Lead Opinion
OPINION
Case Summary
Mario McCann (“McCann”) was charged and convicted of Attempted Murder,
Issues
McCann raises four issues on appeal, which we restate as follows:
I. Whether the photo array shown to the identifying witnesses was unduly suggestive and whether their subsequent in-court identifications were improper;
II. Whether the State committed prosecutorial misconduct in its closing argument;
III. Whethеr the trial court properly instructed the jury on Attempted Rape; and,
IV. Whether McCann’s sentence was manifestly unreasonable.
Facts and Procedural History
The facts most favorable to the judgment are as follows. On the evening of August 2, 1997, McCann approached and talked to A.L. (“A.L.”) and Anthony Dozier (“Dozier”) at their home at 38th Street and College Avenue in Indianapolis. After McCann left, A.L. went upstairs and fell asleep in her bed with the television on. When A.L. awoke McCann was in her bedroom. McCann tried to pull her covers off and told her he had a gun that he would use if she was not quiet. Additionally, McCann touched A.L.’s breasts and stated “shut up, it [won’t] take very long, and then [I’ll] leave [you] alone.” A.L. viewed McCann’s face for approximately ten minutes. A.L.’s boyfriend, Dozier, then entered the bedroom, saw McCann, and began to struggle with McCann. During this struggle, McCann shot Dozier in the chest. McCann then left through the bedroom window. Dozier viewed McCann’s face for approximately five minutes. An upstairs neighbor called the police.
Detective Lawrence Cahill (“Detective Cahill”), of the Indianapolis Police Department, responded to.the police radio call, and conducted the investigation of the crime. A.L. described McCann as a young black male approximately five feet ten inches in height, and other residents of the apartment and neighbors indicated to Detective Cahill that the suspect’s first name was Mario. From a police database, Detective Cahill printed out photographs comprised of black males named Mario. Then, after eliminating pictures from suspects that were in the database more than
Prior to trial, McCann moved to suppress A.L.’s and Dozier’s in-court identifications of him. McCann argued that the out of court identification procedures were unduly suggestive. The trial court denied this motion. During trial, McCann renewed his objections to A.L.’s and Dozier’s in-court identifications. These objections were denied.
McCann was found guilty on all three charged offenses. The trial court cited four aggravating circumstances and no mitigating circumstances. The trial court sentenced McCann to fifty years for each offense, with the Attempted Murder conviction and Burglary conviction to run consecutively and the Attempted Rape conviction to run concurrently. McCann was sentenced to a total executed sentence of one hundred years.
Discussion and Decision
I. Photo Array and Inr-Court Identification
A. Rule of Law
Due process of law under the Fourteenth Amendment to the United States Constitution requires suppression of testimony concerning a pretrial identification when the procedure employed is im-permissibly suggestive. Harris v. State,
B. Analysis
Here, prior to trial, A.L. described the perpetrator as a young black male approximately five feet ten inches in height with a short haircut. Dozier offered a similar description, adding that the perpetrator was dark complected. A.L. and Dozier also indicated that they had previously seen the perpetrator when he approached them on the front porch of their apartment. A.L. further testified that she viewed the perpetrator’s face for approximately ten minutes on the night of the incident, and Dozier stated that he viewed the perpetrator’s face for approximately five minutes while the two struggled. Thus, both witnesses had a good opportunity to view the perpetrator, and reason to be attentive.
After Detective Cahill compiled thirty-two pictures of young black males with the first name of Mario, he showed this array of photos to both A.L. and Dozier on separate occasions and outside of each other’s presence. While this photographic array included young black males with varying physical attributes, including different hair lengths and complexions, McCann did not “stand out so strikingly” so as to render the process impermissibly suggestive. Pierce,
II. Prosecutorial Misconduct — Closing Argument
A. Rule of Law
Before this Court will consider a claim of prosecutorial misconduct, the defendant must have made a timely objection to the alleged misconduct at trial to secure that issue for review, as failure to so object waives the issue. Stevens v. State,
B. Analysis
In the instant case, McCann complains that the prosecutor engaged in misconduct in closing argument in several respects: “[b]y asserting her personal belief that her witness was being truthful[;] by misstating the role of defense counsel[;] and[,] by urging the jury to convict based on the Appellant’s supposed personality.” (Appellant’s brief at 14.) Specifically, McCann references the following excerpts from the proseсutor’s closing argument: (1) after summarizing the testimony of the victims, the prosecutor stated “they didn’t ask for this. All they’re asking is that you believe what they tell you.” (Appellant’s brief at 16; R. 558); (2) after summarizing Detective Cahill’s testimony, the prosecutor stated “Detective Cahill, he’s a good detective ... He does not refer to photos to individuals looking at them as mugshots ... He doesn’t taint photo arrays in that way ... [he] doesn’t want to present cases to the prosecutor that are on hedgy bets.” (Appellant’s brief at 16; R. 574-75); (3) commenting on the role of defense counsel, the prosecutor stated in part “there’s a lot of smoke here ... [defense counsel’s] job is to take you away from what you hear and point you to little details ... ”; and, (4) commenting on McCann’s character, the prosecutor stated “[McCann] didn’t care whether [the victims] were dead or alive, because all that mattered to him was Mario McCann ... Because the only thing in this world that matters to Mario McCann is Mario.” (Appellant’s brief at 17; R. 579.) McCann did not object to any of these allegedly improper closing comments. Ordinarily, such a failure would cause these issues to be waived. See Charlton,
While considered as a whole the prosecutor’s closing statements may have pushed the bounds of zealous advocacy, we find nothing about the statements to be so egregious as to rise to fundamental error. A “claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury’s decision.” Wrinkles v. State,
III. Attempted Rape — Instructions
A. Standard of Review
The well-settled standard by which we review challenges to jury instructions affords great deference to the trial court. State v. Snyder,
B. Analysis
Here, during final instructions, and over McCann’s objection, the trial court read the following Attempted Rape instruction:
A person attempts to commit a crime when he knowingly engages in conduct that constitutes a substantial step toward the commission of the crime.
The crime of Rape is defined by statute as follows:
A person who knowingly has sexual intercourse with a member of the opposite sex when the other person is compelled by force or imminent threat of force commits rape. The offense is a Class A felony if it is committed while armed with a deadly weapon.
The elements of this offense are that the Defendant must:
1. Knowingly
2. Have sexual intercourse
3. With a member of the opposite sex
4. By compelling the other person with force or the imminent threat of force
5.While armed with a deadly weapon.
The term “sexual intercourse” as used herein means an act that includes any penetration of the female sex organ by the male sex organ.
(R. 128.) Following the analysis of our supreme court in Richeson v. State,
Indiana’s attempt statute provides in part that “[a] person attempts to commit a crime when, acting with the culpability required for the commission of that crime, he engages in conduct that constitutes a substantial step toward the commission of the crime.” Ind.Code § 35-41-5 — 1(a) (emphasizing the same language as in Richeson). The culpability required for Rapé is “knowingly or intentionally.” Ind. Code § 35-42-4-1. This language of the Attempt statute and the applicable culpability for Rape, “knowingly or intentionally,” mirror that considered by our supreme court in Richeson. In Richeson, the defendant faced a charge of Attempted Battery and the trial court instructed the jury that the requisite mens rea the State needed to establish was “knowingly or intentionally.” Richeson,
We conclude that the special precautions we took in Spradlin are not warranted for lesser offenses. We hold, therefore, that the attempt statute permits an instruction that the jury may*1005 convict upon proof that the defendant took a substantial step toward a knowing battery.
Richeson,
TV. Sentencing
Finally, McCann asserts that the sentence he received as a result of his convictions was manifestly unreasonable “because the trial court erroneously considered aggravating factors; the trial court failed to find mitigating circumstances of an abusive childhood and undue hardships to dependents; and the trial court did not balance the aggravating and mitigating circumstances in its sentencing.” Appellant’s brief at 22.
A. Standard of Review and Rule of Law
Sentencing decisions rest within the sound discretion of the trial court, and we will review sentencing only for an abuse of that discretion. Archer v. State,
Article 7, Section 6 of the Indiana Constitution charges this Court with the responsibility to review and revise sentences “to the extent provided by rule.” Indiana Appellate Rule 17(B) in turn provides as follows:
The reviewing court will not revise a sentence authorized by statute except where such sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender.
A sentence is manifestly unreasonable when it is clearly, plainly and obviously so. Evans v. State,
B. Analysis
Here, McCann was sentenced to the maximum of fifty years for each of his three class A convictions. See Ind. Code § 35-50-2-4. The Attempted Murder conviction and Burglary conviction were ordered to run consecutively, and the Attempted Rape conviction to run concurrently. Thus, McCann was sentenced to a total executed sentence of one hundred years. The trial court supported the enhanced and consecutive sentencеs by identifying the following aggravators in its sentencing statement:
One, the defendant has a prior history of criminal conduct. The Court considers just those matters contained in the pre-sentence report which reduce to a conviction or true finding as a juvenile. Also, that prior attempts to rehabilitate the defendant have been unsuccessful ... Third, that the injuries to the victim, Mr. Dozier, have resulted in some permanent impairment to him. Fourth, ...*1006 the facts of this case are particularly aggravating. The case involves a home invasion of a residence for the purpose of committing the crime of rape. That the defendant attempted this matter while she was pregnant. And that these offenses or series of acts involves multiple victims!.]
(R. 609.) We review the aforementioned sentencing statement by analyzing the trial court’s reasoning for each alleged aggra-vator.
1.Criminal History
Ind.Code § 35 — 38—1—7.1(b)(2) provides that a person’s history of criminal or delinquent activity may be used to support the finding of an aggravating circumstance to enhance a sentence. Because some statements of aggravating circumstances are merely conсlusory they must be substantiated by specific facts. For example, if a defendant has a history of criminal activity, the incidents comprising such activity should be recited.
Jones v. State,
2.Rehabilitation
The trial court also sought to invoke the correctional and rehabilitative treatment aggravating circumstance. See Ind.Code § 35-38-l-7.1(b)(3). However, the trial court simply stated, “that prior attempts to rehabilitate the defendant have been unsuccessful.” (R. 609.) We have consistently held that “for this aggravating circumstance to justify in part an enhanced sentence, it must be understood to mean that the defendant is in need of correctionаl and rehabilitative treatment that can best be provided by a period of incarceration in a penal facility in excess of the presumptive sentence term.” Culver v. State,
3.Permanent Injury to Attempted Murder Victim
Thirdly, the trial court referenced the permanent nature of Mr. Dozier’s injuries. We have previously recognized that the viciousness or seriousness of an injury is a proper aggravating circumstance. See Benton v. State,
4.Circumstances of Crime
Elements of a crime cannot be used to enhance a sentence, however particularized circumstances of a criminal act may constitute separate aggravating circumstances. Morgan v. State,
5. Mitigating Factors
Lastly, McCann alleges that the trial court failed to consider as mitigating factors both his abusive childhood and the hardship that will result to his child from incarceration. As to the former, McCann concedes that “no evidence was given directly as to how these experiences affected [his] later actions,” and as such the trial court was within its discretion not to consider this factor as mitigating. Appellant’s brief at 26; see Blanche v. State,
C. Conclusion
Here, the trial court relied upon four aggravators to arrive at its sentence for McCann. On review, we find two of these aggravators to be invalid. While it has been held that a single valid aggravator is sufficient to support an enhanced sentence, Page v. State,
Affirmed in part, and reversed and remanded in part.
Notes
. Ind.Code §§ 35-41-5-1,35-42-1-1.
. Ind.Code § 35-43-2-1.
.Ind.Code §§ 35-41-5-1,35-42-4-1.
. Because we remand for re-sentencing, we do not reach the issue of whether McCann’s sentence is manifestly unreasonable.
Concurrence Opinion
concurring in part and dissenting in part.
I fully concur with respect to Parts I, and II of the majority opinion. Except to the extent that my dissent would impact upon resentencing, I also concur as to Part IV. I respectfully dissent, however, as to Part III.
The majority relies upon Richeson v. State (1998) Ind.,
A different and more significant factor convinces me that Richeson did not hold that all attempt offenses other than attempted murder are excepted from a Spradlin type analysis. To be sure, Richeson embraced within its holding attempt prosecutions which involve “either stringent penalties, or ambiguity, but not both.” Richeson, supra,
The Richeson court went to great pains to note that the attempted murder conviction involved in Spradlin subjected the defendant to a “penalty that is two and one-half to fifty times higher than the penalty for attempted battery.” Id. at 1011 (Emphasis in original). It is imperative to note that the attempted rape conviction here involved is a Class A felony and in this regard, is identical to the attempted murder conviction of Spradlin.
Therefore, while bound by the statement in Richeson that Spradlin is limited to attempted murder cases, Richeson does not preclude this court from applying an analogous principle, perhaps drawn from the wisdom of Spradlin, to cases substantially similar in consequence.
. In discussing varying case definitions of “specific intent," Richeson cites to Wells v. State (1991) Ind.App.,
Concurrence Opinion
concurring in part, and dissenting in part.
I agree with the majority opinion in all respects, except sentencing. I agree that the trial court properly considered the aggravating circumstances of the defendant’s prior criminal history and the permanent injury that the defendant caused to the attempted murder victim. I also agree that the trial court was within its discretion when it failed to find as mitigating factors both the defendant’s abusive childhood and the hardship that would result to his child from his inсarceration.
However, I do not agree with the majority that an attempted rape victim’s pregnancy may not be used as an aggravating circumstance when the record is unclear as to whether or not the defendant knew of her condition. Additionally, I disagree with the majority’s conclusion that this case should be remanded to the trial court for re-sentencing.
First, the trial court was within its discretion to find as an aggravating circumstance that the victim of the attempted rape was pregnant at the time of the commission of the offense. A defendant takes а victim as he finds her. For example, Ind.Code § 35 — 38—1—7.1(b)(6) states that a court may consider as an aggravating circumstance that “[t]he victim of the crime was mentally or physically infirm.” Likewise, the age of a victim may also be considered as an aggravating circumstance. Ind.Code § 35 — 38—1—7.1(b)(5). Nothing in the statute requires that the defendant know of the infirmity or age of the victim before these factors may be used as aggravating circumstances. Furthermore, when properly explained, victim impact may be an appropriate aggravating circumstance. Smith v. State,
The majority states “we are unaware of Indiana precedent that would cause [the victim’s] state of pregnancy, as a fact apparently unknown to McCann, to be a proper aggravating circumstance.” Op. at 1006-07. Similarly, I am unaware of Indiana precedent that would preclude the victim’s pregnancy to be considered as a proper aggravating circumstance. The majority maintains .that in Whitehead v. State,
Second, I disagree with the majority when it remands this case to the trial court for re-sentencing. Even if the victim’s pregnancy is not a proper aggravating circumstance, the majority concedes that there were two valid aggravators. A single aggravator is sufficient to support a sentence. Casey v. State,