ATTORNEYS FOR APPELLANT
Susan K. Carpenter
Public Defender of Indiana
David P. Freund
Deputy Public Defender
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
MICHAEL CARRICO, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 71S00-0101-CR-17
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable John Marnocha, Judge
Cause No. 71G02-0005-CF-28
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
September 20, 2002
BOEHM, Justice.
Michael Carrico was convicted of murder and robbery as a B felony.
The trial court sentenced him to sixty-five years in prison. In this
direct appeal, Carrico contends that the trial court erred by: (1)
sentencing Carrico to both murder and robbery in violation of the double
jeopardy clause of the Indiana Constitution; (2) admitting autopsy
photographs; and (3) finding that the aggravating circumstances outweighed
the mitigating circumstances and imposing consecutive sentences. We
affirm.
Factual and Procedural Background
On May 6, 2000, Michael Carrico, Ben Robinson, and Roderick Harmon
were on their way to Mishawaka to buy marijuana. Carrico was driving,
Robinson was in the passenger seat, and Harmon was in the back on the
passenger side. Although Carrico gave conflicting testimony as to what
happened next, Robinson’s testimony offered the following account. As the
three drove to Mishawaka, Carrico shot Harmon. Carrico then drove to a
pond by Lake Shore Estates and dragged Harmon out of the backseat of the
car by himself. Carrico began hitting Harmon in the face—first with a car
speaker, then with a rock. Carrico then pulled a tooth from Harmon’s mouth
and removed Harmon’s clothes. After Robinson helped Carrico put Harmon’s
body in the water, Carrico took Harmon’s clothes, cell phone, gold
necklace, wallet, and money, and buried them in a wooded area.
A jury found Carrico guilty of murder, felony murder, and robbery.
The trial court merged the felony murder and the murder conviction, reduced
the robbery to a B felony, and imposed consecutive sentences of fifty-five
years for the murder and ten years for the robbery.
I. Indiana Double Jeopardy
Citing Richardson v. State, 717 N.E.2d 32 (Ind. 1999), Carrico argues
that the murder and robbery convictions are the “same offense” under the
“actual evidence” test. The elements of the charged murder were (1)
knowingly or intentionally (2) killing (3) another human being. The
elements of the B robbery were (1) knowingly or intentionally (2) taking
property (3) from another person or from the presence of another person (4)
by using or threatening the use of force on any person (5) while armed with
a deadly weapon or resulting in bodily injury to any person other than the
defendant. Ind. Code § 35-42-5-1 (1998). The jury was instructed that to
find Carrico guilty of murder, the State must have proved that Carrico: (1)
knowingly (2) acting alone or with an accomplice (3) killed Roderick
Harmon. The jury was also instructed that in order to find Carrico guilty
of robbery, it must find that the State had established each of the
following elements:
1. The defendant, Michael Carrico
2. knowingly
3. acting alone, or with an accomplice
4. while armed with a deadly weapon
5. took property from Roderick Harmon
6. by using force upon Roderick Harmon
7. by shooting Roderick Harmon
8. which caused serious bodily injury to Roderick Harmon.
The charging information, which was read to the jury as part of the
instructions, charged Carrico with murder “by Shooting [Harmon] with a
handgun, causing him to die.” It also charged Carrico with robbery by
knowingly taking “United States currency, from the presence of another
person by force or threat of force, to-wit: by shooting Roderick Harmon
with a handgun, which resulted in serious bodily injury to another person,
to-wit: extreme pain to Roderick Harmon.”
Carrico argues that the act necessary to prove murder, shooting Harmon
with a handgun, was the same as the force proved as an element of the
robbery. He contends his case is similar to Richardson, where convictions
for robbery and battery were at issue and this Court vacated the battery
conviction because the force used during the robbery (the beating of the
victim) also constituted the battery. Richardson does not bar multiple
convictions when the facts establishing one crime also establish only one
or even several, but not all, of the elements of a second offense. Spivey
v. State, 761 N.E.2d 831, 833 (Ind. 2002). That is the case here.
Carrico’s knowing killing of Harmon—by shooting the handgun—established one
element of robbery (force) but not all. Accordingly, conviction for both
is consistent with Richardson.
There also is no violation under the rules of statutory construction
and common law that coexist with the constitutional test set forth in
Richardson. See Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002). The
trial court reduced the robbery from an A felony to a B felony by reason of
the rule that the “harm” in this murder was the same bodily injury
inflicted in the robbery. Enhancement of one offense for the very same
harm as another is not permissible. Guyton v. State, 771 N.E.2d 1141, 1143
(Ind. 2002) (citing Richardson, 717 N.E.2d at 56 (Sullivan, J.,
concurring)). But nothing prohibits conviction and sentencing for two
crimes with a common element. Accordingly, there was no double jeopardy
violation.
II. Autopsy Photographs
Carrico contends the probative value of some autopsy photographs was
substantially outweighed by their prejudicial effect. “Autopsy photographs
are admissible if (1) they provide relevant evidence, and (2) their
probative value is not substantially outweighed by their tendency to
impassion the jury against the defendant.” Coy v. State, 720 N.E.2d 370,
375 (Ind. 1999) (quoting Malone v. State, 700 N.E.2d 780, 783 (Ind. 1998)).
Four of the autopsy photographs admitted at trial depicted a metal rod
that the forensic pathologist inserted through entrance and exit wounds on
Harmon’s body to demonstrate the paths the bullets went through the body.
Carrico points out that, at trial, he did not contest the fact that Harmon
had been shot numerous times with a nine-millimeter semi-automatic handgun
or that Harmon died from those gunshot wounds. He also notes that the
forensic pathologist testified that he had no way of knowing with any
certainty exactly how either Harmon or the shooter was positioned at the
time the shots were fired.
A second autopsy photograph showed a metal screw that was embedded in
Harmon’s face. The forensic pathologist testified that the screw had
nothing to do with Harmon’s death, and that it appeared to be a freak
occurrence rather than someone having intentionally placed the screw there.
Carrico argues that revulsion at seeing these gruesome and inflammatory
photographs depicting Harmon’s injuries blown-up on a large screen
television could have swayed the jury to ignore the huge credibility gaps
in the State’s case.
We agree that these photos appear to have minimal probative value.
However, we think their admission was harmless error. Three witnesses
testified that Carrico admitted killing the victim and gave details about
the crime. Carrico also showed witnesses the murder weapon and the bloody
money he had taken from Harmon. Robinson testified that he watched Carrico
kill and beat the victim before helping Carrico put Harmon in the pond.
Carrico’s own videotaped statement to the police revealed his involvement
in the murder. In light of this evidence, any error in the admission of
the photographs is harmless.
III. Consecutive Sentences
Carrico argues that the trial court erred in imposing consecutive
sentences by finding that Harmon was in a position of trust with Carrico as
an aggravating factor. He also contends that the trial court erred by
failing to give appropriate weight, as a mitigating factor, to Carrico’s
lack of criminal record.
Carrico acknowledges that courts have found a position of trust as an
aggravating circumstance in some situations, but he notes that most
involved an adult or a person in a position of authority and a child or
teenage victim—not peers.[1] Carrico argues that he was merely an
acquaintance of Harmon’s and had met Harmon only three to four times prior
to the murder. Because we do not agree that the trial court found a
separate aggravating factor in the relationship of the parties, we need not
resolve that issue.
After setting forth Carrico’s relative youth, remorse, and strong
family support as mitigating factors, the court stated, “And then against
all of that, I have to say probably the most striking factor about this
case is the nature and circumstances of how it was committed.” The court
noted the brutality of the crime and stated its appreciation of Harmon’s
family and the way they conducted themselves during the trial. The court
then stated, “I also find, particularly with respect to Mr. Robinson,[2]
but also secondarily with respect to Mr. Carrico; [sic] is that Mr. Harmon
was really both a friend and acquaintance of both of you, and you did
violate that trust by doing what you did, for apparently no reason.” The
court then stated the possible motive. From this, it is not entirely clear
to us that the trial court was relying on a “position of trust” as a
separate aggravator. Given the placement of this discussion—coming after
the recitation of the crime’s brutality and before the discussion of the
crime’s apparent motive—it seems to us that the trial court merely viewed
this as another factor going to the disturbing nature and circumstance of
the crime, and not as a separate aggravator.
Carrico also contends the trial court erred in refusing to accord
significant mitigating value to his lack of prior criminal history.
Although Carrico had no prior felony convictions, he did have a prior
domestic violence battery conviction and a resisting law enforcement
conviction, both of which were Class A misdemeanors. Carrico was,
therefore, not wholly without a criminal history. The trial court did not
err in according little weight to this record. See Bunch v. State, 697
N.E.2d 1255, 1258 (Ind. 1998) (trial court considered defendant’s lack of
prior criminal history, but properly declined to accord it significant
weight).
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] See Walter v. State, 727 N.E.2d 443, 448 (Ind. 2000) (where the victims
were the defendant’s wife and aunt); Franklin v. State, 715 N.E.2d 1237,
1242 (Ind. 1999) (where defendant was victim’s father); Wesby v. State, 535
N.E.2d 133, 137-38 (Ind. 1989) (where victim was defendant’s former
girlfriend); Van Martin v. State, 535 N.E.2d 493, 498 (Ind. 1989) (where
defendant lived with the victim’s family and was babysitting for the
victim); Marshall v. State, 643 N.E.2d 957, 963 (Ind. Ct. App. 1994) (where
defendant was a police officer who was counseling fourteen-year-old).
[2] Carrico and Robinson were tried separately, but sentenced at the same
sentencing hearing. See Robinson v. State, __ N.E.2d __ (Ind. 2002).