Johnson v. Catoe

• Decision Date: 11 June 2001
• Docket Number: No. 25304.,25304.
• Citation: 548 S.E.2d 587,345 S.C. 389
• Court: South Carolina Supreme Court
• Parties: Richard Charles JOHNSON, Petitioner, v. William D. CATOE, Director, South Carolina Department of Corrections, Respondent.

345 S.C. 389

548 S.E.2d 587

Richard Charles JOHNSON, Petitioner, v. William D. CATOE, Director, South Carolina Department of Corrections, Respondent.

No. 25304.

Supreme Court of South Carolina.

Heard February 20, 2001.

Decided June 11, 2001.

Rehearing Denied July 18, 2001.

John H. Blume, Cornell Law School, of Ithaca, New York; and David P. Voisin, of the Mississippi Office of Post-Conviction Counsel, of Jackson, Mississippi, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General William Edgar Salter, III, all of Columbia, for respondent. Lawrence C. Marshall, of the Center on Wrongful Convictions, of Chicago, Illinois; Barry C. Scheck, and Peter J. Neufeld, of The Innocence Project, of New York, New York; and Vance L. Cowden, of the Department of Clinical Legal Studies, of Columbia, for amicus curiae.

MOORE, Justice.

We have accepted this case in our original jurisdiction to consider whether petitioner is entitled to a new trial based upon after-discovered evidence. We find that he is not so entitled.

FACTS

In September 1985, Daniel Swanson was driving his RV through North Carolina on his way to Florida when he picked up petitioner, who was hitchhiking. The following day, Swanson and petitioner picked up hitchhikers, Curtis Harbert and Connie Sue Hess, on Interstate 95. Thereafter, Swanson was shot in the back of the head with a .357 pistol at close range. His body was concealed under a mattress.

Petitioner, Harbert, and Hess continued in the RV. Petitioner, who was drinking, was driving erratically. Trooper Bruce Smalls stopped the RV after being notified about petitioner's reckless driving. During the stop, he was shot and killed.

After Trooper Smalls was initially shot, he fell or was pushed out of the RV's doorway, and landed on the shoulder of the highway. There was a small blood smear on the inside of the door jam. He was then shot while he was lying on the ground. His body was dragged down a steep embankment, with his feet closest to the RV.

Harbert and Hess went south on foot. They went into the wooded median and then to a closed weigh station about a half mile from the RV. They flagged down a car whose occupants took them back to the RV after Harbert and Hess told them about the murder. Harbert and Hess gave a description of petitioner who they said killed the trooper. They both had some of Swanson's possessions.

Petitioner crossed the interstate on foot and went north. He was later stopped by police and they discovered he was carrying the .357 pistol used to kill Swanson and various items belonging to Swanson, including a TV set, in a white bag. Petitioner was wearing Swanson's watch. Swanson's class ring was found in the patrol car in which petitioner was transported.

The weapon used in the trooper's murder, a .38 pistol, along with a shotgun in its case were later found in the median. The weapons were not found in the same place and were covered with pine straw.

Petitioner had blood on him, but the blood was too small to provide a sample that could be tested. His blood alcohol level at the time of the crime was projected to be 0.23 percent. No gun powder residue was found on petitioner, Harbert, or Hess.

Petitioner was convicted in Jasper County for the murder of Trooper Smalls and was sentenced to death. On appeal, this Court reversed his conviction and sentence. State v. Johnson, 293 S.C. 321, 360 S.E.2d 317 (1987). After a retrial, petitioner was again convicted of murder and sentenced to death. This Court affirmed the conviction and sentence, and the United States Supreme Court denied his request for a writ of certiorari. State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992).

Petitioner also pled guilty to the murder and armed robbery of Swanson in Clarendon County. He was sentenced to imprisonment for life for the murder and twenty-five years for the armed robbery. No direct appeal was taken from the guilty pleas.

Petitioner's post-conviction relief application, regarding his conviction and sentence for the murder of Trooper Smalls, was denied, and this Court denied his request for a writ of certiorari. He then made a request for federal habeas corpus relief, which was denied by the federal district court. The decision was affirmed by the Fourth Circuit Court of Appeals, with Judge Ervin concurring in part and dissenting in part. Johnson v. Moore, 164 F.3d 624 (4th Cir.1998). The United States Supreme Court denied his request for a writ of certiorari. Johnson v. Moore, 526 U.S. 1042, 119 S.Ct. 1340, 143 L.Ed.2d 504 (1999). We denied petitioner's subsequent request for a writ of habeas corpus. Johnson v. Catoe, 336 S.C. 354, 520 S.E.2d 617 (1999).

Petitioner's request to delay setting an execution date was denied and an execution date was set for October 29, 1999. Petitioner thereafter sought a stay of execution pending the filing of a petition for a writ of habeas corpus based on after-discovered evidence. We granted the stay of execution to consider whether petitioner should be granted leave to move for a new trial based on after-discovered evidence in light of a statement given by Hess on October 22, 1999. In this statement, Hess stated Harbert killed Swanson and she, alone, killed Trooper Smalls.

We appointed the Honorable William P. Keesley as referee to take evidence and issue a report containing his recommendations to the Court on the new trial motion, including his findings regarding the competency and credibility of Hess. The referee was further instructed to set forth his recommendations on the motion for a new trial pursuant to the standard set forth in State v. Spann, 334 S.C. 618, 513 S.E.2d 98 (1999).¹

Following hearings, the referee issued his report finding Hess was competent but not credible, and finding that it was not probable Hess's statement would change the result of petitioner's conviction or death sentence if a new trial were granted.

Before addressing Hess's October 22nd statement, we believe it is pertinent to look at Hess's prior statements from 1985 through 1999. On September 27, 1985, Hess gave two statements indicating that petitioner killed Swanson and Trooper Smalls. On September 28, 1985, Hess gave a statement that Harbert killed both Swanson and Trooper Smalls. On September 30, 1985, Hess again gave a statement that petitioner killed both Swanson and Trooper Smalls.

At petitioner's first trial in February 1986, Hess testified that after being stopped by the trooper, she saw petitioner pick up a gun. At this point, she said she exited the RV and then heard shots. On cross-examination by the State, Hess stated petitioner killed Swanson and the trooper. However, she reiterated she did not know if petitioner had killed Trooper Smalls after he picked up the gun because she could not see what occurred. On re-direct examination, Hess testified concerning her statement that Harbert had committed the crimes. Hess indicated she lied at that time in an attempt to protect petitioner, because the police would not believe her story that after she ran from the shooting she returned to get her shoes, because she was afraid of "going to the electric chair," because the police promised they would not tell Harbert she had implicated him in the murders, and because they had promised her food in exchange for her story.

In May 1987, Hess, who was in Nebraska, contacted her former attorney.² She asked that he tell the appropriate authorities that Harbert had killed Swanson. She stated petitioner did not do the shooting, that her previous statement was incorrect, and that she wanted to correct the mistakes.

On October 21, 1999, Hess was visited in the Liberty Centre³ in Norfolk, Nebraska by Diana Holt, a representative of petitioner, to determine if Hess could add anything that might assist petitioner before he was set to be executed eight days later. Initially, Hess stated Harbert killed Swanson, but she could not remember the trooper's shooting. Holt asked Hess if her recollection could be refreshed by looking at her 1985 statement. Hess responded it would be helpful.

After refreshing her recollection by looking only at the 1985 statement that implicated Harbert, Hess stated Harbert killed Swanson because he was mad that Swanson had wanted to or had engaged in homosexual activity with Harbert; that Harbert said he would kill the trooper because the trooper would find the body if he entered the RV; and that Harbert fired all the shots that killed Trooper Smalls.

Hess gave a different statement later that day. In this statement, which was notarized, Hess stated that only Harbert fired the first shots at Trooper Smalls. She said after Trooper Smalls slumped in the doorway, she grabbed the gun from Harbert and pushed or kicked the trooper out with her foot and said, "there you go, bastard." Hess stated she then fired the rest of the shots when the trooper was on the ground. She also mentioned throwing the gun away.

After leaving Hess, Holt received a call from Hess on her cellular phone. Hess stated she had lied and began to cry. She stated she was the only one who shot Trooper Smalls, and that Harbert had not shot the trooper. Holt then decided to see Hess the next day to get the statement in writing.

The next day, when Holt arrived, Hess stated she could not leave the Liberty Centre. Holt then met with Patty Skokan, Assistant Director of Liberty Centre, and Dawn Zangari, Hess's case manager, and learned a notary was not available on the premises. Skokan advised Hess that she should see an attorney before signing the affidavit, which Hess agreed to do. Beverly Springer, who held a fundraising and community relations position at the Centre, was also present during this communication. Springer, who was deposed in this matter, stated Hess did not want...