Johnston v. State

126 N.E.3d 878

Michael A. JOHNSTON, Jr., Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-2478

Court of Appeals of Indiana.

FILED June 5, 2019

Attorney for Appellant: Brian A. Karle, Ball Eggleston, PC, Lafayette, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Michael A. Johnston, Jr., appeals his convictions and sentence for domestic battery as a level 6 felony, criminal mischief as a class B misdemeanor, two counts of disorderly conduct as class B misdemeanors, and two counts of resisting law enforcement as class A misdemeanors. He raises three issues which we revise and restate as:

I. Whether the trial court properly removed him from the courtroom;

II. Whether his conviction for disorderly conduct violates double jeopardy; and III. Whether his sentence is inappropriate in light of the nature of the offenses and his character.

We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] Johnston lived with Shameka Howard in Crawfordsville, Indiana, and they had two children. At about 10:20 a.m. on June 25, 2018, Betty Brooks who lived in Crawfordsville and her daughter, Elizabeth Reams, heard some very loud screams by a woman and a lot of yelling and screaming. Johnston shoved and swung at Howard. He "[p]ushed her out into the street" and "[s]macked her around several times." Transcript Volume II at 42. Howard placed the children on the hood of a vehicle, and Johnston picked up and threw big heavy toys at the vehicle "with the kids sitting there." Id. He shoved her down. She placed the children in the car and "was trying to get out of there" when he picked up a brick and threw it at the window which shattered. Id.

[3] At approximately 10:29 a.m., Brooks called 911. Crawfordsville Police Officer Geoffrey Payne responded within two minutes to a dispatch regarding a domestic altercation involving a male who had thrown a brick at a vehicle and a female who was thrown or pushed into the street. The dispatch also indicated that the male suspect had left on foot and the female victim had left in a vehicle that may have sustained damage to the window. Officer Payne arrived at the scene, and Johnston, who matched the description of the male in the dispatch, approached him, held his arms up, and said, "just take me to jail." Transcript Volume I at 238. Officer Payne immediately detected a strong odor of alcoholic beverages, noticed that Johnston's speech was slurred and his eyes were bloodshot, and observed a brick that was broken in half in the yard, a complete brick in the grass beside the apartment, and a child's toy upside down in the driveway.

[4] Crawfordsville Police Corporal Julian Todd Huckstep responded to the dispatch and observed a vehicle matching the description with a shattered windshield. He activated his emergency lights, the vehicle stopped, and he approached the vehicle at approximately 10:35. He observed a female driver, two children in the back seat, a brick in the vehicle, and shards of glass lying in the front portion of the vehicle. The driver identified herself as Howard. He asked her if she would fill out a voluntary statement, and she said that "she did not want him to go to jail." Transcript Volume II at 26. Howard also stated that they had been involved in an argument, he was drunk, she attempted to leave the apartment, and he shoved her. Crawfordsville Police Officer Jared Manago also responded to the dispatch and observed shards of glass and a brick on the front passenger floorboard.

[5] At the jail, Johnston refused to give a portable breath sample, and Officer Payne transported him to the hospital to determine if he was fit for incarceration. Officer Payne told him that they were at the hospital to "get cleared for incarceration" and asked him to exit the vehicle. Transcript Volume I at 242. Johnston refused and "began basically provoking [him] into having a ground fight." Id. Officer Payne "tried to talk him down," but Johnston refused to cooperate. Id. Officer Payne turned on his video camera and asked for additional officers.

[6] While Officer Payne waited for other officers, Johnston stood up and tried to walk past and away from him, and Officer Payne grabbed his arm and "had to pull him back against the car," and Johnston "continued to pull away from [him] with his arm and twist and tr[ied] to get away from [him]."¹ Id. at 243. Officer Payne pinned him against the squad car and held him there until other officers arrived to help transport him into the emergency room. After other officers arrived, he complied initially physically but maintained his "verbal abuse" which included being very loud, screaming, and using profanity. Id. In the hospital, Corporal Huckstep told him to calm down, and once Johnston was in the emergency room, multiple nurses and doctors told him to quiet down and quit yelling and disturbing the other patients. At one point, Corporal Huckstep and other officers tried to keep Johnston safe and secure on a gurney and had to hold his legs or arms while he thrashed around on the bed and yelled profanities.

[7] On June 29, 2018, the State charged Johnston with: Count I, domestic battery as a level 6 felony; Count II, criminal mischief as a class B misdemeanor; Count III, attempted domestic battery as a level 6 felony; Count IV, disorderly conduct as a class B misdemeanor; Count V, disorderly conduct as a class B misdemeanor; Count VI, public intoxication as a class B misdemeanor; and Count VII, resisting law enforcement as a class A misdemeanor. The State also alleged that Johnston was an habitual offender. The State later filed an amended information to add a second count of resisting law enforcement as a class A misdemeanor as Count VIII.

[8] On August 30, 2018, the court held an initial hearing at which Johnston's counsel was present and the following exchange occurred:

THE COURT: ... Officer McIntyre, has Mr. Johnston been brought to the courthouse?

OFFICER MCINTYRE: Yes, Your Honor.

THE COURT: The Court has been advised that he has called you profane names, he tore up his paperwork all over the cell, called his attorney profane names and now refuses to come to court, is that correct?

OFFICER MCINTYRE: Yes, Your Honor.

THE COURT: And did you tell him that the Court was ordering that he appear in court?

OFFICER MCINTYRE: Yes, Your Honor.

THE COURT: And he refuses to do that?

OFFICER MCINTYRE: Yes, Your Honor.

THE COURT: He says that you are going to have to carry him in here?

OFFICER MCINTYRE: Yes, Your Honor.

THE COURT: What is his reason for not coming to court, do you know?

OFFICER MCINTYRE: He advised that he felt that his life was threatened and when I advised him that he needed to go to court for his initial hearing, he relayed that he would like the Judge to know that she can lock him up and throw away the key.

Transcript Volume I at 4. Johnston's counsel indicated to the court that he was comfortable having the hearing without his client present and that he would make sure to relay that information to him.

[9] That same day, the court held a status hearing at which Johnston's counsel was present, and Johnston appeared by video from the Montgomery County Jail. The court informed Johnston that a testimonial deposition was scheduled, and he indicated that he wished to be present. The court and Johnston engaged in a discussion, and the following exchange occurred:

THE COURT: Sir, they had you at the courthouse. You were swearing at the officers. You wouldn't come into the courtroom. They had to carry you out of the building.

[Johnston]: Oh yeah, they did have to carry me out because right now if I don't get charged with these charges that's not relevant to the case, you know what I'm saying?

THE COURT: I don't know what you're saying.

Id. at 20.

[10] On September 10, 2018, the court held a hearing and informed Johnston that he had the right to "confront and cross-examine the witnesses against you, to see them, hear them, and ask them questions." Id. at 52. On September 13 and 14, 2018, the court held additional hearings. At the September 14th hearing, the court told Johnston that his attorney advised it earlier that he had considered potentially pleading guilty to some charges and then taking the remainder of the charges to trial and the court asked Johnston how he wanted to proceed, and Johnston answered: "I'm willing to go to trial on all of them, ma'am." Id. at 68. The court responded by saying in part: "The Court was actually going to give you a deadline of today because we can't make the State prepare for trial not knowing what they can and can't discuss, not knowing what you want to plead guilty to or not." Id. The court also stated that it would schedule the entire case for jury trial.

[11] On September 17, 2018, the court held another hearing and stated:

I just want to be sure, Mr. Johnston, that you are clear that when the jury is present that you will continue to behave yourself and be respectful as you have been in court and I appreciate that, but I want you to know that a jury trial is not a circus and this Court will not allow it to be a circus. So, if it is your intention to somehow come in and make a scene or to make arguments or to have outbursts or to misbehave, the Court will not condone that in any way, shape, or form.

Id. at 73. Johnston indicated that he understood.

[12] On September 18, 2018, the court held a hearing, and Johnston indicated that he wished to proceed pro se and wanted to proceed with standby counsel. After further discussion, the court informed Johnston that it would not permit him to act inappropriately or to attempt to taint the jury, and Johnston indicated that he understood. That same day, the court held a second hearing and stated: "We are assembled for a jury trial upstairs and the Court has been advised, Mr. Johnston, that you want to plead guilty today." Id. at 91....