ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
David P. Freund
Deputy Public Defender
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL CARRICO, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 71S00-0101-CR-17
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71G02-0005-CF-28
ON DIRECT APPEAL
September 20, 2002
Michael Carrico was convicted of murder and robbery as a B felony.
The trial court sentenced him to sixty-five years in prison. In this
direct appeal, Carrico contends that the trial court erred by: (1) sentencing Carrico
to both murder and robbery in violation of the double jeopardy clause of
the Indiana Constitution; (2) admitting autopsy photographs; and (3) finding that the aggravating
circumstances outweighed the mitigating circumstances and imposing consecutive sentences. We affirm.
Factual and Procedural Background
On May 6, 2000, Michael Carrico, Ben Robinson, and Roderick Harmon were on
their way to Mishawaka to buy marijuana. Carrico was driving, Robinson was
in the passenger seat, and Harmon was in the back on the passenger
side. Although Carrico gave conflicting testimony as to what happened next, Robinsons
testimony offered the following account. As the three drove to Mishawaka, Carrico
shot Harmon. Carrico then drove to a pond by Lake Shore Estates
and dragged Harmon out of the backseat of the car by himself.
Carrico began hitting Harmon in the facefirst with a car speaker, then with
a rock. Carrico then pulled a tooth from Harmons mouth and removed
Harmons clothes. After Robinson helped Carrico put Harmons body in the water,
Carrico took Harmons clothes, cell phone, gold necklace, wallet, and money, and buried
them in a wooded area.
A jury found Carrico guilty of murder, felony murder, and robbery. The
trial court merged the felony murder and the murder conviction, reduced the robbery
to a B felony, and imposed consecutive sentences of fifty-five years for the
murder and ten years for the robbery.
I. Indiana Double Jeopardy
Citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999), Carrico argues that the
murder and robbery convictions are the same offense under the actual evidence test.
The elements of the charged murder were (1) knowingly or intentionally (2)
killing (3) another human being. The elements of the B robbery were
(1) knowingly or intentionally (2) taking property (3) from another person or from
the presence of another person (4) by using or threatening the use of
force on any person (5) while armed with a deadly weapon or resulting
in bodily injury to any person other than the defendant. Ind. Code
§ 35-42-5-1 (1998). The jury was instructed that to find Carrico guilty
of murder, the State must have proved that Carrico: (1) knowingly (2) acting
alone or with an accomplice (3) killed Roderick Harmon. The jury was
also instructed that in order to find Carrico guilty of robbery, it must
find that the State had established each of the following elements:
1. The defendant, Michael Carrico
3. acting alone, or with an accomplice
4. while armed with a deadly weapon
5. took property from Roderick Harmon
6. by using force upon Roderick Harmon
7. by shooting Roderick Harmon
8. which caused serious bodily injury to Roderick Harmon.
The charging information, which was read to the jury as part of the
instructions, charged Carrico with murder by Shooting [Harmon] with a handgun, causing him
to die. It also charged Carrico with robbery by knowingly taking United
States currency, from the presence of another person by force or threat of
force, to-wit: by shooting Roderick Harmon with a handgun, which resulted in serious
bodily injury to another person, to-wit: extreme pain to Roderick Harmon.
II. Autopsy Photographs
Carrico argues that the act necessary to prove murder, shooting Harmon with a
handgun, was the same as the force proved as an element of the
robbery. He contends his case is similar to
Richardson, where convictions for
robbery and battery were at issue and this Court vacated the battery conviction
because the force used during the robbery (the beating of the victim) also
constituted the battery. Richardson does not bar multiple convictions when the facts
establishing one crime also establish only one or even several, but not all,
of the elements of a second offense. Spivey v. State, 761 N.E.2d
831, 833 (Ind. 2002). That is the case here. Carricos knowing
killing of Harmonby shooting the handgunestablished one element of robbery (force) but not
all. Accordingly, conviction for both is consistent with Richardson.
There also is no violation under the rules of statutory construction and common
law that coexist with the constitutional test set forth in
Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). The trial court
reduced the robbery from an A felony to a B felony by reason
of the rule that the harm in this murder was the same bodily
injury inflicted in the robbery. Enhancement of one offense for the very
same harm as another is not permissible. Guyton v. State, 771 N.E.2d
1141, 1143 (Ind. 2002) (citing Richardson, 717 N.E.2d at 56 (Sullivan, J., concurring)).
But nothing prohibits conviction and sentencing for two crimes with a common
element. Accordingly, there was no double jeopardy violation.
Carrico contends the probative value of some autopsy photographs was substantially outweighed by
their prejudicial effect. Autopsy photographs are admissible if (1) they provide relevant
evidence, and (2) their probative value is not substantially outweighed by their tendency
to impassion the jury against the defendant.
Coy v. State, 720 N.E.2d
370, 375 (Ind. 1999) (quoting Malone v. State, 700 N.E.2d 780, 783 (Ind.
1998)). Four of the autopsy photographs admitted at trial depicted a metal
rod that the forensic pathologist inserted through entrance and exit wounds on Harmons
body to demonstrate the paths the bullets went through the body. Carrico
points out that, at trial, he did not contest the fact that Harmon
had been shot numerous times with a nine-millimeter semi-automatic handgun or that Harmon
died from those gunshot wounds. He also notes that the forensic pathologist
testified that he had no way of knowing with any certainty exactly how
either Harmon or the shooter was positioned at the time the shots were
A second autopsy photograph showed a metal screw that was embedded in Harmons
face. The forensic pathologist testified that the screw had nothing to do
with Harmons death, and that it appeared to be a freak occurrence rather
than someone having intentionally placed the screw there. Carrico argues that revulsion
at seeing these gruesome and inflammatory photographs depicting Harmons injuries blown-up on a
large screen television could have swayed the jury to ignore the huge credibility
gaps in the States case.
We agree that these photos appear to have minimal probative value. However,
we think their admission was harmless error. Three witnesses testified that Carrico
admitted killing the victim and gave details about the crime. Carrico also
showed witnesses the murder weapon and the bloody money he had taken from
Harmon. Robinson testified that he watched Carrico kill and beat the victim
before helping Carrico put Harmon in the pond. Carricos own videotaped statement
to the police revealed his involvement in the murder. In light of
this evidence, any error in the admission of the photographs is harmless.
III. Consecutive Sentences
Carrico argues that the trial court erred in imposing consecutive sentences by finding
that Harmon was in a position of trust with Carrico as an aggravating
factor. He also contends that the trial court erred by failing to
give appropriate weight, as a mitigating factor, to Carricos lack of criminal record.
Carrico acknowledges that courts have found a position of trust as an aggravating
circumstance in some situations, but he notes that most involved an adult or
a person in a position of authority and a child or teenage victimnot
Carrico argues that he was merely an acquaintance of Harmons and
had met Harmon only three to four times prior to the murder.
Because we do not agree that the trial court found a separate aggravating
factor in the relationship of the parties, we need not resolve that issue.
After setting forth Carricos relative youth, remorse, and strong family support as mitigating
factors, the court stated, And then against all of that, I have to
say probably the most striking factor about this case is the nature and
circumstances of how it was committed. The court noted the brutality of
the crime and stated its appreciation of Harmons family and the way they
conducted themselves during the trial. The court then stated, I also find,
particularly with respect to Mr. Robinson,
but also secondarily with respect to Mr.
Carrico; [sic] is that Mr. Harmon was really both a friend and acquaintance
of both of you, and you did violate that trust by doing what
you did, for apparently no reason. The court then stated the possible
motive. From this, it is not entirely clear to us that the
trial court was relying on a position of trust as a separate aggravator.
Given the placement of this discussioncoming after the recitation of the crimes
brutality and before the discussion of the crimes apparent motiveit seems to us
that the trial court merely viewed this as another factor going to the
disturbing nature and circumstance of the crime, and not as a separate aggravator.
Carrico also contends the trial court erred in refusing to accord significant mitigating
value to his lack of prior criminal history. Although Carrico had no
prior felony convictions, he did have a prior domestic violence battery conviction and
a resisting law enforcement conviction, both of which were Class A misdemeanors.
Carrico was, therefore, not wholly without a criminal history. The trial court
did not err in according little weight to this record.
v. State, 697 N.E.2d 1255, 1258 (Ind. 1998) (trial court considered defendants lack
of prior criminal history, but properly declined to accord it significant weight).
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
See Walter v. State, 727 N.E.2d 443, 448 (Ind. 2000) (where the
victims were the defendants wife and aunt); Franklin v. State, 715 N.E.2d 1237,
1242 (Ind. 1999) (where defendant was victims father); Wesby v. State, 535 N.E.2d
133, 137-38 (Ind. 1989) (where victim was defendants former girlfriend); Van Martin v.
State, 535 N.E.2d 493, 498 (Ind. 1989) (where defendant lived with the victims
family and was babysitting for the victim); Marshall v. State, 643 N.E.2d 957,
963 (Ind. Ct. App. 1994) (where defendant was a police officer who was
Carrico and Robinson were tried separately, but sentenced at the same sentencing
hearing. See Robinson v. State, __ N.E.2d __ (Ind. 2002).