Defendant was convicted of felony-murder during commission of burglary, and arson, and sentenced to death, following jury trial in the Superior Court, Madison County, Thomas Newman, J., and defendant appealed. The Supreme Court, DeBruler, J., held that: (1) defendant's statements to police were not involuntary; (2) evidence supported conviction; (3) trial court should have considered intoxication at time of offense as mitigating circumstance; (4) jury instruction in penalty phase was not improper; (5) testimony regarding other arsons by defendant did not warrant mistrial; (6) defendant was not entitled to change of judge; (7) failure to produce police and fire investigative reports was not reversible error; (8) admission of testimony that deceased victim looked scared was not reversible error; (9) evidence of jail disciplinary reports at penalty phase was not hearsay; (10) evidence of defendant's past arsons was admissible at penalty phase; (11) defendant was not denied effective assistance of counsel at penalty phase; and (12) death sentence was appropriate. Affirmed.

DeBRULER, Judge.

Appellant Gregory Scott Johnson was charged in Count I with felony murder pursuant to I.C. 35-42-1-1(2) in having killed Ruby Hutslar by striking her with a blunt instrument and kicking and hitting her during the commission of a burglary. In Count II, he was charged pursuant to I.C. 35- 43-1-1(a) with having knowingly damaged the dwelling of the alleged victim by means of fire, a class B felony. In a separate Count III, the prosecution sought the death sentence by alleging pursuant to I.C. 35-50-2-9(b)(1) , the aggravating circumstance that the killing had been done intentionally while committing the crimes of burglary and arson.

A trial by jury resulted in verdicts of guilty as charged in both Count I and Count II. A judgment of conviction was then entered. Three days later the jury reconvened for the hearing regarding sentencing recommendation. Following the presentation of evidence, the jury retired and then returned a verdict recommending that the death sentence be imposed.

A month later the court held the sentencing hearing, during which the evidence and arguments were heard and concluded. The trial court then made an express and written finding that the State proved the aggravating circumstance to the court beyond a reasonable doubt.

The court also considered all categories of mitigating factors, noting that appellant had a history of prior criminal conduct and had consumed some drugs and alcohol, but found that no mitigating circumstances existed and imposed the death penalty for the murder. The court also imposed a ten-year sentence for arson.

Johnson raises numerous issues on appeal which we have consolidated and restated as follows:

I. Whether the trial court erred by admitting evidence of statements made by appellant when arrested and when interrogated later at the stationhouse;
II. Whether the evidence was sufficient to prove the criminal intent required on all counts;
III. Whether it was error to fail to find intoxication at the time of the offense to be a mitigating circumstance;
IV. Whether a jury instruction given at the penalty phase was erroneous because it omitted reference to the possible penalties for arson;
V. Whether the trial court erred by refusing to grant a mistrial when evidence of other arsons was injected by the prosecution;
VI. Whether the trial court erred when denying a motion for change of judge;
VII. Whether the trial court erred in refusing to grant pre-trial and in-trial motions to require the prosecution to produce police and fire investigative reports;
VIII. Whether the trial court was in error when admitting evidence describing the deceased victim as having a scared look;
IX. Whether it was error at the penalty phase to admit evidence of jail disciplinary reports;
X. Whether it was error to admit evidence at the penalty phase hearing of appellant's confession to four arsons;
XI. Whether appellant was afforded the effective assistance of counsel at the penalty phase hearing before the jury;
XII. Whether it was error to deny a defense motion to dismiss Count III, seeking the death penalty; and
XIII. Whether the death sentence is appropriate in this case.

In order to support its case, the prosecution submitted the following evidence. A boy delivering morning papers at about 6 a.m. on June 23, 1985, in Anderson, Indiana passed the house of the alleged victim, Ruby Hutslar, age 82. He saw smoke coming out from under the eaves of her roof. Alarmed, he roused a neighbor and reported the fact.

He and two passersby then attempted to enter the house, but found the main front door locked. They broke open a front window of the house, but were unable to enter. They went to the back of the house and found the back door open, but were unable to enter because of the heat and smoke. A basement window was observed to have been unscrewed, broken and removed.

At 6:30, firemen arrived and observed one pane of glass in the front door broken. One was unable to reach in to attempt to unlock the door because of the intense heat inside. Fully equipped, a fireman broke open the front door, entered the living room crawling, and found Ruby Hutslar on the floor, six feet from the front door. She was carried out of the house. Efforts to resuscitate her at the scene and later at the hospital were not successful. The cause of her death was determined upon autopsy to be blunt force injuries to the head, neck and chest. She had not died of smoke inhalation or burning.

The fire had started in the center of the house and had climbed a stairway and concentrated in the attic. The fire was put out in about a half hour. A closet and the stairway on the first floor burned but the rest of the first floor and its contents suffered mostly smoke and heat damage. It was observed that the drawers in the furniture had been pulled out and some dumped out.

Some small boxes and containers had been opened and their contents dumped out. The contents of a clothes closet were scattered about and the mattress had been removed from a bed. The house was in disarray, and this had not all been caused by the work of the firemen. An investigation into the cause of the fire resulted in the opinion that the fire had been set.

At approximately 6:40 a.m. a police radio broadcast instructed officers to be on the lookout for appellant Johnson because he was suspected of setting several fires in the area of the Hutslar residence. Within minutes appellant was seen by Detective Miller to be standing on the street along with others, watching the fighting of the Hutslar fire. Appellant was known to this officer, who approached him, spoke to him and observed that his eyes were bloodshot, his breath smelled of alcohol, and he was unsteady on his feet, nervous, and anxious.

He appeared to be dirty and in disarray. Another onlooker testified that appellant had approached and stood very close behind him and was sweaty. When the onlooker moved sideways, appellant did also, so as to stand close behind him again. The officer placed appellant under arrest for public intoxication.

Appellant made statements at the scene. Officer Miller testified that after being arrested, appellant was searched, placed in a squad car and there read his Miranda rights for the first time. Appellant became agitated and cursed and said he understood his rights.

The officer testified that in his opinion appellant was then intoxicated from a slight to moderate extent. Appellant and his girlfriend testified at a hearing on suppression of statements that appellant was an alcoholic, drinking heavily each day, and that during the twelve hour period preceding his arrest he ingested huge quantities of alcohol and a variety of drugs.

A pharmacologist testifying for appellant testified that it would not be possible to accurately predict the effect of the ingestion of the substances as described by appellant, but was able to say that a person who had done so would suffer loss of muscle coordination and that appellant would have had a blood alcohol level of .15 at the time of his arrest and .10 at 8:20 when he signed a waiver of rights form.

Within ten minutes of the arrest, Officer Adams arrived on the scene. He testified that appellant was then in the squad car, in cuffs, and was kicking hard on the inside. Adams went over and asked what was wrong, and saw that appellant appeared "somewhat" impaired by alcohol or drugs. He said "something about him not having a chance and about his upbringing," and "Wisehart did not kill the bitch, I did." Adams then asked, "Did you Scott?", whereupon appellant replied, "No, but if that's the way you fuckers want to play." The statement referred to unrelated prior events in which appellant had provided testimony for the prosecution at the trial of his friend Wisehart, for the murder of another woman.

Appellant was transported to the stationhouse where at 8:20 a.m. he was given his Miranda rights for the second time, this time by Captain Hanlon, his interrogator. He then signed a written acknowledgement and waiver of rights. He denied involvement in the Hutslar fire, but gave four written statements, confessing to having set or having attempted to set four fires in the area in recent times.

At the time of the written rights waiver appellant smelled strongly of alcohol, his eyes were a little bloodshot, and he manifested anger. Periodically appellant was left alone during the interrogation and would sleep for a while. During the morning he was told that Mrs. Hutslar had died. At noon he vomited. He received food, drinks, and cigarettes. He did not appear exhausted, and continued sobering up as the day went on.

At 3:30 p.m. Hanlon commenced an interrogation regarding the Hutslar fire by asking if the Hutslar fire was not an attempt on appellant's part to join his friend Mark, who was then in prison, awaiting execution, as the result of a conviction based upon appellant's testimony. Appellant responded by placing his head in his hands and becoming emotional.

He then admitted breaking into the Hutslar house. A full incriminating statement followed that was completed at 5:45 p.m. In it appellant stated that he broke the glass in the pane on the front door, entered, immediately encountered Ms. Hutslar who collapsed on the floor breathing heavily. He then searched out and took a watch and silver dollars, and in checking out some noises outside, stepped on her cheek and neck twice. He then found some matches, started the fire, and ran out the back door. He threw away the watch and coins and then joined those watching the firemen at the house, at which point he was arrested.

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Appellant presented ten witnesses on his behalf at the penalty phase of the trial before the jury. One such witness was Doris Maxey, Madison County Jailer. On direct examination she testified that appellant had not been a problem at the jail while awaiting trial, and had been somewhat helpful.

On cross-examination by the prosecutor, over hearsay and confrontation objections, she was permitted to testify that she was aware that appellant had been "written up" for three violations of the jail rules, namely, attempting to escape, possession of an item that could be used as a weapon, and defacing jail property. On redirect examination she testified that she had no personal knowledge of the facts alleged in the three reports. The reports were not introduced into evidence.

The witness had first hand knowledge that the reports had been made and was subject to full cross-examination with respect to that fact. She had no knowledge of the truth of the facts asserted therein, and could not be cross-examined with respect to them. The evidentiary purpose of presenting the reports in this manner on cross-examination was to test the knowledge or basis of the witness's opinion that appellant had behaved in confinement.

In these particular circumstances, which include the witness's admission that she had no knowledge of the facts alleged in the reports, they were not offered and would not have been received as evidence that he had in fact misbehaved while in confinement. For this purpose, the questioned testimony of the witness about the reports was not hearsay. Harvey v. State (1971), 256 Ind. 473, 269 N.E.2d 759; . It was not error to permit this cross-examination.

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We finally consider whether the death penalty is appropriately applied in this instance. Review by this Court of every death sentence is automatic and mandatory. Review is more intensive and sentence review rules are applied only as guidelines. Cooper, 540 N.E.2d 1216. Adherence to the procedures set forth in the death sentence statute is basic and essential. The trial court correctly followed the procedures set forth in the death sentence statute.

The trial court considered the pre-sentence report and the jury recommendation. The court then found appellant guilty of the crimes alleged in Counts I and II, namely murder and arson. The court also expressly found, as trier of fact, and beyond a reasonable doubt, that appellant did intentionally kill the victim while committing arson and burglary, the sole aggravating circumstance alleged in Count III.

The court then assessed the evidence as to whether it supported the statute's mitigating circumstances, and finding that it supported none, concluded that the weight of the lone aggravator predominated and that the sentence of death was proper.

Here, the jury recommended the death sentence. Appellant was twenty years old at the time of this crime. He is a lifelong resident of Anderson, Indiana. As a juvenile under court protection he received eight months of counseling at a Center for Mental Health. He spent twelve months in Crossroads Children's Home in Fort Wayne. He graduated from high school while in the Indiana Boy's School.

He served nine months in the National Guard and two months in the Army before being discharged because he had not revealed the full nature of his juvenile record. He became addicted to alcohol at age twelve and had been arrested six times as an adult for illegal consumption, and an attempted burglary charge pended at the time of this offense.

During the three month period preceding this killing he set a house and three garages on fire. During this period he worked at a car wash and restaurant but was out of work when the killing occurred. While at Crossroads he met Mark Wisehart, his best friend. He reported voluntarily to the police that Wisehart had killed one Marjorie Johnson, and appellant testified at Wisehart's trial for this killing. Wisehart was convicted and received the death penalty. Appellant was remorseful about having done this.

Ten witnesses testified before the jury on behalf of the appellant at the penalty phase trial. Appellant also testified. Family and friends verified his alcohol abuse and incorrigibility. Former officials verified that he got along in confinement. Appellant's crime, character and background resembles that considered by this Court in Woods v. State (1989), Ind., 547 N.E.2d 772.

Woods was nineteen, appellant twenty. Both had juvenile records and both had been moved to institutions during childhood. Woods suffered a borderline mental disorder, while appellant abused drugs and alcohol. Woods armed himself with a knife, and in conjunction with others he knocked on the door of an elderly neighbor to rob him, then stabbed the neighbor, killing him, and stealing his property.

Appellant did not arm himself with a weapon during the planning stage, but did so on the porch, entered the house, and beat and stomped the elderly neighbor to death, stealing her property, and burning the house. The weight of the aggravator in the two cases is approximately the same.

As determined above in Section III of this opinion, the trial judge committed error in failing the give some mitigating value to the effects of appellant's long history of alcohol addiction and its throes on the night of this crime. We have done so, and find it to have less value than the mitigators in Woods. Present in Woods, and absent here, was the mitigator for turbulent childhood marked by mistreatment and the mitigator for lack of an adult criminal history.

We conclude however that appellant can fare no better than did Woods. When the mitigating circumstance here, namely substantial impairment of the faculty for appreciating criminality, is properly and accurately determined and evaluated, it is outweighed by the lone aggravating circumstance here, namely the intentional beating and stomping of Ruby Hutslar in the course of committing a burglary at her house and burning that house. The sentence is not aribitrary or capricious, and is not manifestly unreasonable. It is properly meted out in this case. The convictions for murder and arson are affirmed as is the imposition of death.

SHEPARD, C.J., DICKSON and KRAHULIK, JJ., concur. GIVAN, J., not participating.

Johnson v. State, 693 N.E.2d 941 (Ind. 1998) (PCR).