ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patricia Caress McMath Karen M. Freeman-Wilson
Indianapolis, Indiana Attorney General of Indiana
Christopher L. Lafuse
Deputy Attorney General
HENRY JOHNSON, ) ) Appellant (Defendant Below ), ) 49S05-0008-CR-506 ) in the Supreme Court v. ) ) 49A05-9912-CR-536 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Plaintiff Below ). )
January 3, 2001
SHEPARD, Chief Justice.
This interlocutory appeal arose when a prosecutor missed a deadline for notifying the defendant of the States intent to use Indiana Rule 404(b) evidence in a molestation case. The trial court excluded the evidence, then dismissed the charge at the States request, over the defendants objection. Nine days later, the prosecutor refiled the original sexual misconduct charge along with ten additional charges that partially encompassed the evidence the court had excluded. The Court of Appeals held that the refiling was proper. Johnson v. State, 732 N.E.2d 259 (Ind. Ct. App. 2000).
Under the facts of this case, we conclude the trial court abused its
discretion by allowing the prosecutor to dismiss and refile as a tactic to
circumvent a proper evidentiary ruling, and to punish the defendant for exercising his
procedural rights by piling on additional charges. Accordingly, we reverse and remand.
On May 5, 1999, the State refiled the original charge and added ten
more counts: rape and criminal deviate conduct related to the original victim;
rape, criminal deviate conduct, sexual misconduct, criminal confinement and intimidation related to one
excluded witness; battery and sexual battery of another excluded witness; and attempted promotion
of prostitution of both excluded witnesses. Johnson moved for dismissal of
all charges, the trial court denied the motion, and this appeal ensued.
This Court held that [w]hile courts have allowed the State significant latitude in
filing a second information, the State cannot go so far as to abuse
its power and prejudice a defendants substantial rights. 689 N.E.2d at 1230.
The Court in
Davenport reversed the convictions on the three additional charges,
restoring the defendant to his position prior to the prosecutors efforts to avoid
the courts ruling. 689 N.E.2d at 1233, 696 N.E.2d at 872.
The Indiana Court of Appeals applied the principles articulated in Davenport in the
factually similar case of State v. Klein, 702 N.E.2d 771 (Ind. Ct. App.
1998). In Klein, the defendant faced four separate charges related to an
alleged sexual assault. Id. at 772. Less than three weeks before
trial, the court denied as untimely the States motion to add a charge
of attempted murder. The State dismissed the original charges and refiled all
four plus attempted murder. Id. The trial court dismissed all five charges
with prejudice upon the defendants motion, as an attempt to evade the courts
denial of the motion to amend. Id. at 772-73. The Court
of Appeals, correctly recognizing that the dispositive fact in Davenport was an abuse
of prosecutorial discretion in circumventing a court order and prejudicing the defendants substantial
rights, limited the State to its original charges.
Id. at 776.
Although this case arose from the exclusion of evidence rather than denial of
permission to add charges, the reasoning of Davenport and Klein is pertinent.
In each case, the State sought to take some action (i.e., to add
charges or to offer evidence of other acts of misconduct) that would require
the defendant to revise his defense strategy at the eleventh hour. In
each case, the trial court concluded that the State did not have a
good reason for the delay or lack of notice. In each case,
the court properly forbade the action as taken too late. In each
case, the prosecutor sought to dodge the adverse ruling via dismissal and refiling.
The equities weigh even more heavily in Johnsons favor than in either Davenport
or Klein. By refiling, the State attempted not only to evade the
courts ruling and get a second shot at offering 404(b) evidence, but also
to subject Johnson to ten additional charges.
If the State may circumvent an adverse evidentiary ruling by simply dismissing and
refiling the original charge, and also punish the defendant for a successful procedural
challenge by piling on additional charges, defendants will as a practical matter be
unable to avail themselves of legitimate procedural rights.
Here, no new evidence was discovered between the dismissal and refiling. No elements of the additional charged crimes were completed during that interim. No honest mistake or oversight occurred in the original decision to prosecute. See Cherry v. State, 275 Ind. 14, 20, 414 N.E.2d 301, 305 (1981).
Based on the circumstances presented, we conclude that the State exceeded the boundaries
of fair play. The prosecutor impermissibly impinged the defendants exercise of his
substantial procedural rights by dismissing and refiling to evade an adverse trial court
ruling and, in the process, piling on additional charges that were unjustified by
changed circumstances. Therefore, the trial court abused its discretion when it denied
in total Johnsons motion to dismiss the eleven-count information.
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., dissenting, would deny transfer.