Johnson v. State, 1181S332

Decision Date22 December 1982
Docket NumberNo. 1181S332,1181S332
Citation442 N.E.2d 1065
PartiesLonnie JOHNSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Ronald K. Smith, Muncie, for appellant.

Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant, Lonnie Johnson, was found guilty by a jury in the Delaware Superior Court of murder and was sentenced by the trial judge to serve a term of sixty years and to pay a fine of ten thousand ($10,000) dollars plus court costs. Appellant now directly appeals raising the following six issues:

1. whether the trial court erred by denying Appellant's Motion to Dismiss the Amended Information;

2. whether the trial court erred by excusing certain prospective jurors;

3. whether the trial court improperly limited Appellant's cross-examination of one witness;

4. whether the trial court improperly admitted certain photographic exhibits;

5. whether the trial court erred by giving its Final Instruction No. 20 pertaining to accomplice testimony; and

6. whether certain post-trial conduct by the prosecuting attorney constitutes reversible error.

The evidence tended to show that on May 15, 1980, C. Russell Krull was found dead in his home on Kirby Avenue in Muncie, Indiana. Krull's home had been burglarized. An autopsy revealed that Krull died from a deep scalp laceration secondary to blunt trauma to his head. Witnesses Harold Claiborne, a co-defendant, and Kevin Stoner both testified for the State that they burglarized the Krull home together with Appellant. Stoner further testified that when Krull walked through his front door during the burglary, Appellant hit Krull on his head with a hammer and Appellant and Claiborne wrestled him to the floor and tied him up.

I

Appellant filed with the trial court a Motion to Dismiss the Amended Information contending that the Amended Information was defective because it did not allege the means by which the charged capital murder was committed. The original Information and Allegation of Capital Murder charged that Appellant and accomplice Claiborne committed murder by striking Russell Krull on his head with a blunt instrument while committing a robbery against him. The Information was subsequently amended to inform Appellant that the State would seek the death penalty against him. The Amended Information's second page stated that Appellant and Claiborne caused Krull's death during a robbery by the force used while taking Krull's billfold and money. The Amended Information's first page charged that Appellant and Claiborne caused the death of Krull but omitted the statement employed in the original Information describing the means of causing death as striking Krull on his head with a blunt instrument.

The trial court heard arguments on Appellant's Motion to Dismiss and overruled it. Although we do not find the State's position to be commendable, we nonetheless do not find reversible error in this issue. It would have been simple for the State to again amend its Information to directly indicate that the victim was murdered by being struck on his head with a blunt instrument. The State did not do so, however, and the trial court did not require it to. Notwithstanding, we find that the pleadings as described above sufficiently informed Appellant of the charges against him. Moreover, we find that Appellant was well aware of the charges and was able to defend himself without prejudice. Carson v. State, (1979) Ind., 391 N.E.2d 600, 602, on remand, Ind., 403 N.E.2d 330. This Court has, in fact, recognized the propriety of filing an information or indictment charging murder where the victim's cause of death is not specifically known. Roberts v. State, (1978) 268 Ind. 348, 351, 375 N.E.2d 215, 218 reh. denied; State v. Carrier, (1956) 235 Ind. 456, 460, 134 N.E.2d 688, 690. From our reading of the complete Amended Information with Notice of Intention to Seek Death Penalty, we believe Appellant was given an accurate and full notice of the charges he was to defend. We find no reversible error.

II

The trial court excused two prospective jurors challenged for cause by the State because they each indicated that they could not possibly find Appellant guilty of murder if he would face the death sentence by their doing so. Both of these prospective jurors stated that they would find Appellant not-guilty regardless of the evidence. Appellant argues that the exclusion of these two prospective jurors falls within the ambit of Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, where the United States Supreme Court held that a defendant may not be sentenced to death if the jury was chosen by excluding for cause prospective jurors who possessed an objection to capital punishment. This Court subsequently held, however, that Witherspoon does not mean that prospective jurors cannot be excluded if they indicate that their feeling against the death penalty is so strong that they cannot convict under any circumstance. Frith v. State, (1975) 263 Ind. 100, 107, 325 N.E.2d 186, 190. This is the case before us. Further, any error according to this issue is harmless since the death penalty was neither recommended by the jury nor was it imposed by the trial judge.

The trial judge also excused prospective juror Cynthia Long, an unmarried woman of unknown age who lived alone in a rented apartment. The court indicated that it excused Long because she neither owned real estate nor had anyone dependent upon her for support and therefore was not a householder. Appellant correctly states that this Court has held that a householder need not maintain a dependent. Stevens v. State, (1976) 265 Ind. 396, 400, 354 N.E.2d 727, 731, on rehearing, 265 Ind. 410, 357 N.E.2d 245. We interpreted the legislative intent to be that a householder is a person who has had the experience of making important and binding practical decisions of everyday life independently of family or others. Since prospective juror Long independently lived and cared for herself, she might have qualified as a householder. We agree with the State, however, that the trial court's application of Ind.Code Sec. 33-4-5-7 (Burns 1975) in this instance was not a violation per se of the Witherspoon prohibition against any intentional or systemic exclusion of a particular class of persons from jury service. The trial court does have discretionary authority to excuse prospective jurors and a defendant must show that such action resulted in prejudice to his cause. Holt v. State, (1977) 266 Ind. 586, 590, 365 N.E.2d 1209, 1211; Tewell v. State, (1976) 264 Ind. 88, 95, 339 N.E.2d 792, 797. Appellant has not demonstrated any injury or damage to him from which we might conclude that the trial court's dismissal of prospective juror Long was such an abuse of discretion that it constitutes a reversible error.

III

Appellant claims the trial court improperly curtailed his right to a full and effective cross-examination of State's witness Tommy Lee Isom. Appellant bases his allegation of error upon several rulings the trial court made regarding objections by the prosecuting attorney to questions asked by defense counsel. It is Appellant's argument that he was prevented from a thorough probing of the witness' evasive and contradictory testimony. The record shows, however, that Appellant was permitted to fully question the witness about which of his statements at trial were true and which were not. Defense counsel fully examined this witness on cross-examination. The rulings of the trial court do not confirm Appellant's claim that he was deprived of the right of cross-examination. The trial court properly sustained the State's objection to a question which had already been asked and answered by the witness. It is proper for the trial court to prohibit repetitious questions and answers in either direct or cross-examination. Johnson v. State, (1971) 257 Ind. 389, 394, 275 N.E.2d 14, 17, reh. denied (1972).

IV

State's Exhibits Numbered 23, 24, 25 and 26 were photographs of decedent Krull and were admitted into evidence over Appellant's objection that they were cumulative and would serve only to prejudice and inflame the passions of the jurors. Exhibit No. 23 showed the wounds on the decedent's face and Exhibit No. 24 demonstrated a laceration in decedent's scalp. Exhibits Numbered 25 and 26 portrayed the decedent's hands and particularly depicted bruising and punctate wounds usually associated with an act of self-protection according to certain medical evidence. The challenged photographs were, therefore, illustrative of the doctor's testimony and tended to show the nature and extent of the decedent's wounds and to prove the cause of his death. In this regard they were not repetitive or cumulative as they showed different parts of decedent's body and the wounds thereon. Photographic evidence, however gruesome, is admissible if it serves to inform the jury on matters relevant to the case. Smith v. State, (1981) Ind. 420 N.E.2d 1225, 1229; Bond v. State, (1980) Ind., ...

To continue reading

Request your trial
7 cases
  • Cox v. State
    • United States
    • Indiana Supreme Court
    • 21 Marzo 1985
    ...65 L.Ed.2d 581. The jury did not recommend the imposition of the death penalty. We found, under similar circumstances in Johnson v. State (1982), Ind., 442 N.E.2d 1065, any error on this issue was Appellant argues the Adams based voir dire operated to excuse for cause jurors on grounds equa......
  • Daniel v. State, 49S00-8812-CR-982
    • United States
    • Indiana Supreme Court
    • 10 Diciembre 1991
    ...(1989), Ind., 535 N.E.2d 493; on review, an abuse of that discretion resulting in prejudice must be demonstrated. Id.; Johnson v. State (1982), Ind., 442 N.E.2d 1065. Thus while Ms. Farrell's opinions perhaps were not so unyielding as those found unacceptable in Campbell v. State (1989), In......
  • England v. State
    • United States
    • Indiana Supreme Court
    • 18 Octubre 1988
    ...accomplice testimony. It did not suggest that accomplice testimony is on a different plane than other testimony. See Johnson v. State (1982), Ind., 442 N.E.2d 1065, 1069; Tippett v. State (1980), 272 Ind. 624, 628-29, 400 N.E.2d 1115, 1118. It was not error to give this England claims the t......
  • Patterson v. State, 1084S381
    • United States
    • Indiana Supreme Court
    • 25 Julio 1986
    ...Patterson's substantial rights were not prejudiced by the deficiency. See, Schlacter v. State (1984), Ind., 466 N.E.2d 1; Johnson v. State (1982), Ind. 442 N.E.2d 1065. The key issue is whether Patterson was sufficiently apprised of the charges against her so that she could prepare her defe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT