Johnson v. Com.

• Decision Date: 31 May 1974
• Citation: 514 S.W.2d 115
• Parties: Cholly B. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 115

514 S.W.2d 115

Cholly B. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 31, 1974.

As Modified Sept. 13, 1974.

Geoffrey P. Morris, Public Defender, Louisville, for appellant.

Ed W. Hancock, Atty. Gen., Thomas A. Ainley, Asst. Atty. Gen., Frankfort, for appellee.

MILLIKEN, Justice.

The defendant in this case was convicted of two counts of armed robbery and sentenced to ten years on each count, the sentences to run consecutively. In the indictment the Commonwealth charged that the defendant, Cholly B. Johnson, and three others held up an Enco Service Station at 35th Street and Broadway, Louisville, on May 18, 1972 at approximately 1:00 PM.

Earl Wheeler, the manager of the service station, testified that he was sitting in his office at approximately 1:00 PM on the day of the robbery when a gun was placed to the back of his head. Then a fellow employee, Raymond Miller, was pushed into the office and hit over the head with a pistol. As the two robbers were leaving the office, one of them said 'shoot the honkie' and Wheeler was then shot in the back at point-blank range. After being wounded, Wheeler turned around in his chair, shutting the office door which locked automatically. Six or eight shots were then fired into the door after the robbers discovered they had left behind a sack of money--part of the fruits of the robbery--inside Wheeler's office. Prior to the shooting, Wheeler had not seen either robber in his office. Upon turning around however, Wheeler was able to see the defendant, Johnson, and the other man who did the shooting.

Raymond Miller, the service station employee who was pushed into Wheeler's office, saw neither robber in the office, but did identify the defendant by his voice at a lineup conducted at police headquarters after the robbery. Wheeler, who was taken to the hospital after being shot, did not see the lineup, but saw the defendant in court in September 1972 and later in December of the same year and made a positive identification at the trial. Apparently the four suspected men, who were later arrested, left the station in a 1967 Cadillac which was later seen parked outside of Apartment 1, 452 Thirty-eighth Street where the arrest was made.

Officer Joel Maupin testified he was summoned by radio to the service station where he observed the 1967 Cadillac with four black men including the driver he identified as Nathaniel Hadder, who was subsequently identified as one of the four men arrested. Officer Maupin later observed the car outside of the apartment where the arrest took place. Several other officers were summoned to the apartment the suspects were seen entering. Officer Stewart Kerr testified he looked through a window into the apartment the four suspects had entered and observed four small pistols on a couch. Officer Kerr and several others entered the apartment through the window and found the four men in a bedroom. The defendant, Johnson, was found sitting in a chair in the corner. Seized along with the four suspects was a pistol identified by Miller as one taken from him during the robbery, a wallet with an Enco credit card, a driver's license and Bankamericard taken from another employee of the service station, Jerry McElhaney, and $391 further fruits of the robbery.

At the trial, Johnson took the stand in his own behalf. He stated he had visited some friends, but that he arrived later at James Jackson's apartment where he was playing with Jackson's baby at approximately 12:30 or 1:00 PM on the day of the robbery or possibly a little later that day when he heard a commotion in the hall. He said three men, Charles Williams, Donald Mattingly and Bernard Hadder burst into the Jackson apartment. Then someone said, 'Here come the police.' Jackson made everyone leave his apartment. Johnson and the others then went to Bernard Hadder's apartment. A short while later the police arrested the defendant who was at the time in the bedroom with his shirt off. On the witness stand, Johnson said some friends could state he was with them earlier in the day of the robbery, but that after ten months in jail, he could not locate them. He did admit he made no attempt to subpoena them nor did he tell his lawyer he had seen several of his friends in court the day prior to his testimony.

Johnson's appeal is based on the following issues:

I. Whether the appellant was denied due process of law when the Commonwealth failed to bring the appellant promptly to trial?

II. Whether the trial court committed prejudicial error in failing to allow the testimony of Police Officer Allen Sohl as to the possible misidentification of the appellant?

III. Whether the voice identification by one of the victims should have been suppressed and whether or not the in-court identification by another victim was tainted by prior identification at pre-trial confrontations so as to deny appellant due process of law?

IV. Whether the trial court committed prejudicial error in failing to allow trial counsel to use a newspaper account of the armed robbery to impeach the victim's testimony?

V. Whether the appellant was denied effective assistance of counsel and a fair trial by the Commonwealth's failure to reply in whole to a bill of particulars propounded by the appellant?

During the course of the trial the defense attempted to introduce the testimony of Police Officer Allen Sohl. Officer Sohl had used the defendant, who at the time was incarcerated in the county jail, as a 'filler' in six police lineups. Twice during those lineups Johnson, according to Sohl, was identified as a participant in a robbery which occurred when Johnson was in jail at the time of the robbery.

It was part of Johnson's theory of defense that he had been mistaken for...