ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
HENRY JOHNSON, )
)
Appellant (Defendant Below), ) 49S05-0008-CR-506
) in the Supreme Court
v. )
) 49A05-9912-CR-536
STATE OF INDIANA, ) in the Court of Appeals
)
Appellee (Plaintiff Below). )
INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Gary L. Miller, Judge
Cause No. 49G05-9808-CF-093999 &
49G05-9905-CF-072832
January 3, 2001
SHEPARD, Chief Justice.
This interlocutory appeal arose when a prosecutor missed a deadline
for notifying the defendant of the State’s intent to use Indiana Rule
404(b) evidence in a molestation case. The trial court excluded the
evidence, then dismissed the charge at the State’s request, over the
defendant’s objection. Nine days later, the prosecutor refiled the
original sexual misconduct charge along with ten additional charges that
partially encompassed the evidence the court had excluded. The Court of
Appeals held that the refiling was proper. Johnson v. State, 732 N.E.2d
259 (Ind. Ct. App. 2000).
Under the facts of this case, we conclude the trial court abused its
discretion by allowing the prosecutor to dismiss and refile as a tactic to
circumvent a proper evidentiary ruling, and to punish the defendant for
exercising his procedural rights by piling on additional charges.
Accordingly, we reverse and remand.
Facts and Procedural History
Defendant Johnson worked as an adolescent guidance specialist in
alcohol and drug treatment at Fairbanks Hospital. On or about February 10,
1998, Johnson allegedly had sexual intercourse with a sixteen-year-old
detainee during routine room checks. On August 26, 1998, the State charged
Johnson with sexual misconduct, a class D felony.
On September 9, 1998, the trial court entered an initial hearing
discovery order requiring the State to give thirty days notice of intent to
present any evidence of prior misconduct under Rule 404(b).[1] The State
gave such notice on April 23, 1999, when it filed its final witness and
exhibit list, including as witnesses four other female Fairbanks Hospital
patients. Although the State had listed all four as potential witnesses in
the original charging document, Johnson filed a motion in limine on April
26, 1999, asserting that the State had failed to give formal 404(b) notice
disclosing the nature of the testimony to be offered by these witnesses.
The trial court granted the motion in limine and excluded the 404(b)
evidence. The prosecutor responded with a motion to dismiss the charge,
which the court also granted. Johnson immediately objected in writing,
stating that he was ready to proceed to trial and arguing that, based upon
the State’s declared intent to refile the case, the dismissal should be
with prejudice.[2]
On May 5, 1999, the State refiled the original charge and added ten
more counts: rape and criminal deviate conduct related to the original
victim; rape, criminal deviate conduct, sexual misconduct, criminal
confinement and intimidation related to one excluded witness; battery and
sexual battery of another excluded witness; and attempted promotion of
prostitution of both excluded witnesses. Johnson moved for dismissal of
all charges, the trial court denied the motion, and this appeal ensued.
Refiling as a Tactic
This Court discussed dismissal and refiling of charges as a
prosecutorial tactic in Davenport v. State, 689 N.E.2d 1226 (Ind. 1997),
modified on reh’g, 696 N.E.2d 870 (Ind. 1998). In Davenport, the State
originally charged a defendant with murder. 689 N.E.2d at 1229, 696 N.E.2d
at 871. Four days before trial, the State sought to add charges of felony
murder, attempted robbery, and auto theft. The prosecutor requested
dismissal after he was denied permission to amend the information, and
immediately refiled all four charges. Id.
This Court held that “[w]hile courts have allowed the State
significant latitude in filing a second information, the State cannot go so
far as to abuse its power and prejudice a defendant’s substantial rights.”
689 N.E.2d at 1230.[3] The Court in Davenport reversed the convictions on
the three additional charges, restoring the defendant to his position prior
to the prosecutor’s efforts to avoid the court’s ruling. 689 N.E.2d at
1233, 696 N.E.2d at 872.
The Indiana Court of Appeals applied the principles articulated in
Davenport in the factually similar case of State v. Klein, 702 N.E.2d 771
(Ind. Ct. App. 1998). In Klein, the defendant faced four separate charges
related to an alleged sexual assault. Id. at 772. Less than three weeks
before trial, the court denied as untimely the State’s motion to add a
charge of attempted murder. The State dismissed the original charges and
refiled all four plus attempted murder. Id. The trial court dismissed all
five charges with prejudice upon the defendant’s motion, as an attempt to
evade the court’s denial of the motion to amend. Id. at 772-73. The Court
of Appeals, correctly recognizing that the dispositive fact in Davenport
was an abuse of prosecutorial discretion in circumventing a court order and
prejudicing the defendant’s substantial rights, limited the State to its
original charges.[4] Id. at 776.
Although this case arose from the exclusion of evidence rather than
denial of permission to add charges, the reasoning of Davenport and Klein
is pertinent. In each case, the State sought to take some action (i.e., to
add charges or to offer evidence of other acts of misconduct) that would
require the defendant to revise his defense strategy at the eleventh hour.
In each case, the trial court concluded that the State did not have a good
reason for the delay or lack of notice. In each case, the court properly
forbade the action as taken too late. In each case, the prosecutor sought
to dodge the adverse ruling via dismissal and refiling.
The equities weigh even more heavily in Johnson’s favor than in either
Davenport or Klein. By refiling, the State attempted not only to evade the
court’s ruling and get a second shot at offering 404(b) evidence, but also
to subject Johnson to ten additional charges.
If the State may circumvent an adverse evidentiary ruling by simply
dismissing and refiling the original charge, and also “punish” the
defendant for a successful procedural challenge by piling on additional
charges, defendants will as a practical matter be unable to avail
themselves of legitimate procedural rights.
Here, no new evidence was discovered between the dismissal and
refiling. No elements of the additional charged crimes were completed
during that interim. No honest mistake or oversight occurred in the
original decision to prosecute. See Cherry v. State, 275 Ind. 14, 20, 414
N.E.2d 301, 305 (1981).
Based on the circumstances presented, we conclude that the State
exceeded the boundaries of fair play. The prosecutor impermissibly
impinged the defendant’s exercise of his substantial procedural rights by
dismissing and refiling to evade an adverse trial court ruling and, in the
process, piling on additional charges that were unjustified by changed
circumstances. Therefore, the trial court abused its discretion when it
denied in total Johnson’s motion to dismiss the eleven-count information.
The Remedy
As a matter of equity, the proper remedy is to restore the defendant
to something like the status quo ante. The State may proceed on the
original count of sexual misconduct under the trial court’s original ruling
excluding the Rule 404(b) evidence.[5] Or, the State may forego the
original charge and pursue another charge carrying a similar potential
penalty, with the opportunity to offer Rule 404(b) evidence if timely
notice is given and the trial court rules favorably on admissibility.
Conclusion
We reverse the trial court’s denial of Johnson’s motion for dismissal,
and remand for an election by the State about how it wishes to proceed.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissenting, would deny transfer.
-----------------------
[1] Indiana Rule of Evidence 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable
notice in advance of trial, or during trial if the court excuses pre-
trial notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
[2] Under Ind. Code § 35-34-1-13(a), a prosecuting attorney may move for
dismissal of the information at any time prior to sentencing. The trial
court must grant the motion so long as it states a reason for the
dismissal. Davenport v. State, 689 N.E.2d 1226, 1229 (Ind. 1997) (citing
Burdine v. State, 515 N.E.2d 1085, 1089 (Ind. 1987)). Johnson does not
challenge the dismissal, but argues that it should have been with
prejudice, to foreclose refiling of the charge. (Appellant’s Br. at 6.)
[3] The Davenport opinion notes that “the State does not necessarily
prejudice a defendant’s substantial rights by dismissing an information in
order to avoid an adverse evidentiary ruling and then refiling an
information for the same offense.” 689 N.E.2d at 1229 (emphasis added).
The question of substantial prejudice is a fact-sensitive inquiry, not
readily amenable to bright-line rules.
[4] Some of the original charges were also deemed properly dismissed, on
other grounds. Klein, 702 N.E.2d at 777 n. 6.
[5] Because the defendant’s motion for exclusion was in limine, we observe
that as the trial unfolds, certain events (for example, testimony by the
defendant putting his own character at issue) could require the trial court
to revisit the admissibility of the evidence.