Darrell Lewis v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 13, 2017
• Docket: 49A02-1609-CR-2154
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 13 2017, 9:59 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Johnson Curtis T. Hill, Jr. Marion Public Defender Agency Attorney General of Indiana Appellate Division Ellen H. Meilaender Indianapolis, Indiana Deputy Attorney General Lisa M. Johnson Indianapolis, Indiana Brownsburg, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darrell Lewis, Jr., March 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-CR-2154 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Lisa F. Borges, Judge Trial Court Cause No. 49G04-1510-F3-36879

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017 Page 1 of 5 [1] Darrell Lewis, Jr. (“Lewis”) was convicted after a jury trial of robbery1 as a

Level 5 felony and was sentenced to five years with one year suspended. Lewis

appeals his conviction, raising the following restated issue for our review:

whether the rule allowing retrial after a deadlocked jury is unconstitutional

under the Indiana Constitution.

[2] We affirm.

Facts and Procedural History [3] On October 8, 2015, Jorge Gutierrez (“Gutierrez”) stopped at a gas station on

his way home from work to purchase cigarettes. As he was exiting the gas

station, two men, later identified as Lewis and Billy Guyton (“Guyton”),

stopped him, and one of the men pointed a gun at Gutierrez, ordered him not

to move, and demanded his money. The men took Gutierrez’s money, cell

phone, and cigarettes and threatened to shoot him if they saw him again. Tr.

Vol. 2 at 71.

[4] Gutierrez called 911, and while he was on the phone with dispatch, he again

saw the men who robbed him and told the dispatcher that the men were

entering a nearby apartment complex. Officers who responded to the scene

found Guyton in the apartment complex; he initially fled from the police on

foot, but was quickly apprehended, and Gutierrez identified Guyton as one of

1 See Ind. Code § 35-42-5-1.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017 Page 2 of 5 the men who robbed him. When Guyton was searched, the police found

Gutierrez’s cell phone and cigarettes in his possession. Gutierrez informed the

police that several phone calls had been made on his phone to a number he did

not recognize. Further investigation yielded information that the unknown

phone number belonged to Lewis and that Guyton had made several calls to

Lewis while Guyton was in possession of Gutierrez’s cell phone. When shown

a photo array by the police, Gutierrez identified Lewis as the second man who

robbed him; Gutierrez also later identified Lewis in court as one of the men

who robbed him.

[5] The State charged Lewis with Level 3 felony robbery, Level 4 felony unlawful

possession of a firearm by a serious violent felon, Level 5 felony intimidation,

and Level 5 felony carrying a handgun without a license. A bifurcated trial was

held, and at the first stage, the jury found Lewis not guilty of Level 5 felony

carrying a handgun without a license, but deadlocked and could not reach a

verdict on the Level 3 felony robbery and Level 5 felony intimidation charges. 2

[6] Lewis filed a motion to dismiss the robbery and intimidations charges,

contending that it would violate double jeopardy to convict him of those

charges, which had been elevated due to his possession of a deadly weapon

during the commission of the crimes, when he had been acquitted of carrying a

2 At the same trial, Guyton was convicted of Level 5 felony robbery and Level 6 felony intimidation. Guyton had not been charged with the handgun offenses, nor had his charges been enhanced due to the use of a deadly weapon in the commission of the crimes because Gutierrez had identified Lewis as the person who had been armed with the gun during the robbery.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017 Page 3 of 5 handgun without a license. Appellant’s App. Vol. II at 129-301. The trial court

denied the motion. The State filed an amended charging information that

charged Lewis with Level 5 felony robbery and Level 6 felony intimidation. A

second jury trial was held, at the conclusion of which, the jury found Lewis

guilty as charged. The trial court entered judgment only for the Level 5 felony

robbery conviction and sentenced Lewis to five years with one year suspended

to probation. Lewis now appeals.

Discussion and Decision [7] Lewis argues that his retrial after the jury deadlocked at his first trial was a

violation of the double jeopardy clause and the fundamental fairness

requirement of the Indiana Constitution. Lewis concedes that current

precedent does not support his position, but instead requests this court to re-

examine the current rule that allows retrial after a jury deadlocks and to

recommend that the Indiana Supreme Court adopt a rule prohibiting a retrial

after a deadlocked jury because the current rule violates the Indiana

Constitution. We decline Lewis’s invitation.

[8] Indiana courts have repeatedly and consistently held that it is not a double

jeopardy violation when a defendant is retried after his first trial ends in a

deadlocked jury. See Cleary v. State, 23 N.E.3d 664, 672-73 (Ind. 2015), Young v.

State, 482 N.E.2d 246, 249 (Ind. 1985), State v. Walker, 26 Ind. 346, 352 (1866),

Kocielko v. State, 938 N.E.2d 243, 251 (Ind. Ct. App. 2010), trans. denied, Hoover

v. State, 918 N.E.2d 724, 733 (Ind. Ct. App. 2009), trans. denied. “It is well

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017 Page 4 of 5 settled that a hung jury operates to discharge the operation of double jeopardy

and a new trial is not barred in such a situation.” Young, 482 N.E.2d at 249.

“‘[T]he protection of the Double Jeopardy Clause by its terms applies only if

there has been some event, such as an acquittal, which terminates the original

jeopardy.’” Hoover, 918 N.E.2d at 734 (quoting Richardson v. United States, 468

U.S. 317, 325 (1984)).

[9] Lewis requests that we re-examine the current rule that allows retrial after a jury

deadlocks. We are bound by the decisions of our Supreme Court. Robey v.

State, 7 N.E.3d 371, 384 (Ind. Ct. App. 2014) (citing Dragon v. State, 774 N.E.2d

103, 107 (Ind. Ct. App. 2002), trans. granted, trans. vacated), trans. denied.

“Supreme court precedent is binding upon us until it is changed either by that

court or by legislative enactment.” Id. “While Indiana Appellate Rule 65(A)

authorizes this court to criticize existing law, it is not this court’s role to

‘reconsider’ Supreme Court decisions.” Id. We also decline Lewis’s request to

recommend that the Indiana Supreme Court adopt a rule prohibiting a retrial

after a deadlocked jury and find that the trial court did not err in allowing a

retrial on two of his charges after Lewis’s first trial ended in a deadlocked jury

on those counts.

[10] Affirmed.

[11] Robb, J., and Barnes, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017 Page 5 of 5