Lonnie JOHNSON, Appellant, v. STATE of Indiana, Appellee.
No. 1181S332.
Supreme Court of Indiana.
Dec. 22, 1982.
Rehearing Denied Feb. 25, 1983.
442 N.E.2d 1065
PIVARNIK, Justice.
Again, there has been no showing that any evidence whatever was adduced by virtue of any arrest or search, which undoubtedly explains counsel‘s reluctance to press the point. Wе also note Petitioner‘s acknowledgment that such issue was presented in his first direct appeal, without success.
III
That he was denied the benefit of certain witnesses at the Post Conviction Hearing. The record presented does not disclose that he was denied his right to compulsory procеss for any witness that may have been desired and available.
IV
That he was denied the right to cross examine the State‘s witness, Miss Sunny Weed and others unnamed. The record does not disclose that Sunny Weed testified, nor does it reveal that he was denied any right to cross examine any of the State‘s witnesses.
V
That he was twice placed in jeopardy for the same offenses. In this respect, Petitioner refers to his retrial following our reversal of his first conviction. Retrial after reversal on appeal, under the circumstances of this case is not proscribed by the double jeopardy provisions оf either our State or Federal Constitution, and the proposition is so well recognized as to require no citation of authority.
VI
That he was convicted under an ex post facto law. Defendant was convicted under statutes in effect at the time his crimes were committed. If those statutes werе amended thereafter, he was nevertheless subject to prosecution.
VII
That he was wrongfully sentenced for rape by force whereas he was convicted of statutory rape. The fact that the victim was under the age of sixteen years does not render the offense per se statutоry rape. The evidence disclosed that she was both under sixteen and forced.
We find no error. The judgment of the trial court is affirmed.
GIVAN, C.J., and DeBRULER, HUNTER and PIVARNIK, JJ., concur.
Ronald K. Smith, Muncie, for appellant.
Linley E. Pearson, Atty. Gen., Carmen L. Quintana, Deputy Atty. Gen., Indianapolis, for appellee.
PIVARNIK, Justice.
Defendant-Appellant, Lonnie Johnson, was found guilty by a jury in the Delaware Superior Court of murder and was sentenced by the trial judge to serve a term of sixty years and to pay a fine of ten thousand ($10,000) dollars plus court costs. Appellant now directly appeals raising the following six issues:
- whether the trial court erred by denying Appellant‘s Motion to Dismiss the Amended Information;
- whether the trial court erred by excusing certain prospective jurors;
- whether the trial court improperly limited Appellant‘s cross-examination of one witness;
- whether the trial court improperly admitted certain photographic exhibits;
- whether the trial court erred by giving its Final Instruction No. 20 pertaining to accomplice testimony; and
- whether cеrtain post-trial conduct by the prosecuting attorney constitutes reversible error.
I
Appellant filed with the trial court a Motion to Dismiss the Amended Information contending that the Amended Information was defective because it did not allege the means by which the charged capital murder was committed. The original Information and Allegation of Capital Murder charged that Appellant and accomplice Claiborne committed murder by striking Russell Krull on his head with a blunt instrument while committing a robbery against him. The Information was subsequently amended to inform Appellant that the State would seek the death penalty against him. The Amended Information‘s second page stated that Appellant and Claiborne caused Krull‘s death during a robbery by the force used while taking Krull‘s billfold and money. The Amended Information‘s first page charged that Appellant and Claiborne caused the death of Krull but omitted the statement employed in the original Information describing the means of causing death as striking Krull on his head with a blunt instrument.
The trial court heard arguments on Appellant‘s Motion to Dismiss and overruled it. Although we do not find the State‘s position to be commendable, we nonetheless do not find reversible error in this issue. It would have been simplе for
II
The trial court excused two prospective jurors challenged for cause by the State because they each indicated that they could not possibly find Appellant guilty of murder if he would face the death sentence by their doing so. Both of these prospective jurors stated that they would find Appellant not-guilty regardless of the evidence. Appellant argues that the exclusion of these two prospective jurors falls within the ambit of Witherspoon v. Illinois, (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, where the United States Supreme Court held that a defendant may not be sentenced to death if the jury was chosen by excluding for cause prospective jurors who possessed an objection to capital punishment. This Court subsequently held, however, that Witherspoon does not mean that prospective jurors cannot be excluded if they indicate that their feeling against the death penalty is so strong that they cannot convict under any circumstance. Frith v. State, (1975) 263 Ind. 100, 107, 325 N.E.2d 186, 190. This is the case before us. Further, any error according to this issue is harmless since the death penalty was neither recommended by the jury nor was it imposed by the trial judge.
The trial judge also excused prospective juror Cynthia Long, an unmarried woman of unknown age who lived alone in a rented apartment. The court indicated that it excused Long because she neither owned real еstate nor had anyone dependent upon her for support and therefore was not a householder. Appellant correctly states that this Court has held that a householder need not maintain a dependent. Stevens v. State, (1976) 265 Ind. 396, 400, 354 N.E.2d 727, 731, on rehearing, 265 Ind. 410, 357 N.E.2d 245. We interpreted the legislative intent to be that a householder is a person who has had the experience of making important and binding practical decisions of everyday life independently of family or others. Since prospective juror Long independently lived and cared for herself, she might have qualified as a householder. We agree with the State, however, that the trial court‘s application of
III
Appellant claims the trial court improperly curtailed his right to a full and effective cross-examination of State‘s witness Tommy Lee Isom. Appellant bases his
IV
State‘s Exhibits Numbered 23, 24, 25 and 26 were photographs of decedent Krull and were admitted into evidence over Appellant‘s objection that they were cumulative and would serve only to prejudice and inflame the passions of the jurors. Exhibit No. 23 showed the wounds on the decedent‘s face and Exhibit No. 24 demonstrated a laceration in decedent‘s scalp. Exhibits Numbered 25 and 26 portrayed the decedent‘s hands and particularly depicted bruising and punctate wounds usually associated with an act of self-protection accоrding to certain medical evidence. The challenged photographs were, therefore, illustrative of the doctor‘s testimony and tended to show the nature and extent of the decedent‘s wounds and to prove the cause of his death. In this regard they were not repetitive or cumulative as they showed different parts of decedent‘s body and the wounds thereon. Photographic evidence, however gruesome, is admissible if it serves to inform the jury on matters relevant to the case. Smith v. State, (1981) Ind. 420 N.E.2d 1225, 1229; Bond v. State, (1980) Ind., 403 N.E.2d 812, 817, reh. denied.
V
Defendant claims the trial court erred in giving Final Instruction No. 20 which advised the jury that an accomplice witnеss is one who testified that he was involved with the defendant in the commission of a crime. The Instruction further advised the jury that the testimony of an accomplice is to be reviewed and weighed in the same manner and according to the same rules as the evidence of any other witness. Appellant argues that this Instruction focused undue attention upon the testimony of a particular class of witnesses. This Court has previously approved a virtually identical instruction to which was directed the same objection. Tippett v. State, (1980) Ind., 400 N.E.2d 1115, 1118.
VI
Finally, Appellant alleges his conviction should be reversed because of certain actions taken by the prosecutor after Appellant‘s conviction. When accomplice Claiborne testified in this cause for the State and against Appellant, the State indicated it was dropping its capital murder charge against Claiborne but that Claiborne would be given no other favorable treatment in exchange for his testimony. Claiborne testified before the jury that no plea bargains had been made other than the dropping of the death penalty count. After Appellant was convicted, Claiborne was put to trial but his trial ended in a hung jury. The State subsequently filed agаinst Claiborne a reduced charge of conspiracy to commit burglary to which Claiborne pleaded guilty. Appellant now claims that since the State filed the reduced charge against Claiborne in contravention of the representations made during Appellant‘s trial, Appellant‘s cоnviction must be set aside. We see no merit whatsoever in Appellant‘s claim. There is no evidence that the prosecutor and Claiborne had a reduction of Claiborne‘s charge in mind prior to or at the time of Appellant‘s trial. The prosecutor and the witness deny the existence of any
The trial court is in all things affirmed.
GIVAN, C.J., and DeBRULER, J., concur.
HUNTER, J., concurs in result with separate opinion.
PRENTICE, J., concurs in result with separate opinion in which HUNTER, J., concurs.
HUNTER, Justice, concurring in result.
It is true that our trial courts have discretionary authority to excuse prospective jurors. As this Court stated in Holt v. State, (1977) 266 Ind. 586, 365 N.E.2d 1209, 1211, however, “Certainly this discretion must not be exercised illogically or arbitrarily ....” Here, the trial court‘s dismissal of prospective juror Cynthia Long, a single woman who lived alone in a rented apartment, was purely arbitrary and transcended its discretionary authоrity.
In Stevens v. State, (1976) 265 Ind. 396, 354 N.E.2d 727, this Court unanimously held that a twenty year old juror who resided in a rented apartment with his brother was a “householder” within the meaning of the governing statute,
Here, the majority states that prospective juror Long “might have qualified as a householder.” Maj. Op., supra. Obviously, Long did qualify—as per our holding in Stevens. The trial court erred in excusing her because “she neither owned real estate nor had anyone dependent upon her for support and therefore was not a householder.” Maj. Op., supra. This Court should recognize that fact and should not countеnance the dismissal of qualified jurors on grounds that defy
In dismissing Long, the trial court acted arbitrarily and abused its discretion. The abuse of discretion should not be confused with the second prong of the test necessary to gain relief—prejudice to the defendant by virtue of the improper dismissal of a prospective juror. Here, there is no indication that any prejudice inured to defendant; therefore, I concur in the result reached by the majority. Conceding the difficulty of establishing prejudice by virtue of a prospective juror‘s dismissal, however, it behooves this Court to expressly recognize the trial court‘s error, lest it appear that absolute and unfettered discretion rests with our trial courts to excuse qualified jurors. That is not the case, as we recognized in Holt v. State, supra.
I concur in result.
PRENTICE, Justice, concurring in result.
I concur in the result reached by the majority, but for the reasons stated in my concurring opinion in Hoskins v. State, (1982) Ind., 441 N.E.2d 419, 429, I disagree with its treatment of Issue II. Where no death penalty is imposed, there is no Witherspoon issue before the Court, and I believe that should be the sole basis for the decision upon that question.
HUNTER, J., concurs.