Tyron Johnson v. State of Indiana

During the morning of June 12, 2015, Johnson was walking toward his

mother’s Mishawaka home with his girlfriend, Precious Jackson (“Jackson”).

Jackson was carrying her infant son (who had been fathered by Johnson) in a

baby carrier; her three pre-school children were following behind her. The

couple began to engage in a heated argument about their relationship, drawing

the attention of neighbors.



1 Ind. Code § 35-42-1-1.





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[4] Johnson drew a handgun from his waistband and fired six shots. Three of the

shots struck Jackson and she died within minutes. Johnson ran from the scene,

tossing away the gun and shedding his clothing as he fled.

[5] Johnson was located and arrested a few days later. On June 15, 2015, he was

charged with Murder. His jury trial commenced on June 27, 2016. At trial,

Johnson did not deny that he shot and killed Jackson, but argued that he was

guilty of Voluntary Manslaughter rather than Murder because he shot her under

sudden heat. The trial court provided the jury with an instruction on Voluntary

Manslaughter but the jury found Johnson guilty of Murder, as charged. On

July 25, 2016, Johnson was sentenced to sixty years’ imprisonment, with five

years suspended. He now appeals.

Discussion and Decision

Sufficiency of the Evidence

[6] Johnson concedes that he killed Jackson. However, he asks that we reverse his

Murder conviction because the State failed to present sufficient evidence to

rebut his claim that he acted in sudden heat.

[7] When a human being has been killed because of the knowing or intentional

conduct of another, the starting point that our legislature has provided is the

offense of Murder. See I.C. § 35-42-1-1 (“A person who knowingly or

intentionally kills another human being … commits murder, a felony.”) When

sudden heat exists, that offense is mitigated. See I.C. § 35-42-1-3(b) (“The





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existence of sudden heat is a mitigating factor that reduces what otherwise

would be murder … to voluntary manslaughter.”)

[8] Although Voluntary Manslaughter is a lesser-included offense of Murder, it is

an atypical example of a lesser-included offense. Watts v. State, 885 N.E.2d

1228, 1232 (Ind. 2008). Sudden heat is not an element of Voluntary

Manslaughter, but, to obtain a Murder conviction, the State must disprove the

existence of sudden heat, beyond a reasonable doubt, when the defendant or the

State has injected that issue. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).

[9] “Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to

obscure the reason of an ordinary person, preventing deliberation and

premeditation, excluding malice, and rendering a person incapable of cool

reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). More than

“mere words” is required to show sudden heat, and the provocation must be

“sufficient to obscure the reason of an ordinary man,” an objective as opposed

to subjective standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997).

The existence of sudden heat is a classic question of fact to be determined by

the jury. Jackson, 709 N.E.2d at 329.

[10] Johnson testified that he and Jackson were arguing about suspicions of cheating

and that they engaged in mutual yelling and name-calling. He claimed that

they exchanged open handed blows before Jackson hit him with her shoe.

Johnson described the actual shooting in terms suggesting either a tragic

accident or an anger-fueled “blackout.” (Tr. at 277.) According to Johnson’s





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testimony, he took out his gun because he thought Jackson would then “calm

down,” but, unbeknownst to Johnson, the safety mechanism was off and

Jackson then “rushed him.” (Tr. at 256.) He also testified that he was “so

angry” that he was “not thinking.” (Tr. at 258.) Finally, he asserted that

Jackson “ran up” on him after the first shot and he “blacked out” after the first

couple of shots. (Tr. at 259.)

[11] To the extent that the testimony of accident and anger may be said to have

interjected the issue of sudden heat, the State bore a burden to disprove it. The

State presented testimony from neighbors who heard a verbal argument

immediately before Johnson drew his gun and shot Jackson. None of these

witnesses described a blow with a shoe or provocation beyond mere words.

The State also called as a witness Justin Jurgenson (“Jurgenson”), who had

been incarcerated with Johnson. Jurgenson testified that Johnson had

described the events as a “black out,” but he then “snapped out of it,” and shot

Jackson again and then starting running. (Tr. at 141.) Jurgenson indicated that

the “gist of” Johnson’s confession was that Jackson tried to get up, Johnson

walked over, and shot her again. (Tr. at 144.)

[12] The physical evidence indicated that Johnson emptied his gun; three of the six

shots fired struck Jackson. The gun was examined and found not to be

malfunctioning. The State presented sufficient evidence to permit the jury to

conclude, beyond a reasonable doubt, that Johnson knowingly or intentionally

killed Jackson and did not act in response to provocation sufficient to constitute

sudden heat.





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Photographic Evidence

[13] During the forensic pathologist’s testimony, the State sought to introduce into

evidence State’s Exhibits 181 and 182. These were autopsy photographs

showing trajectory rods used by the pathologist to mark the entrance and exit of

bullets into Jackson’s body. Johnson objected that the photographs were “very

graphic” and their prejudicial impact outweighed their probative value. (Tr. at

210.) On appeal, Johnson argues that the photographs had little, if any,

evidentiary value because he had conceded that he fired the shots that caused

Jackson’s death.

[14] Because the admission and exclusion of evidence falls within the sound

discretion of the trial court, the admission of photographic evidence is reviewed

only for an abuse of discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind.

2002). Relevant evidence, including photographs, may be excluded only if its

probative value is substantially outweighed by the danger of unfair prejudice.

Evidence Rule 403. Even gory or revolting photographs may be admitted if

they are relevant to some material issue or show scenes that a witness could

describe orally. Jackson v. State, 597 N.E.2d 950, 963 (Ind. 1992). Photographs

that depict injuries to a victim are generally relevant and admissible. Custis v.

State, 793 N.E.2d 1220, 1224 (Ind. Ct. App. 2003), trans. denied. However,

when autopsy photographs show the body in an altered state, a concern may

arise that the photographs render the defendant responsible, in the minds of the

jurors, for the cuts, incisions, and indignity of an autopsy. Id. at 1225.





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[15] Here, the pathologist testified that she had examined Jackson’s body and

discovered multiple gunshot wounds; she explained that she had used trajectory

rods to mark the bullet paths. This testimony was sufficient to alleviate any

concern that the jury would consider Johnson responsible for this bodily

alteration. The State offered Exhibits 181 and 182 as visual aids to show the

jury the wounds that the pathologist was describing. The relevance of the

photographs is not lessened because Johnson conceded that he inflicted the

wounds. See Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004) (recognizing the

general principle that the State is entitled to prove its case by evidence of its

own choice and a defendant may not stipulate his way out of the full

evidentiary force of the State’s case). The challenged photographs were

relevant, and their probative value not substantially outweighed by the danger

of unfair prejudice.