stating two challenged offenses constitute the same offense if there is 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
How later courts described this case
- stating two challenged offenses constitute the same offense if there is 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
- rejecting actual evidence challenge to felony murder and conspiracy to commit burglary convictions where evidentiary facts proving essential elements of felony murder did not prove agreement element of conspiracy and where evidentiary facts proving essential elements of conspiracy did not prove that victim was killed during burglary
- clarifying that, there is no double jeopardy violation 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
- concluding that that the trial court did not err in limiting eross-examination, but even if it did, such error would be harmless beyond a reasonable doubt
Written by the judges who cited it.
The opinion
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 *837 glary). 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) 1 (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, 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.
. Although Buie was explicitly said to be su-perceded 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 Bute 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.
. 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).