ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin C.C. Wild Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
)
JESSE MURPHY, )
Defendant-Appellant, )
)
v. ) 49S00-0006-CR-370
)
STATE OF INDIANA, )
Plaintiff-Appellee. )
)
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael Jensen, Judge
Cause No. 49G20-9908-CF-147681
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On Direct Appeal
May 23, 2001
DICKSON, Justice
The defendant, Jesse Murphy, was convicted of dealing in cocaine,[1]
possession of cocaine,[2] and two counts of resisting law enforcement.[3]
He seeks appellate relief based on claims that the evidence presented at
trial resulted from a suspicionless investigatory stop and that the State's
closing argument was improper. We affirm the convictions.
The defendant contends that the police officer lacked reasonable
suspicion to conduct an investigatory stop. The trial court denied the
defendant's motion to suppress, and the defendant reiterated his objection
at trial. In reviewing the trial court's decision, we consider the
evidence favorable to the trial court's ruling and any uncontradicted
substantial evidence to the contrary to determine whether there is
sufficient evidence to support the ruling. Ogle v. State, 698 N.E.2d 1146,
1148 (Ind. 1998); Vance v. State, 620 N.E.2d 687, 691 (Ind. 1993). We will
set aside the findings of the trial court only if they are clearly
erroneous. Ind.Trial Rule 52(A).
Under the Fourth Amendment to the United States Constitution, a
seizure of the individual does not occur until "the officer, by means of
physical force or show of authority, has in some way restrained the liberty
of a citizen." Terry v. Ohio, 392 U.S. 1, 20 n.16, 88 S.Ct. 1868, 1879
n.16, 20 L.Ed.2d 889, 905 n.16 (1968). The United States Supreme Court has
subsequently interpreted that requirement in Terry to mean that seizure
does not occur when the suspect fails to yield to law enforcement
authority. California v. Hodari D., 499 U.S. 621, 624-26, 111 S.Ct. 1547,
1550, 113 L.Ed.2d 690, 695-697, (1991).[4] But if a seizure occurs, the
police may briefly detain an individual if under the totality of the
circumstances the officer has a reasonable suspicion that the individual is
engaged in or is about to engage in criminal activity. United States v.
Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989);
Terry, 393 U.S. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911.
At approximately 3:00 a.m., two officers in separate marked squad
cars were patrolling a high crime area. As the officers drove northbound,
they observed the defendant leaning into a car through the open driver's
side door. The defendant looked in the direction of the police and, with a
surprised expression, shut the car door and moved to a darkened area
between two houses. Both officers stopped their cars, and one officer
approached the defendant to investigate. The officer asked the defendant
to stop. The defendant began to walk toward the officer with his hand in
his pocket. Before reaching the officer, the officer asked him to remove
his hand, and the defendant threw a baggie with a white substance in it
onto the porch of one of the houses then turned and fled. The officer
testified that he suspected the substance to be cocaine. At that time the
defendant and the officer were about ten feet apart, and there was light
from the street. The officers gave chase. One of the officers attempted
to tackle the defendant, but, after dropping a second, larger bag of white
substance, the defendant continued to run. The officers were subsequently
able to subdue him.
The trial judge found this case "very similar" to Hodari D. and
concluded that the initial encounter between the police and the defendant
was not an illegal stop because there had been no physical seizure or a
submission to authority. Record at 139-40. This finding is supported by
the evidence and is not clearly erroneous. The trial judge also found that
even if the attempted tackle by one of the officers was considered a
seizure, the officers had reasonable suspicion, if not probable cause, to
seize the defendant at that point. Id. at 140-41. We agree. The trial
court did not err in denying the defendant's motion to suppress.
In the defendant's second issue on appeal he argues that a statement
by the prosecutor during closing argument constituted misconduct because it
tended to shift the burden of proof onto the defendant.[5] There was no
objection at trial. Appellate recourse is not available for the review of
alleged trial misconduct when the complaining party fails to timely object
at trial. Stevens v. State, 691 N.E.2d 412, 420 (Ind. 1997). The
defendant argues that the misconduct constituted "fundamental error," a
doctrine under which an appellate claim may be considered notwithstanding
the failure of contemporaneous trial objection. For this exception to
apply, however, the alleged misconduct must have so prejudiced the
defendant's rights as to make a fair trial impossible. Id. We decline to
find fundamental error here.
The defendant's convictions are affirmed.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
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[1] Ind.Code § 35-48-4-1.
[2] Ind.Code § 35-48-4-6.
[3] Ind.Code § 35-44-3-3.
[4] The defendant's brief refers to Article 1, Section 11 of the
Indiana Constitution, but offers no argument differentiating its protection
from unreasonable search and seizure from that provided by the Fourth
Amendment, and we therefore address only the federal claim.
[5] The defendant challenges the following statement by the prosecutor
during closing argument: "So, was he going to deliver it to . . . was he
gonna sell on the street himself? Maybe so, it was certainly ready to go
like that. There's absolutely nothing to say that it wasn't ready for
that." Record at 234.