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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