Otis Freshwater v. State: Clean-up Time for the Indiana Supreme Court

Every so often the Indiana Supreme Court cleans up a mess. There are many such messes and golly-gosh I wish they would do this more often. I think they got around to it in this case, because it involves an habitual offender enhancement and is therefore a more serious case in at least that one sense. One would think that the fact of a mess would be serious enough to take whatever comes along.

My candidate for the No. 1 mess that needs cleaning up is the outrageous practice by both the Supreme Court and the Court of Appeals of reversing convictions and then ordering the entry of lesser included offenses that were not charged and for which neither party requested an instruction.

What the Supreme Court cleaned up in Freshwater v. State, Supreme Court No. 27S02-0606-CR-240 (Ind. September 13, 2006) is a corner of the law of burglary. There is not much disagreement that to commit burglary, one must break in with the intent to commit a specific felony, e.g., theft. But there are a number of cases from the Court of Appeals that say one can infer the intent to commit a felony actually from the manner of breaking in itself or from other, otherwise negligble circumstances.

Justice Sullivan's Freshwater opinion today does those cases in:

There is language in several opinions of the Court of Appeals to the effect that a lesser quantum of evidence than that demanded by Justice and Gebhart will satisfy the intent to commit a felony element in a burglary case. For example, in Gray v. State, the Court of Appeals said that "[t]he intent to commit a felony can be inferred from the time, force, and manner of entry if there is no evidence that the entry was made with some lawful intent." 797 N.E.2d 333, 336 (Ind. Ct. App. 2003). Gentry v. State has similar language. 835 N.E.2d 569, 573 (Ind. Ct. App. 2005). As should be clear from the foregoing discussion, this is not a correct statement of the law. Justice and Gebhart dictate that in order to sustain a burglary charge, the State must prove a specific fact that provides a solid basis to support a reasonable inference that the defendant had the specific intent to commit a felony.

Slip op. at 5. (Footnote omitted). The Supreme Court doesn't often get much harsher with the Court of Appeals than "this is not a correct statement of the law."

So we know that Gray's and Gentry's convictions were affirmed based on misstatements of the law. (Gentry was an habitual offender case as well--Gentry got an extra 20 years for the HO enhancement of his now-suspect burglary conviction.) How many others are there, I wonder. And can Gray, Gentry, and any others use Freshwater as the basis for post-conviction or habeas relief?

In one respect, this case is not very different from Wright v. State, 658 N.E.2d 563 (Ind. 1995) (no link; too old), which cleaned up the truly awful mess that had developed over the years with respect to when instructions on lesser included offenses should be given. As in Wright, the Supreme Court is merely saying what the law has always been, killing the cats, as it were, that have gotten away. So I'd say Gray, Gentry, and any others have a pretty good post-conviction beef.

In another respect, Freshwater is different from Wright: Freshwater does not come close to Wright in the number of cases explicitly overruled or disapproved. Wright still holds the record, I believe: the court overruled 16 of its own cases and disapproved 6 Court of Appeals opinions. Wright also might be the most-cited case since 1995 at 75 Indiana cases. Lesser included offense instructions come up all the time.

I do have a small question: Had it occurred to no one that to say the intent to commit a felony may be inferred from the absence of evidence that a lawful intent accompanied the breaking-in is a facial Sandstrom error--shifting the burden of proof to defendants with respect to an element?

But bully for the Indiana Supreme Court. Chapeau. More, please.

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Since writing the above, I have discovered that the offensive language in Gray and Gentry, "no evidence that the entry was made with some lawful intent" appears in 14 cases going back to Perdue v. State, 398 N.E.2d 1290, 1293 (Ind. Ct. App. 1979). Five are Indiana Supreme Court cases.

So Freshwater is not so far behind Wright, if you count the cases Freshwater impliedly overrules or disapproves. (Of course, I have no clue whether Wright impliedly did in another batch of cases unmentioned in the opinion.)

Perdue from the Court of Appeals, by the way, is not the original offender. Perdue relies on a 1975 Supreme Court case, Lisenko v. State, 355 N.E.2d 841 (Ind. 1976). Lisenko, interestingly, overruled Crawford v. State, 241 N.E.2d 795 (Ind. 1968), which reversed a burglary conviction for just about the same reason as Freshwater. So with Freshwater, the circle has come back around to Crawford.

I was, then, certainly wrong above about the other difference between Wright and Freshwater. It is apparently not the case that Freshwater merely presents a restatement of what the law has always been.

I may also be wrong about the number of cases Freshwater does in. One would have to track down the cases--and their progeny--in the Lisenko tree. That could be a whole lot of cases.

Also, it would seem that the Supreme Court should not have scolded the Court of Appeals. The offensive analysis comes originally from Supreme Court cases. It's not something that the Court of Appeals simply invented, although it is also true that the Supreme Court has not used the analysis in 20 years now.

A final comment about the circle's having come 'round: Justice DeBruler concurred in the result in Crawford, saying: "I believe that it is sufficient to state that as a matter of law, this Court determines that the mere unauthorized entry of a person into a building containing articles which could be easily carried away is insufficient to prove intent to steal those articles." 241 N.E.2d at 798 (DeBruler J., concurring in the judgment.) There were two dissents in Crawford, so Justice DeBruler's vote and statement, in what must have been one of his first cases, controlled the outcome and the holding. He dissented in Lisenko, a 3-2 decision. I don't think that Freshwater says any more or less than what Justice DeBruler's Crawford concurrence said almost 40 years ago.

The more things change . . .