ATTORNEYS FOR APPELLANT			ATTORNEYS FOR APPELLEE

Geoffrey A. Rivers						Jeffrey A. Modisett

Joseph P. Hunter						Attorney General of Indiana

Muncie, Indiana						

								Preston W. Black

								Deputy Attorney General

								Indianapolis, Indiana

In The

INDIANA SUPREME COURT

                  						)

EDDIE GRIFFIN,					)	

		Defendant-Appellant,		)	

							)

		v.					)	18S02-9910-CR-505

							)	

STATE OF INDIANA,				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM THE DELAWARE SUPERIOR COURT

The Honorable Robert Barnet, Judge

Cause No. 18D01-9307-CF-39

                        _________________________________________________

On Petition To Transfer

October 1, 9999

DICKSON, J.

	The defendant-appellant, Eddie Griffin, was convicted of robbery, a class A felony,1 and conspiracy to commit robbery, a class A felony.2  The Court of Appeals affirmed.  Griffin v. State, 692 N.E.2d 468 (Ind. Ct. App.), reh’g granted in part and denied in part, 694 N.E.2d 304 (Ind. Ct. App. 1998).  He seeks transfer on grounds that one or both of his convictions are barred by the principles of double jeopardy and

collateral estoppel.  In light of our decision today in Richardson v. State, --- N.E.2d --- (Ind. 1999), we grant transfer.  

	The defendant’s convictions resulted from the second of two trials.  In the first

trial, he faced charges of robbery, murder, and conspiracy to commit robbery.  The jury

acquitted him of felony murder but was unable to reach a verdict on the robbery and

conspiracy charges, and the trial court declared a mistrial as to these two charges.  In the 

second trial, the jury found the defendant guilty of robbery and conspiracy to commit

robbery.  The trial court sentenced him to concurrent 30-year sentences on each of these

convictions.

	The defendant’s convictions in his second trial stem from his alleged participation

in a series of events with three companions, Joseph Hartman, Shane Craig, and Scott

Ransom.  According to evidence primarily consisting of the testimony of Craig,3 in early June of 1993, Hartman, a long-time friend of the defendant, was awaiting sentencing in an unrelated case.  Hartman decided to leave town before the sentencing, but he needed

money to give effect to his plan.  Hartman met with the defendant, Craig, and Ransom

and discussed alternative ways to obtain cash so that they could all leave town with

Hartman.  Finally, a plan was hatched:  the four men would arrange to buy a large

quantity of marijuana from David Turner, a drug dealer; but rather than buy the

marijuana, they would attack Turner and take the drugs from him; and they would then

sell the marijuana to provide cash in order to leave town.  The defendant suggested that

they rob Turner at a house owned by the defendant’s step-father and mother and

sometimes occupied by the defendant and his friends.  On June 15, Hartman contacted

Turner, indicating that he wanted to purchase ten pounds of marijuana, and arranged to

meet Turner at a hotel.  Hartman met Turner at the hotel and discussed the drug

transaction.  Turner and Hartman then went to the house where the defendant, Craig, and

Ransom were lying in wait.  When Hartman and Turner entered the residence, Craig

struck Turner twice on the head with a wooden table leg.  Turner’s hands were taped

behind his back, and the defendant struck Turner with a piece of metal.  A plastic bag was

placed over Turner’s head; the air was squeezed out; and the bag was taped shut,

suffocating him.  The four men then waited for Turner to die.4  Subsequently, they discussed how to dispose of Turner’s body, and Hartman, Craig, and Ransom dumped the body in a remote field.  After selling some of the marijuana, the four men headed west to

Fort Collins, Colorado.  While in Colorado, the men received by wire more proceeds

from the sale of the marijuana.  The men also traveled to Texas and then to Florida where

they were arrested.  The four men were each charged with robbery, murder, and

conspiracy to commit robbery.5

	The defendant asserts (1) that his double jeopardy rights were violated when he

was retried on the charges of robbery and conspiracy to commit robbery after he was

acquitted on the charge of felony murder, (2) that collateral estoppel barred the

relitigation of issues in the second trial that were litigated to a valid, final judgment in the

first trial, and (3) that his double jeopardy rights were violated when he was convicted of

both robbery and conspiracy to commit robbery in his second trial.

	Prohibitions against double jeopardy protect against:

	(1) reprosecution for an offense after a defendant has already been convicted of

the same offense in a previous prosecution; (2) reprosecution of a defendant after

an acquittal; (3) multiple punishments for the same offense in a single trial; (4)

reprosecution of a defendant after the conviction has been reversed for insufficient

evidence; (5) criminal reprosecution of a defendant in limited circumstances

following a previous civil prosecution; (6) reprosecution of a defendant in limited

circumstances after a mistrial has been declared.

Richardson, --- N.E.2d at --- n.3 (slip op. at 2 n.3) (citations omitted).  This case presents a complex assortment of double jeopardy and related issues—subsequent prosecution

after an acquittal, reprosecution after a mistrial, multiple punishments, and collateral estoppel—implicating the second, third, and sixth of these protections.

	1.  Double Jeopardy and Reprosecution After Acquittal on Felony Murder Charge

	In his first trial, the defendant was tried for robbery, felony murder by robbery,

and conspiracy to commit robbery.  Because the first trial resulted in an acquittal on the

felony murder charge and mistrials on the robbery and conspiracy charges, the defendant

contends that federal double jeopardy jurisprudence6 prohibited a second trial on the robbery and conspiracy charges.7

	Federal double jeopardy jurisprudence bars a defendant from being prosecuted for

an offense after being acquitted for the same offense.  North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969) (reiterating that “the Fifth

Amendment guarantee against double jeopardy . . . protects against a second prosecution for the same offense after acquittal”) (citing Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300, 303 (1896) (“The verdict of acquittal was final, and could not be

reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and

thereby violating the Constitution.”).  The U.S. Supreme Court has held that a verdict of

acquittal, however erroneous, is an absolute bar to a subsequent prosecution for the same

offense.  Green, 355 U.S. at 188, 78 S.Ct. at 223-24, 2 L.Ed.2d at 204 (“[I]t has long been settled under the Fifth Amendment that a verdict of acquittal is final, ending a

defendant’s jeopardy, and even when ‘not followed by any judgment, is a bar to a

subsequent prosecution for the same offence.’ . . .  Thus it is one of the elemental

principles of our criminal law that the Government cannot secure a new trial by means of

an appeal even though an acquittal may appear to be erroneous.”) (quoting Ball, 163 U.S. at 671, 16 S.Ct. at 1195, 41 L.Ed. at 303) (citations omitted).  Thus, any retrial or

subsequent prosecution of the defendant on the felony murder charge would clearly

violate the defendant’s federal and state double jeopardy rights.

	The State, however, did not retry or subsequently prosecute the defendant on the

felony murder charge, but instead retried the defendant on the robbery and conspiracy

charges, upon which the jury had been unable to reach a verdict.  Thus, we must

determine whether the robbery, of which the defendant was convicted in the second trial,

constitutes the “same offense” as the felony murder charge, of which he was acquitted in

the first trial.

	The test for determining whether two or more offenses constitute the “same

offense” under the federal Double Jeopardy Clause was outlined in Blockburger v. United States:  “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of an additional fact which the other

does not.”  Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.Ed. 306, 309 (1932).  Our review of alleged violations of the federal Double Jeopardy Clause

is limited to the relevant statutes.  Grinstead v. State, 684 N.E.2d 482, 486 (Ind. 1997).  See also Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1294 n.17, 43 L.Ed.2d 616, 627 n.17 (1975) (the Blockburger test “focuses on the statutory elements of the offense”) (citations omitted).

	A conviction for the crime of felony murder8 requires proof that a person was killed during the commission or attempted commission of one of several specified

felonies, including robbery, but a conviction for the crime of robbery9 does not require proof of any facts in addition to those required to prove felony murder by the robbery.  

Thus, under the Blockburger test, the robbery is the same offense as the felony murder by robbery.

	However, even though felony murder by robbery and robbery are the same offense under the federal Blockburger test, the defendant’s retrial on the robbery charge is not  precluded by federal double jeopardy principles.  The Blockburger test does not always determine whether there is a double jeopardy violation because the “same offense” issue

is only one aspect of double jeopardy jurisprudence.

	Other aspects of federal double jeopardy jurisprudence are relevant to this case.10  Even though two or more charged offenses may constitute the “same offense” under the

Blockburger test, a defendant may be tried in the same proceeding for multiple offenses, including greater and lesser included offenses, because the jeopardy is simultaneous.  See Jeffers v. United States, 432 U.S. 137, 152 & n.20, 97 S.Ct. 2207, 2217 & n.20, 53 L.Ed.2d 168, 181 & n.20 (1977) (“a defendant is normally entitled to have charges on a

greater and lesser offense resolved in one proceeding”) (plurality opinion); United States v. Larkin, 605 F.2d 1360, 1367-68 (5th Cir. 1979), modified on reh’g on other grounds, 611 F.2d 585 (1980), cert. denied, 446 U.S. 939, 100 S.Ct. 2160, 64 L.Ed.2d 793 (1980).

	Furthermore, a defendant may be retried for a lesser offense, of which he was

convicted at the first trial, after that conviction is reversed on appeal, and this is true even though the first trial also resulted in a verdict of acquittal on a greater offense.  See Price v. Georgia, 398 U.S. 323, 326-27, 90 S.Ct. 1757, 1759-60, 26 L.Ed.2d 300, 304 (1970).  In Price, the defendant was tried simultaneously on murder and manslaughter charges and was convicted of the lesser offense.  The conviction was reversed on appeal, and the

defendant was retried and convicted on both charges.  The Supreme Court reversed the

murder conviction obtained in the second trial on the ground that the acquittal on that

charge in the first trial barred its reprosecution, but the Court indicated that a retrial on

the manslaughter charge was proper:

	[A] concept of continuing jeopardy . . . has application where criminal proceedings

against an accused have not run their full course . . . .

		The continuing jeopardy principle necessarily is applicable to this case. 

Petitioner sought and obtained the reversal of his initial conviction for voluntary

manslaughter by taking an appeal.  Accordingly, no aspect of the bar on double

jeopardy prevented his retrial for that crime.

Id.

	The doctrine of continuing jeopardy applies in the context of mistrials.  Early in its

history, the U.S. Supreme Court recognized that the federal Double Jeopardy Clause does

not bar the reprosecution of a defendant when a trial court terminates the first trial by

discharging a jury that is unable to agree on a verdict.  United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165, 165-66 (1824).  The Court reasoned that “the law has

invested courts of justice with the authority to discharge a jury from giving any verdict,

whenever, in their opinion, taking all the circumstances into consideration, there is a

manifest necessity for the act,” and when the trial judge permits the defendant to be

retried because “the ends of public justice would otherwise be defeated.”  Id. at 580, 6 L.Ed. at 165.  The Court has held that the federal Double Jeopardy Clause does not

prohibit a retrial when the mistrial was a “manifest necessity,” even if the mistrial is declared over the defendant’s objection.  Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).  The Court explained that, “without exception, the courts

have held that the trial judge may discharge a genuinely deadlocked jury and require the

defendant to submit to a second trial.  This rule accords recognition to society’s interest

in giving the prosecution one complete opportunity to convict those who have violated its

laws.”  Id. at 509, 98 S.Ct. at 832, 54 L.Ed.2d at 730.  The Court has also held that the federal Double Jeopardy Clause generally does not bar a defendant’s retrial when the first

trial for the same crime ends in a mistrial at the defendant’s request or when the

defendant acquiesces in the mistrial.  U.S. v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). 

	Thus, the U.S. Supreme Court has consistently held that “a retrial following a

‘hung jury’ does not violate the Double Jeopardy Clause.”  Richardson v. United States, 468 U.S. 317, 324, 104 S.Ct. 3081, 3085, 82 L.Ed.2d 242, 250 (1984) (citing Logan v. United States, 144 U.S. 263, 297-98, 12 S.Ct. 617, 628, 36 L.Ed. 429, 441 (1892)).  The Court has stated:

	The double-jeopardy provision of the Fifth Amendment, however, does not mean

that every time a defendant is put to trial before a competent tribunal he is entitled

to go free if the trial fails to end in a final judgment.  Such a rule would create an

insuperable obstacle to the administration of justice in many cases in which there

is no semblance of the type of oppressive practices at which the double-jeopardy

prohibition is aimed.  There may be unforeseeable circumstances that arise during

a trial making its completion impossible, such as the failure of a jury to agree on a

verdict.  In such event the purpose of law to protect society from those guilty of

crimes frequently would be frustrated by denying courts power to put the

defendant to trial again. . . .  What has been said is enough to show that a

defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end

in just judgments.

Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974, 978 (1949).  In Richardson, the U.S. Supreme Court, explaining that a “hung jury is [not] the equivalent of an acquittal,” held:

	[T]he failure of the jury to reach a verdict is not an event which terminates

jeopardy. . . .  [A] trial court’s declaration of a mistrial following a hung jury is not

an event that terminates the original jeopardy to which [the defendant] was

subjected.  The Government, like the defendant, is entitled to resolution of the case

by verdict from the jury, and jeopardy does not terminate when the jury is

discharged because it is unable to agree.

Richardson, 468 U.S. at 325-26, 104 S.Ct. at 3086, 82 L.Ed.2d at 251.  Thus, the concept of continuing jeopardy applies to a mistrial caused by a deadlocked jury.  See, e.g., United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976) (per curiam); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100, 102 (1963); Green, 355 U.S. at 188, 78 S.Ct. at 224, 2 L.Ed.2d at 205.   Likewise, in cases in which the prosecutor charges different offenses in separate counts and the jury reaches a

verdict as to some counts but not as to others, the jury may render a verdict as to the

charge or charges upon which the jurors do agree, and the charges on which they do not

agree may be tried again.  See Selvester v. United States, 170 U.S. 262, 269-70, 18 S.Ct. 580, 582-83, 42 L.Ed. 1029, 1032 (1898).  The Fifth Circuit Court of Appeals concluded

that “an acquittal on a greater offense does not preclude a retrial on a lesser offense to

which continuing jeopardy has attached, and this result obtains whether the applicability

of continuing jeopardy results from an appellate reversal of a conviction as in Price or from a mistrial caused by a deadlocked jury.”  Larkin, 605 F.2d at 1369 (citing United States v. Scott, 464 F.2d 832 (D.C. Cir. 1972); Forsberg v. United States, 351 F.2d 242 (9th Cir. 1965).

	In Green, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199, the Supreme Court discussed the doctrine of implied acquittal.  In Green, the jury at the first trial was instructed on the offenses of first- and second-degree murder and found that the defendant was guilty of

second-degree murder.  The defendant’s conviction was reversed on appeal.  On remand,

the defendant was again tried for first- and second-degree murder and ultimately

convicted of first-degree murder.  The Supreme Court held that the defendant’s retrial on

the charge of first-degree murder subjected him to double jeopardy.  Id. at 191, 78 S.Ct. at 225, 2 L.Ed.2d at 206 (“[T]his case can be treated no differently, for purposes of

former jeopardy, than if the jury had returned a verdict which expressly read:  ‘We find

the defendant not guilty of murder in the first degree but guilty of murder in the second

degree.’”).  See also Price, 398 U.S. at 329, 90 S.Ct. at 1761, 26 L.Ed.2d at 305 (“[T]his Court has consistently refused to rule that jeopardy for an offense continues after an

acquittal, whether that acquittal is express or implied by a conviction on a lesser included

offense when the jury was given a full opportunity to return a verdict on the greater

charge.”).  The Court held that if the jury is “given a full opportunity to return a verdict”

on the greater offense and instead convicts on a lesser offense, an implicit acquittal with

respect to the greater offense results.  Green, 335 U.S. at 191, 78 S.Ct. at 225, 2 L.Ed.2d at 206.  The Court has summarized Green as “hold[ing] only that when one is convicted of a lesser offense included in that charged in the original indictment, he can be retried

only for the offense of which he was convicted rather than that with which he was

originally charged.”  United States v. Tateo, 377 U.S. 463, 465 n.1, 84 S.Ct. 1587, 1589 n.1, 12 L.Ed.2d 448, 450 n.1 (1964).  The Michigan Supreme Court summarized the

Green holding as follows:  “a defendant may be retried for any of the lesser included offenses, but may not be retried for an offense greater than the one of which he was

originally convicted.”  People v. Garcia, 531 N.W.2d 683, 690 (Mich. 1995).

	The U.S. Supreme Court has held that, where a defendant has been tried and

convicted of a lesser included offense, he cannot be subsequently tried in a separate

prosecution for the greater offense without violating double jeopardy.  Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).  The Court, however, clearly

limited the application of this holding to separate prosecutions, stating that “[w]e are not

concerned here with the double jeopardy questions that may arise when a defendant is

retried on the same charge after a mistrial. . . .”11  Id. at 165 n.5, 97 S.Ct. at 2225 n.5, 53 L.Ed.2d at 194 n.5.

	In the present case, the defendant’s federal double jeopardy rights would have

been violated had he been convicted and sentenced for both felony murder and the

underlying felony because the conviction for murder during the commission of a felony would necessarily require proof of the underlying felony.12  Harris v. Oklahoma, 433 U.S. 682, 682, 97 S.Ct. 2912, 2913, 53 L.Ed.2d 1054, 1056 (1977); Hobson v. State, 675 N.E.2d 1090, 1094 (Ind. 1996); Kennedy v. State, 674 N.E.2d 966, 967 (Ind. 1996); Gregory-Bey v. State, 669 N.E.2d 154, 157 (Ind. 1996); Moore v. State, 652 N.E.2d 53, 59 (Ind. 1995); Swafford v. State, 498 N.E.2d 1188, 1191 (Ind. 1986); Eddy v. State, 496 N.E.2d 24, 29 (Ind. 1986); Williams v. State, 426 N.E.2d 662, 670 (Ind. 1981); Mitchell v. State, 270 Ind. 4, 7, 382 N.E.2d 932, 934 (1978) (“The United States Supreme Court has held that where a felony murder conviction requires proof of the underlying felony,

the two offenses are considered to be the ‘same’ within the meaning of the Double

Jeopardy Clause.”) (citing Harris, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054).  But the defendant was not convicted on the felony murder by robbery charge.  He was instead

acquitted.  Subsequently, he was retried on the robbery charge after a mistrial because the

jury was unable to reach a verdict and then convicted of robbery.

	From the rule that a defendant may not be convicted and sentenced for both felony murder and the underlying felony it does not logically follow that a defendant’s federal

double jeopardy rights are violated when, in one trial, a defendant is acquitted of felony

murder but convicted and sentenced for the underlying felony13 or, as in this case, when a defendant is acquitted of felony murder, retried for the underlying felony because the first

trial resulted in a mistrial on that charge, and then convicted and sentenced for the

underlying offense.14  While the State is required to prove all the essential elements of the felony murder including the underlying felony in order for the jury to convict the defendant of felony murder, a verdict of acquittal on the felony murder charge would not

necessarily require the jury to have found the underlying felony was not proven.  Stated

differently, in order to acquit of felony murder, the fact-finder would not necessarily have

determined that the underlying felony was not proven.

	In this case, we cannot conclude that the acquittal on the felony murder charge

resulted from any failure by the State to prove the elements of the robbery.  The jury

could not reach a verdict on the robbery and conspiracy charges, and, for this reason, the judge declared a mistrial as to those charges.  If the State had failed to prove the robbery,

the underlying felony, we presume that the jury would have reached a verdict of acquittal.

	We hold that the defendant was not placed in jeopardy twice for the same offense. 

Rather, the initial jeopardy, which was suspended because of mistrial, continued upon

retrial.15  We conclude, therefore, that the defendant’s federal double jeopardy rights were not violated when he was retried on the robbery charge after he was acquitted of felony murder in the first trial and a mistrial was declared on the other two charges.16

	2.  Collateral Estoppel

	The defendant asserts that his acquittal on the felony murder charge barred, under

the doctrine of collateral estoppel, the relitigation of certain factual issues in his retrial. 

More specifically, the defendant argues that “[c]ollateral estoppel applies to relitigating

the facts which support conviction for the robbery charge, the conspiracy to commit

robbery and those facts which proved the necessary elements of ‘serious bodily injury’

making the convictions Class A felonies under Ind. Code 35-42-5-1(2) and 35-41-5-2(a).” 

Brief of Defendant-Appellant at 13.  We understand the defendant’s contention to be that,

in acquitting him of the charged felony murder by robbery, the jury necessarily

determined that the State failed to prove:  (1) that he killed Turner; (2) that he committed

robbery resulting in serious injury to Turner; and (3) that he aided, induced, or caused the

killing of Turner in the course of the robbery.

	The U.S. Supreme Court has ruled that collateral estoppel in criminal trials is an

ingredient of the protection against double jeopardy guaranteed by the Fifth and

Fourteenth Amendments.  Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).  Ashe incorporated the rule of collateral estoppel into the guarantee against double jeopardy to protect “a man who has been acquitted from having to ‘run the

gauntlet’ a second time.”  Id. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477.

	  The U.S. Supreme Court has held that, while “‘[c]ollateral estoppel’ is an

awkward phrase, . . . it stands for an extremely important principle in our adversary

system of justice.  It means simply that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”  Id. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.  See also Harris v. Washington, 404 U.S. 55, 92 S.Ct. 183, 30 L.Ed.2d 212 (1971); Bonham v. State, 644 N.E.2d 1223, 1226 (Ind. 1994) (“‘Generally, collateral estoppel operates to bar a subsequent relitigation of the same fact or issue where that fact or issue was necessarily

adjudicated in a former suit and the same fact or issue is presented in the subsequent

lawsuit.’”) (quoting Sullivan v. American Cas. Co., 605 N.E.2d 134, 137 (Ind. 1992)).  The interplay between double jeopardy and collateral estoppel has been described this

way:

	[W]hile the parent doctrine of double jeopardy bars a subsequent prosecution

based on a different section of the criminal code when “the evidence required to

support a conviction upon one of [the indictments] would have been sufficient to

warrant a conviction upon the other,” its progeny, collateral estoppel, bars only the

reintroduction or relitigation of facts already established against the government. 

To state the distinction in more prosaic terms, the traditional bar of jeopardy

prohibits the prosecution of the crime itself, whereas collateral estoppel, in a more

modest fashion, simply forbids the government from relitigating certain facts in

order to establish the fact of the crime.

United States v. Mock, 604 F.2d 341, 343-44 (5th Cir.1979), quoted in Little v. State, 501 N.E.2d 412, 414 (Ind. 1986).

	With the doctrine of collateral estoppel, “the prime consideration is whether the

party against whom the prior judgment is pled had a full and fair opportunity to litigate

the issue and whether it would be otherwise unfair under the circumstances to permit the

use of collateral estoppel.”  Bonham, 644 N.E.2d at 1226 (quoting Sullivan, 605 N.E.2d at 138).  We have also noted:  “We agree that ‘once a defendant has satisfied one jury

that he is not guilty of a crime, constitutionally-rooted considerations of fairness preclude the Government from injecting any issues necessarily decided in his favor into a second

trial for another offense.’”  Little, 501 N.E.2d at 415 (quoting United States v. Mespoulede, 597 F.2d 329, 330 (2d Cir. 1979)).

	When we apply the doctrine of collateral estoppel, we determine what the first

judgment decided and examine how that determination bears on the second case.  Webb v. State, 453 N.E.2d 180, 183 (Ind. 1983) (citing Mespoulede, 597 F.2d 329).  Ashe further instructs:

	Where a previous judgment of acquittal was based upon a general verdict, as is

usually the case, this approach requires a court to []examine the record of a prior

proceeding, taking into account the pleadings, evidence, charge, and other relevant

matter, and conclude whether a rational jury could have grounded its verdict upon

an issue other than that which the defendant seeks to foreclose from

consideration.[]

Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475-76 (quotation marks and footnote omitted).  As we further observed in Little:

		Application of collateral estoppel in this context requires that the trial court

determine what facts were necessarily decided in the first law suit.  The court must

examine the record of the prior proceeding, taking into consideration the

pleadings, evidence, charge and other relevant matters.  Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.  Then the court must decide whether the

government in a subsequent trial attempted to relitigate facts necessarily

established against it in the first trial.  See United States v. Mock, 604 F.2d at 343, 344.  If so, evidence of the former offense must be suppressed.  “The federal

decisions have made clear that the rule of collateral estoppel in criminal cases is

not to be applied with the hypertechnical and archaic approach of a 19th century

pleading book, but with realism and rationality.”  Ashe, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 475.

Little, 501 N.E.2d at 415.  The Indiana Court of Appeals explained the application of this two-step process:

	Determining what the first judgment decided involves an examination of the record

of the prior proceedings including the pleadings, evidence, charge and any other

relevant matters.  The court must then decide whether a reasonable jury could have

based its verdict upon any factor other than the factor of which the defendant seeks

to foreclose consideration.  If the jury could have based its decision on another

factor, then collateral estoppel does not bar relitigation.

Segovia v. State, 666 N.E.2d 105, 107 (Ind. Ct. App. 1996) (citing Webb, 453 N.E.2d at 184) (internal citations omitted).  

	In the first trial, as to the felony-murder count on which the jury acquitted the

defendant, the jury instructions stated in relevant part: 

	In Count II, the crime of murder is defined . . . a person who knowingly or

intentionally kills another human being while committing or attempting to commit

robbery, commits murder, a felony.  To convict the defendant, the State must have

proved each of the following elements, the defendant number one (1) killed;

number [two] (2), David S. Turner; number three (3), while committing robbery by

unlawfully, knowing taking property to-wit: approximately ten (10) pounds of

marijuana, from David S. Turner, by using force on David S. Turner, resulting in

serious bodily injury to David S. Turner; number four (4), in Delaware County,

Indiana.  If the State failed to prove each of these elements beyond a reasonable

doubt, you should find the defendant not guilty.  

Record at 1892.  This instruction misstates the law in a manner favorable to the

defendant.  The crime of murder may occur, essentially, in either of two forms:  (1) as a

knowing or intentional killing, or (2) as felony murder, which does not require a knowing

or intentional killing, but rather only a killing while committing or attempting to commit

one of the prescribed felonies.  Ind. Code § 35-42-1-1.17  Significantly, the jury  instruction required specific culpability, an element of proof not actually required by

statute for the charged offense of felony murder.  The jury was also instructed regarding

accomplice liability and directed that it could find the defendant guilty of felony murder

if it found felony murder committed by another person and if the jury also found that “the

defendant knowingly aided, induced, or caused the other person to commit an offense.” 

Record at 1899-1900.18  However, other instructions stated that “[a] person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability

that he is doing so,” Record at 1896, and that “[t]he State is only required to produce such evidence as will satisfy you beyond a reasonable doubt that the crime charged was

committed by the defendant, as a principal or as an accessory, with the requisite intent,”

Record at 1897.  Considered together, we find that the instructions directed the jury in the

defendant’s first trial that, even if the jury found that the defendant aided in the

commission of robbery, before it could find the defendant guilty of felony murder, the

State must also prove beyond a reasonable doubt that the defendant’s participation in the

killing was knowing or intentional.

	We find evidence in the first trial casting doubt on whether the defendant

knowingly or intentionally participated in the killing.  According to Craig’s testimony,19 Craig hit Turner twice on the head, the second blow knocking him to the floor

unconscious.  Ransom then taped Turner’s hands behind his back with shipping tape. 

The defendant hit Turner on the head with a piece of metal and placed a plastic garbage

bag over Turner’s head.20  Ransom pressed the air out of the bag and taped the bag tightly around Turner’s neck.  Hartman, Craig, and Ransom drove in Hartman’s truck to a

remote area to dispose of Turner’s body, but the defendant refused to go along because he

did not want to ride in the truck with the body.  According to Hartman’s testimony,

Hartman was the middle man in the drug deal between Turner and Craig, and the profit

from this sale would provide Hartman with the money necessary to leave town.  Hartman

also testified that Turner dropped Hartman off at the Hartman residence at around 9:00

p.m. and that Craig and Turner then left in Turner’s car.  Hartman testified that the

defendant was at the Hartman residence, lying on the couch sick, and that Craig and

Ransom were not at the Hartman residence.  Craig and Ransom, according to Hartman’s

testimony, returned to the Hartman residence around midnight.

	The defendant testified that he did not have any conversation with Hartman,

Ransom, Craig, or anyone else regarding robbing Turner of marijuana.  He also testified

that, on the day of the robbery, he was sick and spent the day at the Hartman residence on

the couch.  In his testimony he recounted that he saw Craig and Ransom on the day of the

robbery, but that he did not hear any talk regarding the sale of any drugs that night.  He

also testified that, on the day of the robbery, he never went to the house where the

robbery occurred, that he did not hit Turner on the head with any object, that he did not plan to rob Turner, that he did not rob Turner or participate in the robbery, that he did not

put a bag over Turner’s head, that he did not kill Turner, see him killed, or assist anyone

in the killing, and that he did not load Turner’s body into a truck or dispose of the body in

the country.  His testimony also was that he did not learn that Turner was dead until he

arrived back in Indiana, after being arrested in Florida.  When Turner’s body was

discovered, his hands were still taped behind his back.  There were no obvious gun shot

or stab wounds or any fractures.  Because the body was so badly decomposed, those

examining the body could not determine whether Turner died of suffocation, a broken

neck, or any other natural or unnatural cause, and they finally concluded that the cause of

death was undetermined homicidal violence.

	We conclude that a rational jury could have acquitted the defendant of felony

murder, under its instructions from the trial court, because the evidence did not establish

beyond a reasonable doubt that the defendant knowingly or intentionally killed Turner.

	A second ground for our conclusion is that a rational jury could have acquitted the

defendant of felony murder upon an issue other than those the defendant seeks to

foreclose under the doctrine of collateral estoppel.  We agree with the opinion of the

Court of Appeals on rehearing in its analysis of the claim.  Griffin, 694 N.E.2d 304.  Writing for the court, Judge Kirsch stated:  

	    The question, then, is whether a reasonable jury could have based its acquittal

of Griffin of the felony murder upon any factor other than Griffin’s participation

in the robbery and conspiracy.  We think it could.  Because the cause of Turner’s

death was not known, it was reasonable for the jury to have concluded that the

killing occurred after the robbery had been completed.  Therefore, the felony murder could reasonably have been based upon Griffin’s non-participation in the

killing.  A determination of Griffin’s non-participation in the killing, does not

preclude relitigation of his participation in the robbery or the conspiracy, issues

the jury was unable to decide in the first trial.  Griffin’s retrial was not barred by

principles of collateral estoppel.  

Id. at 306.

	For each of these reasons, we therefore find that the first jury could reasonably

have grounded its verdict of acquittal upon an issue other than those the defendant now

seeks to foreclose from consideration.  We hold that collateral estoppel did not bar the

retrial of the defendant on charges of robbery and conspiracy to commit robbery—the

charges on which the first jury was unable to reach a verdict.  

3.  Double Jeopardy, Robbery, and Conspiracy to Commit Robbery

	In his second trial, the defendant was convicted and sentenced for both robbery

and conspiracy to commit robbery.  The defendant argues that his convictions and

sentences for both robbery and conspiracy to commit robbery constitute multiple

punishments for the same offense and thus that they violate the federal and state

constitutional protections against double jeopardy.  He contends that the overt acts in

furtherance of the conspiracy alleged by the State constituted the underlying offense of

robbery.

A.  Federal Double Jeopardy

	To convict of robbery, the State must prove the following essential elements under the statute:  the defendant knowingly or intentionally took property from David Turner or

from the presence of David Turner by using or threatening the use of force, or the

defendant knowingly or intentionally aided, induced, or caused another person to commit

robbery.  Ind. Code §§ 35-42-5-1 & 35-41-2-4.  The conspiracy statute provides in part:

	(a) A person conspires to commit a felony when, with intent to commit the felony,

he agrees with another person to commit the felony.  A conspiracy to commit a

felony is a felony of the same class as the underlying felony. . . .

	(b) The state must allege and prove that either the person or the person with whom

he agreed performed an overt act in furtherance of the agreement.

Ind. Code § 35-41-5-2.  To convict of conspiracy to commit robbery, the State must prove the following essential elements:  the defendant agreed with another person to

commit the crime of robbery with the intent to commit the robbery and either the

defendant or another party to the agreement performed an overt act in furtherance of the

agreement.

	Applying the Blockburger test, we find that both the robbery charge and the conspiracy charge contain at least one separate and distinct element.  The robbery charge

requires the State to prove that the defendant or his accomplice took property from Turner

or from his presence, which is not required to prove the conspiracy charge, and the

conspiracy charge requires the State to prove an agreement and at least one overt act in

the furtherance of the agreement, which are not required to prove the robbery charge.

	Under federal double jeopardy jurisprudence, robbery and conspiracy to commit robbery are not the same offense.21  We conclude, therefore, that the defendant’s federal double jeopardy rights were not violated.

B.  Indiana Double Jeopardy

	Today, in Richardson v. State, --- N.E.2d ---, we explain that two tests apply to determine whether multiple offenses constitute the same offense under the Indiana

Double Jeopardy Clause: 

	[T]wo or more offenses are the “same offense” in violation of Article I, Section 14

of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged

offense.

Id. at --- (slip op. at 27).  Under the statutory elements test, “[e]ach offense must contain at least one element which is separate and distinct from the other offense so that the same

evidence is not necessary to convict for both offenses.”  Id. at --- (slip op. at 32).  Having found that robbery and conspiracy to commit robbery are not the same offense under the

federal Blockburger test, we likewise find that the offenses are not the same under Indiana’s analogous statutory elements test.

	Even though these offenses are not the same offenses under the statutory elements

test, we also apply the following actual evidence test:  

	[T]he actual evidence presented at trial is examined to determine whether each

challenged offense was established by separate and distinct facts.  To show that

two challenged offenses constitute the “same offense” in a claim of double

jeopardy, a defendant must demonstrate a reasonable possibility that the

evidentiary facts used by the fact-finder to establish the essential elements of one

offense may also have been used to establish the essential elements of a second

challenged offense.  

Id. at --- (slip op. at 33-34).

	The evidence presented at the second trial established the following facts related to the conspiracy charge.  The defendant and three companions met to discuss and develop a

plan to get Turner to a certain house owned by the defendant’s step-father and mother, to

beat Turner, and to take the marijuana from him.  In furtherance of this agreement,

Hartman called Turner’s beeper several times, arranged to have Turner meet Hartman at a

hotel and to bring ten pounds of marijuana, and met Turner at the hotel.  Meanwhile, the

defendant, Craig, and Ransom went to the house where the robbery was to occur and

waited until Hartman and Turner arrived with the marijuana.    

	The jury’s application of the evidence was directed by the court’s instructions,

which included the reading of the State’s formal information charging conspiracy to

commit robbery.  This charge expressly alleged various overt acts in furtherance of the

agreement:  a series of meetings over several days involving the defendant, Hartman,

Craig, and Ransom to discuss and agree to rob Turner; Hartman contacted Turner to

request that he bring marijuana; Hartman met Turner at the motel; Hartman caused

Turner to go to the residence; Craig and Ransom waited at the residence for Turner; Craig

struck Turner on the head to render him unconscious; Ransom taped Turner’s hands

behind his back; a plastic bag was placed over Turner’s head, suffocating him; and

marijuana was taken from Turner’s presence.  The jury was thus informed that the

completed robbery could be used to prove the overt act element required for conspiracy.

	In support of the robbery charge, the trial evidence and reasonable inferences

established that after Turner arrived at the house with the marijuana, Craig struck Turner

twice with a wooden table leg; Ransom taped Turner’s hands behind his back; the defendant struck Turner with a piece of metal; a plastic bag was taped over Turner’s

head; and Turner’s marijuana was taken and delivered the next day to Doug Hoover, who

agreed to sell it.  The applicable jury instructions did not require the jury to find the

existence of a prior agreement to rob in order to convict for robbery.

	Considering the evidence presented of substantial advance preparation and the trial

court’s instructions for application of this evidence, we find no reasonable possibility that

the evidentiary facts used by the jury to establish the essential elements of conspiracy to

commit robbery may also have been used to establish the essential elements of robbery. 

To establish that two offenses are the same offense under the actual evidence test, the

possibility must be reasonable, not speculative or remote.  Applying the actual evidence

test, the defendant’s convictions for robbery and conspiracy to commit robbery are thus

not the same offense, and there is no violation of the Indiana Double Jeopardy Clause.

	Conclusion

	Transfer is granted.  Except as otherwise provided above, we summarily affirm the

Court of Appeals.  Ind. Appellate Rule 11(B)(3).  The judgment of the trial court is

affirmed.

	SHEPARD, C.J., and SULLIVAN, amd and SELBY, JJ., concur.  BOEHM, J., concurs

in result with separate opinion, in which SELBY, J., concurs.and

ATTORNEYS FOR APPELLANT

Geoffrey A. Rivers

Joseph P. Hunter

Muncie, Indiana       

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

Preston W. Black     

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

EDDIE GRIFFIN,		 		)

   						)

	Appellant (Defendant Below),	)	Indiana Supreme Court

						)	Cause No. 18S02-9910-CR-505

	      v.					)	

 						)	Indiana Court of Appeals

STATE OF INDIANA,	    		)	Cause No. 18A02-9609-CR-602

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE DELAWARE SUPERIOR COURT

	The Honorable Richard Barnet, Judge 

	Cause No. 18D01-9307-CF-39

	ON PETITION TO TRANSFER

BOEHM, Justice, concurring in result.

	I concur in parts 1, 2 and 3a of the majority’s opinion and concur in result in 3b.  I

agree that Griffin’s convictions for robbery and conspiracy to commit robbery were not improper.   As explained in my opinion concurring in result in Richardson v. State,     N.E.2d     (Ind. 1999), I base this conclusion on the common law rule announced in Thompson v. State, 259 Ind. 587, 592, 290 N.E.2d 724, 727 (1972), that requires convictions to be supported by facts that were “independently supportable, separate and distinct.”  In contrast,

this Court has often held that convictions for both conspiracy and the substantive crime are

not permitted where the overt act charged in the conspiracy offense is the substantive crime. 

See, e.g., Derado v. State, 622 N.E.2d 181, 184 (1993).  In light of the numerous overt acts charged and the evidence of each presented at trial, I agree that there is no reasonable

possibility that the jury relied solely on the taking of marijuana (the robbery) as the overt act

for the conspiracy conviction.  Accordingly, convictions on both are proper under Thompson. 	

	SELBY, J., concurs.