ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Monika Prekopa Talbot
Deputy Attorney General
INDIANA SUPREME COURT
ANTHONY WARREN, )
v. ) 49S00-0101-CR-66
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Patricia Gifford, Judge
Cause No. 49G04-9808-CF-128010
On Direct Appeal
June 6, 2002
The defendant, Anthony Warren, appeals from a habitual offender adjudication that followed this
Court's previous opinion affirming his murder conviction but vacating the habitual offender determination
in his original trial and remanding for further proceedings.
Warren v. State,
725 N.E.2d 828, 837 (Ind. 2000). On remand, after a new habitual
offender jury proceeding, the defendant was again found to be a habitual offender.
In this appeal, the defendant contends that this second determination was not
supported by sufficient evidence and that the trial court erred in permitting the
jury to be informed that the underlying felony conviction in the principal case
was for the offense of murder.
The defendant first claims the evidence was insufficient to identify him as the
person who committed the underlying murder conviction that was subject to enhancement by
the habitual offender finding. The defendant admits that the evidence was sufficient
to support a finding that he had committed two prior unrelated felonies, but
he maintains that "there is a whole failure of proof in that there
is no evidence other than a common name" to link him to the
murder conviction or to the date of the offense. Br. of Appellant
That the defendant was the person convicted of murder in the original trial
"was an issue which had been decided in the case, was the law
of the case, and was totally outside the realm of the second assembled
jury." Gilliam v. State, 563 N.E.2d 94, 96 (Ind. 1990). The
State simply had to show the date of the current underlying felony so
the jury could make a proper determination of sequence.
See footnote The State's Exhibits
33 and 34 were the Information and Abstract of Judgment for the defendant's
instant felony conviction for murder. The Information contained the date the crime
was committed. The jury could rely on this document to determine whether
the proper sequence was present for the habitual offender finding.
For his second contention, the defendant asserts that the trial court erred in
denying his objection to the jury being informed of the nature of the
underlying conviction. The defendant requested that any mention that the underlying felony
was murder be removed from the Information and Abstract of Judgment and that
the jury be informed only that the defendant had been convicted of an
underlying felony without naming the felony. The defendant argues that the identity
of the offense was irrelevant and should have been excluded. A jury
is "entitled to know why they were being assembled to determine appellant's status
as a habitual offender."
Gilliam, 563 N.E.2d at 96. This includes
informing a second jury that the defendant had been convicted of the primary
felony. Id. The nature of the primary felony is relevant because
"[i]n a habitual offender proceeding, the jury must not only determine whether the
defendant has been twice previously convicted of unrelated crimes, but it must further
determine whether such two convictions, when considered along with the defendant's guilt of
the charged crime, lead them to find that the defendant is a habitual
criminal." Seay v. State, 698 N.E.2d 732, 736 (Ind. 1998). The
trial court did not err in informing the jury that the defendant's felony
conviction in this case was for murder.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, J.J., concur.
Diane Marger Moore, Magistrate, conducted the habitual offender proceeding.
Footnote: To establish that the defendant is a habitual offender, the State must
prove beyond a reasonable doubt that the defendant has been previously convicted of
two separate and unrelated felonies. Ind.Code § 35-50-2-8. To be "unrelated,"
the commission of the second felony must be subsequent to the sentencing for
the first, and the sentencing for the second felony must have preceded the
commission of the current felony for which the enhanced sentence is being sought.
Toney v. State, 715 N.E.2d 367, 369 (Ind. 1999). Failure to
prove the proper sequencing requires that the habitual offender determination be vacated.
Henderson v. State, 534 N.E.2d 1105, 1109 (Ind. 1989).