ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael S. Greene Jeffrey A. Modisett
Elkhart, Indiana Attorney General of Indiana
Randi E. Froug
Deputy Attorney General
SUPREME COURT OF INDIANA
RICHARD J. JOHNSON, ) ) Appellant (Defendant Below ), ) ) v. ) Cause No. 20S00-9810-CR-611 ) STATE OF INDIANA, ) ) Appellee (Plaintiff Below ). )
November 12, 1999
SHEPARD, Chief Justice.
Appellant Richard Johnson was convicted of murder, Ind. Code § 35-42-1-1, and sentenced to sixty-five years in prison. In this appeal he raises one issue: "Was defense counsel ineffective in failing to ask the trial court for an immediate limiting
instruction regarding an alleged accomplice and witness who was
called by the State but who refused to testify?" We answer in the
At this point, the trial court decided to excuse the jury. The State then resumed questioning Ennis, but he maintained his silence. The court held Ennis in contempt three times and finally told the State to "pull Mr. Ennis off the stand at this time. I'll [o]rder him held here and we'll talk to him when we finish the other testimony later today." (R. at 341.)
Before Ennis stepped down, the State offered to pass Ennis to
the defense for cross-examination. The court prepared to bring the
jury back in, but defense counsel asked for a bench conference,
after which the court asked Ennis if he understood the consequences
of his refusal to answer defense counsel's questions. Ennis nodded
yes. The court then dismissed the witness, saying "We'll talk to
you later in the day." (R. at 343.) Defense counsel asked the
court whether the defense would not go directly to cross-
examination at this point?" (R. at 343.) The judge said he did
not want Ennis's refusal to answer to occur in front of the jury,
and asked the State to call its next witness.
The jury returned, and the State called its next witness.
Ennis was never recalled to the stand either by the defense or the
prosecution. The record is bare of any further discussions
concerning Ennis's testimony.
During closing statement, the defense twice mentioned Ennis's
refusal to testify, and reminded the jury that it could not
consider that refusal in its deliberations. During the
prosecution's rebuttal, the State again referred to Ennis's refusal
and cautioned the jury it must disregard that refusal. The trial
court gave a final instruction along the same lines.
We have previously addressed whether failure to request a
limiting instruction amounts to ineffective assistance of counsel.
Roberts v. State, 492 N.E.2d 310 (Ind. 1986). In Roberts, the
alleged accomplice was called to testify by the State, but "took
the Fifth" and remained silent. Id. at 312. Defense counsel did
not ask for a limiting instruction, cross-examined the silent
alleged accomplice, and in framing his questions sought to bolster
the defense theory that the accomplice was the real culprit. Id.
We held that defense counsel's actions were strategic choices, and
the failure to request a limiting instruction did not amount to
ineffective assistance. Id.
Johnson attempts to distinguish Roberts on grounds that his counsel was not given the opportunity to cross-examine the alleged
accomplice. The holding in Roberts was not meant to imply,
however, that cross-examination is the only acceptable strategic
reason for not requesting a limiting instruction.
From the record, it appears that Johnson's counsel made
strategic use of Ennis's refusal to testify. The defense's primary
thrust appeared to be that it was Ennis and not Johnson who stabbed
and burned Strycker to death. (R. at 542-44.) Defense counsel
elicited testimony that Ennis had already pled guilty to the
murder. Counsel also used the incident in his closing argument by
juxtaposing Ennis's failure to testify with defendant's willingness
to take the stand. (R. at 667-70.) These actions could represent
a reasonable strategy to use Ennis's refusal to testify to bolster
the defense theory that Ennis was the murderer, not Johnson. Using
the refusal in this way, counsel also reminded the jury that it
could not assume that the testimony would have favored either the
State or the defendant. (R. at 667.) Finally, the court was
prepared to bring the jury in and allow defense to cross-examine
Ennis, but defense counsel requested to approach and Ennis was
subsequently removed from the stand. (R. at 341.)
To leap from Aubrey, where we found error in the court's refusal to honor a defense request for admonition, to the proposition that a lawyer is ineffective for not requesting an admonition is to stand Aubrey on its head. One point of the Aubrey analysis is to ensure that courts do not inject themselves into
those parts of the adversarial system that belong to the parties.
Whether to ask for an admonition is a decision for the defense to
make. Judges should not intrude either by refusing or forcing the
We conclude that defense counsel's action in not requesting a
limiting instruction could be construed as a reasonable strategic
choice and therefore was within the range of ordinary professional
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