ATTORNEY FOR APPELLANT
Kathleen M. Sweeney
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Karen Freeman-Wilson
Attorney General of Indiana
Eileen Euzen
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
JOSHUA E. SPEARS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-9908-CR-430
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale J. Bradford, Judge
Cause No. 49G03-9808-CF-141918
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
October 6, 2000
BOEHM, Justice.
Joshua E. Spears was convicted of murder, felony murder, conspiracy
to commit robbery, and robbery as a Class A felony. The trial court merged
the felony murder and the murder convictions and the conspiracy to commit
robbery and the robbery convictions, and sentenced Spears to sixty-five
years for murder to be served consecutively with fifty years for robbery.
In this direct appeal, Spears contends that (1) the Indiana Double Jeopardy
Clause requires that his Class A felony robbery conviction be reduced to a
Class C felony, and (2) the trial court found an improper aggravating
circumstance, failed to find significant mitigating circumstances supported
by the record, and imposed a manifestly unreasonable sentence. We remand
to the trial court with instructions to reduce the robbery conviction to a
Class C felony and otherwise affirm the judgment of the trial court.
Factual and Procedural Background
In August of 1998, Jeremy Gross was an employee of the Convenient
Food Mart in Indianapolis. Gross planned to rob the store and invited
Spears and James Learned to join him. Learned declined, but at
approximately 2:40 a.m. on August 26, Spears and Gross approached the
Convenient Mart where Christopher Beers was the sole employee on duty. The
doors of the store were locked from 12:00 a.m. to 6:00 a.m., but Beers
could allow people to enter by “buzzing” them in. Immediately after Beers
allowed Gross and Spears to enter, Gross, who was following Spears, raised
a handgun, shot Beers in the abdomen, and continued shooting at the fallen
clerk as he walked behind the counter. Spears initially stood beside Gross
when he opened fire but then ran to the video recorder serving four
surveillance cameras. When the eject button did not work, Spears took the
entire VCR. Spears and Gross then grabbed $650 from the cash register,
disabled the two telephones in the building, and fled. Beers followed
outside and attempted to use the payphone. He managed to take the phone
off the hook, but then collapsed on the sidewalk, where he died of multiple
gunshot wounds.
Spears and Gross disposed of the VCR and gun in a nearby pond. They
then went to Learned’s trailer to count their money. Witnesses, including
a passing motorist, led police to Gross, who later confessed and implicated
Spears. Spears was charged with murder, felony murder, conspiracy to
commit robbery, and robbery as a Class A felony.[1] A jury found him
guilty of all counts. The trial court merged the felony murder and murder
convictions and also merged the conspiracy to commit robbery and robbery
convictions, then sentenced Spears to sixty-five years for murder and fifty
years for robbery, to be served consecutively.
I. Double Jeopardy
Spears contends that his dual convictions for murder and robbery as a
Class A felony violate the Indiana Double Jeopardy Clause. He bases his
claim on the “actual evidence test” enunciated by this Court in Richardson
v. State, 717 N.E.2d 32 (Ind. 1999). The Indiana Double Jeopardy Clause
prohibits multiple convictions if there is “a reasonable possibility that
the evidentiary facts used by the fact-finder to establish the essential
elements of one offense may also have been used to establish the essential
elements of a second challenged offense.” Richardson, 717 N.E.2d at 53;
accord Wise v. State, 719 N.E.2d 1192, 1201 (Ind. 1999). Serious bodily
injury differentiates the Class A felony from robbery as a Class C felony.
Ind. Code § 35-42-5-1 (1998). Where a robbery conviction is elevated to a
Class A felony based on the same serious bodily injury that forms the basis
of a murder conviction, the two cannot stand. Logan v. State, 729 N.E.2d
125, 136-37 (Ind. 2000); Lowrimore v. State, 728 N.E.2d 860, 868-69 (Ind.
2000); Chapman v. State, 719 N.E.2d 1232, 1234 (Ind. 1999); Hampton v.
State, 719 N.E.2d 803, 808-09 (Ind. 1999).
Here, the jury was instructed that to find Spears guilty of robbery as
a Class A felony the State had to prove that he knowingly took property
from another person by putting that person in fear or using or threatening
the use of force and that serious bodily injury resulted to the other
person. The State argues that Spears’ claimed violation of the actual
evidence test should fail because “the jury could have reasonably applied
different evidence to support each offense.” Specifically, the State
points to the fact that Gross fired several shots at Beers. However, the
charging information, which was read to the jury as part of the
instructions, alleged that the serious bodily injury was the “death” of
Christopher Beers. Moreover, no other serious bodily injury was asserted
as a basis for the elevation of the robbery during closing argument. Under
these circumstances there is at least a reasonable possibility—if not a
near certainty—that the same evidence used by the jury to establish the
essential elements of murder was also included among the evidence
establishing an essential element of robbery as a Class A felony. The fact
that more than one shot was fired does not alter this conclusion. Absent a
specific instruction requiring the jury to base a Class A felony robbery
conviction on a serious bodily injury other than death, there is a
reasonable possibility that the jury used the same evidentiary facts to
support a murder conviction and a Class A robbery conviction. Accordingly,
the robbery conviction must be reduced to a Class C felony.[2]
The State argues that the Indiana Double Jeopardy claim should fail
for a number of novel reasons, none of which have merit. First, the State
contends the state constitutional argument is waived because Spears “failed
to make any separate analysis based on the state constitution and failed to
provide an analysis of the ‘statutory elements’ component in
Richardson.”[3] Spears cited the applicable provision of the Indiana
Constitution—Article I, Section 14—and this Court’s landmark opinion in
Richardson interpreting that provision. Spears noted that the “actual
evidence” test set forth in Richardson and a comparison of the statutory
elements as required for federal double jeopardy analysis under Blockburger
v. United States, 284 U.S. 299 (1932), were alternative means of reviewing
a state constitutional double jeopardy claim. He presented a cogent
argument citing cases that have applied the “actual evidence” test. There
was no need to provide any analysis of the alternative ground based on the
statutes alone. Spears’ dual convictions do not violate the Blockburger
test, and Spears made no such claim. His contention based on the actual
evidence test was argued and preserved.
Next, the State contends that this case should be remanded to the
trial court “for the trial court’s ruling on whether the two crimes are the
same for double jeopardy purposes.” The State contends that this
“intensely factual determination” is best made by the trial court, then
reviewed by this Court for an abuse of discretion. It is true that a
determination of the “reasonable possibility” component of the Richardson
test turns on an analysis of the evidence. The instructions and the
arguments of counsel are also relevant to that determination. Although we
have not expressly ruled on the standard of review in double jeopardy
cases, we have frequently treated reasonable possibility as a matter of
law for de novo review by the appellate courts. See, e.g., Burnett v.
State, ___ N.E.2d ___, ___ (Ind. 2000); Cutter v. State, 725 N.E.2d 401,
410 (Ind. 2000), . The State points out that we have deferred to trial
courts’ findings as to the existence vel non of a “serious evidentiary
dispute” for the purpose of instructions on lesser included offenses. See
Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Here, we have no
finding by the trial court. Even if we were to adopt a standard of review
analogous to that applied to the instruction issue, de novo review is
appropriate where the trial court made no finding. Cf. id.
Finally, the State argues that, should this Court find a double
jeopardy violation, the proper remedy is remand for a retrial on the
robbery count. The State cites no double jeopardy precedent for this
result, nor do we find any. To the contrary, both before and after
Richardson, the remedy for double jeopardy violations has routinely been to
reduce or vacate one of the convictions. Turnley v. State, 725 N.E.2d 87,
91 (Ind. 2000); Cutter, 725 N.E.2d at 410, State’s pet. for reh’g denied;
Wise, 719 N.E.2d at 1201; Richardson, 717 N.E.2d at 55; Bunch v. State, 697
N.E.2d 1255, 1257 (Ind. 1998). The State was given one opportunity to try
Spears on the charges it selected, the evidence it presented, and the
closing argument it chose to make. It is not entitled to a second bite of
the apple.
II. Sentencing
Spears attacks the trial court’s findings of aggravating and
mitigating circumstances in its sentencing statement. He also contends
that the aggregate sentence is manifestly unreasonable.
A. Sentencing Statement
The trial court found four aggravating circumstances, no mitigating
circumstances, and imposed maximum, consecutive sentences. The trial court
found the following aggravating circumstances: (1) a prior history of
juvenile delinquency, (2) prior attempts at rehabilitation had failed, (3)
Spears’ involvement with street gangs, and (4) “the facts of this
particular case.” The trial court further explained that the last of these
was based on (1) “the degree of planning that was involved before the
commission of the crime,” (2) the crime being “an absolute brutal execution
of Chris Beers and that it was done in connection with a Robbery,” and (3)
“the substantial steps [that] were taken to conceal the involvement of this
crime.” Spears contends that the trial court erred in finding the facts of
the crime to be an aggravating circumstance and in failing to find any
mitigating circumstances.
When a trial court relies on aggravating or mitigating circumstances
to deviate from the presumptive sentence, it is required to (1) identify
all of the significant mitigating and aggravating circumstances, (2) state
the specific reason why each circumstance is considered to be mitigating or
aggravating, and (3) articulate the court’s evaluation and balancing of the
circumstances to determine if the mitigating circumstances offset the
aggravating ones. Carter v. State, 711 N.E.2d 835, 837-38 (Ind. 1999)
(citing Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)). The same
aggravating circumstance or circumstances may be used to both enhance a
sentence and order sentences to be served consecutively. Taylor v. State,
710 N.E.2d 921, 925 (Ind. 1999); Brown v. State, 698 N.E.2d 779, 781 (Ind.
1998).
1. Improper Aggravating Circumstances
Spears is correct that a trial court may not use a factor constituting
a material element of an offense as an aggravating circumstance. Angleton
v. State, 714 N.E.2d 156, 160 (Ind. 1999). To the extent that the trial
court relied on the planning in the parking lot, an essential element of
the conspiracy conviction, to aggravate Spears’ conspiracy sentence, it
erred. However, the trial court did not err in finding that the fact that
the killing occurred “in connection with a Robbery” was an aggravating
circumstance. Cf. Workman v. State, 716 N.E.2d 445, 448-49 (Ind. 1999)
(enhancement of a murder sentence based in part on abuse of the corpse was
proper). Spears contends that the “in connection with a Robbery” factor
was the basis for the felony murder charge, but the trial court did not
enter judgment of conviction as to the felony murder count. Moreover, the
trial court’s finding of the facts of the crime as an aggravating
circumstance was also based on the fact that the killing was in the form of
an “absolute brutal execution.” This is a permissible aggravating
circumstance. The substantial post-crime steps to conceal the crime are
also matters the trial court could find to be an aggravating circumstance.
Although Spears contends there is no evidence that “definitively proves”
that he removed telephone wires, it was within the trial court’s discretion
to draw this reasonable inference based on the evidence presented at trial.
Noojin v. State, 730 N.E.2d 672, 678-79 (Ind. 2000). In sum, although
some components of the nature and circumstances of the offense aggravator
were improper, “[t]he remaining components of that aggravator were proper,
and a single aggravating circumstance may be sufficient to enhance a
sentence.” Angleton, 714 N.E.2d at 160.
2. Failure to Find Mitigating Circumstances
The finding of mitigating circumstances lies within the trial court’s
discretion. Hackett v. State, 716 N.E.2d 1273, 1277 (Ind. 1999). The
trial court is not obligated to find a circumstance to be mitigating merely
because it is advanced by the defendant. Id. Rather, on appeal, a
defendant must show that the proffered mitigating circumstance is both
significant and clearly supported by the record. Carter, 711 N.E.2d at
838. If the defendant does not advance a factor to be mitigating at
sentencing, this Court will presume that the factor is not significant and
the defendant is precluded from advancing it as a mitigating circumstance
for the first time on appeal. Cf. id. (“Trial counsel did not view either
factor as significant enough to warrant any mention at either sentencing
hearing.”); see generally Wurster v. State, 715 N.E.2d 341, 347-48 (Ind.
1999) (a party may not assert one ground at trial and a different ground on
appeal).
The only two mitigating factors raised on appeal that were also
argued to be mitigating by Spears at sentencing were his youthful
age—eighteen—and his expression of remorse. The trial court did not abuse
its discretion in concluding that neither of these was a significant
mitigating circumstance. As this Court recently observed in Sensback v.
State, 720 N.E.2d 1160, 1164 (Ind. 1999), an eighteen-year-old defendant is
“beyond the age at which the law commands special treatment by virtue of
youth.”
Additionally, Spears stated at sentencing:
I’d like to express how very sorry I am for the horrible crime I was
involved in on the early morning of August 26th, 1998, and for the
terrible loss of Christopher Beers. I would also like to say that my
intentions that night was to get a fountain drink, not to rob the
Convenient or to wish neither Christopher Beers nor anyone else be
killed.
The trial court, who had heard all the witnesses testify at trial, was not
convinced. It responded,
I’m sure that this soda fountain story is something maybe you’ve
convinced yourself of in order to live with what you’ve done . . . .
But as far as whether that story defies logic, sir, you’re asking the
Jury and the Court to have the logic of somebody that just flew into
town on the noon balloon, and we didn’t.
Although Spears expressed sympathy for the victims of his crimes, in the
same breath he disclaimed responsibility despite substantial evidence to
the contrary. Spears’ statement is very similar to that of the defendant
in Bonds v. State, 721 N.E.2d 1238, 1243 (Ind. 1999), who apologized to the
decedent’s family and then said he
was just in the wrong place at the wrong time because I didn’t—I
didn’t tell nobody; I didn’t pay nobody. I was just going to talk to
the guy about getting my mother’s car back. I’m sorry about what all
happened. I just don’t know what went wrong.
We held in Bonds that this statement did not qualify as a significant
mitigating circumstance that the trial court was required to take into
account. Id. The same is true of Spears’ equivocal apology coupled with a
disclaimer of accountability for his role in the crime.
B. Manifestly Unreasonable
As a final point, Spears contends that his maximum, consecutive
sentences for murder and robbery are manifestly unreasonable. Although
this Court has the constitutional authority to review and revise sentences,
Ind. Const. art. VII, § 4, it will not do so unless the sentence imposed is
“manifestly unreasonable in light of the nature of the offense and the
character of the offender.” Ind. Appellate Rule 17(B). This review is
very deferential to the trial court: “[T]he issue is not whether in our
judgment the sentence is unreasonable, but whether it is clearly, plainly,
and obviously so.” Bunch v. State, 697 N.E.2d 1255, 1258 (Ind. 1998)
(quoting Prowell v. State, 687 N.E.2d 563, 568 (Ind. 1997)); accord Brown
v. State, 698 N.E.2d 779, 783-84 (Ind. 1998).
Spears was eighteen at the time of the offense and his criminal record
consisted of two juvenile delinquency adjudications: disorderly conduct in
1995 and misdemeanor battery in 1996. The nature of the offense—entering a
convenience store to rob and kill the cashier—is severe and troubling.
Although Spears points to his “lesser role in the offenses,” the
surveillance video and witness testimony strongly suggest that Spears was
not an unwitting participant in a robbery in which Gross harbored an intent
to kill unbeknownst to Spears. The trial court was within its discretion
in so concluding. In cases in which a defendant had a limited role in a
murder, coupled with other mitigating circumstances, this Court has, on
occasion, found the maximum sentence to be manifestly unreasonable. E.g.,
Baxter v. State, 727 N.E.2d 429, 436 (Ind. 2000) (noting the defendant’s
“limited involvement” in a murder as the one who drove a car from which
another man shot the victim); Brown v. State, 720 N.E.2d 1157, 1160 (Ind.
1999) (noting defendant’s “role as a follower” of a codefendant twice his
age); Widener v. State, 659 N.E.2d 529, 534 (Ind. 1995) (observing that
defendant who participated in a murder and robbery did not formulate or
initiate the planned offenses). That is not the case here, however. To
gain entry to the convenience store, Spears blocked the victim’s view of
Gross, who was carrying a gun. He stood beside Gross when the first shot
was fired, and ran immediately to the store surveillance system. The
maximum sentence of seventy-three years is not manifestly unreasonable for
these offenses and this offender.[4]
Conclusion
This case is remanded to the trial court with instructions to reduce
the robbery conviction to a Class C felony and impose a sentence of eight
years on that count to be served consecutively with the previously imposed
sentence of sixty-five years for murder.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] Gross was charged with the same offenses and tried separately.
[2] Although the State contends that the Class A felony robbery conviction
does not violate the actual evidence test, it does not dispute that, if
there is a violation, the proper remedy is reduction to a Class C felony.
As this Court explained in Hampton, robbery as a Class B felony (for the
use of a deadly weapon) is not necessarily a lesser included offense of
robbery as a Class A felony. 719 N.E.2d at 809 n.1. That is true here
where the instructions to the jury gave the elements of robbery as a Class
C felony and further stated that the charge could be enhanced to a Class A
felony if the State proved beyond a reasonable doubt that Spears caused
serious bodily injury to the victim. There was no instruction on the use
of a deadly weapon, and thus reduction to a Class C felony is the proper
remedy.
[3] The State also contends that Spears waived this Court's review of any
federal double jeopardy claim by failing to cite the applicable provision
of the United States Constitution and failing to provide any authority in
support. As Spears notes in his reply brief, he did not raise a federal
double jeopardy claim. Thus, the State is incorrect that the claim is
waived; it was never raised.
[4] The trial court imposed the maximum sentence of 115 years, but as
explained in Part I, the Class A felony robbery conviction must be reduced
to a Class C felony. There is no need to remand for resentencing where it
is sufficiently clear that the trial court would impose the maximum
sentence for the Class C felony and order it served consecutively. Cutter
v. State, 725 N.E.2d 401, 409 n.3 (Ind. 2000).