ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Jeffrey A. Modisett
Indianapolis, Indiana Attorney General of Indiana
Janet L. Parsanko
Deputy Attorney General
SUPREME COURT OF INDIANA
MICHAEL JOHNSON, ) ) Appellant (Defendant Below ), ) ) v. ) No. 49S00-9903-CR-191 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
March 29, 2000
Appellant Michael Johnson appeals his conviction and sentence for murder, attempted murder, and carrying a handgun without a license. He presents two issues:
Whether error occurred when the jury heard some evidence of Johnsons prior criminal history, and
Whether Johnsons sentence was manifestly unreasonable.
When Johnson and Damone arrived at the house, Davenport came outside and spoke
with Damone. Then, Ronald called out to Davenport that he had a
phone call, so the three entered the house. At first, Damone, Ronald,
and Johnson sat in the living room while Davenport went into a back
room to hang up the phone. Damone and Ronald had previously met
in prison and began getting reacquainted. After Davenport hung up the phone,
he went into the kitchen area, which was visible from the living room.
Johnson and Damone walked in between the living room and the kitchen,
speaking with Davenport and with each other.
Eventually, Ronald looked up from fixing the radio and noticed that both Johnson
and Damone were in the doorway facing him. Johnson pulled a gun
out of the waistband of his pants. Ronald tried to run toward
a patio door to his left, but a shot hit him in the
back of the leg. Ronald fell, but managed to pull himself up
and attempted to throw a television at Johnson, who was still standing in
the doorway. By now, however, Johnson had turned and was shooting at
Davenport, who was still in the kitchen. When Ronald threw the television,
Johnson turned and again shot at Ronald, hitting him in the arm.
This shot caused Ronald to fall through the patio door.
When the police arrived, Ronald was still lying on the patio. Davenport
was found dead, with gunshot wounds, in a utility room off of the
kitchen. Ronald was taken to the hospital and required surgery.
The day after the shootings, Damone met with several police detectives and revealed
that Johnson had shot Ronald and Davenport. At trial, Ronald identified Johnson
as the man who shot him and Davenport.
The trial court sentenced Johnson to concurrent sentences of sixty years for murder,
forty years for attempted murder, and one year for carrying a handgun without
Defense counsel did not object to this portion of Johnsons statement or request
that the references to parole be redacted. Nor did counsel object to
the prosecutors statements during closing. Failure to object to the admission of
evidence waives an error for appellate review.
Townsend v. State, 632 N.E.2d
727 (Ind. 1994). Similarly, a claim of prosecutorial misconduct is waived if
there is no objection. Stevens v. State, 691 N.E.2d 412 (Ind. 1997),
cert. denied, 119 S. Ct. 550 (1998).
Johnson also claims error occurred when the State asked an investigating officer, Detective
Forrest, whether he had any information with respect to Michael Johnson. (Appellants
Br. at 6, R. at 357.) Because Forrest had just finished discussing
Damone Carters drug activities, Johnson argues that the question left the jury with
the impression that Detective Forrest knew about Michael because Michael was involved in
the drug trade. (Appellants Br. at 6-7.)
Defense counsel objected to the question before Forrest was able to respond, and
the court admonished the jurors and instructed them that questions were not evidence.
We find this reference to Johnsons prior misconduct fragmentary at best.
See Schlomer v. State, 580 N.E.2d 950 (Ind. 1991). The probable persuasive
effect of the question was negligible.
In imposing a sentence, a court should 1) identify the significant aggravators and
mitigators, 2) relate the specific facts and reasons that lead the court to
find those aggravators and mitigators, and 3) demonstrate it has balanced the aggravators
against the mitigators in reaching its sentence. Gregory v. State, 644 N.E.2d
543 (Ind. 1994). Sentencing decisions rest within the sound discretion of the
trial court and we review them only for abuse of discretion. Archer
v. State, 689 N.E.2d 678 (Ind. 1997).
The trial court here found three statutory aggravating factors: 1) Johnsons history of
criminal and delinquent activity, 2) that Johnson is in need of correctional or
rehabilitative treatment that can best be provided in a penal facility, and 3)
that the imposition of a reduced sentence or probation would depreciate the seriousness
of the crime. (R. at 683-84.) As mitigating factors, the court
listed Johnsons remorse and his strong family support. (Id.) It then
determined that the aggravating factors outweighed the mitigating factors. (Id.)
The trial court properly found that Johnsons criminal history was an aggravating factor.
See Ind. Code Ann. § 35-38-1-7.1(b)(2) (West Supp. 1997). The court
appropriately noted that Johnson was on parole at the time of the incident
and had a prior conviction for criminal recklessness as a Class C felony
and a true finding of criminal recklessness as a juvenile.
The court also properly determined that Johnson is in need of correctional and
rehabilitative treatment best provided by a penal facility based on the fact that
he had previously, and unsuccessfully, been placed on juvenile probation and adult probation,
had been to prison, and was on parole when he committed the crime.
(R. at 684); see also Ind. Code Ann. § 35-38-1-7.1(b)(3) (West Supp.
As for finding that a given sentence might depreciate the seriousness of a
crime, courts speak about this factor in two different ways. Indiana Code
§ 35-38-1-7.1(b)(4) says it is an aggravating circumstance that the [i]mposition of a
reduced sentence . . . would depreciate the seriousness of the crime.
Stated this way, the aggravator may only be used when mitigators might otherwise
call for a sentence shorter than the presumptive one. See Ector v.
State, 639 N.E.2d 1014, 1016 (Ind. 1994). By contrast, judges sometimes say
that a sentence less than an enhanced term sought by the prosecution would
depreciate the seriousness of the crime, and this is an appropriate aggravator.
Here, the trial court said that imposition of a reduced sentence below the
presumptive would depreciate the seriousness of the crime. (R. at 684.)
It did not appear that the judge was considering a sentence below the
standard term, however, so this finding was either inappropriate or entitled to very
Still, only one valid aggravating circumstance is necessary to support an enhanced sentence.
Hollins v. State, 679 N.E.2d 1305 (Ind. 1997). Since the trial
court found two valid aggravating circumstances, the inappropriate use of this one aggravator
did not make the enhanced sentence manifestly unreasonable.
Johnson also claims the court should have found additional mitigating circumstances: 1)
that Damone Carter initiated the crime not Johnson, 2) that Johnson committed
the crime at a young age, and 3) that Johnson is a father
who supports his child. (Appellants Br. at 12.)
The finding of mitigating factors is not mandatory and rests within the
discretion of the trial court. Wingett v. State, 640 N.E.2d 372, 373
(Ind. 1994). Only when the trial court fails to find a significant
mitigator that is clearly supported by the record is there a reasonable belief
that it was improperly overlooked. Legue v. State, 688 N.E.2d 408, 411
Age. Johnson was twenty years old at the time of the incident.
We have previously held a court sentencing a twenty-one year old for
murder could legitimately decide not to find age as a mitigator. Herrera
v. State, 679 N.E.2d 1322 (Ind. 1997). In light of that holding
and a record demonstrating that the court was well aware of Johnsons age,
we cannot say the court erred by not finding youth a mitigator.See footnote
Fatherhood. Dependent children are properly considered a mitigating factor under Ind. Code
§ 35-38-1-7.1(c)(10). Because Johnson would likely be in prison throughout the minority
of his child, even under the standard sentence,
See footnote we cannot attach significant weight
to the mitigator.
See Battles v. State, 688 N.E.2d 1230, 1237 (Ind.
Instigator. Finally, we address Johnsons contention that it was Damone Carter, and
not Johnson, who initiated the crime. Inasmuch as it was Johnson who
shot both victims, we are not surprised the trial court did not find
this a significant mitigating factor.
On a more general level, we note that the trial court added only
five years to the murder sentence and ten years to attempted murder.
She could have enhanced the sentence ten years for murder and twenty years
See footnote Moreover, she ran Johnsons sentences concurrently. This is not
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
I been having the gun for years, I been having the gun for
years . . . and like when I had got out in
96, July of 96, it was just sitting there and like I said
I dont carry it or nothing, its just there for protection, I dont
know why, knowing I was on parole I wasnt suppose[d] to have a
gun but it was just there, I just kept it full and kept
it loaded, I aint never carried the gun.
(R. at 608.)