Michael Carr v. State of Indiana

IN THE

Indiana Supreme Court

FILED

Supreme Court Case No. 23S-LW-139 Feb 24 2026, 11:46 am

CLERK

Michael Carr, Indiana Supreme Court

Court of Appeals

and Tax Court

Appellant (Defendant below),

–v–

State of Indiana,

Appellee (Plaintiff below).

Argued: October 9, 2025 | Decided: February 24, 2026

Direct appeal from the Wayne Superior Court

No. 89D02-1808-MR-3

The Honorable Gregory A. Horn, Judge

Opinion by Justice Goff

Chief Justice Rush and Justices Massa, Slaughter, and Molter concur.

Goff, Justice.

While on parole from a previous conviction for dealing cocaine,

Michael Carr shot and killed the confidential informant that helped

convict him. A jury found Carr guilty of murder and recommended a life-

without-parole (LWOP) sentence, which the trial court imposed. Carr

appeals, arguing that his constitutional right to an impartial jury was

violated, the trial court erred in admitting certain evidence, the trial court

erred in its final jury instructions, and his sentence is inappropriate.

Finding no constitutional violation, no procedural error, and no

inappropriate sentence, we affirm.

Facts and Procedural History

On August 2, 2018, at around 1:48 a.m., Michael Carr shot and killed

Jason Lewis in Richmond, Indiana. Lewis, acting as a confidential

informant, had previously purchased drugs from Carr. Carr and Lewis

were childhood friends. Based on the controlled buy, Carr was convicted

of dealing in cocaine in 2013 and sentenced to eight years in the

Department of Correction. Carr was released on parole on May 3, 2018.

While still on parole, Carr worked with Lamita Vansickle to lure Lewis

to the Country Club Apartments where he killed him. 1 Vansickle and

Lewis exchanged messages on Facebook arranging to meet and have sex.

Vansickle picked Lewis up in her car and drove him to the apartments.

They got out of the car and started walking when Carr, wearing a red shirt

and a face covering, emerged from behind a bush and shot at Lewis twice.

Vansickle ran back to her car and drove away.

After being shot, Lewis ran into one of the apartment buildings and

Carr chased after him. Lewis ran up to the third floor and banged on an

apartment door. The resident opened the door, and Lewis ran in, holding

1Vansickle pled guilty to Level 1 felony conspiracy to commit murder. See Ind. Code § 35-41-

5-2; I.C. § 35-42-1-1. She was sentenced to thirty years in the Department of Correction with

two years suspended. Cause No. 89D02-1906-MR-2.

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his side and saying he got shot. Once Lewis was in, the resident turned

around to get help when Carr entered the apartment. At that point, Lewis

jumped out the window and Carr exited the apartment. Carr continued to

chase Lewis, eventually catching up and shooting him again. Carr then

“stood over top” of Lewis and “unloaded … the whole magazine into

him.” Tr. Vol. 3, p. 241. Carr fired eighteen shots in quick succession,

fifteen of which struck and killed Lewis. Carr ran back to his car where

A.J. Smith was waiting, and Carr drove them off. About twelve minutes

after the murder, Smith was dropped off at home and was “freaking out”

when he woke up his sister, Christina, and told her that Carr shot Lewis.

Tr. Vol. 4, pp. 55–56.

Two days after the murder, Carr went to Vansickle’s place of

employment and threatened to kill her and her kids if she said anything

about the murder. Carr also sent his girlfriend at the time, Jannae Cole, a

letter instructing her to tell Vansickle and Smith that he would harm them

and their children if they testified against him. She communicated the

threat to Vansickle’s husband and Smith. In addition, Carr posted on

Facebook urging Vansickle to “free [him]” because he’s “trynna enjoy the

summer.” Ex. Vol. 1, p. 34. Carr also offered Brandon Coe, who Carr had

previously been in jail with, $10,000 to kill Vansickle. Further, Carr

admitted to people that he shot Lewis, and he wrote letters describing the

crime.

The State charged Carr with murder and requested an LWOP sentence,

alleging the aggravating circumstances of lying in wait and being on

parole at the time of the murder. See Ind. Code §§ 35-50-2-9(b)(3),

(b)(9)(D). A jury trial began on April 24, 2023.

During jury selection, the court summoned 120 people for the venire

panel, of which sixteen were dismissed without appearing, leaving 104

potential jurors. Only three minority individuals appeared, of which only

one was African American. Carr—who is African American—objected,

arguing that the venire derived from an unfair cross-section of the

community. Then all the minority individuals were excused, resulting in

an all-white jury. Carr renewed his objection, asking to draw a new

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venire, and the trial court denied the request after finding that the jury

had been randomly selected.

After the jury was empaneled, the trial court recited a preliminary

article 1, section 19 instruction which read, “Under the Constitution of the

State of Indiana, you as jurors have the right to determine both the law

and the facts. The [trial court’s] instructions are your best source in

determining the law applicable to this case.” Tr. Vol. 3, p. 192. The trial

court omitted the article 1, section 19 instruction in its final instructions,

but Carr neither objected to its omission nor tendered his own instruction.

The jury had copies of both the preliminary and final instructions in the

jury room and was advised by the trial court “to consider all of the

instructions, both preliminary and final, together.” Tr. Vol. 7, p. 45.

During trial, Vansickle and Smith could not be located. Police knew

Vansickle was a witness in this case, there was a warrant out for her

arrest, all police units were on alert looking for her, and the U.S. Marshals

Service sought four search warrants in attempts to track her cell phone.

Police also attempted to serve Smith with a subpoena on multiple

occasions but were unsuccessful. The State argued that Carr forfeited his

right to confront Vansickle and Smith by wrongdoing after he threatened

them. In lieu of testimony, the State sought to admit statements Vansickle

and Smith previously made to police. Vansickle told police that she

recognized the shooter as Carr from his face tattoo. Smith told police Carr

drove him to the Country Club Apartments, and he heard gunshots but

did not see what happened. The trial court admitted the statements over

Carr’s objection. The trial court also allowed Christina (Smith’s sister) to

testify about Smith’s statement that Carr shot Lewis as an excited

utterance.

After a ten-day trial, the jury found Carr guilty of murder. The trial

court followed the jury’s recommendation to sentence Carr to LWOP. Carr

now appeals. This Court has mandatory and exclusive jurisdiction in

criminal appeals where the trial court sentenced the defendant to either

death or LWOP. Ind. Appellate Rule 4(A)(1)(a).

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Standards of Review

This case implicates several standards of appellate review. A de novo

standard applies to federal constitutional issues, such as the Sixth

Amendment right to an impartial jury. See Alford v. State, 699 N.E.2d 247,

251 (Ind. 1998). Although an abuse-of-discretion standard typically

applies to a trial court’s ruling on the admission of evidence, we engage in

de novo review when an alleged “constitutional violation has resulted

from the admission of evidence.” Speers v. State, 999 N.E.2d 850, 852 (Ind.

2013). Whether a witness is unavailable for purposes of the Confrontation

Clause of the Sixth Amendment is a question of law subject to de novo

review. See Fowler v. State, 829 N.E.2d 459, 465–66 (Ind. 2005). 2 And this

Court reviews a trial court’s jury instructions for an abuse of discretion.

Dunn v. State, 230 N.E.3d 910, 914 (Ind. 2024). Finally, the “considerable

deference” a trial court enjoys in its sentencing discretion will prevail on

appeal “unless overcome by compelling evidence portraying in a positive

light the nature of the offense and the defendant’s character.” Lane v. State,

232 N.E.3d 119, 122 (Ind. 2024) (internal quotation marks and citations

omitted).

Discussion and Decision

In resolving this case, our opinion first addresses whether Carr’s Sixth

Amendment right to be tried by a fair cross-section of the community was

violated. We conclude that it was not because Carr has not shown that

African Americans were systematically excluded from jury service in

Wayne County. See infra Section I. Next, Carr argues that the trial court

2 Here, the parties agree that forfeiture by wrongdoing is a constitutional issue reviewed de

novo. In the future, we welcome argument on the standard of review and whether a trial

court’s factual findings in a forfeiture hearing (like whether the wrongdoing caused the

witness’s unavailability) should be reviewed for clear error. See United States v. Carson, 455

F.3d 336, 362 (D.C. Cir. 2006) (“We review the court’s legal conclusions regarding the

Confrontation Clause and Rule 804(b)(6) de novo and its factual findings for clear error.”)

(internal citations omitted) (emphasis added).

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 5 of 21

erred in admitting statements made by Vansickle and Smith. We conclude

that the trial court did not abuse its discretion by admitting Vansickle and

Smith’s statements to police because he forfeited his right to confront

them when he threatened to kill them and their families. See infra Section

II.A. The trial court also did not abuse its discretion in admitting Smith’s

statement to his sister as an excited utterance because Smith was under

the stress of a startling event when he made the statement. See infra

Section II.B. We then address whether the trial court’s failure to provide a

final instruction on article 1, section 19 of the Indiana Constitution

amounted to fundamental error. We hold that it did not because the jury

was instructed on article 1, section 19 in the preliminary instructions, and

the jury was instructed to consider both the preliminary and final

instructions together when making its decision. See infra Section III.

Finally, we address whether Carr’s LWOP sentence should be revised

under Appellate Rule 7(B). We hold that it should not when considering

the nature of the offense and Carr’s character. Carr was on parole when he

killed Lewis, and he killed Lewis to get revenge after Lewis testified

against him in a previous case. See infra Section IV.

I. Carr was not denied his Sixth Amendment right to

be tried by a fair cross-section of the community.

The Sixth Amendment right to a jury trial requires that the jury is

selected from a representative cross-section of the community. Taylor v.

Louisiana, 419 U.S. 522, 528 (1975). To establish a prima facie violation of

the Sixth Amendment’s fair-cross-section requirement when a group is

excluded from the jury, a defendant must show “(1) that the group alleged

to be excluded is a ‘distinctive’ group in the community,” “(2) that the

representation of this group in venires from which juries are selected is

not fair and reasonable in relation to the number of such persons in the

community,” and “(3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.” Duren v. Missouri,

439 U.S. 357, 364 (1979). Here, of the 120 persons called for the venire

panel, sixteen were dismissed without appearing, leaving 104 potential

jurors, only three of which, according to defense counsel, looked to be

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“possible minorities.” Tr. Vol. 2, p. 241. And only one of those three

potential jurors appeared to be African American. Id. African Americans

are a distinctive group in the community to which Duren applies. Fields v.

State, 679 N.E.2d 1315, 1318 (Ind. 1997). But Carr fails to show that any

underrepresentation is due to a “systematic exclusion” of African

Americans in the jury-selection process.

“To prove systematic exclusion, a defendant must demonstrate that a

large discrepancy between the percentage of a certain group in the

community and the percentage of that group in jury panels occurs ‘not

just occasionally,’ but on a regular basis.” Williams v. State, 877 N.E.2d 845,

847 (Ind. Ct. App. 2007) (quoting Duren, 439 U.S. at 366), trans. denied.

Moreover, that consistent exclusion must “be traced to the system by

which juries are selected.” Id. (citing Duren, 439 U.S. at 367). In Duren, the

defendant demonstrated systematic exclusion by showing a large

discrepancy in every weekly venire for nearly a year. 439 U.S. at 366.

To qualify as an eligible juror in a criminal case in the State of Indiana, a

juror must be a citizen of the United States, at least eighteen years of age, a

resident of the summoning county, be eligible to vote, meet certain

competency requirements, and not be a law-enforcement officer. Ind. Jury

Rule 5. Wayne County uses a master jury-pool list which compiles records

from the BMV and Department of Revenue to capture ninety-nine percent

of potential jurors. The system then selects individual jury venires using a

computerized random-selection program. The system has been approved

by this Court. Tr. Vol. 2, p. 244. This list “is more inclusive of Indiana’s

citizens” than previous lists, and “courts have noticed a considerable

increase in the diversity of jury pools” since first implemented in 2006.

Indiana Office of Judicial Administration, Statewide Jury Pool Project,

https://www.in.gov/courts/admin/tech/jury-pool (last visited Feb. 19,

2026). Carr suggested at trial that “voter rolls, property owners, public

assistance records, and maybe school enrollment might be a way to

encompass more of the minority population in the county,” but he does

not provide evidence to back this claim. See Tr. Vol. 3, p. 168. And even if

Carr has shown that this system led to an underrepresentation of African

Americans in his jury venire, he has not shown how the procedure

systemically excludes African Americans from jury venires “on a regular

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basis.” See Williams, 877 N.E.2d at 847. Carr points to the trial court’s

hypothetical statement that it may take “ten in a row draws” before a

“representative group” is selected. Tr. Vol. 2, p. 244. But Carr presents no

evidence that this happens in practice.

Carr also argues that to achieve a “fair cross-section” requires race-

determinative inquiries to ensure that certain groups are not excluded

from the selection process. Appellant’s Br. at 20 (emphasis omitted).

Indiana is one of thirty states that does not collect juror race and ethnicity

data, and the jury questionnaires in Carr’s case did not ask about race. Id.

at 21. Carr argues that failure to collect this data is a failure to mitigate

underrepresentation, and that is a form of systematic exclusion. Id. But not

asking jurors their race on the jury questionnaire after selection isn’t the

same as excluding minorities from being selected to sit on the jury in the

first place. 3

Because Carr only presents his venire and does not show

underrepresentation on a regular basis, Carr did not prove African

Americans are systematically excluded from jury selection.

II. The trial court did not abuse its discretion in

admitting certain out-of-court statements made by

Vansickle and Smith.

The trial court admitted statements Vansickle and Smith made to police

describing the crime. We consider these statements admissible under

Evidence Rule 804(b)(5) because Carr forfeited his right to confront the

3We acknowledge Carr’s point that Duren places a very high burden on defendants. It is

difficult for defendants to access and collect jury-selection information, and, unlike other race-

based challenges such as Batson, Duren does not shift the burden to the State to establish

neutrality. See Bond v. State, 925 N.E.2d 773, 777–78 (Ind. Ct. App. 2010), trans. denied. Carr

argues it might be worth “easing the Duren burden for Hoosiers.” Appellant’s Br. at 20

(quoting Bond, 925 N.E.2d at 778). But Duren is United States Supreme Court precedent on the

Sixth Amendment which we cannot “ease.” Defendants may be afforded more protection

under the Indiana Constitution, but Carr didn’t argue such a claim. In any case, his concerns

on jury-data collection may be better addressed through policy reform.

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witnesses after he threatened to kill them and their families. The trial court

also admitted Smith’s statement to his sister that Carr had shot Lewis. We

find no abuse of discretion in the admission of this statement under the

excited-utterance exception to the rule against hearsay.

A. Vansickle and Smith’s statements to police were

admissible because Carr forfeited his confrontation

rights by wrongdoing.

The Sixth Amendment of the United States Constitution provides that,

“[i]n all criminal prosecutions, the accused shall enjoy the right … to be

confronted with the witnesses against him.” U.S. Const. amend. VI. Under

this right, a witness’s out-of-court testimonial statements may be admitted

at trial only if (1) the declarant is unavailable to testify and (2) the

defendant has had a prior opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 59 (2004). But a defendant can forfeit

his right to confront a witness when his own wrongdoing causes the

witness to be unavailable to testify at trial. Scott v. State, 139 N.E.3d 1148,

1153 (Ind. Ct. App. 2020), trans. denied. The forfeiture-by-wrongdoing

doctrine is also enshrined in our rules of evidence. Indiana Evidence Rule

804(b)(5) provides that a “statement offered against a party that has

engaged in or encouraged wrongdoing that was intended to, and did,

procure the unavailability of the declarant as a witness for the purpose of

preventing the declarant from attending or testifying” is not excluded by

the rule against hearsay (out-of-court statements offered for the truth of

the matter asserted) (emphases added). This protects the integrity of

judicial proceedings. Davis v. Washington, 547 U.S. 813, 833 (2006).

Here, Carr argues that Vansickle and Smith’s statements to police were

inadmissible because he did not have the opportunity to cross-examine

them about the statements, and the statements were inadmissible hearsay.

See Evid. R. 801, 802. We disagree. Vansickle and Smith were unavailable

because Carr threatened to kill them and their families, so he forfeited his

right to confront them and their statements to police are not excluded by

the rule against hearsay.

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1. Vansickle and Smith were unavailable because they

did not appear for trial even after the State made

reasonable efforts to procure their attendance.

First, to admit Vansickle and Smith’s statements to police, the State had

to prove Vansickle and Smith were unavailable. To satisfy the

unavailability requirement, the prosecution must have made a “good faith

effort” to secure the witness’s presence. Jackson v. State, 735 N.E.2d 1146,

1151 (Ind. 2000) (citing Barber v. Page, 390 U.S. 719, 725 (1968)). 4 Whether

the State has satisfied the “good faith effort” requirement is a question of

reasonableness, and the “ultimate question is whether the witness is

unavailable despite good-faith efforts undertaken prior to trial to locate

and present that witness.” Ohio v. Roberts, 448 U.S. 56, 74 (1980), abrogated

on other grounds by Crawford, 541 U.S. at 60; see also Evid. R. 804(a)(5). Here,

the State made reasonable efforts to obtain Vansickle and Smith’s

presence. Police knew Vansickle was a witness in this case and had a

warrant out for her arrest. All local police units were on alert to look for

her. The U.S. Marshals Service also sought search warrants to locate her

phone to try to find her. As for Smith, police attempted to serve him with

a subpoena on multiple occasions. See Berkman v. State, 976 N.E.2d 68, 77

(Ind. Ct. App. 2012) (holding that a witness was “unavailable” for

purposes of admitting deposition testimony where the State subpoenaed

the witness and the witness was avoiding an arrest warrant), trans. denied.

Because the State made reasonable efforts to procure Vansickle and

Smith’s attendance at trial, but they did not appear, they were

unavailable.

4 The State suggests that it need not prove it made a good-faith effort to obtain Vansickle and

Smith’s attendance at trial in a forfeiture-by-wrongdoing case. See Appellee’s Br. at 23 n.8. But

if the State never tries to obtain testimony, then the court doesn’t know if the witness failed to

appear because of the State’s lack of effort or because wrongdoing by the defendant

contributed to their unavailability.

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2. Carr forfeited his right to confront Vansickle and

Smith by threatening to kill them and their families.

The trial court did not err in concluding that Carr forfeited his right to

confrontation when he threatened to kill the potential witnesses and their

families if they testified against him, especially after he already killed the

witness from his prior case.

“[O]ne who obtains the absence of a witness by wrongdoing forfeits the

constitutional right of confrontation.” Davis, 547 U.S. at 833. “The doctrine

is only applicable where, in undertaking the actions that rendered the

witness unavailable, the defendant had in mind the particular purpose of

making that witness unavailable.” Doyle v. State, 223 N.E.3d 1113, 1121

(Ind. Ct. App. 2023). We may “infer a defendant’s intent to silence a

witness from a defendant’s conduct and the natural consequences

thereof.” Id. (internal quotation marks and citation omitted). “The timing

of a defendant’s actions is probative of his or her intent on the issue.” Id. at

1122. “The issue is not the severity of [the party’s] conduct; it is whether

[the party] engaged in conduct that was designed to procure [the

declarant’s] absence and whether that conduct was of such significance

that [the declarant] has been ‘kept back’ from attending depositions or

trial.” Scott, 139 N.E.3d at 1155. The State bears the burden of showing by

a preponderance of the evidence that the defendant forfeited his right to

confrontation. Davis, 547 U.S. at 833.

Here, Detective Thomas Legear testified at the forfeiture-by-

wrongdoing hearing that he interviewed Vansickle a few weeks after

Lewis’s murder. According to his testimony, Carr approached Vansickle

about two days after the murder and said, “If you say anything I will kill

you and your kids.” Tr. Vol. 2, p. 41. Vansickle told Detective Legear that

she was frightened from the threat. Sometime thereafter, Carr posted on

his Facebook page urging Vansickle to “free [him].” Ex. Vol. 1, p. 34. Carr

also sent a letter to his girlfriend at the time, Jannae Cole, instructing her

to tell Vansickle and Smith that he would kill them and their children if

they testified against him. Cole communicated the threat to Vansickle’s

husband and Smith. By threatening to kill Vansickle, Smith, and their

families, Carr engaged in wrongdoing to prevent their testimony. See

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Smoots v. State, 172 N.E.3d 1279, 1287 (Ind. Ct. App. 2021) (holding that the

defendant forfeited his confrontation rights after he instructed two people

to make death threats to a witness if he testified against the defendant).

Carr argues that his threats did not procure Vansickle’s unavailability

because Carr threatened Vansickle five years before trial, and there’s no

evidence that Vansickle knew Carr offered to pay Coe to kill her or that

Vansickle’s husband communicated Cole’s threat to her. Appellant’s Br. at

29. Carr also argues Vansickle failed to appear because she was trying to

avoid her own criminal case. Id. at 34. The State charged Vansickle with

aiding, inducing, or causing Lewis’s murder. Vansickle appeared at

hearings and conferences for three-and-a-half years but then failed to

appear at a status hearing in December 2022. She was a fugitive for five

months before being apprehended about two weeks after the jury

returned a guilty verdict in Carr’s case. So, her unavailability could have

been caused by her avoiding her own trial. Nevertheless, Carr’s threats

were still a significant factor holding Vansickle back from testifying. Carr

went to Vansickle’s place of employment to threaten her and posted on

his Facebook page urging Vansickle to “free [him].” Ex. Vol. 1, p. 34.

Although these threats were made years before trial, Vansickle knew Carr

had killed Lewis for being a witness against him in a previous case, so

Carr’s threats were very serious and Vansickle feared she would also be

killed if she testified. And the fact that Vansickle was apprehended shortly

after Carr’s trial suggests that she was unavailable to avoid testifying in

Carr’s case rather than to avoid her own trial.

As to Smith, Carr had his then-girlfriend Jannae Cole tell Smith that he

and his children would be harmed if he testified against Carr at trial. Cole

testified that she communicated that threat to Smith. Because the threats to

Smith and his family were communicated to Smith, and because Carr had

just killed Lewis for being a witness in his drug case, we can infer that the

threats likely caused Smith to be absent at trial.

Because Vansickle and Smith were unavailable for trial, and because

their unavailability was caused by Carr’s threats, Carr forfeited his right to

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confront them, and Vansickle and Smith’s statements to police are not

excluded by the rule against hearsay. See Evid. R. 804(b)(5).5

3. Even if Carr did not forfeit his confrontation rights,

any error was harmless beyond a reasonable doubt.

Even if admission of Vansickle and Smith’s statements to police

violated Carr’s confrontation rights, the error was harmless beyond a

reasonable doubt. Violations of the Confrontation Clause require reversal

unless “the State can show beyond a reasonable doubt that the error did

not contribute to the verdict.” Koenig v. State, 933 N.E.2d 1271, 1273 (Ind.

2010). To determine whether the State met its burden, we consider several

factors such as the significance to the State’s case of the allegedly

improperly admitted evidence, whether that evidence was “merely

cumulative,” and “whether it was corroborated or contradicted by other

evidence.” Taylor v. State, 271 N.E.3d 559, 563 (Ind. 2025) (citing Koenig,

933 N.E.2d at 1273).

Here, there was significant evidence to support Carr’s murder conviction

and LWOP sentence besides Vansickle and Smith’s statements to police. At

the jury trial, Jannae Cole testified that Carr had told her that he shot

Lewis because he was a confidential informant in his drug case. He also

admitted to Coe in a recorded phone call that he shot Lewis. And,

5 Citing federal precedent, Carr argues that after a finding that a defendant waived his

confrontation rights and objection of hearsay evidence, the trial court “must still perform the

balancing test required” under Evidence Rule 403. Appellant’s Br. at 26 (quoting United States

v. Dhinsa, 243 F.3d 635, 655 (2d. Cir. 2001)). But Carr waived the issue by failing to raise it at

trial. Even if the trial court were required to perform the balancing test, the error was

harmless because the evidence was admissible under Indiana Evidence Rule 403. Under that

rule, the trial court may exclude relevant evidence if its “probative value is substantially

outweighed” by the danger of “unfair prejudice, confusing the issues, misleading the jury,

undue delay, or needlessly presenting cumulative evidence.” Here, the evidence was highly

probative because it identified Carr as the shooter and any prejudice was not “unfair” to Carr.

See Ind. State Police v. Est. of Damore, 194 N.E.3d 1147, 1160 (Ind. Ct. App. 2022) (“Unfair

prejudice looks to the capacity of the evidence to persuade by illegitimate means, or the

tendency of the evidence to suggest decision on an improper basis.”) (internal quotations

marks, brackets, and citation omitted), trans. denied.

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significantly, Carr wrote letters describing the crime in detail. 6 In these

letters, he explains how he was “at the location where Jason Lewis got

shot and his life taken all for doing some rat shit behind [Carr’s] back.” Tr.

Vol. 7, p. 32. He also says in the letters, “A couple of shot[s] went through

his body and I had to chase him. I caught his ass, drawed down on him

then erased him. Twelve was on the scene and found eighteen shell

casings.” Id. And finally, Carr says, “I’m holding court in the streets,” so

“if you ever cross me, the end result is a homicide.” Id. at 32–33. From

these clear admissions of guilt, along with his motive for murdering

Lewis, any violation of Carr’s confrontation rights was harmless beyond a

reasonable doubt. See Jefferson v. State, 399 N.E.2d 816, 819–20 (Ind. Ct.

App. 1980) (holding that any violation of the defendant’s confrontation

rights was harmless beyond a reasonable doubt where the defendant’s

confession was lawfully introduced).

B. Smith’s statement to his sister was admissible as an

excited utterance.

At trial, Smith’s sister, Christina, testified over objection that Smith

identified Carr as the person who shot Lewis. Christina testified that, at

about 2:00 a.m., Smith woke her up, was “freaking out,” and told her that

Carr shot Lewis. Tr. Vol. 4, p. 55. The shooting had occurred at 1:48 a.m. Id.

Carr argues that the trial court erred in admitting the statement under the

excited-utterance exception to the rule against hearsay. 7 Appellant’s Br. at

36–37.

Under Indiana Evidence Rule 803(2), the trial court can admit an

“[e]xcited utterance,” i.e., a “statement related to a startling event or

condition, made while the declarant was under the stress of excitement that

6The State presented testimony from a handwriting expert and Jannae Cole to identify Carr’s

handwriting. See Evid. R. 901.

7At trial, the State argued that Smith’s statement to Christina was also admissible as a

statement of identification, but the State abandoned that claim at oral argument before this

Court. Tr. Vol. 4, p. 48; Evid. R. 801(d)(1)(C); Oral Argument at 25:06–25:21.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 14 of 21

it caused.” To determine whether a statement is an excited utterance, we

consider “whether the declarant was still under the stress of excitement

caused by the startling event when the statement was made.” Noojin v. State,

730 N.E.2d 672, 676 (Ind. 2000) (quoting Yamobi v. State, 672 N.E.2d 1344,

1346 (Ind. 1996)). We consider the circumstances, including the declarant’s

physical and emotional condition, the nature of the startling event, whether

the declarant had the opportunity to cool down, and whether the statement

was made spontaneously. Young v. State, 980 N.E.2d 412, 421 (Ind. Ct. App.

2012); Fowler, 829 N.E.2d at 463. The logic behind admitting excited

utterances is that the startling event and absence of opportunity for cool

reflection make statements more reliable and reduce the likelihood of

fabrication. Ramsey v. State, 122 N.E.3d 1023, 1032 (Ind. Ct. App. 2019) (citing

13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 803.102 at

307–09 (4th ed. 2018)), trans. denied. An excited utterance is not excluded by

the rule against hearsay, regardless of whether the declarant is available as a

witness. Evid. R. 803(2).

Here, the trial court did not abuse its discretion in admitting Smith’s

statement to Christina as an excited utterance. Although Smith made the

statement twelve minutes after the shooting and after being dropped off at

his and Christina’s home, the circumstances suggest that Smith spoke under

the stress of a startling event without time for cool reflection. Smith

experienced a startling event: being implicated in a murder. He then woke

up Christina, was “freaking out” from having been implicated in a murder,

spontaneously told her that Carr shot Lewis, and had little reason to

fabricate the story to his sister. See Noojin, 730 N.E.2d at 676 (holding that the

trial court did not abuse its discretion in admitting a declarant’s statement

that she saw the defendant in the victims’ home as an excited utterance

where she made the statement twenty-five minutes after finding the victims’

bodies but was “nervous, crying, and visibly shaken”); Williams v. State, 546

N.E.2d 1198, 1199 (Ind. 1989) (holding that the trial court did not abuse its

discretion in admitting a three-year-old child’s statement that her “daddy

shot” her mother as an excited utterance because she was still under the

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stress of the startling event and was unlikely to fabricate her statement, even

“several minutes” after the shooting).8

Even if the trial court erred in admitting Smith’s statement to his sister,

the error was harmless. When reviewing an alleged error that is not of

constitutional dimension, the error is harmless if its “probable impact, in

light of all the evidence in the case, is sufficiently minor so as not to affect

the substantial rights of the parties.” App. R. 66(A). “Ultimately, the error’s

probable impact is sufficiently minor when—considering the entire record—

our confidence in the outcome is not undermined.” Hayko v. State, 211

N.E.3d 483, 492 (Ind. 2023).

As discussed above, the State provided significant evidence of Carr’s

guilt, including testimony from Jannae Cole that Carr had admitted to

killing Lewis, Carr’s letters admitting to the crime, and Carr’s motive to get

revenge for Lewis having ratted on him in Carr’s drug-dealing case. This

leaves us confident that admission of Smith’s statement to Christina did not

undermine the outcome in this case. See Hester v. State, 551 N.E.2d 1187, 1192

(Ind. Ct. App. 1990) (holding that erroneously admitted evidence is harmless

when properly admitted evidence supporting the guilty verdict is

“overwhelming”).

8 Carr raises for the first time in his appellant’s brief that Smith’s statement is inadmissible

because he did not have personal knowledge that Carr was the shooter. Appellant’s Br. at 36–

37; see Noojin, 730 N.E.3d at 677 (holding that the declarant’s statement that the defendant

killed the victims was not admissible as an excited utterance because it was based on

conjecture and the excited-utterance exception assumes the statement was “based on the

declarant’s personal knowledge”); see also Evid. R. 602 (“A witness may testify to a matter

only if evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter.”); see also Evid. R. 701 (“If a witness is not testifying as an expert,

testimony in the form of an opinion is limited to one that is: (a) rationally based on the

witness’s perception; and (b) helpful to a clear understanding of the witness’s testimony or to

a determination of a fact in issue.”). Because the issue was not raised at trial, it is waived. Still,

Smith’s statement that Carr was the shooter was based on the fact that he rode with Carr to

the apartment, waited while Carr went to get money from someone, heard gunshots, and was

told by Carr that a “dude tried some slick shit.” Ex. Vol. 1, p. 111. Although he didn’t see the

shooting, Smith’s statements were based on his personal observations rather than pure

conjecture.

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III. The trial court’s instructional error was not

fundamental.

Article 1, section 19 of the Indiana Constitution provides that “[i]n all

criminal cases whatever, the jury shall have the right to determine the law

and the facts.” Here, the trial court tendered a preliminary instruction on

section 19 but failed to give such an instruction during final jury

instructions. Such failure may amount to reversible error. See Warren v.

State, 725 N.E.2d 828, 836–37 (Ind. 2000) (reversing a habitual-offender

determination following a two-day jury trial where the trial court omitted

a proper section 19 final instruction, despite the defendant’s request and

despite having provided such an instruction two days prior). But unlike

the defendant in Warren who tendered a section 19 final instruction, Carr

neither objected to its omission nor tendered his own section 19

instruction, thus waiving the issue for appellate review. See Durden v.

State, 99 N.E.3d 645, 651 (Ind. 2018). Therefore, Carr argues that the

omission of a final section 19 instruction amounts to fundamental error, an

exception to waiver. We disagree.

An error is fundamental error when the error “made a fair trial

impossible or constituted a clearly blatant violation of basic and

elementary principles of due process presenting an undeniable and

substantial potential for harm.” Id. at 652 (quoting Knapp v. State, 9 N.E.3d

1274, 1281 (Ind. 2014)). This Court has previously held that there was no

fundamental error when a trial court failed to explicitly inform the jury

during the habitual-offender stage of trial that it was the judge of the law

and facts when the jury was given similar instructions on more than one

occasion during the first phase of the trial. Clark v. State, 561 N.E.2d 759,

764 (Ind. 1990). This was because “both preliminary and final instructions

are not to be considered in isolation but as a whole and with reference to

each other.” Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994).

Under these facts, the trial court’s failure to give a final section 19

instruction did not amount to fundamental error. Although the jury was

not instructed on section 19 in the final instructions, the jury was still

instructed during the preliminary instructions that it had the “right to

determine both the law and the facts.” Tr. Vol. 3, p. 192. It was then

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instructed in final instructions that it will have copies of the preliminary

and final instructions in the jury room and “to consider all of the

instructions, both preliminary and final, together.” Tr. Vol. 7, p. 45; see

Clark, 561 N.E.2d at 764.

Carr argues that the failure to give a final section 19 instruction

amounts to fundamental error because of the severity of his sentence and

length of his trial. Appellant’s Br. at 40. Carr faces life without the

possibility of parole, which many regard as “equally severe” as the death

penalty. See Wright v. State, 168 N.E.3d 244, 261 n.11 (Ind. 2021) (quoting

Smith v. State, 686 N.E.2d 1264, 1273 (Ind. 1997)). His trial was also

lengthy, lasting ten days and taking twelve days to complete with the

intervening weekend. Considering the length of time between the

preliminary and final instructions, Carr argues the failure to provide a

final instruction on article 1, section 19 was fundamental error. But the

trial court instructed the jury in its final instructions to consider the

preliminary and final instructions together, the jury had copies of the

instructions, and the preliminary instructions included the section 19

instruction. We will presume the jury followed that instruction and

considered section 19 when deliberating. See Weisheit v. State, 26 N.E.3d 3,

20 (Ind. 2015) (“When the jury is properly instructed, we will presume

they followed such instructions.”) (quoting Duncanson v. State, 509 N.E.2d

182, 186 (Ind. 1987)). Therefore, the trial court’s failure to give a final

section 19 instruction here did not deny Carr fundamental due process. 9

IV. Carr’s LWOP sentence is not inappropriate.

Finally, Carr argues his LWOP sentence is inappropriate and asks us to

revise it to an aggregate term of years under Appellate Rule 7(B). We

decline to do so.

9In his appellant’s brief, Carr argued that the failure to provide a final section 19 instruction

amounted to structural error, but he withdrew this argument in his reply brief. Appellant’s

Reply Br. at 16 n.12.

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Under article 7, section 4 of the Indiana Constitution, we have the

power to “review and revise the sentenced imposed” in appeals of

criminal cases. Through Appellate Rule 7(B), appellate courts can “revise a

sentence authorized by statute if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light

of the nature of the offense and the character of the offender.” App. R.

7(B). The purpose of Appellate Rule 7(B) is “to leaven the outliers, rather

than to achieve a perceived ‘correct’ sentence.” Cramer v. State, 240 N.E.3d

693, 698 (Ind. 2024) (quoting McCallister v. State, 91 N.E.3d 554, 566 (Ind.

2018)). “The trial court’s sentence is afforded considerable deference and

will stand unless ‘compelling evidence portraying in a positive light the

nature of the offense (such as accompanied by restraint, regard, and lack

of brutality) and the defendant’s character (such as substantial virtuous

traits or persistent examples of good character).’” Id. (quoting Stephenson

v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

As to the nature of the offense, the murder here was brutal and

calculated. Carr waited years to exact revenge on Lewis for his role as a

confidential informant in Carr’s drug-dealing case. With the help of

Vansickle, Carr lured Lewis to the apartment complex. After only

wounding Lewis with the first shots, Carr chased Lewis through the

apartment building, resulting in a wounded Lewis jumping out a three-

story window. When Carr reached Lewis, he shot at him eighteen times in

a matter of seconds. See Satterfield v. State, 33 N.E.3d 344, 355 (Ind. 2015)

(concluding that the brutal nature of the defendant’s crimes did not

warrant reducing his LWOP sentence after he shot his mother multiple

times and set the house on fire). In addition, the fact that Carr was on

parole and committed this murder to exact revenge for his previous

conviction creates concern that he may seek revenge against other

witnesses if he’s released on parole again. In fact, he threatened to kill

Vansickle and Smith and their families if they testified in this case.

As to his character, Carr argues he had a difficult childhood because

was “born into a toilet,” his mother was addicted to drugs, his father was

intermittently incarcerated, he did not have a stable home life, and he did

not finish high school. Appellant’s Br. at 49–50. But “this Court has

consistently held that evidence of a difficult childhood warrants little, if

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any, mitigating weight.” Ritchie v. State, 875 N.E.2d 706, 725 (Ind. 2007)

(citing Coleman v. State, 741 N.E.2d 697, 703 (Ind. 2000)). Next, Carr’s

delinquent behavior began at age fifteen, including shoplifting, possession

of cocaine, and truancy. Carr’s adult criminal history includes two

misdemeanors and three felonies between the ages of twenty and twenty-

two. Carr characterizes these acts as “relatively minor and non-violent.”

Appellant’s Br. at 50. Still, Carr’s delinquent and criminal history weigh

against his character when assessing his 7(B) claim. See Prince v. State, 148

N.E.3d 1171, 1174 (Ind. Ct. App. 2020) (“Even a minor criminal history is a

poor reflection of a defendant’s character.”).

By “holding court in the streets” and seeking revenge against Lewis

after he testified in Carr’s last trial, Carr has shown blatant disregard for

the rule of law. See Tr. Vol. 7, p. 33. For these reasons, we decline to revise

Carr’s LWOP sentence to a term of years under Appellate Rule 7(B).

Conclusion

Finding no violation of Carr’s constitutional rights, no error in the

admission of evidence, no error in the jury instructions, and no error in

Carr’s sentence, we affirm Carr’s conviction for murder and his LWOP

sentence.

Rush, C.J., and Massa, Slaughter, and Molter, JJ., concur.

ATTORNEY FOR APPELLANT

Michael C. Cunningham

Baldwin, Perry & Wiley, P.C.

Franklin, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 20 of 21

Kelly A. Loy

Deputy Attorney General

Indianapolis, Indiana

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