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ATTORNEY FOR APPELLANT
Ellen M. O'Connor Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Steve Carter Attorney General of Indiana Robyn M. Williamson Deputy Attorney General Indianapolis, Indiana

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In the

Indiana Supreme Court
_________________________________ No. 49S00-0407-CR-324 CURTIS COOPER, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below). _________________________________ On Direct Appeal from the Marion Superior Court Criminal Division, No. 49G02-0204-MR-106697 The Honorable Robert Altice, Judge _________________________________ October 5, 2006 Rucker, Justice.

A jury convicted Curtis Cooper of murdering Selena Orum and recommended a sentence of life without parole. The trial court followed the jury's recommendation. In this direct appeal Cooper argues that the State engaged in prosecutorial misconduct requiring the reversal of his conviction and sentence. We affirm the conviction but remand for a new sentencing phase of trial.

Facts and Procedural History

Cooper began dating Selena in March of 2000. On December 30th of that year, they started arguing when Cooper discovered that Selena had been talking to another man. The argument escalated into a physical altercation during which Cooper "grabbed her by her hair, [and] drug her to the top of the stairs. Once they got at the top of the stairs he took his boot and kicked her in her mouth. He then drug her down the stairs by the hair." Tr. at 60. Police apprehended Cooper only after he led them on a high-speed chase at speeds approaching 100 miles per hour. As a result, Cooper was charged and pleaded guilty to resisting law enforcement as a Class D felony and domestic battery as a Class A misdemeanor. On February 19, 2001, Cooper was sentenced to a total term of 545 days, 494 days of which were suspended, and 365 days ordered to be served on probation. See Ex. at 43.

On the evening of April 8, 2001, after discovering some misplaced items in Selena's garage and not being able to reach her on her cell phone, several of Selena's family members filed a missing persons report and police began an investigation. Tr. at 227-34. On April 10, two of Cooper's friends saw what appeared to be Selena's sports utility vehicle in the parking lot of a housing complex. Noting a small hole in the passenger door and observing what appeared to be something covered up in the cargo area, Cooper's friends called the police. Selena's body was discovered in the vehicle wrapped in a blanket. She had been shot five times, twice in her chest, once in her abdomen, and twice in her upper thigh. See id. at 526-39.

About a year later, the State charged Cooper with murder, auto theft as a Class D felony, and possession of a handgun without a license as a Class A misdemeanor. The State also filed a request for life without parole listing as an aggravator that Cooper was on probation for resisting law enforcement at the time the murder was committed. After a four-day jury trial that began May 17, 2004 the jury found Cooper guilty as charged. The following day the jury reconvened for the penalty phase of trial, after which the jury found that Cooper intentionally killed Selena and that the State proved the charged aggravator beyond a reasonable doubt. The jury also found that Cooper's proffered mitigating circumstances were outweighed by the charged aggravator. The jury thus recommended life imprisonment without parole, and the trial court sentenced

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Cooper accordingly. Cooper appeals, challenging his conviction and sentence for murder. 1 Pursuant to Indiana Appellate Rule 4(A)(1)(a) this Court has mandatory and exclusive jurisdiction over the appeal.

Discussion

Pointing to various remarks made by the deputy prosecutors during closing arguments in both the guilt and penalty phases of trial, Cooper complains the State engaged in prosecutorial misconduct. Cooper concedes that he did not object to the prosecutors' remarks but contends they placed him in a position of grave peril thus justifying a new trial.

In reviewing a properly preserved claim of prosecutorial misconduct, we determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2000). Whether a

prosecutor's argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. See Mahla v. State, 496 N.E.2d 568, 572 (Ind. 1986). The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct. Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001).

When an improper argument is alleged to have been made, the correct procedure is to request the trial court to admonish the jury. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind. 2004); Brewer v. State, 605 N.E.2d 181, 182 (Ind. 1993). If the party is not satisfied with the

admonishment, then he or she should move for mistrial. Dumas, 803 N.E.2d at 1117. Failure to request an admonishment or to move for mistrial results in waiver. Id. Where a claim of
In a two-sentence concluding paragraph Cooper also contends that he is entitled to reversal of his convictions for auto theft and possession of a handgun without a license. See Appellant's Br. at 19. We first observe the record shows the State dismissed the handgun charge following the jury's life without parole verdict. See Tr. at 1165. In any event, because Cooper's contention is supported neither by cogent argument nor citation to authority, it is waived. See Ind. Appellate Rule 46(A)(8)(a) (requiring argument be supported by coherent reasoning with citations to authority); Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (observing that failure to present a cogent argument or citation to authority constitutes waiver of issue for appellate review).
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prosecutorial misconduct has not been properly preserved, our standard for review is different from that of a properly preserved claim. More specifically, the defendant must establish not only the grounds for the misconduct but also the additional grounds for fundamental error. Booher, 773 N.E.2d at 817; see also Johnson v. State, 725 N.E.2d 864, 867 (Ind. 2000) (A party's failure to present a contemporaneous trial objection asserting prosecutorial misconduct results in waiver of appellate review.). Fundamental error is an extremely narrow exception that allows a It is error that makes "a fair trial impossible or

defendant to avoid waiver of an issue.

constitute[s] clearly blatant violations of basic and elementary principles of due process . . . present[ing] an undeniable and substantial potential for harm." Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002). Because Cooper contends the prosecution engaged in misconduct in both the guilt and penalty phases of trial, we address each phase separately.

I. Guilt Phase of Trial

Cooper's complaint concerning this phase of trial is based on the following statements: You can tell what kind of person Curtis Cooper is, he's a back shooter and a woman beater. It didn't mean anything to him to shoot Selena in the back, he'd used her as a punching bag before. So why not? Why not? When he shot the life out of her and left her dead there on the ground

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