Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jackson v. State

Court of Appeals of Indiana

October 5, 2017

Marquell M. Jackson, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Vanderburgh Circuit Court The Honorable Kelli E. Fink, Magistrate Trial Court Cause No. 82C01-1510-F1-6686

          Attorney for Appellant Matthew J. McGovern Anderson, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana

          Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE

         Statement of the Case

         [¶1] Marquell M. Jackson appeals his convictions and sentence, following a jury trial, for burglary, as a Level 1 felony; attempted robbery, as a Level 2 felony; four counts of attempted robbery, as Level 3 felonies; two counts of aggravated battery, as Level 3 felonies; and for being found to have been a member of a criminal gang, a sentencing enhancement. Jackson raises seven issues for our review, but we address only the following five issues:

1. Whether the trial court committed fundamental error when it permitted the State to amend the charge for the criminal gang enhancement such that the charge no longer stated a cognizable offense.
2. Whether two of Jackson's convictions violated Indiana's prohibitions against double jeopardy.
3. Whether the trial court abused its discretion when it admitted into evidence phone calls Jackson had made from jail.
4. Whether the trial court committed fundamental error when it instructed the jury on accomplice liability.
5. Whether the State presented sufficient evidence to support Jackson's conviction for burglary, as a Level 1 felony.

         [¶2] We hold that the trial court committed fundamental error when it permitted the State to amend the charge on the criminal gang enhancement such that the charge no longer stated an offense under Indiana law. We also hold that two of Jackson's convictions violate Indiana's prohibitions against double jeopardy because they were enhanced by the same bodily injury as Jackson's conviction for burglary, as a Level 1 felony. In light of those holdings, we reverse Jackson's criminal gang enhancement and remand with instructions for the trial court to vacate that enhancement. We also reverse the two of Jackson's convictions that are based on the same bodily injury as his conviction for burglary, as a Level 1 felony, and we remand with instructions for the court to enter judgment of conviction on lesser-included offenses on those counts. And we instruct the court to resentence Jackson in accordance with this opinion.[1]On the remaining issues, we affirm.

         Facts and Procedural History

         [¶3] In October of 2015, Jeremy Herbert lived in a second-floor apartment above the 711 Tavern in Evansville. Herbert's apartment was one of two second-floor apartments above the 711 Tavern; one couldaccess those two apartments from the street by gaining entry through an exterior door that Herbert could remotely open. Herbert also had video surveillance on that door. Once through that door, visitors would go upstairs to a hallway common to both apartments. One apartment had a door off the hallway; Herbert's apartment had a doorframe in which he had hung a sheet to "act as the doorway." Tr. Vol. IV at 153. Logan Orth stayed intermittently at Herbert's apartment and sold marijuana out of the apartment.

         [¶4] On October 25, Jackson and his friend, Diego Thomas, learned that Orth had one-half pound of marijuana in Herbert's apartment. Jackson and Thomas decided that they would go to Herbert's apartment "[t]o rob them" of that marijuana. Id. at 9. However, upon approaching the exterior door, they "saw [the] camera above the door" and abandoned their plan. Id.

         [¶5] The next day, Jackson and Thomas again decided to rob Orth at Herbert's apartment. This time, Jackson and Thomas obtained the assistance of Jarvice Sears, Corey Cain, and O'Neill Bruin to help them carry out their plan. The five confederates acquired two firearms and some face masks to use in the commission of the invasion. They agreed to equally split any marijuana and money they seized from Orth.

         [¶6] Shortly before 9:00 p.m., the group approached the exterior door to Herbert's apartment and observed the surveillance camera. They then "debate[d]" among themselves "whether . . . [to] keep on going . . . or just leave." Id. at 17. Jackson advocated for continuing forward, and, after about five minutes of discussion, the cohort agreed. Thomas then "pulled the camera out [of] the wall, " the five men went through the exterior door, [2] they "pulled back" the sheet to Herbert's apartment, and they entered the apartment. Id. at 18-19.

         [¶7] At that time, about ten people, including Orth and Herbert, were inside the apartment "smoking blunts." Id. at 156. The five intruders demanded the occupants' marijuana and money. Sears pulled out a firearm. Jackson told the occupants that Sears "ain't playing with you all." Id. at 25. Nonetheless, Orth also pulled out a firearm, and a gunfight ensued. Sears shot Orth twice and Orth shot Sears once. The confederates then fled the apartment. On the way out, Cameron Kendall, a resident in the other upstairs apartment, came into the hallway. Sears shot Kendall in the stomach. Kendall, a former sniper for the United States Army, returned fire at the confederates, striking Sears once, Thomas once, and Bruin twice.

         [¶8] Jackson and his cohort made their way outside, but Sears collapsed shortly after and Thomas remained with him until police arrived. The other three eventually drove to a hospital and were arrested thereafter. No one died from the gunfight.

         [¶9] While in prison, Jackson made several phone calls that the State recorded. The State advised Jackson prior to the phone calls that it would record them and that they could be used against him at trial. Undeterred, in one call Jackson stated that "[t]he only thing they could stick on me is that burglary. Now, I can get that dropped down to where I can go to the Safe House and get House Arrest, so I'll plead out to that . . . ." Tr. Vol. III at 108. In another call, Jackson again commented that he could be convicted of burglary. Following several inaudible comments relating to his alleged participation in the events at the apartment, Jackson then stated that "[w]hen everything started happening I ran because I didn't know, I knew but I didn't know, so when I seen what I didn't know, then I ran." Id. at 111.

         [¶10] The State charged Jackson with sixteen offenses and a criminal gang enhancement. The State's original charge of the criminal gang enhancement tracked the language of Indiana Code Section 35-50-2-15(b) (2015) and stated, in relevant part, that, "on October 26, 2015, [Jackson] knowingly or intentionally was a member of a criminal gang while committing the underlying offense." Appellant's App. Vol. II at 56. However, three days before Jackson's trial, the State amended that language to instead allege that Jackson "was a known member of a criminal gang[] while committing the underlying felony offense." Id. at 97. Jackson did not object to the State's amendment of the charging information on the criminal gang enhancement.

         [¶11] The trial court ordered Jackson's ensuing jury trial to be bifurcated between the substantive offenses and the criminal gang enhancement. During the first phase, numerous witnesses, including some of his confederates, testified and described the events of October 26, 2015. The State also introduced, over his objections, Jackson's jailhouse phone calls as described above. The jury found Jackson guilty as charged.

         [¶12] Jackson's jury trial then proceeded to the second phase on the criminal gang enhancement allegation. In his introductory remarks to the jury at the start of that proceeding, Jackson's attorney stated:

I'll keep it straight to the point on this one. The Court's instruction number 2 says that the State has alleged that Mr. Jackson was a known member of a gang while committing the underlying felony offenses and, not or, and Mr. Jackson committed the felony offenses at the direction of or in affiliation with a criminal gang. Number 1 was a known member. Number 2, at the direction or an affiliation. Keep those two factors in mind when you listen to the evidence. I don't think it will be sufficient to convince you beyond a reasonable doubt . . . .

Tr. Vol. V at 164-65 (emphases added). The State then called Thomas as a witness, and he redescribed the events of October 26, 2015. In a short cross-examination, Jackson's attorney questioned Thomas as follows:

Q . . . you['d] consider yourself a friend of [Jackson's] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.