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McCain v. State

Court of Appeals of Indiana

January 6, 2020

Marcus Lee McCain, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Lake Superior Court Trial Court Cause No. 45G04-1708-MR-6 The Honorable Samuel L. Cappas, Judge

          Attorneys for Appellant Paul G. Stracci J. Michael Woods Stracci Law Group, P.C. Crown Point, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          Vaidik, Judge

         Case Summary

         [¶1] The State charged Marcus Lee McCain with murder for shooting a man in the head in a Gary restaurant, an incident that was captured on surveillance video. The State also filed a firearm enhancement, alleging that McCain used a firearm in the commission of murder. McCain argued self-defense during trial but requested a voluntary-manslaughter instruction at the end of trial. Thereafter, the jury found McCain guilty of voluntary manslaughter, and the trial court found that the firearm enhancement applied. The court then sentenced McCain to forty-five years: twenty-seven years for voluntary manslaughter enhanced by eighteen years for using a firearm.

         [¶2] McCain now appeals. He first argues that the trial court erred in imposing the firearm enhancement because he was acquitted of the offense (murder) that was alleged in the charging information for the enhancement. Because McCain doesn't dispute that (1) voluntary manslaughter is an offense that qualifies for the firearm enhancement, (2) voluntary manslaughter is simply murder mitigated by evidence of sudden heat, (3) he used a firearm to kill the victim, and (4) he is the one who asked for the voluntary-manslaughter instruction at the end of trial, we conclude that the court did not err in imposing the firearm enhancement. McCain also argues that the court impermissibly enhanced his sentence based upon its personal disagreement with the jury's verdict. Given that the court made it clear that it disagreed with the jury's verdict and found as an aggravator that the killing was "cold blooded" and "callous"-which is directly at odds with the jury's finding of sudden heat and therefore an improper aggravator as a matter of law-we choose to exercise our authority to review and revise sentences and remand this case with instructions for the court to sentence McCain to thirty-five years: twenty-five years for voluntary manslaughter enhanced by ten years for using a firearm.

         Facts and Procedural History

         [¶3] In the early morning hours of August 5, 2017, McCain, his cousin, and his girlfriend went to Philly Steaks and Fresh Lemonade in Gary. McCain lived in Wisconsin but was visiting family in Indiana. Although it was after midnight, there were several people in the restaurant at the time, including two young children. After McCain and his girlfriend placed their orders and were waiting for their food, Marcel Harris and two other men walked into the restaurant. According to McCain, he had "never met them a day in [his] life." Tr. Vol. VI p. 224. Two patrons, a husband and wife, noted that the atmosphere of the restaurant changed when the three men walked in. McCain observed that one of the men with Harris had a gun in his pocket and that Harris was "mean-mugging" him. Tr. Vol. VII p. 29. When Harris walked outside the restaurant, McCain followed him. The two exchanged words outside, and Harris re-entered the restaurant and positioned himself at the door. Meanwhile, McCain got his cousin from the car, and the two walked back inside the restaurant. As soon as McCain walked back inside, an argument ensued between Harris and McCain, with Harris pushing McCain. As shown on the restaurant's video-surveillance system, McCain then grabbed a gun from his cousin's hand. See Ex. 53 (DVD). According to McCain, after he grabbed the gun Harris told his friend with the gun to "[s]hoot that shit." Tr. Vol. VII p. 7. At this point, McCain thought that "it was [Harris's] life or [his] life." Id. McCain then shoved Harris several feet, walked up to him, and pushed the gun into the side of his head. See Ex. 53. When Harris appeared to swat away the gun, McCain shot him in the temple at close range, killing him. Id. McCain, his girlfriend, and his cousin ran out of the restaurant. Id.

         [¶4] Officers from the Gary Police Department responded shortly after the shooting. They obtained still images of McCain from the restaurant's video-surveillance system and broadcasted them on Chicago news stations. Shortly thereafter, someone from Wisconsin identified McCain as the shooter.

         [¶5] On August 10, the State charged McCain with murder. Appellant's App. Vol. II p. 27. About a month later, the State added a firearm enhancement:

Marcus Lee McCain did knowingly or intentionally use a firearm in the commission of the offense of Murder, contrary to I.C. 35-50-2-11(d).

Id. at 41. Indiana Code section 35-50-2-11(d) provides, in relevant part:

The state may seek, on a page separate from the rest of a charging instrument, to have a person who allegedly committed an offense sentenced to an additional fixed term of imprisonment if the state can show beyond a reasonable doubt that the person knowingly or intentionally used a firearm in the commission of the offense.

(Emphases added). An "offense" is defined as (1) a felony under Indiana Code article 35-42 that results in death or serious bodily injury; (2) kidnapping; or (3) criminal confinement as a Level 2 or 3 felony. Id. at (b).

         [¶6] A four-day jury trial was held in December 2018. During opening statements, defense counsel asked the jury to find that McCain acted in self-defense. See Tr. Vol. III p. 63. McCain testified in his own defense that he was "scared" when Harris walked into the restaurant and pushed him and that he grabbed his cousin's gun because he was "scared." Tr. Vol. VII pp. 5, 6.

         [¶7] After presentation of the evidence, the trial court held a conference with the attorneys to discuss final jury instructions. Defense counsel asked the trial court to instruct the jury on Level 2 felony voluntary manslaughter as a lesser-included offense of murder. Id. at 71-73; see also Ind. Code § 35-42-1-3 (providing that a person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter and explaining that sudden heat is a mitigating factor that reduces what otherwise would be murder to voluntary manslaughter). The State did not object. During closing arguments, defense counsel mainly argued self-defense, only briefly mentioning sudden heat. Tr. Vol. VII pp. 129, 130. After closing arguments, the trial court read final instructions to the jury.

         [¶8] Thereafter, the jury found McCain guilty of voluntary manslaughter. McCain then "waive[d] jury trial" on the firearm enhancement, and the jury was excused. Id. at 166. As the trial court was about ready to start the firearm-enhancement phase, the State pointed out that the charging information for the enhancement alleged that McCain used a firearm in the commission of murder, not voluntary manslaughter. However, the State argued that this did not matter because voluntary manslaughter was "still a qualifying offense" under Section 35-50-2-11(b). Id. at 164. The State then asked the court if it should amend the charging information to say voluntary manslaughter instead of murder. Defense counsel argued that it did not receive fair notice that the State was going to pursue the firearm enhancement for voluntary manslaughter and asked the court to find McCain "not guilty on the enhancement." Id. at 170. The trial court took the matter under advisement.

         [¶9] In later announcing its decision, the trial court stated that the issue was whether McCain "had notice to be able to prepare a defense" and that McCain indeed had notice, as he was the one who asked for the voluntary-manslaughter instruction at the end of trial, voluntary manslaughter is an inherently included offense of murder, and defense counsel conceded that he had no defense to the firearm enhancement if McCain was convicted of murder. Id. at 186. Finding that there was "no blind-siding here that took place if [McCain] got convicted of voluntary manslaughter," the court entered judgment of conviction against McCain on the firearm enhancement. Id. at 187. Also during this time, the court made several comments that it disagreed with the jury's verdict, saying, for example, "It was the clearest case of . . . cold-blooded murder I've seen in high definition in 32 years" and "[t]he voluntary manslaughter verdict was a gift." Id. at 186.

         [¶10] McCain's sentencing hearing was held in April 2019. At the hearing, the trial court continued to make comments that it disagreed with the jury's verdict, saying, for example, "The words that the video spoke to me w[ere] cold blooded and callous" and "that was the cleanest cut video I have ever seen of my impression of a murder." Tr. Vol. VIII pp. 49, 51. The court identified numerous aggravators: (1) the shooting took place in a public environment with fourteen people in close proximity; (2) there were two children present during the shooting; (3) the defendant endangered at least one other person who was within the trajectory of the bullet a couple of seconds before the shooting; (4) Harris "was shot at point-blank range with the gun placed to [his] temple"; (5) the nature of the shooting was "particularly cold-blooded and callous despite the fact that [McCain] was convicted of Voluntary Manslaughter wherein heat of passion was found to be a mitigating circumstance"; (6) McCain has a criminal history, including two felony convictions; (7) McCain has previously been incarcerated for thirty days, "which has failed to deter him from a life of crime"; (8) McCain has seven to eight contacts with the criminal-justice system, "which reflect adversely on [his] character in that he is not able to live a law-abiding life;" (9) a Facebook post from McCain adversely reflects on his character, as it shows that he invites "violence or conflict": "ni**as kno fu**ing wit me sh** can get wicked"; and (10) McCain is in need of correctional or rehabilitative treatment that can only be provided by a penal facility. Appellant's App. Vol. III pp. 142-43; Tr. Vol. VIII p. 48; Sentencing Ex. A. The court identified several mitigators: (1) McCain expressed remorse; (2) approximately thirty people submitted letters on McCain's behalf; however, the court didn't give this much weight because some of the letters described McCain as "peacemaking" but he didn't use those skills on the night of the shooting; (3) McCain has a two-year-old child; however, the court didn't give this much weight either because McCain wasn't court-ordered to pay support for his child; and (4) McCain completed some courses in jail, which was "somewhat of a mitigating factor." Appellant's App. Vol. III pp. 143-44; Tr. Vol. VIII pp. 45-47. Although McCain proffered other mitigators, the court rejected them. See Appellant's App. Vol. III pp. 143-44 (rejecting the proposed mitigators that the crime is unlikely to recur, that McCain is likely to respond favorably to short-term imprisonment, and that McCain accepted responsibility). Near the end of its sentencing order, the court included the following statement:

For the record, . . . the high-definition video, from the Court's perspective, depicts a cold-blooded callous execution type shooting. The Court acknowledges that the jury found the defendant guilty of Voluntary Manslaughter. To be clear, the Court is not assessing this sentencing as that of a murder case or using the factors of a murder to elevate the sentence of Voluntary Manslaughter. In other words, the Court is not punishing the defendant for the crime of Murder in the Voluntary Manslaughter sentence. However, the manner in which the defendant used the gun in such a callous nature as depicted in the video, speaks for itself.

Id. at 144. Finding that the aggravators "substantially" outweigh the mitigators, Tr. Vol. VIII p. 54, the court sentenced McCain to twenty-seven years for voluntary manslaughter (three years shy of the maximum, see Ind. Code § 35-50-2-4.5) enhanced by eighteen years for using a firearm (two years shy of the maximum, see I.C. § 35-50-2-11(g)), for a total sentence of forty-five years (which is the minimum sentence for murder, see Ind. Code § 35-50-2-3).

         [¶11] ...

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