Johnson v. Norris

• Decision Date: 08 August 2008
• Docket Number: No. 07-3058.,07-3058.
• Parties: Stacey Eugene JOHNSON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

537 F.3d 840

Stacey Eugene JOHNSON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 07-3058.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2008.

Filed: August 8, 2008.

Rehearing and Rehearing En Banc Denied September 11, 2008.^*

Jeffrey M. Rosenzweig, argued, Litte Rock, AR, for appellant.

Lauren Elizabeth Heil, AAG, argued, Kent G. Holt, on the brief, Little Rock, AR, for appellee.

Before LOKEN, Chief Judge, BYE, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Stacey Eugene Johnson was convicted of the murder of Carol Heath and sentenced to death in 1994. The Supreme Court of Arkansas reversed the conviction, see Johnson v. Arkansas, 326 Ark. 430, 934 S.W.2d 179 (Ark.1996) ("Johnson I"), and the case was retried. Johnson was again convicted and sentenced to death, and a divided Supreme Court of Arkansas affirmed. Johnson v. Arkansas, 342 Ark. 186, 27 S.W.3d 405 (Ark.2000) ("Johnson II"). After the state circuit court denied Johnson's petitions for post-conviction relief the Supreme Court of Arkansas affirmed in part, but remanded the case for the limited purpose of conducting a second round of DNA testing of evidence from the murder scene. Johnson v. Arkansas, 356 Ark. 534, 157 S.W.3d 151 (Ark.2004) ("Johnson III"). The court subsequently acknowledged that a second round of DNA testing already had occurred, and thus affirmed the decision of the circuit court denying the petitions for post-conviction relief. Johnson v. Arkansas, 366 Ark. 390, 235 S.W.3d 872 (Ark.2006) ("Johnson IV"). Having exhausted his state remedies, Johnson petitioned the district court¹ for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief, Johnson v. Norris, No. 5:06CV00185 JLH, 2007 WL 2343883 (E.D.Ark.2007) ("Johnson V"), but granted Johnson a certificate of appealability on several issues. We affirm.

I.

We recite the pertinent facts as set forth by the Supreme Court of Arkansas in Johnson I and Johnson II, which are cited with approval in that court's two decisions upholding the denial of post-conviction relief.

On the morning of April 2, 1993, a friend discovered Carol Heath's body in the living room of Heath's apartment in DeQueen, Arkansas. When the police removed Heath's two children from the home, Ashley Heath, then six years old, told Heath's friend that a man had broken into the home during the night. Johnson II, 27 S.W.3d at 408. Ashley was interviewed by Arkansas state police investigator Hayes McWhirter a few hours later. Ashley told McWhirter that a black male with "a girl sounding name" had come to the house during the night. Ashley said that the man, who was wearing a green shirt and sweater, told Heath that he had just been released from jail, and said that the man was mad at Heath for dating another man, Branson Ramsey. Ashley said that after her mother and the man fought, she saw her mother on the floor bleeding, and that the man was next to her mother, holding a knife. Id. at 409. After this exchange, McWhirter handed Ashley a stack of seven photographs from which to identify the intruder, and she selected a photograph of Johnson. Johnson I, 934 S.W.2d at 181.

Johnson was arrested in Albuquerque, New Mexico, on April 14th, 1993, after falsely identifying himself to officers during a traffic stop. According to one officer, Johnson offered each officer $5000 to let him go, and told the officers that he had killed someone in Arkansas. Johnson was taken into custody and returned to Arkansas. See Johnson III, 157 S.W.3d at 164.

DNA from hair found in Heath's apartment was consistent with Johnson's, and initial testing showed that the DNA pattern in the hair appeared in one of every 250 African-Americans. More precise DNA testing later revealed that the DNA pattern occurs in only one of every 720 million African-Americans. Johnson IV, 235 S.W.3d at 874-75. DNA testing on a cigarette butt and a bloody green shirt found by the roadside yielded similar results. The DNA from the saliva on the cigarette butt was consistent with Johnson's and occurred with a frequency of 1 in every 28 million African-Americans. Johnson III, 157 S.W.3d at 162-63. The DNA from the blood on the shirt was consistent with Heath's, and occurred with a frequency of 1 in 380 million Caucasians, 1 in 6.4 billion African-Americans, and 1 in 390 million western Hispanics. Johnson V, 2007 WL 2343883 at *3.

At Johnson's first trial, conducted in Sevier County, Ashley was seven years old, and she could not be persuaded to testify. The trial judge deemed her not competent to testify, and allowed investigator McWhirter to read Ashley's prior statement to the jury. McWhirter testified that Ashley identified Johnson as the intruder after she viewed a stack of photographs. Johnson II, 27 S.W.3d at 410. The Supreme Court of Arkansas reversed and ordered a new trial after determining that the trial court erred in allowing McWhirter to testify about Ashley's identification of Johnson. The court concluded that the evidence was not admissible under the excited utterance exception to the hearsay rule. Johnson I, 934 S.W.2d at 182.

On remand, Johnson asked that the trial be moved to Little River County in light of the extensive publicity in Sevier County. The trial judge granted the motion for a change of venue, but moved the trial to Pike County rather than Little River County. Johnson objected to the judge's choice of venue on the ground that the percentage of African-Americans in Pike is much smaller than that in either Sevier or Little River. The judge overruled Johnson's objection, and the case was transferred to Pike County.

Ashley was ten years old at the time of the second trial, and she had been treated by a psychotherapist in the years after the murder of her mother. Prior to a hearing about Ashley's competency to testify in the second trial, Johnson requested discovery of notes taken during Ashley's psychotherapy sessions. Although Arkansas law recognizes a privilege protecting confidential communications between a psychotherapist and her patient, Ark. R. Evid. 503(b), Johnson argued that these records were necessary for him to present an adequate defense, for they would enable him to challenge the witness's competency at the competency hearing and before the jury, and to show the need for a defense expert. Ashley had waived the psychotherapist privilege for the first trial, but her attorney ad litem invoked the privilege as it related to counseling that occurred after the first trial. The trial judge agreed that communications occurring after the first trial were privileged, and denied Johnson's motion to discover records that would disclose those communications. Johnson II, 27 S.W.3d at 410.

Prior to the second trial, Johnson also moved to suppress the statements made to the arresting officers in Albuquerque. Johnson did not testify at the suppression hearing. Johnson's motion to suppress was ultimately denied. Johnson III, 157 S.W.3d at 164. At trial, Johnson sought to introduce testimony from Cordelia Vinyard, Branson Ramsey's ex-wife, in an effort to portray Ramsey as an alternative suspect. The trial court excluded the testimony. Id. at 166.

Johnson was convicted at the second trial and sentenced to death. In the penalty phase of the proceeding, the jury found that the State proved three statutory aggravating circumstances, see Ark. Code. 5-4-604, including that Johnson committed the murder in an "especially cruel manner." Id. § 5-4-604(8). The State also presented certain victim impact evidence, pursuant to Ark.Code § 5-4-602(4), which was admitted over Johnson's objection. The Supreme Court of Arkansas concluded on direct appeal that the trial court correctly applied state law when it refused to provide access to Ashley's psychotherapy records, did not abuse its discretion in excluding Vinyard's testimony and properly admitted victim impact evidence. In anticipation of a retrial after Johnson's first conviction, the state supreme court also had ruled that the "especially cruel" aggravating circumstance was not unconstitutionally vague or overbroad, and that the Arkansas victim impact statute was constitutional. In a post-conviction proceeding, the state courts concluded that Johnson did not receive ineffective assistance of counsel, and that the consideration of victim impact evidence did not violate the Constitution. These federal proceedings followed.

II.

A federal court shall not grant a writ of habeas corpus on a claim that was adjudicated on the merits by a state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court." 28 U.S.C. § 2254(d). With this standard of review in mind, we turn to Johnson's claims.

A.

Johnson first argues that his rights under the Sixth and Fourteenth Amendments were violated when the district court denied Johnson access to Ashley's psychotherapist records. Johnson claims that this denial limited his "right to present a defense" by infringing on "his rights of compulsory process, confrontation, and due process." Specifically, Johnson claims that the psychotherapy records would have allowed him to impeach Ashley during the competency hearing and at trial. He contends that by denying him access to these records, the trial court prevented him from presenting material information to the jury and impaired his ability to confront the witness. Johnson argues that his constitutional rights override the psychotherapist privilege embodied in Arkansas Rule of Evidence 503.

The Arkansas courts rejected this argument, reasoning that the denial of access did not violate Johnson's Sixth and Fourteenth Amendment rights, because according to Jaffee v. Redmond, 518...