Johnson v. Commonwealth
| Docket Number | 1279-20-4 |
| Decision Date | 17 May 2022 |
| Parties | DOUGLAS VERNON JOHNSON, JR. v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James P. Fisher, Judge
Edward J. Ungvarsky (Ungvarsky Law, PLLC, on briefs), for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges O'Brien, AtLee and Senior Judge Clements Argued at Fredericksburg, Virginia
Following a six-day trial, a jury convicted appellant of two counts of attempted capital murder of a law enforcement officer, two counts of malicious wounding, four counts of use of a firearm in the commission of a felony, and three counts of maliciously discharging a firearm in an occupied dwelling. The trial court imposed the jury's recommended sentence of seventy-four years of incarceration. On appeal, appellant raises the following assignments of error:
For the following reasons, we affirm the trial court's judgment.
"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Poole v. Commonwealth, 73 Va.App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). In doing so, we discard any of appellant's conflicting evidence, and regard as true all credible evidence favorable to the Commonwealth and all inferences that may reasonably be drawn from that evidence. Gerald, 295 Va. at 473.
In December 2017, appellant lived in a two-story home with his ex-wife, Lateefah Johnson. Around 4:00 p.m. on December 24 their nineteen-year-old daughter, A.J., called 911 to report that appellant had assaulted her. A.J. told the 911 operator that appellant had "major depression" and was "an alcoholic," although she did not know whether he had consumed alcohol that day. A.J. also reported that there were at least two firearms in the home, but she did not know their locations. Two minutes later, appellant called 911 and requested A.J.'s removal from the home. Appellant reported that A.J. had pushed him and he "didn't touch" her. He acknowledged that he had consumed "a beer" and there were "three handguns" and "one rifle" in his "office" and "bedroom closet." Appellant said the firearms were unloaded and promised he would "not be touching them."
Loudoun County Sheriff's Deputies Katherine Fischer, Timothy Iversen, and Justin Nyce arrived at the residence in response to the 911 calls.[1] Deputy Iversen found A.J. "crying and breathing heavily" and saw that the back of her jacket was ripped. A.J. told Deputies Iversen and Nyce that appellant had broken her eyeglasses but was uncertain whether he had done it "intentionally or by accident." Before police arrived, appellant had locked A.J. in the basement and become incensed when she returned upstairs. A.J described how appellant tried to seize her cell phone as she called her mother for help, at one point "push[ing] [A.J.] up against a brick wall" and placing his hand "around her neck." Later, while hiding in a basement utility closet, A.J. sent text messages to a friend stating that she "had removed a magazine from one of the guns in the office."
The deputies went to appellant's bedroom to arrest him for domestic assault. When he learned that he was under arrest appellant became "very, very angry," arguing with the deputies and yelling for A.J. and Johnson. Appellant "move[d] to the threshold of the closet" while Deputy Nyce tried to calm him. When appellant positioned himself "half in, half out" of the closet, Deputy Nyce "called for backup" because he "knew that [appellant] was starting to plan something."
Ignoring repeated commands to "step out" of the closet doorway, appellant "twisted to his left" and "dove into the closet" as Deputy Fischer advanced to handcuff him. Deputy Fischer heard gunshots as she jumped on appellant and felt "excruciating pain in [her] leg." Deputy Fischer initially thought that appellant had "shot himself" because he was lying motionless on the floor.
Deputy Iversen deployed his TASER as Deputy Fischer landed on appellant, firing two electrified prongs into appellant's abdomen.[2] Immediately recognizing that the prongs were too close together "to achieve neuromuscular incapacitation," Deputy Iversen tried to "make a follow-up third point of contact" with the TASER against appellant's body. As Deputy Iversen "dove" into the closet to apply the third point of contact, he heard "one gunshot," saw a flash of light, and collapsed on appellant.
Deputy Nyce followed Deputy Iversen into the closet and saw appellant holding a "two-toned 1911-style handgun." He disarmed appellant and placed the handgun in the closet's "back right corner." Deputy Nyce pinned appellant to the floor after applying a tourniquet to Deputy Fischer's leg, which was hemorrhaging blood from a gunshot wound. While pinned to the floor, appellant vacillated between "being irate and trying to get up" and "laying there and being calm"; at one point, he asked Deputy Nyce "to kill him."
Supporting deputies and emergency personnel arrived. Deputy Hao Lu found Deputies Iversen and Fischer lying on their backs while Deputy Nyce pinned appellant to the closet floor. Deputy Iversen was bleeding from gunshot wounds to his thighs and left forearm; Deputy Fischer was in the "initial stages of shock" from blood loss. Deputy Lu collected the .45-caliber 1911 handgun, unloaded the weapon, and placed it on a closet shelf while paramedics transported Deputies Iversen and Fischer to the hospital.
The same day, Deputy Andrew Mister executed a search warrant for the residence and photographed evidence he gathered. Deputy Mister diagramed the bedroom closet, where he discovered "blood on the floor and the wall," multiple loaded firearms, and ammunition. He collected three .45 caliber cartridge casings from the closet floor and the 1911 handgun from the closet shelf. A loaded magazine containing nine .45 caliber cartridges was next to the handgun. At trial, Virginia Department of Forensic Science Analyst Cara McCarthy, whom the trial court qualified as an expert in firearm and toolmark examination, testified that appellant's handgun required "approximately 5-1/2 pounds" of trigger pressure to fire.
Dr. Jeffrey Ho testified as an expert in the "fields of medicine, conducted electrical weapons, TASER, and the effects of conducted electrical weapons and TASER on the human body." Ho explained that a TASER's dual prongs must lodge at least twelve inches apart on the human body to achieve "the most minimal amount of [neuromuscular] incapacitation." He testified that a "follow-up third point of contact" is a method by which a TASER operator may still incapacitate a suspect despite a misplaced shot. The method entails pressing the TASER directly against a suspect in whom either only one prong has embedded or two prongs have embedded too closely.
Dr. Ho also testified regarding the "startle effect," a phenomenon in which the sudden, unexpected impact of a TASER prong may induce a suspect to "reflexively pull the trigger" of a firearm. Dr. Ho explained that the "third point of contact" method can cause a one-time "clinching of [a suspect's] fists," but not repeated contractions and release. Dr. Ho concluded that although it was "possible" that appellant experienced a startle effect from Deputy Iversen's TASER, it was unlikely that such an effect would cause appellant to pull the trigger repeatedly. Dr. Ho reached this conclusion because "the startle effect doesn't keep repeating itself" and is generally "a one-time event."
Appellant testified that he was employed as a Deputy Senior Operations Officer with "top secret security clearance" at an "intelligence organization." Appellant previously served fifteen years in the United States Army, including forty-two months of combat in Iraq, but he had struggled to "cop[e] with issues" stemming from his deployments. After witnessing many deaths, appellant found returning home "very difficult," and he and Johnson divorced. Between 2006 and 2008, appellant's parents died, and he continued to struggle to adapt to civilian life. Appellant "reconciled" with Johnson in 2008 but returned to combat because "it just didn't feel normal at home." In August 2017, after four years of separation from his family, appellant moved into a residence with Johnson.
Appellant recounted his arguments with Johnson and A.J. and explained that, just before the altercations, he had consumed alcohol for "the first time in a couple months." When he learned that A.J. had removed the magazine from one of his handguns, he reloaded his firearms and concealed them in new locations, moving the handgun to a "cubby" on the floor of his bedroom closet. Appellant testified that he "always" kept the handgun "loaded" with "a round in the chamber" because it did not "go off" easily. Appellant claimed that he called 911...
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