Cornell Johnson v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 3, 2014
• Docket: 71A03-1308-CR-321
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Mar 03 2014, 9:23 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY E. KIMMELL GREGORY F. ZOELLER South Bend, Indiana Attorney General of Indiana

ANDREW R. FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

CORNELL JOHNSON, ) ) Appellant-Defendant, ) ) vs. ) No. 71A03-1308-CR-321 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M. Marnocha, Judge Cause No. 71D02-1211-FB-153

March 3, 2013

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge An informant, who was paid by the police for completing drug transactions and

testifying against defendants, engaged in a controlled buy of cocaine from appellant-

defendant Cornell Johnson. Johnson challenges the sufficiency of the evidence following

his convictions for Maintaining a Common Nuisance,1 a class D felony, and Dealing in

Cocaine,2 a class B felony. Johnson argues that the identification procedure that the

police used and the fact that the informant had a financial incentive contingent upon

producing evidence of a cocaine purchase, rendered his testimony inherently improbable

and incredibly dubious. Thus, Johnson claims that his convictions must be set aside.

Finding the evidence sufficient, we affirm the judgment of the trial court.

FACTS

Jamian Stewart has worked as a confidential informant for the South Bend Metro

Special Operations Sections (MSOS) since 2009. He began working for MSOS because

he knew about local narcotics activity and has participated in more than twenty-five

narcotics buys. Stewart has performed this type of work for income, in that he received

twenty dollars for a contact that could potentially result in a drug sale, and fifty dollars if

he participated in a controlled buy.

Investigator Robert “Bert” Wise, an officer with MSOS, is Stewart’s “handler.”

Tr. p. 125, 147. At some point, MSOS received reports that a residence on Durham

1 Ind. Code § 35-48-4-13(b). 2 I.C. § 35-48-4-1. 2 Street in South Bend was being used as a “drug house.” Tr. p. 160, 164, 177. Wise

conducted surveillance on the house for about four days and saw some “short-stay”

traffic, with people frequently arriving and leaving. Id. at 164, 177, 179-81.

On October 29, 2012, Officer Wise and Sergeant Erik Beckum arranged for

Stewart to go to the residence and purchase cocaine from an individual known as

“Pappa.” Id. at 125-26, 158-59. Stewart had not previously met Pappa and therefore did

not have anything against this individual. Before Stewart went to the residence, Officer

Wise searched Stewart to insure that he did not have any currency, narcotics, or weapons

on him. Officer Wise gave Stewart twenty dollars and fitted him with an audio recording

device. Officer Wise drove Stewart to a spot about a block from the residence and

Stewart walked the rest of the way. Stewart approached the residence and knocked on a

side door. Officer Wise moved his vehicle so that he could continue to watch Stewart.

A young black male answered the door and Stewart asked if Pappa was available.

Stewart identified himself as “Jay.” Tr. p. 128. The young man led Stewart to the

basement. Pappa, whom Stewart subsequently identified as Johnson, emerged from a

bedroom, stood face-to-face with Stewart, and asked what he needed. Stewart answered

that he needed a “twenty,” which Stewart knew meant twenty dollars’ worth of cocaine.

Johnson took the money from Stewart, went to a side room, and returned with a small

baggie that contained a white, rock-like substance that he handed to Stewart. Stewart

thanked Johnson, promised to contact him again, and left the residence the same way that

3 he had entered. The rock-like substance was later tested and found to be .15 grams of

cocaine. Tr. p. 263-64.

Stewart walked directly back to Officer Wise and the vehicle. Stewart

immediately gave Officer Wise the cocaine and transmitting device. Wise again searched

Stewart, and confirmed that Stewart did not have any other currency or weapons.

Officer Wise then showed Stewart a single photo of the person known as Pappa and

asked Stewart if that was the individual who had sold him the cocaine. Stewart

confirmed that the man in the photo was Johnson and the individual who had “sold him

the twenty.” Id. at 136, 145, 176-77. Officer Wise then gave Stewart a ride home.

Two days later, on October 31, 2012, Officer Wise obtained and executed a search

warrant for the residence. Officer Wise remained outside, while the South Bend SWAT

team entered the residence. Once in the basement, the officers noticed a locked door to

their left, which was the same bedroom from which Stewart had seen Johnson come and

go. The officers ordered anyone who was inside to come out, and Johnson emerged. No

one else was in the room. The officers searched the room and discovered a plate and

spoon, along with drug packaging with some white rock-like substance.

One of the officers found a razor blade, which he knew from experience, is

typically used to cut drugs such as cocaine; small bags of the kind in which cocaine is

sold; a burnt spoon; and a burnt “chore boy,” a household scrubbing pad that is used to

hold cocaine when it is smoked. Tr. p. 201-07, 211, 220, 226, 228, 235-36. The residue

was tested and determined to be a cocaine base. The police officers also discovered a

4 utility bill in Johnson’s name with the Dunham Street address on it. Officer Wise spoke

with Johnson that morning and asked if he went by the name of “Pappa,” and Johnson

admitted that he did. Id. at 179.

The State charged Johnson with dealing in cocaine, possession of cocaine, and

maintaining a common nuisance. At Johnson’s jury trial that commenced on June 25,

2013, Stewart identified Johnson in the courtroom without objection. Johnson was found

guilty of dealing in cocaine and maintaining a common nuisance. Thereafter, Johnson

was sentenced to concurrent terms of ten years for dealing in cocaine and to two years on

the maintaining a common nuisance conviction. He was found not guilty of possession

of cocaine, and he now appeals.

DISCUSSION AND DECISION

I. Standard of Review

Our standard of review for sufficiency claims is well settled. When reviewing a

claim of sufficiency of the evidence, we do not reweigh the evidence or judge the

credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct. App.

2009). We look only to the probative evidence supporting the judgment and the

reasonable inferences therein to determine whether a reasonable trier of fact could

conclude that the defendant was guilty beyond a reasonable doubt. Id. If there is

substantial evidence of probative value to support the conviction, it will not be set aside.

Id. It is the function of the trier of fact to resolve conflicts in the testimony and to

5 determine the weight of the evidence and the credibility of the witnesses. Yowler v.

State, 894 N.E.2d 1000, 1002 (Ind. Ct. App. 2008).

II. Johnson’s Claims

In addressing Johnson’s challenges to the sufficiency of the evidence, we initially

observe that he does not assert that the State failed to prove any particular element of

either offense charged. Rather, Johnson seeks to attack Stewart’s credibility in light of

the incredible dubiosity rule, the fact that he profited financially in the transactions, and

that Stewart’s identification of Johnson as the offender was not worthy of credit.

A. Incredible Dubiosity—Generally

Under the incredible dubiosity rule, our Supreme Court has observed that

Within the narrow limits of the “incredible dubiosity” rule, a court may impinge upon a jury’s function to judge the credibility of a witness. If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant’s conviction may be reversed. This is appropriate only where the court has confronted inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Application of this rule is rare and the standard to be applied is whether the testimony is so incredibly dubious or inherently improbable that no reasonable person could believe it.

Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (emphasis added). In addition,

inconsistencies between the testimonies of multiple witnesses do not make the evidence

“incredible” as a matter of law, and only go to the weight of the evidence. Morell v.

State, 933 N.E.2d 484, 492-93 (Ind. Ct. App. 2010).

As for Johnson’s dealing in cocaine conviction, the evidence at trial established that

MSOS officers searched Stewart to insure that he did not have any currency, narcotics, or

6 weapons on him, gave him buy money, and fitted him with an audio recording device.

Tr. p. 126-27, 141, 166-67. The officers monitored his movements to insure that he did

not have contact with anyone else. Stewart went to Johnson’s residence and entered the

basement where Johnson’s bedroom was located. Johnson asked what Stewart needed,

and when Stewart asked for a “twenty,” Johnson took the money and handed Stewart .15

grams of cocaine in a small baggie. Id. at 130, 132-33, 173-74. Stewart identified

Johnson from a photo that Officer Wise showed him as the person who had delivered the

cocaine to him. When the search warrant was executed, Officer Wise spoke with

Johnson and confirmed that he went by the name of “Pappa.” Id. at 179. During the trial,

Stewart identified Johnson in the courtroom as Pappa without objection. This was

sufficient evidence to establish that Johnson committed dealing in cocaine.

As for Johnson’s claim of incredible dubiosity, he makes no showing that

Stewart’s testimony was contradictory. Rather, Johnson makes the unsupported assertion

that he satisfies the incredible dubiosity rule “for the reasons stated above.” Appellant’s

Br. p. 7. Moreover, plenty of circumstantial evidence exists in this case. As a result,

because Johnson cannot establish the elements of incredible dubiosity with respect to the

dealing conviction, his argument fails.

To establish that Johnson committed the offense of maintaining a common

nuisance, the State was required to establish that Johnson knowingly maintained a

building that was used for unlawfully keeping, offering for sale, selling, delivering, or

7 financing the delivery of a controlled substance or items of drug paraphernalia. I.C. § 35-

48-4-13(b).

The State presented testimony that MSOS officers conducted surveillance on the

residence for nearly four days and observed “short-stay” traffic, with people frequently

arriving and leaving after a short time. Tr. p. 177, 179-81. The police officers arranged

for Stewart to conduct a controlled buy from Johnson at the residence.

As discussed above, the officers obtained a search warrant for the residence and found

drug paraphernalia, cocaine residue, and plastic baggies for packaging cocaine. Id. at

201-07, 211, 220, 226, 228. They also found a utility bill in Johnson’s name with his

address on it. This evidence is sufficient to establish that Johnson maintained a common

nuisance.

While Johnson seeks to invoke the doctrine of incredible dubiosity with regard to this

conviction, we note that multiple witnesses testified about the offense. Id. at 125-27,

130-32, 158-59. Moreover, the officers’ surveillance of the premises revealed traffic

consistent with drug dealing or usage. Id. at 177, 179-81. Several of the officers testified

about the evidence they found during the search. Id. at 125-27, 130-32, 158-59. Johnson

does not contend that any of the witnesses’ testimony was contradictory. And in light of

all the direct evidence that was presented at trial, there is no need for, much less an

absence of, circumstantial evidence corroborating the testimony of a single witness. As a

result, Johnson’s incredible dubiosity argument in this instance also fails.

8 Finally, Johnson argues that Stewart’s credibility was not reliable because he

identified Johnson from a single photograph that the police had shown to him. Johnson

admits that the “identification procedure employed by police in this case was not so

suggestive to render Mr. Stewart’s identification of [Defendant] inadmissible,” but

incorrectly asserts that the identification procedure, combined with payment to Stewart,

renders Stewart’s testimony unreliable and incredibly dubious. Appellant’s Br. p. 6.

This issue was placed before the jury that heard clear and explicit evidence about Officer

Wise’s and Stewart’s use of the photograph to confirm that Johnson was the individual

who sold drugs to Stewart, along with the payment that was given to him in exchange for

his testimony and participation in the transaction. In short, Johnson’s incredible

dubiosity argument also fails with regard to his conviction for maintaining a common

B. Financial Compensation

Johnson also contends that his convictions must be set aside because he was paid

in exchange for his testimony at trial and participation in drug transactions. As a result,

Johnson argues that the “police provided Stewart with a motive to fabricate evidence.”

Appellant’s Br. p. 5.

However, the jury was informed of the benefits that the witness received. Our

Supreme Court has long recognized that the State is under a continuing duty to disclose

any inducements offered in exchange for a witness’ testimony. Williams v. State, 409

N.E.2d 571 (Ind. 1980). The fact-finding body must therefore have before it all of the

9 relevant circumstances that caused or induced the witness to testify as he did, including

the rewards for such testimony. Diggs v. State, 429 N.E.2d 933, 934 (Ind. 1981).

Here, the deputy prosecutor made clear to the jury the extent to which Stewart

dealt with law enforcement personnel. Hence, the jury was fully aware of any issues that

might have arisen from the facts regarding Stewart’s credibility as a result of payment to

him as an informant. Therefore, Johnson’s claim that his convictions should be set aside

because Stewart had a financial motive for Stewart “to fabricate evidence of illegal

activity,” fails. Appellant’s Br. p. 5.

In conclusion, the jury was entitled to weigh the evidence and determine which

portions of the testimony it would accept, and it was free to accept the testimony of

Stewart, Officer Wise, and the other officers, thus finding that Johnson committed the

charged offenses. In short, Johnson’s arguments amount to a request to reweigh the

evidence, which we will not do. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).

The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.