Keesha R Johnson v. State of Indiana

FILED Apr 03 2023, 8:31 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Christopher Taylor-Price Theodore E. Rokita Marion County Public Defender Agency Attorney General of Indiana Appellate Division Evan M. Comer Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keesha R. Johnson, April 3, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-427 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Elizabeth Christ, Appellee-Plaintiff. Judge The Honorable Ronnie Huerta, Magistrate Trial Court Cause No. 49D24-1902-F6-7259

Opinion on Rehearing by Judge Mathias Judges Robb and Vaidik concur.

Mathias, Judge. Court of Appeals of Indiana | Opinion on Rehearing 22A-CR-427 | April 3, 2023 Page 1 of 4 [1] In this case, we concluded that Keesha R. Johnson’s Sixth Amendment right to

confrontation had been violated but that the error was harmless. Johnson has filed a

petition for rehearing and argues that our court applied the incorrect harmless error

standard of review. She further claims that the violation of her confrontation rights

was not harmless error. [2] In our opinion, we cited to Koenig v. State, in which our supreme court “reaffirmed

the principle that an otherwise valid conviction should not be set aside if the

reviewing court may confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt.” 933 N.E.2d 1271, 1273 (Ind. 2010)

(citations omitted). And, when considering whether a constitutional error was

harmless, we may consider, among other things:

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted and, of course, the overall strength of the prosecution’s case.

Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). [3] Although we cited Koenig, we did not specifically set forth the standard of review

quoted above in our prior opinion. Johnson v. State, 201 N.E.3d 1198, 1201 n.3 (Ind.

Ct. App. 2023). Moreover, in our consideration of Johnson’s confrontation claim

under the Indiana Constitution, we also cited to Torres v. State, 673 N.E.2d 472, 474

n.1 (Ind. 1996), in which our Supreme Court explained that, as with federal

constitutional error, the proper standard of review for harmless error analyses of

Court of Appeals of Indiana | Opinion on Rehearing 22A-CR-427 | April 3, 2023 Page 2 of 4

violations of Indiana constitutional rights is whether the error was harmless beyond a

reasonable doubt. [4] Johnson correctly observes that our opinion did not explicitly state that the violations

of her Sixth Amendment and Article 1, Section 13 confrontation rights were

considered under the appropriate standard of review. We therefore grant her petition

for rehearing to clarify our opinion and expressly apply the harmless error analyses

described in Koenig and Torres. [5] In our opinion, we observed that “the witnesses testified in open court in Johnson’s

presence, the jury was able to observe their demeanor and body language, and

because the witnesses were subject to cross-examination[.]” Johnson, 201 N.E.3d at

1207. We also explained, “Johnson admitted that she fired her gun twice. At least

one shot was fired over Shanetra’s head. Both bullets penetrated the walls of the

neighboring home. Johnson’s own testimony is sufficient to sustain her conviction

for criminal recklessness.” Id. at 1207 (citing Ind. Code § 35-42-2-2 (“A person who

recklessly, knowingly, or intentionally performs an act that creates a substantial risk

of bodily injury to another person commits criminal recklessness.”). Johnson claimed

that firing the second shot was accidental and Shanetra’s testimony was used to rebut

that claim. But Johnson’s act of intentionally firing the first shot is sufficient to

sustain her criminal recklessness conviction and is relevant to a harmless error

analysis. [6] In addition, much of Johnson’s and Shanetra’s testimonies were consistent. Shanetra

stated that she was on Johnson’s property without Johnson’s permission, and from

Court of Appeals of Indiana | Opinion on Rehearing 22A-CR-427 | April 3, 2023 Page 3 of 4

their testimonies it was reasonable for the jury to conclude that Johnson was

surprised by Shanetra’s presence. Their testimonies diverged when each testified

when Johnson realized Shanetra was the individual on her property: was it before or

after Johnson fired her gun? However, there was no dispute that the bullets from

both shots penetrated the walls of the neighboring home occupied by Carl and

Angela Hawkins. [7] Finally, in its closing argument, the State relied heavily on Johnson’s testimony at

trial and her statements to the investigating police officer. In response to Johnson’s

claim that she was defending her property, the State argued Johnson used

unreasonable force when she shot her gun in response to an individual rummaging

through the van parked on Johnson’s property. [8] The masked witnesses were subject to cross-examination in Johnson’s presence and

the State had a strong case against Johnson. We therefore conclude that the federal

and state constitutional errors were harmless beyond a reasonable doubt.

Robb, J., and Vaidik, J., concur.

Court of Appeals of Indiana | Opinion on Rehearing 22A-CR-427 | April 3, 2023 Page 4 of 4