ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
SUPREME COURT OF INDIANA
MARCEILUS ABEL, )
) Supreme Court Cause Number
v. ) 49S00-0011-CR-709
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Jane Magnus-Stinson, Judge
Cause No. 49G06-0001-CF-6222
ON DIRECT APPEAL
August 20, 2002
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 Abels 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.
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 drivers 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 Turners 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.
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 Abels 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.
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,See footnote 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
Abels 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.II.
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
dispatchers 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 Abels Fourth Amendment right to be free
from unreasonable searches and seizures by conducting a pat-down search for weapons and
seizing Abels handgun. In turn, the trial court properly admitted the handgun
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 victims 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 Abels remorse: Mr. Abel,
I have to give you credit for writing a letter to the family
because I frankly didnt think you were going to do anything like that
. . . . R. at 977. However, the trial court
did not give Abels remorse any mitigating weight. The same is true
of Abels 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, Id 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.
We affirm the trial court.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs except as to sentence.
Because Abel presents no authority or independent analysis supporting a separate
standard under the state constitution, any state constitutional claim is waived.
v. State, 724 N.E.2d 1093, 1097 n.5 (Ind. 2000).
See Ind. Code § 9-21-8-51 (failing to dim bright lights when
meeting another vehicle or pedestrian is a Class B infraction).