Jeffrey A. Cleary v. State of Indiana , 23 N.E.3d 664 ( 2015 )

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James H. Voyles, Jr. Gregory F. Zoeller
Jennifer M. Lukemeyer Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
In the
Indiana Supreme Court
Jan 15 2015, 1:10 pm
No. 45S03-1404-CR-295
JEFFREY A. CLEARY,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
Appeal from the Lake Superior Court, No. 45G04-1011-FB-114
The Honorable Thomas P. Stefaniak, Jr., Judge
On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1212-CR-518
January 15, 2015
David, Justice.
On November 4, 2010, and for what was not the first time in his life, Jeff Cleary drank
and then chose to get behind the wheel of his car. Unlike in the past, however, this time his
decision led to the tragic death of a sixty-three-year-old man.
The State charged Cleary with multiple offenses related to his drunk driving. A jury
returned guilty verdicts on some offenses, but reported that it was deadlocked on others. Cleary
was then retried on all the offenses and found guilty as-charged by a second jury. We find no
violation of either Indiana’s statutory or constitutional double jeopardy protections, and therefore
affirm.
Facts and Procedural History
On the afternoon of November 4, 2010, Jeff Cleary drove to Giovanni’s Restaurant in
Munster, Indiana, for lunch and drinks with two other individuals. Over the course of the next
six to seven hours, Cleary ordered six drinks—all doubles of Absolut Vodka and water—and the
table shared a bottle of wine. Later that evening, Cleary went to the Country Lounge in Hobart,
Indiana. He had most of another glass of wine and left after approximately forty-five minutes.
Cleary then left the Country Lounge, intending to go home. By that point it was nearly
midnight, pitch-black, sleeting, and windy. Cleary called his wife on his cell phone. As Cleary
was placing his call, he struck a service vehicle parked on the shoulder of the road. The service
truck was parked, with its emergency lights activated, behind a semi that had a flat tire. Phillip
Amsden, the service truck driver, was between the service truck and the semi. The impact of
Cleary’s vehicle pushed the service truck into the semi, pinning Amsden. Amsden died at the
scene. Cleary claimed to be uninjured.
A paramedic evaluating Cleary at the crash scene noted that Cleary appeared drunk, with
blood-shot eyes, slurred speech, and smelling of alcohol. State Troopers similarly noticed an
overwhelming odor of alcohol and that Cleary’s eyes were watery, his speech slurred, and his
reactions slow. Cleary was placed in custody and transported to a local hospital. While there he
was given several field sobriety tests and consented to a blood draw. Cleary failed each field
sobriety test and his blood draw showed a blood-alcohol concentration of 240 milligrams per
deciliter, or a BAC of .24.
2
The State charged Cleary with five criminal charges and three infractions, all flowing
from the November 4, 2010, collision:
 Count I: Causing death when operating a motor vehicle with a BAC of at least
0.15, a class B felony. Ind. Code § 9-30-5-5(b) (2010).
 Count II: Causing death when operating a motor vehicle while intoxicated, a
class C felony. Ind. Code § 9-30-5-5(a).
 Count III: Operating a motor vehicle with a BAC of at least 0.15, a class A
misdemeanor. Ind. Code § 9-30-5-1(b) (2010).
 Count IV: Operating a motor vehicle while intoxicated in a manner endangering
a person, a class A misdemeanor. Ind. Code § 9-30-5-2(b) (2010).
 Count V: Operating a motor vehicle while intoxicated, a class C misdemeanor.
Ind. Code § 9-30-5-2(a).
 Count VI: Failure to yield to a recovery vehicle, a class A infraction. Ind. Code
§§ 9-21-8-35(c) (2010), 9-21-8-54(a) (2010).
 Count VII: Improper lane movement, a class C infraction. Ind. Code §§ 9-21-8-
11 (2010), 9-21-8-49 (2010).
 Count VIII: Possessing more than one driver’s license, a class C infraction. Ind.
Code §§ 9-24-11-4(a) (2010), 9-24-11-8(a) (2010).
Cleary went to trial on all eight counts, and on December 14, 2011, a jury returned guilty
verdicts on Counts IV and V, and found Cleary had committed the infractions alleged in Counts
VI and VII. It deadlocked, however, on Counts I, II, and III.
The State did not move for a judgment on the verdicts, but Cleary did. The trial court
allowed Cleary and the State until January 12, 2012, to submit briefs on the issue. It held a
hearing on January 30, 2012, after which it denied Cleary’s motion to compel an entry of
judgment on the verdicts. It permitted the State to retry Cleary on all eight counts and set the
second trial for August 27, 2012.
3
Cleary’s second jury found him guilty of Counts I through V and liable for Counts VI and
VII.1 The State moved for judgments on the verdicts as to Counts I, VI, VII, and VIII, and the
trial court entered judgments of convictions as to those counts only. The trial court fined Cleary
$1500 for the three infractions and suspended his driving privileges for two years. For the class
B felony conviction on Count I, the trial court suspended Cleary’s driving privileges for an
additional five years and imposed a sentence of fourteen years in the Indiana Department of
Correction.
Cleary appealed, arguing that his second prosecution should have been barred by double
jeopardy, that the trial court abused its discretion in admitting evidence of Cleary’s blood draw,
and that his fourteen-year sentence was inappropriate in light of his character and the nature of
the offense. The Court of Appeals affirmed, Cleary v. State, 2 N.E.3d 765, 766 (Ind. Ct. App.
2014), with Judge Crone dissenting as to Cleary’s double jeopardy claim, id. at 773.
We granted transfer and summarily affirm the Court of Appeals with respect to its
resolution of Cleary’s evidentiary issue and request for sentence revision. Cleary v. State, 7
N.E.3d 992 (Ind. 2014) (table); Ind. Appellate Rule 58(A)(2). We write only on Cleary’s claim
of a double jeopardy violation.
Discussion
Cleary’s double jeopardy argument is multifaceted. For starters, several provisions of the
Indiana Code govern the entry of judgments of conviction and prohibit retrial in certain
circumstances. Cleary says those provisions operate together in a manner that prohibit his retrial.
Cleary couples this statutory claim with a constitutional one, arguing that Indiana’s constitutional
1
Cleary admitted to Count VIII.
4
double jeopardy protections apply to his case and were violated by his retrial and subsequent
convictions.
Both of these challenges are reviewed de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind.
2011). And in short summary, we reject them both. As we explain below, the fact that Cleary’s
jury affirmatively deadlocked on his greater offenses is significant—and fatal to his claim—for
several reasons. For one thing, it takes his case out of the scope of the implied acquittal doctrine.
And as a consequence, the statutory provisions upon which Cleary relies do not bar his retrial.
Second, in both Indiana and federal jurisprudence, hung juries do not create double jeopardy
implications. As such, this aspect of his claim must also fail.
I. Indiana’s Statutory Double Jeopardy Protections
We begin with Cleary’s statutory claim. Cleary says that the Indiana Code required the
trial judge here to enter judgments of conviction on the first jury’s guilty verdicts, and if it had
done so then those convictions would have statutorily prohibited his retrial on the same offenses.
Additionally, he says those convictions would have implied acquittals in the charges for which
his jury deadlocked, meaning the State could not retry those deadlocked charges, either. The
Court of Appeals has previously resolved this very issue, in a way that rejects Cleary’s view of
how the statutes operate. This Court has not squarely addressed the question until today, but we
likewise find Cleary’s application of the statutes to be incorrect.
Indiana Code § 35-41-4-3 (2008) codifies protections against being placed in jeopardy
more than once for the same offense. It provides, in relevant part, that “[a] prosecution is barred
if there was a former prosecution of the defendant based on the same facts and for commission of
the same offense and if: (1) the former prosecution resulted in an acquittal or a conviction of the
defendant.” Ind. Code § 35-41-4-3(a). It also incorporates an “implied acquittal” principle by
providing that “[a] conviction of an included offense constitutes an acquittal of the greater
offense, even if the conviction is subsequently set aside.” Ind. Code § 35-41-4-3(a)(1); Haddix
v. State, 827 N.E.2d 1160, 1165 (Ind. Ct. App. 2005), trans. denied.
5
Cleary’s first jury reached a verdict of guilty on the lesser-included OWI
misdemeanors—those charges not requiring proof that Cleary caused Amsden’s death or proof of
a BAC greater than 0.15—and it deadlocked on the greater offenses. It is unequivocal that if the
trial court had entered a judgment of conviction for those lesser-included misdemeanors, Indiana
Code § 35-41-4-3(a) would have barred the State from retrying Cleary on Counts I, II, and III.
But “a guilty verdict and a judgment of conviction are two rather different things.”
Carter v. State, 750 N.E.2d 778, 779 (Ind. 2001). They are “different acts from which different
consequences flow.” Id. at 780. “A verdict of guilty can certainly be a significant legal event,
but only if a court later enters judgment on it.” Id. Thus, the jury’s guilty verdicts here are not
inherently the same as “an acquittal or a conviction” such that Ind. Code § 35-41-4-3(a)
necessarily applies. Similarly, they are not “conviction[s] of an included offense” such that the
implied acquittal provision, by its terms, bars retrial on the greater offenses.
Cleary seeks the protection of this section regardless of the distinction between
convictions and verdicts, because he says the trial court was compelled to enter a judgment of
conviction on the lesser-included offenses pursuant to Indiana Code § 35-38-1-1.2 But that
2
Indiana Code § 35-38-1-1(a) (2008) provides that, subject to an exception not relevant here, “after a
verdict, finding, or plea of guilty, if a new trial is not granted, the court shall enter a judgment of
conviction.” The statute does not specify how long a trial court has to accomplish this task. The Criminal
Rules provide that a trial court shall “promptly” enter the judgment of conviction, and may be compelled
by mandate to do so. Ind. Crim. Rule 15.1. And we have said that “the trial court may not withhold
judgment but is required to enter a judgment of conviction immediately unless a temporary postponement
is dictated by good cause shown or the interest of justice so requires.” Debro v. State, 821 N.E.2d 367,
372 (Ind. 2005).
Cleary does not present an argument that the trial court’s refusal to immediately enter convictions here
was outside a permissible “temporary postponement,” nor do we see the need to establish a firmer or
brighter line than Debro. We agree with the Court of Appeals that the delay here was supported by good
cause or otherwise in the interest of justice. See Cleary, 2 N.E.3d at 767-68 n.3. The delay was solely so
that the trial court and parties could research the question of whether deadlocks on Cleary’s greater
offenses operated in the same manner as acquittals for double jeopardy purposes. We could hardly fault
6
provision does not require a judgment be entered when a new trial is granted. So essentially,
Cleary’s argument is that the jury’s guilty verdicts on Counts IV and V were implied acquittals
of Counts I, II, and III, therefore his retrial was barred on those greater offenses, and the trial
court was required to enter the judgments of conviction on Counts IV and V. We reject Cleary’s
claim and conclude that a retrial was permissible in his case.
The Court of Appeals faced a similar situation in Haddix, 827 N.E.2d 1160. Much like
Cleary, Haddix was charged with a number of OWI-based offenses and a jury returned guilty
verdicts on several lesser-included offenses but deadlocked on the greater offenses. The trial
court denied Haddix’s motion for entry of judgment on the verdicts and this Court denied his
subsequent petition for a writ of mandamus compelling the trial court to act. Haddix was retried.
The second time around he was again found guilty of the lesser-included offenses, but expressly
acquitted on the greater offenses.
Haddix appealed, claiming that his retrial violated the double jeopardy protections
embodied in the Fifth Amendment to the U.S. Constitution and Indiana Code § 35-41-4-3(a). Id.
at 1162. In rejecting Haddix’s claim, the Court of Appeals relied on a most unlikely source: this
Court’s denial of Haddix’s petition for a writ of mandamus. Id. at 1166-67.
Haddix’s petition had advanced the same claim as his appeal. And though this Court’s
denial order was silent as to its basis, the Court of Appeals believed that holding on appeal that
an entry of judgment of convictions had been required at the conclusion of Haddix’s first trial
“would seem to fly in the face of our supreme court’s denial of Haddix’s petition for writ of
mandamus.” Id. at 1166.
the trial court for giving this issue reasonable consideration, as it has now drawn this Court into the case
as well.
7
The Court of Appeals also reviewed the requirements for issuing a writ of mandamus,
and found that the only requirement not satisfied was that “the respondent court has exceeded its
jurisdiction or failed to act when it was under a duty to act.” Id. at 1166-67 (citing Ind. Original
Action Rule 3(A)). Thus, the Court of Appeals concluded that “the most likely and reasonable
inference” to be drawn from the denial of Haddix’s petition was that this Court “concluded the
trial court was not under a duty to enter judgments of conviction on the first jury’s guilty
verdicts, and that it was proper to allow a second trial against Haddix on the C felony charges to
go forward.” Id. at 1167.
The Haddix panel saw this result as consistent with a view that Section 35-41-4-3(a)
“does not require a trial court to enter a judgment of conviction on a guilty verdict for a lesser
included offense if a jury simultaneously volunteers that it could not reach an agreement, either
to acquit or convict, on the greater offense.” Id. “Instead, in such a situation the general
principles concerning hung juries would allow the trial court to declare a mistrial and not enter
judgment on the lesser included offense guilty verdict.” Id. And therefore there was no violation
of Indiana Code § 35-41-4-3(a) because the literal terms of that provision only bar a second
prosecution when there has been a conviction for a lesser-included offense—not merely a verdict
on a lesser-included offense. Id.
The trial court here relied on Haddix in rejecting Cleary’s motion for entry of judgment
on the verdicts. Cleary argues that “such speculative reasoning should no longer be the litmus
tests as to whether a trial court has the right to arbitrarily withhold entering a judgment of
conviction merely to avoid jeopardy attaching.” (Appellant’s Br. at 11.) “Under Haddix, the
State is given a tunnel to escape I.C. § 35-41-4-3 by giving trial courts the option to not enter a
conviction as dictated by I.C. § 35-38-1-1.” (Appellant’s Br. at 11.)
We agree with Cleary that attempting to infer this Court’s rationale from an order
denying a petition for a writ of mandamus is a speculative venture. The denial of Haddix’s
petition for a writ of mandamus carries no more substantive or precedential weight than our
subsequent denial of his petition to transfer following his direct appeal. Compare Ind. Appellate
8
Rule 58(B) (“The denial of a Petition to Transfer shall have no legal effect other than to
terminate the litigation between the parties in the Supreme Court.”) with Ind. Original Action
Rule 5(B) (“If the application is denied, an order of denial shall be entered expeditiously. The
denial of the application will end the proceedings, regardless of whether the Court has conducted
a hearing.”).
That cautionary note aside, for the reasons expressed below we agree with the Haddix
panel’s conclusion that Indiana Code § 35-41-4-3(a)’s implied acquittal provision does not apply
when the jury returns a guilty verdict on a lesser-included offense but deadlocks on the greater
charge. The doctrine arose in response to much different circumstances. See Price v. Georgia,
398 U.S. 323 (1970); Green v. U.S., 355 U.S. 184 (1957).
In Green, the defendant was charged with arson and first-degree murder, and the jury was
instructed that they could also find Green guilty of second-degree murder on the first-degree
murder count. The jury found him guilty of arson and second-degree murder and was silent as to
first-degree murder. However, that conviction was later reversed on appeal and he was retried
for first-degree murder. The U.S. Supreme Court concluded that the defendant’s second trial for
first-degree murder constituted a double jeopardy violation because it believed the first jury
chose between first- and second-degree murder, and it “regarded the jury’s verdict as an implicit
acquittal on the charge of first degree murder.” Green, 355 U.S. at 189–90. “In brief, we believe
this case can be treated no differently, for purposes of former jeopardy, than if the jury had
returned a verdict which expressly read: ‘We find the defendant not guilty of murder in the first
degree but guilty of murder in the second degree.’” Id. at 191.
Price expanded Green in a case in which a defendant was charged with murder and a
guilty verdict returned on the lesser-included crime of voluntary manslaughter. The conviction
was set aside after an appeal and the defendant retried for murder. He was again convicted of
voluntary manslaughter and the U.S. Supreme Court found this impermissible even though the
defendant was not ever convicted of the higher charge, as Green had been. Price, 398 U.S. at
329. The result of the second trial was not what controlled, the Supreme Court said, because
9
“the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of
trial and conviction, not punishment.” Id. “To be charged and to be subjected to a second trial
for first-degree murder is an ordeal not to be viewed lightly.” Id. at 331.
But significantly, neither Green nor Price involved juries that were hung on the greater
offense. Rather, the juries in those cases were silent as to their verdicts on the greater charges.
See Id. at 324 (“The jury returned a verdict of guilty to the lesser included crime of voluntary
manslaughter . . . The jury’s verdict made no reference to the charge of murder.”) (emphasis
added); Green, 355 U.S. at 186 (“The jury found Green guilty of arson and of second degree
murder but did not find him guilty on the charge of murder in the first degree. Its verdict was
silent on that charge.”) (emphasis added). In light of the jury’s silence in those cases, the
Supreme Court assumed that the jury decided to acquit on the greater offense. See Id. at 190–91.
Courts in Indiana have therefore defined “implied acquittal” in line with the
circumstances of Green and Price. It is “an ‘acquittal in which a jury convicts the defendant of a
lesser-included offense without commenting on the greater-offense.’” Kocielko v. State, 938
N.E.2d 243, 249 (Ind. Ct. App. 2010) (emphasis added) (quoting Moore v. State, 882 N.E.2d
788, 798 n.8 (Ind. Ct. App. 2008) (May, J., concurring in result)), trans. denied; see also Black’s
Law Dictionary 27 (9th ed. 2009).
Under that definition, Cleary’s first trial “did not result in ‘acquittal implied by
conviction on a lesser-included offense.’” Kocielko, 938 N.E.2d at 249 (quoting Price, 398 U.S.
at 329). Rather, “‘[t]he jury’s express statement that it could not agree on a verdict as to the
greater offense obviously precludes the inference that there was an implied acquittal.’” Haddix,
827 N.E.2d at 1165 (quoting U.S. v. Bordeaux, 121 F.3d 1187, 1192 (8th Cir. 1997)). Simply
put, “we cannot infer from the jury’s verdicts that it believed [Cleary] was innocent.” Moore,
882 N.E.2d at 798. Cf. Kocielko, 938 N.E.2d at 249 (rejecting implied acquittal claim when
defendant acquitted of one charge and jury deadlocked on two others because “[a] deadlocked
jury does not result in acquittal barring retrial under the federal Double Jeopardy Clause.” (citing
Tibbs v. Florida, 457 U.S. 31, 42 (1982) and Menifee v. State, 512 N.E.2d 142, 143 (Ind. 1987)).
10
We do not interpret the statutory implied acquittal provision any differently than the
doctrine developed from Green and Price. Indiana Code § 35-41-4-3(a)(1) codifies the implied
acquittal doctrine, but nothing in the statute expands the doctrine to include circumstances where
the jury affirmatively states that it has deadlocked on the greater offense.3 Accordingly, because
the jury affirmatively deadlocked on the greater offenses at Cleary’s first trial rather than
remaining silent as to those counts, Section 35-41-4-3(a)’s implied acquittal provision is not
implicated.4 The guilty verdicts on the lesser-included offenses do not turn those deadlocked
results into acquittals such that retrial would be barred under the statute.
And as we discuss in greater detail below, nothing in double jeopardy jurisprudence
prohibits a retrial on the offenses where the jury is deadlocked. Instead, as the U.S. Supreme
Court said, “when a jury in a federal court, which operates under the unanimity rule and is
3
We also point out that this statutory provision does not stand alone. Indiana Code § 35-41-4-3(a)(2)
addresses double jeopardy implications when a trial ends in a mistrial, and expressly provides that a
subsequent prosecution is permitted when “the jury was unable to agree on a verdict.” Ind. Code § 35-41-
4-3(a)(2)(v). Cleary’s position would mean that subsection (a)(1) would prohibit retrial when a jury
deadlocks on a greater offense but returns a guilty verdict on a lesser-included offense for one defendant,
because that deadlock should be equated with an acquittal, whereas (a)(2) would permit retrial if the jury
deadlocked on all the offenses for a different defendant, apparently because that deadlock is not equated
with an acquittal. In effect, Cleary proposes an exception to the general rule permitting retrials after
deadlocked juries. There is no rational reason why the first defendant (Cleary) should benefit from that
windfall, and we will not permit such an illogical result to flow from our interpretation of the statute.
4
Cleary also says that the State chose to charge multiple grades of the same offense, and therefore it
“assume[d] the risk that a jury may not find guilt on the more serious counts,” and if the State wanted to
avoid that risk then it should only have charged the greater offenses. (Appellant’s Br. at 11.) But the fact
that the State has discretion in charging is not dispositive on application of the implied acquittal doctrine,
just as it is not dispositive on whether the lesser-included offenses are ultimately available to a defendant.
In Green, for example, Green was charged with first-degree murder and the jury was instructed that Green
could be convicted on either the greater or lesser-included offenses. Green, 355 U.S. at 185. In Price, the
defendant was also only charged with the greater offense—the lesser-included offense was provided to
the jury in the final instructions. Price, 398 U.S. at 324. And in Haddix the State initially filed the lesser-
included charges, but later excluded them by amending its charging information. Haddix, 827 N.E.2d at1161–62. But as in Price, the trial court in Haddix instructed the jury on the lesser-included offenses
based on the evidence presented at trial. Id.11
instructed to acquit a defendant if it has a reasonable doubt about his guilt . . . cannot agree
unanimously upon a verdict, the defendant is not acquitted, but is merely given a new trial.”
Johnson v. Louisiana, 406 U.S. 356, 363 (1972). The same is true for a jury in an Indiana
courtroom. Menifee, 512 N.E.2d at 143–44. Because a retrial was therefore permissible on
Counts I, II, and III, Indiana Code § 35-38-1-1 did not compel the trial court to enter judgments
of conviction with respect to the first jury’s verdicts on Counts IV, V, VI, and VII.
II. Indiana’s Constitutional Double Jeopardy Protections
Cleary also argues that his retrial was barred by Indiana’s constitutional protections
against double jeopardy. He says that his convictions on the lesser-included offenses—which he
asserts should have automatically flowed from the guilty verdicts on those charges—mean that
he could not have been convicted (or even tried) for the greater offenses at his second trial.5 To
an extent, then, our conclusion that Indiana Code § 35-41-4-3(a) does not apply to Cleary’s case
necessarily sounds a death knell for this argument. We still address Cleary’s position in light of
our recent case law broadening the application of Indiana’s constitutional double jeopardy
prohibitions, but conclude that his claim nevertheless fails.
Article 1, § 14 of the Indiana Constitution provides, in part, that “[n]o person shall be put
in jeopardy twice for the same offense.” This prohibition—like all double jeopardy
protections—“protect[s] the integrity of jury acquittals and the finality interest of defendants,
shield[s] against excessive and oppressive prosecutions, and ensure[s] that defendants will not
undergo the anxiety and expense of repeated prosecution and the increased probability of
conviction upon reprosecution.” Richardson v. State, 717 N.E.2d 32, 37 (Ind. 1999).
5
As such, our analysis is only addressing Cleary’s contention that double jeopardy would bar his retrial
on the greater offenses upon which the jury was deadlocked (Counts I-III).
12
In determining whether those protections had been violated under the Indiana
Constitution’s terms, in Richardson this Court held that
[T]wo or more offenses are the “same offense” in violation of
Article I, Section 14 of the Indiana Constitution, 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. Cleary contends his retrial on the greater offenses fails both of these tests, but we do
not believe the tests apply at all. Here, where there was no acquittal on the lesser-included
offenses and the jury was hung on the greater offenses, the doctrine of continuing jeopardy
applies to retrial on the greater offenses.
Although Cleary’s second trial exposed him to “jeopardy” as that term is used in both
Indiana and federal jurisprudence, it was not a new jeopardy distinct from that of his first trial.6
“[T]he U.S. Supreme Court has consistently held that ‘a retrial following a “hung jury” does not
violate the Double Jeopardy Clause.’” Griffin v. State, 717 N.E.2d 73, 79 (Ind. 1999) (quoting
Richardson v. U.S., 468 U.S. 317, 324 (1984)).7 This is true because the doctrine of continuing
jeopardy applies. See Griffin, 717 N.E.2d at 78. Under this doctrine, “a defendant who is retried
following a hung jury is not placed in jeopardy twice for the same offense, because the initial
jeopardy that attaches to a charge is simply suspended by the jury’s failure to reach a verdict.”
Davenport v. State, 734 N.E.2d 622, 625 (Ind. Ct. App. 2000). Furthermore, “[t]he Government,
6
The idea of “jeopardy” is not simply the punishment embodied in a defendant’s sentence, but “the risk
of trial and conviction” itself. Garrett v. State, 992 N.E.2d 710, 721 (Ind. 2013); see also Green, 355 U.S.
at 188 (“a defendant is placed in jeopardy once he is put to trial before a jury”).
7
Griffin resolved challenges based under both Indiana and federal double jeopardy protections, but the
principles it states about those protections are broadly applicable to both, and Cleary does not argue that
Indiana’s constitutional provision has a different scope of how and when jeopardy terminates or
continues.
13
like the defendant, is entitled to resolution of the case by verdict from the jury.” Id. (quoting
Richardson, 468 U.S. at 326).
Thus, the jury’s deadlock meant that Cleary’s second trial on the greater offenses was
simply a continuation of the jeopardy from his first. See Green, 355 U.S. at 188. “[J]eopardy is
not regarded as having come to an end so as to bar a second trial in those cases where
‘unforeseeable circumstances . . . arise during [the first] trial making its completion impossible,
such as the failure of a jury to agree on a verdict.’” Id. (emphasis added) (quoting Wade v.
Hunter, 336 U.S. 684, 689 (1949)); see also Griffin, 717 N.E.2d at 79–80.
We acknowledge that Richardson’s application was recently expanded in Garrett v. State,
992 N.E.2d 710 (Ind. 2013). We held “that the ‘actual evidence test’ announced in [Richardson]
is applicable to cases in which there has been an acquittal on one charge and retrial on another
charge after a hung jury.” Id. at 714. Cleary contends that Garrett supports his position. Again
we disagree.
In Garrett, a woman was raped at least twice by a man later identified as Garrett. Garrett
was charged with multiple counts, including two counts of rape. A jury found him not guilty on
one of the rape counts but deadlocked on the second. He was then retried on the deadlocked rape
count and found guilty. Garrett later sought post-conviction relief, alleging that he received
ineffective assistance of counsel because his trial counsel failed to object to the second trial on
double jeopardy grounds and his appellate counsel failed to raise a double jeopardy argument on
appeal. Id. at 718. Garrett’s PCR court denied his petition and the Court of Appeals affirmed.
Id.We recognized that the majority of double jeopardy claims arise when defendants
challenge multiple convictions, rather than a second trial after an acquittal. But that
generalization did not exclude Garrett’s case from consideration as to “whether two offenses are
the same offense when there is an acquittal on one offense and retrial on another offense.” Id. at
720. Instead, we found Article 1, § 14 to still apply in that circumstance. Id. at 721.
14
We therefore extended Richardson’s actual evidence test and held that, in a case like
Garrett’s where a defendant is charged with two offenses and acquitted of one and deadlocked on
the other, a double jeopardy violation may occur if “there is a reasonable possibility that the
evidentiary facts used by the fact-finder to establish the essential elements of the offense for
which the defendant was acquitted may also have been used to establish all of the essential
elements of the offense for which the defendant was convicted.” Id. at 723. And we then found
just such a violation; there was sufficient evidentiary overlap on the rape counts between the first
and second trials that there was a reasonable possibility that evidence used by the jury to acquit
Garrett on one rape count in the first trial was used by the judge to find him guilty of rape in the
second trial. Id.
The conclusion that the actual evidence test applied was consistent with one of the
rationales for double jeopardy protections: to ensure that “‘the State will not be allowed to make
repeated attempts to convict an accused for the same offense.’” Id. at 721 (quoting Thompson v.
State, 259 Ind. 587, 591, 290 N.E.2d 724, 726 (1972)). “Having had one full opportunity to
convict an accused, the State should not receive a ‘second bite at the apple.’” Garrett, 992
N.E.2d at 721. “In other words, double jeopardy protection prohibits twice subjecting an
accused to the risk that he will be convicted of a single crime.” Id. But for several reasons,
Garrett does not invite or compel application of either of Richardson’s tests to Cleary’s case.
For one thing, Garrett involved two distinct rapes. Garrett could have been convicted and
sentenced for both—with no double jeopardy implications at all—or potentially convicted and
sentenced twice for the same rape or acquitted and then retried and convicted for the same
rape—both outcomes being violative of double jeopardy protections. Here, though, there was
only one act of drunk driving for which Cleary could be convicted. Garrett thus addressed
concerns not present in Cleary’s case at all.
Second, the double jeopardy issue in Garrett was not the retrial itself. The violation
flowed from the evidence used in the retrial because it raised the possibility that Garrett was
convicted based on the facts underlying the rape for which he had previously been acquitted (and
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for which he could not be retried) and not the rape on which the jury deadlocked. In essence,
there was a chance that the State got an impermissible second bite at the acquitted charge. That
is not a concern here because Cleary was not acquitted or convicted on Counts I, II, or III at his
first trial. His jury deadlocked, and the State may continue to pursue prosecutions after a hung
jury.
Notwithstanding the important double jeopardy protections accorded by both the Indiana
and U.S. Constitutions, we must also “accord[] recognition to society’s interest in giving the
prosecution one complete opportunity to convict those who have violated its laws.” Griffin, 717
N.E.2d at 79 (quoting Arizona v. Washington, 434 U.S. 497, 509 (1978)). This means that “a
defendant’s valued right to have his trial completed by a particular tribunal must in some
instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”
Wade, 336 U.S. at 689. This is just such an instance.
Conclusion
Cleary’s first jury’s deadlock on the most serious of his charges, paired with its finding of
guilt as to the lesser offenses, did not equate to an implied acquittal of those more serious
offenses under Indiana Code § 35-41-4-3, nor did it violate the Indiana Constitution’s double
jeopardy protections to retry Cleary on the greater offenses upon which the jury was deadlocked.
We therefore affirm his convictions and sentence.
Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
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