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Man tried twice for same offense, but relief denial affirmed

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A divided Indiana Supreme Court ruled Wednesday that a man convicted of rape on retrial was unconstitutionally prosecuted twice for the same offense, but the court upheld denial of post-conviction relief.

The court affirmed denial of post-conviction relief from a Class B felony rape conviction in Juan M. Garrett v. State of Indiana, 49S04-1207-PC-431, which also had been affirmed by the Court of Appeals. Garrett’s conviction in a bench trial followed a jury trial in which he was cleared of one rape count and the jury hung on a second. Garrett was accused of twice raping the same woman who claimed he and two other men held her against her will and sexually assaulted her.

“We hold that the ‘actual evidence’ test announced in Richardson v. State, 717 N.E.2d 32 (Ind. 1999) is applicable to cases in which there has been an acquittal on one charge and retrial on another charge after a hung jury. We conclude however that the post-conviction court properly denied the petitioner’s claim that counsel rendered ineffective assistance in failing to pursue this issue at trial or on direct appeal,” Justice Robert Rucker wrote for the majority, joined by Justices Steven David, Loretta Rush and Chief Justice Brent Dickson.

“We acknowledge that in a different factual context this modified test may prove challenging in its application. But here the facts are fairly straightforward. In essence on retrial the State presented the same evidence of Rape A — the first-in-time rape — on which the State relied in the first trial and upon which the jury found Garrett not guilty. And given the relative paucity of evidence on retrial concerning Rape B — the second-in-time rape — we conclude there is reasonable possibility that the evidentiary facts used by the jury in the first trial to establish the essential elements of Rape, for which Garrett was acquitted, may also have been used on retrial to establish all of the essential elements of Rape for which Garrett was convicted,” Rucker wrote.

“We conclude therefore that Garrett was twice prosecuted for the same offense in violation of article 1, section 14 of the Indiana Constitution.”

Justice Mark Massa concluded in the result but argued Garrett was not a victim of double jeopardy.

“The record is clear that, in this second trial, the trial court, prosecution, and defense all understood that the two separate rapes were charged in chronological order and that Garrett was being retried for the alleged ‘Rape B’ only,” Massa wrote. “This does not mean that the victim had to confine her testimony in the second trial solely to Rape B, omitting all details of what transpired earlier in the evening; our jurisprudence does not require such a stilted, redacted and devoid-of-context presentation. (How, for instance, could she testify she was raped ‘again’ without mentioning the first rape?)

“We trust trial judges to separate wheat from chaff, permitting them, for instance, to render a verdict even after being exposed to inadmissible evidence that would irreparably taint a lay jury,” Massa wrote. … “I am confident that the experienced trial judge in this case performed just such a threshing here.”

But the majority noted Richardson requires only the reasonable probability that the facts a trial judge relied on to convict were the same ones the jury relied on in the previous trial.

“If we were to accept the dissent’s position, then that would mean there could never be a Richardson violation where the second trial after an acquittal is before the bench rather than a jury. In our view this goes beyond ‘judicial temperance’ and borders on judicial infallibility,” Rucker wrote for the majority.

“It is ‘reasonab[ly] possible’ that even an experienced trial judge can make a mistake. That is not to say that a mistake was in fact made in this case; but there is a reasonable possibility that is so. This is all Richardson requires,” the majority held.


 
 

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  • COA rewrites the law again
    I 100% concur!
  • COA rewrites the law again
    Justice in America has become and been a joke for a long time. Ever since I was a kid all a woman had to do was point and say he raped me and that man's life would soon be destroyed. Recently more than 20 men in one county in Texas doing time for sex crimes were exonerated and released after doing more than 300 years collectively. 300 years of human life wasted away like garbage because of lies that ignorant prosecutors and judges swallow like suckers.

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    1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

    2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

    3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

    4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

    5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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