Johnson v. State, No. 48S00-8611-CR-992

Docket NºNo. 48S00-8611-CR-992
Citation584 N.E.2d 1092
Case DateJanuary 27, 1992
CourtSupreme Court of Indiana

Page 1092

584 N.E.2d 1092
Gregory Scott JOHNSON, Appellant,
v.
STATE of Indiana, Appellee.
No. 48S00-8611-CR-992.
Supreme Court of Indiana.
Jan. 27, 1992.

Page 1096

William Byer, Jr., Byer & Gaus, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Indianapolis, for appellee.

DeBRULER, Judge.

Appellant Gregory Scott Johnson was charged in Count I with felony murder pursuant to I.C. 35-42-1-1(2) in having killed Ruby Hutslar by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary. In Count II, he was charged pursuant to I.C. 35-43-1-1(a) with having knowingly damaged the dwelling of the alleged victim by means of fire, a class B felony. In a separate Count III, the prosecution sought the death sentence by alleging pursuant to I.C. 35-50-2-9(b)(1), the aggravating circumstance that the killing had been done intentionally while committing the crimes of burglary and arson.

A trial by jury resulted in verdicts of guilty as charged in both Count I and Count II. A judgment of conviction was then entered. Three days later the jury reconvened for the hearing regarding sentencing recommendation. Following the presentation of evidence, the jury retired and then returned a verdict recommending that the death sentence be imposed.

A month later the court held the sentencing hearing, during which the evidence and arguments were heard and concluded. The trial court then made an express and written finding that the State proved the aggravating circumstance to the court beyond a reasonable doubt. The court also considered all categories of mitigating factors, noting that appellant had a history of prior criminal conduct and had consumed some drugs and alcohol, but found that no mitigating circumstances existed and imposed the death penalty for the murder. The court also imposed a ten-year sentence for arson.

Johnson raises numerous issues on appeal which we have consolidated and restated as follows:

I. Whether the trial court erred by admitting evidence of statements made by appellant when arrested and when interrogated later at the stationhouse;

II. Whether the evidence was sufficient to prove the criminal intent required on all counts;

III. Whether it was error to fail to find intoxication at the time of the offense to be a mitigating circumstance;

IV. Whether a jury instruction given at the penalty phase was erroneous because it omitted reference to the possible penalties for arson;

Page 1097

V. Whether the trial court erred by refusing to grant a mistrial when evidence of other arsons was injected by the prosecution;

VI. Whether the trial court erred when denying a motion for change of judge;

VII. Whether the trial court erred in refusing to grant pre-trial and in-trial motions to require the prosecution to produce police and fire investigative reports;

VIII. Whether the trial court was in error when admitting evidence describing the deceased victim as having a scared look;

IX. Whether it was error at the penalty phase to admit evidence of jail disciplinary reports;

X. Whether it was error to admit evidence at the penalty phase hearing of appellant's confession to four arsons;

XI. Whether appellant was afforded the effective assistance of counsel at the penalty phase hearing before the jury;

XII. Whether it was error to deny a defense motion to dismiss Count III, seeking the death penalty; and

XIII. Whether the death sentence is appropriate in this case.

In order to support its case, the prosecution submitted the following evidence. A boy delivering morning papers at about 6 a.m. on June 23, 1985, in Anderson, Indiana passed the house of the alleged victim, Ruby Hutslar, age 82. He saw smoke coming out from under the eaves of her roof. Alarmed, he roused a neighbor and reported the fact. He and two passersby then attempted to enter the house, but found the main front door locked. They broke open a front window of the house, but were unable to enter. They went to the back of the house and found the back door open, but were unable to enter because of the heat and smoke. A basement window was observed to have been unscrewed, broken and removed.

At 6:30, firemen arrived and observed one pane of glass in the front door broken. One was unable to reach in to attempt to unlock the door because of the intense heat inside. Fully equipped, a fireman broke open the front door, entered the living room crawling, and found Ruby Hutslar on the floor, six feet from the front door. She was carried out of the house. Efforts to resuscitate her at the scene and later at the hospital were not successful. The cause of her death was determined upon autopsy to be blunt force injuries to the head, neck and chest. She had not died of smoke inhalation or burning.

The fire had started in the center of the house and had climbed a stairway and concentrated in the attic. The fire was put out in about a half hour. A closet and the stairway on the first floor burned but the rest of the first floor and its contents suffered mostly smoke and heat damage. It was observed that the drawers in the furniture had been pulled out and some dumped out. Some small boxes and containers had been opened and their contents dumped out. The contents of a clothes closet were scattered about and the mattress had been removed from a bed. The house was in disarray, and this had not all been caused by the work of the firemen. An investigation into the cause of the fire resulted in the opinion that the fire had been set.

At approximately 6:40 a.m. a police radio broadcast instructed officers to be on the lookout for appellant Johnson because he was suspected of setting several fires in the area of the Hutslar residence. Within minutes appellant was seen by Detective Miller to be standing on the street along with others, watching the fighting of the Hutslar fire. Appellant was known to this officer, who approached him, spoke to him and observed that his eyes were bloodshot, his breath smelled of alcohol, and he was unsteady on his feet, nervous, and anxious. He appeared to be dirty and in disarray. Another onlooker testified that appellant had approached and stood very close behind him and was sweaty. When the onlooker moved sideways, appellant did also, so as to stand close behind him again. The officer placed appellant under arrest for public intoxication.

Appellant made statements at the scene. Officer Miller testified that after being arrested,

Page 1098

appellant was searched, placed in a squad car and there read his Miranda rights for the first time. Appellant became agitated and cursed and said he understood his rights. The officer testified that in his opinion appellant was then intoxicated from a slight to moderate extent. Appellant and his girlfriend testified at a hearing on suppression of statements that appellant was an alcoholic, drinking heavily each day, and that during the twelve hour period preceding his arrest he ingested huge quantities of alcohol and a variety of drugs. A pharmacologist testifying for appellant testified that it would not be possible to accurately predict the effect of the ingestion of the substances as described by appellant, but was able to say that a person who had done so would suffer loss of muscle coordination and that appellant would have had a blood alcohol level of .15 at the time of his arrest and .10 at 8:20 when he signed a waiver of rights form.

Within ten minutes of the arrest, Officer Adams arrived on the scene. He testified that appellant was then in the squad car, in cuffs, and was kicking hard on the inside. Adams went over and asked what was wrong, and saw that appellant appeared "somewhat" impaired by alcohol or drugs. He said "something about him not having a chance and about his upbringing," and "Wisehart did not kill the bitch, I did." Adams then asked, "Did you Scott?", whereupon appellant replied, "No, but if that's the way you fuckers want to play." The statement referred to unrelated prior events in which appellant had provided testimony for the prosecution at the trial of his friend Wisehart, for the murder of another woman.

Appellant was transported to the stationhouse where at 8:20 a.m. he was given his Miranda rights for the second time, this time by Captain Hanlon, his interrogator. He then signed a written acknowledgement and waiver of rights. He denied involvement in the Hutslar fire, but gave four written statements, confessing to having set or having attempted to set four fires in the area in recent times. At the time of the written rights waiver appellant smelled strongly of alcohol, his eyes were a little bloodshot, and he manifested anger. Periodically appellant was left alone during the interrogation and would sleep for a while. During the morning he was told that Mrs. Hutslar had died. At noon he vomited. He received food, drinks, and cigarettes. He did not appear exhausted, and continued sobering up as the day went on.

At 3:30 p.m. Hanlon commenced an interrogation regarding the Hutslar fire by asking if the Hutslar fire was not an attempt on appellant's part to join his friend Mark, who was then in prison, awaiting execution, as the result of a conviction based upon appellant's testimony. Appellant responded by placing his head in his hands and becoming emotional. He then admitted breaking into the Hutslar house. A full incriminating statement followed that was completed at 5:45 p.m. In it appellant stated that he broke the glass in the pane on the front door, entered, immediately encountered Ms. Hutslar who collapsed on the floor breathing heavily. He then searched out and took a watch and silver dollars, and in checking out some noises outside, stepped on her cheek and neck twice. He then found some matches, started the fire, and ran out the back door. He threw away the watch and coins and then joined those watching the firemen at the house, at which point he was arrested.

I.

...

To continue reading

Request your trial
45 practice notes
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1992
    ...of aggravating and mitigating factors in determining the appropriateness of a death penalty. See, e.g., Johnson v. State (1992), Ind., 584 N.E.2d 1092; Woods v. State (1989), Ind., 547 N.E.2d 772; Cooper v. State (1989), Ind., 540 N.E.2d 1216; Schiro v. State (1983), Ind., 451 N.E.2d 1047; ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Marzo 1998
    ...the possible execution of this sentence. 37 This claim is similar Page 53 to a claim raised in another capital case, Johnson v. State, 584 N.E.2d 1092, 1101-02 (Ind.1992). In Johnson, after the defendant was convicted of Felony Murder in the course of Burglary and Arson, the trial court adv......
  • U.S. v. Mills, No. CR02-938(E)DOC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 17 Agosto 2006
    ...765 (2003); Grant v. State, 58 P.3d 783, 797 (Okla.Ct.Crim.App.2002); State v. Carter, 888 P.2d 629, 642 (Utah 1995); Johnson v. State, 584 N.E.2d 1092, 1105 (Ind.1992); People v. Wharton, 53 Cal.3d 522, 589, 280 Cal.Rptr. 631, 809 P.2d 290 (1991); State v. Moen, 309 Or. 45, 86, 786 P.2d 11......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Noviembre 1994
    ...for evaluating the voluntariness of a waiver of rights is the totality of the circumstances test. Johnson v. State (1992), Ind., 584 N.E.2d 1092, 1098-99, (citations omitted), cert. denied, 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105. [a] review of voluntariness of statements made during a......
  • Request a trial to view additional results
45 cases
  • Bellmore v. State, No. 55S00-8703-CR-328
    • United States
    • Indiana Supreme Court of Indiana
    • 29 Octubre 1992
    ...of aggravating and mitigating factors in determining the appropriateness of a death penalty. See, e.g., Johnson v. State (1992), Ind., 584 N.E.2d 1092; Woods v. State (1989), Ind., 547 N.E.2d 772; Cooper v. State (1989), Ind., 540 N.E.2d 1216; Schiro v. State (1983), Ind., 451 N.E.2d 1047; ......
  • Wisehart v. State, No. 48S00-9005-PD-378
    • United States
    • Indiana Supreme Court of Indiana
    • 19 Marzo 1998
    ...the possible execution of this sentence. 37 This claim is similar Page 53 to a claim raised in another capital case, Johnson v. State, 584 N.E.2d 1092, 1101-02 (Ind.1992). In Johnson, after the defendant was convicted of Felony Murder in the course of Burglary and Arson, the trial court adv......
  • U.S. v. Mills, No. CR02-938(E)DOC.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 17 Agosto 2006
    ...765 (2003); Grant v. State, 58 P.3d 783, 797 (Okla.Ct.Crim.App.2002); State v. Carter, 888 P.2d 629, 642 (Utah 1995); Johnson v. State, 584 N.E.2d 1092, 1105 (Ind.1992); People v. Wharton, 53 Cal.3d 522, 589, 280 Cal.Rptr. 631, 809 P.2d 290 (1991); State v. Moen, 309 Or. 45, 86, 786 P.2d 11......
  • Bivins v. State, No. 06S00-9105-DP-00401
    • United States
    • Indiana Supreme Court of Indiana
    • 4 Noviembre 1994
    ...for evaluating the voluntariness of a waiver of rights is the totality of the circumstances test. Johnson v. State (1992), Ind., 584 N.E.2d 1092, 1098-99, (citations omitted), cert. denied, 506 U.S. 853, 113 S.Ct. 155, 121 L.Ed.2d 105. [a] review of voluntariness of statements made during a......
  • 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