Gary Sistrunk v. State of Indiana ( 2015 )


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  • ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
    Timothy J. O’Connor                                        Gregory F. Zoeller
    O’Connor & Auersch                                         Attorney General of Indiana
    Indianapolis, Indiana
    Ian McLean
    Ruth Ann Johnson                                           Deputy Attorney General
    Marion County Public Defender Agency
    Indianapolis, Indiana                                      Stephen R. Creason
    Deputy Attorney General
    Andrew A. Kobe
    Deputy Attorney General
    Indianapolis, Indiana
    ______________________________________________________________________________
    In the
    Indiana Supreme Court                           Jul 30 2015, 9:01 am
    _________________________________
    No. 49S05-1410-CR-654
    GARY SISTRUNK,
    Appellant (Defendant below),
    v.
    STATE OF INDIANA,
    Appellee (Plaintiff below).
    _________________________________
    Appeal from the Marion Superior Court, Criminal Division Room 5
    No. 49G05-1202-FB-010112
    The Honorable Grant W. Hawkins, Judge
    The Honorable Christina Klineman, Master Commissioner
    _________________________________
    On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-1211-CR-567
    _________________________________
    July 30, 2015
    Rucker, Justice.
    Gary Sistrunk challenges his convictions for robbery and criminal confinement as class B
    felonies contending, among other things, they violate Indiana’s constitutional ban on double
    jeopardy. We affirm the judgment of the trial court.
    Facts and Procedural History
    On February 5, 2012, Gary Sistrunk entered a gas station in Marion County and
    purchased a cigar. As the attendant was returning Sistrunk’s change, Sistrunk produced a
    handgun, pointed it at the attendant and demanded money from the cash register. The attendant
    complied. Sistrunk then demanded money from the safe. The attendant responded that she was
    unable to open the safe. Instead she handed Sistrunk two safety-deposit bags containing cash.
    Sistrunk then “told [the attendant] to sit on the ground and [she] sat on the ground, he stood there
    for about a minute and then [] walked out the door,” and she “waited for about [two] minutes to
    call the police.” Tr. at 26.
    A Crime Stoppers’ tip led police to focus on Sistrunk as a person of interest. Thereafter
    the attendant positively identified Sistrunk from a photo array as the man who robbed the gas
    station.      On February 14, 2012, the State charged Sistrunk with robbery and criminal
    confinement, both as class B felonies. Thereafter Sistrunk, represented by private counsel, filed
    a motion asserting his indigence and requesting public funds to pay the expenses of an expert
    witness on the subject of eyewitness identification. After conducting a hearing the trial court
    agreed Sistrunk was indigent for purposes of the motion but denied the request for public funds.
    Sistrunk waived his right to trial by jury. A bench trial was conducted on October 4,
    2012, at the conclusion of which the trial court found Sistrunk guilty as charged. Thereafter the
    trial court sentenced Sistrunk to two concurrent six-year terms of imprisonment.           Sistrunk
    appealed contending the two convictions violated Indiana’s prohibition on double jeopardy
    because the force used to support the robbery conviction was coextensive with the force used to
    support the confinement conviction. Sistrunk also contended the trial court abused its discretion
    in denying his request for public funds to retain the services of an expert witness. The Court of
    Appeals unanimously affirmed the trial court’s decision on this latter point. However in a
    2
    divided opinion the court determined Sistrunk’s convictions for robbery and criminal
    confinement did not violate Indiana’s constitutional ban on double jeopardy, but it sua sponte
    determined that the same evidence, namely, Sistrunk’s act of being armed with a deadly weapon,
    was improperly used to enhance both of his convictions from class C to class B felonies. See
    Sistrunk v. State, 
    11 N.E.3d 925
    (Ind. Ct. App. 2014), vacated. We disagree with our Court of
    Appeals colleagues on this point, and we previously granted transfer to explore the issue. In all
    other respects, we summarily affirm the opinion of the Court of Appeals. See Ind. App. R.
    58(A)(2).
    Discussion
    Article 1, Section 14 of the Indiana Constitution provides: “No person shall be put in
    jeopardy twice for the same offense.” In Richardson v. State, 
    717 N.E.2d 32
    (Ind. 1999), this
    Court reviewed the history of the Indiana Constitution’s Double Jeopardy Clause to determine
    and articulate a single comprehensive rule synthesizing and superseding previous formulations
    and exceptions. In so doing we explained that two or more 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.
    However, in addition to the protections afforded by the Indiana Double Jeopardy Clause, 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
    , 830 (Ind. 2002). Among these is the rule that
    precludes a “[c]onviction and punishment for an enhancement of a crime where the enhancement
    is imposed for the very same behavior or harm as another crime for which the defendant has
    been convicted and punished.” Guyton v. State, 
    771 N.E.2d 1141
    , 1143 (Ind. 2002) (emphasis
    added) (quoting 
    Richardson, 717 N.E.2d at 56
    (Sullivan, J., concurring)).
    In the case before us, the Court of Appeals acknowledged that “[t]he repeated use of a
    weapon to commit multiple separate crimes is not ‘the very same behavior’ precluding its use to
    separately enhance the resulting convictions.” 
    Sistrunk, 11 N.E.3d at 931
    (quoting Miller v.
    3
    State, 
    790 N.E.2d 437
    , 439 (Ind. 2003)). However, relying on the concurring opinion in Miller
    the court concluded that unlike the defendant in that case, here Sistrunk did not repeatedly use
    his handgun or use it more than once in committing the offenses for which he was convicted.
    Thus, his use of the handgun was in fact the very same behavior precluding its use to enhance
    both of his convictions. 
    Sistrunk, 11 N.E.3d at 932
    .
    We first observe that it is not apparent the majority in Miller endorsed the view expressed
    by the concurrence. Indeed the Miller Court expressly declared that “the use of a single deadly
    weapon during the commission of separate offenses may enhance the level of each 
    offense.” 790 N.E.2d at 439
    (quotation omitted). More importantly, this rule predates Richardson by several
    years and thus cannot be said to be included in the “very same behavior” category of examples
    precluding enhancements. See, e.g., Bivins v. State, 
    642 N.E.2d 928
    , 945 (Ind. 1994) (rejecting
    assertion that defendant’s convictions for robbery and confinement cannot both be aggravated to
    class B felonies by the same “use of a deadly weapon” aggravator); Carrington v. State, 
    678 N.E.2d 1143
    , 1147-48 (Ind. Ct. App. 1997) (no double jeopardy violation where defendant’s
    rape and robbery convictions were enhanced because defendant was armed with a knife during
    commission of both crimes), trans. denied; Peterson v. State, 
    650 N.E.2d 339
    , 340 (Ind. Ct. App.
    1995) (no double jeopardy violation where defendant’s robbery and rape convictions were
    enhanced based upon his possession of a single deadly weapon during the commission of the
    offenses); Brown v. State, 
    633 N.E.2d 322
    , 324 (Ind. Ct. App. 1994) (no double jeopardy
    violation where defendant’s robbery and confinement convictions were enhanced because he was
    armed with a knife during commission of the crimes), trans. denied. And post-Richardson this
    Court decided Gates v. State, 
    759 N.E.2d 631
    (Ind. 2001). In that case the defendant threatened
    his victim with a knife during the commission of rape, criminal deviate conduct, and criminal
    confinement, all of which had been enhanced to class B felony offenses because the defendant
    had been armed with a knife while committing the offenses.            Affirming the defendant’s
    conviction we observed in a footnote: “It is well established in Indiana that the use of a single
    deadly weapon during the commission of separate offenses may enhance the level of each
    offense.” 
    Id. at 633
    n.2.
    4
    In sum, our jurisprudence teaches that committing two or more separate offenses each
    while armed with a deadly weapon—even the same weapon—is not within the category of rules
    precluding the enhancement of each offense based on “the very same behavior.”         Stated
    somewhat differently, our recognition in Richardson of the common law rule establishing that
    enhancements cannot be imposed for the very same behavior could not have included use of a
    single deadly weapon during the commission of separate offenses. And this is so because no
    such common law rule existed. Instead the opposite was true.
    Conclusion
    We affirm the judgment of the trial court.
    Rush, C.J., and Dickson, David and Massa, JJ., concur.
    5
    

Document Info

Docket Number: 49S05-1410-CR-654

Judges: Rucker, Rush, Dickson, David, Massa

Filed Date: 7/30/2015

Precedential Status: Precedential

Modified Date: 11/11/2024