Johnson v. State

• Citation: 659 N.E.2d 194
• Decision Date: 18 December 1995
• Docket Number: No. 45A03-9402-CR-55,45A03-9402-CR-55
• Parties: Claire JOHNSON, David Love, and Michael Suhy, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

Page 194

659 N.E.2d 194

Claire JOHNSON, David Love, and Michael Suhy, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A03-9402-CR-55.

Court of Appeals of Indiana.

Dec. 18, 1995.

Rehearing Denied March 13, 1996.

Bruce Carr, Robert J. Henke, David Taylor, Carr & Henke, Lake Station, for Appellants.

Pamela Carter, Attorney General, Janet L. Parsanko, Geoff Davis, Deputy Attorney Generals, Indianapolis, for Appellee.

OPINION

HOFFMAN, Judge.

Appellants-defendants Claire Johnson, David Love, and Michael Suhy (collectively "defendants") appeal their convictions for obstructing pedestrian traffic, Class B misdemeanors, and criminal trespass, Class A misdemeanors. The facts relevant to appeal are summarized below.

On the morning of March 20, 1993, employees of the Merrillville, Indiana Planned Parenthood Clinic ¹ (Clinic) arrived at work to find a group of individuals blocking the doors and walking around the Clinic. According to them, they were attempting to educate Clinic patients regarding the dangers surrounding abortion procedures and to stop any abortions which may have been scheduled that day. As a result of their efforts, both employees and patients were denied access to the building. The Clinic did not open.

Soon thereafter, police were summoned to the scene. Upon arrival, police discovered approximately 200 individuals in front of the Clinic. A number of individuals were also blocking the Clinic doors. Over a public address (PA) system the group was generally instructed and those blocking the doors were personally instructed, that the Clinic was located on private property, they were trespassing, and if they did not leave the premises immediately, they would be arrested. No one left.

The police then arrested those persons blocking the doors to the Clinic. During arrest, some individuals stood when police approached. Some were shackled to concrete and steel devices. Others kneeled, sat down, passed out literature, or made themselves limp while police attempted to handcuff and carry them to police and fire vehicles.

In total, 27 individuals were tried for events occurring at the Clinics. The defendants were among those convicted of obstructing pedestrian traffic and criminal trespass. For purposes of sentencing, the 27 individuals were placed in three groups: A, B, and C. Defendants were placed in Group A. As such, the trial court sentenced them each to one year imprisonment and a $5,000.00 fine for their criminal trespass convictions. For their convictions for obstructing pedestrian traffic, the trial court sentenced them to a 180-day jail term, and a $500.00 fine. The sentences, which were to be served consecutive to one another, were suspended. The trial court also placed defendants on a two-year probationary term; ordered them to perform 500 hours of community service at a local hospital or care center; and as part of an eight-hour community service project, ordered them to attend a reproductive health lecture sponsored by Planned Parenthood. Pursuant to the order, any defendant refusing to attend the eight-hour lecture was required to spend a day in jail for each hour of the lecture missed. Defendants appeal their convictions.

On appeal, they raise several issues which we consolidate into six:

(1) whether error occurred in the manner in which they were identified at trial;

(2) whether the trial court erred in ruling on certain discovery matters;

(3) whether the trial court violated their constitutional rights by imposing the lecture requirement;

(4) whether the trial court erred in conducting an ex parte communication with the prosecution;

(5) whether the trial court erred in excluding certain evidence and an instruction on the defense of necessity; and

(6) whether the trial court erred in imposing restitution.

Officer William Poling was present at the scene and video taped events as they occurred. At trial, using his recollection, the video tape he had made, individual mug shots taken by him, and a photograph negative log sheet, he identified defendants. On appeal, defendants contend the manner in which he did so was impermissibly suggestive.

Due process of law requires suppression of testimony concerning an out-of-court identification when the procedure employed was unnecessarily suggestive. Bell v. State (1993), Ind., 622 N.E.2d 450, 454. The trial court must determine whether the confrontation was so impermissibly suggestive as to create a danger of an "irreparable mistaken identification." Id. In this analysis, the totality of the circumstances of the case is reviewed. James v. State (1993), Ind., 613 N.E.2d 15, 27. Factors to be considered are: (1) the opportunity of the witness to view the defendant at the scene of the crime, (2) the degree of attention given by the witness, (3) prior descriptions given by the witness regarding the defendant, and (4) the level of certainty illustrated by the witness. Id.

Defendants attack inter alia the propriety of a meeting during recess between Officer Poling and the prosecution which allowed him to review his video tape to refresh his recollection. In sum, they claim Officer Poling received coaching on his identifications. However, the record discloses that during this meeting, Officer Poling held the television remote control, paused the tape periodically on his own, and by using photographs he had personally taken of defendants, refreshed his ability to make identifications. Further, while this was occurring, the prosecution took notes but did not convey to him whether his identifications were accurate. Moreover, at trial, Officer Poling denied that prosecutors "took [him] through the tape" or told him how to answer questions posed to him.

To show undue suggestiveness, defendants also point to the existence of colored dots on the mug shots taken by Officer Poling. They argue the dots were used to steer him to make certain identifications. The record shows the dots were used by the prosecution merely for their own organizational efforts. Officer Poling stated he had no knowledge of their purpose. Further, there is no evidence he relied on them in making any identifications. See Thomas v. State (1987), Ind., 510 N.E.2d 651, 653 (defendant not entitled to mistrial based on alleged coaching where witness not aware of suggestive gestures and no showing by defendant he was placed in grave peril as a result).

At trial, several witnesses stated only those individuals blocking the Clinic doors were taken into custody. The record further discloses the suspects were then promptly transported to the Street Department Garage ² for booking procedures. As noted above, Officer Poling was not only present at the scene of the crime and video taped the events occurring there, but he also immediately followed other officers to the Garage where he photographed each individual suspect and personally documented the arrests through use of a photograph negative log sheet prepared by him.

Both Suhy and Johnson were on the video tape and identified in court by Officer Poling. Although Love was not on the video tape, Officer Poling stated he remembered seeing him at the Clinic doors and photographing him at the Garage.

Defendants also argue no one personally witnessed them committing their crimes and that mere presence at the arrest site is insufficient to sustain their convictions. While defendants are correct to note arrest alone is insufficient to establish guilt, they also appear to misunderstand both the nature of the evidence against them and the gravamen of their crimes.

A person who does not have a contractual interest in property commits criminal trespass when he or she "(a)(2) ... knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person or his agent" or "(a)(4) ... knowingly or intentionally interferes with the possession or use of the property of another person without his consent." IND.CODE § 35-43-2-2 (1993 Ed.). It is not readily apparent what conduct above and beyond this defendants contend is necessary to sustain their convictions. However, it is evidence of their uninvited presence at the Clinic, not their arrests there, which supports a finding of their guilt. That the arrests occurred at the same site of the trespass is merely coincidental. The other arguments raised by defendants in the area of identification merely go to the weight of Officer Poling's testimony, not its admissibility, and do not amount to error.

Next, citing numerous instances of alleged misconduct by the prosecution, defendants complain the trial court erred in ruling on certain discovery matters. However, defendants simply present an array of conclusory statements, none of which amount to a successful showing that the outcome of their trial was prejudiced in any manner. See Jenkins v. State (1993), Ind., 627 N.E.2d 789, 798-799 (absent showing of clear violation of broad discretion in discovery matters and resulting prejudice therefrom decision of trial court will not be disturbed).

Defendants also complain the trial court erred in its imposition of sentence. Initially, they argue the lecture requirement is an attempt at governmentally imposed "reprogramming" in violation of their First Amendment rights to freedom of religion, speech, and association. ³

Probation is a "matter of grace and a conditional liberty that is a favor, not a right." Million v. State (1995), Ind.App., 646 N.E.2d 998, 1002. Accordingly, a trial court is granted broad discretion in establishing conditions of probation in order to safeguard the general public and to create law abiding citizens. Patton v. State (1991), Ind.App., 580 N.E.2d 693, 698, trans. denied. Conditions of probation which intrude upon constitutionally protected rights are not necessarily invalid. Id.; see U.S. v. Turner, (10th Cir.1995), 44 F.3d 900, 903 (prohibition against harassing, intimidating or picketing in front of...