Johnson v. State

• Decision Date: 29 December 1994
• Docket Number: No. 48A02-9304-CR-166,48A02-9304-CR-166
• Citation: 645 N.E.2d 643
• Parties: Van JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 643

645 N.E.2d 643

Van JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 48A02-9304-CR-166.

Court of Appeals of Indiana,

Second District.

Dec. 29, 1994.

Montague M. Oliver, Jr., Montague M. Oliver, Jr. & Associates, Anderson, for appellant.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

OPINION

HOFFMAN, Judge.

Appellant-defendant Dr. Van Johnson appeals from his conviction for voluntary manslaughter, a Class A felony. The facts most favorable to the judgment disclose that on the evening of June 10, 1990, James Wagner was at an apartment complex in Anderson, Indiana, collecting money from customers of his children's newspaper route. When Wagner came to the door of Johnson's apartment, Johnson opened the door and shot Wagner in the chest. Wagner died almost instantly.

Johnson dragged Wagner's body from the porch into his apartment. He then called his attorney. Approximately twenty minutes after the shooting, Johnson called 911 to report that he had "accidentally" shot someone. When the police arrived at Johnson's apartment, they knocked on the door but did not receive an answer. After knocking a second time, Johnson opened the door very slowly and said, "I am not armed." Inside the apartment was Wagner's body. Johnson showed the police officers the shotgun he had used to kill Wagner and admitted that he also had a nine millimeter handgun in the apartment. Johnson was read his Miranda rights. Johnson stated that he had already talked to his attorney and that he wished to explain what had happened.

Johnson stated that he saw an unfamiliar man looking in his window. Having no idea who the man was, Johnson went to get his gun but was unable to find it. Johnson said he then went to his bedroom and grabbed his loaded shotgun and opened the front door. Johnson claimed that when he opened the front door Wagner "rushed" him and that in response he "shot the sonofabitch." Johnson also stated that he had received telephone calls from the Ku Klux Klan (KKK) and that his office had recently been burglarized. On the drive to the police station, Johnson told the transporting officer that he was from Chicago and that "in Chicago we shoot people like this." He also stated that he did not mean to kill Wagner but "that sonofabitch had threatened [my] life before."

Later that evening, Johnson gave a statement to the police. Johnson repeated that he did not wish to kill Wagner, but that he had received threats recently, and that Wagner should not have been looking in his window. Johnson also admitted that Wagner did not have a weapon in his hands but insisted that "the guy rushed me." Johnson also claimed that a couple of weeks prior to the shooting, people opened his apartment door, breaking the locks, and claiming they were there to inspect the fire extinguisher. Although Johnson had a blood alcohol content of .22% at 2:20 A.M., he was courteous, lucid, well-behaved, responsive to the officers, and did not appear to be impaired the evening of the shooting.

On June 14, 1990, Johnson was charged with murder. On December 17, 1990, Johnson filed a belated motion to interpose the defense of insanity. After several hearings on Johnson's sanity at the time of the offense and his competency to stand trial, the court denied Johnson's request, and a jury trial began on May 28, 1992. The trial court granted Johnson's motion to reconsider the request to be granted leave to raise the insanity defense and after further hearings again denied the request.

At trial, the State was permitted, over Johnson's objection, to present evidence regarding a fire extinguisher inspection which Johnson had told the police about on the evening of the shooting. Also at trial, Johnson attempted to present testimony that he claimed would corroborate his statements that he had previously received threats. The trial court refused Johnson's requests, claiming that they were not relevant to a claim of self-defense. However, some corroborating evidence was admitted despite the court's ruling. At the conclusion of the evidence, the trial court refused Johnson's tendered self-defense instruction on the grounds that there was no evidentiary basis to support the giving of the instruction. Thereafter, the jury found Johnson guilty of the lesser included offense of voluntary manslaughter. He was sentenced to an enhanced sentence of forty years' imprisonment. Johnson now appeals.

Six issues are presented for our review:

(1) whether the trial court abused its discretion in refusing Johnson's petition to file a belated notice of insanity defense;

(2) whether the trial court erred in admitting evidence of a prior incident in which Johnson used a firearm;

(3) whether the trial court erred in excluding evidence of the alleged threats received by Johnson from the KKK and a local hospital;

(4) whether the trial court erred in refusing to instruct the jury on the affirmative defense of self-defense;

(5) whether Johnson was denied effective assistance of counsel when counsel failed to file a timely notice of intent to use an insanity defense; and

(6) whether Johnson's enhanced sentence was supported by sufficient aggravating facts.

Johnson argues that the trial court abused its discretion in not permitting a belated insanity defense to be raised. A defendant intending to interpose the defense of insanity must file notice with the trial court no later than twenty days, if the defendant is charged with a felony, before the omnibus date. IND.CODE § 35-36-2-1 (1988 Ed.). However, after that time the court may in the interest of justice and upon a showing of good cause permit the filing to be made at any time before the commencement of trial. Id. Whether to allow the filing of a belated notice is a matter within the trial court's discretion. Eveler v. State (1988), Ind., 524 N.E.2d 9, 11. An abuse of discretion occurs only when the court's ruling is against the logic and effect of the facts and circumstances. See Hazelwood v. State (1993), Ind.App., 609 N.E.2d 10, 13, trans. denied.

Johnson filed a belated notice of his intent to rely on an insanity defense on December 17, 1990, more than four months after his August 10, 1990 omnibus date. Thus, Johnson failed to file his notice within the time restraints imposed by IND.CODE § 35-36-2-1. Therefore, it was within the trial court's discretion to determine whether good cause had been shown for the delay and whether it was in the interest of justice to permit Johnson to plead the defense of insanity. See Cornelius v. State (1981), Ind., 425 N.E.2d 616, 619.

At the pretrial hearings on the issue of Johnson's psychological condition, Johnson's attorneys admitted they were concerned in July of 1990 that Johnson may have been suffering from mental problems. Further, as early as July 9, 1990, defense counsel indicated to the deputy prosecutor that insanity was a possible defense. However, it was not until after defense counsel received a written report from Dr. Strain on October 2, 1990, and Dr. May on December 17, 1990, that a petition for permission to file a belated insanity defense was filed. Johnson contends that his counsel had good cause to proceed with caution before they raised the defense of insanity given Johnson was a practicing psychiatrist himself. It is not doubted that counsel may often see a need for proceeding with caution, no matter what the defendant's profession. This does not, however, relieve the defendant of filing a timely petition. As noted by the trial court, defense counsel had sufficient information to allow them to file a timely notice of insanity.

Moreover, the trial court did not abuse its discretion in determining that it was not in the interest of justice to allow Johnson to raise the belated defense. Mental illness is not a defense to a crime unless the illness is so severe as to render the defendant unable to appreciate the wrongfulness of the conduct at the time of the offense. Higgins v. State (1992), Ind., 601 N.E.2d 342, 343; IND.CODE § 35-41-3-6. Expert testimony is not conclusive on the issue of a defendant's sanity. See Neff v. State (1978), 177 Ind.App. 248, 250, 379 N.E.2d 473, 476. Rather, all relevant evidence on the issue of insanity including the testimony of laypersons and the circumstances surrounding the crime itself will be assessed. Gregg v. State (1976), 171 Ind.App. 363, 367, 356 N.E.2d 1384, 1386, cert. dismissed 434 U.S. 804, 98 S.Ct. 33, 54 L.Ed.2d 62. (1977).

Prior to trial, extensive hearings were conducted as to both Johnson's competency to stand trial and his sanity at the time of the shooting. At the January 25, 1991 hearing, an assessment by Dr. Strain, a clinical psychologist, was introduced into evidence. The assessment stated that Johnson's "conscience structure appears to be intact" and that "[h]e is capable of remorse, feelings of guilt and shame." However, Dr. May, a psychiatrist, reported that Johnson was temporarily insane at the time of the shooting and that as to this incident he was unable to fully understand what he was doing. Dr. May also testified similarly at the May 6, 1991 hearing. He further stated that he believed that Johnson was incompetent to stand trial. The trial court then ordered an independent evaluation of Johnson's competency to stand trial. Doctors Davis and Murray, both psychiatrists, were appointed by the court to evaluate Johnson. Dr. Davis opined that Johnson was incompetent to stand trial; whereas, Dr. Murray reached the opposite conclusion.

Additionally, there was evidence before the court that after shooting Wagner, Johnson pulled the body from the front porch into his apartment. As pointed out by the State, Johnson then had the presence of mind to call his attorney and finally call 911. These are actions from which it can be inferred that Johnson appreciated the wrongful nature of his conduct. Cf. Gardner v. State (...