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The Indiana Supreme Court ruled this week that juvenile offenses for possession of a dangerous firearm and possession of a machine gun constituted double jeopardy for an Indianapolis teen, providing more guidance on the test used to determine whether a person is being prosecuted more than once for the same crime.
The opinion noted that more than three years ago the court attempted to clarify double jeopardy by overturning the constitutional tests announced in Richardson v. State, 717 N.E.2d 32, 59 (Ind. 1999).
The high court used Jordan B. Wadle v. State of Indiana, 19S-CR-340, to introduce a three-part test focused on statutory interpretation. Since then, courts have struggled with applying the framework of Wadle.
“We disapprove any opinion that relies on this principle and reiterate the Wadle test for resolving substantive double jeopardy claims, albeit with a small but crucial adjustment at Step 2, where courts will now construe ambiguities from charging instruments in favor of defendants,” Justice Mark Massa wrote for the court.
In A.W. v. State of Indiana, 23S-JV-40, the state’s high court ruled Tuesday that A.W.’s possession of a dangerous firearm was a “lesser-included” offense of possession of a machine gun, which violated his right to be free from substantive double jeopardy under Wadle.
A.W. was 17 when he fled on foot from a traffic stop for speeding. While he was running, officers noticed a gun in his hand. Indianapolis Police Officer Scott Highland ordered A.W. to get on the ground several times, but he continued to run. A.W. eventually tripped and as he fell to the ground he threw the gun.
Highland arrested A.W., and, during a pat down search, found a phone and a “large sum of money” in his pockets. Sergeant Kyle Hodges, recovered the gun—a nine-millimeter Glock 17 handgun with a 30-round extended magazine and a laser pointer. Highland noticed the Glock was “essentially” the same as his own firearm, except it had a modifying device attached.
The state filed a delinquency petition against A.W. alleging he had committed acts that if committed by an adult amounted to three Class A misdemeanors carrying a handgun, resisting law enforcement, criminal mischief, and dangerous possession of a firearm.
A fellow officer assigned to work with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives task force, discovered the device attached to the weapon was a “Glock switch,” which transforms the weapon “from a semiautomatic to an automatic handgun,” and explained that these modifications have “been around for a few years” and that “we’re seeing more and more of them.”
The state then further alleged A.W. committed Level 5 felony possession of a machine gun.
Following a factfinding hearing, the juvenile court concluded A.W. committed each of the offenses as alleged in the amended petition and entered separate juvenile adjudications for each offense.
The Marion Superior Court placed A.W. on probation and released him to his father’s custody.
A.W. then appealed to the Indiana Court of Appeals which affirmed the sufficiency of the evidence but reversed on substantive double jeopardy grounds.
He appealed to the high court on the sufficiency of evidence issue. The state also sough transfer on the double jeopardy question.
The court found that A.W.’s multiple adjudications violated his right to be free from substantive double jeopardy.
The court applied the three steps that are part of the Wadle test:
- Interpret statutory language.
- Apply included-offense statute.
- Examine the facts underlying the statutory offenses.
“Having determined that dangerous possession of a firearm is inherently and factually included within possession of a machine gun, Step 3 instructs that we examine the underlying facts to determine whether the two offenses are the same,” Massa wrote. “Based on the facts in the charging instrument and facts adduced at the hearing, we conclude that A.W. possessed the same weapon—a fully automatic Glock—for at least thirty seconds, and is thus ‘compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction’.”
The court ruled that A.W.’s dangerous possession of a firearm must be vacated.
Other claims
Addressing A.W.’s sufficient evidence claim on appeal, the court found A.W.’s exclusive possession of a firearm, which contained a Glock switch feature, was sufficient evidence that he “knowingly or intentionally” possessed a machine gun.
“Applying Indiana’s exclusive possession precedent to A.W., we conclude that his exclusive possession of the gun while the officers were chasing him for at least thirty seconds supplied the trial court with a reasonable inference that he knew the gun was, in fact, a modified machine gun. And the juvenile court finding that his corresponding conduct—his abrupt flight from the traffic stop—also supports a reasonable inference that he knew the gun was a machine gun,” Massa wrote. “We acknowledge this presents a close call, but our standard of review requires that we reject any invitation to the contrary today because it would amount to an impermissible reweighing of evidence.”
The court affirmed the juvenile court’s finding that A.W.’s exclusive possession of the weapon, coupled with his abrupt flight, is sufficient evidence that he “knowingly or intentionally” possessed a machine gun.
The high court found that Article 1, Section 14’s protective scope for procedural double jeopardy could apply in juvenile proceedings, but it declined to answer that question due to constitutional avoidance.
The court noted in footnote five that it sees its ongoing role in the confusion surrounding the term “double jeopardy” but that it tried to clarify that it only bars “successive prosecution for the same offense.”
“We acknowledge that same protective scope could apply in the juvenile context to restrain successive adjudications for the same offense. And yet while we are open to considering whether Article 1, Section 14—applicable to claims of procedural double jeopardy—applies to juveniles, we reserve that constitutional question for another day,” Massa wrote.
Separate opinion
Chief Justice Loretta Rush and Justices Geoffrey Slaughter and Derek Molter concurred in the the majority opinion. Justice Christopher Goff concurred only in the judgment with a separate opinion.
“Though well-intentioned, the Court’s opinion, in my view, modifies the included-offense analysis in a manner that introduces ambiguity and inconsistency. It also undermines the stability of the law,” Goff wrote.
Goff found Wadle retired the actual-evidence test because that standard proved unworkable.
“Limiting the analysis to the facts pled in the charging instrument greatly simplifies the identification of included offenses, compared with the ‘shifting standards and inconsistent application of controlling tests’ that came before,” Goff wrote. “I would stop there and let the bench and bar apply our clear, consistent, and by now well-established standard.”
He also found the new standard returned the court to the actual-evidence test and raised new uncertainty.
” I appreciate the Court’s intent to alleviate by this change an element of unfairness in Wadle. I admit that the as-charged branch of step two allows the outcome to ‘vary from case to case based on the degree to which prosecutors include or exclude facts in a charging instrument’,” Goff wrote. “Still, I cannot endorse the Court’s solution for this difficulty.”
Goff concluded that this area of law needs clarity and stability, not more change.
“My final concern is simply that the Court is once again changing the rules after we tried so recently to bring some stability to the law. Every time we make a change, we open precedential case-law to doubt and raise issues over which law applies to whom,” Goff wrote.
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