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02/02/88 DAVID ALLEN JOHNSON v. STATE INDIANA

Filed: February 2, 1988.

DAVID ALLEN JOHNSON, APPELLANT (DEFENDANT BELOW)
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM THE ST. JOSEPH CIRCUIT COURT, The Honorable John W. Montgomery, Judge, Cause No. 23059

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

Author: Pivarnik

PIVARNIK, J.

Defendant-Appellant David Allen Johnson was found guilty of murder by a jury in the St. Joseph Circuit Court. He was sentenced to a fifty (50) year term of imprisonment. He directly appeals, raising several issues which we have restated as follows:

1. limitation of cross-examination;

2. refusal of tendered jury instructions regarding sources of the law, reasonable doubt, and lesser included offenses;

3. alternate theories of liability;

4. sentencing;

5. rereading exhibit to jury;

6. juror misconduct.

The facts show that in January, 1981, August Lodholtz planned, along with Phyllis Whitehead and Elaine Wallace, to murder Claude Whitehead. Lodholtz was to be paid $5000 and given a motorcycle to murder Whitehead. Lodholtz informed Johnson of the plot and offered Johnson $2500 and the motorcycle to kill Claude Whitehead. The evidence at trial tended to show that on January 19, 1981, Lodholtz obtained a gun and gloves from Wallace. Lodholtz and Johnson drove to the Whitehead residence. Lodholtz or Johnson then left the area while the other went into Whitehead's home and fatally shot Whitehead.

Approximately one Year later, Johnson admitted committing the murder to Thomas Bradley and told Bradley he had received $2500 for killing Whitehead. Thereafter, Bradley spoke with Officer Richard Seniff of the St. Joseph County Police Department but did not initially tell the officer that Johnson admitted to committing a murder.

On July 19, 1982, Officer Gregory Labis spoke with Johnson. Johnson at first denied any involvement in the Whitehead murder, but later stated he had driven Lodholtz to Whitehead's home, but he had not killed Whitehead. On November 29, 1982, Johnson gave a tape-recorded statement to police in which he described the murder plot. Johnson stated he drove Lodholtz to the Whitehead residence and left the area. Subsequently, Johnson returned to the residence and found Lodholtz waiting for him. Johnson stated Lodholtz told him that he shot Whitehead three times. Lodholtz and Bradley ...


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