ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

William Byer, Jr. 					Pamela Carter

BYER & BYER					Attorney General of Indiana

Anderson, Indiana					

							Cynthia L. Ploughe

							Deputy Attorney General

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

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

_________________________________________________

On Direct Appeal

DICKSON, J.

	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 Modisett 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 Modisett 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, 75 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 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 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 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 § 35-41-5-1(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.

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, 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. CONconcur.  SULLIVAN, J. concurs in

result with separate opinion.

Attorney for Appellant

William Byer, Jr.

Byer & Byer

Anderson, IN

Attorneys for Appellee

Pamela Carter

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

KIERA R. CARTER,

	Defendant-Appellant,

	v.

STATE OF INDIANA,

	Plaintiff-Appellee.

)

)	Supreme Court No.

)	48S00-9703-CR-167

)

)	

)	

)

)

)

	APPEAL FROM THE MADISON SUPERIOR COURT

	The Honorable Thomas Newman, Jr., Judge

	Cause No. 48D03-9403-CF-068

	ON DIRECT APPEAL

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 208.

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.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).2