Johnson v. Com., 93-SC-605-MR
| Decision Date | 23 November 1994 |
| Docket Number | No. 93-SC-605-MR,93-SC-605-MR |
| Citation | 892 S.W.2d 558 |
| Parties | John S. JOHNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Stephan Charles, Manchester, for appellant.
Chris Gorman, Atty. Gen., Lana Grandon, Asst. Atty. Gen., Crim. Appellate Div., Frankfort, for appellee.
John S. Johnson appeals as a matter of right his conviction of murder by a jury in the Leslie Circuit Court for which he was sentenced to life imprisonment.
On the evening of July 26, 1992, nineteen-year-old Brian Sizemore, the victim of this homicide, was visiting in the home of his uncle George Sizemore in Leslie County, in the company of several other relatives and friends. Brian's father, Bobby Sizemore; and Dean Rice, a friend, were drinking along with the host, George. The appellant, John Johnson, drove up in his pickup truck, parked, and came into the house upon invitation of George, who gave him their last beer. Johnson had a .357 magnum revolver stuck in his belt, which he laid on the table, around which the men were sitting and drinking.
In a little while, the appellant went out to his truck and got some more beer, which he brought into the house. Later the appellant, Johnson, and Brian's father, Bobby, got into a scuffle and began struggling over possession of the pistol. During the struggle, the pistol discharged with the bullet striking George's finger. In the scuffle, Bobby got control of the pistol and hit the appellant over his eye with it. Johnson left the house without his pistol, got into his truck and backed onto the main highway, and apparently drove off.
A few minutes later, Bobby's son, Brian, also decided to leave. He backed his truck out of the driveway and onto the main highway, at which time shots rang out. Brian was found in his truck, shot to death. He was taken to the hospital, and Kentucky State Police Detective Johnny Sizemore, who was not related to Bobby or his son, Brian, was called to investigate.
Detective Sizemore interviewed witnesses, recovered two 7.62 X 39 mm. cartridge cases at the scene, observed broken glass lying in the driveway, photographed and impounded the victim's truck, and removed bullet fragments from a tree and a post at the scene, from the dashboard of the victim's truck, and from a table in the George Sizemore home.
Based on his investigation, Detective Sizemore concluded that as Brian Sizemore was backing his pickup truck onto the main highway, the appellant had driven by and fired his 7.62 X 39 mm. caliber SKS rifle at Brian's truck, perhaps thinking it was Brian's father, Bobby Sizemore, and that one of the bullets struck Brian in the head, causing his death.
The appellant Johnson could not be located after the shooting, and on August 18, 1992, he was indicted for murder. Over three months after the shooting, the appellant surrendered himself to the jailer in Pulaski County on November 2, 1992, and was arrested. His trial began on July 12, 1993, and extended over six days, with the jury returning its guilty verdict on July 19, 1993. On July 26, 1993, one year to the day following the murder, the appellant was sentenced to life imprisonment.
Although the appellant levels a blanket accusation that he was denied due process throughout this prosecution, trial, and conviction; and that he was "railroaded into prison for the remainder of his life," his principal complaint concerns the handling of physical evidence by the Kentucky State Police and the refusal of the trial judge to give the appellant's tendered instruction thereon.
Detective Sizemore testified that he took photographs of the table at George Sizemore's house from which a bullet was recovered, and of the victim's truck. He also called in Charles Lanham, a firearms expert from the KSP crime laboratory, who inspected and took additional photographs of the victim's truck. When they had finished with the victim's truck, it was returned to his family two days after the shooting. His father had the damage repaired and repainted. Although the appellant could not then be located, and did not surrender himself on the indictment until November of 1992, over three months later, he now complains that he was denied due process by the failure of the KSP to retain the truck. He makes the same complaint with regard to a wooden post which Detective Sizemore had to split in two in order to recover a bullet fragment lodged inside. Similarly, he complains that the table from which the detective recovered another bullet in the George Sizemore house was not available for his examination. The appellant's brief makes the exaggerated accusation that the Commonwealth intentionally destroyed physical evidence and likens this conduct to that of the Commonwealth in Sanborn v. Commonwealth, Ky., 754 S.W.2d 534 (1988). In that case, a Commonwealth's Attorney admitted intentionally erasing the tape-recorded statements of four witnesses, three of whom testified at trial for the prosecution. We described these acts of the prosecutor as "misconduct of constitutional proportions under Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 219 (1963), and its progeny." Id., 754 S.W.2d 534 at 539.
We think the criticism here is completely without merit. In the instant case, there was absolutely no showing of any bad faith on the part of Detective Sizemore, Mr. Lanham, or any prosecutor. On the contrary, the appellant, once he returned to face the charges and stand trial, was furnished numerous photographs of all the physical evidence, including the victim's truck and the post and table where bullet fragments had lodged. Further, with regard to the table, the appellant's counsel conceded at oral argument that while the trial was still in progress, he learned that the table was intact after all, but he never took the time to go and look at it.
The appellant's brief erroneously describes the return of the victim's truck to his family by Detective Sizemore as "destroying or concealing evidence." The brief also claims that the truck "was deliberately released to the family outside normal Kentucky State Police procedure." Yet the record is devoid of any proof of any procedural rule or regulation of the KSP that so provides, which Detective Sizemore might have violated. The only testimony that even vaguely suggests such a general policy, without any specific time limits, is the following cross-examination of Detective Sizemore:
Q. And as a detective you are kept updated on evidence collection and handling procedures?
A. Yes.
Q. And isn't it true Detective you are trained and required by the Kentucky State Police to gather and preserve physical evidence?
A. Yes.
Q. So we don't need to go through these orders because you recognize that you are required to gather, preserve and maintain the integrity of physical evidence that you gather in the course of investigation?
A. Yes sir.
Notwithstanding all the above, the trial court nevertheless gave the jury a "missing evidence" instruction as approved in Sanborn, supra, as follows:
Instruction No. 2: If you believe from the evidence that there existed certain items that were potential evidence, and that the agents or employees of the Commonwealth intentionally destroyed the same, you may, but are not required to, infer that these items would be, if available, adverse to the Commonwealth and favorable to the defendant.
The appellant objected to the court's instruction and tendered one of his own which the court correctly rejected. It read as follows:
The Commonwealth has lost or released several pieces of evidence involved in this case including the pickup truck in which Brian Sizemore was killed, a table from Mildred Sizemore's home, a post from the area of the shooting and a tape recorded statement taken from Kathy Davidson. In your deliberations you may assume that these articles of evidence, if available now, would be favorable to John S. Johnson's case.
Unlike the instruction approved by us in Sanborn, supra, the appellant's tendered instruction was tantamount to requiring the jury to assume that all the physical evidence observable on or about the victim's truck, the split post, and the Sizemore table "would be favorable" to the defendant's case. We know of no authority to support any such instruction. On the contrary, we are of the opinion that the trial court's instruction showed that he "bent over backwards" to be fair to the appellant with regard to the physical evidence issue.
The appellant complains that the Commonwealth's Attorney "took the posture of representing the Sizemore family rather than the Commonwealth of Kentucky." He states that "[f]rom the shooting forward the Sizemores conducted the investigation and the State Police and Commonwealth's Attorney's Office tailored their preparation and presentation of the case according to the Sizemores' conclusions." Of course, none of these allegations was preserved for appellate review. The appellant has failed to cite any proof indicating that these matters were brought to the attention of the trial court or where any relief was requested. RCr 9.22; McDonald v. Commonwealth, Ky., 554 S.W.2d 84 (1977). Finally, the appellant has not cited any legal authority supporting his arguments.
Similarly, appellant's claims of prosecutorial misconduct regarding questions asked about whether there was a full moon at the time of the shooting, certain questions asked on cross-examination of defense witnesses, and an impeachment question about a prior felony conviction, all were not objected to at trial. Accordingly, they were waived. Salisbury v. Commonwealth, Ky.App., 556 S.W.2d 922 (1977).
Some two months before the trial began, the trial court held a hearing on the appellant's motion for a change of venue. Several witnesses testified for each side, and...
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