concurring in part and dissenting in part.
I fully concur in the majority's reversal of Oldham's convictions and in the remand for a new trial. I write separately, however, to express a caveat with regard to the discussion under Part III.B.2., Threats to Witnesses, and to respectfully dissent from the majority's rejection of Oldham's double jeopardy claim in Part V. of the opinion.
As to the former, the majority states that Officer Lehn's gratuitous comment to the effect that two witnesses "were afraid for their lives. They had been threatened ." was not misconduct because the comment was volunteered by Officer Lehn. The implication of the majority's conclusion is that before reversible error occurs by reason of an "evidentiary harpoon," the prejudicial testimony must be sought or invited by the prosecutor.
Such is not the case. Bad faith on the part of the prosecutor is not the key. Rather it is whether the jury's objective consideration of admissible evidence has been improperly and prejudicially tainted. It makes no difference whether the prosecutor and the witness together create the problem or whether the witness himself and upon his own initiative attempts to bolster the State's case. The prejudice to the defendant is the same. Mack v. State, 736 N.E.2d 801 (Ind.Ct.App.2000), trans. denied. See also Baker v. State, 506 N.E.2d 817 (Ind.1987); White v. State, 257 Ind. 64, 272 N.E.2d 312 (1971), and numerous cases cited therein.
As to the majority's double jeopardy analysis, I respectfully disagree that the jury could properly conclude from the evidence before them that Oldham carried an unlicensed handgun before the actual shooting and after the shooting. In this respect, the case before us differs from the facts which were present in Guyton v. State, 771 N.E.2d 1141 (Ind.2002) and in Mickens v. State, 742 N.E.2d 927, 931 (Ind.2001) ("Carrying the gun along the street was one crime and using it was another:"). The only evidence to reflect that Oldham carried a handgun was the evidence that Brownlow was killed by a shot or shots from a handgun. Therefore, the evidence of his carrying a handgun was the 'same evidence which permitted the jury to find that he shot a handgun while seated in the back seat of the automobile.
Absent some evidence from which the jury could determlne that Oldham had the firearm before entering the car and/or after departing the car, it is impossible to justify the dual convictions on the basis that Oldham committed separate and distinct offenses. While it is possible, perhaps even likely, that Oldham had the gun before entering the car, the facts do not preclude a different scenario. If Oldham, wearing gloves, entered the rear passenger compartment of the car and picked up a handgun which was lying on the seat, fired the gun into the driver and then put the gun back on the seat, I do not believe we would countenance a conviction for murder and for carrying a handgun without a license. In my estimation, while the first scenario is the more probable of the two, it was not established beyond a reasonable doubt. Accordingly, under the Richardson test, there is a reasonable possibility that the jury looked to the same evidentiary facts to establish each crime. See Guyton, 771 N.E.2d at 1153 (Boehm, J., concurring).
Be that as it may, it is clear that the absence of a license is not an element of *1180the carrying offense. Alexander v. State, 768 N.E.2d 971, 977 (Ind.Ct.App.2002), trans demied. It is the burden of the defendant to plead and prove the affirmative defense of the existence of a license. Id. Therefore, when the State proved, albeit by cireumstantial evidence, that Old-ham possessed the gun in the vehicle when he shot and killed Brownlow, that essential element for the crime of murder, i.e. the act of shooting, established all of the elements of the offense of carrying the handgun. See Hampton v. State, 719 N.E.2d 803, 809 (Ind.1999), in which the unanimous Supreme Court, applying Richardson v. State, 717 N.E.2d 32 (Ind.1999), reversed a conviction upon double jeopardy grounds because "[the same evidence that supported the murder conviction, the act of stabbing, may have also been used to convict Defendant of robbery as a Class A felony." (emphasis supplied.)
Hampton is analogous to the case before us. There is a reasonable possibility, if not probability, that the act of shooting the handgun essential to the proof of the murder charge, was used to convict Oldham of carrying the handgun without a license.
As held in Alexander v. State, 772 N.E.2d 476, 478 (Ind.Ct.App.2002), opinion upon rehearing, trans. denied:
"Both of the offenses being analyzed for double jeopardy purposes must be viewed in the context of the other offense. If the evidentiary facts establishing any one or more elements of one of the challenged offenses establishes the essential elements of the second challenged offense, double jeopardy considerations prohibit multiple convictions."
For these reasons, I would reverse the carrying a handgun conviction and remand solely for retrial upon the murder charge.