ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Patrick R. Ragains Karen Freeman-Wilson
Anderson, Indiana Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
JAMES E. JOHNSON, ) ) Appellant (Defendant Below ), ) ) v. )Cause No. 48S00-9904-CR-263 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
August 17, 2000
SHEPARD, Chief Justice.
James Johnson was convicted on two counts of murder for the shooting deaths of Andrea Rathel and Lincoln Anderson. He presents three issues in this direct appeal:
I. Whether the trial court properly permitted evidence
that the crime took place on a date other than the date specified in the charging information,
II. Whether the trial court properly admitted evidence of
prior acts by Johnson, and
III. Whether the trial court properly excluded statements made by Mark Tulowitzky, who Johnson
claims was another possible suspect in the crime.
Johnsons brief tends to suggest that the State somehow defaulted by not responding
to his notice of alibi. This is not the case. The
State is not required to respond to an alibi notice if it intends
to rely on the date and place alleged in the information. Joyner
v. State, 678 N.E.2d 386 (Ind. 1997). Filing an alibi notice does
not impose a greater burden of proof on the State than would otherwise
exist. Jennings v. State, 514 N.E.2d 836, 837 (Ind. 1987). While
an alibi filing does render the time of the offense critical or of
the essence, id., we have nevertheless observed:
[A]lthough time becomes of the essence when the alibi statute has been invoked, it is also well settled that a variance, in order to be fatal, must be of such substantial nature as to mislead the accused in preparing and maintaining his defense or be of such a degree as is likely to place him in second jeopardy for the same offense.
Quillen v. State, 271 Ind. 251, 253, 391 N.E.2d 817, 819 (1979).
Here, the charging information alleged that Johnson killed Rathel and Lincoln [o]n or
about the 22nd day of April, 1998, (R. at 14), while the probable
cause affidavit said that the crime occurred sometime between 10 p.m. on April
22, 1998, and 7:34 a.m. on April 23, 1998, (R. at 16).
The State presented evidence at trial that Andrea Rathel received a phone call
from Johnson at 12:51 a.m., April 23, 1998. The call came from
the residence of Thomas Johnson, James Johnsons father, with whom Johnson lived.
Rathels neighbors testified that they heard loud banging noises around 1:15 to 1:30
a.m. Arielle Johnson, Rathels daughter, also said that she went to bed
around 10 p.m. on April 22, but was awakened during the night by
her mother talking on the phone. Shortly thereafter, Arielle heard loud banging
noises in rapid succession. After the banging stopped, she called to her
mother, but did not receive a response, and fell back asleep.
The next morning, she discovered Rathel and Anderson in bed, both dead.
Thus, the State argued that the crime occurred in the early morning hours
of April 23, 1998. This variance from the charging information, which alleged
that the crime occurred on or about April 22, 1998, is not material.
Moreover, Johnson does not allege prejudice. No error here.
Johnson claims that these statements were inadmissible hearsay.
Reis statement is not hearsay. Reis, a close friend of Rathel, testified
that she spent a lot of time at Rathels trailer home and observed
Johnson looking into the windows on several occasions. Her statements were limited
to her own observations.
As for Officer Mallys statements, any claim of error has been waived because defense counsel did not object to the admission of the statements at trial. Failure to object at trial waives any claim of error and allows otherwise inadmissible hearsay evidence to be considered for substantive purposes and to establish a material fact at issue. Allen v. State, 686 N.E.2d 760, 775 (Ind. 1997), cert. denied, 525 U.S. 1073 (1999).
According to Johnson, Tulowitzky had a motive to kill Lincoln Anderson and made
several incriminating statements regarding Andersons death. On September 4, 1998, Tulowitzky was
arrested by Officer Tony Patz after an altercation at a bar. As
Patz was taking Tulowitzky to jail, he drove past a business owned by
Andersons brother. While driving by the business, Tulowitzky said Burn, [m-f], burn.
(R. at 1494.) He told Patz that Anderson got what he
deserved. Tulowitzky had earlier told another officer that he felt no emotion
over Andersons death but that his heart does bleed for Rathel and the
children. (R. at 1372.) The court sustained objections to the admission
of these statements.
The balance of relevance and prejudice in evaluating proferred evidence is within the
trial courts sound discretion, and we will not disturb such rulings absent an
abuse of discretion. Roche v. State, 690 N.E.2d 1115 (Ind. 1997).
Here, aside from these statements, there is nothing to suggest that Tulowitzky may
have been the killer. When questioned by defense counsel outside of the
presence of the jury, Tulowitzky denied stating that he had killed Anderson or
that he had predicted Andersons death. Defense counsel then acknowledged that he
had no evidence that anyone heard Mr. Tulowitzky say either of these statements.
(R. at 1377.) If there had been any additional evidence tending
to establish that Tulowitzky was the perpetrator, then these statements would be probative.
Standing alone, however, they do not raise this likelihood and thus do
not make any fact of consequence more or less probable. See Ind.
Evidence Rule 401.
Moreover, there is substantial evidence supporting Johnsons guilt. On the evening of
the murders, Andrea Rathel received a phone call from the residence of Thomas
Johnson, James Johnsons father, with whom James Johnson lived. Following
the murders, police observed footprints in a freshly-tilled garden near Rathels trailer.
The shoes Johnson had been wearing on April 22 matched the footprints in
the garden. Near Rathels trailer, police also observed two indentations
in the ground resembling kneeprints. The pants that Johnson had been wearing
on the morning of April 23 had mud on the knees.
Finally, the shell casings and bullets recovered from the murder scene were
matched to a firearm found in Johnsons bedroom.
The trial court exercised appropriate discretion in excluding Tulowitzkys statements.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.