Douglas Johnson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 05 2017, 8:33 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Stephen T. Owens Curtis T. Hill, Jr.
Public Defender of Indiana Attorney General of Indiana
Steven H. Schutte Ellen H. Meilaender
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Douglas Johnson, July 5, 2017
Appellant-Petitioner, Court of Appeals Case No.
92A04-1703-PC-436
v. Appeal from the Whitley Circuit
Court
State of Indiana, The Honorable J. Brad Voelz,
Appellee-Respondent Special Judge
Trial Court Cause No.
92C01-1109-PC-91
Baker, Judge.
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[1] Douglas Johnson appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erroneously determined that he did not
receive the ineffective assistance of trial counsel. Finding no error, we affirm.
Facts
[2] The underlying facts in this case, as described in Johnson’s direct appeal, are as
follows:
H.C. and J.J. are extended relatives of Johnson’s wife. Between
February 2007 and August 2008, H.C, then age fourteen to
sixteen, stayed overnight at Johnson’s home. One night, she
woke up and found that she was naked below the waist and that
Johnson was touching her inappropriately. After that, Johnson
allegedly had intercourse with her and told her not to tell anyone.
At Christmastime 2008, Johnson and his wife were babysitting
eight-year-old J.J. When J.J. asked Johnson for a drink, he took
her into a bedroom, pulled down her pants, fondled her, and
placed his finger inside her vagina. He threatened to hurt her if
she told anyone.
On March 12, 2009, H.C. told her school counselor that Johnson
had molested her, and the police began an investigation. On
March 14, 2009, J.J.’s parents learned of H.C.’s allegations, and
J.J.'s father asked J.J. if anything “odd” or “weird” had ever
occurred at Johnson’s home. Tr. at 59. J.J. began to cry
hysterically, stating that Johnson had inserted his finger into her
vagina when he was babysitting her. That day, J.J.’s parents
notified the police. J.J. later indicated to Department of Child
Services caseworker Jodie Hively that it was H.C.’s disclosures
about Johnson that had prompted her to disclose her own
molestation. Id. at 133. She testified that she was “scared” to tell
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anyone but that she was “happy that [she] could get it out of [her]
system.” Id. at 73.
Johnson v. State, No. 92A03-1004-CR-222, *1 (Ind. Ct. App. Jan. 14, 2011),
trans. denied.
[3] The State charged Johnson with Class A and Class C felony child molesting for
the offenses related to J.J. and with Class B and Class C felony sexual
misconduct with a minor for the offenses related to H.C. Johnson’s jury trial
took place on March 3-5, 2010. At the close of the trial, the jury found Johnson
not guilty of Class B felony sexual misconduct with a minor charge and guilty
of the remaining three charges. The trial court merged the Class C felony child
molesting conviction into the Class A felony child molesting conviction and, on
March 29, 2010, sentenced Johnson to concurrent terms of thirty-six years for
Class A felony child molesting and six years for Class C felony sexual
misconduct with a minor. Johnson pursued a direct appeal. This Court
affirmed and our Supreme Court denied transfer. Id.
[4] On September 14, 2011, Johnson filed a petition for post-conviction relief; on
March 7, 2016, he filed an amended petition. Among other things, Johnson
argued that he received the ineffective assistance of trial counsel. The post-
conviction court held an evidentiary hearing on August 4, 2016, and trial
counsel testified at that hearing. On February 6, 2017, the post-conviction
court denied Johnson’s petition. Johnson now appeals.
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Discussion and Decision
I. Standard of Review
[5] The general rules regarding the review of a ruling on a petition for post-
conviction relief are well established:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
“When appealing from the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. To prevail on appeal from the denial of post-
conviction relief, a petitioner must show that the evidence as a
whole leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case made findings of fact and
conclusions of law in accordance with Indiana Post–Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben–Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (quotation omitted).
Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).
[6] A claim of ineffective assistance of trial counsel requires a showing that: (1)
counsel’s performance was deficient by falling below an objective standard of
reasonableness based on prevailing professional norms; and (2) counsel’s
performance prejudiced the defendant such that “‘there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
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proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444
(Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A
reasonable probability arises when there is a ‘probability sufficient to undermine
confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.
2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two
prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.
Ct. App. 2012).
II. Assistance of Trial Counsel
[7] Johnson raises three arguments with respect to the performance of trial counsel
at trial: (1) trial counsel was ineffective for deciding not to object to the
admission into evidence of the victims’ recorded pretrial interviews; (2) he was
ineffective for failing to object to vouching and drumbeat testimony; and (3) the
cumulative impact of counsel’s allegedly deficient performance prejudiced
Johnson.
A. Victims’ Recorded Interviews
[8] At Johnson’s trial, the State introduced into evidence the recorded interviews of
H.C. and J.J. that were conducted by Columbia City Police Detective Tim
Longenbaugh and Department of Child Services investigator Jodie Hively.
H.C., J.J., Detective Longenbaugh, and Hively also testified during the trial.
According to Johnson, trial counsel should have objected to this evidence
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because it was inadmissible pursuant to hearsay rules and Indiana Code section
35-37-4-6.1
[9] It is undeniable that these videotaped statements were inadmissible. At the
post-conviction hearing, however, counsel testified that as a matter of strategy,
he preferred that the statements be introduced into evidence. He wanted the
jury to see those interviews, as he believed they showed that the girls were led
and prodded by the interviewers and had made inconsistent statements. In
counsel’s view, the recorded interviews could be used to attack the credibility
and reliability of the victims’ trial testimony.
[10] Our Supreme Court has explained that “[f]ew points of law are as clearly
established as the principal that ‘[t]actical or strategic decisions will not support
a claim of ineffective assistance.’” McCary v. State, 761 N.E.2d 389, 392 (Ind.
2002) (quoting Sparks v. State, 499 N.E.2d 738, 739 (Ind. 1986)). Even the best
criminal defense attorneys may disagree on the best or most effective strategy in
a particular case; consequently, courts must give great deference to counsel’s
strategic decisions. Id. Therefore, we will not second-guess trial strategy unless
it is so deficient or unreasonable as to fall outside of the objective standard of
reasonableness. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
1
This statute provides that a statement or videotape made by a “protected person” is admissible under
certain circumstances even if it would otherwise be excluded as hearsay. “Protected person” includes only
children under the age of fourteen, I.C. § 35-37-4-6(c), meaning that this statute would not apply to
seventeen-year-old H.C. And a foundation must be laid at a separate hearing for the admission of the
videotape. I.C. § 35-37-4-6(e). Here, no such hearing occurred.
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[11] Johnson directs our attention to authority establishing that we should not credit
a strategic decision that “resembles more a post hoc rationalization of counsel’s
conduct than an accurate description of their deliberations prior to sentencing.”
Wiggins v. Smith, 539 U.S. 510, 526-27 (2003). The record belies Johnson’s
contention that trial counsel’s testimony was a post hoc rationalization:
• During closing argument, counsel told the jurors that to evaluate
credibility, they needed to examine what was said all along rather than
focusing solely on what was said at trial. Trial Tr. p. 204.
• He told the jurors to listen to the interviews, noting that “[s]ome people
might say, [counsel], why are you putting those [videos] into evidence?
Because you [the jury] gotta get the whole context folks of what’s going
on here.” Id. at 206.
• Trial counsel then spent the majority of his closing argument highlighting
things that were said and done in the videos to argue that the victims
were not credible:
• He pointed to a statement made by H.C. during her interview that the
school resource officer “kind of bribed me by buying pop and some
other things” to try “to get me to talk.” Id. at 135.
• He pointed to a statement made by J.J. during her interview that she
had been told by her father that Johnson had “done it to somebody
else.” Id. at 204-06.
• Counsel highlighted that H.C. was resistant to saying anything during
her interviews, that she remained silent when asked to show where
Johnson touched her, that she was subject to leading questions and
prodding, and that the interviewers asked questions assuming
something had happened and were the first to make suggestions that
H.C. ultimately agreed with or never actually confirmed. Id. at 206-
16.
• He pointed to inconsistencies in H.C.’s statements regarding details
such as whether clothes were on or off, or where Johnson’s hands
were. Id. at 204-05, 208.
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• He also pointed to inconsistencies in J.J.’s statements about which
finger Johnson used to penetrate her vagina and about whether or not
Johnson had closed the bedroom door. Id. at 205, 217-19.
• Trial counsel argued that a “seed” was planted in J.J.’s head when
she was told about what H.C. had said, that her statements during the
interview sounded programmed, and that it was Hively who
introduced certain ideas during the interview. Id. at 211, 216-19.
It is readily apparent that counsel did, in fact, make a strategic decision to
highlight these videotaped statements to the jury. He wanted the jurors to see
those videos so that he could use them to form his argument that the victims’
claims should not be believed. This was not a post hoc rationalization.
[12] Johnson also argues that, even if this was not a post hoc rationalization, it was
a strategy that was unreasonable as a matter of law. We disagree. It is a
reasonable trial strategy to admit a victim’s pretrial statements into evidence to
use those statements to attack the victim’s credibility. See Hinesley v. State, 999
N.E.2d 975, 982-84 (Ind. Ct. App. 2013) (holding that it was a reasonable
strategic decision to allow admission of pretrial statements where counsel
wanted to use those statements to show the molestation accusations were
unreliable); Curtis v. State, 905 N.E.2d 410, 414-15 (Ind. Ct. App. 2009) (same).
In our view, trial counsel’s strategy of attempting to undercut the reliability of
the victims was eminently reasonable. Indeed, the jury acquitted Johnson of
the second most serious charge he faced, suggesting that counsel’s strategy
achieved some success. Under these circumstances, we find that the post-
conviction court did not err by concluding that Johnson did not receive the
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ineffective assistance of trial counsel for the failure to object to the admission of
these videos.
B. Vouching and Drumbeat Testimony
[13] Next, Johnson argues that trial counsel was ineffective for not objecting to
alleged “vouching” and “drumbeat repetition” evidence. This is yet another
area where counsel explained his strategy as a trial attorney. He told the post-
conviction court that he decides whether to object to testimony as a strategic
matter during the course of a trial, depending on whether the testimony is really
hearsay, whether it will hurt his case or is important enough to warrant an
objection, and whether he thinks he can use it to help the argument he intends
to make. PCR Tr. p. 14-18, 23-24. Trial counsel saves objections for things
that truly matter, and if the witness is relaying the general nature of the
accusation without going into detail, he generally believes that it is not worth an
objection. Id. at 17-18.
[14] The so-called drumbeat evidence consists of the following:
• Detective Longenbaugh testified that, during his interview with H.C., “I
had just come out and ask[ed] her at one point if [Johnson] had sex with
her and she told me yes.” Trial Tr. p. 82.
• Johnson asserts that Hively repeated H.C.’s and J.J.’s stories, but a
review of her testimony shows that she was not asked by the State and
did not testify as to what either child told her regarding Johnson’s sexual
activity with them.
• J.J.’s father testified that when he asked J.J. whether anything odd had
happened at Johnson’s house, J.J. began crying and said that Johnson
had “touched her on her private area.” Id. at 59. Her mother testified
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that J.J. was crying and said that Johnson had “touched her wrong.” Id.
at 52.
Initially, we note that in our view, this limited collective testimony does not
constitute improper drumbeat evidence. See Norris v. State, 53 N.E.3d 512, 525-
26 (Ind. Ct. App. 2016) (noting that under certain circumstances, a drumbeat
repetition of victim’s statements can prejudice a jury). But even if it did, this
evidence is precisely the type of evidence to which trial counsel explained he
strategically refrains from objecting. We cannot conclude that this evidence is
so voluminous and prejudicial that this strategic decision was unreasonable as a
matter of law, and we decline to second-guess counsel in this regard.
[15] The so-called vouching evidence consists of the following:
• Hively and Detective Longenbaugh each testified that the detective’s
attempt to interview H.C. had not gone well because H.C. did not want
to talk to him. They further testified that it had “gone better” when
Hively interviewed H.C. because she was more willing to open up,
though she remained reluctant to talk. Id. at 81-82, 84-85, 122-23.
• Hively was asked whether J.J. was “emotionally appropriate” during the
interview. Hively responded, “I guess I don’t like that word. I don’t
think there is an appropriate response for a child that’s been abused.” Id.
at 121.
• Hively was asked whether J.J. was afraid to correct her during the
interview. Hively answered, “She would correct me if I got something
wrong, because part of [the child interview process] is when a child says
something, we repeat it and if I didn’t get it right, then she would correct
me.” Id. at 120. She explained that this process was “important”
because “it shows that we’re not leading the child[,] that she has no fear
of saying, hey, this is wrong, that they’re being truthful during an
interview.” Id.
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At the time of the trial, Indiana allowed “some form of vouching of child
witness testimony in child molestation cases.” Hoglund v. State, 962 N.E.2d
1230, 1235 (Ind. 2012).2 Specifically, at that time, witnesses were permitted to
provide opinions that would “facilitate an original credibility assessment of the
child by the trier of fact, so long as they do not take the direct form of ‘I believe
the child’s story’ or ‘In my opinion the child is telling the truth.’” Lawrence v.
State, 464 N.E.2d 923, 925 (Ind. 1984), overruled by Hoglund.
[16] With respect to the first statement, we cannot conclude that testimony
explaining why H.C. was interviewed twice—because she would not talk to one
interviewer but opened up to a second interviewer—was improper vouching.
There was no suggestion that the second interview went better because H.C.
told the truth the second time; instead, it went better because she was willing to
engage with the interviewer and answer questions. Consequently, any
objection made by trial counsel would have been overruled.
[17] With respect to the second statement, Hively did not say that J.J. was abused or
that she believed J.J.’s statement. Instead, she was challenging the premise of
the question and explaining that generally, one cannot draw any conclusions
about whether children have been abused based on their emotional behavior
2
Since that time, Indiana’s caselaw regarding vouching testimony in child molestation cases has evolved, but
we must judge counsel’s performance on the basis of the law as it existed at the time of his representation of
Johnson. E.g., Harrison v. State, 707 N.E.2d 767, 776 (Ind. 1999) (holding that an attorney will not be deemed
ineffective for failing to anticipate a change in the existing law).
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during an interview. As this was not vouching testimony, had counsel objected,
it would have been overruled.
[18] The third statement comes the closest to improper vouching testimony. Under
the circumstances of this case, however, it would have been admissible in any
event. As noted above, the primary defense strategy in this case focused on
questioning the credibility of the victims and arguing that the children had been
led by adults into making these accusations. Having utilized this strategy, the
defense opened the door to testimony that Hively had not, in fact, led J.J. into
making these accusations. Sampson v. State, 38 N.E.3d 985, 991-92 (Ind. 2015)
(testimony regarding indications of coaching of a child molestation victim is
inadmissible unless defense opens the door by raising questions of victim
credibility by suggesting victim was led or coached by others).
[19] Johnson argues that he made only a “general impeachment” of the witnesses’
credibility, which did not open the door to Hively’s testimony. But counsel
argued, among other things, that H.C. was bribed to make statements, that both
children were asked leading questions by various adults, and that a seed was
planted in J.J.’s mind when her father and others made various statements.
This strategy goes beyond a general impeachment and clearly opened the door
to Hively’s testimony that, during the interview, J.J. would correct her and she
did not lead the child into making accusations. Consequently, had trial counsel
objected to this testimony, it would have been overruled.
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[20] Finally, we note that even if any of this testimony constituted improper
vouching, Johnson cannot establish prejudice given the overwhelming evidence
of his guilt. Two female children, who had no opportunity to conspire together
and had no motive to lie, independently accused Johnson of engaging in sexual
acts with them while they were in his care. Furthermore, Johnson agreed to
undertake a polygraph test, which indicated deception and was admitted into
evidence. The challenged testimony is brief in nature, was not unduly
emphasized during the trial, and was not even referenced by the prosecutor
during closing argument. Under these circumstances, we cannot conclude that
there was a reasonable probability the result of the trial would have been
different had this testimony been excluded.
C. Cumulative Impact
[21] Finally, Johnson contends that the cumulative impact of counsel’s errors is
prejudicial and, had counsel conducted the trial in a different manner, there is a
reasonable probability that Johnson would have been acquitted. See Smith v.
State, 511 N.E.2d 1042, 1046 (Ind. 1987) (holding that it is proper for the court
to consider the cumulative impact of counsel’s errors). Here, we have not
found that trial counsel committed any errors. Instead, it appears to us that trial
counsel defended Johnson vigorously and intelligently, especially given the
weight of evidence against Johnson—including the polygraph examination,
with which he agreed to participate before counsel was his attorney.
Notwithstanding the evidence against Johnson, trial counsel was able to
convince the jurors to acquit his client of the second most serious charge he
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faced. In short, the post-conviction court did not err by finding that Johnson
did not receive the ineffective assistance of trial counsel.
[22] The judgment of the post-conviction court is affirmed.
Barnes, J., and Crone, J., concur.
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