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01/08/88 PARIS G. JOHNSTON v. STATE INDIANA

Filed: January 8, 1988.

PARIS G. JOHNSTON, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM HAMILTON COUNTY SUPERIOR COURT NO. I, The Honorable Donald E. Foulke, Judge, Cause No. 1SCR91-006

Pivarnik, J., Shepard, C. J., Givan, and Dickson, JJ., concur. DeBruler, J., concurs in result without opinion.

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant Paris Gay Johnston was found guilty by a jury in Hamilton Superior Court I of the crime of Dealing in a Narcotic Drug, a class A felony. The trial court sentenced Johnston to a term of forty (40) years.

Five issues are presented for our review in this direct appeal as follows:

1. trial court error in admitting into evidence portions of an absent witness' deposition;

2. trial court error in finding a State's witness competent to testify;

3. trial court error in denying Johnston's request to admit into evidence other portions of an absent witness' testimony;

4. trial court error in denying Johnston's request for immunity where he testified against State's witness; and

5. prosecutorial misconduct.

The facts show Becky Woodbury, a paid police informant, contacted Johnston at the request of police agents and bought cocaine from him on May 9, 1980 and a date in June, 1980. The substance purchased on May 9 was represented to be one-half ounce of cocaine. Woodbury consumed a small amount of cocaine with Johnston, then left the premises. She immediately turned the substance over to police waiting outside the house where the transaction occurred. It was tested by a forensic chemist and found to be cocaine with a weight of approximately 3.3 grams.

An information was filed charging Johnston with the May 9 delivery and the cause was set for jury trial on August 10, 1981. In the meantime, Johnston was freed on bond. In February, 1981 Johnston took Woodbury's deposition. The deposition was taken regarding an unrelated case where Woodbury again acted as an undercover agent for police. However, she was also questioned about the May 9 incident.

Prior to the August 10, 1981 trial date Johnston fled the jurisdiction and failed to appear for trial. He remained at large until he was found and arrested in California over four years later in October, 1985. Woodbury also disappeared some time after the 1981 trial date. Police became aware of this fact in 1983. Prior to trial, officers involved in the investigation attempted, without success, to locate Woodbury to testify at trial. Their attempts included calling her telephone number, calling her mother's telephone number and verifying the mother no longer lived at that residence, running Woodbury's social security number through the Bureau of Motor Vehicles and the Indianapolis Police Department computer systems, and searching Woodbury's name in the Drug Enforcement Agency computer system.

At trial the State offered in evidence portions of the deposition taken at Johnston's request and conducted by defense counsel. The trial court permitted ...


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