MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),                                  Mar 13 2017, 9:59 am

this Memorandum Decision shall not be                                        CLERK
                                                                         Indiana Supreme Court
regarded as precedent or cited before any                                   Court of Appeals
                                                                              and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Curtis T. Hill, Jr.
Marion Public Defender Agency                            Attorney General of Indiana
Appellate Division
                                                         Ellen H. Meilaender
Indianapolis, Indiana                                    Deputy Attorney General
Lisa M. Johnson                                          Indianapolis, Indiana
Brownsburg, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Darrell Lewis, Jr.,                                      March 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-2154
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Lisa F. Borges, Judge
                                                         Trial Court Cause No.
                                                         49G04-1510-F3-36879



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017            Page 1 of 5
[1]   Darrell Lewis, Jr. (“Lewis”) was convicted after a jury trial of robbery1 as a

      Level 5 felony and was sentenced to five years with one year suspended. Lewis

      appeals his conviction, raising the following restated issue for our review:

      whether the rule allowing retrial after a deadlocked jury is unconstitutional

      under the Indiana Constitution.


[2]   We affirm.


                                       Facts and Procedural History
[3]   On October 8, 2015, Jorge Gutierrez (“Gutierrez”) stopped at a gas station on

      his way home from work to purchase cigarettes. As he was exiting the gas

      station, two men, later identified as Lewis and Billy Guyton (“Guyton”),

      stopped him, and one of the men pointed a gun at Gutierrez, ordered him not

      to move, and demanded his money. The men took Gutierrez’s money, cell

      phone, and cigarettes and threatened to shoot him if they saw him again. Tr.

      Vol. 2 at 71.


[4]   Gutierrez called 911, and while he was on the phone with dispatch, he again

      saw the men who robbed him and told the dispatcher that the men were

      entering a nearby apartment complex. Officers who responded to the scene

      found Guyton in the apartment complex; he initially fled from the police on

      foot, but was quickly apprehended, and Gutierrez identified Guyton as one of




      1
          See Ind. Code § 35-42-5-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017   Page 2 of 5
      the men who robbed him. When Guyton was searched, the police found

      Gutierrez’s cell phone and cigarettes in his possession. Gutierrez informed the

      police that several phone calls had been made on his phone to a number he did

      not recognize. Further investigation yielded information that the unknown

      phone number belonged to Lewis and that Guyton had made several calls to

      Lewis while Guyton was in possession of Gutierrez’s cell phone. When shown

      a photo array by the police, Gutierrez identified Lewis as the second man who

      robbed him; Gutierrez also later identified Lewis in court as one of the men

      who robbed him.


[5]   The State charged Lewis with Level 3 felony robbery, Level 4 felony unlawful

      possession of a firearm by a serious violent felon, Level 5 felony intimidation,

      and Level 5 felony carrying a handgun without a license. A bifurcated trial was

      held, and at the first stage, the jury found Lewis not guilty of Level 5 felony

      carrying a handgun without a license, but deadlocked and could not reach a

      verdict on the Level 3 felony robbery and Level 5 felony intimidation charges. 2


[6]   Lewis filed a motion to dismiss the robbery and intimidations charges,

      contending that it would violate double jeopardy to convict him of those

      charges, which had been elevated due to his possession of a deadly weapon

      during the commission of the crimes, when he had been acquitted of carrying a




      2
       At the same trial, Guyton was convicted of Level 5 felony robbery and Level 6 felony intimidation. Guyton
      had not been charged with the handgun offenses, nor had his charges been enhanced due to the use of a
      deadly weapon in the commission of the crimes because Gutierrez had identified Lewis as the person who
      had been armed with the gun during the robbery.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017          Page 3 of 5
      handgun without a license. Appellant’s App. Vol. II at 129-301. The trial court

      denied the motion. The State filed an amended charging information that

      charged Lewis with Level 5 felony robbery and Level 6 felony intimidation. A

      second jury trial was held, at the conclusion of which, the jury found Lewis

      guilty as charged. The trial court entered judgment only for the Level 5 felony

      robbery conviction and sentenced Lewis to five years with one year suspended

      to probation. Lewis now appeals.


                                     Discussion and Decision
[7]   Lewis argues that his retrial after the jury deadlocked at his first trial was a

      violation of the double jeopardy clause and the fundamental fairness

      requirement of the Indiana Constitution. Lewis concedes that current

      precedent does not support his position, but instead requests this court to re-

      examine the current rule that allows retrial after a jury deadlocks and to

      recommend that the Indiana Supreme Court adopt a rule prohibiting a retrial

      after a deadlocked jury because the current rule violates the Indiana

      Constitution. We decline Lewis’s invitation.


[8]   Indiana courts have repeatedly and consistently held that it is not a double

      jeopardy violation when a defendant is retried after his first trial ends in a

      deadlocked jury. See Cleary v. State, 23 N.E.3d 664, 672-73 (Ind. 2015), Young v.

      State, 482 N.E.2d 246, 249 (Ind. 1985), State v. Walker, 26 Ind. 346, 352 (1866),

      Kocielko v. State, 938 N.E.2d 243, 251 (Ind. Ct. App. 2010), trans. denied, Hoover

      v. State, 918 N.E.2d 724, 733 (Ind. Ct. App. 2009), trans. denied. “It is well


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017   Page 4 of 5
       settled that a hung jury operates to discharge the operation of double jeopardy

       and a new trial is not barred in such a situation.” Young, 482 N.E.2d at 249.

       “‘[T]he protection of the Double Jeopardy Clause by its terms applies only if

       there has been some event, such as an acquittal, which terminates the original

       jeopardy.’” Hoover, 918 N.E.2d at 734 (quoting Richardson v. United States, 468

       U.S. 317, 325 (1984)).


[9]    Lewis requests that we re-examine the current rule that allows retrial after a jury

       deadlocks. We are bound by the decisions of our Supreme Court. Robey v.

       State, 7 N.E.3d 371, 384 (Ind. Ct. App. 2014) (citing Dragon v. State, 774 N.E.2d

       103, 107 (Ind. Ct. App. 2002), trans. granted, trans. vacated), trans. denied.

       “Supreme court precedent is binding upon us until it is changed either by that

       court or by legislative enactment.” Id. “While Indiana Appellate Rule 65(A)

       authorizes this court to criticize existing law, it is not this court’s role to

       ‘reconsider’ Supreme Court decisions.” Id. We also decline Lewis’s request to

       recommend that the Indiana Supreme Court adopt a rule prohibiting a retrial

       after a deadlocked jury and find that the trial court did not err in allowing a

       retrial on two of his charges after Lewis’s first trial ended in a deadlocked jury

       on those counts.


[10]   Affirmed.


[11]   Robb, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2154 | March 13, 2017   Page 5 of 5
