JEFFREY A. CLEARY, Appellant (Defendant below),
STATE OF INDIANA, Appellee (Plaintiff below)
Appeal from the Lake Superior Court, No. 45G04-1011-FB-114. The Honorable Thomas P. Stefaniak, Jr., Judge. On Petition to Transfer from the Indiana Court of Appeals, No. 45A03-1212-CR-518.
ATTORNEYS FOR APPELLANT: James H. Voyles, Jr., Jennifer M. Lukemeyer, Voyles Zahn & Paul, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana.
David, Justice. Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.
On November 4, 2010, and for what was not the first time in his life, Jeff Cleary drank and then chose to get behind the wheel of his car. Unlike in the past, however, this time his decision led to the tragic death of a sixty-three-year-old man.
The State charged Cleary with multiple offenses related to his drunk driving. A jury returned guilty verdicts on some offenses, but reported that it was deadlocked on others. Cleary was then retried on all the offenses and found guilty as-charged by a second jury. We find no violation of either Indiana's statutory or constitutional double jeopardy protections, and therefore affirm.
Facts and Procedural History
On the afternoon of November 4, 2010, Jeff Cleary drove to Giovanni's Restaurant in Munster, Indiana, for lunch and drinks with two other individuals. Over the course of the next six to seven hours, Cleary ordered six drinks--all doubles of Absolut Vodka and water--and the table shared a bottle of wine. Later that evening, Cleary went to the Country Lounge in Hobart, Indiana. He had most of another glass of wine and left after approximately forty-five minutes.
Cleary then left the Country Lounge, intending to go home. By that point it was nearly midnight, pitch-black, sleeting, and windy. Cleary called his wife on his cell phone. As Cleary was placing his call, he struck a service vehicle parked on the shoulder of the road. The service truck was parked, with its emergency lights activated, behind a semi that had a flat tire. Phillip Amsden, the service truck driver, was between the service truck and the semi. The impact of Cleary's vehicle pushed the service truck into the semi, pinning Amsden. Amsden died at the scene. Cleary claimed to be uninjured.
A paramedic evaluating Cleary at the crash scene noted that Cleary appeared drunk, with blood-shot eyes, slurred speech, and smelling of alcohol. State Troopers similarly noticed an overwhelming odor of alcohol and that Cleary's eyes were watery, his speech slurred, and his reactions slow. Cleary was placed in custody and transported to a local hospital. While there he was given several field sobriety tests and consented to a blood draw. Cleary failed each field sobriety test and his blood draw showed a blood-alcohol concentration of 240 milligrams per deciliter, or a BAC of .24.
The State charged Cleary with five criminal charges and three infractions, all flowing from the November 4, 2010, collision:
o Count I: Causing death when operating a motor vehicle with a BAC of at least 0.15, a class B felony. Ind. Code § 9-30-5-5(b) (2010).
o Count II: Causing death when operating a motor vehicle while intoxicated, a class C felony. Ind. Code § 9-30-5-5(a).
o Count III: Operating a motor vehicle with a BAC of at least 0.15, a class A misdemeanor. Ind. Code § 9-30-5-1(b) (2010).
o Count IV: Operating a motor vehicle while intoxicated in a manner endangering a person, a class A misdemeanor. Ind. Code § 9-30-5-2(b) (2010).
o Count V: Operating a motor vehicle while intoxicated, a class C misdemeanor. Ind. Code § 9-30-5-2(a).
o Count VI: Failure to yield to a recovery vehicle, a class A infraction. Ind. Code § § 9-21-8-35(c) (2010), 9-21-8-54(a) (2010).
o Count VII: Improper lane movement, a class C infraction. Ind. Code § § 9-21-8-11 (2010), 9-21-8-49 (2010).
o Count VIII: Possessing more than one driver's license, a class C infraction. Ind. Code § § 9-24-11-4(a) (2010), 9-24-11-8(a) (2010).
Cleary went to trial on all eight counts, and on December 14, 2011, a jury returned guilty verdicts on Counts IV and V, and found Cleary had committed the infractions alleged in Counts VI and VII. It deadlocked, however, on Counts I, II, and III.
The State did not move for a judgment on the verdicts, but Cleary did. The trial court allowed Cleary and the State until January 12, 2012, to submit briefs on the issue. It held a hearing on January 30, 2012, after which it denied Cleary's motion to compel an entry of judgment on the verdicts. It permitted the ...