ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL JOHNSON, )
)
Appellant (Defendant Below), )
)
v. ) No. 49S00-9903-CR-191
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Tanya Walton Pratt
Cause No. 49G01-9703-CF-42739
March 29, 2000
SHEPARD, Chief Justice.
Appellant Michael Johnson appeals his conviction and sentence for
murder, attempted murder, and carrying a handgun without a license. He
presents two issues:
I. Whether error occurred when the jury heard some evidence of
Johnson’s prior criminal history, and
II. Whether Johnson’s sentence was manifestly unreasonable.
Facts and Procedural History
On March 17, 1997, Johnson and Damone Carter (“Damone”) went to the
home of Gary Davenport. There is conflicting testimony about the nature of
the visit, although it was either to purchase drugs from Davenport or to
rob him. (See R. at 339-40, 600-01.) Ronald Carter (“Ronald”), a friend
of Davenport, was also at the house; he was watching television and trying
“to program a radio.” (R. at 261.)
When Johnson and Damone arrived at the house, Davenport came outside
and spoke with Damone. Then, Ronald called out to Davenport that he had a
phone call, so the three entered the house. At first, Damone, Ronald, and
Johnson sat in the living room while Davenport went into a back room to
hang up the phone. Damone and Ronald had previously met in prison and
began getting reacquainted. After Davenport hung up the phone, he went
into the kitchen area, which was visible from the living room. Johnson and
Damone walked in between the living room and the kitchen, speaking with
Davenport and with each other.
Eventually, Ronald looked up from fixing the radio and noticed that
both Johnson and Damone were in the doorway facing him. Johnson pulled a
gun out of the waistband of his pants. Ronald tried to run toward a patio
door to his left, but a shot hit him in the back of the leg. Ronald fell,
but managed to pull himself up and attempted to throw a television at
Johnson, who was still standing in the doorway. By now, however, Johnson
had turned and was shooting at Davenport, who was still in the kitchen.
When Ronald threw the television, Johnson turned and again shot at Ronald,
hitting him in the arm. This shot caused Ronald to fall through the patio
door.
When the police arrived, Ronald was still lying on the patio.
Davenport was found dead, with gunshot wounds, in a utility room off of the
kitchen. Ronald was taken to the hospital and required surgery.
The day after the shootings, Damone met with several police detectives
and revealed that Johnson had shot Ronald and Davenport. At trial, Ronald
identified Johnson as the man who shot him and Davenport.
The trial court sentenced Johnson to concurrent sentences of sixty
years for murder, forty years for attempted murder, and one year for
carrying a handgun without a license.
I. Evidentiary Error is Not Preserved
Johnson first says the jury improperly heard evidence about his
previous incarceration on an unrelated charge. The State introduced into
evidence a tape and transcript of Johnson’s statement to an investigating
officer in which Johnson refers to being on parole.[1] (R. at 492, 608.)
The prosecutor twice mentioned Johnson’s parole during closing argument.
(Supp. R. at 111, 113.)
Defense counsel did not object to this portion of Johnson’s statement
or request that the references to parole be redacted. Nor did counsel
object to the prosecutor’s statements during closing. Failure to object to
the admission of evidence waives an error for appellate review. Townsend
v. State, 632 N.E.2d 727 (Ind. 1994). Similarly, a claim of prosecutorial
misconduct is waived if there is no objection. Stevens v. State, 691
N.E.2d 412 (Ind. 1997), cert. denied, 119 S. Ct. 550 (1998).[2]
Johnson also claims error occurred when the State asked an
investigating officer, Detective Forrest, whether he had “any information
with respect to Michael Johnson.” (Appellant’s Br. at 6, R. at 357.)
Because Forrest had just finished discussing Damone Carter’s drug
activities, Johnson argues that the question left the jury with the
impression that “Detective Forrest knew about Michael because Michael was
involved in the drug trade.” (Appellant’s Br. at 6-7.)
Defense counsel objected to the question before Forrest was able to
respond, and the court admonished the jurors and instructed them that
questions were not evidence. We find this reference to Johnson’s prior
misconduct fragmentary at best. See Schlomer v. State, 580 N.E.2d 950
(Ind. 1991). The probable persuasive effect of the question was
negligible.
II. Five-Year Enhancement Was Reasonable
Johnson next claims that his concurrent sentences of sixty years for
murder and forty years for attempted murder were manifestly unreasonable.
In imposing a sentence, a court should 1) identify the significant
aggravators and mitigators, 2) relate the specific facts and reasons that
lead the court to find those aggravators and mitigators, and 3) demonstrate
it has balanced the aggravators against the mitigators in reaching its
sentence. Gregory v. State, 644 N.E.2d 543 (Ind. 1994). Sentencing
decisions rest within the sound discretion of the trial court and we review
them only for abuse of discretion. Archer v. State, 689 N.E.2d 678 (Ind.
1997).
The trial court here found three statutory aggravating factors: 1)
Johnson’s history of criminal and delinquent activity, 2) that Johnson is
in need of correctional or rehabilitative treatment that can best be
provided in a penal facility, and 3) that the imposition of a reduced
sentence or probation would depreciate the seriousness of the crime. (R.
at 683-84.) As mitigating factors, the court listed Johnson’s remorse and
his strong family support. (Id.) It then determined that the aggravating
factors outweighed the mitigating factors. (Id.)
The trial court properly found that Johnson’s criminal history was an
aggravating factor. See Ind. Code Ann. § 35-38-1-7.1(b)(2) (West Supp.
1997). The court appropriately noted that Johnson was on parole at the
time of the incident and had a prior conviction for criminal recklessness
as a Class C felony and a true finding of criminal recklessness as a
juvenile.
The court also properly determined that Johnson is in need of
correctional and rehabilitative treatment best provided by a penal facility
based on the fact that he had previously, and unsuccessfully, been placed
on juvenile probation and adult probation, had been to prison, and was on
parole when he committed the crime. (R. at 684); see also Ind. Code Ann. §
35-38-1-7.1(b)(3) (West Supp. 1997).
As for finding that a given sentence might “depreciate the
seriousness” of a crime, courts speak about this factor in two different
ways. Indiana Code § 35-38-1-7.1(b)(4) says it is an aggravating
circumstance that the “[i]mposition of a reduced sentence . . . would
depreciate the seriousness of the crime.” Stated this way, the aggravator
may only be used when mitigators might otherwise call for a sentence
shorter than the presumptive one. See Ector v. State, 639 N.E.2d 1014,
1016 (Ind. 1994). By contrast, judges sometimes say that a sentence less
than an enhanced term sought by the prosecution would depreciate the
seriousness of the crime, and this is an appropriate aggravator. Id.
Here, the trial court said that imposition of a “reduced sentence
below the presumptive would depreciate the seriousness of the crime.” (R.
at 684.) It did not appear that the judge was considering a sentence below
the standard term, however, so this finding was either inappropriate or
entitled to very little weight.
Still, only one valid aggravating circumstance is necessary to support
an enhanced sentence. Hollins v. State, 679 N.E.2d 1305 (Ind. 1997).
Since the trial court found two valid aggravating circumstances, the
inappropriate use of this one aggravator did not make the enhanced sentence
manifestly unreasonable.
Johnson also claims the court should have found additional mitigating
circumstances: 1) that Damone Carter initiated the crime – not Johnson, 2)
that Johnson committed the crime at a young age, and 3) that Johnson is a
father who supports his child. (Appellant’s Br. at 12.)
“The finding of mitigating factors is not mandatory and rests within
the discretion of the trial court.” Wingett v. State, 640 N.E.2d 372, 373
(Ind. 1994). “Only when the trial court fails to find a significant
mitigator that is clearly supported by the record is there a reasonable
belief that it was improperly overlooked.” Legue v. State, 688 N.E.2d 408,
411 (Ind. 1997).
Age. Johnson was twenty years old at the time of the incident. We
have previously held a court sentencing a twenty-one year old for murder
could legitimately decide not to find age as a mitigator. Herrera v.
State, 679 N.E.2d 1322 (Ind. 1997). In light of that holding and a record
demonstrating that the court was well aware of Johnson’s age,[3] we cannot
say the court erred by not finding youth a mitigator.[4]
Fatherhood. Dependent children are properly considered a mitigating
factor under Ind. Code § 35-38-1-7.1(c)(10). Because Johnson would likely
be in prison throughout the minority of his child, even under the standard
sentence,[5] we cannot attach significant weight to the mitigator. See
Battles v. State, 688 N.E.2d 1230, 1237 (Ind. 1997).
Instigator. Finally, we address Johnson’s contention that it was
Damone Carter, and not Johnson, who initiated the crime. Inasmuch as it
was Johnson who shot both victims, we are not surprised the trial court did
not find this a significant mitigating factor.
On a more general level, we note that the trial court added only five
years to the murder sentence and ten years to attempted murder. She could
have enhanced the sentence ten years for murder and twenty years for
attempt.[6] Moreover, she ran Johnson’s sentences concurrently. This is
not manifestly unreasonable.
Conclusion
We affirm the judgment of the trial court.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Specifically, Johnson states, in reference to carrying a handgun:
I been having the gun for years, I been having the gun for years . . .
and like when I had got out in 96, July of 96, it was just sitting
there and like I said I don’t carry it or nothing, it’s just there for
protection, I don’t know why, knowing I was on parole I wasn’t
suppose[d] to have a gun but it was just there, I just kept it full
and kept it loaded, I ain’t never carried the gun.
(R. at 608.)
[2] Johnson claims these events are fundamental error, namely, a “blatant
violation of basic principles rendering the trial unfair to the defendant.”
(Appellant’s Br. at 7.) They are not.
[3] It is clear from the record that the trial judge considered Johnson’s
age in sentencing stating: “You will be 52 years old if you get all of
your good time when you get out of prison.” (R. at 684.)
[4] For sentencing purposes, maturity may be a better way of thinking of
mitigating circumstances.
[5] The presumptive sentence for murder is fifty-five years, to which the
court added five. Ind. Code Ann. § 35-50-2-3 (West 1998).
[6] See Ind. Code Ann. § 35-50-2-3 (West 1998); Ind. Code Ann. § 35-50-2-4
(West 1998).