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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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