Johnson v. State

• Decision Date: 15 June 2004
• Docket Number: No. D-2002-834.,D-2002-834.
• Citation: 93 P.3d 41,2004 OK CR 23
• Parties: Calvin Lee JOHNSON, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

93 P.3d 41

2004 OK CR 23

Calvin Lee JOHNSON, Appellant v. STATE of Oklahoma, Appellee.

No. D-2002-834.

Court of Criminal Appeals of Oklahoma.

June 15, 2004.

James Bowen, Wayne Woodyard, Sapulpa, OK, Attorneys for Appellant at trial.

Don I. Nelson, Carol Iski, Sapulpa, OK, Attorneys for the State at trial.

Wayne Woodyard, Sapulpa, OK, Attorney for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

OPINION

STRUBHAR, Judge:

¶ 1 Appellant, Calvin Lee Johnson, was convicted of First Degree Murder in the District Court of Creek County, Case No. CF-99-372, after a jury trial held before the Honorable Donald D. Thompson. The State filed a Bill of Particulars alleging three aggravating circumstances: 1) that Appellant had previously been convicted of felonies involving the use or threat of violence;¹ 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution;² and 3) the existence of a probability that Appellant would commit acts of violence that would constitute a continuing threat to society.³ The jury found the existence of two of the alleged aggravating circumstances, that Appellant had previously been convicted of felonies involving the use or threat of violence and the existence of a probability that Appellant would constitute a continuing threat to society. The jury assessed punishment at death and the trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has perfected his appeal.⁴

FACTS

¶ 2 On October 31, 1999, at approximately 3:10 a.m., Sapulpa Police Officer Jamie Noe responded to a 911 call reporting a homicide. When Noe arrived at the residence from which the call originated, he saw several people standing in the street. One person, Marilyn Howell, seemed particularly upset and agitated. Noe approached Howell and learned that she had discovered the body of the man who had been killed. She directed Noe to the house at 911 West Johnson. Noe and Officer Mark Swafford entered the residence and saw a man, subsequently identified as Russell Milton, on the kitchen floor. He had a large wound to his head and was obviously dead. Noe noted that the victim's pants pockets were turned inside out and his vehicle outside the house had been vandalized. It was later established that Milton had been shot with a shotgun and .12 gauge wadding was found at the scene of the homicide.

¶ 3 Through their investigation, the police learned that about three weeks before his death Milton received a substantial disability check for back pay. It was known throughout the community on "the Hill," where he lived, that Milton had come into money as he told some people about it and used some of the money to buy a new pickup. Milton was known to carry his money on him, neatly folded in his pants pocket.

¶ 4 When questioned, Marilyn told the police that Appellant might have killed Milton. Appellant was the boyfriend of Marilyn's sister, Sharon Roberson. Marilyn explained that about two weeks earlier when Appellant and Sharon were at Marilyn's house the three of them planned to go ask to borrow money from Milton. Appellant said that if he didn't get money from Milton he was going to "knock him in the head." Marilyn also said that Appellant had two shotguns which he kept in a shed behind her house. One of them was a sawed-off shotgun Appellant called `Shorty.' Appellant moved the guns out of the shed a few weeks before Milton was killed.⁵

¶ 5 Sapulpa Police Detective Mike Reed first interviewed Appellant around noon on October 31. At this time Appellant denied knowing anything about the homicide. He said the prior evening, he had been over on the Hill working on a vehicle for a relative and then he went to Buford Colony, where his mother lived. Appellant told Reed that later he came back into town, picked up Glenn Pickens and they went to the club and picked up Sharon. He then took Pickens home and he and Sharon went to Sandy Abraham's house. When they left Abraham's house they went back to Buford Colony to his mother's house where they spent the night. They arrived at his mother's at about 12:30 a.m. Appellant gave this same information when he was interviewed a second time on November 1.

¶ 6 When Appellant was interviewed again on November 19, he talked about `Shorty' and told police that it was a.12 gauge sawed-off shotgun. When asked where the gun was, Appellant gave several answers. He denied knowing where `Shorty' was, he claimed that `Shorty' had been buried and he said he sold the gun although he later denied this. Appellant also denied knowing that Milton had come into money or killing him.

¶ 7 During Appellant's final interview with the police on November 21, his account of his knowledge of and activities surrounding Milton's death changed considerably from the other interviews. During this interview, Appellant acknowledged that he knew Milton had come into some money. He claimed that Sharon planned to either play him out of the money or rob him. Appellant said that he refused to participate in the robbery but offered to do the driving for a cut of the money. He told police that Sharon and a masked man he later learned was Marilyn Howell's son, Munkin, walked to Milton's house and went in the front door.⁶ Appellant said he watched this from a gray Cutlass he had stolen from the Bartlett hospital.⁷ Appellant heard a noise from inside the house. He said that he didn't know if it was a shot or somebody just hitting the floor. He first said that Munkin came out the back door but then said that they both came out the front door. Appellant said that Sharon put the padlock on the outside of the door and the two walked away from the house.⁸ Appellant picked them up, dropped Munkin off at his mother's house and dropped Sharon off at the Club. At first Appellant said that Sharon got the money but he later said that she had been unable to find the shoebox in which Milton kept the money.

¶ 8 At trial Sharon testified that the week before Russell was killed, she was staying with Appellant. After a fight, she left and spent a week hiding from him and staying with various other people. On Saturday evening, October 30, a friend drove Sharon to Russell's house so that she could ask for money. His door was locked with a padlock on the outside but his new pickup was there. Although she thought it unusual for Milton to be out after dark, she assumed he was gone because the house was locked and no lights were on. They left and went to a club on the hill where she got into a car with some other friends and they drove to a liquor store. It was between 8:00 and 8:30 p.m. at this time. They drove back to the club and Sharon got out of the car and walked to Sandy Abraham's house where she stayed for an hour and a half to two hours before she and Sandy walked back to the club. They arrived at about 11:00 to 11:30 p.m. While she was at the club, Appellant's cousin, Glenn Pickens, came in and told her that Appellant wanted to talk to her. Appellant came in right after that and told her to come with him. She got into the car with him — a tan Lincoln which belonged to his mother — and they drove back to Sandy Abraham's house.⁹ Inside the house, Appellant sold some drugs to Sandy's cousin, Donald Lee Thomas, Sr. Sharon testified that Appellant was happy and excited — a little more talkative than usual. They left Sandy's house at about 1:00 a.m. and went to Appellant's mother's house where they smoked crack until 4:00 a.m. The went to bed around 4:30 a.m. and when she woke at about 8:00 a.m., Appellant was gone. Appellant came back shortly thereafter and told her that Russell Milton had been shot and killed. Sharon testified that a couple of days later, Appellant told her that he killed Russell.

PROPOSITIONS

¶ 9 Appellant complains in his first proposition that the evidence presented at trial was insufficient to support his conviction for First Degree Murder. He correctly asserts that the State presented no direct evidence outside of his statements connecting him to the murder of Russell Milton. He alleges that the evidence most heavily relied upon by the State to secure his conviction was the statement he allegedly made to Sharon Roberson that he killed Milton and his statement to the police that Sharon and Munkin killed Milton during a robbery in which he participated by driving the get-away car. He asserts that neither statement is sufficient to support his conviction because his statement to Sharon was uncorroborated and his statement to the police was both uncorroborated and rendered untrustworthy by its inconsistency.

¶ 10 The test to be applied in determining the sufficiency of the evidence is whether, when viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202. Further, the jury is the exclusive judge of the weight and credibility of the evidence and despite conflicts in the evidence, this Court will not disturb the jury's verdict if there is competent evidence to support it. Smith v. State, 1996 OK CR 50, ¶ 23, 932 P.2d 521, 530,cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138 L.Ed.2d 1023 (1997).

¶ 11 Appellant correctly maintains that the State is required to prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the accused] is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). He further contends that when a statement of an accused is used as sole proof of an element of an offense, corroboration is required. Appellant cites to Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954), for its holding that a conviction may not be based solely upon an accused's extrajudicial...