Question: Does A Jury’s Deadlock On The Most Serious Charges, Paired With A Finding Of Guilt On Lesser Offenses, Equate To An Implied Acquittal?
Answer: Local Case Shows Us That Double Jeopardy Did NOT Attach And Retrial Was Allowed!!!
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 6 to 7 hours, Cleary ordered 6 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 45 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. The State charged Cleary with 2 felonies and several other crimes flowing from the collision. Cleary went to trial on all 8 counts, and on December 14, 2011, a jury returned guilty verdicts on the lesser charges, but was deadlocked on the more serious charges. The trial court permitted the State to retry Cleary on all 8 counts and set the second trial for August 27, 2012. Cleary’s second jury found him guilty of 5 charges and liable on 2 others. For the class B felony conviction, the trial court suspended Cleary’s driving privileges and imposed a sentence of 14 years in the Indiana Department of Correction.
On appeal, Cleary argued that his second prosecution should have been barred by double jeopardy. Indiana Code 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.” I.C. § 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.” But a guilty verdict and a judgment of conviction are two rather different things. They are different acts from which different consequences flow. A verdict of guilty can certainly be a significant legal event, but only if a court later enters judgment on it. Thus, the jury’s guilty verdicts here are not inherently the same as an acquittal or a conviction. 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.
Further, 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 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.” The same is true for a jury in an Indiana courtroom. Because a retrial was therefore permissible on Counts I, II, and III, I.C. § 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. 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. The U.S. Supreme Court has consistently held that ‘a retrial following a “hung jury” does not violate the Double Jeopardy Clause. This is true because the doctrine of continuing jeopardy applies. 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. Furthermore, the Government, like the defendant, is entitled to resolution of the case by verdict from the jury. 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. Jeopardy 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.’ 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 I.C. § 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.