Johnson v. State

• Decision Date: 24 May 2001
• Docket Number: No. 11S00-9904-CR-244.,11S00-9904-CR-244.
• Citation: 749 N.E.2d 1103
• Parties: Norman J. JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Supreme Court

749 N.E.2d 1103

Norman J. JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 11S00-9904-CR-244.

Supreme Court of Indiana.

May 24, 2001.

Dennis R. Majewski, Terre Haute, IN, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Liisi Brien, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. RUCKER, Justice.

Case Summary

A jury convicted Norman Johnson of multiple offenses for his role in the shooting death of Norman Miller. The trial court sentenced Johnson to a total term of 176 years. In this direct appeal we address the following rephrased issues: (1) did the trial court err in denying Johnson's motions for change of venue and mistrial based on pre-trial publicity and publicity occurring during the course of trial; (2) did the trial court err in refusing to sequester the jury; and (3) do any of Johnson's convictions violate the Double Jeopardy Clause of the Indiana Constitution. Johnson does not challenge his conviction for murder. Thus, it is summarily affirmed. We also affirm Johnson's conviction for robbery. Finding a double jeopardy violation, we reduce from a Class A felony to a Class B felony Johnson's conviction for burglary and vacate his conviction for conspiracy to commit burglary. On statutory grounds we also vacate Johnson's conviction for auto theft. In all other respects the judgment of the trial court is affirmed. This cause is remanded for resentencing.

Facts

The facts most favorable to the verdict show that in the early morning hours of June 16, 1998, Johnson and two accomplices entered the home of Norman Miller. The men beat Miller and shot him five times resulting in his death. Johnson and his accomplices took guns, cash, credit cards, a motorcycle, and other personal items from Miller's home.

The State charged Johnson with Count I—murder, Count II—felony murder as a Class A felony, Count III—robbery as a Class C felony, Count IV—conspiracy to commit robbery as a Class C felony, Count V—burglary as a Class A felony, Count VI—conspiracy to commit burglary as a Class A felony, Count VII—auto theft as a Class D felony, and Count VIII—theft as a Class D felony. The State also initially sought to sentence Johnson to life without parole but withdrew the charge prior to sentencing. A jury convicted Johnson on all counts. At the sentencing hearing, the trial court imposed no sentence on Johnson's convictions for felony murder, conspiracy to commit robbery, and theft. Instead, the trial court sentenced Johnson to enhanced terms of sixty-five years for murder, eight years for robbery, fifty years for burglary, fifty years for conspiracy to commit burglary, and three years for auto theft. The trial court ordered the sentences to run consecutively for a total executed term of 176 years imprisonment. This appeal followed. Additional facts are recited below where relevant.

Discussion

I. Change of venue and mistrial

Prior to trial, Johnson moved for a change of venue from Clay County based on the amount of pre-trial publicity. The trial court denied the motion. During the course of trial, citing ongoing media coverage, Johnson renewed his change of venue motion and also moved for mistrial. Both motions were denied. Johnson claims error.

A trial court's denial of a change of venue motion will be reversed only for an abuse of discretion. Elsten v. State, 698 N.E.2d 292, 294 (Ind.1998). Showing potential juror exposure to press coverage is not enough. Id. Instead, the defendant must demonstrate that the jurors were unable to disregard preconceived notions of guilt and render a verdict based on the evidence. Id. An abuse of discretion does not occur where voir dire reveals that the seated panel was able to set aside preconceived notions of guilt and render a verdict based solely on the evidence. Id. The record here shows that during voir dire, each juror who had been exposed to some amount of pre-trial publicity said that he or she could remain impartial. R. at 1189-1216. Johnson has made no showing to the contrary and thus has failed to demonstrate that the jury was unable to render a verdict based upon the evidence. The trial court did not abuse its discretion in denying Johnson's motion for change of venue.

As for Johnson's claim that the trial court erred in denying his motion for mistrial, we note that a mistrial is an extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error. Warren v. State, 725 N.E.2d 828, 833 (Ind.2000). The premise underlying a motion for mistrial presupposes that an error of some type occurred in the first instance. Id. Here, there was no error. During the course of trial the trial court repeatedly admonished the jurors not to allow themselves to be exposed to media coverage, R. at 624-25, 830, 948, 1034, 1140, and polled the jurors throughout the trial to see if they had been exposed to media coverage. R. at 456, 628, 830-31, 999, 1034, 1147. The jurors responded each time that they had not. We find no error here.

II. Jury sequestration

Along with his pre-trial motion for change of venue, Johnson also filed a motion to sequester the jury. The trial court denied the motion, and Johnson claims error. He correctly points out that in cases where the State is seeking the death penalty, the trial court must sequester the jury if the defendant requests it. Holmes v. State, 671 N.E.2d 841, 854 (Ind. 1996); Baird v. State, 604 N.E.2d 1170, 1186 (Ind.1992); Lowery v. State, 434 N.E.2d 868, 870 (Ind.1982). According to Johnson, the same considerations underlying jury sequestration in capital cases are equally applicable here where the State is seeking a sentence of life without parole.

It is true that a sentence of life without parole is subject to the same statutory standards and requirements as the death penalty. Pope v. State, 737 N.E.2d 374, 382 (Ind.2000), reh'g denied; Ajabu v. State, 693 N.E.2d 921, 936 (Ind.1998). However, there is no statutory requirement for sequestration of a jury in a capital case. Rather, with respect to any case tried to a jury "the jurors may separate when court is adjourned for the day, unless the court finds that the jurors should be sequestered in order to assure a fair trial." Ind.Code § 35-37-2-4(b).

The rule requiring a trial court to grant a defense request for jury sequestration in capital cases represents a policy decision that acknowledges the extreme finality of the death penalty. Although some may regard the punishment of life imprisonment without the hope of release as equally severe as the death penalty,¹ the fact remains that these two sentences are qualitatively different. It is this difference that compels a conclusion that sequestration is a mandatory requirement upon request in capital cases. However, in non-capital cases jury sequestration is a matter left to the discretion of the trial court. Clemens v. State, 610 N.E.2d 236, 241 (Ind.1993). As this Court has observed, "[N]o case has presented itself in which a defendant has been ordered put to death by an American court as punishment for crime upon the verdict of a jury which was permitted to separate and return to commingle in the general community during trial, over the timely objection of the accused." Lowery, 434 N.E.2d at 870 (finding reversible error in a capital case where the trial court denied the defendant's motion to sequester the jury during trial). Although the burden a jury faces in determining whether to recommend a life sentence is indeed great, we do not believe that the decision to sequester the jury in such cases should be removed from the trial court's discretion. We find no abuse of discretion here.

III. Double jeopardy

A. Murder and Burglary

Johnson contends that his convictions and sentencing for murder and burglary as a Class A felony violate Indiana's double jeopardy clause. The double jeopardy rule prohibits multiple punishments for the same offense. In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), this Court developed a two-part test for determining whether two convictions are permissible under Indiana's double jeopardy clause. Id. at 49. A double jeopardy violation occurs when "`the State ... proceed[s] against a person twice for the same criminal transgression.'" Hampton v. State, 719 N.E.2d 803, 809 (Ind.1999) (quoting Richardson, 717 N.E.2d at 49). Under Richardson, "two or more offenses are the `same offense' ... if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson, 717 N.E.2d at 49. When we look to the actual evidence presented at trial, we will reverse one of the convictions if there is "a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense." Id. at 53.

In this case, the record is clear that the same evidence that supported Johnson's murder conviction was also used to elevate Johnson's burglary conviction to a Class A felony. Burglary is a Class A felony if it results in serious bodily injury. The serious bodily injury alleged and proven by the State in this case was Miller's death, the same facts used to convict Johnson of murder. Thus, under Richardson, Johnson's conviction of Class A burglary cannot stand.

However, this does not entitle Johnson to escape punishment for the burglary of which he was convicted. When two convictions are found to contravene double jeopardy principles, we may remedy the violation by reducing either conviction to a less serious form of the offense if doing so will eliminate the violation. Id. at 54. The burglary statute provides:

A person who breaks and enters the building or structure of another person, with intent to commit a

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