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

In the

Indiana Supreme Court 

No. 45S03-1404-CR-295

JEFFREY A. CLEARY,

Appellant (Defendant below),

v.

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

January 15, 2015

David, Justice.

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.
2

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. 
3

The State charged Cleary with five criminal charges and three infractions, all flowing 

from the November 4, 2010, collision:

 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).

 Count II: Causing death when operating a motor vehicle while intoxicated, a 

class C felony. Ind. Code § 9-30-5-5(a).

 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).

 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).

 Count V: Operating a motor vehicle while intoxicated, a class C misdemeanor. 

Ind. Code § 9-30-5-2(a).

 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).

 Count VII: Improper lane movement, a class C infraction. Ind. Code §§ 9-21-8-

11 (2010), 9-21-8-49 (2010).

 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 State to retry Cleary on all eight counts and set the 

second trial for August 27, 2012. 
4

Cleary’s second jury found him guilty of Counts I through V and liable for Counts VI and 

VII.1 The State moved for judgments on the verdicts as to Counts I, VI, VII, and VIII, and the 

trial court entered judgments of convictions as to those counts only. The trial court fined Cleary 

$1500 for the three infractions and suspended his driving privileges for two years. For the class 

B felony conviction on Count I, the trial court suspended Cleary’s driving privileges for an 

additional five years and imposed a sentence of fourteen years in the Indiana Department of 

Correction. 

Cleary appealed, arguing that his second prosecution should have been barred by double 

jeopardy, that the trial court abused its discretion in admitting evidence of Cleary’s blood draw, 

and that his fourteen-year sentence was inappropriate in light of his character and the nature of 

the offense. The Court of Appeals affirmed, Cleary v. State, 2 N.E.3d 765, 766 (Ind. Ct. App. 

2014), with Judge Crone dissenting as to Cleary’s double jeopardy claim, id. at 773.

We granted transfer and summarily affirm the Court of Appeals with respect to its 

resolution of Cleary’s evidentiary issue and request for sentence revision. Cleary v. State, 7 

N.E.3d 992 (Ind. 2014) (table); Ind. Appellate Rule 58(A)(2). We write only on Cleary’s claim 

of a double jeopardy violation. 

Discussion

Cleary’s double jeopardy argument is multifaceted. For starters, several provisions of the 

Indiana Code govern the entry of judgments of conviction and prohibit retrial in certain 

circumstances. Cleary says those provisions operate together in a manner that prohibit his retrial. 

Cleary couples this statutory claim with a constitutional one, arguing that Indiana’s constitutional 

 

1 Cleary admitted to Count VIII. 
5

double jeopardy protections apply to his case and were violated by his retrial and subsequent 

convictions.

Both of these challenges are reviewed de novo. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 

2011). And in short summary, we reject them both. As we explain below, the fact that Cleary’s 

jury affirmatively deadlocked on his greater offenses is significant—and fatal to his claim—for 

several reasons. For one thing, it takes his case out of the scope of the implied acquittal doctrine. 

And as a consequence, the statutory provisions upon which Cleary relies do not bar his retrial. 

Second, in both Indiana and federal jurisprudence, hung juries do not create double jeopardy 

implications. As such, this aspect of his claim must also fail. 

I. Indiana’s Statutory Double Jeopardy Protections

We begin with Cleary’s statutory claim. Cleary says that the Indiana Code required the 

trial judge here to enter judgments of conviction on the first jury’s guilty verdicts, and if it had 

done so then those convictions would have statutorily prohibited his retrial on the same offenses. 

Additionally, he says those convictions would have implied acquittals in the charges for which 

his jury deadlocked, meaning the State could not retry those deadlocked charges, either. The 

Court of Appeals has previously resolved this very issue, in a way that rejects Cleary’s view of 

how the statutes operate. This Court has not squarely addressed the question until today, but we 

likewise find Cleary’s application of the statutes to be incorrect.

Indiana Code § 35-41-4-3 (2008) codifies protections against being placed in jeopardy 

more than once for the same offense. It provides, in relevant part, that “[a] prosecution is barred 

if there was a former prosecution of the defendant based on the same facts and for commission of 

the same offense and if: (1) the former prosecution resulted in an acquittal or a conviction of the 

defendant.” Ind. Code § 35-41-4-3(a). It also incorporates an “implied acquittal” principle by 

providing that “[a] conviction of an included offense constitutes an acquittal of the greater 

offense, even if the conviction is subsequently set aside.” Ind. Code § 35-41-4-3(a)(1); Haddix 

v. State, 827 N.E.2d 1160, 1165 (Ind. Ct. App. 2005), trans. denied.
6

 Cleary’s first jury reached a verdict of guilty on the lesser-included OWI 

misdemeanors—those charges not requiring proof that Cleary caused Amsden’s death or proof of 

a BAC greater than 0.15—and it deadlocked on the greater offenses. It is unequivocal that if the 

trial court had entered a judgment of conviction for those lesser-included misdemeanors, Indiana 

Code § 35-41-4-3(a) would have barred the State from retrying Cleary on Counts I, II, and III.

But “a guilty verdict and a judgment of conviction are two rather different things.” 

Carter v. State, 750 N.E.2d 778, 779 (Ind. 2001). They are “different acts from which different 

consequences flow.” Id. at 780. “A verdict of guilty can certainly be a significant legal event, 

but only if a court later enters judgment on it.” Id. Thus, the jury’s guilty verdicts here are not 

inherently the same as “an acquittal or a conviction” such that Ind. Code § 35-41-4-3(a) 

necessarily applies. Similarly, they are not “conviction[s] of an included offense” such that the 

implied acquittal provision, by its terms, bars retrial on the greater offenses. 

Cleary seeks the protection of this section regardless of the distinction between 

convictions and verdicts, because he says the trial court was compelled to enter a judgment of 

conviction on the lesser-included offenses pursuant to Indiana Code § 35-38-1-1.

2

 But that 

 

2

Indiana Code § 35-38-1-1(a) (2008) provides that, subject to an exception not relevant here, “after a 

verdict, finding, or plea of guilty, if a new trial is not granted, the court shall enter a judgment of 

conviction.” The statute does not specify how long a trial court has to accomplish this task. The Criminal 

Rules provide that a trial court shall “promptly” enter the judgment of conviction, and may be compelled 

by mandate to do so. Ind. Crim. Rule 15.1. And we have said that “the trial court may not withhold 

judgment but is required to enter a judgment of conviction immediately unless a temporary postponement 

is dictated by good cause shown or the interest of justice so requires.” Debro v. State, 821 N.E.2d 367, 

372 (Ind. 2005). 

Cleary does not present an argument that the trial court’s refusal to immediately enter convictions here 

was outside a permissible “temporary postponement,” nor do we see the need to establish a firmer or 

brighter line than Debro. We agree with the Court of Appeals that the delay here was supported by good 

cause or otherwise in the interest of justice. See Cleary, 2 N.E.3d at 767-68 n.3. The delay was solely so 

that the trial court and parties could research the question of whether deadlocks on Cleary’s greater 

offenses operated in the same manner as acquittals for double jeopardy purposes. We could hardly fault 
7

provision does not require a judgment be entered when a new trial is granted. So essentially, 

Cleary’s argument is that the jury’s guilty verdicts on Counts IV and V were implied acquittals 

of Counts I, II, and III, therefore his retrial was barred on those greater offenses, and the trial 

court was required to enter the judgments of conviction on Counts IV and V. We reject Cleary’s

claim and conclude that a retrial was permissible in his case.

The Court of Appeals faced a similar situation in Haddix, 827 N.E.2d 1160. Much like 

Cleary, Haddix was charged with a number of OWI-based offenses and a jury returned guilty 

verdicts on several lesser-included offenses but deadlocked on the greater offenses. The trial 

court denied Haddix’s motion for entry of judgment on the verdicts and this Court denied his 

subsequent petition for a writ of mandamus compelling the trial court to act. Haddix was retried. 

The second time around he was again found guilty of the lesser-included offenses, but expressly 

acquitted on the greater offenses.

Haddix appealed, claiming that his retrial violated the double jeopardy protections

embodied in the Fifth Amendment to the U.S. Constitution and Indiana Code § 35-41-4-3(a). Id.

at 1162. In rejecting Haddix’s claim, the Court of Appeals relied on a most unlikely source: this 

Court’s denial of Haddix’s petition for a writ of mandamus. Id. at 1166-67. 

Haddix’s petition had advanced the same claim as his appeal. And though this Court’s 

denial order was silent as to its basis, the Court of Appeals believed that holding on appeal that 

an entry of judgment of convictions had been required at the conclusion of Haddix’s first trial

“would seem to fly in the face of our supreme court’s denial of Haddix’s petition for writ of 

mandamus.” Id. at 1166. 

 

the trial court for giving this issue reasonable consideration, as it has now drawn this Court into the case 

as well.
8

The Court of Appeals also reviewed the requirements for issuing a writ of mandamus, 

and found that the only requirement not satisfied was that “the respondent court has exceeded its 

jurisdiction or failed to act when it was under a duty to act.” Id. at 1166-67 (citing Ind. Original 

Action Rule 3(A)). Thus, the Court of Appeals concluded that “the most likely and reasonable 

inference” to be drawn from the denial of Haddix’s petition was that this Court “concluded the 

trial court was not under a duty to enter judgments of conviction on the first jury’s guilty 

verdicts, and that it was proper to allow a second trial against Haddix on the C felony charges to 

go forward.” Id. at 1167. 

The Haddix panel saw this result as consistent with a view that Section 35-41-4-3(a) 

“does not require a trial court to enter a judgment of conviction on a guilty verdict for a lesser 

included offense if a jury simultaneously volunteers that it could not reach an agreement, either 

to acquit or convict, on the greater offense.” Id. “Instead, in such a situation the general 

principles concerning hung juries would allow the trial court to declare a mistrial and not enter 

judgment on the lesser included offense guilty verdict.” Id. And therefore there was no violation 

of Indiana Code § 35-41-4-3(a) because the literal terms of that provision only bar a second 

prosecution when there has been a conviction for a lesser-included offense—not merely a verdict

on a lesser-included offense. Id.

The trial court here relied on Haddix in rejecting Cleary’s motion for entry of judgment 

on the verdicts. Cleary argues that “such speculative reasoning should no longer be the litmus 

tests as to whether a trial court has the right to arbitrarily withhold entering a judgment of 

conviction merely to avoid jeopardy attaching.” (Appellant’s Br. at 11.) “Under Haddix, the 

State is given a tunnel to escape I.C. § 35-41-4-3 by giving trial courts the option to not enter a 

conviction as dictated by I.C. § 35-38-1-1.” (Appellant’s Br. at 11.)

We agree with Cleary that attempting to infer this Court’s rationale from an order 

denying a petition for a writ of mandamus is a speculative venture. The denial of Haddix’s 

petition for a writ of mandamus carries no more substantive or precedential weight than our 

subsequent denial of his petition to transfer following his direct appeal. Compare Ind. Appellate 
9

Rule 58(B) (“The denial of a Petition to Transfer shall have no legal effect other than to 

terminate the litigation between the parties in the Supreme Court.”) with Ind. Original Action 

Rule 5(B) (“If the application is denied, an order of denial shall be entered expeditiously. The 

denial of the application will end the proceedings, regardless of whether the Court has conducted 

a hearing.”). 

That cautionary note aside, for the reasons expressed below we agree with the Haddix

panel’s conclusion that Indiana Code § 35-41-4-3(a)’s implied acquittal provision does not apply

when the jury returns a guilty verdict on a lesser-included offense but deadlocks on the greater 

charge. The doctrine arose in response to much different circumstances. See Price v. Georgia, 

398 U.S. 323 (1970); Green v. U.S., 355 U.S. 184 (1957).

In Green, the defendant was charged with arson and first-degree murder, and the jury was 

instructed that they could also find Green guilty of second-degree murder on the first-degree 

murder count. The jury found him guilty of arson and second-degree murder and was silent as to 

first-degree murder. However, that conviction was later reversed on appeal and he was retried 

for first-degree murder. The U.S. Supreme Court concluded that the defendant’s second trial for 

first-degree murder constituted a double jeopardy violation because it believed the first jury 

chose between first- and second-degree murder, and it “regarded the jury’s verdict as an implicit 

acquittal on the charge of first degree murder.” Green, 355 U.S. at 189–90. “In brief, we believe 

this 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.’” Id. at 191.

Price expanded Green in a case in which a defendant was charged with murder and a 

guilty verdict returned on the lesser-included crime of voluntary manslaughter. The conviction 

was set aside after an appeal and the defendant retried for murder. He was again convicted of 

voluntary manslaughter and the U.S. Supreme Court found this impermissible even though the 

defendant was not ever convicted of the higher charge, as Green had been. Price, 398 U.S. at 

329. The result of the second trial was not what controlled, the Supreme Court said, because 
10

“the Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of 

trial and conviction, not punishment.” Id. “To be charged and to be subjected to a second trial 

for first-degree murder is an ordeal not to be viewed lightly.” Id. at 331.

But significantly, neither Green nor Price involved juries that were hung on the greater

offense. Rather, the juries in those cases were silent as to their verdicts on the greater charges. 

See Id. at 324 (“The jury returned a verdict of guilty to the lesser included crime of voluntary 

manslaughter . . . The jury’s verdict made no reference to the charge of murder.”) (emphasis 

added); Green, 355 U.S. at 186 (“The jury found Green guilty of arson and of second degree 

murder but did not find him guilty on the charge of murder in the first degree. Its verdict was 

silent on that charge.”) (emphasis added). In light of the jury’s silence in those cases, the 

Supreme Court assumed that the jury decided to acquit on the greater offense. See Id. at 190–91.

Courts in Indiana have therefore defined “implied acquittal” in line with the 

circumstances of Green and Price. It is “an ‘acquittal in which a jury convicts the defendant of a 

lesser-included offense without commenting on the greater-offense.’” Kocielko v. State, 938 

N.E.2d 243, 249 (Ind. Ct. App. 2010) (emphasis added) (quoting Moore v. State, 882 N.E.2d 

788, 798 n.8 (Ind. Ct. App. 2008) (May, J., concurring in result)), trans. denied; see also Black’s 

Law Dictionary 27 (9th ed. 2009). 

Under that definition, Cleary’s first trial “did not result in ‘acquittal implied by 

conviction on a lesser-included offense.’” Kocielko, 938 N.E.2d at 249 (quoting Price, 398 U.S. 

at 329). Rather, “‘[t]he jury’s express statement that it could not agree on a verdict as to the 

greater offense obviously precludes the inference that there was an implied acquittal.’” Haddix, 

827 N.E.2d at 1165 (quoting U.S. v. Bordeaux, 121 F.3d 1187, 1192 (8th Cir. 1997)). Simply 

put, “we cannot infer from the jury’s verdicts that it believed [Cleary] was innocent.” Moore, 

882 N.E.2d at 798. Cf. Kocielko, 938 N.E.2d at 249 (rejecting implied acquittal claim when 

defendant acquitted of one charge and jury deadlocked on two others because “[a] deadlocked 

jury does not result in acquittal barring retrial under the federal Double Jeopardy Clause.” (citing 

Tibbs v. Florida, 457 U.S. 31, 42 (1982) and Menifee v. State, 512 N.E.2d 142, 143 (Ind. 1987)). 
11

We do not interpret the statutory implied acquittal provision any differently than the 

doctrine developed from Green and Price. Indiana Code § 35-41-4-3(a)(1) codifies the implied 

acquittal doctrine, but nothing in the statute expands the doctrine to include circumstances where 

the jury affirmatively states that it has deadlocked on the greater offense.

3 Accordingly, because 

the jury affirmatively deadlocked on the greater offenses at Cleary’s first trial rather than 

remaining silent as to those counts, Section 35-41-4-3(a)’s implied acquittal provision is not 

implicated.4 The guilty verdicts on the lesser-included offenses do not turn those deadlocked 

results into acquittals such that retrial would be barred under the statute.

And as we discuss in greater detail below, nothing in double jeopardy jurisprudence 

prohibits a retrial on the offenses where the jury is deadlocked. Instead, as the U.S. Supreme 

Court said, “when a jury in a federal court, which operates under the unanimity rule and is 

 

3 We also point out that this statutory provision does not stand alone. Indiana Code § 35-41-4-3(a)(2) 

addresses double jeopardy implications when a trial ends in a mistrial, and expressly provides that a 

subsequent prosecution is permitted when “the jury was unable to agree on a verdict.” Ind. Code § 35-41-

4-3(a)(2)(v). Cleary’s position would mean that subsection (a)(1) would prohibit retrial when a jury 

deadlocks on a greater offense but returns a guilty verdict on a lesser-included offense for one defendant, 

because that deadlock should be equated with an acquittal, whereas (a)(2) would permit retrial if the jury 

deadlocked on all the offenses for a different defendant, apparently because that deadlock is not equated 

with an acquittal. In effect, Cleary proposes an exception to the general rule permitting retrials after 

deadlocked juries. There is no rational reason why the first defendant (Cleary) should benefit from that 

windfall, and we will not permit such an illogical result to flow from our interpretation of the statute.

4 Cleary also says that the State chose to charge multiple grades of the same offense, and therefore it 

“assume[d] the risk that a jury may not find guilt on the more serious counts,” and if the State wanted to 

avoid that risk then it should only have charged the greater offenses. (Appellant’s Br. at 11.) But the fact 

that the State has discretion in charging is not dispositive on application of the implied acquittal doctrine, 

just as it is not dispositive on whether the lesser-included offenses are ultimately available to a defendant.

In Green, for example, Green was charged with first-degree murder and the jury was instructed that Green 

could be convicted on either the greater or lesser-included offenses. Green, 355 U.S. at 185. In Price, the 

defendant was also only charged with the greater offense—the lesser-included offense was provided to 

the jury in the final instructions. Price, 398 U.S. at 324. And in Haddix the State initially filed the lesserincluded charges, but later excluded them by amending its charging information. Haddix, 827 N.E.2d at 

1161–62. But as in Price, the trial court in Haddix instructed the jury on the lesser-included offenses 

based on the evidence presented at trial. Id. 
12

instructed to acquit a defendant if it has a reasonable doubt about his guilt . . . cannot agree 

unanimously upon a verdict, the defendant is not acquitted, but is merely given a new trial.” 

Johnson v. Louisiana, 406 U.S. 356, 363 (1972). The same is true for a jury in an Indiana 

courtroom. Menifee, 512 N.E.2d at 143–44. Because a retrial was therefore permissible on 

Counts I, II, and III, Indiana Code § 35-38-1-1 did not compel the trial court to enter judgments 

of conviction with respect to the first jury’s verdicts on Counts IV, V, VI, and VII. 

II. Indiana’s Constitutional Double Jeopardy Protections

Cleary also argues that his retrial was barred by Indiana’s constitutional protections 

against double jeopardy. He says that his convictions on the lesser-included offenses—which he 

asserts should have automatically flowed from the guilty verdicts on those charges—mean that 

he could not have been convicted (or even tried) for the greater offenses at his second trial.5 To 

an extent, then, our conclusion that Indiana Code § 35-41-4-3(a) does not apply to Cleary’s case 

necessarily sounds a death knell for this argument. We still address Cleary’s position in light of 

our recent case law broadening the application of Indiana’s constitutional double jeopardy 

prohibitions, but conclude that his claim nevertheless fails.

Article 1, § 14 of the Indiana Constitution provides, in part, that “[n]o person shall be put 

in jeopardy twice for the same offense.” This prohibition—like all double jeopardy 

protections—“protect[s] the integrity of jury acquittals and the finality interest of defendants, 

shield[s] against excessive and oppressive prosecutions, and ensure[s] that defendants will not 

undergo the anxiety and expense of repeated prosecution and the increased probability of 

conviction upon reprosecution.” Richardson v. State, 717 N.E.2d 32, 37 (Ind. 1999). 

 

5 As such, our analysis is only addressing Cleary’s contention that double jeopardy would bar his retrial 

on the greater offenses upon which the jury was deadlocked (Counts I-III). 
13

In determining whether those protections had been violated under the Indiana 

Constitution’s terms, in Richardson this Court held that

[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 49. Cleary contends his retrial on the greater offenses fails both of these tests, but we do 

not believe the tests apply at all. Here, where there was no acquittal on the lesser-included 

offenses and the jury was hung on the greater offenses, the doctrine of continuing jeopardy 

applies to retrial on the greater offenses. 

Although Cleary’s second trial exposed him to “jeopardy” as that term is used in both 

Indiana and federal jurisprudence, it was not a new jeopardy distinct from that of his first trial.6

“[T]he U.S. Supreme Court has consistently held that ‘a retrial following a “hung jury” does not 

violate the Double Jeopardy Clause.’” Griffin v. State, 717 N.E.2d 73, 79 (Ind. 1999) (quoting 

Richardson v. U.S., 468 U.S. 317, 324 (1984)).7 This is true because the doctrine of continuing

jeopardy applies. See Griffin, 717 N.E.2d at 78. Under this doctrine, “a defendant who is retried 

following a hung jury is not placed in jeopardy twice for the same offense, because the initial 

jeopardy that attaches to a charge is simply suspended by the jury’s failure to reach a verdict.” 

Davenport v. State, 734 N.E.2d 622, 625 (Ind. Ct. App. 2000). Furthermore, “[t]he Government, 

 

6 The idea of “jeopardy” is not simply the punishment embodied in a defendant’s sentence, but “the risk 

of trial and conviction” itself. Garrett v. State, 992 N.E.2d 710, 721 (Ind. 2013); see also Green, 355 U.S. 

at 188 (“a defendant is placed in jeopardy once he is put to trial before a jury”). 

7 Griffin resolved challenges based under both Indiana and federal double jeopardy protections, but the 

principles it states about those protections are broadly applicable to both, and Cleary does not argue that 

Indiana’s constitutional provision has a different scope of how and when jeopardy terminates or 

continues.
14

like the defendant, is entitled to resolution of the case by verdict from the jury.” Id. (quoting 

Richardson, 468 U.S. at 326). 

Thus, the jury’s deadlock meant that Cleary’s second trial on the greater offenses was 

simply a continuation of the jeopardy from his first. See Green, 355 U.S. at 188. “[J]eopardy is 

not regarded as having come to an end so as to bar a second trial in those cases where 

‘unforeseeable circumstances . . . arise during [the first] trial making its completion impossible, 

such as the failure of a jury to agree on a verdict.’” Id. (emphasis added) (quoting Wade v. 

Hunter, 336 U.S. 684, 689 (1949)); see also Griffin, 717 N.E.2d at 79–80. 

We acknowledge that Richardson’s application was recently expanded in Garrett v. State, 

992 N.E.2d 710 (Ind. 2013). We held “that the ‘actual evidence test’ announced in [Richardson] 

is applicable to cases in which there has been an acquittal on one charge and retrial on another 

charge after a hung jury.” Id. at 714. Cleary contends that Garrett supports his position. Again 

we disagree.

In Garrett, a woman was raped at least twice by a man later identified as Garrett. Garrett 

was charged with multiple counts, including two counts of rape. A jury found him not guilty on 

one of the rape counts but deadlocked on the second. He was then retried on the deadlocked rape 

count and found guilty. Garrett later sought post-conviction relief, alleging that he received 

ineffective assistance of counsel because his trial counsel failed to object to the second trial on 

double jeopardy grounds and his appellate counsel failed to raise a double jeopardy argument on 

appeal. Id. at 718. Garrett’s PCR court denied his petition and the Court of Appeals affirmed. 

Id.

We recognized that the majority of double jeopardy claims arise when defendants 

challenge multiple convictions, rather than a second trial after an acquittal. But that 

generalization did not exclude Garrett’s case from consideration as to “whether two offenses are 

the same offense when there is an acquittal on one offense and retrial on another offense.” Id. at 

720. Instead, we found Article 1, § 14 to still apply in that circumstance. Id. at 721. 
15

We therefore extended Richardson’s actual evidence test and held that, in a case like 

Garrett’s where a defendant is charged with two offenses and acquitted of one and deadlocked on 

the other, a double jeopardy violation may occur if “there is a reasonable possibility that the 

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

which the defendant was acquitted may also have been used to establish all of the essential 

elements of the offense for which the defendant was convicted.” Id. at 723. And we then found 

just such a violation; there was sufficient evidentiary overlap on the rape counts between the first 

and second trials that there was a reasonable possibility that evidence used by the jury to acquit 

Garrett on one rape count in the first trial was used by the judge to find him guilty of rape in the 

second trial. Id. 

The conclusion that the actual evidence test applied was consistent with one of the 

rationales for double jeopardy protections: to ensure that “‘the State will not be allowed to make 

repeated attempts to convict an accused for the same offense.’” Id. at 721 (quoting Thompson v. 

State, 259 Ind. 587, 591, 290 N.E.2d 724, 726 (1972)). “Having had one full opportunity to 

convict an accused, the State should not receive a ‘second bite at the apple.’” Garrett, 992 

N.E.2d at 721. “In other words, double jeopardy protection prohibits twice subjecting an 

accused to the risk that he will be convicted of a single crime.” Id. But for several reasons, 

Garrett does not invite or compel application of either of Richardson’s tests to Cleary’s case.

For one thing, Garrett involved two distinct rapes. Garrett could have been convicted and 

sentenced for both—with no double jeopardy implications at all—or potentially convicted and 

sentenced twice for the same rape or acquitted and then retried and convicted for the same 

rape—both outcomes being violative of double jeopardy protections. Here, though, there was 

only one act of drunk driving for which Cleary could be convicted. Garrett thus addressed 

concerns not present in Cleary’s case at all.

Second, the double jeopardy issue in Garrett was not the retrial itself. The violation 

flowed from the evidence used in the retrial because it raised the possibility that Garrett was 

convicted based on the facts underlying the rape for which he had previously been acquitted (and 
16

for which he could not be retried) and not the rape on which the jury deadlocked. In essence, 

there was a chance that the State got an impermissible second bite at the acquitted charge. That 

is not a concern here because Cleary was not acquitted or convicted on Counts I, II, or III at his 

first trial. His jury deadlocked, and the State may continue to pursue prosecutions after a hung 

jury.

Notwithstanding the important double jeopardy protections accorded by both the Indiana 

and U.S. Constitutions, we must also “accord[] recognition to society’s interest in giving the 

prosecution one complete opportunity to convict those who have violated its laws.” Griffin, 717 

N.E.2d at 79 (quoting Arizona v. Washington, 434 U.S. 497, 509 (1978)). This means 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, 336 U.S. at 689. This is just such an instance.

Conclusion

Cleary’s first jury’s deadlock on the most serious of his charges, paired with its finding of 

guilt as to the lesser offenses, did not equate to an implied acquittal of those more serious 

offenses under Indiana Code § 35-41-4-3, nor did it violate the Indiana Constitution’s double 

jeopardy protections to retry Cleary on the greater offenses upon which the jury was deadlocked. 

We therefore affirm his convictions and sentence.

Rush, C.J., Dickson, Rucker, and Massa, J.J., concur.