Cornell Johnson v. State of Indiana

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MEMORANDUM DECISION – NOT FOR PUBLICATION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
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Ind. Code § 35-48-4-13(b).
2
I.C. § 35-48-4-1.
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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
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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
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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
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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
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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
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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.
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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
nuisance.
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
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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.
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