ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DENNIS R. MAJEWSKI KAREN M. FREEMAN-WILSON
Terre Haute, Indiana Attorney General of Indiana
Deputy Attorney General
SUPREME COURT OF INDIANA
NORMAN J. JOHNSON, )
) Supreme Court Cause Number
v. ) 11S00-9904-CR-244
STATE OF INDIANA, )
APPEAL FROM THE CLAY CIRCUIT COURT
The Honorable Ernest E. Yelton, Judge
Cause No. 11C01-9806-CF-44
ON DIRECT APPEAL
May 24, 2001
A jury convicted Norman Johnson of multiple offenses for his role in the
shooting death of Norman Miller. The trial court sentenced Johnson to a
total term of 176 years. In this direct appeal we address the
following rephrased issues: (1) did the trial court err in denying Johnsons
motions for change of venue and mistrial based on pre-trial publicity and publicity
occurring during the course of trial; (2) did the trial court err in
refusing to sequester the jury; and (3) do any of Johnsons convictions violate
the Double Jeopardy Clause of the Indiana Constitution. Johnson does not challenge
his conviction for murder. Thus, it is summarily affirmed. We also affirm
Johnsons conviction for robbery. Finding a double jeopardy violation, we reduce from
a Class A felony to a Class B felony Johnsons conviction for burglary
and vacate his conviction for conspiracy to commit burglary. On statutory grounds
we also vacate Johnsons conviction for auto theft. In all other respects
the judgment of the trial court is affirmed. This cause is remanded
The facts most favorable to the verdict show that in the early morning
hours of June 16, 1998, Johnson and two accomplices entered the home of
Norman Miller. The men beat Miller and shot him five times resulting
in his death. Johnson and his accomplices took guns, cash, credit cards,
a motorcycle, and other personal items from Millers home.
The State charged Johnson with Count I - murder, Count II - felony
murder as a Class A felony, Count III - robbery as a Class
C felony, Count IV - conspiracy to commit robbery as a Class C
felony, Count V - burglary as a Class A felony, Count VI -
conspiracy to commit burglary as a Class A felony, Count VII - auto
theft as a Class D felony, and Count VIII - theft as a
Class D felony. The State also initially sought to sentence Johnson to
life without parole but withdrew the charge prior to sentencing. A jury
convicted Johnson on all counts. At the sentencing hearing, the trial court
imposed no sentence on Johnsons convictions for felony murder, conspiracy to commit robbery,
and theft. Instead, the trial court sentenced Johnson to enhanced terms of
sixty-five years for murder, eight years for robbery, fifty years for burglary, fifty
years for conspiracy to commit burglary, and three years for auto theft.
The trial court ordered the sentences to run consecutively for a total executed
term of 176 years imprisonment. This appeal followed. Additional facts are
recited below where relevant.
I. Change of venue and mistrial
Prior to trial, Johnson moved for a change of venue from Clay County
based on the amount of pre-trial publicity. The trial court denied the
motion. During the course of trial, citing ongoing media coverage, Johnson renewed
his change of venue motion and also moved for mistrial. Both motions
were denied. Johnson claims error.
A trial courts denial of a change of venue motion will be reversed
only for an abuse of discretion. Elsten v. State, 698 N.E.2d 292,
294 (Ind. 1998). Showing potential juror exposure to press coverage is not
enough. Id. Instead, the defendant must demonstrate that the jurors were
unable to disregard preconceived notions of guilt and render a verdict based on
the evidence. Id. An abuse of discretion does not occur where
voir dire reveals that the seated panel was able to set aside preconceived
notions of guilt and render a verdict based solely on the evidence.
Id. The record here shows that during voir dire, each juror who
had been exposed to some amount of pre-trial publicity said that he or
she could remain impartial. R. at 1189-1216. Johnson has made no
showing to the contrary and thus has failed to demonstrate that the jury
was unable to render a verdict based upon the evidence. The trial
court did not abuse its discretion in denying Johnsons motion for change of
As for Johnsons claim that the trial court erred in denying his motion
for mistrial, we note that a mistrial is an extreme remedy that is
warranted only when less severe remedies will not satisfactorily correct the error.
Warren v. State, 725 N.E.2d 828, 833 (Ind. 2000). The premise underlying
a motion for mistrial presupposes that an error of some type occurred in
the first instance. Id. Here, there was no error. During
the course of trial the trial court repeatedly admonished the jurors not to
allow themselves to be exposed to media coverage, R. at 624-25, 830, 948,
1034, 1140, and polled the jurors throughout the trial to see if they
had been exposed to media coverage. R. at 456, 628, 830-31, 999,
1034, 1147. The jurors responded each time that they had not.
We find no error here.
II. Jury sequestration
Along with his pre-trial motion for change of venue, Johnson also filed a
motion to sequester the jury. The trial court denied the motion, and
Johnson claims error. He correctly points out that in cases where the
State is seeking the death penalty, the trial court must sequester the jury
if the defendant requests it. Holmes v. State, 671 N.E.2d 841, 854
(Ind. 1996); Baird v. State, 604 N.E.2d 1170, 1186 (Ind. 1992); Lowery v.
State, 434 N.E.2d 868, 870 (Ind. 1982). According to Johnson, the same
considerations underlying jury sequestration in capital cases are equally applicable here where the
State is seeking a sentence of life without parole.
It is true that a sentence of life without parole is subject to
the same statutory standards and requirements as the death penalty. Pope v.
State, 737 N.E.2d 374, 382 (Ind. 2000), rehg denied; Ajabu v. State, 693
N.E.2d 921, 936 (Ind. 1998). However, there is no statutory requirement for
sequestration of a jury in a capital case. Rather, with respect to
any case tried to a jury the jurors may separate when court is
adjourned for the day, unless the court finds that the jurors should be
sequestered in order to assure a fair trial. Ind.Code § 35-37-2-4(b).
The rule requiring a trial court to grant a defense request for jury
sequestration in capital cases represents a policy decision that acknowledges the extreme finality
of the death penalty. Although some may regard the punishment of life
imprisonment without the hope of release as equally severe as the death penalty,
the fact remains that these two sentences are qualitatively different. It is
this difference that compels a conclusion that sequestration is a mandatory requirement upon
request in capital cases. However, in non-capital cases jury sequestration is a
matter left to the discretion of the trial court.
Clemens v. State,
610 N.E.2d 236, 241 (Ind. 1993). As this Court has observed, [N]o
case has presented itself in which a defendant has been ordered put to
death by an American court as punishment for crime upon the verdict of
a jury which was permitted to separate and return to commingle in the
general community during trial, over the timely objection of the accused. Lowery,
434 N.E.2d at 870 (finding reversible error in a capital case where the
trial court denied the defendants motion to sequester the jury during trial).
Although the burden a jury faces in determining whether to recommend a life
sentence is indeed great, we do not believe that the decision to sequester
the jury in such cases should be removed from the trial courts discretion.
We find no abuse of discretion here.
III. Double jeopardy
A. Murder and Burglary
Johnson contends that his convictions and sentencing for murder and burglary as a
Class A felony violate Indianas double jeopardy clause. The double jeopardy rule
prohibits multiple punishments for the same offense. In Richardson v. State, 717
N.E.2d 32 (Ind. 1999), this Court developed a two-part test for determining whether
two convictions are permissible under Indianas double jeopardy clause. Id. at 49.
A double jeopardy violation occurs when the State . . . proceed[s]
against a person twice for the same criminal transgression. Hampton v. State,
719 N.E.2d 803, 809 (Ind. 1999) (quoting Richardson, 717 N.E.2d at 49).
Under Richardson, two or more offenses are the same offense . . .
if, with respect to either the statutory elements of the challenged crimes or
the actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense. Richardson, 717 N.E.2d
at 49. When we look to the actual evidence presented at trial,
we will reverse one of the convictions if there is a reasonable possibility
that the evidentiary facts used by the fact-finder to establish the essential elements
of one offense may also have been used to establish the essential elements
of a second challenged offense. Id. at 53.
In this case, the record is clear that the same evidence that supported
Johnsons murder conviction was also used to elevate Johnsons burglary conviction to a
Class A felony. Burglary is a Class A felony if it results
in serious bodily injury. The serious bodily injury alleged and proven by
the State in this case was Millers death, the same facts used to
convict Johnson of murder. Thus, under Richardson, Johnsons conviction of Class A
burglary cannot stand.
However, this does not entitle Johnson to escape punishment for the burglary of
which he was convicted. When two convictions are found to contravene double
jeopardy principles, we may remedy the violation by reducing either conviction to a
less serious form of the offense if doing so will eliminate the violation.
Id. at 54. The burglary statute provides:
A person who breaks and enters the building or structure of another person,
with intent to commit a felony in it, commits burglary, a Class C
felony. However, the offense is a Class B felony if it is
committed while armed with a deadly weapon or if the building or structure
is a dwelling, and a Class A felony if it results in either
bodily injury or serious bodily injury to any person other than a defendant.
I.C. § 35-43-2-1 (1998) (emphasis added). Here, the evidence presented at trial
showed that Johnson broke and entered Millers home a dwelling. Thus,
we reduce Johnsons burglary conviction to a Class B felony.
B. Burglary and Conspiracy to Commit Burglary
We next address whether Johnsons convictions for burglary and conspiracy to commit burglary
also violate Indianas double jeopardy clause. That is, we examine whether it
is reasonably possible that the same evidence was used to support both Johnsons
burglary conviction and Johnsons conviction for conspiracy to commit burglary. We
first observe that a defendant may be convicted of both conspiracy to commit
a felony and commission of the underlying felony. See Griffin v. State,
717 N.E.2d 73, 89 (Ind. 1999), cert. denied, 120 S. Ct. 2697 (2000).
A double jeopardy violation occurs where the same evidence used to prove
the overt act committed in furtherance of the conspiracy also proves the commission
of the underlying crime. See Turnley v. State, 725 N.E.2d 87, 91
(Ind. 2000); Griffin, 717 N.E.2d at 89.
The case before us is somewhat unusual because the information charging Johnson with
conspiracy to commit burglary mentions no overt acts.
See footnote In like fashion, the
final jury instructions are silent on what overt acts the State was required
to prove in order to obtain a guilty verdict for conspiracy to commit
burglary. Nonetheless, we may examine the record
to determine the facts upon which the State relied to support its charge
See McIntire v. State, 717 N.E.2d 96, 100 (Ind. 1999)
(observing that the evidentiary facts used by the jury in reaching its decision
may be informed by considerations of the final jury instructions and arguments of
counsel); see also Parker v. State, 660 N.E.2d 1025, 1031 (Ind. Ct. App.
1995) (finding that the record showed the State proved several overt acts to
support its claim of conspiracy apart from the underlying felony even though the
jury was not instructed as to a particular overt act). The record
shows that in final summation the prosecutor advanced the argument that the State
had proven that either Johnson or his co-conspirators had engaged in several overt
acts, including: obtaining a weapon, entering the crime scene [Millers home], and stealing
items from Millers home. R. at 1373. In addition, both charged
offenses included the same intent to commit a felony of theft, robbery, or
battery resulting in serious injury. Thus, the evidence proving conspiracy to commit
burglary in this case also established the essential elements of Class B burglary
as now reduced. Applying the Richardson test, we conclude there was a
reasonable possibility that the jury used the same evidentiary fact to prove the
essential elements of both the conspiracy to commit burglary charge and the burglary
charge as a Class B felony. Accordingly, we must vacate Johnsons conviction
for conspiracy to commit burglary.
C. Auto Theft and Robbery
For his last double jeopardy claim, Johnson contends that he was improperly convicted
and sentenced for auto theft. More particularly, Johnson argues that auto theft
is a lesser included offense of robbery, and thus the auto theft conviction
must be vacated. We need not decide this issue on Indiana constitutional
grounds because Indiana Code section 35-38-1-6 specifically addresses this concern by prohibiting judgment
and sentence for both a greater and a lesser included offense.
See footnote Theft
is an inherently included lesser offense of
robbery. One cannot commit robbery without also committing theft.
N.E.2d 304, 305 (Ind. 1995); Clemmons v. State, 538 N.E.2d 1389, 1389 (Ind.
The State counters that in this case, auto theft is not a lesser
included offense of robbery because the taking of different property supports each offense.
In support, the State points out that the charging information for robbery
alleged alternatively that Johnson took from Miller a 1997 Harley Davidson motorcycle, cash
and/or drugs, R. at 47, while the auto theft charge involved only the
motorcycle. Under the single larceny rule, Johnsons conviction for auto theft cannot
stand. The rule provides:
[W]hen several articles of property are taken from the same person at the
same time, from the same place, there is but a single larceny for
which there may be but one judgment and one sentence. This rationale
extends to theft as an included offense; where both cash and an automobile
were taken during an armed robbery, the State could not split up a
single offense to make distinct parts the basis for multiple prosecutions.
Tingle v. State, 632 N.E.2d 345, 350 (Ind. 1994) (citation omitted). We
conclude that the same material elements of auto theft were included in the
elements of robbery. Pursuant to Indiana Code section 35-38-1-6, Johnsons auto theft
conviction also must be vacated. Conclusion
In a related argument, Johnson also complains the trial court erred in ordering
his sentences to run consecutively because, Theft, Auto Theft and Robbery as a
Class C felony are not crimes of violence for purposes of consecutive sentencing
as set out in Indiana Code § 35-50-1-2.
See footnote Br. of Appellant at
11. The trial court did not sentence Johnson for theft, and we
have vacated his conviction for auto theft. Thus, those two convictions are
not a part
of the calculus. As for robbery, it is true that the statute
does not identify Class C felony robbery as a crime of violence.
I.C. § 35-50-1-2 (defining the term to include, among other things, robbery as
a Class A felony or a Class B felony). However, the limitations
the statute imposes on consecutive sentencing do not apply between crimes of violence
and those that are not crimes of violence.
See Williams v. State,
741 N.E.2d 1209, 1214 (Ind. 2001); Ellis v. State, 736 N.E.2d 731, 737
(Ind. 2000). Accordingly, the trial court did not err by ordering Johnsons
sentence for robbery as a Class C felony to run consecutive to the
murder and burglary as a Class B felony, both of which are defined
as crimes of violence. I.C. § 35-50-1-2(a)(1), (11).
We vacate Johnsons convictions for conspiracy to commit burglary and auto theft, and
we reduce Johnsons conviction for burglary as a Class A felony to burglary
as a Class B
felony. In all other respects, the judgment of the trial court is
affirmed. This cause is remanded for resentencing.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
See, e.g., Smith v. State, 686 N.E.2d 1264, 1273 (Ind. 1997)
(affirming the defendants plea agreement that called for the death penalty as opposed
to life without parole and observing, When a person is doomed to spend
his final years imprisoned, with no (or few) prospects of release, then in
terms of his human dignity, his individuality, his freedom, and his autonomy, one
could well argue that the oppressive confines of a prison constitute as great
an infringement of his basic human rights as a death sentence.) (quoting California
v. Bloom, 774 P.2d 698, 715 n.7 (Cal. 1989)) (internal quotations omitted).
In relevant part, the information alleges that Johnson did:
[C]onspire with James J. Barrett and Matthew L. Hutchinson to break and enter
the dwelling of Norman Dan Miller, to-wit: residence  with the intent
to commit a felony therein, to-wit: theft, robbery, battery resulting in serious
bodily injury  and the death of Norman Dan Miller, and also performed
an overt act in furtherance of the agreement.
R. at 48. The information is thus defective because the State is
required to allege and prove that either the defendant or the person with
whom the defendant agreed performed an overt act in furtherance of the agreement.
I.C. § 35-41-5-2(b). However, a challenge to a defective charging information must
be made within twenty days of the omnibus date, and failure to do
so results in waiver of the issue on appeal.
Townsend v. State,
632 N.E.2d 727, 730 (Ind. 1994); I.C. § 35-34-1-4(a).
The statute provides, Whenever: (1) a defendant is charged with
an offense and an included offense in separate counts; and (2) the defendant
is found guilty of both counts; judgment and sentence may not be entered
against the defendant for the included offense. I.C. § 35-38-1-6.
The statute provides in relevant part:
The court may order terms of imprisonment to be served consecutively even if
the sentences are not imposed at the same time. However,
crimes of violence, the total of the consecutive terms of imprisonment . .
. to which the defendant is sentenced for felony convictions arising out of
an episode of criminal conduct shall not exceed the presumptive sentence for a
felony which is one (1) class of felony higher than the most serious
of the felonies for which the person has been convicted.
I.C. § 35-50-1-2(c) (emphasis added).