by Douglas Ankney

The Supreme Court of Indiana announced a new analytical framework for reviewing claims of substantive double jeopardy, overruling Richardson v. State, 717 N.E.2d 32 (Ind. 1999).

A jury convicted Jordan Wadle of Operating a Vehicle While Intoxicated Causing Serious Bodily Injury (“OWI-SBI”), OWI Endangering a Person, Leaving the Scene of an Accident – Elevated to a Level 3 Felony Due to the OWI-SBI Conviction, and OWI with breath alcohol content (“BAC”) of 0.08 or More. He was sentenced to an aggregate term of 16 years with two years suspended to probation.

The court of appeals applied Richardson’s “actual evidence” test and concluded Wadle’s convictions for leaving the scene and OWI-SBI violated the Indiana Double Jeopardy Clause.

The court of appeals applied the same reasoning to the two OWI convictions and concluded they were based on the same act of drunken driving as the convictions for OWI-SBI and leaving the scene of an accident. It remanded with instructions for the trial court to vacate all of Wadle’s convictions on double-jeopardy grounds except for the conviction for leaving the scene of an accident. The Indiana Supreme Court granted the State’s petition for transfer, vacating the decision of the court of appeals.

The Court observed “[t]he Indiana Double Jeopardy Clause, as with its federal counterpart, stands as a bedrock principle of our fundamental law.” Historically, the prohibition against double jeopardy relied on either a former acquittal or former conviction of an offense and applied a procedural bar to a successive prosecution on that same offense. Twice in Jeopardy, 75 Yale L.J. 262 (1965).

But as statutory laws created new and overlapping offenses, the concern became that multiple charges and multiple punishments could occur for the same offense in a single trial. A History of Double Jeopardy, 7 Am. J. Legal Hist. 283 (1963). This brought forth two strands of double jeopardy: procedural (successive trials for the same offense) and substantive (multiple charges and punishments for the same offense during one trial). Elmore v. State, 382 N.E.2d 893 (Ind. 1978).

Under the Richardson framework, resolving claims of double jeopardy relies on one of two tests: (1) statutory elements test or (2) actual evidence test. The statutory elements test is summed up as follows: where the same act violates two distinct statutes, each statute must require proof of an element not found in the other to escape a double jeopardy bar. Blockburger v. United States, 284 U.S. 304 (1932). The actual evidence test looks to whether two or more offenses are the same based on how the evidence actually presented at trial is applied to each element of the offense. Richardson. Additionally, in Indiana and some other states, a conviction for both an offense and a lesser included offense is prohibited. I.C. §§ 35-38-1-6 and 35-41-4-3.

Because the “same offense” test in Richardson attempts to combine these tests into one comprehensive test, it has created more confusion than clarity. (See opinion for detailed explanation.) The Court opined that, with regard to substantive double jeopardy, “[t]he ‘statutory elements’ test and the ‘actual evidence’ test have both proven inadequate.” To remedy this, the Court ruled that Indiana’s Double Jeopardy Clause protects against only successive prosecutions for the same offense, i.e., procedural double jeopardy. Protection against substantive double jeopardy comes from other state constitutional protections, viz., Article 1, §§ 13 & 16; Article 7, §§ 4 & 6. The new analytical framework to review for substantive double jeopardy requires courts to first determine if the statutes under which the charges are brought permit multiple punishments. If yes, there is no double jeopardy. If it’s not clear, then courts must apply included-offense statutes. If neither offense is included in the other, then there is no double jeopardy issue. If one offense is included in the other, then the court must examine the facts underlying those offenses. If based on those facts the defendant’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action” to constitute one transaction, then the offenses may be charged as alternative sanctions only, and the defendant cannot be cumulatively punished for each offense.

The State conceded and the Court concluded that under the new framework the convictions for both OWI endangering a person and OWI with a BAC of 0.08 or more violates double jeopardy. Regarding the other two convictions, the Court observed that the conviction for OWI-SBI requires a person to cause serious bodily injury to another when operating a motor vehicle while intoxicated. The leaving the scene of an accident conviction requires those same elements, plus leaving the accident without rendering necessary assistance. Analyzing these charges under the new framework, the Court concluded that neither statute authorizes multiple punishments. Consequently, the Court then examined to see if one offense is an included offense of the other. The Court concluded that the OWI-SBI is included in the leaving the scene of an accident. Following the new framework, the Court then looked at the facts to determine if both offenses are the same. Because Wadle’s actions were “so compressed in terms of time, place, singleness of purpose, and continuity of action,” the Court considered them the same transaction. To remedy the double jeopardy violation, the Court remanded to the trial court with instructions to vacate the OWI-SBI conviction but affirm the leaving the scene conviction. Because that conviction alone justified the sentence, the Court further instructed that Wadle’s sentence of 16 years with two years suspended to probation was to be left in place. See: Wadle v. State, 151 N.E.3d 227 (Ind. 2020).

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