Dion Johnson v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing
Jan 15 2020, 7:49 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Frederick Vaiana F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin & Chief Deputy Attorney General of
Webb Indiana
Indianapolis, Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dion Johnson, January 15, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-70
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1704-MR-13155
Bradford, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020 Page 1 of 9
Case Summary
[1] Dion Johnson was convicted of murder after he shot and killed Terence Hill.
On appeal, Johnson contends that the trial court abused its discretion in
admitting certain pre-trial identification evidence. We affirm.
Facts and Procedural History 1
[2] In April of 2017, Xiyya Depp was in a relationship and lived with Hill. Around
mid-day on April 6, 2017, Depp, Hill, Michele Moore, and Theodore
Washington went to a Family Dollar store together. They then went across the
street to a gas station where Hill interacted with Johnson, who was known to
Depp as “Sane.” The group briefly went back to the Family Dollar before
returning to the gas station. Back at the gas station, Hill went to speak with
Johnson in Johnson’s burgundy/maroon-colored vehicle.
[3] Later that evening, Depp, Hill, Moore, Washington, and Johnson ended up at
Depp’s and Hill’s apartment. An unidentified friend of Johnson’s joined the
group at the apartment. After Hill and Johnson snorted powdered cocaine, Hill
went into the bedroom and laid down on the bed beside Depp. Hill “seemed
nervous and he was shaking.” Tr. Vol. II p. 62. Johnson eventually came into
the bedroom with a gun in his hand and began accusing Hill of setting him up
1
We held oral argument in this case at Mississinewa High School on December 16, 2019. We wish to thank
counsel for their advocacy and extend our appreciation to the faculty, staff, and students of Mississinewa for
their fine hospitality.
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and working with “the feds.” Tr. Vol. II p. 63. Johnson instructed his friend to
watch the front door to the apartment and not to let anyone in or out.
[4] Johnson ordered everyone but Hill to sit in the living room while he and Hill
remained in the bedroom. Johnson briefly left the bedroom and came to the
living room before becoming agitated and aggressive and going back into the
bedroom, still holding the gun. Soon thereafter, multiple gunshots were fired in
the bedroom. After hearing the gunshots, Depp and Washington ran from the
apartment. Moore went to the kitchen and “jumped on top of the refrigerator.”
Tr. Vol. II p. 124. From her position on top of the refrigerator, Moore observed
Johnson, with the gun tucked in his waistband, and his friend “swipe[] the table
with their arms” and “thr[o]w chairs and stuff” before running out of the
apartment. Tr. Vol. II p. 125. Depp observed Johnson and his friend run from
the apartment and leave the scene in Johnson’s burgundy-colored car. Depp
ran back into the apartment and found Hill on the bed with “blood coming out
of ears, and … bullet holes in his shirt … just laying there with his eyes open,
kind of.” Tr. Vol. II p. 73.
[5] Indianapolis Metropolitan Police Officers Richard Tyner and Amanda Gomez
responded to a dispatch involving “a person shot or shots fired” at the
apartment. Tr. Vol. II p. 39. Upon arriving at the apartment, Officer Tyner
observed that Depp, Moore, and Washington were hysterical and crying.
Officer Tyner entered the apartment and found Hill’s lifeless body on the bed.
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[6] Investigating officers transported Depp, Moore, and Washington to the
homicide office where they were separately interviewed by Detectives
Christopher Craighill and Charles Benner. During her interview, Depp told
Detective Benner that the shooter was someone that she knew as “Sane” and
that “Sane” was one of Hill’s Facebook friends. Following the conclusion of
the Depp’s interview, Depp and Detective Benner scrolled through Hill’s
Facebook friends. While scrolling through the list, Depp pointed out a picture
that she identified as the shooter. The picture in question was associated with
the name “Donnie Ray Son.” Detective Benner escorted Depp from the room
before completing further research.
[7] Upon resuming his investigation, Detective Benner went to the Facebook page
associated with “Donnie Ray Son.” He observed that under the name “Donnie
Ray Son” was the name “Sane Savage.” State’s Ex. 86B. Detective Benner
further observed two photographs of the individual identified by Depp as the
shooter kneeling next to the gravestones of Diamond Rayshelle Johnson and
Donnie Ray Johnson. Using this information, Detective Benner checked the
police database and found “that Diamond Johnson has a brother named Dion
Johnson whose dad is also Donnie Ray Johnson.” Tr. Vol. II p. 220. Detective
Benner found a booking photo of Johnson, compared it to the Facebook photos
of Donnie Ray Son, and determined that “Donnie Ray Son was Dion
Johnson.” Tr. Vol. II p. 220.
[8] Detective Benner used the prior booking photograph of Johnson to create a
photo array containing the photograph along with five photographs of similar-
Court of Appeals of Indiana | Memorandum Decision 19A-CR-70 | January 15, 2020 Page 4 of 9
looking individuals. Depp subsequently identified Johnson from the photo
array as the shooter. The photo array was shown to Moore, with Moore also
identifying Johnson as the shooter.
[9] On April 10, 2017, the State charged Johnson with murder and Class A
misdemeanor carrying a handgun without a license. Prior to trial, Johnson
moved to suppress the pre-trial photo array and Depp’s pre-trial identification
of him as the shooter. Following an August 9, 2018 hearing, the trial court
denied Johnson’s motion. The matter proceeded to a jury trial, during which
both Depp and Moore identified Johnson as the shooter. The jury subsequently
found Johnson guilty as charged. On December 6, 2018, the trial court
sentenced Johnson to fifty-five years in the Department of Correction.2
Discussion and Decision
[10] While Johnson frames the issue as whether the trial court erred by failing to
suppress the challenged identification evidence, Johnson did not seek an
interlocutory appeal but rather appeals following the conclusion of trial. As
such, the issue is more appropriately framed as “whether the trial court abused
its discretion by admitting the evidence at trial.” Washington v. State, 784
N.E.2d 584, 587 (Ind. Ct. App. 2003).
The admission or exclusion of evidence is entrusted to the
discretion of the trial court. We will reverse a trial court’s
2
Johnson’s handgun conviction was dismissed prior to sentencing.
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decision only for an abuse of discretion. We will consider the
conflicting evidence most favorable to the trial court’s ruling and
any uncontested evidence favorable to the defendant. An abuse
of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before
the court or it misinterprets the law. In determining whether an
error in the introduction of evidence affected an appellant’s
substantial rights, we assess the probable impact of the evidence
on the jury. Admission of evidence is harmless and is not
grounds for reversal where the evidence is merely cumulative of
other evidence admitted.
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations
omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal
theory supported by the record, even if the trial court did not use that theory.”
Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).
[11] In challenging the admission of the photo array and Depp’s pre-trial
identification testimony, Johnson argues that “[w]ith the seed of [Depp’s and
Detective Benner’s] prior discussion and review of photographs from [Hill’s]
Facebook page firmly planted in Depp’s mind, she selected Johnson from the
array. This procedure was unduly suggestive, and the trial court erred by failing
to sustain Johnson’s motion to suppress evidence.” Appellant’s Br. p. 13.
Johnson further argues that
[Detective] Benner’s scrolling of Hill’s Facebook page
impermissibly suggested Depp’s identification of Johnson.
[Detective] Benner knew from Depp’s statement the suspect in
shooting Hill was identified as “Sane.” He could have, and
should have, scrolled through Hill’s Facebook page in her
absence and reached the same conclusions. The constitutional
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harm occurs because of the extent [Detective] Benner
incorporated Depp into his investigation. Her viewing of Hill’s
Facebook page contemporaneously with and under the control of
[Detective] Benner, impermissibly suggested the subsequent
photo array identification by her of Johnson.
Appellant’s Br. pp. 14–15.
[12] “Due process of law under the Fourteenth Amendment requires suppression of
testimony concerning a pre-trial identification when the procedure employed is
impermissibly suggestive.” Harris v. State, 716 N.E.2d 406, 410 (Ind. 1999).
A photographic array is impermissibly suggestive if it raises a
substantial likelihood of misidentification given the totality of the
circumstances. Factors to be considered in evaluating the
likelihood of a misidentification include (1) the opportunity of
the witness to view the criminal at the time of the crime, (2) the
witness’s degree of attention, (3) the accuracy of the witness’s
prior description of the criminal, and (4) the level of certainty
demonstrated by the witness.
Id. (internal citation omitted). “In order to succeed on this argument, the
defendant must demonstrate that law enforcement personnel or the prosecutors
were responsible for the unnecessarily suggestive identification procedure.”
O’Connell v. State, 742 N.E.2d 943, 948 (Ind. 2001).
[13] In challenging the admission of Depp’s identification testimony, Johnson
argues that the process used by Detective Benner to create the photo array was
impermissibly suggestive. Specifically, he argues that Detective Benner’s
“scrolling of Hill’s Facebook page impermissibly suggested Depp’s
identification of Johnson.” Appellant’s Br. p. 14. Johnson, however, does not
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explain what about Detective Benner’s actions was impermissibly suggestive,
merely arguing that Detective Benner should have completed his initial review
of Hill’s Facebook friends without Depp present.
[14] We are unable to say that the mere act of scrolling through Facebook with a
witness amounts to impermissibly suggestive behavior by Detective Benner.
Depp was not identifying an unknown individual. Instead, she was identifying
an individual with whom she had been familiar, by sight and by nickname, for
approximately five years. Depp informed Detective Benner that the shooter
was one of Hill’s Facebook friends. She then sat with Detective Benner and
scrolled through a list of Hill’s Facebook friends, stopping and identifying a
picture as a picture of the shooter. After Depp identified the picture as being a
picture of the shooter, Detective Benner refrained from completing any further
investigation into the identity of the person in the photograph until Depp was
no longer present.
[15] Johnson has pointed to nothing in the record indicating that Detective Benner
acted in a suggestive manner while scrolling through Hill’s Facebook friends
with Depp. Johnson merely argues that Detective Benner should not have
scrolled though the page while Depp was present. Given Depp’s familiarity
with Johnson, we are unpersuaded that the mere fact that she looked through
Hill’s Facebook friends with Detective Benner had any impact on her
identifications of Johnson as the shooter. We therefore conclude that the trial
court did not abuse its discretion in admitting the challenged evidence at trial.
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[16] The judgment of the trial court is affirmed.
Baker, J., and Riley, J., concur.
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