Carter v. State

• Decision Date: 25 October 2011
• Docket Number: No. 30A05–1012–CR–804.,30A05–1012–CR–804.
• Parties: Theothus CARTER, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

956 N.E.2d 167

Theothus CARTER, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.

No. 30A05–1012–CR–804.

Court of Appeals of Indiana.

Oct. 25, 2011.

[956 N.E.2d 169]

Holly L. Lyons, Greenfield, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for appellee.OPINION MAY, Judge.

Theothus Carter was convicted after a jury trial of three Class A felonies—attempted murder,¹ attempted robbery,² and burglary ³—and later was found by the court to be an habitual offender. ⁴ Carter argues on appeal the prosecutor improperly referred to his decision not to testify; the jury was not properly instructed; the trial court should not have allowed the State to amend the charging information; and he was subjected to double jeopardy when the State used the same injury to the victim to enhance two different counts.

We affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In May of 2010, Carter and three other people broke into a home in Hancock County in order to take money they believed was there. Carter threatened to kill one resident and he shot the other. The State charged Carter with attempted murder and attempted robbery as Class A felonies and with burglary as a Class B felony. It subsequently amended the burglary charge to a Class A felony ⁵ and charged Carter with being an habitual offender. A jury found him guilty of all three counts and the court found he was an habitual offender.

DISCUSSION AND DECISION 1. Prosecutorial Misconduct

Carter asserts that “sprinkled through [the State's closing argument] were several references to Carter's decision not to testify,” (Br. of Appellant at 4–5), and other inappropriate comments. In reviewing a claim of prosecutorial misconduct, we determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he should not have been subjected. Schmidt v. State, 816 N.E.2d 925, 944 (Ind.Ct.App.2004), trans. denied. The gravity of the peril turns on the probable persuasive effect of the misconduct on the jury's decision, not on the degree of impropriety of the conduct. Id.

Carter's trial counsel did not object to the statements Carter now argues

[956 N.E.2d 170]

amounted to prosecutorial misconduct. A claim of prosecutorial misconduct presented on appeal without a contemporaneous trial objection will not succeed unless the defendant establishes not only prosecutorial misconduct but also the additional grounds for fundamental error. Id. For prosecutorial misconduct to be fundamental error, it must make a fair trial impossible or amount to clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm. Id.

It is misconduct for a prosecutor to request the jury convict a defendant for any reason other than his guilt. Id. A defendant's privilege against compulsory self-incrimination is violated when a prosecutor makes a statement that a jury may reasonably interpret as an invitation to draw an adverse inference from a defendant's silence. Id. The defendant bears the burden of proving that a remark by the prosecutor penalized his exercise of the right to remain silent. Id.

Carter points to several statements by the prosecutor, all in closing argument, that we agree were inappropriate.⁶ Specifically, Carter's prosecutor said:

And then we have [Carter]. His body language, even of itself, tells you this is just one more joke to him. Its [sic] no joke to [the victim] and it never will be. [Carter] was his own witness in this case. He never intended to be but he was a witness by what he said in the jail.(Tr. at 662.) She referred to Carter's tattoos and commented on his lack of remorse: “It's not even sorry—what he's sorry for on the drive back to [the victim's] residence.” ( Id. at 649.) She appealed to the jurors' emotions, asking them to put themselves in the victim's shoes: “What will (inaudible) ⁷ live without? What do you think she thinks about every night when it gets dark outside? ... What will some of you think when you go home tonight?” ( Id. at 666.) Finally, Carter's prosecutor made an inappropriate reference to Carter's silence when she argued the evidence before the jury was not in dispute: “What is evidence in this case is what you saw and heard from that witness box.... [T]he evidence is overwhelming and it is not in dispute. What is not in dispute? That Mr. Carter, there is no evidence from that stand. None.” ( Id. at 657.) ⁸

[956 N.E.2d 171]

While we agree the prosecutor's statements were inappropriate and amounted to misconduct, we cannot find fundamental error. The mere fact that an alleged error implicates constitutional issues does not establish it was fundamental. Schmidt, 816 N.E.2d at 945. Our Indiana Supreme Court has emphasized the “extremely narrow” application of the fundamental error doctrine:

To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. To be fundamental error, the error must constitute a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.

Benson v. State, 762 N.E.2d 748, 755 (Ind.2002) (citations and quotations omitted); see also Ford v. State, 704 N.E.2d 457, 461 (Ind.1998) (stating court views fundamental error exception as extremely narrow, available only when record reveals clearly blatant violations of basic and elementary principles and harm or potential harm cannot be denied), reh'g denied.

The jury heard evidence Carter learned that there were two safes in the victims' home that contained a lot of money. He told his companions they could go to the home and steal the safes. They went to the home around 11:00 p.m., and a surveillance camera recorded Carter's arrival. Police recovered a gun from Carter's house and ballistics tests indicated the bullets found at the crime scene were fired from Carter's gun. When there is overwhelming independent evidence of a defendant's guilt, error by a prosecutor during closing argument may be harmless. Hand v. State, 863 N.E.2d 386, 394–95 (Ind.Ct.App.2007). As the State presented overwhelming independent evidence of Carter's guilt, we cannot find the prosecutor's improper statements were fundamental error.

Having found misconduct, we acknowledge, and reject, the State's argument that as long as a jury is instructed that statements by attorneys are not evidence, “[t]he Court on review will not find prosecutorial misconduct.” (Br. of Appellee at 9.) In support of this argument, the State cites Collins v. State, 643 N.E.2d 375, 381–82 (Ind.Ct.App.1994), trans. denied. There we noted in addressing a claim of prosecutorial misconduct: “Reversal is required where the evidence is close and the trial court fails to alleviate the...