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Feb. 24, 2026 Get Citation Alerts Download PDF Add Note

Michael Carr v. State of Indiana

Indiana Supreme Court

• Citations: None known
• Docket Number: 23S-LW-00139
• Panel: Mark S. Massa, Loretta H. Rush
• Judges: Rush, Massa, Slaughter, Goff, Molter

• Disposition: Affirmed

• Opinion

• Authorities (37)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.4K)

• PDF

Disposition

Affirmed

Combined Opinion

                        by Justice Goff

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.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 2 of 21
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

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 3 of 21
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).

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 4 of 21
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

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 6 of 21
“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

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 7 of 21
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.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 8 of 21
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.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 9 of 21
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.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 10 of 21
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

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 11 of 21
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

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 12 of 21
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

1. 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.

Indiana Supreme Court | Case No. 23S-LW-139 | February 24, 2026 Page 13 of 21
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

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Kelly A. Loy
Deputy Attorney General
Indianapolis, Indiana

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