Carter v. State

424 N.E.2d 1047, 1981 Ind. App. LEXIS 1588

Opinions

GARRARD, Judge.

Carter was tried by jury and convicted of reckless homicide and causing death by operating a motor vehicle while intoxicated.

He first asserts error in admitting into evidence inculpatory conversations had with the police at the hospital after the accident and then two or three days later at the police station. The evidence was properly admitted. On neither occasion was Carter in custody and both times he was given Miranda warnings. The other circumstances were such that the court could properly conclude that the statements were knowingly, voluntarily and understandingly given.

Officer Basiger was properly qualified as an expert witness. He was therefore properly permitted to state his opinion of excessive speed. In addition, the diagram he prepared was properly admitted in evidence since it simply displayed visually the matters the officer was entitled to testify to.

Moreover, the evidence was sufficient under both counts. There was ample evidence, including the opinion of Dr. Peterson, that Carter was intoxicated. That coupled with the apparent speed and manner in which the vehicle swerved off both sides of the road prior to striking the tree would support the inference of recklessness.

There is, however, one additional point. As noted at the outset the jury convicted on both counts. The court ultimately sentenced Carter to serve two (2) years for each conviction with the sentences to be served consecutively. This was fundamental error.

We are aware, of course, that Indiana has rejected the “one set of operative circumstances” approach to the double jeopardy consideration in convictions for multiple offenses. See, e. g., Morris v. State (1980), Ind., 398 N.E.2d 1284. Instead we follow the analysis prescribed in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 which focuses upon whether each offense requires proof of an element that the other does not. Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893.

The details of that analysis are, however, entirely beside the point for the case at hand. There was here but one homicide, and that was the gravamen of the offense. It matters no more that Carter was both intoxicated and driving recklessly in causing his passenger’s death than it would have had Carter poisoned him, stabbed him and thrown him from a high bridge. The means of committing an offense may not be utilized to multiply the number of offenses committed. Only one homicide was committed and only one sentence may be imposed. Bond v. State (1980), Ind., 403 N.E.2d 812; Bean v. State (1978), 267 Ind. 528, 371 N.E.2d 713.

The case is therefore remanded to the trial court with instructions to vacate one of the sentences. In all other respects the conviction is affirmed.

HOFFMAN, P. J., concurs. STATON, J., concurs and files separate opinion.