Carter v. State

• Decision Date: 31 October 1997
• Docket Number: No. 48S00-9703-CR-167,48S00-9703-CR-167
• Citation: 686 N.E.2d 834
• Court: Indiana Supreme Court
• Parties: Kiera R. CARTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 834

686 N.E.2d 834

Kiera R. CARTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 48S00-9703-CR-167.

Supreme Court of Indiana.

Oct. 31, 1997.

Rehearing Denied Feb. 20, 1998.

William Byer, Jr., Byer & Byer, Anderson, for Defendant-Appellant.

Pamela Carter, Attorney General, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, for Plaintiff-Appellee.

DICKSON, Justice.

In this direct appeal, the defendant-appellant, Kiera 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. 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.

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 ... [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 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 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 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, 578 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 battery charge should be vacated, notwithstanding that it...