Carter v. State , 1997 Ind. LEXIS 181 ( 1997 )

DICKSON, Justice.

In this direct appeal, the defendant-appellant, Kuera Carter, challenges her convictions for attempted murder, a class A felony,¹ and robbery, a class A felony.²

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. Cor-trecht 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.

1. Prosecutorial Misconduct

The defendant argues that the trial court erroneously denied her motion for mistrial based upon prosecutorial misconduct. In situations involving alleged prosecutorial misconduct, the trial court is usually in the best position to evaluate the circumstances and their impact on the jury. Bradley v. State, 649 N.E.2d 100, 107 (Ind.1995). On appeal, a trial court’s ruling on a mistrial is reviewed for abuse of discretion. Id. A mistrial is an extreme remedy invoked only when no other measure can rectify the 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 ... [ejvidence 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 disagree.

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 eon-cededly 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 mistrial.

2. Hearsay

The defendant contends that the trial court committed reversible error by allowing an Anderson police officer to testify about the victim’s statements to him at the emergency room in the hospital immediately after the attack. Responding to the defendant’s objection, the State argued that this was admissible as an excited utterance. We agree.

Notwithstanding its nature as hearsay, a statement is admissible if “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Ind.Evidence Rule 803(2). In Yamobi v. State, 672 N.E.2d 1344 (Ind.1996), involving almost identical facts as the case at bar, we held that a victim’s statements, made almost an hour after he had been shot, were admissible as excited utterances under Rule 803(2) because the statements were unrehearsed and made while still under the stress of excitement from the startling event. The victim’s emergency room statements were likewise admissible here.

Citing Modesitt v. State, 678 N.E.2d 649, 652 (Ind.1991), the defendant argues that they were inadmissible even as excited utterances because the victim testified that he did not remember making the statements. We disagree for the reasons expressed in State Street Duffy’s, Inc. v. Loyd, 623 N.E.2d 1099 (Ind.Ct.App.1993) (a decision not cited or 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 Modesitt decision ... (does] not affect the established exception for an excited utterance found in Rule 803(2).” Id. at 1103. We find no error on this issue.

3. Double Jeopardy

The defendant claims that her convictions for attempted murder, a class A felony, and robbery, as a class A felony, violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The defendant cites Tawney v. State, 439 N.E.2d 582 (Ind.1982) as dispositive. In Tawney, this Court — applying the federal constitutional double jeopardy test found in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) — stated:

We agree with defendant that under Elmore v. State, (1978) 269 Ind. 532, 382 N.E.2d 893, his sentence upon the battéry charge should be vacated, notwithstanding that it would run concurrently with the sentence upon the robbery charge, inasmuch as the judgment made no provision for consecutive sentences.

“ * * * The so called Blockburger [ ] test was recently reaffirmed and further developed in Brown v. Ohio, (1977) 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194. In holding that under the Blockburger test a lesser included offense is the same as the greater offense, the Brown court stated: ‘This test emphasizes the elements of the two crimes. “If each requires proof that the other does not, the Blockburger test would be satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes * * * ” ’ ” (citation omitted) 269 Ind. 532, 534-35, 382 N.E.2d 893, 895.

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 offenses, as we do in determining the entitlement to an instruction on necessarily included offenses; Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208.

Id. 587-88.

While we acknowledge that Tawney looked to the manner in which the offenses were charged, it is clear fi-om 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 eléments, 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 Article 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. 7.³

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 does not. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. 306 at 309; Grinstead 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-l(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.

4. Speedy Trial

On November 9, 1994, the defendant filed a motion for early trial and, pursuant to 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, 1012 (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. Com 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.

1 . IND.CODE § 35-42-1-1(1) (1993).

2 . IND.CODE § 35-42-5-1 (1993).

3 . In his separate opinion, Justice Sullivan cites Chiesi v. State, 644 N.E.2d 104, 106 (Ind.1994) and asserts that the analysis looking to the manner in which the offenses are charged "is required under art. I, § 14, of our state constitution.” Carter, op. at 840 (Sullivan, J.). He states that "Chiesi was a unanimous decision making no reference, express or implied, to the federal constitution.” Id. at n. 2. To the contrary, this Court merely restated the appellant’s argument that the Indiana Constitution is violated, but specifically used the federal constitutional test — the Blockburger test — to analyze the claim. Chiesi, 644 N.E.2d at 106-07.