Meriweather v. State

• Decision Date: 30 November 1995
• Docket Number: No. 49A02-9409-CR-520,49A02-9409-CR-520
• Parties: John F. MERIWEATHER, Appellant (Defendant), v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 133

659 N.E.2d 133

John F. MERIWEATHER, Appellant (Defendant), v. STATE of Indiana, Appellee.

No. 49A02-9409-CR-520.

Court of Appeals of Indiana.

Nov. 30, 1995.

Transfer Denied Jan. 9, 1996.

Walter E. Bravard, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Louis E. Ransdell, Deputy Attorney General, Office of the Attorney General, Indianapolis, for Appellee.

OPINION

SULLIVAN, Judge.

John F. Meriweather (Meriweather) appeals his convictions of attempted aggravated battery, a class B felony; ¹ carrying a handgun without a license, a class D felony; ² and resisting law enforcement, a class A misdemeanor. ³ Meriweather presents three issues for our review, which we restate as follows:

(1) whether the trial court committed reversible error when it convicted him of attempted aggravated battery, in that the crime was not charged nor was it an included offense of a crime which was charged;

(2) whether sufficient evidence of probative value supports his convictions;

(3) whether the trial court committed reversible error in imposing manifestly unreasonable sentences.

We affirm.

The facts most favorable to the trial court's judgment disclose that on October 29, 1993, fights broke out inside the Staten Island Lounge on east 38th Street in Indianapolis. An off-duty, fully uniformed Indianapolis Police Department (IPD) officer, Marvin Jay Barlow, was at the lounge that night helping to provide additional security. Officer Barlow was in the parking lot when he learned of the activity inside. Officer Barlow entered the lounge and attempted to restore order. He broke up the combatants, requested additional police assistance, and began forcing patrons outside into the lounge's parking lot. Officer Barlow noticed that many of the patrons had caps, sweatshirts, and T-shirts with logos that included the phrase "East side." Record at 76. He also noticed that a "few" patrons had similar "north side" paraphernalia. Record at 76. As additional officers arrived on the scene, members of the crowd gathered in the lounge's parking lot and continued to argue with one another.

Manual Hamilton (Hamilton) was among the crowd of people whom Officer Barlow had removed from the lounge. Hamilton was leaning forward over the roof of his girlfriend's car when he heard gunshots behind him. At the same time, his girlfriend told him to "turn around." Record at 99. When he turned in the direction of the shots, he saw Meriweather firing at him. Hamilton ducked, avoiding the gunfire. Officer Barlow, who was by this time once again in the parking lot, heard the first two gunshots. He turned in time to see Meriweather fire three more shots at Hamilton. IPD officer Fred Carpenter also saw Meriweather fire four or five shots at a group of "three to four subjects." Record at 66. Yet another IPD officer, Andrew Starks, also observed Meriweather firing what he described as three to five shots in Hamilton's direction at a "small group of individuals." Record at 55. Investigation later revealed that the car against which Hamilton was leaning was struck by at least three bullets.

When Hamilton realized that Meriweather had expended all of his ammunition, he and at least one other person began chasing Meriweather. Officer Barlow also gave chase while screaming " 'Stop, police!' four or five times ... at the top of [his] voice." Record at 80. Despite the warnings, Meriweather continued to flee. Officer Barlow eventually tackled Meriweather and placed him under arrest. Officers Starks and Carpenter both saw Officer Barlow chase and apprehend Meriweather. Meriweather was wearing a black sweatshirt with the term "North Side" enscripted across the front in white letters. Record at 85.

During the chase, Officer Barlow saw Meriweather drop a handgun a short distance from where he apprehended Meriweather. Officer Barlow recovered that gun, which was a .38 caliber, five-shot revolver containing five empty shell casings. Meriweather did not produce a license to carry the gun.

On November 2, 1993, the State charged Meriweather by information with attempted murder, carrying a handgun without a license, and resisting law enforcement. On May 9, 1994, after submission of the evidence, the trial court found Meriweather guilty of carrying a handgun without a license and of resisting law enforcement. After taking the attempted murder charge under advisement, the trial judge found Meriweather guilty of attempted aggravated battery as a lesser included offense of attempted murder. She did so reasoning that Meriweather attempted to inflict an injury that created a substantial risk of death. On June 7, 1994, the trial judge sentenced Meriweather on all three counts, enhancing his sentences for attempted aggravated battery and carrying a handgun without a license. The trial judge ordered Meriweather to serve the sentences consecutively.

I. ATTEMPTED AGGRAVATED BATTERY CONVICTION

The issue, as posed by Meriweather, is whether the charge of attempted murder, as phrased, permits a conviction of attempted aggravated battery. The trial court, in entering the conviction, found that Meriweather "attempted to inflict an injury that created a substantial risk of death." Record at 159. The court therefore concluded that Meriweather was "guilty of the B Felony as a lesser included offense." Record at 160. The charge stated that Meriweather attempted to commit murder by "repeatedly shooting a deadly weapon, that is: a handgun, at and toward the person of Manual Hamilton." Record at 11.

Meriweather argues that by " 'closely-tracking' " the language of the murder and attempt statutes in its attempted murder charge, the State precluded a conviction upon attempted aggravated battery as a lesser included offense. Brief of Appellant at 6. This argument understandably relies upon a line of cases beginning with Jones v. State (1982) Ind., 438 N.E.2d 972. In that case, our Supreme Court stated:

"The state may wish to seek conviction of a defendant for a lesser offense, depending upon the ultimate strength of its evidence. By proper drafting, it can preserve the option to seek conviction for the lesser offense, which, if charged within the body of the information, serves the due process guarantee of notice to defendant. [citations omitted] By the same token, the state through its drafting can foreclose as to the defendant, the tactical opportunity to seek a conviction for a lesser offense. The point is that absolute discretion rests in the state to determine the crime(s) with which a defendant will be charged." 438 N.E.2d at 975.

Both Meriweather and the State cite and rely upon case law which analyzes the matter of included offenses but which does so, almost without exception, in the context of whether a trial court erred in refusing a defendant's instruction upon a lesser included offense. Although such cases, upon first glance, would seem to be of assistance, the matter of instruction entitlement differs from whether, in the final analysis, a conviction of a lesser offense may be entered in light of a particular greater offense as charged.

The instruction cases tend to pick up and discuss collateral and somewhat conflicting considerations, such as whether refusal of the instruction was harmless error; whether the giving of the instruction would have invited or encouraged a compromise verdict; and most difficult to apply, the view that the intent of the State in framing the charge dictates whether a defendant may or may not have the jury consider a lesser included offense. See Compton v. State (1984) Ind., 465 N.E.2d 711, 713 (charge of burglary and theft that "quoted the statute almost verbatim" demonstrates that prosecutor was not attempting to seek conviction upon a lesser offense and therefore to give an instruction on criminal trespass and conversion would have invited a compromise verdict); Sills v. State (1984) Ind., 463 N.E.2d 228, 235 (murder charge justified refusal of involuntary manslaughter because "[i]t is clear that the state sought only to charge for murder. The defendant cannot inject the lesser offense, since this would allow the jury to return a compromise verdict.").

We deem the solution to the precise issue before us best reached without becoming diverted by whether the instruction cases should control the analysis. ⁴ Rather, we look to whether Meriweather was placed upon fair notice as to the crime or crimes against which he must defend and whether the crime of which he was convicted fell fairly and logically within the crime of attempted murder, as charged. Nevertheless, the "closely tracking" factor, in assessing whether a particular charge will permit an included offense conviction, is very much present in some of the instruction cases. Those cases, therefore, cannot be, and should not be, totally disregarded.

For example, in Hoskins v. State (1990) Ind., 563 N.E.2d 571, 575, the court noted that the State, by the manner in which the charge is drafted, may "foreclose to the defendant the tactical opportunity to seek conviction for a lesser offense. This is most typically accomplished by closely tracking the statutory definition of the offense and by inserting no additional language which might indicate an intention to charge a lesser offense."

Meriweather correctly observes that the charge in Hoskins in alleging attempted murder was identical to the charge in this case. Hoskins proceeded to hold that the charge closely tracked the statutes and thereby precluded the defendant from obtaining an instruction upon the lesser offense of battery. It is understandable that Meriweather construes the Hoskins decision to prevent a conviction of any offense other than attempted murder. In other words, Meriweather contends that because the trial court did not convict for the crime charged, he was entitled to acquittal.

There are two categories of lesser included offenses in Indiana. ⁵ The first category entails those offenses which are inherently...