
ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE
Michael R. Fisher                            Steve Carter
Indianapolis, Indiana                   Attorney General of Indiana

                                        Monika Prekopa Talbot
                                        Deputy Attorney General
                                        Indianapolis, Indiana


                                   In The
                            INDIANA SUPREME COURT

                                        )
ANTHONY WARREN,                   )
      Defendant-Appellant,              )
                                       )
           v.                           )          49S00-0101-CR-66
                                        )
STATE OF INDIANA,                       )
      Plaintiff-Appellee.                     )
                                        )
              ________________________________________________

                    APPEAL FROM THE MARION SUPERIOR COURT
                  The Honorable Patricia Gifford, Judge[1]
                       Cause No. 49G04-9808-CF-128010
              ________________________________________________

                              On Direct Appeal


                                June 6, 2002

DICKSON, Justice
      The defendant, Anthony Warren, appeals from a habitual offender
adjudication that followed this Court's previous opinion affirming his
murder conviction but vacating the habitual offender determination in his
original trial and remanding for further proceedings.  Warren v. State, 725
N.E.2d 828, 837 (Ind. 2000).  On remand, after a new habitual offender jury
proceeding, the defendant was again found to be a habitual offender.  In
this appeal, the defendant contends that this second determination was not
supported by sufficient evidence and that the trial court erred in
permitting the jury to be informed that the underlying felony conviction in
the principal case was for the offense of murder.
      The defendant first claims the evidence was insufficient to identify
him as the person who committed the underlying murder conviction that was
subject to enhancement by the habitual offender finding.  The defendant
admits that the evidence was sufficient to support a finding that he had
committed two prior unrelated felonies, but he maintains that "there is a
whole failure of proof in that there is no evidence other than a common
name" to link him to the murder conviction or to the date of the offense.
Br. of Appellant at 11.
      That the defendant was the person convicted of murder in the original
trial "was an issue which had been decided in the case, was the law of the
case, and was totally outside the realm of the second assembled jury."
Gilliam v. State, 563 N.E.2d 94, 96 (Ind. 1990).  The State simply had to
show the date of the current underlying felony so the jury could make a
proper determination of sequence.[2]  The State's Exhibits 33 and 34 were
the Information and Abstract of Judgment for the defendant's instant felony
conviction for murder.  The Information contained the date the crime was
committed.  The jury could rely on this document to determine whether the
proper sequence was present for the habitual offender finding.
      For his second contention, the defendant asserts that the trial court
erred in denying his objection to the jury being informed of the nature of
the underlying conviction.  The defendant requested that any mention that
the underlying felony was murder be removed from the Information and
Abstract of Judgment and that the jury be informed only that the defendant
had been convicted of an underlying felony without naming the felony.  The
defendant argues that the identity of the offense was irrelevant and should
have been excluded.  A jury is "entitled to know why they were being
assembled to determine appellant's status as a habitual offender."
Gilliam, 563 N.E.2d at 96.  This includes informing a second jury that the
defendant had been convicted of the primary felony.  Id.  The nature of the
primary felony is relevant because "[i]n a habitual offender proceeding,
the jury must not only determine whether the defendant has been twice
previously convicted of unrelated crimes, but it must further determine
whether such two convictions, when considered along with the defendant's
guilt of the charged crime, lead them to find that the defendant is a
habitual criminal."  Seay v. State, 698 N.E.2d 732, 736 (Ind. 1998).  The
trial court did not err in informing the jury that the defendant's felony
conviction in this case was for murder.
      The judgment of the trial court is affirmed.


      SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, J.J., concur.
-----------------------
      [1]  Diane Marger Moore, Magistrate, conducted the habitual offender
proceeding.
      [2] To establish that the defendant is a habitual offender, the State
must prove beyond a reasonable doubt that the defendant has been previously
convicted of two separate and unrelated felonies.  Ind.Code § 35-50-2-8.
To be "unrelated," the commission of the second felony must be subsequent
to the sentencing for the first, and the sentencing for the second felony
must have preceded the commission of the current felony for which the
enhanced sentence is being sought.  Toney v. State, 715 N.E.2d 367, 369
(Ind. 1999).  Failure to prove the proper sequencing requires that the
habitual offender determination be vacated.  Henderson v. State, 534 N.E.2d
1105, 1109 (Ind. 1989).

