Split COA reduces manslaughter sentence after judge’s ‘compensation’

A split Indiana Court of Appeals panel has reduced a man’s voluntary manslaughter sentence after finding the judge who sentenced him did so in part “to compensate for what he believed to be an erroneous verdict.”

After an argument ensued between Marcus McCain and Marcel Harris at a Gary restaurant in August 2017, McCain shot Harris in the head, killing him. McCain was ultimately found guilty of voluntary manslaughter and received a 45-year sentence, which had been enhanced for the use of a firearm. McCain, who maintained he acted in self-defense, waived a jury trial on the firearm enhancement.

In an appeal of his conviction, McCain argued the Lake Superior Court erred when it imposed the enhancement because he was acquitted of the murder offense that was alleged in the firearm enhancement’s charging information. He alleged that because the charging information specifically stated “Murder,” as opposed to the general statutory language of “a felony under IC 35-42 that resulted in death or serious bodily injury,” and because he was acquitted of murder, the court could not impose the firearm enhancement.

The majority of the split COA panel disagreed with McCain’s arguments as to why the enhancement should be vacated, according to its Monday decision in Marcus Lee McCain v. State of Indiana, 19A-CR-1113. The majority found that McCain did not dispute that voluntary manslaughter qualifies for the firearm enhancement under I.C. 35-50-2-11(b), that the crime is simply murder mitigated by evidence of sudden heat, and that he used a firearm to kill the man.

“To the extent McCain claims he didn’t have notice that the State was going to pursue the firearm enhancement for voluntary manslaughter, he is the one who asked for the voluntary-manslaughter instruction at the final-instructions conference,” Judge Nancy Vaidik wrote for the majority, joined by Judge Edward Najam. “Up until that point, this was a murder/self-defense case only. The trial court did not err in imposing the firearm enhancement.”

However, the majority noted the trial judge did not agree with the jury’s voluntary manslaughter determination. Specifically, the judge called the voluntary manslaughter verdict “a gift” and described surveillance video capturing the crime as “the cleanest cut video I have ever seen of my impression of a murder.”

“Although the jury found the existence of sudden heat, the judge found as an aggravator that the killing was ‘cold-blooded’ and ‘callous.’ The judge’s finding that the killing was ‘cold-blooded’ is clearly at odds with the jury’s finding that the killing was done in sudden heat,” Vaidik wrote. “When a jury finds a defendant guilty of voluntary manslaughter, aggravators like ‘cold-blooded’ and ‘callous’ are improper as a matter of law.

“In addition, we note that the judge crafted its sentence so that McCain was sentenced to exactly forty-five years, the minimum sentence for murder. It is apparent that the judge enhanced McCain’s sentence, in part, to compensate for what he believed to be an erroneous verdict.”

The panel thus vacated McCain’s sentence and ordered on remand for the sentence to be reduced to 35 years. Judge Elizabeth Tavitas, however, disagreed with the sentence reduction in a partial dissent, maintaining there was nothing improper regarding the trial court’s actual sentencing of McCain.

“Discussing the brutal nature of McCain’s offense is part of the review the trial court may properly perform; the trial court may consider the nature of the offense in imposing a sentence,” Tavitas opined. “… The trial court was very specific regarding the aggravators and mitigators in this case. The trial court made it clear that it was following the law and basing the sentence upon those aggravators and mitigators.

“… (G)iven the nature and circumstances of this voluntary manslaughter offense, McCain’s prior two felony convictions, and the other proper aggravators and mitigators, I do not find that the trial court abused its discretion, especially in light of the fact that the trial court did not impose the maximum sentence,” Tavitas continued. “Moreover, I do not find this sentence inappropriate. I would affirm.”

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