McCann v. State

• Decision Date: 26 January 2001
• Docket Number: No. 49A05-0002-CR-43.,49A05-0002-CR-43.
• Citation: 742 N.E.2d 998
• Parties: Mario McCANN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

742 N.E.2d 998

Mario McCANN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-0002-CR-43.

Court of Appeals of Indiana.

January 26, 2001.

Transfer Granted April 12, 2001.

Amy L. Dell, Dell & Dell, Indianapolis, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BAILEY, Judge.

Case Summary

Mario McCann ("McCann") was charged and convicted of Attempted Murder,¹ Burglary,² and Attempted Rape.³ McCann was tried by jury and sentenced to a total executed sentence of one hundred years. McCann appeals his convictions and sentence. We affirm in part, and reverse and remand in part.

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. Whether 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 once and removing names, Detective Cahill presented a thirty-two-picture array to A.L. and Dozier. Two of the pictures within this array were of McCann. Both Dozier and A.L. identified McCann as the person who attempted to rape A.L. and shot Dozier. Thereafter, McCann was arrested and charged for Attempted Murder, Burglary, and Attempted Rape.

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 In-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 impermissibly suggestive. Harris v. State, 716 N.E.2d 406, 410 (Ind.1999). A photographic array is impermissibly suggestive if it raises a substantial likelihood of misidentification given the totality of the circumstances. Id. Factors to be considered in evaluating the likelihood of a misidentification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, and (4) the level of certainty demonstrated by the witness. Id. A photographic array is sufficient if the defendant "does not stand out so strikingly in his characteristics that he virtually is alone with respect to identifying features." Id. (quoting Pierce v. State, 267 Ind. 240, 246, 369 N.E.2d 617, 620 (1977)). Where the pretrial procedures are not impermissibly suggestive, both the evidence of the pretrial and in-court identifications are held to be properly admitted. Id.

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, 369 N.E.2d at 620. Similarly, the inclusion of two pictures of McCann, apparently by mistake, was not unduly suggestive. See Hollonquest v. State, 272 Ind. 380, 398 N.E.2d 655 (1979) (holding that where a witness was shown a thirty-picture array which contained two pictures of the defendant, and he selected both pictures, this did not suggest to a significant degree that the police consider the individual portrayed to be a prime suspect and that this was not impermissibly suggestive). A.L. and Dozier selected the two pictures of McCann as the perpetrator, and after viewing the entire photographic array reiterated their certainty that the two pictures were of the perpetrator of the crime. Given the totality of the circumstances, we find the record demonstrates that this photographic array was not impermissibly suggestive. Thus, the trial court properly admitted this evidence of the photographic identifications. As such, we need not separately analyze the bases for A.L.'s and Dozier's in-court identifications. See Harris, 716 N.E.2d at 410.

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, 691 N.E.2d 412, 420 (Ind.1997) cert. denied. This rule applies to allegedly improper remarks made during closing argument. Charlton v. State, 702 N.E.2d 1045, 1051 (Ind.1998) reh'g denied. However, a party may escape waiver of an issue, for failure to object, if the claimed error is fundamental in nature. Id. "Fundamental error is a substantial blatant violation of basic principles rendering the trial unfair to the defendant and, thereby, depriving the defendant of fundamental due process." Id.

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 prosecutor'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. 553); (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, 702 N.E.2d at 1051. Consequently, McCann argues that the prosecutor's statements amounted to fundamental error.

While considered as a whole the prosecutor's closing statements may...