ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
William Byer, Jr. Pamela Carter
BYER & BYER Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
KIERA R. CARTER, ) Defendant-Appellant, ) ) v. ) 48S00-9703-CR-167 ) STATE OF INDIANA, ) Plaintiff-Appellee. ) ________________________________________________
APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr. Cause No. 48D03-9403-CF-068 _________________________________________________
In this direct appeal, the defendant-appellant, Kiera Carter, challenges her
convictions for attempted murder, a class A felony,See footnote
and robbery, a class A felony.See footnote
On March 14, 1994, Dana Cortrecht was taking stock in the back of a United Gas Station, where he was an assistant manager. The defendant entered the station with a gun, pointed it in Cortrecht's face, and demanded that he give her all the money.
Cortrecht complied and gave her fifty dollars in cash. As he was handing her his coin
changer, she shot him, at point blank range, just under the left eye. While he was falling
backwards, she shot him two more times--in the right side of his face and in the mouth--
and left the station.
The jury convicted the defendant of attempted murder, a class A felony, and robbery, a class A felony. Additionally, the jury found her to be a habitual offender. The trial court sentenced her to forty-five years for attempted murder, forty-five years for robbery (to run concurrently), and enhanced the sentence by thirty years due to her habitual offender status. The defendant contends that the trial court committed reversible error by: (1) failing to grant a mistrial in response to the prosecutor's misconduct; (2) admitting hearsay testimony; (3) failing to dismiss the robbery count on double jeopardy grounds; and (4) failing to discharge the defendant under the speedy trial rule. We affirm.
situation. Id. Because the motion for mistrial was based upon the prosecutor's allegedly
improper questioning regarding the prior bad acts of the defendant, we must evaluate: (1)
whether the prosecutor engaged in misconduct; and (2) whether that misconduct, under
the circumstances, placed the defendant in a position of "grave peril" to which she should
not have been subjected. Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996).
Prior to trial, the trial court granted the defendant's motion in limine to prohibit the State from any mention, reference, or interrogation "concerning and/or any attempt to convey to the jury in any manner, either directly or indirectly . . . [e]vidence of any offenses for which said Defendant has been convicted . . . unless and until the Court has determined the admissibility thereof outside the presence of the jury." Record at 155. At the beginning of the State's cross-examination of the defendant, the prosecutor, aware of the defendant's prior conviction for armed robbery and without seeking a decision as to admissibility, asked the defendant whether she had "some practice at sticking guns in peoples' faces and demanding money." Record at 1079. The defendant immediately objected and did not answer the question. The State concedes that the prosecutor's question was improper, but argues that the misconduct was harmless error.
In determining whether this misconduct placed the defendant in a position of "grave peril" to which she should not have been subjected, we evaluate the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the conduct. Kent, 675 N.E.2d at 335. Here, the trial court admonished the jury, instructing them that they "shall disregard the last question that was asked by
[the State] before the recess and that question shall not in any way be determinative of
any decision that you make in this case." Record at 1100. A prompt admonishment to
the jury to disregard the improper testimony is usually enough to avoid a mistrial. Kent,
675 N.E.2d at 335. However, citing Hardin v. State, 611 N.E.2d 123 (Ind. 1993), White
v. State, 257 Ind. 64, 272 N.E.2d 312 (1971), and Bonner v. State, 650 N.E.2d 1139 (Ind.
1995), the defendant contends that the nature and scope of the prosecutor's improper
question had a substantial likelihood of contributing to the robbery conviction. We
The limited nature of the question, the absence of any type of answer, and the admonition by the court combined with the substantial evidence properly admitted against the defendant demonstrate that she was not placed in a position of grave peril. Although the cross-examination question was concededly improper, the defense had already introduced the prior conviction into evidence during direct examination of the defendant, the State asked the improper question just one time, the defendant did not respond to it, the trial court admonished the jury to disregard it, and the State never again referred to the prior conviction.
Any adverse effect was substantially outweighed by other incriminating evidence. At the hospital the day after the shooting, the victim described his assailant as a black female, about five foot, seven inches tall, in her thirties, wearing a one-piece, tan "Carhart" coverall. Testimony was introduced showing that, not only did the defendant frequently dress in Carhart coveralls, but that she was seen dressed in a tan Carhart
coverall thirty minutes after the robbery. When she was arrested the night of the
shooting, she was still wearing a one-piece, tan coverall. Furthermore, the victim
testified that he recognized his assailant because she had been in the store before and
because he knew her father, a fact confirmed by the defendant during her testimony. The
day after the shooting, the victim was shown a photo lineup at the hospital containing six
people who looked similar to the defendant. Record at 835. With no hesitation, he
immediately identified the defendant as his assailant. He also identified the defendant in
court and stated that he was sure it was her because, "You don't forget things like that
when somebody shoots you in the face three times. It's one of those things you can't
forget." Record at 804. The defendant was not placed in a position of grave peril.
In addition, citing Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843 (1976), the defendant claims that the question warranted a mistrial because it was "a deliberate attempt on the part of the prosecutor." Brief of Appellant at 11. In Maldonado we held that "[e]ven if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may result." Id. at 499, 355 N.E.2d at 848. In the case at bar, there was no repeated misconduct. Furthermore, this was not a deliberate attempt to improperly prejudice the defendant because the State believed the prior robbery incident evidence was admissible under Indiana Evidence Rule 404(b) as evidence of a signature crime. We decline to find that the State deliberately attempted to improperly prejudice the jury. See Kent, 675 N.E.2d at 337.
The trial court did not abuse its discretion by denying the defendant's request for a
discussed by either party on appeal) which thoroughly addressed this issue and decided it
adversely to the defendant. The Court of Appeals correctly held, "The Modisett decision
. . . [does] not affect the established exception for an excited utterance found in Rule
" Id. at 1103. We find no error on this issue.
offenses, as we do in determining the entitlement to an instruction on
necessarily included offenses; Lawrence v. State, (1978) 268 Ind. 330, 375
While we acknowledge that Tawney looked to the manner in which the offenses were charged, it is clear from the text that the Tawney court attributed this analysis to the test found in Blockburger. Recently we held that this was not an accurate statement of the law under Blockburger. See Games v. State, 684 N.E.2d 466, 474 (Ind. 1997) and Grinstead v. State, 684 N.E.2d 482, 486 (Ind. 1997) (finding that this Court's previous interpretation of the federal Double Jeopardy Clause--which looked beyond the statutory elements, adding the requirement that a reviewing court look to the offenses as charged or to the jury instructions outlining the elements of the crimes--did not comport with federal jurisprudence) . Further, as seen above, Tawney did not attribute this additional requirement to an independent state double jeopardy protection found in Arti cle 1, Section 14 of the Indiana Constitution and, as we recently noted in Games, "we find [no authority] from this Court, establishing an independent state double jeopardy protection based upon an analysis of the Indiana Constitution." Games, 684 N.E.2d at 473 n.7.See footnote 3
Therefore, we do not look to the manner in which the offense is charged. Rather
we determine whether each statute requires proof of an additional fact which the other
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306 at 309;
v. State, 684 N.E.2d at 486.
In the case at bar, the defendant was convicted of attempted
murder, a class A felony, and robbery as class A felony. The statutes provide:
Attempt (Ind.Code § 35-41-5-1(a) (1993))
(a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.
Murder (Ind. Code § 35-42-1-1(1) (1993))
A person who . . . knowingly or intentionally kills another human being;
Robbery (Ind. Code § 35-42-5-1 (1993))
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is . . . a Class A felony if it results in serious bodily injury to any person other than a defendant.
It is clear that each statute requires proof of an additional fact which the other does not.
Attempted murder requires a substantial step towards a killing; class A robbery requires
that property be taken. We find no double jeopardy violation.
Indiana Criminal Rule 4(B)(1), was entitled to be tried before January 18, 1995. The trial court initially set the matter for trial on January 10, 1995. On December 28, 1994, the court reset the trial for January 5, 1995. On January 3, 1995, the court appointed a special prosecutor because of the disqualification of the newly-elected prosecutor in this case. On January 5, 1995, due to court congestion, the court reset the trial to January 18, 1995. A special prosecutor was appointed and consented to the appointment on January 6, 1995. On January 11, 1995, the State requested a continuance, stating that the special prosecutor had not yet received the file and that he had a bench trial on January 17, 1995 and had depositions all day on January 18, 1995. The defendant objected to any continuance beyond January 18, 1995. On January 13, 1995, the trial court held that the newly-created conflict of interest requiring the appointment of a special prosecutor presented an "emergency" sufficient to justify a continuance under Rule 4(B)(1), permissibly extending the date by which the defendant must be tried. However, four days later, the trial court reconsidered the special prosecutor's motion for continuance and denied the motion, ordering that the trial be held on the following day, January 18, 1995, reinstating the previous trial date. On January 18, 1995, the defendant filed a motion for continuance wherein she argued that she had relied upon the continuance issued five days earlier and would not be ready for trial. The trial court granted the defendant's motion, but found that it "is charged to the defendant, not the State of Indiana, and that the defendant's motion for continuance constitutes a waiver of her speedy trial motion." Record at 96.
The defendant claims that the trial court improperly charged the defendant with the
continuance, arguing that the State "forced [the defendant's] motion for continuance . . .
as a result of its earlier filing of a motion for continuance based on an emergency basis."
Brief of Appellant at 19. The defendant contends she should have been discharged for
violating her right to a speedy trial. We disagree. The delay resulting from her motion
for continuance was properly charged to her, and the trial court did not err in refusing to
discharge the defendant under Criminal Rule 4(B)(1).
We also note sua sponte that the trial court failed to specifically assign the habitual offender enhancement to one of the defendant's two convictions: Attempted murder, a class A felony, or robbery, a class A felony. Chappel v. State, 591 N.E.2d 1011, 1102 (Ind. 1992). In the event of simultaneous multiple felony convictions and a finding of habitual offender status, trial courts must impose the resulting penalty enhancement upon only one of the convictions and must specify the conviction to be so enhanced. Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997). However, because we affirm both convictions in the case at bar and because the trial court ordered both forty-five year sentences to run concurrently, we decline to remand this cause to the trial court for resentencing to apply the thirty-year enhancement to only one of the two class A felony convictions. Corn v. State, 659 N.E.2d 554, 558 (Ind. 1995); Holbrook v. State, 556 N.E.2d 925, 926 (Ind. 1990).
The trial court is affirmed.
SHEPARD, C.J., and SELBY and BOEHM, JJ. concur. SULLIVAN, J. concurs in result with separate opinion.
William Byer, Jr.
Attorneys for Appellee
Cynthia L. Ploughe
Byer & Byer
Attorney General of Indiana
Deputy Attorney General
William Byer, Jr.
Attorneys for Appellee
Cynthia L. Ploughe
KIERA R. CARTER,
STATE OF INDIANA,
) Supreme Court No.
SULLIVAN, Justice, concurring in result.
I concur in the result of the majority opinion. However, I do not read our court's opinion in Tawney v. State, 439 N.E.2d 582 (Ind. 1982), to "erroneously attribute . . . to Blockburger v. United States" double jeopardy analysis that looks to the manner in which offenses are charged in addition to the statutory definitions of the offenses. While our court's opinion in Tawney mentioned the Blockburger "same elements" test, it went on to
hold that, following an Indiana precedent, the court would look further:
In applying the test, however, we must look to the manner in which the
offenses are charged and not merely to the statutory definitions of the of
fenses, as we do in determining the entitlement to an instruction on necessar
ily included offenses; Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d
Tawney, 439 N.E.2d at 588. Lawrence was not a double jeopardy case; it involved a defendant's entitlement to an instruction on a lesser included offense. This Court unanimously found the principle enunciated in Lawrence sufficiently analogous to be applicable in the double jeopardy context.
Tawney does not stand as an "erroneous" statement of federal double jeopardy jurisprudence but as a statement of the separate and distinct way in which Indiana courts analyze such claims. See Moore v. State, 652 N.E.2d 53, 60 n.7 (Ind. 1995) (manner in which the offenses are charged is "[t]he second prong of our double jeopardy analysis") (emphasis added); Kemp v. State, 647 N.E.2d 1143, 1146 (Ind. Ct. App. 1995) (Sullivan, J., concurring) ("Indiana double jeopardy analysis is therefore not identical to the federal analysis."), trans. denied.See footnote 1 This statement reflects application of the principle of statutory
construction that we will not attach cumulative penalties to the same offense, absent a clear
indication to the contrary from the legislature. See Grinstead v. State, 684 N.E.2d 482, 485
(Ind. 1997). We have also held that this analysis is required under art. I, § 14, of our state
constitution. Chiesi v. State, 644 N.E.2d 104, 106 (Ind. 1994).See footnote
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