ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MARCEILUS ABEL, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 49S00-0011-CR-709
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-0001-CF-6222
ON DIRECT APPEAL
August 20, 2002
RUCKER, Justice
Marceilus Abel was convicted of murder and carrying a handgun without
a license for which he was sentenced to an aggregate term of sixty-five
years. In this direct appeal, Abel raises two issues for our review, which
we rephrase as: (1) did the trial court err in denying Abel’s motion to
suppress evidence; and (2) did the trial court err in failing to find
relevant mitigating factors when imposing sentence. Finding no error, we
affirm.
Facts
The facts most favorable to the verdict show that in the evening
hours of January 7, 2000, Sam Turner and Michelle Sullivan went to a house
on Rural Street in Indianapolis to purchase cocaine. While there, they
purchased the drugs from a person known to them by a nickname and later
identified as Abel. Running out of money but wanting more drugs, the
couple left to get additional funds. They unsuccessfully attempted to
obtain money from an ATM machine. Ultimately, Turner borrowed $120.00 from
his employer and returned to the Rural Street address. Although the record
is unclear, it appears that Turner gave Abel $120.00 for drugs but owed him
an additional $40.00. Abel began demanding the $40.00 and produced a
handgun to show Turner that he was serious. Saying that he could get the
money from an ATM machine, Turner left the house. Abel followed. A few
minutes later, Sullivan heard something that “sounded like a car
backfiring, or a gun popping off . . . .” R. at 816. Shortly thereafter,
a security guard discovered Turner slumped over in the driver’s seat of his
car. He was rushed to the hospital but later died as a result of a single
gunshot wound to the chest. A shell casing was found in close proximity to
the car.
In the meantime, in what appeared to be an unrelated incident, Abel
was arrested for resisting law enforcement and carrying a handgun without a
license. Subsequent tests revealed that the bullet retrieved from Turner’s
body during an autopsy and the shell casing found near the scene were fired
from the same handgun seized from Abel during a pat-down search for
weapons. Abel was eventually arrested and charged with murder and carrying
a handgun without a license. After a trial by jury, he was convicted as
charged and later sentenced to an aggregate term of sixty-five years. This
appeal followed. Additional facts are set forth below.
Discussion
I.
Abel filed a pre-trial motion to suppress as evidence the handgun
officers seized from him. After a hearing, the trial court denied the
motion. At trial, the handgun was introduced into evidence over Abel’s
timely objection. He claims error contending the search and seizure
violated the Fourth Amendment to the United States Constitution and Article
I, Section 11 of the Indiana Constitution.[1] According to Abel, his
Fourth Amendment right to be free from unreasonable searches and seizures
was violated when officers conducted a pat-down search for weapons.
The facts are these. In the early morning hours of January 8, 2000,
Indianapolis Police Officer Charles Lewis was on routine patrol in the
Rural Street area when he observed a car driving with its bright lights on.
Because this was an infraction,[2] the officer decided to make a routine
traffic stop and give the driver a ticket. He followed the car at a
distance and watched as it pulled into a store parking lot. The store was
not yet open for business. Officer Lewis observed one of the two
passengers exit and engage a third party in an animated conversation. As
the officer approached, both persons fled the scene, and the car drove
away. Officer Lewis then decided to investigate further and signaled the
car to pull over. The driver initially complied, but as the officer exited
his patrol car, the driver abruptly sped away. The officer pursued and
radioed for assistance announcing that he thought a possible robbery had
been or was about to be committed. When the car eventually crashed in an
alley, both the driver and the passenger fled on foot. Officer Lewis ran
after the driver and radioed a description of the clothing and a physical
description of the passenger.
Fellow officers Daryl Patton and Matthew Stevenson were on patrol when
they heard the radio dispatch and observed a man in the immediate area
matching the description. He was walking along the street and immediately
approached a house where he knocked on the door. When asked his business
at the house, the man replied it was the home of a friend. Later
investigation revealed that the owner of the house was not acquainted with
the man, who was later identified as Abel. In any event, the officers told
Abel to approach the squad car and began a pat-down search for weapons. As
they did so, the officers asked if he was armed, to which he responded
affirmatively. The officers then seized a handgun from Abel’s waistband.
Later identified by Officer Lewis as the passenger who had fled from the
car, Abel was arrested for resisting law enforcement and carrying a handgun
without a license.
Abel does not challenge the propriety of the initial stop. He
concedes the stop itself was reasonable in that he “fit the general
description of the sought-after person, was in the general area, and it was
the early morning hours . . . .” Br. of Appellant at 14. Abel is correct.
See Murphy v. State, 747 N.E.2d 557, 559 (Ind. 2001) (finding reasonable
suspicion to support stop in part because defendant was in a high crime
area at 3:30 a.m. and ran between two houses when he saw the officers);
Johnson v. State, 710 N.E.2d 925, 927-28 (Ind. Ct. App. 1999) (finding
reasonable suspicion to support stop where the defendant fit the general
description of the suspect who had fled from the police and was stopped
within the perimeter set up by the police). Abel complains, however, that
the subsequent pat-down search was not reasonable because “[n]o information
had been broadcast that the man sought was armed . . . .” Br. of Appellant
at 14. Terry v. Ohio, 392 U.S. 1 (1968), permits:
a reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has probable
cause to arrest the individual for a crime. The officer need not be
absolutely certain that the individual is armed; the issue is whether
a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.
Id. at 27. In determining whether the officer acted reasonably under the
circumstances, due weight must be given not to his inchoate and
unparticularized suspicion or “hunch,” but to the specific reasonable
inferences which he is entitled to draw from the facts in light of his
experience. Id.
The record shows that Officers Patton and Stevenson believed they
were on the lookout for a fleeing suspect who had just been involved in a
robbery. Although there is no evidence in this record that a robbery had
in fact occurred, Officer Lewis had broadcast that he thought a robbery had
occurred or was about to occur. It was this information to which Officers
Patton and Stevenson were reacting. Whether Officer Lewis was reasonably
justified in his belief concerning a possible robbery suspect has no
bearing on whether his fellow officers were entitled to rely upon his
representation. See Moody v. State, 448 N.E.2d 660, 663 (Ind. 1983)
(holding that where police officers act in good faith reliance on a radio
dispatch that a crime has been committed, there is no need to show that the
source of the dispatcher’s information is reliable); see also Russell v.
State, 519 N.E.2d 549, 551-52 (Ind. 1988) (finding investigatory stop
warranted where the officer heard a radio dispatch that a possible robbery
had been committed and the defendant matched the description relayed in the
dispatch).
It is true that not every robbery is committed while armed with a
deadly weapon. However, an “officer need not be absolutely certain that
the individual is armed.” Terry, 392 U.S. at 27. In this case,
considering the early morning high-speed chase by car and then the chase on
foot, a reasonably prudent officer would be warranted in the belief that
his safety or that of others was in danger. Id. Accordingly, Officers
Patton and Stevenson did not violate Abel’s Fourth Amendment right to be
free from unreasonable searches and seizures by conducting a pat-down
search for weapons and seizing Abel’s handgun. In turn, the trial court
properly admitted the handgun into evidence.
II.
Finding one aggravator, the nature and circumstances of the crime, in
that “a human life was equated with a forty dollar drug debt,” the trial
court sentenced Abel to the maximum term of sixty-five years. R. at 978.
The trial court found no mitigating factors. Abel contends the trial court
did not “adequately support” the sentence it imposed. Br. of Appellant at
17. In so doing he does not challenge the propriety of the sole
aggravating factor the trial court relied on to enhance his sentence. See
Smith v. State, 675 N.E.2d 693, 698 (Ind. 1996) (noting that the particular
circumstances of a crime can be an aggravating circumstance); see also
Sherwood v. State, 702 N.E.2d 694, 699 (Ind. 1998) (observing that only one
valid aggravating factor is necessary to enhance the presumptive sentence).
Rather, Abel complains the trial court failed to give adequate weight to
his proffered mitigating factors. For example, Abel points out that he has
only one prior misdemeanor conviction, that he expressed remorse and
apologized to the victim’s family, and that his young daughter will grow up
without a father.
A finding of mitigating factors is well within the discretion of the
trial court. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind. 2000).
Further, a trial court is not obligated to weigh or credit the mitigating
factors the way a defendant suggests they should be weighed or credited.
Id.; Shields v. State, 699 N.E.2d 636, 639 (Ind. 1998). Only when a trial
court fails to find a mitigator that the record clearly supports does a
reasonable belief arise that the mitigator was improperly overlooked.
Georgopulos, 735 N.E.2d at 1145; Shields, 699 N.E.2d at 639-640.
The record shows that the trial court considered Abel’s remorse:
“Mr. Abel, I have to give you credit for writing a letter to the family
because I frankly didn’t think you were going to do anything like that . .
. .” R. at 977. However, the trial court did not give Abel’s remorse any
mitigating weight. The same is true of Abel’s lack of criminal history:
Your attorney has argued that I should consider your lack of criminal
history as a mitigator. If [you] had no criminal history, I’d
consider it a mitigator but I will reject that on the basis that [you]
have some criminal history and it involved temper and it involved a
confrontation with another human being . . . .
R. at 977-78. As for the hardship that will result to his child from
incarceration, Abel does not explain how his incarceration for the maximum
sentence will result in more hardship to his daughter than his
incarceration for the presumptive or minimum sentence. Indeed, the
difference here between the presumptive or minimum sentence and the
enhanced sentence “hardly can be argued to impose much, if any, additional
hardship on the child.” Battles v. State, 688 N.E.2d 1230, 1237 (Ind.
1997). The trial court correctly declined to give this factor any
mitigating weight. In sum, the trial court did not err in imposing
sentence.
Conclusion
We affirm the trial court.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs except as to sentence.
-----------------------
[1] Because Abel presents no authority or independent analysis
supporting a separate standard under the state constitution, any state
constitutional claim is waived. Williams v. State, 724 N.E.2d 1093, 1097
n.5 (Ind. 2000).
[2] See Ind. Code § 9-21-8-51 (failing to dim bright lights when
meeting another vehicle or pedestrian is a Class B infraction).