Johnson v. State

• Decision Date: 20 December 1996
• Docket Number: No. 18S00-9412-CR-01157,18S00-9412-CR-01157
• Citation: 675 N.E.2d 678
• Parties: Stephen A. JOHNSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

Page 678

675 N.E.2d 678

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

No. 18S00-9412-CR-01157.

Supreme Court of Indiana.

Dec. 20, 1996.

Linda M. Wagoner, Indianapolis, for Appellant.

Pamela Carter, Attorney General, Christopher L. LaFuse, Office of Attorney General, Indianapolis, for Appellee.

DICKSON, Justice.

The defendant, Stephen A. Johnson, was convicted of the murder of Harry Dean Baker. He brings this direct appeal asserting claims of prosecutorial misconduct and ineffective assistance of trial counsel. We affirm the trial court.

1. Prosecutorial Misconduct

To support his contention of prosecutorial misconduct, the defendant asserts that conflicts of interest required the prosecutor's recusal and that the prosecutor generally engaged in a pattern of misconduct at trial.

Baker, a twenty-six year old electrical worker and resident of Delaware County, disappeared in November of 1986. When the defendant was arrested in 1989 in connection with an unrelated burglary, he offered to provide information about the Baker murder in exchange for dismissal of the burglary counts. The State agreed, and the defendant implicated Vance Hiatt in the murder and directed the police to Baker's body. The police charged Hiatt with the murder, but the charges were dismissed when Hiatt's defense attorney, Richard Reed, demonstrated that Hiatt was out of state at the time of the charged murder. The sheriff subsequently received a letter from an Ohio prison inmate, Homer Meyers, formerly a co-worker with the defendant, stating that the defendant had admitted to killing Baker. Following a grand jury indictment in 1993, the defendant was tried and convicted in 1994. By the time of the indictment and jury trial, Richard Reed had become the Prosecuting Attorney for Delaware County.

The defendant first contends that he was denied due process of law and a fair trial by various conflicts of interest on the part of the prosecutor. We regroup and address the following ¹ claims by the defendant: 1) Richard Reed formerly represented Hiatt and later served as Delaware County Prosecutor during the defendant's indictment and trial; ² 2) Reed had a "vendetta" against the defendant. Brief of Appellant at 21; (3) the evidence against the defendant was circumstantial, it also implicated Hiatt, and an independent prosecutor other than Reed would not have prosecuted the defendant; and (4) Reed's former client, Hiatt, had initiated a civil suit against the county and "stood to profit from a conviction of Johnson." Brief of Appellant at 22.

The Indiana Rules of Professional Conduct prohibit a lawyer from revealing "information relating to the representation of a client unless the client consents after consultation," Ind. Professional Conduct Rule 1.6, and, with respect to a lawyer's former representation, prohibit the later representation of another person in a substantially related matter if the subsequent client's interest are materially adverse to those of the former client, absent the former client's consent, Prof.Cond.R. 1.9. A government employee generally may not "participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment." Prof.Cond.R. 1.11(c)(1). In criminal cases, however, while acknowledging the importance of the "precepts of professional ethics," Williams v. State, 631 N.E.2d 485, 487 (Ind.1994); State ex rel. Meyers, 432 N.E.2d 1377, 1378 (Ind.1982), this Court applies an analysis distinct from that used in attorney disqualification questions in civil cases:

[A] lawyer must be disqualified if it is shown that the controversy involved in the pending case is substantially related to a matter in which the lawyer previously represented another client. The test must be applied to the facts of each case to determine whether the issues in the prior and present cases are essentially the same or are closely interwoven therewith.

Williams, 631 N.E.2d at 487. See also Daugherty v. State, 466 N.E.2d 46, 50 (Ind.Ct.App.1984) (emphasizing the "distinction between due process considerations in relation to defendants and ethical considerations pertaining to lawyers"). This issue is not determined by considerations such as whether the prior client's interests are materially adverse to the subsequent client, or whether there is a substantial relation between prior and subsequent representations so as to impose an irrebuttable presumption that confidentiality has been breached. In the criminal context, however, courts are properly concerned with "whether the prosecuting attorney gained any confidential information through their prior association." Id. To determine whether a prosecutor's subsequent use of confidential information denies the defendant a fair trial, the appropriate focus is whether the "information has provided assistance to the prosecution." Williams, 631 N.E.2d at 487; see also Daugherty, 466 N.E.2d at 50. We have disapproved of lawyers prosecuting a criminal case if, by reason of prior representation, the lawyer may have "acquired a knowledge of facts upon which the prosecution is predicated or which are closely interwoven therewith." State ex rel. Meyers, 432 N.E.2d at 1378 (emphasis added). We conclude that the key inquiries are whether the issues in the prior and present cases are essentially the same or are closely interwoven therewith, whether the prosecutor has received confidential information in the prior representation, and, more importantly, whether the information may have subsequently assisted the prosecution.

There exists a relationship between Reed's prior representation of Hiatt and the present criminal proceeding, since both involve the criminal charge of murder of Harry Dean Baker. However, the issues are not sufficiently interwoven to require reversal for failure to disqualify in the absence of any objection by Hiatt. The defendant does not show that Hiatt possessed any information about the defendant's participation in the crime. Hiatt and Reed contended from the outset that Hiatt had no knowledge of the crime because Hiatt was out of the state at the time Harry Baker was killed. Hiatt testified that he did not know the defendant very well, that he was just an acquaintance. He also testified that the only conversation he and the defendant had regarding Baker was shortly after Baker's disappearance when Hiatt drove to the defendant's house looking for Baker and the defendant said "he had no idea [where Baker was], he hadn't seen him and he really didn't have any place to direct [Hiatt] to go look." Record at 329. The defendant has not shown that Reed received confidential information from Hiatt and later used it without Hiatt's consent. It was Hiatt's testimony that placed the information in evidence. Furthermore, the information did not assist the prosecution to the defendant's detriment.

These facts are distinguished from those in Banton v. State, 475 N.E.2d 1160 (Ind.Ct.App.1985), where the defendant objected to his prosecution for burglary by the Tippecanoe County Prosecutor's Office because the County Prosecutor had previously represented Banton's codefendant in the same matter. The codefendant testified that he had discussed with his attorney Banton's participation in the crime and that he provided information about Banton that he would not have revealed to a prosecutor. Id. at 1164. The Banton court held, "[t]he prejudicial effect on Banton's case is readily apparent. The prosecution, via a previous relationship with the same case, knew the details of Banton's case because [his codefendant's] case was, in effect, Banton's case." Id. In the present case, Hiatt was not charged as an accomplice of the defendant. Reed's representation of Hiatt did not provide him with the details of the prosecutor's case against the defendant.

We find that Richard Reed's prior representation of Hiatt did not require disqualification in this case.

Next, the defendant argues that Reed had a vendetta against the defendant and offers as support the fact that Reed waited until eighty-six days were left on the defendant's sentence for another crime before causing the grand jury to meet. In Garren v. State, 470 N.E.2d 719 (Ind.1984), the defendant, attempting to support his claim of conflict of interest, argued that the prosecutor "was hostile and antagonistic toward him and had used 'unnecessary rigor' in his prosecution of [the defendant]." Id. at 723. Focusing on the fact that "the defendant has failed to show that the Prosecutor obtained information from him in confidence" we held that the prosecutor's conduct and attitude were "irrelevant." Id. We likewise find the defendant's argument of a "vendetta" both unsupported and irrelevant.

To further urge that Reed had a conflict of interest, the defendant argues that the evidence linking the defendant to the murder was circumstantial and that this evidence also implicated Hiatt. Therefore, the defendant concludes, an independent prosecutor would have chosen to not pursue the defendant, just as the prosecutor chose not to pursue Hiatt. This Court cannot address the propriety of whether or not the prosecutor should or should not prosecute a suspect or suspects. The determination as to who shall be prosecuted lies within the sole discretion of the prosecuting attorney. Lamotte v. State, 495 N.E.2d 729, 733 (Ind.1986). "If he fails to exercise his discretion honestly and impartially, the remedy is impeachment. This Court may not substitute its discretion for that of the prosecuting attorney." Id. at 734 (included citations omitted).

The defendant also claims misconduct based upon the fact that Hiatt had initiated a civil suit against the county as a result of his arrest. However, the only support for this claim is his unsupported allegation that Reed had a conflict of interest because "Hiatt stood to profit." The defendant makes no showing that Reed stood...