Williams v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Terrance W. Richmond              Karen M. Freeman-Wilson
Milan, Indiana                          Attorney General of Indiana

                                        Christopher L. Lafuse
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



TERRELL WILLIAMS,                       )
                                        )
      Appellant (Defendant Below),      ) No. 49S05-0108-CR-378
                                        )    In the Supreme Court
            v.                          )
                                        )
STATE OF INDIANA,                       ) No. 49A05-0011-CR-485
                                        )    In the Court of Appeals
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable David Dreyer, Judge
                       Cause No. 49G20-9812-CF-177765



                              February 15, 2002

SHEPARD, Chief Justice.

      An undercover police officer bought drugs from Terrell Williams,  then
allowed him to depart and radioed nearby uniformed officers to  arrest  him.
Williams fled into a nearby vacant apartment.   The  officers  arrested  him
there, finding more drugs in his possession.   The  State  charged  Williams
with breaking into the apartment and possessing cocaine there, and struck  a
plea agreement.  It then filed charges against him in another courtroom  for
the undercover buy.  We hold these second charges were barred.


                        Facts and Procedural History


      On October 12, 1998, Indianapolis Police Detective Ernest  Witten  was
working undercover attempting to purchase drugs.   He  encountered  Williams
in the parking lot of an apartment  complex.   Detective  Witten  approached
Williams and purchased a rock of crack cocaine for  $20.   After  completing
the transaction, Detective Witten broadcast  the  following  description  of
Williams:
      He’s walking [] west bound towards 38th Street.  Do  it  in  front  of
      3810.  He’s wearing white with black pants, braids.  He’s about 6 foot
      about 230. He’s heavy set.  You can see him walking west  bound  right
      now.  Walking towards Marietta Drive.  He’s  real  nervous.   One  car
      might do.  Have Tony go up there.


(R. at 248.)


      As he began to walk away from Witten, Williams saw several police cars
coming toward him.  He  “cut  out  running”  toward  a  building  where  his
brother lived about a hundred yards away.  (Supp. R. at 12, 25.)  His  knock
went unanswered, so he locked himself in  the  empty  apartment  across  the
hall.


      Officers Weaver[1] and Knecht saw a “black male, heavy build,  wearing
a white T-shirt and black  jogging  pants”  enter  the  apartment  building.
(Supp. R. at 12.)  They obtained the building manager’s  consent  to  search
the empty  apartment,  where  they  found  Williams  and  arrested  him  for
residential entry.  Williams had two rocks of crack  cocaine  hidden  inside
his right sock.

      Later that day, the State charged Williams with residential entry  and
possession of cocaine as class D felonies in Marion Superior  Court  9  (the
“Court 9 charges”).  Williams  agreed  to  plead  guilty  to  possession  of
cocaine as a class D felony and serve 915 days  in  jail.   In  return,  the
State agreed not to  file  “habitual  or  B  felony”  charges  against  him.
(Supp. R. at 11.)  This deal was apparently negotiated on  December  8th  or
10th.[2]  On December 29, 1998, the court entered  judgment  of  conviction.
The court read into evidence the probable cause affidavit to  serve  as  the
factual basis for Williams’ guilty plea.

      In the meantime, on December 16, 1998, the  State  had  filed  charges
against Williams in a different room of the same court.  It alleged  dealing
cocaine within 1,000 feet of a school as a class A felony and possession  of
cocaine within 1,000 feet of a school as a class B  felony  (the  “Court  20
charges”).  During an initial hearing December 23, 1998, Williams  pled  not
guilty.  On January 29, 1999, the State added a charge that Williams was  an
habitual offender.

      It is unclear why the plea  agreement  was  not  withdrawn  after  the
Court 20 charges were  filed,  except  that  there  was  a  fair  amount  of
confusion  on  both  sides.  Williams’  attorney  notified   Williams   that
additional charges were pending against  him  in  Court  20,  but  it  seems
Williams was under the mistaken belief that the  Court  20  charges  stemmed
from an unrelated incident in mid-December 1998.[3] (Supp. R.  at  7-8,  20-
21.)  However, the Court 20 charges actually related to  Williams’  sale  of
drugs to Detective Witten on October 12th.

      The prosecution also suffered from a disconnect.  (Supp.  R.  at  22.)
Different deputy  prosecutors  handled  the  two  cases,  and  the  Court  9
prosecutor had no knowledge of the Court 20 charges.  (R. at 38.)


      Williams moved to dismiss the Court 20 charges, which are the  subject
of this appeal.  The motion was denied.  A jury  found  Williams  guilty  of
dealing in cocaine as a class A felony, possession of cocaine as a  class  B
felony, and being an habitual offender.  The trial court  sentenced  him  to
forty years, with twenty suspended, for the dealing and  possession  charges
and added thirty years for the habitual  offender  finding.   The  Court  of
Appeals affirmed.  Williams v. State, No. 49A05-0011-CR-485, slip op.  (Ind.
Ct. App. May 31, 2001).




                  Indiana’s Successive Prosecution Statute


       Williams  argues  the  Court  20  charges  violate  double  jeopardy.
(Appellant’s Br. at 10.)  He also argues the prosecution  of  these  charges
was barred by Indiana Code § 35-41—4-4(a) because  they  “should  have  been
brought by way of the same information” as required by Indiana Code § 35-34-
1-10(c).  (Id. at 13.)

      We conclude that  the  Court  20  charges  were  barred  by  Indiana’s
successive  prosecution  statute,  and  therefore  do  not  reach  Williams’
constitutional claims.

      Indiana Code Ann. § 35-41-4-4(a) (West 1998) provides:

      A prosecution is barred if all of the following exist:


           (1) There was a  former  prosecution  of  the  defendant  for  a
           different offense or for the same offense based  upon  different
           facts.


           (2) The  former  prosecution  resulted  in  an  acquittal  or  a
           conviction of the defendant or in an improper termination  under
           section 3 [IC 35-41-4-3] of this chapter.


           (3) The instant prosecution is for an  offense  with  which  the
           defendant should have been charged in the former prosecution.

(Emphasis added.)


      Williams’ circumstances satisfy the first  two  statutory  provisions.
Williams was convicted in a former prosecution for possession of cocaine  as
a result of his October  12th  arrest.   Thus,  the  outcome  of  this  case
centers on whether the  instant  prosecution  is  for  offenses  with  which
Williams should have been charged in the previous prosecution.

      The words “should have been charged” must be read in conjunction  with
Indiana’s joinder statute.  Sharp v. State, 569 N.E.2d 962,  967  (Ind.  Ct.
App. 1991) (citing State v. Burke, 443 N.E.2d 859  (Ind.  Ct.  App.  1983)).
The joinder statute provides in relevant part:
      A defendant who has been tried for one (1) offense may thereafter move
      to dismiss an indictment or information for  an  offense  which  could
      have been joined for trial with the prior offenses under section 9  of
      this chapter.[4] The motion to dismiss shall  be  made  prior  to  the
      second trial, and shall be granted if the  prosecution  is  barred  by
      reason of the former prosecution.

Ind. Code Ann. § 35-34-1-10(c) (West 1998) (footnote added).  Our  Court  of
Appeals has characterized the statute this way:  “Thus, our legislature  has
provided that, where two or more charges are based on the  same  conduct  or
on a series of acts constituting parts of a  single  scheme  or  plan,  they
should be joined for trial.”  State v. Wiggins, 661 N.E.2d  878,  880  (Ind.
Ct. App. 1996) (emphasis in original).  This statutory scheme “provid[es]  a
check upon the otherwise unlimited power of the State to  pursue  successive
prosecutions.”  Wiggins, 661 N.E.2d at 881.   Where  the  State  chooses  to
bring multiple prosecutions for a series of acts  constituting  parts  of  a
single criminal transaction, it does so at its own peril.

      This Court  has  interpreted  the  language  of  Indiana’s  successive
prosecution statute on only one occasion.  In  Seay  v.  State,  550  N.E.2d
1284 (Ind. 1990), the defendant  made  four  separate  sales  of  controlled
substances to a police informant and an undercover  police  officer  in  the
late summer and early fall of 1986.  Id. at 1286.  The defendant  was  tried
and convicted of dealing in a controlled substance for sales  made  on  July
14, 1986, and August 4, 1986.  Id.  While the  jury  was  deliberating,  the
State filed additional charges based on sales  made  August  14,  1986,  and
September 2, 1986.  Id.  Seay argued the subsequent prosecution  was  barred
by Ind. Code § 35-34-1-10(c) and § 35-41-4-4.  Id. at 1287.   We  held  that
these four events  were  sufficiently  separated  by  time  and  place  that
joinder was not required and subsequent prosecutions were thus  permissible.
 Id. at 1288.


                          A Continuous Criminal Act



      The trial court found that Williams’ entry  into  a  locked  apartment
after fleeing police was an “intervening act . .  .  sufficient  enough  for
them to have two separate cases.”  (R. at 188.)  We disagree.  To  determine
whether contemporaneous crimes are part of  a  single  scheme  or  plan,  we
examine “whether they are connected by a distinctive nature, have  a  common
modus operandi, and a common motive.”  Henderson v. State, 647 N.E.2d 7,  10
(Ind. Ct. App. 1995) (citations omitted).


      The record reveals that after  buying  the  cocaine  Detective  Witten
radioed Williams’ description and sent Officer Weaver “up  there.”   (R.  at
248.)  During a pre-trial hearing Williams testified  that  when  he  turned
around “and took a few steps” five or six police cars had  arrived.   (Supp.
R. at 25.)  He ran and the police pursued him into an unoccupied  apartment.
 (Supp. R. at 25.)


      These facts show that the Court 9 and Court 20 charges were based on a
series of acts so connected that they constituted parts of a  single  scheme
or plan.  Therefore, they should have been charged in a single prosecution.


                                 Conclusion


      The judgment of the trial court is reversed.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Officer Weaver is the individual identified as Tony in Detective
Whitten’s broadcast.  (R. at 335.)
[2] The record is not clear when the plea was actually negotiated.  Williams
testified it was negotiated on December 10, 1998; the prosecutor  stated  it
was negotiated December 8, 1998; and Williams’ attorney  could  not  confirm
either date. (Supp. R. at 7, 19, 37).
[3] The Indianapolis Police Department conducted a drug raid at a home
Williams was visiting on December 16th or 17th and arrested everyone
present.  (Supp. R. at 20.)
[4] Ind. Code Ann. § 35-34-1-9 (West 1998) provides in relevant part:

      (a) Two (2) or more offenses may be joined in the same  indictment  or
      information, with each offense stated in a  separate  count  when  the
      offenses . . . (2) are based on the same conduct or  on  a  series  of
      acts connected together or constituting parts of a  single  scheme  or
      plan.