Johnson v. State

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DENNIS R. MAJEWSKI KAREN M. FREEMAN-WILSON
Terre Haute, Indiana Attorney General of Indiana

LIISI BRIEN
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

NORMAN J. JOHNSON, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 11S00-9904-CR-244
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )

APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Ernest E. Yelton, Judge
Cause No. 11C01-9806-CF-44

ON DIRECT APPEAL

May 24, 2001

RUCKER, Justice

Case Summary

A jury convicted Norman Johnson of multiple offenses for his role in
the shooting death of Norman Miller. The trial court sentenced Johnson to
a total term of 176 years. In this direct appeal we address the following
rephrased issues: (1) did the trial court err in denying Johnson’s motions
for change of venue and mistrial based on pre-trial publicity and publicity
occurring during the course of trial; (2) did the trial court err in
refusing to sequester the jury; and (3) do any of Johnson’s convictions
violate the Double Jeopardy Clause of the Indiana Constitution. Johnson
does not challenge his conviction for murder. Thus, it is summarily
affirmed. We also affirm Johnson’s conviction for robbery. Finding a
double jeopardy violation, we reduce from a Class A felony to a Class B
felony Johnson’s conviction for burglary and vacate his conviction for
conspiracy to commit burglary. On statutory grounds we also vacate
Johnson’s conviction for auto theft. In all other respects the judgment of
the trial court is affirmed. This cause is remanded for resentencing.

Facts

The facts most favorable to the verdict show that in the early
morning hours of June 16, 1998, Johnson and two accomplices entered the
home of Norman Miller. The men beat Miller and shot him five times
resulting in his death. Johnson and his accomplices took guns, cash,
credit cards, a motorcycle, and other personal items from Miller’s home.
The State charged Johnson with Count I - murder, Count II - felony
murder as a Class A felony, Count III - robbery as a Class C felony, Count
IV - conspiracy to commit robbery as a Class C felony, Count V - burglary
as a Class A felony, Count VI - conspiracy to commit burglary as a Class A
felony, Count VII - auto theft as a Class D felony, and Count VIII - theft
as a Class D felony. The State also initially sought to sentence Johnson
to life without parole but withdrew the charge prior to sentencing. A jury
convicted Johnson on all counts. At the sentencing hearing, the trial
court imposed no sentence on Johnson’s convictions for felony murder,
conspiracy to commit robbery, and theft. Instead, the trial court
sentenced Johnson to enhanced terms of sixty-five years for murder, eight
years for robbery, fifty years for burglary, fifty years for conspiracy to
commit burglary, and three years for auto theft. The trial court ordered
the sentences to run consecutively for a total executed term of 176 years
imprisonment. This appeal followed. Additional facts are recited below
where relevant.

Discussion

I. Change of venue and mistrial

Prior to trial, Johnson moved for a change of venue from Clay County
based on the amount of pre-trial publicity. The trial court denied the
motion. During the course of trial, citing ongoing media coverage, Johnson
renewed his change of venue motion and also moved for mistrial. Both
motions were denied. Johnson claims error.
A trial court’s denial of a change of venue motion will be reversed
only for an abuse of discretion. Elsten v. State, 698 N.E.2d 292, 294
(Ind. 1998). Showing potential juror exposure to press coverage is not
enough. Id. Instead, the defendant must demonstrate that the jurors were
unable to disregard preconceived notions of guilt and render a verdict
based on the evidence. Id. An abuse of discretion does not occur where
voir dire reveals that the seated panel was able to set aside preconceived
notions of guilt and render a verdict based solely on the evidence. Id.
The record here shows that during voir dire, each juror who had been
exposed to some amount of pre-trial publicity said that he or she could
remain impartial. R. at 1189-1216. Johnson has made no showing to the
contrary and thus has failed to demonstrate that the jury was unable to
render a verdict based upon the evidence. The trial court did not abuse
its discretion in denying Johnson’s motion for change of venue.
As for Johnson’s claim that the trial court erred in denying his
motion for mistrial, we note that a mistrial is an extreme remedy that is
warranted only when less severe remedies will not satisfactorily correct
the error. Warren v. State, 725 N.E.2d 828, 833 (Ind. 2000). The premise
underlying a motion for mistrial presupposes that an error of some type
occurred in the first instance. Id. Here, there was no error. During the
course of trial the trial court repeatedly admonished the jurors not to
allow themselves to be exposed to media coverage, R. at 624-25, 830, 948,
1034, 1140, and polled the jurors throughout the trial to see if they had
been exposed to media coverage. R. at 456, 628, 830-31, 999, 1034, 1147.
The jurors responded each time that they had not. We find no error here.
II. Jury sequestration
Along with his pre-trial motion for change of venue, Johnson also
filed a motion to sequester the jury. The trial court denied the motion,
and Johnson claims error. He correctly points out that in cases where the
State is seeking the death penalty, the trial court must sequester the jury
if the defendant requests it. Holmes v. State, 671 N.E.2d 841, 854 (Ind.
1996); Baird v. State, 604 N.E.2d 1170, 1186 (Ind. 1992); Lowery v. State,
434 N.E.2d 868, 870 (Ind. 1982). According to Johnson, the same
considerations underlying jury
sequestration in capital cases are equally applicable here where the State
is seeking a sentence of life without parole.
It is true that a sentence of life without parole is subject to the
same statutory standards and requirements as the death penalty. Pope v.
State, 737 N.E.2d 374, 382 (Ind. 2000), reh’g denied; Ajabu v. State, 693
N.E.2d 921, 936 (Ind. 1998). However, there is no statutory requirement
for sequestration of a jury in a capital case. Rather, with respect to any
case tried to a jury “the jurors may separate when court is adjourned for
the day, unless the court finds that the jurors should be sequestered in
order to assure a fair trial.” Ind.Code § 35-37-2-4(b).
The rule requiring a trial court to grant a defense request for jury
sequestration in capital cases represents a policy decision that
acknowledges the extreme finality of the death penalty. Although some may
regard the punishment of life imprisonment without the hope of release as
equally severe as the death penalty,[1] the fact remains that these two
sentences are qualitatively different. It is this difference that compels
a conclusion that sequestration is a mandatory requirement upon request in
capital cases. However, in non-capital cases jury sequestration is a
matter left to the discretion of the trial court. Clemens v. State, 610
N.E.2d 236, 241 (Ind. 1993). As this Court has observed, “[N]o case has
presented itself in which a defendant has been ordered put to death by an
American court as punishment for crime upon the verdict of a jury which was
permitted to separate and return to commingle in the general community
during trial, over the timely objection of the accused.” Lowery, 434
N.E.2d at 870 (finding reversible error in a capital case where the trial
court denied the defendant’s motion to sequester the jury during trial).
Although the burden a jury faces in determining whether to recommend a life
sentence is indeed great, we do not believe that the decision to sequester
the jury in such cases should be removed from the trial court’s discretion.
We find no abuse of discretion here.

III. Double jeopardy

A. Murder and Burglary

Johnson contends that his convictions and sentencing for murder and
burglary as a Class A felony violate Indiana’s double jeopardy clause. The
double jeopardy rule prohibits multiple punishments for the same offense.
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this Court developed a
two-part test for determining whether two convictions are permissible under
Indiana’s double jeopardy clause. Id. at 49. A double jeopardy violation
occurs when “‘the State . . . proceed[s] against a person twice for the
same criminal transgression.’” Hampton v. State, 719 N.E.2d 803, 809 (Ind.
1999) (quoting Richardson, 717 N.E.2d at 49). Under Richardson, “two or
more offenses are the ‘same offense’ . . . if, with respect to either the
statutory elements of the challenged crimes or the actual evidence used to
convict, the essential elements of one challenged offense also establish
the essential elements of another challenged offense.” Richardson, 717
N.E.2d at 49. When we look to the actual evidence presented at trial, we
will reverse one of the convictions if there is “a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the
essential elements of one offense may also have been used to establish the
essential elements of a second challenged offense.” Id. at 53.
In this case, the record is clear that the same evidence that
supported Johnson’s murder conviction was also used to elevate Johnson’s
burglary conviction to a Class A felony. Burglary is a Class A felony if
it results in serious bodily injury. The serious bodily injury alleged and
proven by the State in this case was Miller’s death, the same facts used to
convict Johnson of murder. Thus, under Richardson, Johnson’s conviction of
Class A burglary cannot stand.
However, this does not entitle Johnson to escape punishment for the
burglary of which he was convicted. When two convictions are found to
contravene double jeopardy principles, we may remedy the violation by
reducing either conviction to a less serious form of the offense if doing
so will eliminate the violation. Id. at 54. The burglary statute
provides:
A person who breaks and enters the building or structure of another
person, with intent to commit a felony in it, commits burglary, a
Class C felony. However, the offense is a Class B felony if it is
committed while armed with a deadly weapon or if the building or
structure is a dwelling, and a Class A felony if it results in either
bodily injury or serious bodily injury to any person other than a
defendant.

I.C. § 35-43-2-1 (1998) (emphasis added). Here, the evidence presented at
trial showed that Johnson broke and entered Miller’s home – a dwelling.
Thus, we reduce Johnson’s burglary conviction to a Class B felony.
B. Burglary and Conspiracy to Commit Burglary
We next address whether Johnson’s convictions for burglary and
conspiracy to commit burglary also violate Indiana’s double jeopardy
clause. That is, we examine whether it is reasonably possible that the
same evidence was used to support both Johnson’s burglary conviction and
Johnson’s conviction for conspiracy to commit burglary. We first observe
that a defendant may be convicted of both conspiracy to commit a felony and
commission of the underlying felony. See Griffin v. State, 717 N.E.2d 73,
89 (Ind. 1999), cert. denied, 120 S. Ct. 2697 (2000). A double jeopardy
violation occurs where the same evidence used to prove the overt act
committed in furtherance of the conspiracy also proves the commission of
the underlying crime. See Turnley v. State, 725 N.E.2d 87, 91 (Ind. 2000);
Griffin, 717 N.E.2d at 89.
The case before us is somewhat unusual because the information
charging Johnson with conspiracy to commit burglary mentions no overt
acts.[2] In like fashion, the final jury instructions are silent on what
overt acts the State was required to prove in order to obtain a guilty
verdict for conspiracy to commit burglary. Nonetheless, we may examine the
record
to determine the facts upon which the State relied to support its charge of
conspiracy. See McIntire v. State, 717 N.E.2d 96, 100 (Ind. 1999)
(observing that the evidentiary facts used by the jury in reaching its
decision may be informed by considerations of the final jury instructions
and arguments of counsel); see also Parker v. State, 660 N.E.2d 1025, 1031
(Ind. Ct. App. 1995) (finding that the record showed the State proved
several overt acts to support its claim of conspiracy apart from the
underlying felony even though the jury was not instructed as to a
particular overt act). The record shows that in final summation the
prosecutor advanced the argument that the State had proven that either
Johnson or his co-conspirators had engaged in several overt acts,
including: obtaining a weapon, entering the crime scene [Miller’s home],
and stealing items from Miller’s home. R. at 1373. In addition, both
charged offenses included the same intent to commit a felony of theft,
robbery, or battery resulting in serious injury. Thus, the evidence
proving conspiracy to commit burglary in this case also established the
essential elements of Class B burglary as now reduced. Applying the
Richardson test, we conclude there was a reasonable possibility that the
jury used the same evidentiary fact to prove the essential elements of both
the conspiracy to commit burglary charge and the burglary charge as a Class
B felony. Accordingly, we must vacate Johnson’s conviction for conspiracy
to commit burglary.
C. Auto Theft and Robbery
For his last double jeopardy claim, Johnson contends that he was
improperly convicted and sentenced for auto theft. More particularly,
Johnson argues that auto theft is a lesser included offense of robbery, and
thus the auto theft conviction must be vacated. We need not decide this
issue on Indiana constitutional grounds because Indiana Code section 35-38-
1-6 specifically addresses this concern by prohibiting judgment and
sentence for both a greater and a lesser included offense.[3] Theft is an
inherently included lesser offense of
robbery. One cannot commit robbery without also committing theft. Brown
v. State, 650
N.E.2d 304, 305 (Ind. 1995); Clemmons v. State, 538 N.E.2d 1389, 1389 (Ind.
1989).
The State counters that in this case, auto theft is not a lesser
included offense of robbery because the taking of different property
supports each offense. In support, the State points out that the charging
information for robbery alleged alternatively that Johnson took from Miller
“a 1997 Harley Davidson motorcycle, cash and/or drugs,” R. at 47, while the
auto theft charge involved only the motorcycle. Under the “single larceny
rule,” Johnson’s conviction for auto theft cannot stand. The rule
provides:
[W]hen several articles of property are taken from the same person at
the same time, from the same place, there is but a single larceny for
which there may be but one judgment and one sentence. This rationale
extends to theft as an included offense; where both cash and an
automobile were taken during an armed robbery, the State could not
split up a single offense to make distinct parts the basis for
multiple prosecutions.

Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994) (citation omitted). We
conclude that the same material elements of auto theft were included in the
elements of robbery. Pursuant to Indiana Code section 35-38-1-6, Johnson’s
auto theft conviction also must be vacated.
In a related argument, Johnson also complains the trial court erred in
ordering his sentences to run consecutively because, “Theft, Auto Theft and
Robbery as a Class C felony are not crimes of violence for purposes of
consecutive sentencing as set out in Indiana Code § 35-50-1-2.”[4] Br. of
Appellant at 11. The trial court did not sentence Johnson for theft, and
we have vacated his conviction for auto theft. Thus, those two convictions
are not a part
of the calculus. As for robbery, it is true that the statute does not
identify Class C felony robbery as a “crime of violence.” I.C. § 35-50-1-2
(defining the term to include, among other things, robbery as a Class A
felony or a Class B felony). However, the limitations the statute imposes
on consecutive sentencing do not apply between crimes of violence and those
that are not crimes of violence. See Williams v. State, 741 N.E.2d 1209,
1214 (Ind. 2001); Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000).
Accordingly, the trial court did not err by ordering Johnson’s sentence for
robbery as a Class C felony to run consecutive to the murder and burglary
as a Class B felony, both of which are defined as “crimes of violence.”
I.C. § 35-50-1-2(a)(1), (11).
Conclusion
We vacate Johnson’s convictions for conspiracy to commit burglary and
auto theft, and we reduce Johnson’s conviction for burglary as a Class A
felony to burglary as a Class B
felony. In all other respects, the judgment of the trial court is
affirmed. This cause is remanded for resentencing.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] See, e.g., Smith v. State, 686 N.E.2d 1264, 1273 (Ind. 1997)
(affirming the defendant’s plea agreement that called for the death penalty
as opposed to life without parole and observing, “‘When a person is doomed
to spend his final years imprisoned, with no (or few) prospects of release,
then in terms of his human dignity, his individuality, his freedom, and his
autonomy, one could well argue that the oppressive confines of a prison
constitute as great an infringement of his basic human rights as a death
sentence.’”) (quoting California v. Bloom, 774 P.2d 698, 715 n.7 (Cal.
1989)) (internal quotations omitted).
[2] In relevant part, the information alleges that Johnson did:

[C]onspire with James J. Barrett and Matthew L. Hutchinson to break
and enter the dwelling of Norman Dan Miller, to-wit: residence []
with the intent to commit a felony therein, to-wit: theft, robbery,
battery resulting in serious bodily injury [] and the death of Norman
Dan Miller, and also performed an overt act in furtherance of the
agreement.

R. at 48. The information is thus defective because the State is required
to “allege and prove” that either the defendant or the person with whom the
defendant agreed “performed an overt act in furtherance of the agreement.”
I.C. § 35-41-5-2(b). However, a challenge to a defective charging
information must be made within twenty days of the omnibus date, and
failure to do so results in waiver of the issue on appeal. Townsend v.
State, 632 N.E.2d 727, 730 (Ind. 1994); I.C. § 35-34-1-4(a).
[3] The statute provides, “Whenever: (1) a defendant is charged with
an offense and an included offense in separate counts; and (2) the
defendant is found guilty of both counts; judgment and sentence may not be
entered against the defendant for the included offense.” I.C. § 35-38-1-6.
[4] The statute provides in relevant part:

“The court may order terms of imprisonment to be served consecutively
even if the sentences are not imposed at the same time. However,
except for crimes of violence, the total of the consecutive terms of
imprisonment . . . to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not
exceed the presumptive sentence for a felony which is one (1) class of
felony higher than the most serious of the felonies for which the
person has been convicted.”

I.C. § 35-50-1-2(c) (emphasis added).