Justices reinstate 45-year sentence despite trial court sentencing comments

The Indiana Supreme Court has reinstated a 45-year sentence against a man convicted in a point-blank shooting in northern Indiana, overturning a Court of Appeals decision that had reduced the sentence.

Justice Mark Massa wrote the court’s unanimous opinion Tuesday in Marcus Lee McCain v. State of Indiana, 20S-CR-281.

The case began at Philly Steaks and Fresh Lemonade in Gary, where Marcus Lee McCain encountered Marcel Harris. McCain testified that Harris was “mean-mugging” him, so McCain followed him outside.

The two men, who had never met, exchanged words outside before Harris returned to the restaurant. McCain followed with his cousin, and a fight ensued and was caught on a high-definition surveillance system.

McCain later recalled that Harris told a friend to “[s]hoot that s—,” so McCain grabbed a gun and placed it against Harris’ head. He fired at close range when Harris tried to swat the gun away, killing Harris instantly. McCain fled the scene but was eventually arrested in Wisconsin.

A jury later convicted McCain of voluntary manslaughter, and a judge convicted him of a firearm enhancement. “During the bench trial,” Massa wrote, “the judge made multiple comments indicating he believed the defendant should have been convicted of murder by the jury. He called it ‘the clearest case of … cold-blooded murder I’ve seen in high definition in 32 years” and remarked that ‘[t]he voluntary manslaughter verdict was a gift.’”

The judge, Samuel L. Cappas of Lake Superior Court, made similar comments at McCain’s sentencing, where the court found 10 aggravating factors, including that “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.” The court also found four mitigators and sentenced McCain to 45 years in prison.

A split panel of the Indiana Court of Appeals reduced McCain’s sentence to 35 years.  but Judge Elizabeth Tavitas dissented. She wrote separately that despite the judge’s comments, the sentencing decision was not tainted because “the trial court made it clear that it was following the law and basing the sentence upon [the listed] aggravators and mitigators.”

Similarly, though the trial judge’s comments were “very close to the line,” the state justices determined those comments were “insufficient to demonstrate that the judge abused his discretion when viewed in the context of the record as a whole.” The high court looked to Gambill v. State, 436 N.E.2d 301 (Ind. 1982), Hammons v. State, 493 N.E.2d 1250 (Ind. 1986), Hamman v. State, 504 N.E.2d 276 (Ind. 1987), and Wilson v. State, 458 N.E.2d 654 (Ind. 1984), when evaluating Cappas’ sentencing motivations.

“First, unlike in Gambill, Hammons, and Hamman, the judge’s initial sentencing decision included a careful, detailed discussion of ten aggravating factors and six potential mitigation factors (ultimately accepting only four), both at the hearing and in a detailed sentencing order,” Massa wrote.

Further, as in Wilson, McCain did not receive a maximum sentence, and his 45-year sentence is “substantially lower” than what it would have been for murder. Also as in Wilson, Cappas made statements “clarifying he would filter out his personal feelings.”

“Finally, we need not decide the validity of the disputed aggravator – citing the ‘cold-blooded and callous’ nature of the killing – because we find any error stemming from its inclusion was harmless,” the justice wrote. “The thrust of this disputed aggravator is captured, less controversially, in the precedent aggravating circumstance finding the heinous nature of the shooting to be significant.

“… When an improper aggravator is used, we remand for resentencing only ‘if we cannot say with confidence that the trial court would have imposed the same sentence if it considered the proper aggravating and mitigating circumstances,’” he continued, citing McCann v. State, 649 N.E.2d at 1121 (Ind. 2001). “Given the similarity between these two aggravators, remand is unnecessary.”

The high court also declined sentencing relief under Indiana Appellate Rule 7(B). The court pointed to “McCain’s extensive history of felony and misdemeanor convictions,” his Facebook post “showing a desire for violent conflict,” and his “point-blank shooting of a complete stranger in a crowded fast-food restaurant after getting into an argument because someone looked at him sideways …” as support for the trial court’s sentencing decision.

In a footnote, the justices summarily affirmed Part I of the COA’s holding, which held that the firearm enhancement was applicable to the voluntary manslaughter conviction.

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