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Date: 03-25-2019

Case Style:

Larry Corneal Johnson v. State of Indiana

Case Number: 18A-CR-1735

Judge: Cale J. Bradford

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Jesse R. Drum
Deputy Attorney General

Defendant's Attorney: Matthew J. McGovern

Description:





In January 2017, L.M. and her boyfriend were arrested with a substantial
amount of methamphetamine. L.M. became a confidential informant (ďthe
C.I.Ē) and reported that she had purchased heroin from Johnson on
approximately ten prior occasions. The C.I. arranged to purchase heroin from
Johnson through a recorded phone call on May 16, 2017. The C.I. was
provided with two recording devices disguised as a key fob and a cellphone and
supplied with buy money to purchase the heroin. The C.I. drove to Johnsonís
residence under the supervision of police. Once the C.I. entered the residence,
Johnson gave her one gram of heroin packaged in aluminum foil in exchange
for $225 of buy money. Following the exchange, Johnson made a sexual
advance toward the C.I. which was partially captured on audio.
[4] Police continued observation of Johnsonís residence. After Johnson left by
vehicle, police detained several individuals who attempted to enter the
residence and executed a search warrant. The search revealed almost eleven
grams of heroin, three digital scales, and drug paraphernalia. Police arrested
Johnson following a traffic stop and the buy money was located on Johnsonís
person.

1 We heard oral argument at Manchester University in North Manchester, Indiana at on March 5, 2019. We thank Manchester University for their generous hospitality and commend counsel for their skilled and informative oral advocacy.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 4 of 32

[5] On May 18, the State charged Johnson with two counts of dealing in a narcotic
drug, a Level 2 felony and a Level 5 felony, and maintaining a common
nuisance, a Level 6 felony. Johnson moved for a speedy trial at his initial
hearing on May 22. Attorney Ivan Arnaez entered his appearance for Johnson
on June 6 and filed motions to suppress and dismiss.
[6] Arnaez moved to withdraw his appearance on October 6. At an October 31
hearing on the motion, the trial court engaged in the following colloquy with
Johnson:
[The Court]:Well you have, you have three options. You can represent yourself, you can hire someone, another lawyer to represent you or you can take a public defender. If you want a lawyer, you canít afford one, the Court can appoint one for you but . . . [Johnson]: I did hire a lawyer. [The Court]: Do what? [Johnson]: I did hire a lawyer. [The Court]: Well but he just told me that you asked him to, you know, get off your case, to withdraw from your case. [Johnson]: But he just said heís not going to refund any of my money. Heís paid in full. Heís paid in full. So he was hired to go to a trial, a jury trial. Heís not taking me to a jury trial but he still Ė that shouldnít let him out of the Ė not paying the court costs. He still should be obligated for that but if you donít see fit like that Iíll set a fast and speedy trial. If I have a fast and speedy trial Iíll proceed pro se. [The Court]: Youíre going to represent yourself? [Johnson]: Yes sir. Iíll proceed pro se.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 5 of 32

[The Court]: Okay. Why do you want to represent yourself? Thatís not a very good idea. [Johnson]: Your Honor, Iím sure you are aware of the, the video recordings in this case. [Ö.] [The Court]: All right. I understand that. Why do you want to represent yourself? Why donít you want the public defender to represent you or . . . [Johnson]: Because I paid for an attorney. I already paid for an attorney but Iíll represent, Iíll represent myself. I think I can represent myself better than this gentleman here. [The Court]: Okay. [Counsel]: You know Iím not going to let him bad mouth me like that Your Honor. Weíve filed a Motion to Dismiss, Motion to Suppress. If Iím out of the case, Iím out of the case but Iím not going to let him say that. [Johnson]: Your Honor the man has not Ė I donít even know my cause number. [The Court]: Well obviously he canít represent you. Weíre past that point. [Johnson]: He has not sent me a cause number. He has not sent me a . . . [The Court]: (Interrupting) Have you ever represented yourself before in any kind of Court proceeding? [Johnson]: Yes. Yes sir, Your Honor, I have. [The Court]: You did? [Johnson]: Yes but the point with him being, Your Honor, he has not sent me a copy of a search warrant. They searched my home at 3:50 Ė they entered my house
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 6 of 32

at two oíclock. The search warrant is for 3:58. He wonít even send me a copy of the search warrant. [The Court]: Okay. [Johnson]: I got charged with these crimes at 2:34. [The Court]: I understand that you and [counsel] have had a falling out. Iím going to grant his request Ė your request, actually, that he withdraw. If you have a problem with the fee arrangements, you donít think you were treated fairly you have to pursue that on your own through other legal remedies. I canít do anything about that in this case. Now . . . [Johnson]: (Interrupting) Is my fast and speedy trial still good? [The Court]: Itís set for November 16th. Do you want Ė you still want to represent yourself? [Johnson]: Yes sir. Yes sir. Iíll be representing myself. Thank you, sir. I wonít take much of the Courtís time. Tr., Vol. 2 at 15-18.
[7] Johnson renewed his motions to suppress and dismiss and filed a motion to
compel. The trial court held a hearing on Johnsonís motions on November 13.
There, Johnson claimed he was unaware of the hearing and had not
subpoenaed any witnesses. The Court stated:
Youíve, by moving for an early trial, the Court has to try this case on Thursday. Now you have not subpoenaed nor have you requested that the Court subpoena any witnesses. If you are telling the Court that you want subpoenas issued to witnesses, the Court can arrange that but youíre asking the Court to do that and to deliver subpoenas and have individuals here and youíre giving me Ė this is near the end of business on Monday so that gives the Court Tuesday and Wednesday to subpoena a list of witnesses.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 7 of 32

Id. at 28. Over Johnsonís objection, the trial court granted the Stateís motion
for a continuance pursuant to Criminal Rule 4(D) for the State to obtain
additional evidence from a witness who was in the hospital, explaining to
Johnson ď[n]ow it seems to me that you need that ninety days to get yourself
prepared.Ē Id. at 42.
[8] Johnson then filed a motion to dismiss or discharge on December 21. The trial
court held a pretrial conference on January 16 and a hearing on Johnsonís
motions to suppress and dismiss on January 26. At the beginning of the
hearing, the trial court asked Johnson again if he wanted counsel:
[The Court]: Weíre here this morning in the matter entitled State of Indiana vs Larry Corneal Johnson. Mr. Johnson is present, heís in custody and heís representing himself so he is pro se. Now you still wish to represent yourself, Mr. Johnson? [Johnson]: Yes sir. [The Court]: Okay. You understand youíre facing a Level 2 Felony here, itís pretty serious. You donít want legal counsel? [Johnson]: Yes sir. No sir. Id. at 51. During the ensuing suppression hearing, both Johnson and the State
presented evidence and cross-examined witnesses. The hearing was continued
until January 30. Following an additional officerís testimony on that date, the
trial court denied Johnsonís motion to suppress.
[9] Also on January 30, the State filed a notice of Evidence Rule 404(b) evidence.
The State indicated that ď[Johnson] may introduce evidence [the C.I.] was at
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 8 of 32

his home prior to May 16, 2017 and [the C.I.] was in possession of heroin and
planted the heroin in the home.Ē Appellantís Appendix, Volume II at 88.
Therefore, the State claimed that such evidence would ďopen the door for the
State to introduce evidence [the C.I.] had purchased heroin from [Johnson]
previously at his home and that he was her supplier as opposed to her obtaining
heroin and planting it in his home.Ē Id.
[10] The trial court held a hearing prior to trial on the morning of February 1.
When Johnson asked about suppressing evidence, the trial court explained:
[The Court]: I told you when youíre going to represent yourself I cannot help you. [Johnson]: I agree with you, Your Honor. [The Court]: I cannot stand on your side of this case. Youíre responsible. You took responsibility for this. Thatís why I told you to hireóget aólet the Public Defender represent you. Tr., Vol. 2 at 145. The State then asked about its notice of Rule 404(B)
evidence to which the trial court responded, ďIf [Johnson] alleges the
entrapment or if he says that Ė if [the State] [has] evidence that thatís not true,
the evidence is not true, certainly.Ē Id. at 149.
[11] The trial court conducted a hearing on Johnsonís motion to dismiss, which it
denied from the bench after hearing Johnsonís evidence. Johnson then
requested Judge Robert J. Pigman recuse himself because he was the
prosecuting attorney in a case against Johnson that reached the Indiana
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 9 of 32

Supreme Court in 1987.2 Judge Pigman declined to recuse himself but offered
Johnson more time to ďfind some authority to support [his] position in this
case[.]Ē Id. at 171. Johnson declined.
[12] After a lengthy discussion regarding whether the C.I. had any prior convictions,
Johnson asked:
[Johnson]: Can I have Co-Counsel get me various papers? [The Court]: Get you what? [Johnson]: Can I have Co-Counselor to assist me, CoCounselor . . . [The State]: Judge thatís a . . . [Johnson]: Well he has two people. You have two people over there. [The State]: That is a late request the morning of trial. He has been insistent, pro se . . . [The Court]: (Interrupting) I offered you that once before, Mr. Johnson and you didnít want that. [Johnson]: No. You offered me an attorney. [The Court]: And I offered you standby counsel and you said you didnít need a lawyer. [The State]: May I bring to this Courtís attention, Ms. Inkenbrandt was here when we did our pre-trial. He and I had a dialog then. I canít remember which deputy was here. It may have been Lieutenant Ashworth and I admonished Mr. Johnson then, I said sir you do not know what youíre doing in this case. You need to be

2 See Johnson v. State, 507 N.E.2d 980 (Ind. 1987).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 10 of 32

represented by an attorney. He rebuked my statement and said I donít need any counsel, I donít need a Public Defender. Iím ready to go. [The Court]: Yeah (affirmative). I understand. You canít have a trial today with co-counsel. [Johnson]: Your Honor. Okay. Your Honor this is the charging Information. [The Court]: Right. [Johnson]: This is upstairs. This is not even in this courtroom. [The Court]: Mr. Johnson itís obvious to me that I was right months ago when I told you youíre making a big mistake. [Johnson]: (Interrupting) But Iím saying this charging Information is upstairs. [The Court]: Many of the things youíve said and many of the efforts youíve made on your behalf have not been successful because many of them, you just donít know what youíre doing. Youíre not adequately skilled in the law how to investigate these things, how these things work and thatís what I told you. A lawyer can do things for you that you canít do for yourself. Youíre right. Youíre in jail. You have very limited access to anything. Thatís why I . . . [Johnson]: (Interrupting) But I still should be, I still should be . . . [The Court]: (Continuing) . . . on a number of occasions asked you to . . . [Johnson]: (Interrupting) I still should be entitled to a fair trial Your Honor. [The Court]: Yeah (affirmative), you are. [Johnson]: Irregardless [sic] of that. I . . .
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 11 of 32

[The Court]: (Interrupting) But youíre the one who is interfering with that, not me. I canít Ė by law I am not allowed to be on your side. [Johnson]: He was supposed to furnish me the text cell phones months ago. [The Court]: Well they just Ė they donít have them and there was a record made months ago about that issue and the Court ruled on that. [Johnson]: But this guy here got up Ė Hassler just got up on the stand and told you he done destroyed material evidence. He destroyed it. [The Court]: Do you, do you want a lawyer to help you on this case or not? You canít have a trial today if thatís what you want. [Johnson]: Okay but you going to make a ruling upon him destroying material evidence? He done destroyed the evidence. [The Court]: No. I am not going to make a ruling that Detective Hassler destroyed material evidence. [Johnson]: Okay. Come on. We gonna go to trial then. Come on. Go to trial. Letís go. [The Court]: All right. Id. at 176-78.
[13] Following jury selection, the trial court inquired:
[The Court]: State are you ready? [The State]: Yes. [The Court]: Mr. Johnson? [Johnson]: No. Your Honor can I have a co-counsel? [The Court]: Sir you canít Ė you canít wait till the day of the trial to ask for that. Thereís nobody in the Public
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 12 of 32

Defenderís Office who would be available. I did sort of check this morning. Thereís nobody available and you know, nobody would feel competent to step in in the middle of a trial and take over or help out. They wouldnít have any idea what the case is about or what youíre trying to do. [Johnson]: Well they could help me with Ė in objecting to certain evidence that Prosecutor may offer thatís, you know Ė before you kind of told me I could listen to my cell phone tapes and now they telling me Ė or listen to the C.I.ís cell phone tape, now they telling me thatís not available so I was kind of lead (sic) up into this, misled from the other room to come here, I was kind of a little misled with that one. I didnít see that one coming. [Ö.] [The Court]: Okay. Well as to your request for standby counsel itís too late. I mean thereís no way I can get somebody here now to do that. Tr., Vol. 3 at 33-36.
[14] The trial court proceeded to the Stateís case-in-chief. During Johnsonís cross
examination of Detective Hassler, who arranged for the controlled buy with the
C.I., Johnson asked:
[Johnson]: Okay. Between January and May the 16th, 2017 what controlled buys did [the C.I.] do other than mine? [Hassler]: None. [Johnson]: None? Okay. So what make you rely on [the C.I.] to send her to somebodyís home? [Hassler]: Well as I previously stated I determined that she was reliable and credible based on not only the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 13 of 32

things she said to me before during conversations that I had with her but also after the buy, examining the video and seeing that yes, thatís corroborated. [Johnson]: Okay. Excuse me sir. Iím not talking about after the buy. Iím talking about before you sent her into the home, what calibration did you have Ė the phone conversation didnít speak about her (inaudible). She just said sheís coming over. [Hasler]: I understand your question. [The State]: Judge may we approach to that question? [Johnson]: Itís a yes or no question. [The State]: I know it is but I want to approach. [The Court]: Okay. Yes you may. Come up here Mr. Johnson. (At sidebar.) [The State]: Consistent with the Rules of Evidence, Your Honor, I instructed Mr. Hassler not to volunteer any information about the C.I. telling him she previously purchased heroin while he was on the stand unless [Johnson] opened the door. Mr. Hassler, I do believe, is going to answer Mr. Johnsonís question when he asks for corroboration, Mr. Hassler is going to say he was aware that she had been buying heroin from him prior to this date. [Johnson]: Thatís not true. [The State]: I get itís not true but if you think thatís what heís asking that is what Mr. Hassler is going to say when heís asking for corroboration. [The Court]: Yeah (affirmative). If youíre asking for corroboration . . . [The State]: (Interrupting) That is going to be the answer. [The Court]: Do you want to withdraw the question or you can go forward. Itís up to you.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 14 of 32

[Johnson]: Okay. All right. (Sidebar concludes.) [Johnson]: Other than the C.I., did you have any other information that drugs was being sold, that I was selling somebody heroin? Id. at 76-78. Over objection, Detective Hassler explained that ďwe had been
tipped off that [Johnson] had been selling heroin from his address from a We
Tip [hotline tip].Ē Id. at 79.
[15] Johnson eventually inquired into the C.I.ís pending charge, asking Detective
Hassler:
[Johnson]: Did you think [the C.I.] had an incentive then to entrap people? [Hassler]: I donít view it as entrapping. [Johnson]: Did you put her in jail? [Hassler]: I donít know if I did or didnít on that case. I canít recall. [Johnson]: Did she stay out of jail to entrap people? Is this true? [Hassler]: I never entrapped anybody. [Johnson]: I didnít say you. I didnít say you. Youíre a fine Officer. Iím saying sometimes Ė have you been tricked by any of these C.I.ís youíve been working with? You said that youíve been named T and this stuff. Have you ever been tricked by a C.I.? [Hassler]: Yes . . . [Ö.] [Johnson]: Is she from Gibson County? [Hassler]: I donít know.
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[Johnson]: You donít know. Okay. Then you just send Ė you would just send any person in somebodyís home and just donít know nothing about them? [Hassler]: Well I think I very clearly explained the process that I go through and the decision that I make of how we select those people and I donít just send anybody in any random personís home. She obviously knew you somehow and she knew that she could purchase heroin from you so naturally I sent her into your house and thatís exactly what happened. [Johnson]: Did you ever think maybe that she maybe knew that she could trick me? [Hassler]: Well to be honest thatís not my decision to make whether you feel like youíve been tricked or not. The end all be all result was that youíre deciding at the end of the day to sell heroin and thatís what you did to my C.I. therefore I donít know what to tell you. Donít break the law I guess. [Johnson]: But your C.I. is breaking the law? [Hassler]: Okay. [Johnson]: I mean your C.I. broke the law driving there, speeding there. Sheís breaking the law, bringing drugs into my home. Sheís breaking the law having sexual intercourses without my consent, (inaudible) me. Did I agree to be in a pornography movie? Id. at 97-99.
[16] During redirect examination of Detective Hassler, the State asked to approach
the bench:
[The State]: [Johnson] stated on cross Judge, the C.I. brought drugs into my home, (inaudible) entrapment, the C.I. busted for dealing. I think that opens the door to get into the fact that she did not bring drugs into
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 16 of 32

his home and I can get it in with Hassler the fact that [the C.I.] has [bought] drugs from him before. [Johnson]: No she hasnít. [The State]: He made that statement very clearly. [The Court]: I think you got to ask her. Id. at 105.
[17] Sometime later, the State asked the C.I. on direct examination:
[The State]: Prior to May 16th, 2017 had you purchased heroin from [Johnson]? [The C.I.]: Yes. [The State]: How many times? [The C.I.]: Probably about ten times. [The State]: Was he your heroin supplier? [The C.I.]: Yes. [The State]: Where on those prior ten times, where did that purchase take place? [The C.I.]: Most of the time at his house and once or twice at his Ė where he worked at. Id. at 128. Johnson objected because ďthereís no evidence whatsoever that she
purchased heroin from me period.Ē Id. at 129.
[18] Later, on cross-examination, Johnson asked Detective Simpson:
[Johnson]: Have any of your sources from other cities or any of your C.I.ís that you know of told you that they sold some heroin to Larry Johnson at 704 Washington? [Simpson]: Theyíve never Ė Iíve never had a confidential source say anything about them directly selling heroin to you. Weíve had Ė Iíve had confidential sources tell
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1735 | March 20, 2019 Page 17 of 32

me that you are dealing heroin from your house on Washington but I never had any confidential sources tell me that you Ė that they actually sold you heroin. [Johnson]: Okay. And I assume, Iím asking you, are you referring to, to [the C.I.]? [Simpson]: No. Iím talking about other confidential informants. [Johnson]: Are you referring to We Tip? [Simpson]: No, Iím not referring to a We Tip. Iím referring to other confidential informants that provide information to me talked about you selling heroin from your address on Washington. Tr., Vol. 4 at 17-18.
[19] At the conclusion of the two-day trial on February 2, 2018, the jury found
Johnson guilty as charged. On April 3, newly-appeared defense counsel filed a
motion to set aside conviction and set a new trial. At a sentencing hearing on
June 13, the trial court denied Johnsonís motion and sentenced Johnson to
twenty-five years for dealing a narcotic drug, a Level 2 felony; five years for
dealing in a narcotic drug, a Level 5 felony; and two years for maintaining a
common nuisance, a Level 6 felony. The trial court ordered all the sentences to
run concurrently for an aggregate sentence of twenty-five years.

Outcome: For the reasons set forth above, we conclude the trial court did not violate
Johnsonís right to counsel by allowing him to proceed pro se, Johnson did not
reassert his right to counsel, and the trial court did not commit fundamental
error by permitting the State to introduce evidence of Johnsonís prior drug
dealing. We therefore affirm in all respects.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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