Johnson v. State

171 N.E.3d 1057 (Table)

Timothy JOHNSON, Appellant-Petitioner,

v.STATE of Indiana, Appellee-Respondent.

Court of Appeals Case No. 21A-PC-218

Court of Appeals of Indiana.

FILED June 9, 2021

Attorney for Appellant: Lisa M. Johnson, Brownsburg, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Justin F. Roebel, Deputy Attorney General, Indianapolis, Indiana

MEMORANDUM DECISION

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Timothy Johnson (Johnson), appeals the denial of his petition for post-conviction relief.

[2] We affirm.

ISSUES

[3] Johnson presents two issues on appeal, which we restate as:

(1) Whether Johnson received ineffective assistance from Trial Counsel; and

(2) Whether Johnson was prejudiced by Trial Counsel's performance at sentencing.

FACTS AND PROCEDURAL HISTORY

[4] The relevant facts, as set forth in this court's memorandum decision in Johnson's direct appeal, are as follows:

At some time late on June 18, 2007, in Fort Wayne, Johnny Green called Johnson, his cousin, from whom he had been purchasing crack for more than a year. Green wanted to purchase $40.00 worth of crack cocaine. When Johnson (accompanied by Gabe Mosley) met Green to deliver the crack cocaine, Green only had $30.00; nevertheless, Johnson sold him $40.00 of crack cocaine for the $30.00—because [he had] "been a good customer." Less than two hours later, Green called Johnson again; Green said he had $20.00 and wanted to purchase more crack cocaine. When Johnson (again accompanied by Mosley) arrived to deliver the crack cocaine, Green "only had five dollars ... [s]o [Johnson] asked him for his cell phone" in exchange for "forty worth" of crack cocaine.

Green had been reselling some of the crack cocaine he purchased, and after Johnson acquired the phone, he was able to sell to Green's customers. Less than two hours after the second transaction, Green called Johnson again [ ] saying "he had some more money" and wanted more "crack cocaine." Johnson told Green where to meet him. Green arrived on his bicycle, "hopped off of it" at the corner of Drexel and Gaywood in Fort Wayne, and walked to meet Johnson and Mosley. When Johnson asked how much money he had, Green said he had no money but "needed" some crack cocaine on credit. Johnson said, "I can't do it no more." Green demanded his cell phone back, and Johnson countered with a request for Green's bicycle. "[Green] said no." Johnson and Green argued, with Green "want[ing] the drugs," and Johnson refusing to "give him ... more credit." A physical altercation ensued, and Mosley joined Johnson in fighting Green. Screaming, and with blood on his shirt, Green fled from Johnson and Mosley, who also ran away from the scene.

Green had been stabbed fifteen times in his chest, abdomen, arms, leg, scalp, and back. Staggering, Green left a trail of blood, to the corner and then to the houses along Drexel. The blood trail showed that he approached several houses.

At the fifth house on Drexel, Stacey Curry and his nephew, Jerve Wright, were playing video games at approximately 3:00 a.m. when they heard a faint knock at the front door. Curry opened the door, and they saw Green bleeding and slouched against the door post. Gree[n] told them his name and that he had been stabbed. As Green started to collapse, Curry caught him. Wright call[ed] the police, and Curry tried to staunch Green's bleeding with towels. Repeatedly, Green said that "they" had "stabbed [him]," and asked whether "they" were coming after him. As Green struggled to breathe and blood oozed from multiple wounds, "he still kept on saying, are they coming and that he was going to die ... he just kept on saying that."

Within five minutes, Fort Wayne Police Department Officer Jason Fuhrman arrived at the Curry house in response to a reported stabbing. He found Green lying on the front porch, bloody and having difficulty breathing. Fuhrman lifted Green's shirt and saw multiple stab wounds to his chest and abdomen; he asked what had happened. Green answered, "They tried to take my bike." After eliciting Green's name and age, Fuhrman asked "how many people there were," and Green "held up two fingers." Fuhrman observed that Green was "going downhill." Fuhrman "asked him if they were black," and Green "nodded." Officer David Wilkins had also responded, and observed Green lying on the porch, his shirt "covered in blood" and "a lot of blood on the .. porch." Wilkins "could hear that he was having problems breathing."

Medics arrived and transported Green to the hospital. Shortly thereafter, he died as a result of multiple stab wounds to the chest and abdomen.

The "day after [his] son got killed," Green's father was contacted by his nephew—Johnson's father—and asked "to come over." There, Johnson "didn't want to talk" but Johnson's father "told him, go on, tell him." Johnson told Green's father that Johnson had wanted Green's bike; Green refused to give it to him; "[t]hey got into it"; Green "choked" Johnson; and then some "other boy was stabbing [Green]."

On May 15, 2008, Detective James Seay interviewed Johnson. Johnson stated that Green had wanted his cell phone back, got mad, grabbed Johnson, and started choking him. Johnson further stated that Green then grabbed Mosley as well, and the three had gone to the ground and "tussl[ed]" for approximately thirty seconds. Johnson admitted to Seay that Mosley had stabbed Green, but insisted that he had not seen him stab Green or even seen him have a knife.

Johnson v. State, 02A05-1303-CR-113, slip op. at 10 (Ind. Ct. App. Apr. 6, 2010) (footnotes and record citations omitted).

[5] On August 5, 2008, the State filed an Information, charging Johnson with murder, a felony, Class A felony murder, and Class A felony attempted robbery. A two-day jury trial was conducted on June 2-3, 2009. At the close of the evidence, the jury returned a guilty verdict on the murder charge. The jury hung on the felony murder and attempted robbery charges, a mistrial was declared for the two charges, and the State later dismissed those charges.

[6] Ahead of the sentencing hearing, Trial Counsel sent Johnson the presentencing investigation report (PSI) to review. On July 6, 2007, the trial court conducted a sentencing hearing. At the beginning of the sentencing hearing, the trial court asked Johnson if he had any additions or corrections to the PSI. Johnson testified that he had reviewed the PSI and he corrected a perceived mistake in the investigation. When the trial court asked Trial Counsel if he had "any evidence or any remarks to present," Counsel stated: "Judge, I see that Mr. Johnson has some comments written down and I suspect that will be our presentation today." (Sentencing Tr. p. 5). In his allocution, Johnson blamed Mosley for the killing, asked for Green's family to forgive him, and claimed he made a "bad decision because [he] was young and didn't know right from wrong." (Sent. Tr. pp. 6-7). After Johnson's allocution, Trial Counsel indicated that the trial court had "some certificates and some statements that have been generated by his participation in educational opportunities at the jail." (Sent. Tr. p. 7). Then Johnson's father, who had not been called as a witness, stood up and introduced himself, and requested that the trial court consider showing mercy to Johnson in his sentence. The trial court then sentenced Johnson to sixty years in the Department of Correction. Johnson appealed his conviction claiming that the trial court had abused its discretion by admitting Officer Fuhrman's hearsay testimony, and that the State had not proved beyond a reasonable doubt that he committed Green's murder. We affirmed his conviction.

[7] On May 10, 2017, Johnson filed a petition for post-conviction relief, alleging that Trial Counsel was ineffective for failing to tender jury instructions on self-defense, defense of another, and the lesser-included offenses of voluntary manslaughter or reckless homicide. Johnson further claimed that Trial Counsel was ineffective for not calling a witness and for failing to present any mitigating evidence at sentencing. On July 15, 2020, Johnson amended his petition further alleging that he was prejudiced at sentencing by Trial Counsel's performance because Trial Counsel completely failed to subject the State's sentencing case to adversarial testing pursuant to United States v. Cronic , 466 U.S. 648 (1984).

[8] On August 14, 2020, the post-conviction court conducted a hearing. Trial Counsel testified that he was retired from the practice of law, he did not remember representing Johnson nor did he recall anything about the case. Trial Counsel described his normal practice as being able to rely on a trial court's jury instructions unless there was an issue that was unusual or contested. Trial Counsel also testified that he would normally prepare for sentencing by having his investigator review the PSI with the defendant and sometimes he "would review it with them." (PCR Tr. p. 11). Trial Counsel claimed that his preparation for sentencing "would vary with the client and circumstances." (PCR Tr. pp. 11-12). Johnson then testified that Trial Counsel only spoke to him once prior to trial and that they never discussed whether to tender jury instructions on lesser-included offenses or self-defense. Johnson additionally claimed that Trial Counsel did not meet with him before his sentencing hearing.

[9] Among the exhibits tendered at the post-conviction hearing, were two letters Johnson received from Trial Counsel. In the first letter, Trial Counsel discussed the pros and cons of presenting the defense of self-defense to the attempted robbery charge. In the second letter, which Trial Counsel sent a letter to Johnson ahead of his sentencing hearing, he also provided Johnson with a copy of his PSI and explained that he intended to challenge the murder conviction on appeal because the evidence seemed "very weak." (PCR Exh. 8, p. 25).

[10] At the close of the evidence, the...