Johnson v. State, 184

• Citation: 518 N.E.2d 1073
• Case Date: February 02, 1988
• Court: Supreme Court of Indiana

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518 N.E.2d 1073 David Allen JOHNSON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 184 S 40. Supreme Court of Indiana. Feb. 2, 1988.

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Anthony V. Luber, South Bend, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant David Allen Johnson was found guilty of murder by a jury in the St. Joseph Circuit Court. He was sentenced to a fifty (50) year term of imprisonment. He directly appeals, raising several issues which we have restated as follows:

1. limitation of cross-examination;

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2. refusal of tendered jury instructions regarding sources of the law, reasonable doubt, and lesser included offenses;

3. alternate theories of liability;

4. sentencing;

5. rereading exhibit to jury;

6. juror misconduct.

The facts show that in January, 1981, August Lodholtz planned, along with Phyllis Whitehead and Elaine Wallace, to murder Claude Whitehead. Lodholtz was to be paid $5000 and given a motorcycle to murder Whitehead. Lodholtz informed Johnson of the plot and offered Johnson $2500 and the motorcycle to kill Claude Whitehead. The evidence at trial tended to show that on January 19, 1981, Lodholtz obtained a gun and gloves from Wallace. Lodholtz and Johnson drove to the Whitehead residence. Lodholtz or Johnson then left the area while the other went into Whitehead's home and fatally shot Whitehead.

Approximately one year later, Johnson admitted committing the murder to Thomas Bradley and told Bradley he had received $2500 for killing Whitehead. Thereafter, Bradley spoke with Officer Richard Seniff of the St. Joseph County Police Department but did not initially tell the officer that Johnson admitted to committing a murder.

On July 19, 1982, Officer Gregory Labis spoke with Johnson. Johnson at first denied any involvement in the Whitehead murder, but later stated he had driven Lodholtz to Whitehead's home, but he had not killed Whitehead. On November 29, 1982, Johnson gave a tape-recorded statement to police in which he described the murder plot. Johnson stated he drove Lodholtz to the Whitehead residence and left the area. Subsequently, Johnson returned to the residence and found Lodholtz waiting for him. Johnson stated Lodholtz told him that he shot Whitehead three times. Lodholtz and Bradley testified Johnson went into the house and shot the decedent. Approximately one year after the incident, Johnson was paid for his participation in the murder.

I

Johnson argues the trial court denied him the opportunity to effectively cross-examine State's witness Thomas Bradley by prohibiting counsel from eliciting Bradley's address and place of employment, citing Smith v. Illinois (1968), 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 and Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. Smith and Alford make it clear that a defendant is presumptively entitled to cross-examine a key government witness as to his address and place of employment. These authorities do not, however, require a new trial whenever such cross-examination is restricted. See United States v. Navarro (7th Cir.1984), 737 F.2d 625, 633, cert. denied sub nom. Mugercia v. United States (1984), 469 U.S. 1020, 105 S.Ct. 438, 83 L.Ed.2d 364.

Determination of whether Johnson was denied effective cross-examination is not governed by whether or not Bradley divulged his home address, but whether Johnson has been given sufficient "opportunity to place the witness in his proper setting." Navarro, 737 F.2d at 633. One limitation on the right to cross-examine a witness occurs when disclosure of the information sought would endanger the physical safety of the witness or his family. Smith, 390 U.S. at 133-34, 88 S.Ct. at 751 (concurring opinion); United States v. LaBarbera (7th Cir.1972), 463 F.2d 988, 990. Since a trial judge is in the best position to observe the trial proceeding, the trial judge should control the extent of cross-examination and accordingly will be reversed only on an abuse of discretion. Marbley v. State (1984), Ind., 461 N.E.2d 1102, 1107. To show an abuse of discretion, a defendant must demonstrate how he was prejudiced by the court's actions. Id.

Johnson claims suppression of the information emasculated his right of cross-examination by restricting counsel's opportunity to impeach Bradley's credibility and thus denied Johnson a fair trial. Johnson points to no evidence he was prevented from presenting by failure to be advised of the witness' address. At trial, Bradley testified

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that Johnson informed him of his involvement in the Whitehead murder. During cross-examination of Bradley, defense counsel asked Bradley where he lived. The State objected to the question and moved for a protective order. During an in camera hearing, Bradley revealed he had received anonymous threats and was under police protection. The trial court found a reasonable fear existed that disclosure of Bradley's home address would endanger his safety. Over Johnson's objections, the trial court ordered the defense to limit cross-examination to Johnson's "region" of residence. Bradley testified he was currently living in the southern region of the United States and was employed at a prison in that area. Further, Johnson was permitted to thoroughly cross-examine Bradley on all of his testimony, including Bradley's failure to disclose Johnson as the "triggerman" at any time prior to his conference with the prosecutor the night before his testimony. Here the trial court did not abuse its discretion by restricting cross-examination. II

Johnson claims the trial court erred by refusing to give several of his tendered final instructions. In reviewing an issue concerning the refusal of a tendered instruction, this court considers whether the instruction is a correct statement of the law, whether there is evidence to support the giving of the instruction, and whether the substance of the tendered instruction is covered by other instructions which were given. Smith v. State (1984), Ind., 468 N.E.2d 512, 517; Richey v. State (1981), Ind., 426 N.E.2d 389, 395.

Johnson first complains the trial court did not fully explain the jury's function because it did not advise the jury what it could consider in determining the law. Johnson claims the jury should have been instructed that in determining the law the jury may consider the Constitution of this State, the common law, the decisions of courts of last resort, the instructions of the court and the arguments of counsel, as stated in Johnson's tendered final instruction no. 1. However, the trial court gave final instruction no. 15, which reads:

The Constitution of the State of Indiana makes the jury the judges of both the law and the facts in criminal cases. Though this means that you are to determine the law for yourself, it does not mean that you have the right to make, repeal, disregard, or ignore the law as it exists. The instructions of the court are the best sources as to the law applicable to this case.

This instruction is a correct statement of the law and adequately explains the role of the jury. See Critchlow v. State (1976), 264 Ind. 458, 465, 346 N.E.2d 591,...