Carter v. State

• Decision Date: 27 May 1999
• Docket Number: No. 48S00-9805-CR-303,48S00-9805-CR-303
• Citation: 711 N.E.2d 835
• Parties: (Ind. 1999) KEVIN CARTER, APPELLANT (DEFENDANT BELOW, ) v. STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW. )
• Court: Indiana Supreme Court

711 N.E.2d 835 (Ind. 1999)

KEVIN CARTER, APPELLANT (DEFENDANT BELOW, ) v. STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW. )

Supreme Court Cause No. 48S00-9805-CR-303

May 27, 1999

Indiana Supreme Court

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Fredrick Spencer, Judge Cause No. 48C01-9412-CF-229

Attorney For Appellant Robert W. Rock Anderson, Indiana

Attorneys For Appellee Jeffrey A. Modisett Attorney General of Indiana Priscilla J. Fossum Deputy Attorney General Indianapolis, Indiana

ON DIRECT APPEAL

The opinion of the court was delivered by: Boehm, Justice.

Kevin L. Carter was convicted of the murder of a seven year old girl and sentenced to sixty years imprisonment. Carter was fourteen years old at the time of the crime. On direct appeal, we affirmed the murder conviction but remanded for a new sentencing hearing because (1) it was unclear whether the trial court relied on a forty or fifty year presumptive sentence and (2) the trial court's sentencing statement did not properly substantiate aggravating circumstances and did not elaborate some potentially mitigating circumstances. Carter v. State, 686 N.E.2d 1254, 1262-64 (Ind. 1997). A second sentencing hearing was held on January 7, 1998, and the trial court again imposed the maximum sentence of sixty years. This appeal followed, in which Carter essentially argues that the trial court, although applying the correct presumptive sentence, repeated the other sentencing errors. Carter also suggests that his sentence is manifestly unreasonable. We conclude that, although the trial court did not err in its finding of aggravating and mitigating circumstances, the maximum sentence of sixty years is manifestly unreasonable for this fourteen year old offender.

Accordingly, we reduce the sentence to fifty years imprisonment.

I. Carter's Contentions

Carter asserts that the trial court failed to find mitigating circumstances supported by the record, improperly found aggravating circumstances that "were not supported by subsidiary facts and dealt with unsubstantiated allegations," and made only a "summary sentencing statement, which is difficult to review and understand." The contention is essentially that the sentencing statement is "deficient both for what it says and what it does not say." See Scheckel v. State, 655 N.E.2d 506, 509 (Ind. 1995). He also repeats his contention from his first appeal that his sentence is manifestly unreasonable.

II. The Sentencing Statement

At the second sentencing hearing, the trial court took judicial notice of the evidence and arguments presented at Carter's two trials and his first sentencing hearing. Accordingly, we will consider the evidence offered and arguments made at both sentencing hearings. Although not a model of clarity, the record indicates that the trial court found two mitigating circumstances and two or three aggravating circumstances. Carter's age (fourteen) and lack of a criminal record were found to be mitigating circumstances at both sentencing hearings. At the second sentencing hearing the trial court described the aggravating circumstances as follows: ¹

"it is true that as part of the entire series of events that gave rise to this horrible tragedy, . . . [Carter] was, in fact, charged with kidnaping, confinement and child molestation. He was charged with child molestation as an A Felony. I don't have those charges. They never came to me, but the fact that these others . . . And the evidence supports all of that, but he was not charged with that. But I think it's fair to find all that as aggravating circumstances. Further, the young man, although he had no significant juvenile record, there was a prior incident on August the 6th . . . wherein he was, uh. . . There was allegations that he had molested his sister. So it appears that he has a history of sexual deviancy. Um, further, um, to say that it's a murder is, of course, correct and the jury found that that's what happened. Anybody who saw the evidence would have to come away with the terrible realization that this is an awful, horrible, brutal disfiguring murder. I mean his footprints were on the child's body. She had multiple stab wounds. . . . The whole scenario amounts to aggravations. It just was virtually indescribable what this young man did to that child."

Because the trial court relied on aggravating or mitigating circumstances to deviate from the presumptive sentence, it was required to (1) identify all of the significant mitigating and aggravating circumstances, (2) state the specific reason why each circumstance is considered to be mitigating or aggravating, and (3) articulate the court's evaluation and balancing of the circumstances to determine if the mitigating circumstances offset the aggravating ones. Hammons v. State, 493 N.E.2d 1250, 1254 (Ind. 1986).

A. The Mitigating Circumstances

This is not a case in which the trial court "made no reference to mitigating circumstances, neither to specify that the court found none to exist nor to state that any existing mitigators were outweighed by aggravators." See Tunstill v. State, 568 N.E.2d 539, 545 (Ind. 1991). Rather, the trial court found two mitigating circumstances, but failed to find several other offered mitigating circumstances. An allegation that the trial court failed to identify or find a mitigating factor requires the defendant to establish that the mitigating evidence is both significant and clearly supported by the record. See Brown v. State, 698 N.E.2d 779, 783 (Ind. 1998) (citing Crawley v. State, 677 N.E.2d 520, 523 (Ind. 1997)) ("[F]ailure to find a factor to be mitigating that is clearly supported by the record may indicate that evidence on the point was overlooked."); see also Hammons, 493 N.E.2d at 1254 (sentencing statement must identify all "significant" mitigating circumstances); Wilkins v. State, 500 N.E.2d 747, 749 (Ind. 1986) ("If significant mitigating circumstances are clearly supported by the record, it would be proper to remand with instructions to reconsider the sentence and enter a new sentencing statement in compliance with the foregoing requirements.").

At the first sentencing hearing, the trial court specifically asked defense counsel in his final summation to "please point out to me . . . what you believe to be mitigating circumstances as would be reflected by the record." Trial counsel discussed several potentially mitigating circumstances at that hearing and mentioned some of these again at the second sentencing hearing. Of those discussed, the trial court found only Carter's young age and that he had "no significant criminal record" to be mitigating. In this appeal, Carter asserts that the trial court should have found several other factors to be mitigating. ²

First, Carter suggests that his below average I.Q. of eighty-nine and an alleged behavior disorder are mitigating circumstances. Although both of these factors were mentioned in a psychiatric report attached to the presentence report, neither was argued as a mitigating circumstance during summation. Trial counsel did not view either factor as significant enough to warrant any mention at either sentencing hearing. Moreover, a substantial percentage of the population has an I.Q. in the range of Carter's but continues to function in compliance with our laws, and the evidence of Carter's alleged behavior disorder is not clearly supported by the record. ³ The trial court did not abuse its discretion by failing to find either of these to be mitigating circumstances.

Carter also contends that he "was known as a good child. He had never been in trouble before, and he was respectful to adults." He cites to the testimony of his aunt and father, both of whom indicated that Carter had never mistreated other children and had always been respectful to adults. His aunt, however, testified that she had not had regular contact with Carter and his father testified that he had been incarcerated for dealing cocaine since Carter was eight years old. Moreover, as discussed in part B, infra, this testimony is contradicted by an allegation that Carter attempted to molest his three-year-old sister three weeks before the murder at issue in this case. In light of all of these considerations, we cannot say that this offered mitigating circumstance was "clearly supported by the record," see Wilkins, 500 N.E.2d at 749, or that the trial court abused its discretion by failing to find it to be mitigating.

What remains of Carter's argument is that (1) his academic achievement while in custody awaiting trial and (2) the verbal and physical abuse he suffered as a child should have been considered as mitigating circumstances. As a preliminary matter, we note that neither of these is a statutory mitigating circumstance. See Ind. Code §§ 35-38-1-7.1(c) (1998). Nevertheless, as to the first of these, Carter offered the testimony of Michael Welch, a school teacher at the Madison County Detention Center. Welch testified at the first sentencing hearing that Carter "is a B . . . B+ student. He's doing quite well academically." Carter cites to no authority that holds that academic achievement while incarcerated and awaiting trial is a significant mitigating circumstance that must be identified or credited by the trial court at sentencing. Although Carter's academic achievement in the face of a pending murder charge is laudable, the trial court did not abuse its discretion by failing to find it as a mitigating circumstance.

As to the other proffered mitigator, Carter merely mentions his "abusive childhood" in passing without any further explanation and only a single record citation to a psychological evaluation that was attached to the presentence report. The presentence report noted that Carter "described his step-father as both verbally and physically abusive." It also quoted Carter as saying that his mother "threw things, swung baseball bats, everything. You name it, she probably did it." A psychiatric evaluation...