Johnson v. State, 882S288
Decision Date | 25 February 1983 |
Docket Number | No. 882S288,882S288 |
Parties | Larry D. JOHNSON, Appellant, v. STATE of Indiana, Appellee. |
Court | Indiana Supreme Court |
Leeney & Uzis, Hammond, for appellant.
Linley E. Pearson, Atty. Gen., Palmer K. Ward, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant was convicted by a jury of Rape, a Class A felony, and Robbery, a Class C felony. He was sentenced to two terms of imprisonment, fifty (50) years and five (5) years respectively. The sentences were ordered to be served concurrently.
The record reveals the victim, D.F., was being escorted home by her boyfriend, Michael, when a car stopped and the two occupants asked for directions. The bearded passenger, later identified as appellant, approached the victim's boyfriend. The clean-shaven driver, later identified as co-defendant Willie King, approached D.F. Appellant held a revolver and his co-defendant, a knife. The assailants relieved Michael of his wallet and D.F. of her purse. Michael was ordered to leave after the robbery and was hit by appellant's closed fist. D.F. was forced into the car. After memorizing the car's license plate number, Michael ran home and notified the police. Meanwhile, D.F. was forced to remove her clothes. Appellant threatened her with death if she did not cooperate. Appellant's co-defendant King, forced D.F. to submit to intercourse and commit fellatio. Appellant forced D.F. to engage in intercourse. D.F. testified she had been hit in the face and felt what she believed to be a gun held to her head. Following the sexual offenses, appellant dragged D.F. by the hair down an alley. Co-defendant King fled in his car. As appellant and D.F. approached a gas station, D.F. escaped and ran to a car. Co-defendant King was apprehended in his vehicle in close proximity. Appellant was identified by the victims from a photographic display.
Appellant claims the trial court erred in denying his motion for severance. He argues that had he been tried separately, King would have provided exculpatory evidence. Appellant supports his argument with United States v. Echeles, (7th Cir.1965) 352 F.2d 892, United States v. Shuford, (4th Cir.1971) 454 F.2d 772 and United States v. Martinez, (5th Cir.1973) 486 F.2d 15.
In Echeles, supra, the appellant moved for separate trial which the trial court denied. On appeal he claimed, inter alia, that a joint trial would deprive him of his right to call his co-defendant, Arrington, as a witness.
The United States Court of Appeals, 7th Circuit, held Echeles, supra, at 898.
Similarly, the appellant in Shuford, supra, moved for severance, both before trial and at the close of the State's case, so that he could have the benefit of the testimony of his co-defendant Jordan. Jordan, employed as a legal investigator in Shuford's office, would have allegedly testified contrary to the indictment and other testimony. Thus, the evidence was in sharp dispute. Jordan refused to take the witness stand if he and Shuford were tried together. The 4th Circuit Court of Appeals stated at 777, 779:
The 5th Circuit Court of Appeals had occasion to address this issue in Martinez. In that case appellant Huila claimed the exculpatory testimony of his co-defendant, Martinez, was made unavailable when the trial court denied Martinez' tender of a guilty plea and Huila's motion for severance. Counsel for the appellants stated during trial that Martinez would exculpate Huila from any involvement in the transaction only if severance were granted.
The Court set forth the following criteria to determine whether depriving a defendant of the opportunity to use a co-defendant's exculpatory testimony amounts to prejudice resulting in the denial of a fair trial.
"(i) the movant should 'show that the testimony would be exculpatory in effect'; we cautioned that such a showing would not require the equivalent of a statement under oath by the co-defendant whose testimony was sought, op. cit. at 1020; Smith v. United States, supra [5th Cir.1967, 385 F.2d 34], at 38;...
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Johnson v. Davis, No. 3:01cv0655 AS (N.D. Ind. 3/28/2002)
...Court of Indiana resulted in a unanimous decision by that Court, affirming the aforesaid convictions and sentence. See Johnson v. State, 445 N.E.2d 107 (Ind. 1983). Certainly, the findings of fact made by the Supreme Court of Indiana unanimously are entitled to a presumption of correctness ......