MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                          Feb 11 2019, 9:25 am

court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                           Curtis T. Hill, Jr.
Jeffersonville, Indiana                                  Attorney General of Indiana
                                                         Ian A. McLean
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

John Robert Carpenter,                                   February 11, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         59A01-1708-CR-1945
        v.                                               Appeal from the Orange Circuit
                                                         Court
State of Indiana,                                        The Honorable R. Michael Cloud,
Appellee-Plaintiff.                                      Special Judge
                                                         Trial Court Cause No.
                                                         59C01-1406-MR-389




Tavitas, Judge.



Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019    Page 1 of 24
                                             Case Summary
[1]   John Carpenter appeals his convictions and sentence for murder; voluntary

      manslaughter, a Class A felony; and robbery resulting in serious bodily injury, a

      Class A felony. We affirm.


                                                     Issues
[2]   Carpenter raises five issues, which we restate as:

              I.       Whether the trial court properly determined that Carpenter
                       was competent to stand trial.

              II.      Whether the trial court properly admitted Carpenter’s
                       statement to the police.

              III.     Whether the trial court properly admitted the surviving
                       victim’s in-court identification of Carpenter.

              IV.      Whether the trial court properly denied Carpenter’s motion
                       for a mistrial.

              V.       Whether Carpenter’s sentence is inappropriate.


                                                     Facts
[3]   On June 23, 2014, Daniel Smitson, Michael Corey Harris, and another

      unidentified person were visiting with Nicky Fields at Fields’ Orange County

      residence when the door to the mobile home “swung open.” Tr. Vol. IX p. 197.

      A man, later identified as Carpenter, said that “him and [Fields] needed to

      talk.” Id. at 198. Fields asked Carpenter to wait outside until everyone left.




      Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 2 of 24
[4]   Smitson went outside and saw three men—Carpenter, Elbert Brooks, and

      James Davidson—waiting on the porch. Smitson also saw their red and silver

      pickup truck. Smitson pretended to work on some equipment, had a

      conversation with the men, and went back inside. At some point, Harris and

      the other unidentified visitor left.

[5]   Carpenter then knocked on the door, and Smitson answered. Carpenter

      pointed a gun at Smitson and hit him on the head with the gun, which dazed

      Smitson. The men entered the home, ordered Smitson and Fields to get face

      down on the floor, and started searching the residence. The men took money,

      drugs, and weapons. Brooks shot both Fields and Smitson in the head. As

      Carpenter, Davidson, and Brooks were leaving, Harris was returning to Fields’

      residence, and the men saw him in the driveway. Carpenter then shot Harris.

[6]   Fields and Harris died from gunshot wounds to the head, and Smitson

      survived. When Smitson ran out of the house, he found Harris near the road

      on the ground and saw people trying to help Harris. On the same day, while

      Smitson was in the hospital, Indiana State Police Detective David Henderson

      and Indiana State Police Trooper Jonathan Lamb interviewed Smitson. In that

      interview, Smitson described the red and silver Dodge truck driven by the

      suspects. Smitson reported the attack by three white men, and he described the

      man who shot him.


[7]   Indiana State Police Detective Shane Staggs was assigned to investigate the

      incident. Detective Staggs quickly focused on Carpenter as a suspect and


      Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 3 of 24
       discovered that Carpenter drove a red and silver pickup truck. Detective

       Henderson received a picture of Carpenter and showed the single picture to

       Smitson. Smitson identified Carpenter as being one of the men involved in the

       incident.

[8]    On June 25, 2014, a report was made regarding the location of one of the men

       involved in the shootings. Officers arrived at the reported residence and found

       Brooks. Davidson was arrested a couple of days later, and Carpenter’s truck

       was located in an old barn in Harrison County.

[9]    On June 29, 2014, officers located Carpenter in another old barn in Harrison

       County where he was sleeping on a bale of hay. Detective Staggs provided

       Carpenter with food and water and took Carpenter to the jail to interview him.

       Before Carpenter was interviewed, he asked Detective Staggs if he could see his

       wife and child. Detective Staggs told Carpenter that he needed to speak to him

       first. Detective Staggs read the Miranda rights to Carpenter, and Carpenter

       indicated that he understood his rights. Carpenter then gave a detailed account

       of the events at Fields’ residence.

[10]   Carpenter admitted that he, Brooks, and Davidson planned to rob Fields and

       that the robbery was his idea. During the robbery, Carpenter took Fields’

       handgun and gave it to Brooks. After Carpenter and Davidson walked out of

       Fields’ residence, Brooks shot both Fields and Smitson. When Carpenter and

       Davidson walked outside, they saw Harris, who said: “What’s going on.” Ex.

       Vol. I p. 61. Carpenter saw Harris reaching into his pocket, and Carpenter shot


       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 4 of 24
       Harris. Carpenter told Detective Staggs that his proceeds from the robbery

       were in an abandoned cistern on Milltown-Frenchtown Road. After the

       interview, Detective Staggs told Carpenter that he would take Carpenter to see

       his child.

[11]   A handgun, along with several other guns and knives, were found in the cistern

       described by Carpenter. An analysis showed that the handgun found in the

       cistern fired two cartridge cases that were found in Fields’ residence. The

       handgun used to shoot Harris was never located. Carpenter claimed that he

       disposed of that gun in pieces.


[12]   Subsequently, the State charged Carpenter with Count I, murder related to

       Harris; Count II, murder related to Fields; and Count III, robbery resulting in

       serious bodily injury, a Class A felony, related to the injuries sustained by

       Smitson. The State also alleged that Carpenter was a habitual offender.

[13]   Carpenter filed a motion to determine his competency to stand trial, and the

       trial court appointed Dr. Michael Coots and Dr. Frederick Nolen to examine

       Carpenter. Dr. Coots determined that Carpenter was competent to stand trial.

       Dr. Nolen concluded that Carpenter was not competent to stand trial based on

       a traumatic brain injury from a 2012 car accident and earlier head injuries.

       After a hearing, the trial court found Carpenter competent to stand trial.

[14]   Carpenter filed two motions to suppress his statement to Detective Staggs. In

       the first motion, Carpenter argued that he did not knowingly and voluntarily

       waive his Miranda rights. In the second motion, Carpenter argued that his

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 5 of 24
       statement was not voluntary. Carpenter argued that Detective Staggs’ promise

       to let Carpenter see his wife and child, Carpenter’s traumatic brain injury, and

       Carpenter’s lack of sleep and drug use made his statement involuntary. The

       trial court denied Carpenter’s motions to suppress the statement to Detective

       Staggs.

[15]   Carpenter also filed a motion to suppress Smitson’s identification of Carpenter.

       After a hearing, the trial court ordered the following:

               ISP Troopers Henderson and Lamb, and possibly others,
               displaying a single photograph of John Robert Carpenter to
               Steven Daniel Smitson at the University of Louisville Hospital
               on June 23, 2014, and Steven Daniel Smitson identifying the
               man depicted in the photograph as John Robert Carpenter, and
               that Carpenter was one of the men who came to the Nicky Fields
               home at 2350 North County Road 200 West, Paoli, Indiana on
               June 23, 2014, and that Carpenter was there when Smitson was
               shot are suppressed, and evidence and argument of this
               identification based upon the display of the single photograph
               shall not be admissible at trial herein. It is further ORDERED
               that the single photograph in question is suppressed as well, and
               shall not be admissible at trial herein.


               It is further ORDERED that the Defendant’s request to suppress
               in Court identification of John Robert Carpenter by Steven
               Daniel Smitson is denied, and admission of the same at trial will
               depend upon the necessary evidentiary foundation presented by
               the State at trial.


       Appellant’s App. Vol. VII p. 96.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 6 of 24
[16]   Carpenter also filed a motion in limine regarding the jury seeing Carpenter in

       visible restraints. The trial court granted the motion and ordered that “the

       Prosecuting Attorney, his staff, and all law enforcement officers and personnel

       in charge of security at the trial of this cause, shall ensure that the Defendant is

       free from all visible handcuffs, leg shackles, and other restraints while in the

       presence of the jury and/or potential jurors.” Id. at 69.


[17]   During the jury trial, Carpenter objected to the admission of his interview with

       Detective Staggs for the same reasons as his earlier motions to suppress. The

       trial court overruled the objection. Carpenter also objected to Smitson’s in-

       court identification of him. The trial court overruled the objection, and

       Smitson testified that Carpenter was one of the three men at Fields’ residence.

[18]   Near the end of the jury trial, Carpenter moved for a mistrial because each

       morning Carpenter’s leg shackles, handcuffs, and belt were placed on a window

       sill outside of the courtroom above a staircase used by the jury. According to

       Carpenter, the shackles, handcuffs, and belt were visible to the jury as they

       entered and left the courtroom each day. Carpenter argued that the State

       violated the trial court’s order and, accordingly, that he was entitled to a

       mistrial. After hearing evidence on the issue, the trial court denied the motion

       for a mistrial. The trial court noted that no evidence was presented that any

       juror or alternate juror had seen Carpenter in any restraints.

[19]   The jury found Carpenter guilty of: Count I, voluntary manslaughter, a Class A

       felony, as a lesser included offense of murder; Count II, murder; and Count III,


       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 7 of 24
       robbery, a Class A felony. The jury also found Carpenter to be a habitual

       offender.

[20]   The trial court sentenced Carpenter to consecutive sentences of fifty years for

       the voluntary manslaughter conviction; sixty-five years for the murder

       conviction; and fifty years for the robbery conviction. The trial court enhanced

       the sentence by thirty years for Carpenter’s status as a habitual offender, for an

       aggregate sentence of 195 years in the Department of Correction.


                                                   Analysis
                                                 I. Competency

[21]   Carpenter argues that the trial court erred by finding him competent to stand

       trial. A trial court’s determination of competency to stand trial is reviewed

       under the clearly erroneous standard. Edwards v. State, 902 N.E.2d 821, 824

       (Ind. 2009). We will reverse on appeal only if the decision is unsupported by

       the facts and circumstances before the trial court together with any reasonable

       inferences to be drawn therefrom. Id.


[22]   “‘To be competent at trial, a defendant must be able to understand the nature of

       the proceedings and be able to assist in the preparation of his defense.’”

       McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004) (quoting Timberlake v. State,

       753 N.E.2d 591, 598 (Ind. 2001), cert. denied, 537 U.S. 839, 123 S. Ct. 162

       (2002)), cert. denied, 546 U.S. 831, 126 S. Ct. 53 (2005). “We have defined this

       standard as ‘whether or not the defendant currently possesses the ability to

       consult rationally with counsel and factually comprehend the proceedings

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 8 of 24
       against him or her.’” Id. (quoting Brewer v. State, 646 N.E.2d 1382, 1384 (Ind.

       1995)). “‘The trial and conviction of one without adequate competence is a

       denial of federal due process and a denial of a state statutory right as well.’” Id.

       (quoting Brewer, 646 N.E.2d at 1384).


[23]   Carpenter argues that the trial court’s competency decision was erroneous

       because the trial court relied on Dr. Coots’ finding of competency rather than

       Dr. Nolen’s finding of incompetency.1 Pursuant to Indiana Code Section 35-

       36-3-1, the trial court appointed Dr. Coots and Dr. Nolen to examine

       Carpenter.

[24]   At a competency hearing, Dr. Coots testified that he administered a

       competency to stand trial assessment, a WRAT-3 test, and a mental status

       exam. Based on those tests and the clinical interview, Dr. Coots found:

                Results of the present evaluation show a 37 year old man with a
                lengthy history of prior legal problems and incarceration. He has
                a history of mental illness as indicated by his report but was
                unwilling to divulge specific details about prior treatment but did
                state he had been hospitalized in the past and had received most
                treatment “in prison”. His presentation at this time was that of
                [a] calm, focused, deliberate individual that was responsive but



       1
         Carpenter also takes issue with the trial court’s failure to make “specific findings as to the reasons it
       discounted the testimony of Dr. Nolen, other than to say the court considered the reports and testimony of
       both Drs. [sic].” Appellant’s Br. p. 15. We note that Carpenter cites no authority that the trial court was
       required to issue specific findings of fact and conclusions of law regarding Carpenter’s competency to stand
       trial. Indiana Appellate Rule 46(A)(8)(a) requires an appellant to support contentions with citations to
       authorities and cogent argument, which Carpenter failed to do. This argument is waived. See, e.g., Pierce v.
       State, 29 N.E.3d 1258, 1267 (Ind. 2015) (“A litigant who fails to support his arguments with appropriate
       citations to legal authority and record evidence waives those arguments for our review.”).

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019          Page 9 of 24
               guarded. He was logical and sequential with no signs of thought
               disorder or psychosis. His mood was perhaps somewhat blunted
               and restricted and affect congruent but not to a degree to have
               discernable impact on reasoning. He gives impression of
               someone with average or better cognitive ability and results of the
               WRAT-3 support this with scores in the average to very high
               range. He understands the seriousness and scope of the charges
               against him and the possible outcome. He understandings [sic]
               the roles of those in the courtroom and the proceedings. He
               expressed trust in his attorney and by all findings of the present
               assessment has the intellect and abilities to cooperate in his
               defense. He is not self defeating in his actions regarding his case.


       Ex. Vol. I p. 29.

[25]   Dr. Nolen, on the other hand, found Carpenter incompetent to stand trial. Dr.

       Nolen concluded that Carpenter had a severe traumatic brain injury from a

       2012 car accident and other incidents prior to the car accident. Based on tests

       that Dr. Nolen performed, he concluded:

               The psychological and neurocognitive tests I performed on
               [Carpenter] indicates [sic] he is still seriously cognitively
               impaired and cannot participate in his defense. He may know
               the meanings of most of the words but his problem with
               processing complex information will probably leave him dazed
               and confused about what is going on and what it means for him.
               He will also probably not be able to remember the normal
               amount of the proceedings after they are done each day.


       Id. at 14.


[26]   The State points out that Dr. Nolen did not use “the most common tool for

       evaluating competence, but instead relied significantly on his own ‘trauma

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 10 of 24
       inventory’ which he had invented and which had not been peer-reviewed.”

       Appellee’s Br. p. 35. Carpenter’s argument is merely a request that we reweigh

       the evidence, which we cannot do. The trial court weighed the opinions of Dr.

       Coots and Dr. Nolen and found Dr. Coots’ opinion more persuasive. We

       cannot say that this decision was clearly erroneous.


                                     II. Carpenter’s Statement to Police

[27]   Next, Carpenter argues that the trial court abused its discretion by admitting his

       statement to Detective Staggs. Although Carpenter frames the issue as whether

       the trial court erred by denying his motion to suppress, because he appeals

       following a jury trial, the issue is more properly framed as whether the trial

       court abused its discretion by admitting the statement. See Clark v. State, 994

       N.E.2d 252, 259 (Ind. 2013). The general admission of evidence at trial is a

       matter we leave to the discretion of the trial court. Id. at 259-60. We review

       these determinations for abuse of that discretion and reverse only when

       admission is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights. Id. at 260.


[28]   Carpenter first argues that his statement was not admissible because he did not

       voluntarily waive his Miranda rights before giving his statement to Detective

       Staggs.2 The Fifth Amendment grants to individuals, among other rights, the



       2
        Although Carpenter briefly mentions the Indiana Constitution in connection with this argument, he does
       not develop a separate argument. Consequently, he has waived the issue. See Jackson v. State, 925 N.E.2d
       369, 372 n.1 (Ind. 2010) (holding that the defendant’s state constitutional claim was waived for failure to
       make a separate argument).

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019        Page 11 of 24
       right to be free from self-incrimination. U.S. Const. amend. V (“No person . . .

       shall be compelled in any criminal case to be a witness against himself . . . .”).

       This provision applies to the states by virtue of the Fourteenth Amendment.

       Hartman v. State, 988 N.E.2d 785, 787 (Ind. 2013) (citing Malloy v. Hogan, 378

       U.S. 1, 6, 84 S. Ct. 1489, 1492 (1964)). “In Miranda v. Arizona, the United

       States Supreme Court outlined an additional prophylactic requirement, inherent

       in the privilege against self-incrimination, that an individual must be informed

       of his right to have counsel present during custodial interrogation.” Id. (citing

       Miranda v. Arizona, 384 U.S. 436, 469, 86 S. Ct. 1602, 1625 (1966)).


[29]   “A waiver of one’s Miranda rights occurs when the defendant, after being

       advised of those rights and acknowledging that he understands them, proceeds

       to make a statement without taking advantage of those rights.” Ringo v. State,

       736 N.E.2d 1209, 1211-12 (Ind. 2000). The admissibility of a confession is

       controlled by determining from the totality of the circumstances whether the

       confession was made voluntarily and was not induced by violence, threats, or

       other improper influences that overcame the defendant’s free will. Id. The

       same test determines whether Miranda rights were voluntarily waived. Id.

       Thus, the voluntariness of a defendant’s waiver of rights is judged by the totality

       of the circumstances. Id. A signed waiver form is one item of evidence

       showing the accused was aware of and understood his rights. Id. When

       challenged, the State may need to show additional evidence tending to prove

       that a defendant’s waiver and decision to speak were voluntary. Id.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 12 of 24
[30]   Carpenter argues that the waiver of his Miranda rights was not voluntary

       because he was “still suffering from the permanent effects” of a traumatic brain

       injury and he had been without sleep for five days due to methamphetamine

       use. Appellant’s Br. p. 17. Carpenter claimed during his hearing on the motion

       to suppress that, prior to giving the statement, he had not slept in five or six

       days due to methamphetamine use. He also relies on Dr. Nolen’s evaluation to

       support his contention.


[31]   The evidence demonstrates that Carpenter was fully advised of his rights and

       voluntarily waived those rights. The trial court had already found Dr. Nolen’s

       evaluation to be unpersuasive. Moreover, evidence was presented that

       Carpenter was asleep when he was located in the barn. The trial court was not

       required to give credit to Carpenter’s claims that he was sleep-deprived from

       drug use. Under the totality of the circumstances, the trial court was well

       within its discretion to conclude that Carpenter’s waiver of his Miranda rights

       was voluntary. See, e.g., Ringo, 736 N.E.2d at 1212 (holding that the defendant

       voluntarily waived his Miranda rights).


[32]   Carpenter next argues that his statement was involuntary because of Detective

       Staggs’ promise to let Carpenter see his wife and child. Carpenter contends that

       Detective Staggs’ promise “negated the voluntariness of his statement.”

       Appellant’s Br. p. 18. “Coercive police activity is a necessary prerequisite to

       finding a confession is not voluntary within the meaning of the Due Process

       Clause of the Fourteenth Amendment.” Ringo, 736 N.E.2d at 1212. “A

       confession is voluntary if, in light of the totality of the circumstances, the

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 13 of 24
       confession is the product of a rational intellect and not the result of physical

       abuse, psychological intimidation, or deceptive interrogation tactics that have

       overcome the defendant’s free will.” Id. “The critical inquiry is whether the

       defendant’s statements were induced by violence, threats, promises or other

       improper influence.” Id. at 1212-13.


[33]   Carpenter admitted at the hearing on the motion to suppress that Detective

       Staggs did not raise the possibility of Carpenter seeing his wife and child;

       rather, it was Carpenter’s idea. Moreover, Detective Staggs did not say

       Carpenter could not see his wife and child if he did not give a statement. The

       evidence demonstrates that Detective Staggs merely wanted to speak with

       Carpenter first, before he saw his wife and child. At the start of the recorded

       interview, the following discussion occurred:

               C: Well what happens if my wife can’t make it here for like an
               hour or something . . . .


               S: Then I’ll . . . .


               C: . . . . or two hours? I mean that’s gonna . . . .


               S: I’ll . . . .


               C: . . . . I mean that’s gonna screw me out of mine cause . . . .


               S: No, I’ll sit here and wait with you two hours if I have to.


               C: Okay.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 14 of 24
               S: Sound like a deal?


               C: It works for me just fine.


               S: Alright. I told you I’d let you see them so, that’s what I’m
               gonna do. Alright. John, I’m sure you know what I’ve got to
               read to you. Okay?


               C: My rights or whatever?


               S: Yeah, I’ve got to read you your rights. Alright? It’s just
               something I got to do. Um, before we ask you any questions,
               you must understand your rights.


       Ex. Vol. I p. 51.

[34]   Carpenter could have refused to speak with Detective Staggs. Detective Staggs

       testified that he still would have let Carpenter see his wife and child. Detective

       Staggs testified,

               [Carpenter] wanted to see his little girl and his wife and I told
               him that I needed to speak to him first and at that point he said,
               you know, he made it clear that he wanted to give a statement,
               but, he wanted to see his wife and child, so, I . . . made those
               arrangements.


       Tr. Vol. X pp. 85-86. Detective Staggs further testified, “I called his wife and

       child before, um, I mean he could of [sic] told me to (inaudible) and not talk to

       me and I would still let him see his wife and child- . . . .” Id. at 86.




       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 15 of 24
[35]   Detective Staggs’ promise to Carpenter was not coercive or conditioned on

       Carpenter giving a statement. Under these circumstances, Carpenter’s

       statement was not induced by violence, threats, promises or other improper

       influence. The trial court did not abuse its discretion by admitting Carpenter’s

       statement to Detective Staggs. See, e.g., Ringo, 736 N.E.2d at 1213 (holding that

       the defendant’s confession was admissible despite his claim that it was

       involuntary due to lack of sleep and intoxication).


                                   III. Smitson’s In-Court Identification

[36]   Next, Carpenter argues that the trial court abused its discretion by admitting

       Smitson’s in-court identification of Carpenter.3 The general admission of

       evidence at trial is a matter we leave to the discretion of the trial court. Clark,

       994 N.E.2d at 259-60. We review these determinations for abuse of that

       discretion and reverse only when admission is clearly against the logic and

       effect of the facts and circumstances and the error affects a party’s substantial

       rights. Id. at 260.


[37]   The Due Process Clause of the Fourteenth Amendment requires suppression of

       testimony concerning a pre-trial identification when the procedure employed is

       impermissibly suggestive. Swigeart v. State, 749 N.E.2d 540, 544 (Ind. 2001).

       “A pre-trial identification may occur in a manner so suggestive and conducive




       3
         Although Carpenter briefly mentions the Indiana Constitution in connection with this argument, he does
       not develop a separate argument. Consequently, he has waived the issue. See Jackson, 925 N.E.2d at 372 n.1
       (holding that the defendant’s state constitutional claim was waived for failure to make a separate argument).

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019        Page 16 of 24
       to mistaken identification that permitting a witness to identify a defendant at

       trial would violate the Due Process Clause.” Id. “Nevertheless, a witness who

       participates in an improper pretrial identification procedure may still identify a

       defendant in court if the totality of the circumstances shows clearly and

       convincingly that the witness has an independent basis for the in-court

       identification.” Id.


[38]   To determine whether a witness had an independent basis for the in-court

       identification, we consider the following factors:

               The amount of time the witness was in the presence of the
               defendant; the distance between the two; the lighting conditions;
               the witness’ degree of attention to the defendant; the witness’
               capacity for observation; the witness’ opportunity to perceive
               particular characteristics of the perpetrator; the accuracy of any
               prior description of the perpetrator by the witness; the witness’
               level of certainty at the pretrial identification; and the length of
               time between the crime and the identification.


       Id.


[39]   On the day of the incident, while Smitson was in the hospital, Detective

       Henderson and Trooper Lamb interviewed Smitson. In that interview, Smitson

       described a red and silver Dodge truck driven by the suspects. Smitson said

       they were attacked by three white men, and he described the man that shot him

       as wearing a bandana and having a “goatee, kind of bald, about five foot eight

       probably.” Ex. Vol. V p. 115. Later, Detective Henderson learned that

       Carpenter had been developed as a suspect, and Detective Henderson received


       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 17 of 24
       a picture of Carpenter. Detective Henderson showed the single picture to

       Smitson, and Smitson identified the man in the picture as being one of the men

       involved. The next day, Detective Staggs interviewed Smitson. Smitson said

       that one of the men “had a bandana, bald head, goatee, um, kind of stocky.”

       Id. at 127. Smitson also stated that the other men kept calling the man, “John,”

       and asking, “John, what do you want us to do with this . . . .” Id.


[40]   Carpenter filed a motion to suppress Smitson’s identification of Carpenter.

       After a hearing, the trial court partially granted the motion to suppress and

       ordered that Smitson’s “identification based upon the display of the single

       photograph shall not be admissible at trial herein.” Appellant’s App. Vol. VII

       p. 96. With respect to any in-court identification, the trial court denied the

       motion to suppress and ordered that the “admission of the same at trial will

       depend upon the necessary evidentiary foundation presented by the State at

       trial.” Id. At trial, Smitson identified Carpenter as one of the assailants over

       Carpenter’s objection.

[41]   The trial court did not admit Smitson’s identification of Carpenter when he was

       shown Carpenter’s picture in the hospital. Carpenter argues that the hospital

       identification was so suggestive that Smitson’s in-court identification of

       Carpenter should have been inadmissible. Smitson, however, had an

       independent basis for his in-court identification of Carpenter.

[42]   Smitson testified that he was visiting with Fields when the door to the mobile

       home “swung open.” Tr. Vol. IX p. 197. The man, later identified as


       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 18 of 24
       Carpenter, said that “him and [Fields] needed to talk.” Id. at 198. Fields asked

       Carpenter to wait outside until everyone left. Smitson went outside, saw the

       three men waiting, and saw their red and gray pickup truck. Smitson was

       curious about the men and went outside where he pretended to work on a piece

       of equipment. Smitson had a conversation with the men and went back inside.

       Carpenter then knocked on the door, and Smitson answered. Carpenter

       pointed a gun at Smitson and hit him on the head with the gun, which dazed

       Smitson. The men ordered Smitson and Fields to get face down on the floor,

       and they started searching the residence. After taking money, drugs, and

       weapons, Brooks shot both Fields and Smitson in the head.

[43]   Smitson was in Carpenter’s presence for several minutes before and during the

       robbery. Smitson observed Carpenter and the other men from both a close

       distance and from further away. Smitson also observed the men both outside

       and inside the trailer. Smitson was able to accurately describe the men’s

       vehicle, which matched the description of Carpenter’s truck. Smitson also

       noted that one of the men was wearing a bandana, and a bandana was later

       found in Carpenter’s truck.

[44]   We conclude that the totality of the circumstances shows Smitson had an

       independent basis for his in-court identification of Carpenter. See, e.g., Swigeart,

       749 N.E.2d at 545 (holding that the officer had an independent basis for his in-

       court identification of the defendant). The trial court did not abuse its

       discretion by admitting Smitson’s in-court identification of Carpenter.



       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 19 of 24
                                         IV. Motion for a Mistrial

[45]   Carpenter also argues that the trial court abused its discretion by denying his

       motion for a mistrial after jurors saw shackles, handcuffs, and restraints on a

       window sill outside of the courtroom. The denial of a mistrial lies within the

       sound discretion of the trial court and is reviewed solely for abuse of that

       discretion. Isom v. State, 31 N.E.3d 469, 480 (Ind. 2015), cert. denied, 136 S. Ct.

       1161 (2016). “[A] mistrial is an extreme remedy that is only justified when

       other remedial measures are insufficient to rectify the situation.” Id. at 481.


[46]   “The general rule precludes presenting a defendant to the jury in handcuffs or

       shackles, but a court may need to do so in certain exceptional circumstances

       when restraint is necessary to prevent the escape of the prisoner, to protect

       those in the courtroom, or to maintain order.” Davis v. State, 770 N.E.2d 319,

       325 (Ind. 2002). “[I]t is not an abuse of discretion for a trial court to deny a

       motion for mistrial because a juror has seen a defendant in handcuffs unless the

       defendant demonstrates actual harm.” Id.


[47]   Carpenter cannot show an abuse of discretion here. There is no indication that

       the jurors actually saw Carpenter in the shackles, handcuffs, or restraints.

       Rather, the shackles, handcuffs, and restraints were merely left on a window sill

       outside of the courtroom, and the jurors walked past the area to enter and leave

       the courtroom. In Warr v. State, 877 N.E.2d 817, 822 (Ind. Ct. App. 2007),

       trans. denied, we found no reversible error where the jurors did not indicate “that

       they actually saw Warr in handcuffs or other restraints.” Similarly, here, the

       extreme remedy of a mistrial was not warranted by the jurors merely seeing the
       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 20 of 24
       restraints sitting in the courthouse. The trial court did not abuse its discretion

       by denying the motion for a mistrial.


                                                  V. Sentence

[48]   Next, Carpenter argues that his sentence is inappropriate. Indiana Appellate

       Rule 7(B) provides that we may revise a sentence authorized by statute if, after

       due consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” McCain v. State, 88 N.E.3d 1066, 1067 (Ind. 2018). The defendant

       bears the burden to persuade this court that his or her sentence is inappropriate.

       Phipps v. State, 90 N.E.3d 1190, 1198 (Ind. 2018). Indiana’s flexible sentencing

       scheme allows trial courts to tailor an appropriate sentence to the circumstances

       presented, and the trial court’s judgment “should receive considerable

       deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). The principal

       role of appellate review is to attempt to “leaven the outliers.” Shoun v. State, 67

       N.E.3d 635, 642 (Ind. 2017). Whether we regard a sentence as inappropriate at

       the end of the day turns on “our sense of the culpability of the defendant, the

       severity of the crime, the damage done to others, and myriad other facts that

       come to light in a given case.” Cardwell, 895 N.E.2d at 1224.


[49]   In determining whether a sentence is inappropriate, we look to the statutory

       ranges established for the classification of the relevant offense. Carpenter was

       convicted of murder; voluntary manslaughter, a Class A felony; and robbery

       resulting in serious bodily injury, a Class A felony. The sentencing range for

       murder is forty-five years to sixty-five years with an advisory sentence of fifty-
       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 21 of 24
       five years. See Ind. Code § 35-50-2-3. The sentencing range for a Class A

       felony was twenty to fifty years with an advisory sentence of thirty years. See

       Ind. Code § 35-50-2-4. The habitual offender statute in effect at the time of

       Carpenter’s offenses provided: “The court shall sentence a person found to be a

       habitual offender to an additional fixed term that is not less than the advisory

       sentence for the underlying offense nor more than three (3) times the advisory

       sentence for the underlying offense. However, the additional sentence may not

       exceed thirty (30) years.” Ind. Code § 35-50-2-8. Carpenter received the

       maximum sentence of 195 years.

[50]   The trial court found several aggravators, including: (1) Carpenter’s criminal

       history; (2) the harm, injury, loss, or damage suffered by the victims; (3) the

       nature and circumstances of the offense, especially the execution-style

       shootings; (4) Carpenter’s lack of remorse; (5) the victimization of three

       separate people; and (6) Carpenter was the ringleader in the incident. The trial

       court also found one mitigating factor—Carpenter’s traumatic brain injury.

       The trial court rejected Carpenter’s other proposed mitigating factors, including:

       (1) undue hardship to Carpenter’s family; (2) Carpenter’s cooperation with

       investigators; and (3) Carpenter’s good behavior while incarcerated.

[51]   The nature of the offense is that Carpenter was the instigator in deciding to rob

       Fields. Carpenter recruited Davidson and Brooks, and Carpenter drove the

       men to Fields’ residence. Carpenter had a gun and took Fields’ gun, which

       Brooks used to shoot Fields and Smitson. The men stole weapons, drugs, and

       money from Fields. As the men were leaving Fields’ residence, Harris arrived,

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 22 of 24
       and Carpenter shot Harris in the head. Although Smitson survived being shot

       in the head, he has been left with lasting, severe damage. After committing

       these offenses, Carpenter went to a casino to gamble, hid some of the proceeds

       from the robbery in an abandoned cistern, and hid his truck. Police ultimately

       found him a few days later in a remote old barn sleeping on bales of hay.

       Carpenter did confess to the offenses.

[52]   As for Carpenter’s character, we begin by discussing his criminal history.

       Carpenter’s criminal history includes five prior felony convictions and three

       misdemeanor convictions. Carpenter first went to adult prison in 1994 at the

       age of fifteen when he was convicted of burglary, a Class C felony. In 1996, he

       was convicted of two counts of burglary, as Class B felonies. In 2003, he was

       convicted of escape, a Class C felony. In 2004, he was convicted of arson, a

       Class B felony. Additionally, Carpenter has misdemeanor convictions for

       resisting law enforcement, battery, and possession of paraphernalia.

[53]   The trial court acknowledged as a mitigating factor that Carpenter has a

       traumatic brain injury resulting from a 2012 car accident. The trial court,

       however, correctly pointed out that “there is conflicting evidence as to the

       severity or lasting debilitating effects of the injury.” Appellant’s App. Vol. VIII

       p. 38. Of significance to us, which the trial court also found significant, is that

       all of Carpenter’s prior felonies were committed before the 2012 injury.

       Carpenter also has a wife and child, and Carpenter argued that undue harm to

       them was a mitigating factor. The evidence, however, indicated that Carpenter

       rarely worked and would disappear for days or weeks at a time.

       Court of Appeals of Indiana | Memorandum Decision 59A01-1708-CR-1945 | February 11, 2019   Page 23 of 24
[54]   Carpenter argues that this court should reduce his sentence because Davidson

       and Brooks received lesser sentences. Davidson pleaded guilty and received a

       sentence of forty years, and Brooks pleaded guilty and received a sentence of

       100 years. Carpenter, however, was the ringleader in this incident and, unlike

       Davidson and Brooks, did not plead guilty. We do not find that Davidson’s

       and Brooks’ lesser sentences require a reduction in Carpenter’s sentence.

       Although Carpenter’s sentence is the maximum, given Carpenter’s extensive

       criminal history combined with the brutal nature of this offense, we do not find

       the sentence inappropriate given the nature of the offense and the character of

       the offender.


                                                 Conclusion
[55]   The trial court did not abuse its discretion by finding Carpenter competent to

       stand trial. The trial court also did not abuse its discretion by admitting

       Carpenter’s statement to Detective Staggs or Smitson’s in-court identification of

       Carpenter. The trial court properly denied Carpenter’s motion for a mistrial,

       and Carpenter’s sentence is not inappropriate. We affirm.

[56]   Affirmed.


       Brown, J., and Altice, J., concur.




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