of

Appeals discerned a twenty-year trend of decisions that have "reviewed the consistency of ver-

dicts," which it elected to follow. Id. As in Owsley, the Court of Appeals found that because the

jury's verdict of acquittal on one count was logically inconsistent with its guilty verdict on anoth-

er, the conviction must be reversed and remanded for a new trial.

6

The effect of the Marsh standard, as illustrated in the decisions of the Court of Appeals in

Owsley and the present case, is to depart from the rule insulating inconsistent verdicts from ap-

pellate review, as expressed in federal jurisprudence under Dunn and Powell, and historically

favored in Indiana case law, in favor of an approach that requires reversal and a new trial of any

conviction resulting from verdicts found to be contradictory and irreconcilable.

In this Court's discussion in Powell in 2002, we recited the "extremely contradictory and

irreconcilable" standard for review of inconsistent verdicts, and noted as well the opposing rule

expressed in Totten and Hodge that "[a] jury's verdict may be inconsistent or even illogical but

nevertheless permissible if it is supported by sufficient evidence." Powell, 769 N.E.2d at 1131.

But it was not necessary to reconcile these two approaches in Powell because we found that the

challenged verdicts were not inconsistent. Relying largely upon language from Powell, the

Court of Appeals in Radick v. State, 863 N.E.2d 356 (Ind. Ct. App. 2007), trans. not sought,

found two verdicts to be logically inconsistent and appeared to apply the "extremely contradicto-

ry and irreconcilable" criteria to mean that "[a] jury's verdict may be inconsistent or even illogi-

cal but nevertheless permissible if it is supported by sufficient evidence." Id. at 358. The court

affirmed the convictions, concluding that "[d]espite any inconsistency in the verdicts, the convic-

tions are permissible because they are supported by sufficient evidence." Id. at 359.

Sufficiency of evidence, however, is required for any conviction, not just those chal-

lenged as logically inconsistent. A verdict not supported by sufficient evidence cannot stand,

regardless of whether it is inconsistent with another verdict. The evaluation of whether a convic-

tion is supported by sufficient evidence is independent from and irrelevant to the assessment of

whether two verdicts are contradictory and irreconcilable.

When a jury returns logically inconsistent verdicts, such a result could mean that it mi-

sunderstood its instructions. But it is more likely that the jury chose to exercise lenity, refusing

to find the defendant guilty of one or more additionally charged offenses, even if such charges

were adequately proven by the evidence. Such right of a criminal jury to decline to convict is

well recognized. Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994); Peck, 563 N.E.2d at 560;

7

James, 472 N.E.2d at 198. Indiana jurisprudence is particularly respectful of this right, which

both Bivins and Peck observe is consistent with Article 1, Section 19 of the Indiana Constitu-

tion.4 The law treats a jury's decision to acquit with enormous respect and deference. Once a

jury acquits a defendant on a criminal charge, the State's right to appeal is limited to questions of

law, and even if successful in such an appeal, the State is barred from retrying the defendant on

the charge. State v. Jackson, 889 N.E.2d 819, 820 (Ind. 2008); State v. Martin, 885 N.E.2d 18,

19 (Ind. Ct. App. 2008); see Ind. Code § 35-38-4-2. A jury's right to exercise lenity is an impor-

tant component of our criminal justice system.

But it is also conceivable that an occasion of inconsistent jury verdicts may result when,

despite a lack of probative evidence of guilt, a jury may return a guilty verdict on less than all the

charged offenses, not because of the jury's unanimous true belief that guilt was established but

rather perhaps due to a compromise among disagreeing jurors, or to expeditiously conclude a

lengthy deliberation, or to avoid an all-or-nothing verdict, or for other reasons. To remedy these

concerns, however, as noted by the unanimous United States Supreme Court in Powell, "a crimi-

nal defendant already is afforded protection against jury irrationality or error by the independent

review of the sufficiency of the evidence." Powell, 469 U.S. at 67, 105 S. Ct. at 478, 83 L. Ed.

2d at 470. Citing "the Government's inability to invoke review, the general reluctance to inquire

into the workings of the jury, and the possible exercise of lenity," the Court understandably con-

cluded "that the best course to take is simply to insulate jury verdicts from review [for inconsis-

tency]." Id. at 68–69, 105 S. Ct. at 479, 83 L. Ed. 2d at 471.

We agree with and adopt the federal rule expressed by the United States Supreme Court

in Dunn and Powell, which has been for the most part the prevailing rule of Indiana jurispru-

dence. Concluding that the contrasting "extremely contradictory and irreconcilable" standard

devised in Marsh has proven in practice to be unhelpful and inconsistent with Indiana's strong

respect for the conscientiousness, wisdom, and common sense of juries, we overrule the standard

advanced in Marsh and disapprove of Owsley. Jury verdicts in criminal cases are not subject to

appellate review on grounds that they are inconsistent, contradictory, or irreconcilable.

4

Article 1, Section 19 of the Indiana Constitution provides: "In all criminal cases whatever, the

jury shall have the right to determine the law and the facts."

8

For this reason, even if we assume, arguendo, that the defendant's jury verdicts of not

guilty of the lesser-included offense of Possession of Cocaine and guilty of Possession of Co-

caine Within 1,000 Feet of a Family Housing Complex were inherently inconsistent, such ver-

dicts are permissible and are insulated from review on this ground.

Concluding that inconsistent jury verdicts are not subject to appellate review, and sum-

marily affirming the Court of Appeals as to the other issue presented by the defendant, we affirm

the judgment of the trial court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.

9