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
INDIANA SUPREME COURT
JESSE MURPHY, )
v. ) 49S00-0006-CR-370
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Michael Jensen, Judge
Cause No. 49G20-9908-CF-147681
On Direct Appeal
May 23, 2001
The defendant, Jesse Murphy, was convicted of dealing in cocaine,
See footnote possession of cocaine,See footnote
and two counts of resisting law enforcement.See footnote 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
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).
See footnote 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.
See footnote 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.
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.
Ind.Code § 35-48-4-1.
Footnote: Ind.Code § 35-48-4-6.
Footnote: Ind.Code § 35-44-3-3.
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
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.