ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Michael S. Greene				Jeffrey A. Modisett

Elkhart, Indiana				Attorney General of Indiana

							Randi E. Froug

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

RICHARD J. JOHNSON,				)

							)

	Appellant (Defendant Below),	)

							)

		v.					) Cause No. 20S00-9810-CR-611

							)

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff Below).	)

APPEAL FROM THE ELKHART CIRCUIT COURT

The Honorable Gene R. Duffin

Cause No. 20C01-9712-CF-00066

November 12, 1999

SHEPARD, Chief Justice.

	Appellant Richard Johnson was convicted of murder, Ind. Code

§ 35-42-1-1, and sentenced to sixty-five years in prison.  In this

appeal he raises one issue:  "Was defense counsel ineffective in

failing to ask the trial court for an immediate limiting instruction regarding an alleged accomplice and witness who was

called by the State but who refused to testify?"  We answer in the

negative.

Statement of Facts

	Johnson’s trial for the murder of Steven Strycker lasted four

days.  Johnson's accomplice, Brandon Ennis, had earlier pled guilty

to murder.  The facts revealed that Johnson and Brandon Ennis beat

and stabbed Strycker, set him on fire, and left him to die. 

Various prosecution witnesses identified Ennis as Johnson's

accomplice, and the jury heard about certain acts of Johnson and

Ennis related to the murder of Strycker.

	The prosecution eventually called Ennis.  After Ennis took the

oath, the State asked various questions, and Ennis told the jury he

was currently a resident of Pendleton Reformatory in Indiana,

identified Johnson in court, and said that they were friends.  

Ennis then identified a written warning and waiver of his Miranda rights and said he had signed the waiver when he was picked up by

the police.  When the prosecutor asked Ennis who had requested the

meeting that led to his signing the waiver, Ennis responded:  "I

have the absolute right to remain silent, and I'm going to stand on

it as from this point on." (R. at 335-36.)  The prosecutor then

asked Ennis to identify his written statement, but Ennis did not

answer.  The question was repeated, and again Ennis did not answer.  

	At this point, the trial court decided to excuse the jury.  

The State then resumed questioning Ennis, but he maintained his

silence.  The court held Ennis in contempt three times and finally

told the State to "pull Mr. Ennis off the stand at this time.  I'll

[o]rder him held here and we'll talk to him when we finish the

other testimony later today."  (R. at 341.) 

	Before Ennis stepped down, the State offered to pass Ennis to

the defense for cross-examination.  The court prepared to bring the

jury back in, but defense counsel asked for a bench conference,

after which the court asked Ennis if he understood the consequences

of his refusal to answer defense counsel's questions.  Ennis nodded

yes.  The court then dismissed the witness, saying "We'll talk to

you later in the day."  (R. at 343.)  Defense counsel asked the

court whether the defense would not “go directly to cross-

examination at this point?"  (R. at 343.)  The judge said he did

not want Ennis's refusal to answer to occur in front of the jury,

and asked the State to call its next witness.  

	The jury returned, and the State called its next witness. 

Ennis was never recalled to the stand either by the defense or the

prosecution.  The record is bare of any further discussions

concerning Ennis's testimony. 

	Defense counsel elicited from the State's last witness the

fact that Brandon Ennis had already been convicted of murder. 

Johnson testified on his own behalf during the trial.  When Johnson

took the stand, he testified that he had been told that Ennis had

pled guilty to murdering Strycker.

	During closing statement, the defense twice mentioned Ennis’s

refusal to testify, and reminded the jury that it could not

consider that refusal in its deliberations.  During the

prosecution’s rebuttal, the State again referred to Ennis's refusal

and cautioned the jury it must disregard that refusal.  The trial

court gave a final instruction along the same lines.  

Ineffective Assistance of Counsel

	Johnson contends he was denied effective assistance of counsel

because his counsel failed to request an immediate limiting

instruction following Ennis's refusal to testify.  Relying on Aubry v. State, 261 Ind. 692, 310 N.E.2d 556 (1974), and Tucker v. State, 534 N.E.2d 1110 (Ind. 1989), Johnson seeks to make this failure a

per se finding of ineffective assistance of counsel.  Johnson

misreads our holdings in Aubrey and Tucker.  Those cases stand for the proposition that it is reversible error for the court to refuse

to give such limiting instruction when requested to do so by the defense counsel.

	To prevail on an ineffective assistance of counsel claim,

Johnson must show both deficient performance and resulting

prejudice.  Bouye v. State, 699 N.E.2d 620, 623 (Ind. 1998) (citing Strickland v. Washington, 466 U.S. 668 (1984)).  Overcoming the presumption that attorneys competently discharge their duties

requires strong and convincing proof.  Beck v. State, 261 Ind. 616, 617, 308 N.E.2d 697, 697 (1974).  Counsel's performance will not be

judged deficient unless, in light of all the circumstances, the

identified acts or wrongs of counsel were outside the range of

professionally competent assistance.  Brown v. State, 698 N.E.2d 1132, 1139 (Ind. 1998), cert. denied, 119 S. Ct. 1367 (1999). 

	We have previously addressed whether failure to request a

limiting instruction amounts to ineffective assistance of counsel. 

Roberts v. State, 492 N.E.2d 310 (Ind. 1986).  In Roberts, the alleged accomplice was called to testify by the State, but "took

the Fifth" and remained silent.  Id. at 312.  Defense counsel did not ask for a limiting instruction, cross-examined the silent

alleged accomplice, and in framing his questions sought to bolster

the defense theory that the accomplice was the real culprit.  Id.  We held that defense counsel's actions were strategic choices, and the failure to request a limiting instruction did not amount to

ineffective assistance.  Id.

	Johnson attempts to distinguish Roberts on grounds that his counsel was not given the opportunity to cross-examine the alleged accomplice.  The holding in Roberts was not meant to imply, however, that cross-examination is the only acceptable strategic reason for not requesting a limiting instruction.  

	From the record, it appears that Johnson's counsel made

strategic use of Ennis's refusal to testify.  The defense's primary

thrust appeared to be that it was Ennis and not Johnson who stabbed

and burned Strycker to death.  (R. at 542-44.)  Defense counsel

elicited testimony that Ennis had already pled guilty to the

murder.  (R. at 512.)  Counsel also used the incident in his closing argument by

juxtaposing Ennis's failure to testify with defendant's willingness

to take the stand.  (R. at 667-70.)  These actions could represent

a reasonable trial strategy to use Ennis's refusal to testify to bolster

the defense theory that Ennis was the murderer, not Johnson.  Using

the refusal in this way, counsel also reminded the jury that it

could not assume that the testimony would have favored either the

State or the defendant.  (R. at 667.)  Finally, the court was

prepared to bring the jury in and allow defense to cross-examine

Ennis, but defense counsel requested to approach and Ennis was

subsequently removed from the stand.  (R. at 341.)  

	To leap from Aubrey, where we found error in the court's refusal to honor a defense request for admonition, to the

proposition that a lawyer is ineffective for not requesting an admonition is to stand Aubrey on its head.  One point of the Aubrey analysis is to ensure that courts do not inject themselves into those parts of the adversarial system that belong to the parties. 

 Whether to ask for an admonition is a decision for the defense to

make.  Judges should not intrude either by refusing or forcing the

admonition.1	  

	We conclude that defense counsel's action in not requesting a

limiting instruction could be construed as a reasonable strategic

choice and therefore was within the range of ordinary professional

performance.

Conclusion

	Accordingly, wWe thus1 affirm the judgment of the trial court. 

Dickson, Sullivan, and Boehm, JJ., concur.