ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria Ursulskis Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
Collis Dean Sivels, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-9908-CR-455
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert York, Special Judge
Cause No. 49G02-9612-CF-202377
January 29, 2001
SHEPARD, Chief Justice.
Four juries have assembled in the murder prosecution of appellant
Collis Sivels. The first was dismissed after the court granted a
continuance. Two successive juries were unable to agree on a verdict.
Sivels contends that the fourth prosecution, which resulted in his
conviction, violated his due process rights under both the Fourteenth
Amendment of the U.S. Constitution and Article I, Section 12 of the Indiana
Constitution, as well as precepts of fundamental fairness grounded in both
constitutions.
In analyzing Sivels’ claims, we examine the authority of a trial court
to dismiss an information and end prosecution after prior attempts to
convict a defendant resulted in hung juries.
Facts and Procedural History
On the evening of September 21, 1996, Sivels, Jeremy Adams and a
third person were at a hotel bar near the Indianapolis International
Airport. Michael Shanklin was also at the bar. Shanklin later spoke to
Sivels and Adams in the parking lot near the hotel entrance, saying he
wanted to get cocaine from someone who lived on the west side of
Indianapolis.
Adams drove Shanklin, Sivels, and a fourth person to the home
described by Shanklin. Once there, Shanklin “couldn‘t score” any drugs.
(R. at 433.) Under Sivels’ direction, Adams then drove the group to the
apartment complex where Sherita Robinson lived. Sivels went to Robinson’s
apartment and the rest of the group fell asleep in the car.
Adams eventually went to Robinson’s apartment looking for Sivels.
Sivels left the apartment with Adams and suggested that they rob Shanklin.
Adams agreed. He shoved Shanklin out of the front passenger seat of the
car onto the parking lot pavement. Sivels beat Shanklin and then shot him
in the stomach.
While Shanklin lay bleeding on the pavement, Adams reached into
Shanklin’s pocket and stole his wallet. Then Sivels shot Shanklin in the
head. Sivels and Adams returned to the car and drove away. Shanklin
remained on the ground and later died from the two gunshot wounds.
The State charged Sivels and Adams as co-defendants with murder,
felony murder and robbery. Jury selection began on October 14, 1997. The
selected jury was dismissed before it was sworn because Sivels’ case was
continued due to the fact that Adams’ case was continued.
On June 2, 1998, a jury was selected and sworn. The jury found
Sivels not guilty of felony murder or robbery. It was unable to reach a
verdict on the murder charge. The court dismissed the jury and set a new
trial date. The State moved to try the defendants separately, and the
court so ordered.
Sivels was the sole defendant in the next jury trial; it began on
March 22, 1999. The jury was unable to reach a verdict on the murder
charge. The court denied Sivels’ request for bail and reset the matter for
another jury trial. Sivels later filed a motion to dismiss based upon his
contention that the multiple prosecutions violated his right to due
process. After a hearing, the trial court denied the motion.
The next trial began on June 29, 1999. On the same date, Adams pled
guilty and subsequently testified for the State against Sivels. The jury
found Sivels guilty of murder. He now appeals this final prosecution.
Issue of First Impression
Sivels argues that retrial after two successive deadlocked jury trials
violated his right to due process and fundamental fairness.[1]
(Appellant’s Br. at 8.) Analysis of this claim requires that we first
determine whether a trial court has authority to dismiss an information in
order to put an end to successive prosecutions resulting from hung juries.
If this authority exists, then we must next consider when due process and
precepts of fundamental fairness require such a dismissal. This is an
issue of first impression in Indiana.
Inherent Authority to Dismiss
Sivels asserts, as he did in the hearing on the motion to dismiss,
that the trial court “had the inherent authority to take up [his] Motion to
Dismiss the Information and rule favorably thereon.” (Appellant’s Br. at
24.) He supports this contention by citing Hawkins v. State, 125 Ind. 570,
573, 25 N.E. 818, 819 (1890), in which we said, “When a court is created by
the legislature under the constitution, all the powers essential to the
existence of the tribunal, and the due exercise of its powers, at once vest
in it from the constitution . . . . This power . . . is an inherent one,
and exists independently of statute.”
In addition to a court’s inherent power, Sivels claims refuge in the
federal Constitution’s Due Process Clause[2] and the Indiana Constitution’s
Due Course of Law Clause.[3] He maintains that the clauses are
interchangeable for purposes of legal analysis. (Appellant’s Br. at 24,
citing White v. State, 497 N.E.2d 893, 908 n.4 (Ind. 1986)(referring to a
substantial line of cases treating the Due Process Clause and the Due
Course Clause as interchangeable).)
The State responds by indicating that these federal and state
provisions are analogous only in a civil law context.[4] (Appellee’s Br.
at 4.) The State relies on the declaration in McIntosh v. Melroe Co., 729
N.E.2d 972, 975-76 (Ind. 2000): “By its terms, [the Due Course of Law]
provision applies only in the civil context. It omits any reference to
deprivation of ‘life, liberty, or property,’ which is the trigger of due
process requirements in the criminal context.”
The State, therefore, urges that no authority exists for a trial court
to “step into the shoes of the prosecutor and dismiss an indictment
following a hung jury . . . .” (Appellee’s Br. at 5.) It also asserts
that such authority has not been “recognized by the highest courts of
either the federal judiciary or our appellate judiciary.” (Id.) Finally,
the State suggests that there is no need to create this authority “under
the guise of due process” because defendants are adequately protected
against excessive prosecutions by the Double Jeopardy Clause. (Id.)[5]
At the hearing on the motion to dismiss, the trial court concluded
that it “ha[d] inherent jurisdiction to limit prosecutions, because at some
point it gets to be unreasonable.” (R. at S12.) We agree.
A survey of courts in several jurisdictions provides strong support
for the proposition that a trial court has inherent authority to dismiss an
information or indictment with prejudice where multiple mistrials caused by
hung juries infringed on the defendant’s right to fundamental fairness.
In State v. Abbatti, 493 A.2d 513, 515-16 (N.J. 1985), the Supreme
Court of New Jersey was confronted with a defendant who faced a third trial
after two prior mistrials due to deadlocked juries. The court stated,
[P]recepts of fundamental fairness, together with the judiciary’s need
to create appropriate and just remedies, and its general
responsibility to assure the overall efficient administration of the
criminal justice system, confirm an inherent power in a trial court to
dismiss an indictment with prejudice following general mistrials
attributable to repeated jury deadlocks.
Id. at 517.
In State v. Moriwake, 647 P.2d 705, 708 (Haw. 1982), the defendant
also experienced two hung jury mistrials. The Supreme Court of Hawaii
indicated, “trial courts have the power to dismiss . . . an indictment with
prejudice and over objection of the prosecuting attorney.” Id. at 711. The
court clarified that the trial court’s authority is limited “[w]ithin the
bounds of duly exercised discretion . . . .” Id.
The Supreme Court of Tennessee addressed a case involving a defendant
whose first three murder trials resulted in hung juries. State v. Witt,
572 S.W.2d 913, 914 (Tenn. 1978). The court stated,
[T]rial judges have the inherent authority to terminate a prosecution
in the exercise of a sound judicial discretion, where . . . repeated
trials, free of prejudicial error, have resulted in genuinely
deadlocked juries and where it appears that at future trials
substantially the same evidence will be presented and that the
probability of continued hung juries is great.
Id. at 917.
In People v. Thompson, 379 N.W.2d 49 (Mich. 1985), a defendant was
convicted of armed robbery and felony murder. The conviction was reversed
and the case retried. A mistrial was declared due to a hung jury and upon
retrial the defendant was convicted. On appeal, the Supreme Court of
Michigan stated, “[T]here may be cases in which repeated retrials after
repeated jury deadlock might be so fundamentally unfair as to violate the
due process guaranteed by [the state or federal constitutions] . . . .”
Id. at 55.[6]
In State v. Sauve, 666 A.2d 1164, 1165 (Vt. 1995), the State appealed
the district court’s dismissal of an information that was amended after a
mistrial. The Vermont Supreme Court reversed the decision and stated, “In
reaching its determination regarding dismissal of a case following one or
more hung juries, the trial court must generally defer to the prosecutor’s
decision to retry the case, but if fundamental fairness compels dismissal,
the court is authorized to do so.” Id. at 1166.
While different jurisdictions refer to different sources of the trial
court’s authority to dismiss after multiple mistrials, the majority of the
appellate courts rely on precepts of fundamental fairness and notions of
fair play and substantial justice.[7] We agree with the many jurisdictions
that hold trial courts have inherent power to dismiss an information with
prejudice following mistrials attributable to repeated jury deadlocks,
where necessary to uphold guarantees of fundamental fairness and
substantial justice.
Guideline for Dismissal of Information
Caselaw from elsewhere suggests that “the trial court must generally
defer to the prosecutor’s decision to retry the case, but if fundamental
fairness compels dismissal, the court is authorized to do so.” State v.
Sauve, 666 A.2d at 1169; State v. Moriwake, 647 P.2d at 712. In
determining whether fundamental fairness compels dismissal, a trial court
must balance “two basic rights: a defendant’s right to a fair trial and
the State’s right to seek a verdict on validly prosecuted charges.” State
v. Cordova, 993 P.2d 104, 108 (N.M. 1999).
The Vermont Supreme Court has identified various factors that a trial
court should weigh when striking this balance. Justice Denise Johnson’s
opinion listed the following factors:
(1) the seriousness and circumstances of the charged offense; (2) the
extent of harm resulting from the offense; (3) the evidence of guilt
and its admissibility at trial; (4) the likelihood of new or
additional evidence at trial or retrial; (5) the defendant’s history,
character, and condition; (6) the length of any pretrial incarceration
or any incarceration for related or similar offenses; (7) the purpose
and effect of imposing a sentence authorized by the offense; (8) the
impact of dismissal on public confidence in the judicial system or on
the safety and welfare of the community in the event the defendant is
guilty; (9) the existence of any misconduct by law enforcement
personnel in the investigation, arrest, or prosecution of the
defendant; (10) the existence of any prejudice to defendant as the
result of passage of time; (11) the attitude of the complainant or
victim with respect to dismissal of the case; and (12) any other
relevant fact indicating that judgment of conviction would serve no
useful purpose.
State v. Sauve, 666 A.2d at 1168 (citations omitted). The New Jersey
court identified some other relevant considerations: “(1) the number of
prior mistrials and the outcome of the juries’ deliberations, as known; and
([2]) the trial court’s own evaluation of the relative strength of each
party’s case . . . .” State v. Abbatti, 493 A.2d at 521-22.
We think these factors, or such of them as appear relevant in a given
case, form an appropriate basis for determining whether to dismiss a
defendant’s information after multiple prosecutions caused by mistrials.
There is surely not a specific number of hung juries that would warrant
dismissal, and it is not possible to describe every circumstance where
dismissal would be proper. The trial court is in the best position to
weigh the relevant factors in making such a decision. Accordingly, abuse
of discretion is the appropriate standard for appellate review of a trial
court’s decision to dismiss or retry a prosecution previously mistried due
to hung juries.[8]
The trial court denied Sivels’ motion to dismiss by stating,
I do think the Court has inherent jurisdiction to limit prosecutions,
because at some point it gets to be unreasonable. I personally don’t
think we’ve reached that in the case of Collis Sivels . . . . [T]here
is a limit. I don’t know what that limit is, and I’m not gonna set
it. So, I’m going to deny your motion . . . .
(R. at S12-13.) Sivels cites as error the trial court’s failure to
“undertake any legal analysis to support its ultimate conclusion.”
(Appellant’s Br. at 25.) He describes the court’s failure as “a gross abuse
of discretion.” (Id. at 26.)
The State responds, in its alternative argument, that the trial court
properly declined to exercise its authority in this case because “the State
had additional evidence to present at the second retrial, making a
conviction more likely.” (Appellee’s Br. at 5.)
We cannot conclude that the trial court erred by not following the
guidelines we mentioned above, because they did not then exist.
Accordingly, we will examine the trial court’s decision in light of these
guidelines to determine whether the court abused its discretion.
The circumstances of Sivels’ charged offense involved the murder of an
unarmed man during the commission of a robbery. The victim was beaten and
shot in the abdomen and then in the head.
At the time Sivels filed a motion for dismissal of his murder charge,
he had encountered two mistrials. Sivels’ counsel was advised that the
first mistrial resulted after seven jurors voted for acquittal and five
voted for conviction. The second mistrial resulted after nine jurors voted
for acquittal and three voted for conviction.[9]
Sivels remained incarcerated without bond for two and a half years
before his final trial. During that time, as a result of the trial on June
1, 1998, he was acquitted on two of his charged offenses, felony murder and
robbery.
At the hearing on the motion to dismiss, the prosecutor indicated his
desire to retry the case.[10] At the conclusion of the hearing, the
trial court indicated its own evaluation of the relative strength of the
State’s case and its belief that Sivels committed the crime charged. At
the last retrial, the State had newly available eyewitness testimony by
Adams that Sivels murdered the victim. The trial resulted in a conviction.
Upon consideration of these relevant factors, the balance between
Sivels’ right to fundamental fairness and the State’s right to seek a
verdict on validly prosecuted charges swings in favor of the State. The
trial court did not abuse its discretion by allowing the State to retry the
case.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] In his brief, Sivels asserts, “Holding Collis Sivels to answer to a
fourth jury violated his rights ....” (Appellant’s Br. at 8.) Actually,
Sivels answered to three, not four, juries. The first jury was dismissed
before it was sworn and the case was continued. (R. at 13.)
[2] Section 1 of the Fourteenth Amendment states, in part, “No State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”
[3] Article 1, section 12 of the Indiana Constitution states, “All courts
shall be open; and every person, for injury done to him in his person,
property, or reputation, shall have remedy by due course of law. Justice
shall be administered freely, and without purchase; completely, and without
denial; speedily, and without delay.”
[4] The State writes,
In civil proceedings, the procedural right to “remedy by due course of
law[”] is essentially identical to the federal due process doctrine.
In a criminal context, however, state criminal procedural doctrines
have developed almost uniformly by reference to the more specific
provisions that make up our state Constitution’s counterpart to the
federal bill of rights.
(Appellee’s Br. at 4 (citation omitted).)
[5] Sivels concedes that his continued prosecution after mistrials by hung
juries did not violate his rights under the Double Jeopardy Clause.
(Appellant’s Br. at 23.) See Richardson v. United States, 468 U.S. 317,
326 (1984); Young v. State, 482 N.E.2d 246, 249 (Ind. 1985). Sivels does
not assert a violation of his right to speedy trial.
[6] But see People v. Sierb, 581 N.W.2d 219, 222 (Mich.
1998)(administration of justice does not confer on court authority “to
allocate resources available to law enforcement . . . or to assess the
relative priority of discrete charges in a given community.”)(citation
omitted).
[7] E.g. State v. Abbatti, 493 A.2d at 517; State v. Moriwake, 647 P.2d at
712 (fundamental fairness relied upon in addition to statutory judicial
power); State v. Witt, 572 S.W.2d at 917; People v. Thompson, 379 N.W.2d at
55; State v. Sauve, 666 A.2d at 1169.
[8] See State v. Sauve, 666 A.2d at 1169.
[9] The only reference provided for these polls is Sivels’ motion to
dismiss on May 25, 1999. (R. at 237-38.)
[10] Sivels has made no claim of prosecutorial misconduct.