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ATTORNEY FOR APPELLANT
Matthew Jon McGovern Evansville, Indiana

ATTORNEYS FOR APPELLEE
Gregory F. Zoeller Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

______________________________________________________________________________

In the

FILED
of the supreme court, court of appeals and tax court

Indiana Supreme Court
_________________________________ No. 82S01-0907-CR-307 SHEWANDA BEATTIE, v. STATE OF INDIANA,

Apr 08 2010, 2:34 pm

CLERK

Appellant (Defendant below),

Appellee (Plaintiff below). _________________________________

Appeal from the Vanderburgh Circuit Court, No. 82C01-0705-FB-490 The Honorable David D. Kiely, Judge _________________________________ On Transfer from the Indiana Court of Appeals, No. 82A01-0805-CR-247 _________________________________ April 8, 2010 Dickson, Justice.

When a jury returns logically inconsistent verdicts in the same case, must Indiana courts accept the inconsistency as insulated from judicial review, or are such verdicts subject to review and, if so, on what basis? To address variations in Indiana case law on this issue, we granted transfer. Adhering to the historically prevailing rule of Indiana jurisprudence and of the United States Supreme Court, holding that inconsistent verdicts are permissible and not subject to appellate review, we affirm the judgment of the trial court.

During the defendant's jury trial on charges of Dealing in Cocaine, Possession of Cocaine Within 1,000 Feet of a Family Housing Complex, and Possession of Marijuana, the jury was also instructed on and provided a verdict form for Possession of Cocaine as a lesser-included offense of Dealing in Cocaine. The jury returned verdicts finding the defendant not guilty of both Dealing in Cocaine and Possession of Cocaine, but guilty of Possession of Cocaine Within 1,000 Feet of a Family Housing Complex and Possession of Marijuana. The defendant appealed, presenting two claims: (1) irreconcilable verdicts and (2) erroneous admission of evidence resulting from an unconstitutional search and seizure. Rejecting the defendant's assertion of an improper search and a resulting error in admission of evidence, the Court of Appeals nevertheless reversed because "the inconsistency in the jury's verdicts leaves us unable to determine what evidence the jury believed." Beattie v. State, 903 N.E.2d 1050, 1057 (Ind. Ct. App. 2009). We granted transfer to address the appellate review of claims of inconsistent verdicts. As to the claim of evidentiary error, we summarily affirm the Court of Appeals pursuant to Indiana Appellate Rule 58(A)(2).

The defendant seeks appellate acquittal or new trial on her conviction of Possession of Cocaine Within 1,000 Feet of a Family Housing Complex, arguing that such conviction is fatally inconsistent with her acquittal on the charge of possession of the same cocaine. In support of her argument, she asserts that Indiana appellate courts review verdicts for consistency and will take corrective action when verdicts are extremely contradictory, which she alleges applies in this case.

The State principally responds that the past approach in several Indiana appellate cases reviewing claims of inconsistent verdicts has been eroded by new developments in United States Supreme Court jurisprudence holding that irreconcilable verdicts do not require appellate relief. The State argues that "merely because the jury chose not to enter two guilty verdicts for the same conduct of possessing cocaine does not require that the count on which the jury did enter a finding of guilt be reversed." Appellee's Br. at 10.

Federal jurisprudence on this issue derives primarily from two cases, Dunn v. United States, 284 U.S. 390, 52 S. Ct. 189, 76 L. Ed. 356 (1932), and United States v. Powell, 469 U.S.

2

57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984), which addressed conflicting post-Dunn cases. In Dunn, the jury acquitted the defendant upon charges of unlawful possession of intoxicating liquor and unlawful sale of intoxicating liquor but convicted him of maintaining a common nuisance by keeping intoxicating liquor for sale at a specified place. In the last opinion authored by Justice Oliver Wendell Holmes and delivered on the day of his retirement, the Supreme Court affirmed, stating: "That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters." Dunn, 284 U.S. at 394, 52 S. Ct. at 191, 76 L. Ed. at 359. After the Dunn decision, some courts concluded that the holding prohibited the review of verdicts for consistency.1 Other courts determined that Dunn created the "permissible inconsistent verdict rule" to which certain limited exceptions could be made.2

Almost fifty-three years later, the Court in Powell described Dunn as holding that "a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count." Powell, 469 U.S. at 58, 105 S. Ct. at 473, 83 L. Ed. 2d at 464. Acknowledging that inconsistent verdicts "present a situation where 'error,' in the sense that the jury has not followed the court's instructions, most certainly has occurred," the Court in Powell rejected as "hardly satisfactory" a policy of granting the defendant a new trial on the conviction in such situations. Id. at 65, 105 S. Ct. at 477, 83 L. Ed. 2d at 468

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