ILNews

Merged conviction violates double jeopardy

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals vacated a defendant's conviction of conspiracy to deal methamphetamine because it violated Indiana's double jeopardy law, but the court affirmed his conviction and sentence for dealing methamphetamine.

In today's ruling in Robert R. Gregory Jr. v. State of Indiana, No. 15A01-0708-CR-348, Gregory raised several issues on appeal, arguing evidence supporting his convictions was obtained before police had a valid search warrant, a witness's testimony shouldn't have been allowed at trial, there was prosecutorial misconduct, and his sentence was inappropriate.

Gregory and two co-workers decided they would make methamphetamine at co-worker Justin Callaway's mother's home while she was away. The three men purchased various items used to produce methamphetamine and put the items in a barn on the property. Police received a tip Gregory was making methamphetamine on the property and visited it under the guise of questioning Callaway on an earlier domestic battery incident he had with his mother. Police later got a search warrant and found the items used to make methamphetamine in the barn. The state charged Gregory with dealing methamphetamine and conspiracy to deal.

Gregory filed a motion to suppress evidence recovered from the barn, alleging the search was conducted before police had the warrant. The trial court denied the motion. During trial, he also objected to the admission of the evidence on the same grounds. Again, the trial court denied the motion. He was convicted and sentenced to 20 years in prison.

In order to avoid a double jeopardy violation, the trial court merged the judgment on the conspiracy conviction into the conviction for dealing. The appellate court found this act of merging didn't erase the issue of double jeopardy and remanded the cause to the trial court to vacate the conspiracy conviction.

"A trial court's act of merging, without also vacating the conviction, is not sufficient to cure a double jeopardy violation," wrote Judge L. Mark Bailey.

The Indiana Court of Appeals affirmed the trial court's decisions regarding the issues Gregory raised on appeal. The appellate court ruled that it was clear on the facts of the case that Gregory had no interest in the property and he was just a visitor when police searched the barn. As such, he didn't have a legitimate expectation of privacy and can't challenge the search based on the Fourth Amendment, wrote Judge Bailey.

Gregory challenged Callaway's testimony about Gregory's involvement in making the methamphetamine at his trial, arguing his statements at trial and pre-trial statements to police had numerous discrepancies and shouldn't be allowed, and that his testimony was "incredibly dubious." Gregory failed to show Callaway's statements were "incredibly dubious," and there was also circumstantial evidence to support the conviction, wrote the judge.

The majority of the appellate court also found that the prosecutor's reading of a poem about methamphetamine during voir dire and stating an opinion that methamphetamine has negative effects on the community during closing arguments did not constitute misconduct. The poem was an opinion, and it didn't regard the guilt or innocence of someone making or using the drug, wrote the judge. Even though reading a poem and then asking for juror feedback on the drug is not a very effective way to question the jury, the actions don't constitute misconduct.

The statement by the prosecutor during closing arguments was a statement of an opinion, which isn't prohibited during closing arguments.

Finally, the Indiana Court of Appeals affirmed Gregory's sentence finding it was appropriate based on the nature of the offense and his character.

Judge James Kirsch, concurring in part and concurring in result in part in a separate opinion, believed that the trial court abused its discretion in allowing the poem to be read and that the prosecutor's comments at closing were improper. However, these were harmless errors so he concurred with the majority in affirming Gregory's conviction and sentence.
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  1. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

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  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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