Johnson v. State

Decision Date09 March 1998
Docket NumberNo. 48S00-9305-PD-00498,48S00-9305-PD-00498
PartiesGregory Scott JOHNSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Supreme Court

Linda M. Wagoner, Indianapolis, Michelle Fennessy, Fort Wayne, for Appellant.

Pamela Carter, Attorney General, Geoff Davis, Deputy Attorney General Indianapolis, for Appellee.

SULLIVAN, Justice.

We affirm the denial of Gregory Scott Johnson's petition for post-conviction relief.


Petitioner Gregory Scott Johnson appeals the denial of post-conviction relief with respect to his convictions for Murder, 1 Arson, 2 and sentence of death. 3 We unanimously affirmed Johnson's direct appeal of these convictions and sentence in an opinion authored by Justice DeBruler. Johnson v. State, 584 N.E.2d 1092 (Ind.1992).

The murder conviction was on a charge that Johnson had killed an elderly woman by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary of her home. The Arson conviction was on a charge that Johnson had knowingly damaged the victim's home by means of a fire. The death sentence was supported by the aggravating circumstance that the killing had been done intentionally while committing the crimes of Burglary and Arson. 4

Prior to trial, Johnson sought to compel discovery of all written reports by police officers and firefighters concerning their investigations of the crimes at issue. The trial court denied Johnson's request. We affirmed the propriety of this ruling on direct appeal. Id. at 1103. Following trial, the trial court ordered the reports of nineteen officers sealed and transmitted to us for review. Appellate counsel also had access to the reports. We concluded that there was no reasonable probability that the material withheld by the prosecutor was such that the proceedings at the guilt stage, the jury recommendation stage, or the judge sentencing stage would have been resolved differently. Id. at 1104.

Our earlier opinion contains additional details about the crimes of which and the proceedings in which Johnson was convicted.


At the trial on his petition for post-conviction relief, Johnson had the burden of establishing his grounds for relief. Ind.Post-Conviction Rule 1(5). Therefore, he is now appealing from a negative judgment. When an appeal is from a negative judgment, we must be convinced that the evidence as a whole was such that it leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind.1995); Williams v. State, 508 N.E.2d 1264, 1265 (Ind.1987); Lowe v. State, 455 N.E.2d 1126, 1128 (Ind.1983). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Spranger, 650 N.E.2d at 1120 (quoting Fleenor v. State, 622 N.E.2d 140, 142 (Ind.1993), cert. denied 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415 (1994)).


Johnson contends that he is entitled to post-conviction relief because the prosecutor committed misconduct by withholding material exculpatory evidence.

As discussed briefly supra, the trial court denied Johnson's request for the production of all police and fire department reports. Subsequent to the trial, the trial court ordered the reports of nineteen officers to be sealed and sent to us for review in Johnson's direct appeal. Johnson, 584 N.E.2d at 1104. Johnson's current claim is that information relating to four matters was not forwarded to us on direct appeal and that because the information which was withheld contained material exculpatory evidence, post-conviction relief is warranted.

The prosecution has an affirmative duty to disclose evidence favorable to the defendant. Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). In Brady, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The Supreme Court later determined that the failure to request favorable evidence did not relieve the State of its obligation to disclose evidence favorable to the defendant. United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976). More recently, in United States v. Bagley, the Court applied a materiality standard for favorable evidence and held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-3384, 87 L.Ed.2d 481 (1985).

An allegation of a Brady violation requires a demonstration that the undisclosed favorable evidence "could be reasonably taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. 5 A new trial is warranted if there is a reasonable probability that disclosure of the evidence would have produced a different result. Id. at 419, 115 S.Ct. at 1558. We do not find there to have been a Brady violation.


Johnson first claims that the prosecutor did not disclose information demonstrating that the police also considered one Paul Decker as a suspect, to wit: (1) the existence of an order permitting the taking of Decker's pubic hairs, (2) the results of the laboratory examination of the pubic hairs, and (3) the discovery of latent prints not matching Johnson or the victim. We treat Johnson's claim as arising under the State's duty to disclose matters known to the prosecutor to be "obviously exculpatory." See Agurs, 427 U.S. at 107, 96 S.Ct. at 2399. See also Dukes v. State, 501 N.E.2d 420, 423 (Ind.1986); Schultz v. State, 497 N.E.2d 531, 534-35 (Ind.1986). In order to succeed on a claim that he was denied access to exculpatory evidence, Johnson must first demonstrate that exculpatory evidence existed. Williams v. State, 455 N.E.2d 299, 307 (Ind.1983) (citing White v. State, 263 Ind. 302, 304, 330 N.E.2d 84, 85 (1975)). Johnson has failed in this regard.


Before addressing why Johnson has not carried his burden of proving the challenged information to be exculpatory, we make some general observations. The thrust of Johnson's claim is that the undisclosed information indicates that Decker was a suspect in the crime and that this fact alone is exculpatory. It is important to understand that Johnson does not maintain that he was not involved in the crimes at issue. Johnson only contends that Decker accompanied him in the commission of the crimes. 6 Johnson cannot make out a Brady violation on this basis alone.

"[R]egardless of whether the evidence was material or even exculpatory, when information is fully available to a defendant at the time of trial and his only reason for not obtaining and presenting the evidence to the Court is his lack of reasonable diligence, the defendant has no Brady violation." United States v. White, 970 F.2d 328, 337 (7th Cir.1992) (quoting United States v. Brown, 628 F.2d 471, 473 (5th Cir.1980)). The information which Johnson claims to be exculpatory--Decker's involvement in the crimes--was information (if true) that Johnson had available to him at the time of trial. If Decker was in fact present during the commission of the crimes, Johnson was aware of this fact and did not need the State to advise of him of its suspicions regarding Decker's participation. Cf. White, 970 F.2d at 337 (" 'While the Supreme Court in Brady held that the [g]overnment may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the [g]overnment to conduct a defendant's investigation or assist in the presentation of the defendant's case.' United States v. Marrero, 904 F.2d 251, 261 (5th Cir.1990).").


In addressing the specific information which Johnson challenges, we review the post-conviction court's findings that the additional information discovered by Johnson not submitted to us for review on direct appeal does not constitute exculpatory evidence.

Johnson's first claim is that the State should have disclosed the existence of an order for the taking of Decker's pubic hairs. Johnson argues that the State, in obtaining the order, must have established with probable cause that Decker was a suspect and that this fact is "unquestionably exculpatory to Johnson." 7 Br. of Appellant at 25. As stated supra, the mere fact that the police suspect (or have probable cause to suspect) the involvement of another in addition to the defendant is not exculpatory where the defendant acknowledges the defendant's own participation in the crime.

Johnson next contends that the prosecutor engaged in misconduct by failing to inform Johnson of the results of a laboratory analysis comparing a hair found on the gloves, which were suspected of being used in the crimes, to Decker's pubic hair. The laboratory report revealed that the hair found on the gloves was "microscopically dissimilar" to Decker's pubic hair and that the hair could not have originated from Decker. On this basis, the post-conviction court found that the results of the test were not exculpatory. 8 8 Our review of the record does not lead us to an opposite conclusion. See Averhart v. State, 614 N.E.2d 924, 928 (Ind.1993) (where we stated that inconclusive tests cannot be said to be exculpatory).

Finally, Johnson contends that it was misconduct not to inform him that identifiable latent prints found at the victim's home did not match the prints of either Johnson or the victim. Johnson's argument seems to be that the fact that...

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