Johnson v. State

Decision Date10 July 1974
Docket NumberNo. 673S119,673S119
Citation313 N.E.2d 542,262 Ind. 183
PartiesJames JOHNSON, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

William C. Erbecker, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., for appellee.

DeBRULER, Justice.

This appeal is from the denial of a Post Conviction One petition. The previous history of the case is set forth in the opening paragraphs of the unanimous opinion on the original appeal, Johnson v. State (1972), 257 Ind. 389, 275 N.E.2d 14:

'On June 4, 1970, appellant was indicted for First Degree Murder and on June 10, 1970, was arraigned and pleaded not guilty. Appellant waived trial by jury. On November 5, 1970, appellant was found guilty of second degree murder in Marion Criminal Court. The court entered the following judgment:

'The Court finds your are (sic) (age) to be forty-five (45) years of age and sentences you to the Indiana State Prison for a term of life imprisonment.'

On March 15, 1971, appellant filed a Petition to File a Belated Amended Motion to Correct Errors, pursuant to Post-Conviction Remedy Rule 2. The petition was granted and the motion overruled on the same day. This appeal followed.'

In that opinion it was said that the sole issue raised on appeal was the trial court's sustaining of these objections made by the prosecution to questions asked of State's witnesses on cross-examination. It was held that no abuse of the trial court's discretion had been shown.

In his post conviction petition, appellant alleged that perjured testimony was given against him during the trial, by State's witnesses against him and that such evidence permeated the trial to such an extent that his conviction should be reversed. This allegation rests upon § 1(a)(4) of PC. Rule 1, which states that:

'(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice.'

Appellant also alleges that insidious and inflammatory evidence in the form of gruesome photographs of the deceased victim's body were unlawfully used against him; and that the alleged murder weapon introduced at trial was obtained by the State as the product of an unlawful search and seizure and was therefore unlawfully received in evidence against him; and that the use of such evidence by the State warrants reversal of his conviction. These two allegations rest upon § 1(a)(1) of PC. Rule 1, which states:

'(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state.'

The State filed an answer in general denial, and also alleged that the claims made in the petition had been previously adjudicated, and also that the right to urge these grounds for relief had been waived.

At the hearing on the petition, the only evidence which was presented was the oral testimony of the appellant. Upon this evidence, the trial court, in sparse terms, decided each of the above issues on their merits, against the appellant. The trial court concluded that the appellant had failed to establish his grounds for relief by a preponderance of the evidence, as required by § 5 of PC. Rule 1.

The State in its answer brief on appeal makes persuasive arguments that each of the grounds for relief, relied upon by appellant in the trial proceedings has been waived. Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538; Dixon v. State (1972), Ind.App.,290 N.E.2d 731. But here, the trial judge, in his findings and conclusions, ignored the issues and evidence of waiver proffered by the State, and instead found that the appellant had failed in his burden of proof. Since the trial judge did not find a waiver to have occurred, and further since the State did not file cross-errors on appeal alleging that the trial court erred in failing to make special findings and conclusions on the issue of waiver, we cannot base our decision here upon waiver principle. Langley v. State, supra.

Since we are required to decide the merits of the issues raised in this appeal, we are guided at the outset by the principle that a decision of a trial court against the party bearing the burden of proof will not be set aside on appeal unless the evidence is without conflict and leads unerringly to a result not reached by the trial court. State v. Smithers (1971), 256 Ind. 512, 269 N.E.2d 874; Pokraka v. Lummus Co. (1951), 230 Ind. 523, 104 N.E.2d 669. The findings and judgment of the trial court here are negative in legal contemplation. Appellant's first ground for relief is that there exists 'evidence of material facts, not previously presented and heard' at the trial resulting in his conviction. PC. 1, § 1(a)(4). He supports this simply by his own oral testimony given at the post conviction hearing that eye witnesses for the State lied at trial when they testified that they were present at the scene of the shooting upon which the charge of murder was based. Appellant was the only witness at the hearing. No affidavits were presented. On cross-examination by the State, appellant admitted that he took the witness stand at the trial and testified that one of these eye witnesses was not at the scene of the shooting. In Asher v. State (1971), 256 Ind. 381, 269 N.E.2d 156, we held that in order for new evidence to warrant the vacation of a conviction it should be sufficiently material and decisive as to give rise to a strong likelihood that its presentation in a new trial would cause a different result to be reached. We are convinced that appellant's testimony on this point at a new trial would produce no such result. It is also apparent that at least part of this evidence was given at the trial, and does not qualify to support a claim under § 1(a)(4), since it had been previously presented and heard. The trial court did not err in finding a failure of proof on this ground.

In support of appellant...

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24 cases
  • Williams v. State, 2-1284A388
    • United States
    • Court of Appeals of Indiana
    • February 26, 1986
    ...his allegation of error by a preponderance of the evidence. See Davis v. State (1975), 263 Ind. 327, 330 N.E.2d 738; Johnson v. State (1974), 262 Ind. 183, 313 N.E.2d 542. IV. Williams also contends the post-conviction court erred in failing to instruct the jury to disregard the polygraph r......
  • Wallace v. State, 84S00-8803-PC-00298
    • United States
    • Supreme Court of Indiana
    • April 17, 1990
    ...findings and conclusions on the issue of waiver, we cannot base our decision on the waiver principle. See, e.g., Johnson v. State (1974), 262 Ind. 183, 186, 313 N.E.2d 542, 544. Since the trial court decided all of these issues on the merits, we must review them on the merits as Wallace set......
  • Mickens v. State
    • United States
    • Court of Appeals of Indiana
    • October 7, 1991
    ...unless the State also files a cross-appeal challenging the post-conviction court's failure to find waiver. Johnson v. State (1974), 262 Ind. 183, 185-86, 313 N.E.2d 542, 544. Here, the local prosecutor pleaded and argued waiver throughout the course of the proceedings before the post-convic......
  • Harrison v. State, 2--973A194
    • United States
    • Court of Appeals of Indiana
    • November 20, 1975
    ...special findings and conclusions on the issue of waiver. We therefore cannot base our decision upon a waiver principle. Johnson v. State (1974), Ind., 313 N.E.2d 542, 544; see also Gross v. State (1974), Ind.App., 320 N.E.2d 817, I. ALLEGED IRREGULARITIES IN JUDICIAL PROCEEDINGS DID NOT DEN......
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