Johnson v. State

• Decision Date: 28 October 1996
• Docket Number: No. CR,CR
• Citation: 934 S.W.2d 179,326 Ark. 430
• Parties: Stacey JOHNSON, Appellant, v. STATE of Arkansas, Appellee, 95-427.
• Court: Arkansas Supreme Court

Page 179

934 S.W.2d 179

326 Ark. 430

Stacey JOHNSON, Appellant, v. STATE of Arkansas, Appellee,

No. CR 95-427.

Supreme Court of Arkansas.

Oct. 28, 1996.

Richard Hutto, Mary Ellen Vandergrift, Deborah R. Sallings, Little Rock, for Appellant.

Kent Holt, Asst. Attorney General, Little Rock, for Appellee.

BROWN, Justice.

Appellant Stacey Johnson appeals his conviction for capital murder and his sentence of death by lethal injection. He raises multiple bases for reversal, including an assertion that his identification in a photo lineup by the victim's six-year-old daughter was inadmissible hearsay. We agree and reverse the judgment of conviction and remand for a new trial.

Carol Heath was brutally murdered in her duplex apartment in DeQueen on either the night of April 1, 1993, or the early morning hours of April 2, 1993. She was beaten, strangled, and had her throat slit while her two young children, Ashley, age six, and Jonathan, age two, were home. The facts regarding the murder and its aftermath are gleaned from pretrial and trial testimony. At approximately 6:45 a.m. on April 2, 1993, Rose Cassidy, the victim's sister-in-law, knocked on the victim's door but did not receive an answer. Because the door was unlocked, she entered and found Carol Heath's partially nude body lying on the living room floor in a pool of blood. She ran across the street to call the police and then returned to check on her niece (Ashley) and nephew (Jonathan), whom she saw looking out the bedroom window. Cassidy testified that she asked Ashley what had happened. Ashley responded, according to Cassidy: "[S]omebody had broke in, and I said who, and she (Ashley) said a [b]lack man." The victim was white.

Sergeant Keith Tucker of the DeQueen Police Department testified that he found Carol Heath's body nude except for a t-shirt that had been pushed up around her neck. He stated that her body was located between a couch which was tilted up on its back legs and a coffee table which had apparently been moved toward the middle of the room. DeQueen Chief of Police James Smith arrived at the apartment later. He testified that when he pulled the t-shirt away from the victim's neck, he saw that her throat had been slashed.

Dr. Frank Peretti, an associate medical examiner for the State Crime Laboratory, testified that Carol Heath's death was caused by cutting her neck, strangulation, and blunt-force head injuries. He stated that her attacker left a four-inch by two-inch cut wound on her neck that went one-quarter inch into her spine. He observed that she had several bruises and abrasions on her head and face, that she had injuries on her hands and arms consistent with defensive wounds, that she had a bite mark on the nipple of her right breast and an abrasion on her left breast, and that there was a one-quarter-inch contusion on her right labia minora. Dr. Peretti could not conclude, based on the physical evidence, that she had been either sexually assaulted or raped.

Officer James Behling, a criminal investigator with the DeQueen Police Department, testified that he observed a pair of panties next to Carol Heath's right thigh. He noted an area of lighter-colored liquid between and around the legs and below the genital area of the victim. An empty douche bottle and an empty "Lifestyles" condom box were found in the bathroom sink.

On April 5, 1993, Kenneth Bryan found a purse in the woods between DeQueen and Horatio which he later realized belonged to the victim. He took Officer Behling to the location. Officer Behling examined the area and found a bloody pullover green shirt, a bloody white t-shirt, and a bloody towel. Lisa Sakevicius, an expert with the State Crime Laboratory's trace evidence section, testified that hairs microscopically similar to the victim's hair were found on all three of these items. She further testified that hairs retrieved from under the victim's left breast, from the floor by the victim, and from the white t-shirt were of Negroid origin. Jane Parsons, a forensic serologist, testified for the State that no semen was found in connection with the victim. She admitted that the finding of semen would be unlikely, if the perpetrator used a condom and douched the victim.

DNA evidence was introduced at trial. Melisa Weber, a staff molecular biologist at Cellmark Diagnostics, conducted a Restriction Fragment Length Polymorphism [RFLP] test on the green shirt for the State and testified that to a reasonable degree of scientific certainty the blood matched that of Carol Heath. She also conducted a Polymerase Chain Reaction [PCR] test on several items, including the white t-shirt found in the park, a cigarette butt found in the green shirt, and hairs taken from the body of Carol Heath and near to where the body was located. With respect to the white t-shirt, Weber testified that the victim could not be excluded as the source of the blood and that the probability of this DNA having come from another Caucasian was 1 in 12,000. With respect to the cigarette butt and hairs, Weber opined that Johnson could not be excluded and that the probability that another African-American was the donor of the DNA in question was 1 in 250.

Officer Hayes McWhirter, an investigator with the Arkansas State Police, talked with the victim's daughter, Ashley Heath, on the afternoon of April 2, 1993. Also present at the time was Cynthia Emerson, a supervisor with the Department of Human Services. Officer McWhirter made the following notes from that conversation and used these notes to refer to when he testified at the pretrial hearings and at trial:

Ashley stated her mother and I were on the couch when someone knocked on the door. She got up and opened the door. The picture No. 3, Stacey Johnson, is the one that came in the door. Ashley looked at six different pictures of black males. ¹ Mother likes Branson. He works at In Your Ear. The Black male asked where Branson was. The black male used a girl sounding name. He had on a black hat with something hanging down in the back. He had on a green shirt and sweater. When they were talking, the black male said he had just got out of jail. The black male was mad at mother for dating Branson. He had been over two other times, but it was a while or a long time ago. The black male had about as much hair as [McWhirter.] I saw them fighting. Then I saw mother laying on the floor. I saw the black male leave and he got up and he got in a brown truck, I think. I saw a knife and a gun. The brown truck was parked beside the house. Mother looked out the window. When he knocked, then she let him in. While mother was laying on the floor, the black male walked into the bath room. We were hiding in the closet. I came out the door to the bath room and the black male had a knife in his hand beside mommy. She was on the floor bleeding. After he left, I went in and saw momma bleeding. Jonathan looked at mommy twice. She was covered in blood. We went to bed and then this morning when someone knocked on the door, I was scared to open the door. When Rose screamed, I knew she saw mommy with blood all over her. Every time I saw the black male, he had clothes on.

Officer McWhirter testified that he handed Ashley a stack of seven photographs, and she picked Johnson out of the photo lineup twice. Johnson was subsequently arrested in Albuquerque, New Mexico.

Prior to trial, the trial court found Ashley incompetent to testify due to psychological trauma and, thus, unavailable. That finding is not an issue in this appeal. Johnson then moved in limine to exclude all statements made by Ashley to Officer McWhirter and Emerson. Johnson argued in his brief in support of the motion that the selection from the photo lineup was one of the statements to be suppressed because it was the product of Ashley's reflection and deliberation and was made in response to questions during a time when Ashley showed no signs of excitement. After a hearing on whether her testimony as related by Officer McWhirter was hearsay, the trial court determined that Ashley's statements to the police officer and Emerson met the criteria of excited utterances and were admissible as an exception to the hearsay rule. This ruling necessarily embraced Ashley's selection of Johnson from the photo lineup on the two occasions. The trial court also ruled that Ashley's statement to Rose Cassidy qualified as an excited utterance. At the same time, the court excluded statements made by Ashley to EMT personnel and to family even though these statements were made on the same day and prior to her statements to Officer McWhirter. The trial court determined that the statements were not reliable and did not qualify as excited utterances.

At trial, a jury found Stacey Johnson guilty of capital murder. Following the penalty phase, the jury found the crime to be aggravated by three circumstances: (1) Johnson previously committed another felony, an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person; (2) the capital murder was committed for the purpose of avoiding or preventing an arrest or effecting an escape from custody; and (3) the capital murder was committed in an especially cruel manner. The jury unanimously agreed that there were no mitigating circumstances and sentenced Johnson to death by lethal injection.

We first address whether Ashley's selection of Johnson's photograph from a photo lineup qualified as an excited utterance.

I. Photo Lineup

At approximately 3:30 p.m. on the afternoon of April 2, 1993, Officer McWhirter, accompanied by Cynthia Emerson, a supervisor with the Department of Human Services, went to Ashley's grandparents' home to visit with Ashley. They took Ashley outside, and she told them what happened to her mother, which was related by Officer McWhirter at trial. After the statement, the police officer showed her seven photographs, one of whom...