Johnson v. State, No. 1282S500

Docket NºNo. 1282S500
Citation472 N.E.2d 892
Case DateJanuary 11, 1985
CourtSupreme Court of Indiana

Page 892

472 N.E.2d 892
Ronald JOHNSON, Michael Johnson, Gary Lingler, Appellants,
v.
STATE of Indiana, Appellee.
No. 1282S500.
Supreme Court of Indiana.
Jan. 11, 1985.

Page 897

David P. Sexson, Stephen P. Sherron, Indianapolis, for appellants.

Linley E. Pearson, Atty. Gen. of Indiana, Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendants-Appellants Ronald Johnson, Michael Johnson, and Gary Lingler were jointly tried by a jury in the Morgan Superior Court. Michael Johnson was found guilty of attempt to commit the crime of murder, rape with a deadly weapon, criminal deviate conduct while armed with a deadly weapon, and criminal confinement while armed with a deadly weapon. He was sentenced to a term totalling ninety (90) years. Ronald Johnson was found guilty of attempt to commit the crime of murder, rape with a deadly weapon, criminal deviate conduct while armed with a deadly weapon, and criminal confinement while armed with a deadly weapon. He was sentenced to a term of one hundred and thirty (130) years. Gary Lingler was found guilty of the crimes of attempt to commit the crime of murder, rape with a deadly weapon, a second count of rape with a deadly weapon, criminal deviate conduct while armed with a deadly weapon, and criminal confinement while armed with a deadly weapon, and was further found to be an habitual offender. Lingler was sentenced to a term of two hundred (200) years.

The nineteen issues presented for our consideration in this direct appeal are as follows:

1. error of the trial court in overruling Defendants' motion to dismiss and Defendants' motion to suppress evidence;

2. permitting Officer Canal to testify to statements made by Officer Dine at the hearing on the motions to dismiss and suppress;

3. permitting identification testimony regarding Michael Johnson;

4. denial of a motion for mistrial concerning statements of Gary Lingler;

5. permitting testimony of statements by Gary Lingler;

6. denial of a motion for change of venue from the county;

7. denying Defendants' challenge for cause to two prospective jurors;

8. failure of the State to produce possible exculpatory evidence;

9. permitting Officer Canal to testify as to statements from Detective Deal;

10. admission of State's Exhibit 1 into evidence;

11. refusal of polygraph examination testimony;

Page 898

12. admission into evidence of a composite drawing;

13. denial of Defendants' motion for jury to view the automobile used in the crime;

14. overruling of Defendants' objection to State's tendered final instruction No. 1;

15. error in the habitual offender proceedings of Defendant Lingler;

16. permitting testimony regarding threats of violence by defendants and concerning prior sexual acts of Ronald Johnson;

17. denial of Defendants' motion for change of judge for sentencing;

18. prosecutorial misconduct; and

19. improper sentencing.

The facts tend to show that on the evening of December 26, 1981, D.T. returned to her Greenwood, Indiana apartment after having been out with friends. As she got out of her car, a man approached her, grabbed her, and threatened her with a knife. D.T. was forced by the man with a knife into a vehicle in which two other men were seated. One of the other men threatened her with a gun.

She eventually was driven to a house not far from I-65 in Indianapolis. She was forced into a bedroom where each man forced her to engage in sexual activities against her will. All three men engaged in regular sexual intercourse and two of the men also performed anal intercourse upon her. The men then promised that they would not hurt her and forced her back into the car. They did not, however, drive her back to her apartment, but instead drove to the Henderson-Ford Bridge in Morgan County, where they bound her hands and threw her off the bridge into icy waters.

D.T. was able to free herself after hitting the water and eventually was able to struggle to shore. Before she pulled herself from the icy river, she waited until a car parked on the bridge left, afraid that it contained her assailants. She then dragged herself to the road and was able to flag down a passing car. She was taken to the sheriff's office and from there to a hospital for medical treatment. From a composite sketch she gave to the police, Officer Deal was able to identify Michael Johnson. On January 17, 1982, D.T. attended a lineup and identified Michael Johnson as one of the perpetrators. At trial she unequivocally identified Michael Johnson. From photographic displays D.T. further identified Gary Lingler and positively identified him at the trial. From a second lineup she selected Ronald Johnson as looking like the driver of the car, but she was not positive of this identification. D.T. was also able to identify Michael Johnson's house as appearing to be the house where she was raped, and made some identification of Ronald Johnson's automobile.

I

Defendants claim the trial court erred by not granting their motions to dismiss and to suppress evidence, claiming that the affidavits for probable cause for the arrest and search warrants contained false allegations and material misrepresentations. The State contends the defendants have failed to establish that deliberate false allegations and material misrepresentations were made in the probable cause affidavits. It is the State's position that, at most, in the haste of preparation, negligent and innocent mistakes were made that would not amount to an adequate basis upon which the magistrate issued the warrants.

The State first properly points out that not all of the defendants may legitimately challenge the search warrant or the search of the house and vehicle. It is well settled that in cases involving Fourth Amendment search and seizure claims, the initial question which must be answered is whether the person who is aggrieved had any personal and legitimate expectation of privacy in the place searched. Humes v. State, (1981) Ind., 426 N.E.2d 379. A defendant has no constitutional right to challenge the search or seizure of another person's property. Hope v. State, (1982) Ind., 438 N.E.2d 273. This is so even if the search was without probable cause. Pollard

Page 899

v. State, (1982) Ind.App., 439 N.E.2d 177, 183, reh. denied.

In the instant case, Defendants complain of the search of Michael Johnson's house and the search of Ronald Johnson's automobile. No evidence has been presented that Gary Lingler had any legitimate expectation of privacy in either the house or the car. Therefore, Defendant Lingler may not challenge the search warrant or the search of either the house or the car. Hope, supra; Hume, supra; Pollard, supra. The State makes a similar argument with respect to Michael and Ronald Johnson's automobile. The vehicle belonged to Ronald Johnson. There was no evidence that would permit a reasonable inference that Michael Johnson had a legitimate expectation of privacy in Ronald's automobile. Therefore, Michael Johnson may not challenge the search warrant or search of the car. However, there was evidence at trial that Ronald Johnson resided at 3323 South Rural with Michael Johnson. Thus, both Michael and Ronald Johnson may challenge the search warrant and the search of the house.

In order to sustain their claim that the affidavits for probable cause for the arrest and search warrants contained false allegations and material misrepresentations, and that without the improper material the warrants lacked probable cause, the burden was on the defendants to show that relevant matter as expressed in the affidavits was untrue. Everroad v. State, (1982) Ind., 442 N.E.2d 994, 1005, reh. denied. Allegations of negligence or innocent mistake are insufficient. Franks v. Delaware, (1978) 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667. The Court of Appeals stated the manner in which we review this issue in Watt v. State, (1980) Ind.App., 412 N.E.2d 90, 95, reh. denied:

"Nonetheless, once the State has obtained a magistrate's determination of probable cause, a presumption of validity obtains. Franks, supra. See generally, 2 J. Varon, Searches Seizures and Immunities 876 (1974). It is therefore incumbent upon the defendant to make some showing that the facts stated were untrue or tainted by illegality, if the reasonable inferences to be derived from the common-sense reading of the affidavit are that no such falsehood or illegality exists. Reviewing courts, including the trial court on a motion to suppress, must pay substantial deference to the magistrate's determination of probable cause. Aguilar v. Texas, (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Riddle, supra. Thus, it is entirely proper to require of one challenging the legality of a search, in order to suppress evidence, that he establish an invasion of his rights. Jones v. United States, (1960) 362 U.S. 257, 80 S.Ct. 725, 731, 4 L.Ed.2d 697."

The United States Supreme Court discussed this principle further in Franks, 438 U.S. at 164, 98 S.Ct. at 2681, 57 L.Ed.2d at 678.

"[W]hen the Fourth Amendment demands a factual showing sufficient to comprise 'probable cause,' the obvious assumption is that there will be a truthful showing' (emphasis in original). This does not mean 'truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be 'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true."

Officer Canal filed the affidavit used by the magistrate to issue the warrants here. In the affidavit Officer Canal indicated that he had information from Detective Teresa Deal that Ronald and Michael Johnson had perpetrated a prior rape very similar to the one under...

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93 practice notes
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...Jackson v. State, 597 N.E.2d 950, 962 (Ind.1992), cert. denied, 507 U.S. 976, 113 S.Ct. 1424, 122 L.Ed.2d 793 (1993); Johnson v. State, 472 N.E.2d 892, 909 (Ind.1985); Mears v. State, 455 N.E.2d 742 N.E.2d 494 603, 605 (Ind.1983). Because neither evidence nor witnesses were presented in Def......
  • Moran v. State, No. 49A05-9212-CR-427
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Diciembre 1993
    ...a legitimate expectation of privacy has been found to exist in a home by virtue of residence or ownership, Johnson v. State (1985), Ind., 472 N.E.2d 892, 899; in a hotel room, which, as the occupant's transitory home, provided the same expectation of security from intrusion as an occupant w......
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • 6 Agosto 1993
    ...in limine fails to preserve any error for review. Tyra v. State (1987), Ind., 506 N.E.2d 1100, 1102; Johnson v. State (1985), Ind., 472 N.E.2d 892, 909. In order to raise the question of error, the information must be offered at trial to give the court an opportunity to determine its admiss......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Junio 1986
    ...The granting of a motion in limine does not conclusively rule that that evidence will not be permitted. Johnson v. State (1985), Ind., 472 N.E.2d 892, 908, reh. denied (1985). Defendant was left in the same circumstances to make his tactical decision as to his taking the stand as he would h......
  • Request a trial to view additional results
93 cases
  • Stephenson v. State, No. 87S00-9605-DP-398.
    • United States
    • Indiana Supreme Court of Indiana
    • 25 Enero 2001
    ...Jackson v. State, 597 N.E.2d 950, 962 (Ind.1992), cert. denied, 507 U.S. 976, 113 S.Ct. 1424, 122 L.Ed.2d 793 (1993); Johnson v. State, 472 N.E.2d 892, 909 (Ind.1985); Mears v. State, 455 N.E.2d 742 N.E.2d 494 603, 605 (Ind.1983). Because neither evidence nor witnesses were presented in Def......
  • Moran v. State, No. 49A05-9212-CR-427
    • United States
    • Indiana Court of Appeals of Indiana
    • 13 Diciembre 1993
    ...a legitimate expectation of privacy has been found to exist in a home by virtue of residence or ownership, Johnson v. State (1985), Ind., 472 N.E.2d 892, 899; in a hotel room, which, as the occupant's transitory home, provided the same expectation of security from intrusion as an occupant w......
  • Tyson v. State, No. 49A02-9203-CR-129
    • United States
    • Indiana Court of Appeals of Indiana
    • 6 Agosto 1993
    ...in limine fails to preserve any error for review. Tyra v. State (1987), Ind., 506 N.E.2d 1100, 1102; Johnson v. State (1985), Ind., 472 N.E.2d 892, 909. In order to raise the question of error, the information must be offered at trial to give the court an opportunity to determine its admiss......
  • Boyd v. State, No. 384
    • United States
    • Indiana Supreme Court of Indiana
    • 24 Junio 1986
    ...The granting of a motion in limine does not conclusively rule that that evidence will not be permitted. Johnson v. State (1985), Ind., 472 N.E.2d 892, 908, reh. denied (1985). Defendant was left in the same circumstances to make his tactical decision as to his taking the stand as he would h......
  • Request a trial to view additional results

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