Bostick v. State

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Steve Carter
Public Defender of Indiana Attorney General of Indiana

David P. Freund Janet L. Parsanko
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana

In The
INDIANA SUPREME COURT

)
AMY BOSTICK, )
Defendant-Appellant, )
)
v. ) 33S00-9911-CR-651
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
________________________________________________

APPEAL FROM THE HENRY SUPERIOR COURT
The Honorable Michael D. Peyton, Judge
Cause No. 33D01-9807-CF-20
________________________________________________

On Direct Appeal

August 19, 2002

DICKSON, Justice
Following the death of her three children, ages one, two, and four,
who were locked in their room during a house fire, the defendant, Amy
Bostick, was charged with and convicted of three counts of murder and
sentenced to life without parole for the three counts of murder. She was
also convicted on a charge of Arson, but the trial court did not sentence
her on this count because of the Double Jeopardy Clause of the Indiana
Constitution. Upon her additional conviction of sexual misconduct with a
minor,[1] the defendant was given a concurrent sentence of fifteen years.
In this direct appeal, the defendant raises three issues: (1) admission of
her statements to law enforcement officers; (2) refusal of her tendered
instruction on reckless homicide; and (3) imposing three sentences to life
without parole as manifestly unreasonable.

1. Admission of Statements to Police
As her first argument, the defendant contends that the trial court
erred by failing to exclude her July 28, 1998, statement to law enforcement
officers on grounds that its probative value was substantially outweighed
by its danger of unfair prejudice, confusion of issues, and of misleading
the jury. In the course of making this argument, the defendant also claims
that the exhibit contained interrogation that violated Ind.Evidence Rule
704(b), which prohibits a witness from testifying to opinions concerning
guilt or innocence in a criminal case. The State argues that she has
waived her challenges to the admission of this statement for failure to
object at trial.
Four fire investigators testified that the fire that took the lives of
the defendant's children was deliberately set by pouring and igniting
flammable liquid in the closet of the children's bedroom and along the wall
separating the bedroom from an adjacent room. As the fire consumed the
children's bedroom, the children were locked inside. The doors to the
house were also locked. The only other people in the house were the
defendant and her teen-aged boyfriend. The defendant woke the boyfriend
after the fire started. The defendant gave five statements to law
enforcement authorities regarding the fire: March 16th (the night of the
fire) at 2:54 a.m. and 9:48 a.m., March 24th, July 24th and July 28th.
At trial, when exhibits consisting of the videotape and transcript of
the final July 28 interview with the defendant were offered in evidence,
the defendant objected, referring solely to "the reasons in the written
motion filed with the Court and heard and determined by the Court
previously." Record at 3515. The trial court overruled the defendant's
objection, stating that it "will rule as it did before." Id.
Approximately six weeks earlier, the defendant had filed a motion to
exclude evidence of her interview by police on July 28, 1998,[2] following
her polygraph examination, and after she was advised that she had failed
the examination. The defendant's motion acknowledged that her statements
during the interview were knowingly and voluntarily given, but urged that
the statement should be excluded because: (1) it was "objectionable and
tainted" due to the repeated references to and/or inferences based upon the
polygraph results; (2) it is irrelevant and violates Indiana Evidence Rule
401, and that "the probative value of said evidence is substantially
outweighed by the danger of unfair prejudice;" and (3) even if redacted,
the resulting statement "lacks evidentiary value other than accusation by
the interrogators" and the defendant's repeated denial of memory regarding
the incident and her "apparent acceptance of the polygraph results."
Record at 141. Before ruling on the motion, the trial court heard further
argument of counsel and twice reviewed the videotaped statement along with
its transcription in two different formats. Record at 270. The trial court
understood the defendant to claim that the probative value of the evidence
in the statement was outweighed by the danger of unfair prejudice arising
from the defendant's responses being directly affected by the polygraph
results, and "the potential of confusion of issues could exist in that
statement, without reference to the polygraph, could confuse the jury."
Record at 271 (emphasis added). Concluding that it was not required to
exclude a properly redacted statement, the trial court denied the
defendant's motion to exclude the statement based on relevance and unfair
prejudice, ordering forty-five redactions and corrections. Record at 272-
79.
We acknowledge that, as to the redacted statement, the objections
expressed in the defendant's motion were less than clear, and that her
argument on appeal is slightly different from the one made in the trial
proceedings. However, her motion did direct the trial court's attention to
the requirement in Evid.R. 403 that relevant evidence "may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . . . ." And
the trial court did express consideration of these issues when it ordered
the redaction of numerous parts of the statement. Under the circumstances
presented, we believe that the defendant's appellate claim was sufficiently
presented to the trial court to obviate the purpose of procedural default
on this issue. Further, such grounds were preserved for appeal when the
defendant made a contemporaneous objection at trial expressly referring to
the arguments in her pre-trial motion. Record at 3515. The defendant's
appellate claim that Ind.Evid.R. 704(b)[3] was violated, however, was not
presented at trial or in the defendant's pre-trial motion to exclude that
was referenced in her trial objection, and thus procedural default applies
to prevent our consideration of this claim. See Brown v. State, 728 N.E.2d
876, 878 (Ind. 1998).
With respect to her asserted violation of Ind.Evid.R. 403, the
defendant now argues that any probative value of her July 1998 interview
was substantially outweighed by the danger of unfair prejudice from
allowing the jury to hear her interrogators "repeatedly assert their
beliefs and opinions that there was absolutely no doubt that [the
defendant] had set the fire that killed her children." Br. of Defendant-
Appellant at 34.
This interview occurred immediately after the defendant had taken a
polygraph examination and had been told that she had lied when asked
whether she had set the fire. The defendant contends that the
interrogating officers then used an "interrogation technique of telling
[her] over-and-over again that they already knew that she did it, and that
because they knew she did it, she did remember what she did and why she did
it." Br. of Defendant-Appellant at 29. Among the examples presented by the
defendant's brief and appendix are the following:
I want you to help me explain why this happened, why you did this.
Not if you did it Amy. Why you did it, cause that's what's important.
[Record at 3519].

Amy, don't tell me you didn't do it. That's not a factor at this
time, okay [Record at 3519].

Listen, Amy, everyone's gonna know that you did this and that's not a
question, that is not a question we're here to discuss at this time.
I can tell you absolutely without any, any reservation whatsoever that
if you did it is not a question. [Record at 3519].

You know you set that fire and you know exactly how you set that fire.
[Record at 3521].

Yeah, you do know you set it Amy. The only question is why you set it
. . . [Record at 3522].

Don't give me I don't know Amy. You know as well as you know your
name is Amy that you got up out of bed and set the fire. I want you
to tell me how you did it [Record at 3523].

No, that's not the truth Amy. You know that you set that fire [Record
at 3524].

We know the truth Amy and we know you did it [Record at 3526].

No, Amy, you set that fire. You know it and I know it [Record at
3527].

Oh I believe absolutely no doubt that you did it. That's not a
question. The only question we have to explain to people is why
[Record at 3528].

We know for a fact that Amy set the fire and I know what's going on in
Amy's life [Record at 3540].

Okay, well we all know you did it. . . Okay, well I think we all know
it, and I think you know it too [Record at 3573].

The interview does not contain any explicit admission of guilt by the
defendant. Throughout the entire interview, despite the interrogators'
insistence that she started the fire, the defendant maintained that she had
no recollection of setting the fire that killed her children. At one
point, during her interrogators' inquires regarding why she committed the
crime, the questioner asserted to her that "you did it, that you wanted to
get rid of the kids, so you could have Jacob [her boyfriend]." Record at
3568. She replied, "I don't even remember doing it. But if there was a
reason for me to do it, Jacob would not be the one." Id. A few questions
later, responding to further questioning regarding why, the defendant said:
"Fine. I can't remember if I did it or not, but one good reason why.
Jason [her estranged husband]." Record at 3570. A few questions later,
the questioner again asserted, ''Okay, well we all know you did it" and
asked, "Now the reason you just told us is what I want to make sure is the
reason. Was that the reason? Was that the reason that you did it?"
Record at 3573. The defendant responded:
If that, if there was a reason, that would be it. Jason pushed me
over my limit. I should have killed him is what I should have done.
I should have killed Jason when I had the chance.

Id.
Despite extensive further intensive interrogation, the defendant
consistently maintained that she did not remember setting the fire. For
example, she stated: "And I know why, okay, but my problem is that I can't
remember doing it, okay? And I don't want to sit here and admit that and
say that I did do it, because I don't remember doing it, okay?" Record at
3580. Later, when asked to "admit the truth," she said: "Okay, so what you
want me to do is sit here and say I killed my children because Jason pushed
me over the edge." Record at 3583. When her interrogator replied: "Is
that the truth?" she responded: "If I did kill my children then yes, that
would be the truth." Record at 3583. She then stated:
I don't remember killing my children so I have to assume that
everything else is right and that for some reason I just have a block
in my head to where I can't see past that and so I did kill my
children and Jason pushed me over the edge and I wish I would have
killed that son of a bitch first before he did push me over the edge."

Id.
It is not surprising that, in ruling on the defendant's pre-trial
motion to exclude the statement, the trial court stated:
The Court notes from reviewing the statement that the Defendant
repeatedly indicates that she has no recollection of doing anything
which would have started the fire that caused the deaths. The
responses by the Defendant which might be characterized by the State
as acknowledging guilt can be judged by the fact finders, along with
the rest of the evidence, in determining whether she is truly
acknowledging guilt or acquiescing in the conclusions of the
questioners.

Record at 272.
The evaluation of whether the probative value of a particular item of
evidence is substantially outweighed by the danger of unfair prejudice is a
discretionary task best performed by the trial court. Dunlap v. State, 761
N.E.2d 837, 842 (Ind. 2002). In our view, the interrogators' accusations
and the defendant's responses have little probative value in establishing
her guilt. Likewise, we conclude that the repeated accusations, in the
context of the entire statement, did not create a substantial risk of
unfair prejudice. We are not persuaded that the trial court abused its
discretion in admitting the redacted exhibits.
Before concluding Argument I in the Brief of Appellant-Defendant, the
defendant additionally claims that it was error to admit, individually and
collectively, four video and audio recordings and transcripts of her
interrogations, including the one taken on July 28. Implicitly
acknowledging that this claim was not presented to the trial court, she
asserts that it constitutes fundamental error, thereby avoiding procedural
default. To constitute 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.'" Etienne v. State, 716 N.E.2d 457, 462 (Ind. 1999) (quoting
Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987)); see also Barany v. State,
658 N.E.2d 60, 64 (Ind. 1995)(defining fundamental error as error "so
prejudicial to the rights of the defendant as to make a fair trial
impossible").
The principal thrust of her claims with respect to the other
statements is similar to the defendant's claim as to her July 28 statement,
discussed and rejected above. She argues: "Each one of the interrogations
is individually permeated with the same type of inadmissible statements of
belief in Amy's guilt by the various interrogators that have been discussed
in detail concerning the July 28 interrogation." Br. of Defendant-
Appellant at 41. The defendant highlights eleven portions of her
statements that she contends are inadmissible hearsay. Considering the
consistent and obvious use of the same interrogation technique, by
challenging the defendant with assertions of her guilt, it is clear that
the interrogators' utterances "were not assertions of fact, but more in the
nature of statements designed to elicit a response." Smith v. State, 721
N.E.2d 213, 216 (Ind. 1999).
Regardless whether each statement is considered individually or
whether all the statements are considered collectively, we decline to find
fundamental error. Therefore applying procedural default, we decline to
give any further consideration to these claims.

2. Failure to Give Reckless Homicide Instruction
The defendant next claims that the trial court erred when it refused
to give her tendered instructions on reckless homicide. She argues that
reckless homicide is an inherently included offense of murder, and that
there is a serious dispute in the evidence regarding whether the defendant
acted with a knowing or reckless mens rea.
When a defendant requests an instruction covering a lesser-included
offense, a trial court applies the three-part analysis set forth in Wright
v. State, 658 N.E.2d 563, 566-67 (Ind. 1995). The first two parts require
the trial court to determine whether the offense is either inherently or
factually included in the charged offense. Id. If so, the trial court
must determine whether there is a serious evidentiary dispute regarding any
element that distinguishes the two offenses. Id. at 567; see also Brown v.
State, 703 N.E.2d 1010, 1019 (Ind. 1998). If, in light of such a dispute,
"'a jury could conclude that the lesser offense was committed but not the
greater, then it is reversible error for a trial court not to give an
instruction, when requested, on the inherently or factually included lesser
offense.'" Brown, 703 N.E.2d at 1019 (quoting Wright, 658 N.E.2d at 567).
When a trial court has made an express finding that there is no serious
evidentiary dispute, its ruling is reviewed for abuse of discretion.
Brown, 703 N.E.2d at 1020.
The defendant asserts, and the State agrees, that reckless homicide
is an inherently lesser-included offense of murder. Only the level of
culpability required distinguishes the crimes of reckless homicide and
murder. As charged in this case, a conviction for murder requires that the
defendant had a "knowing" level of culpability, i.e., that the defendant
was aware of the high probability that her conduct would result in the
death of another when she engaged in the activity. Ind.Code §35-41-2-2(b);
Ind.Code § 35-42-1-1. Reckless homicide, however, requires a "reckless"
level of culpability, i.e., that the defendant "engage[d] in the conduct in
plain, conscious, and unjustifiable disregard of harm that might result and
the disregard involves a substantial deviation from acceptable standards of
conduct." Ind.Code § 35-41-2-2(c); Ind.Code § 35-42-1-1. In ruling upon
the defendant's tendered instructions on reckless homicide, the trial court
expressly found no serious evidentiary dispute. Record at 3851-52.
Although not presented to the trial court, the defendant argues on
appeal that "there is nothing in what [the defendant told the police
investigators] that negates the possibility that she started the fire
recklessly." Br. of Defendant-Appellant at 52. The defense argues:
Nothing she said would preclude a jury finding that she started the
fire with the intent of getting [her husband] (who had threatened just
the week before to burn the house down) in trouble; getting the
insurance money from the house being burned up to solve her financial
problems; and that she and [her boyfriend] would be looked upon as
heroes for saving the kids from the fire that [her husband] started,
but the fire got out-of-hand too quickly.

Id.
We decline to infer the existence of a serious evidentiary dispute
based on speculation from the absence of evidence. The undisputed evidence
at trial was that flammable liquid was poured and ignited around the
bedroom in which the children had been locked. The trial court did not
abuse its discretion. There was no serious evidentiary dispute that these
actions were done with an awareness of the high probability that the
actions would result in the death of the children. See Ind.Code § 35-41-2-
2(b).

3. Life without Parole Sentence
For each murder of her three children, ages 1, 2, and 4, the
defendant was sentenced to life without parole. Alleging that her sentence
is manifestly unreasonable, the defendant seeks our review and revision of
the sentence pursuant to Ind. Appellate Rule 17(B).[4] We do not reach
this issue because of the relief required by the recent intervening
decision of the United States Supreme Court. See Ring v. Arizona, --- U.S.
---, 122 S.Ct. 2428, --- L.Ed.2d --- (2002).
The State in this case sought a sentence of life without parole for
each murder count pursuant to Ind. Code § 35-50-2-9, based on the
qualifying aggravating circumstance that each victim was under the age of
twelve. See Ind.Code § 35-50-2-9(b)(12). The jury during the sentencing
phase was unable to reach a unanimous recommendation, and thus there was no
jury determination finding the qualifying aggravating circumstances beyond
a reasonable doubt. The judge then found the required aggravating
circumstances proved beyond a reasonable doubt and sentenced the defendant
to three sentences of life without parole.
The United States Supreme Court, however, has since determined that
the Sixth Amendment to the U.S. Constitution requires that "any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt."
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147
L.Ed.2d 435, 455 (2000). Ring v. Arizona, made it clear that Apprendi
applies to capital sentencing schemes. --- U.S. at ---, 122 S.Ct. at 2443,
--- L.Ed.2d at ---. Contrary to Apprendi and Ring, the defendant’s
sentences to life without parole pursuant to Ind. Code § 35-50-2-9, were
based on facts extending the sentence beyond the maximum authorized by the
jury’s verdict finding her guilty of murder. Because of the absence of a
jury determination that qualifying aggravating circumstances were proven
beyond a reasonable doubt, we must therefore vacate the trial court’s
sentence of life without parole.
Upon remand for resentencing, unless otherwise directed by an
appellate court, a trial court may order a new sentencing hearing,[5] may
order additional briefing and then issue a new order, or may issue a new
sentencing order without further proceedings. O’Connell v. State, 742
N.E.2d 943, 952-53 (Ind. 2001). In the present case, if the State elects
to dismiss its request for sentencing to life without parole, the trial
court may proceed accordingly and resentence the defendant to a term of
years as authorized by the murder statute, Ind. Code § 35-50-2-3(a). If
the State proceeds with its life without parole sentencing request, the
trial court shall convene a new penalty phase jury and conduct further
proceedings pursuant to Ind. Code § 35-50-2-9.

Conclusion
We affirm the defendant's convictions, we vacate the sentences of
life without parole, and we remand this case to the trial court for further
proceedings consistent with this opinion.

SHEPARD, C.J., and RUCKER, J., concur. SULLIVAN, J., dissents with
separate opinion. BOEHM, J., dissents with separate opinion in which
SULLIVAN, J., concurs.

SULLIVAN, Justice, dissenting.

I

I respectfully dissent from the majority's conclusion that the
probative value of defendant's July 28 interview by police outweighed its
prejudicial effect. The majority sets forth in its opinion twelve explicit
assertions of the fact of defendant's guilt made by the police during the
interview. In Smith vs. State, 721 N.E.2d 213, 216 (Ind. 1999), we held
that two such assertions of fact made by a police detective during a
similar interview constituted error. Here, the error seems more severe
than in Smith. In this regard, I concur in Justice Boehm’s dissent.

II

I agree with the majority that Ring v. Arizona, 122 S.Ct.2428 (2002),
renders Bostick's sentence unconstitutional. I do not agree, however, that
life without parole is an option on remand.

After declaring Bostick's sentence unconstitutional under Ring, the
majority opinion says, "If the State proceeds with its life without parole
sentencing request, the trial court shall convene a new penalty phase jury
and conduct further proceedings pursuant to Ind. Code § 35-50-2-9." But
the jury in Bostick’s case was unable to agree on a sentencing
recommendation. Indiana Code § 35-50-2-9 – the statute which sets forth
the procedure to be followed in cases in which sentences of death and life
without parole are sought – explicitly provides that if the jury is unable
to reach a unanimous recommendation, “the court shall discharge the jury
and proceed as if the hearing had been to the court alone.” Id., § 35-50-2-
9(f). Thus there is no statutory authority to convene a new penalty phase
jury once the original jury has been unable to reach a recommendation.

Unlike O’Connell v. State, 742 N.E.2d 943 (Ind. 2001), this is not a
situation where there was trial court error in imposing sentence. Rather,
the statutory scheme pursuant to which sentencing was imposed violated the
Sixth Amendment in this circumstance. On remand, the trial court must both
follow the statute (which does not provide for a new penalty phase jury in
this circumstance) and follow the Constitution (which, as interpreted by
Ring, does not permit the imposition of life without parole in this
circumstance).

BOEHM, Justice, dissenting.
I agree with Justice Sullivan that the transcript of the July 28
interview was erroneously admitted into evidence. In my view, the
interrogating officers’ statements were inadmissible under Evidence Rule
704(b) and therefore the interview was inadmissible under Evidence Rule
403.
In this several hour session, Bostick consistently denied any
recollection of setting the fire. The probative value of the interview, if
any, is found in Bostick’s statement that if she did commit the crime, it
was motivated by animosity towards her husband. The interview contains
many statements by the interrogating officers that “we know” Bostick was
guilty of the crime. These were inadmissible under Evidence Rule 704(b) as
opinions as to guilt. In my view, the minimal probative value of Bostick’s
admissible statements does not outweigh the prejudicial effect of these
statements, even giving substantial deference to the trial court’s
discretion on that issue. If Bostick’s response had been disentangled from
the offending statements, presumably they could have been admitted. But
that was not done and accordingly, the interview should have been excluded
under Rule 403.
The majority’s rationale that the interrogators’ statements were
simply questions in declarative form does not persuade me. The
interrogation in Smith v. State, 721 N.E.2d 213, 216 (Ind. 1999) cited by
the majority as an example of an acceptable statement designed to elicit a
response was:
Q: Well, you know, if we . . . anybody we brought in here who would
say in your gut who do you think might have done this . . .

A: Um-Hum. They would probably said me.

Q: Omond. How does it feel to be, have that kind of reputation?
Everybody wants you.

A: Everybody! That's messing me up.

That is a far cry from the repeated exchanges between Bostick and her
interrogators quoted by the majority. Here the interrogators placed their
opinions as to Bostick’s guilt before the jury, reinforced by their claim
that they “knew” Bostick was guilty. This technique wholly eviscerates
Rule 704(b), and does it in a mode that is more pernicious than permitting
a witness to testify in court as to guilt because the interrogator is not
subject to cross examination as to the source of this claimed “knowledge.”
When Bostick objected to the admission of the videotape and
transcript of the July 28 police interview during the trial, she did so for
the reasons stated in her written motion to exclude evidence, previously
filed with the trial court. These included the argument that even after
redaction of the polygraph references, the resulting statements lacked
“evidentiary value other than accusation by the interrogators.” I think
this contention sufficiently raised the 704(b) issue to preserve it for
appeal. Accordingly, I agree with Justice Sullivan that this case should
be remanded for retrial.

SULLIVAN, J., concurs.

-----------------------
[1] Ind.Code § 35-42-4-9. The defendant, age twenty-four, was charged
with sexual intercourse with her fifteen-year-old boyfriend.
[2] The text of her motion referred to her statement of "July 29,
1998," Record at 140, based on an incorrect date on the copy of the
statement provided by the prosecutor. The State clarified that the actual
date was July 28, 1998, which the trial court noted and thereafter referred
to the correct date. Record at 1308.
[3] Ind.Evid.R. 704(b) states: "Witnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or
falsity of allegations; whether a witness has testified truthfully; or
legal conclusions."
[4] This rule is now App.R. 7(B).
[5] In his dissent, Justice Sullivan expresses concern that a new
penalty phase jury should not be convened on remand because Ind. Code § 35-
50-2-9(f) calls for the discharge of a jury unable to agree on a sentence
recommendation. This position is consistent with his separate opinion in
Burris v. State, 642 N.E.2d 961, 969-70 (Ind. 1994)(Sullivan, J.,
concurring in result), but this interpretation is contrary to established
practice. In trials for criminal offenses, it is not uncommon for juries
that are unable to reach unanimous verdicts to be discharged and new juries
convened in their place. See Burris, 642 N.E.2d at 969 ("In the ordinary
situation, the discharge of the jury and a possibility of retrial with a
new jury is the standard procedure."); see also, e.g., McCarthy v. State,
749 N.E.2d 528, 532 (Ind. 2001); Buell v. State, 668 N.E.2d 251 (Ind.
1996); Hughley v. State, 737 N.E.2d 420, 422 (Ind. Ct. App. 2000).
Likewise, we have remanded for new penalty phase trials in capital cases
where the penalty phase jurors were unable to reach a unanimous
recommendation. Ben-Yisrayl v. State, 738 N.E.2d 253, 267-68 (Ind.
2000)(affirming post-conviction remand for new penalty phase trial
following discharge of jury unable to render a recommendation); Burris,
642 N.E.2d at 964 ("Common sense and judicial economy dictate the trial
judge should have the latitude to assemble a new jury . . . ."). New jury
penalty phase trials have similarly occurred in various other death penalty
cases where the penalty phase jury was discharged after rendering a
recommendation and the case was thereafter remanded on appeal. See, e.g.,
Rondon v. State, 711 N.E.2d 506, 523 (1999); Averhart v. State, 614 N.E.2d
924, 930, 935 (Ind. 1993); Castor v. State, 587 N.E.2d 1281, 1283, 1290
(Ind. 1992). In addition, we have expressly recognized that new juries may
be assembled upon remand in habitual offender cases. Stewart v. State, 688
N.E.2d 1254, 1258 (Ind. 1997); Funk v. State, 427 N.E.2d 1081, 1088-89
(Ind. 1981); State v. McMillan, 274 Ind. 167, 174-76, 409 N.E.2d 612, 617-
18 (1980). In McMillan we declared: "It is in the public interest that the
[S]tate be given another opportunity to secure an enhanced penalty should
the first attempt result in a deadlocked jury." Id. at 176, 409 N.E.2d at
618.