Spivey v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

John P. Wilson Karen Freeman-Wilson

Greenwood, Indiana Attorney General of Indiana

Arthur Thaddeus Perry

Deputy Attorney General

Indianapolis, Indiana

In The

INDIANA SUPREME COURT

J.L. SPIVEY, JR., )

Defendant-Appellant, )

)

v. ) 41S00-0002-CR-76

)

STATE OF INDIANA, )

Plaintiff-Appellee. )

________________________________________________

APPEAL FROM THE JOHNSON SUPERIOR COURT

The Honorable James K. Coachys, Judge

Cause No. 41D01-9707-CF-98

________________________________________________

On Direct Appeal

January 29, 2002

DICKSON, Justice

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

burglary[3] 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, Article 1, Section 14 of the Indiana Constitution, as

explicated in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The

defendant claims that under the actual evidence test he may not be properly

convicted of felony murder and conspiracy to commit a felony when the two

offenses share an element. In this case the underlying felony for felony

murder was burglary, and the overt act in the conspiracy referred to

elements of the same burglary. The defendant argues that, applying the

Richardson actual evidence test, the Indiana Double Jeopardy Clause is

violated because the jury used the evidence of breaking and entering with

intent to commit theft to prove common elements of both conspiracy to

commit burglary and felony murder.

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 expressing the actual evidence test explicitly

requires evaluation of whether the evidentiary facts used to establish the

essential elements of one offense may also have been used to establish the

essential elements of a second challenged offense. The test is not merely

whether the evidentiary facts used to establish one of the essential

elements of one offense may also have been used to establish one of the

essential elements of a second challenged offense. In other words, under

the Richardson actual evidence test, the Indiana Double Jeopardy Clause is

not violated when the evidentiary facts establishing the essential elements

of one offense also establish only one or even several, but not all, of the

essential elements of a second offense. Application of this principle has

been articulated in different ways. Compare Richardson, 717 N.E.2d at 54

("the defendant has demonstrated a reasonable possibility that the

evidentiary facts used by the jury to establish the essential elements of

robbery were also used to establish the essential elements of the class A

misdemeanor battery"), with Chapman v. State, 719 N.E.2d 1232, 1234 (Ind.

1999)("the same evidence used by the jury to establish the essential

elements of murder was also included among the evidence establishing the

essential elements of robbery as a Class A felony").[4]

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 did not also prove the agreement element of conspiracy.

Similarly, the evidentiary facts used by the jury to establish that the

defendant committed conspiracy to commit burglary, although including proof

of breaking and entering and intent to commit a felony, did not also

establish that Hughes was killed during the burglary. Thus, although the

evidence proving each offense also proved some elements of a second

offense, in neither case did the same evidentiary facts establish all of

the essential elements of both offenses. In other words, the offenses of

felony-murder and conspiracy were each established by the proof of a fact

not used to establish the other offense.[6] The defendant has thus failed

to demonstrate a violation of the Indiana Double Jeopardy Clause under the

Richardson actual evidence test.

As we hold today in Pierce v. State, No. 49S00-0011-CR-710, ---

N.E.2d --- (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 homicide was to cover up the involvement of Singleton in this

crime and possibly to protect Carla Summers." Id. (emphasis in original).

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

(Ind. 1989)(conviction for felony murder of victim intentionally killed by

accomplice during escape); Mauricio v. State, 476 N.E.2d 88, 92 (Ind.

1985)(conviction for felony murder where accomplice killed victim after

defendant had already left scene on a snowmobile stolen from victim). But

cf. Kelly v. State, 719 N.E.2d 391, 396 (Ind. 1999)(upholding trial

court’s judgment on the evidence notwithstanding a jury verdict finding a

defendant guilty of murder where sole evidence established that the killing

was spontaneous after the defendant had left the scene).

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)(citing 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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JOHN P. WILSON KAREN M. FREEMAN-WILSON

Greenwood, Indiana Attorney General of Indiana

ARTHUR THADDEUS PERRY

Deputy Attorney General

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

J. L. SPIVEY, JR., )

)

Appellant-Defendant, )

) Supreme Court Cause Number

v. ) 41S00-0002-CR-76

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE JOHNSON SUPERIOR COURT

The Honorable James K. Coachys, Judge

Cause No. 41D01-9707-CF-98

ON DIRECT APPEAL

January 29, 2002

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, __ N.E.2d

__, No. 49S00-0011-CR-710 (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 (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 burglary). However, consistent with today’s holding in Pierce, this

Court has not allowed to stand a conviction for conspiracy where the overt

act that constitutes an element of the conspiracy is the same act as

another crime for which the defendant has already been convicted. See,

e.g., Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996) (agreeing that the

defendant’s convictions for both conspiracy to deal in cocaine and dealing

in cocaine violated principles of double jeopardy because “the overt act in

furtherance of the conspiracy could have been the same act as required to

convict [the defendant] for dealing in cocaine.”); Buie v. State, 633

N.E.2d 250, 261 (Ind. 1994)[7] (holding that where the overt act element of

a conspiracy charge is the underlying offense, convictions on both the

conspiracy and underlying offense cannot stand); Thompson v. State, 259

Ind. 587, 290 N.E.2d 724, 727 (1972) (holding “that before the court may

enter judgment and impose sentence upon multiple counts, the facts giving

rise to the various offenses must be independently supportable, separate

and distinct.”).

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,[8]

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.

-----------------------

[1] Ind.Code § 35-42-1-1(2).

[2] Ind.Code § 35-43-2-1.

[3] Ind.Code § 35-41-5-2; Ind.Code § 35-43-2-1.

[4] See also Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.

2000)("[T]he jury used the same evidentiary facts . . . to prove both the

murder charge and the criminal confinement charge."); Wise v. State, 719

N.E.2d 1192, 1201 (Ind. 1999)("[T]he same evidence used by the jury to

establish the essential elements of murder was also included among the

evidence establishing the essential elements of arson as a Class A felony,

and the two cannot stand."); Hampton v. State, 719 N.E.2d 803, 809 (Ind.

1999)("The same evidence that supported the murder conviction, the act of

stabbing, may have also been used to convict Defendant of robbery as a

Class A felony.").

[5] The final instructions advised the jury of the content of the

charging informations for all counts, including the charging information on

the conspiracy count which, as to the overt act element, alleged "and in

furtherance of said agreement J.L. Spivey did break and enter the dwelling

of John W. Hughes with the intent to commit a felony, to-wit: theft."

Record at 210 (Court's Final Instruction 4). In setting out the elements

and burden of proof as to the conspiracy count, the court instructed the

jury that, to convict the defendant under Count III, charging conspiracy to

commit burglary, the State must have proved the following elements: that

the defendant agreed with Jason Singleton to commit the crime of burglary,

with the intent to commit the crime, and that the defendant or Singleton

"performed an overt act in furtherance of the agreement by breaking and

entering the home of John Hughes . . . ." Record at 221 (Court's

Instruction 16).

[6] If there had been any possibility that the jury used the same

evidentiary facts that established one offense to completely establish the

other offense, the actual evidence test would then require us to determine

whether this possibility was reasonable. If the possibility were only

speculative or remote, there would be no violation of the Double Jeopardy

Clause under the actual evidence test. Griffin v. State, 717 N.E.2d 73, 89

(Ind. 1999).

[7] Although Buie was explicitly said to be superceded in Richardson,

717 N.E.2d at 49 n.36, only Justice Dickson and Chief Justice Shepard

appear to have taken that view. Justice Sullivan concurred in Richardson

but authored a separate opinion that cited Buie apparently with approval.

Id. at 57 (Sullivan, J., concurring). The other two Justices did not

comment on Buie but cited with approval other cases following additional

common law doctrines.

[8] Compare, for example, Lundberg v. State, 728 N.E.2d 852, 855

(Ind. 2000) (applying Richardson and reversing the defendant’s conviction

for conspiracy to commit murder where it was “reasonably possible” that

the evidence the jury relied on for murder—the defendant shot the

victim—was the same evidence the jury relied upon to establish the overt

act of the conspiracy).