Johnson v. Denney

• Decision Date: 19 April 2012
• Docket Number: Case No. 11-0188-CV-W-HFS-P
• Parties: BRETT JOHNSON, Petitioner, v. LARRY DENNEY, Respondent.
• Court: U.S. District Court — Western District of Missouri

BRETT JOHNSON, Petitioner,

v.LARRY DENNEY, Respondent.

Case No. 11-0188-CV-W-HFS-P

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

Date: April 19, 2012

OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, AND

DENYING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY

Petitioner, Brett Johnson, filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on February 17, 2011, seeking to challenge his 2002 convictions and sentences for first degree murder and armed criminal action, which were entered in the Circuit Court of Clay County, Missouri.

Petitioner raises fourteen grounds for relief: (1) that the trial court erred in overruling his objection to the testimony of Jaci Wiley "that petitioner had threatened her and discussed forming a mafia with James Boyd;" (2) that the trial court erred in not sua sponte intervening when the State "question[ed] witnesses about [violent] books owned by James Boyd;" (3) that trial counsel was ineffective in (a) failing to object to the State's introduction of Boyd's violent books into evidence, (b) asking petitioner about leafing through the books on direct examination, and (c) not objecting to the State's use of the books during cross-examination; (4) that trial counsel was ineffective in allowing video statements by witness Lindsay Harper to be used at trial, along with transcripts of the statement, which were given to the jury during both the trial and deliberations; (5) that trial counsel was ineffective in failing to object to the testimony of Randall Sanford, who was petitioner'scell mate and who testified as to incriminating statements made by petitioner while they were in jail; (6) that direct appeal counsel was ineffective in failing to raise a claim on appeal that the trial court erred when Detective Dillenkoffer, a witness for the State, was allowed to testify at trial even though he had destroyed his notes of his interview with petitioner; (7) that direct appeal counsel was ineffective in failing to raise a claim on appeal that the trial court erred in overruling petitioner's motion to exclude Detectives Luster and Dillenkoffer's testimony because he had exercised his right against self-incrimination during their interviews with him; (8) that direct appeal counsel was ineffective in failing to raise a claim on appeal that petitioner's rights were violated when the the trial court refused to suppress the officers' testimony due to their notes not being preserved; (9) that direct appeal counsel was ineffective in failing to raise a claim on appeal that the trial court erred in allowing testimony of Randall Sanford when the written notes he gave to the State were never shown to the defense; (10) that the State elicited false testimony from witness Randall Sanford that "there had been no offers or promises of consideration for his testimony against petitioner with respect to Sanford's pending criminal charges," and "the State failed to disclose that [] a plea deal had been made with Sanford;" (11) that the State failed to disclose its knowledge from the trial of James Boyd that the victim's mother, Rebecca Caruthers, was providing Boyd with an alibi defense; (12) that the State failed to disclose its knowledge from the trial of James Boyd that Boyd, the person who allegedly stabbed the victim, suffered from Asperger's Syndrome, "which rendered Boyd incapable and too uncoordinated to single-handedly overpower and stab a victim twice his size and [made it impossible] that [Boyd] could [] have navigated the woods and led other[s] to the victim's body;" (13) that petitioner is actually innocent as shown cumulatively by the foregoing grounds for relief; and (14) that petitioner is innocent because James Boyd, the person who allegedlystabbed the victim, has had his sentence reversed on appeal and has subsequently pled guilty to only second degree murder.

Respondent contends that grounds 1, 3-5, and 13-14 are without merit; that grounds 6-12 are procedurally defaulted because they were never fully presented in the state courts; and that ground 2 also is procedurally defaulted because the Missouri Court of Appeals did not engage in plain error review.

SUMMARY OF FACTS

On appeal from the denial of petitioner's Mo. Sup. Ct. Rule 29.15 motion, the Missouri Court of Appeals summarized the facts as follows:

The State charged [petitioner] with first-degree murder, section 565.020, n.1 and armed criminal action, section 571.015, for his part in the stabbing death of sixteen-year-old Jimmy Weber. The cause went to trial before a jury, and the following evidence was presented.

n.1 Statutory references are to the Revised Statutes of Missouri 2000 unless otherwise noted.

In the fall of 1999, [petitioner] and some friends were planning an armed robbery of a local grocery store. They asked their friend Jimmy Weber to drive the "get-away" car, but he declined. At some point, Weber told the group that he had thrown away the stolen shotgun that they planned to use in the robbery. n.2 [Petitioner] and his co-conspirator, James Boyd, were angry about this and grew concerned that Weber would tell the police about the planned robbery. The two devised a plan to lure Weber into the woods and kill him.

n.2 A shotgun was found at Weber's home after his murder.

On Saturday night, September 25, 1999, [petitioner] and Boyd were riding around with two other friends, Lindsay Harper and Adam Lile, in Lile's vehicle. They drove to Searcy Creek Parkway, and [petitioner] told Lile to pull over. [Petitioner] and Boyd got out of thecar and walked to a spot near where the group would later rendezvous and flee the murder scene. At [petitioner]'s suggestion, Lile then drove the group to Weber's home, and Weber joined them. They drove to a wooded area near some townhouses where [petitioner] had lived as a child. [Petitioner] suggested that they all go into the woods where he often had played. Harper and Weber were reluctant but eventually agreed. [Petitioner] led the group into the woods. Boyd, Lile, and Weber stopped near the top of a hill, but [petitioner] kept walking. Harper also stopped, unsure of what to do. [Petitioner] told her to come with him, and she followed him.

[Petitioner] and Harper stopped when they reached a clearing. Harper then heard Weber pleading for his life and crying. She asked Johnson what was happening, and Johnson said, "You know Jimmy's not coming out of the woods tonight." Lile saw Boyd pull a knife out from the waist of his pants and begin stabbing Weber. Boyd stabbed Weber a total of twenty-eight times in the neck, chest, abdomen, back, and arms while Weber pleaded for his life.

Boyd and Lile then joined [petitioner] and Harper in the clearing, and Boyd said, "It's done. Let's go." [Petitioner] asked Boyd, "What happened?" and Boyd said, "Jimmy's going to go the other way. Let's go." Boyd and [petitioner] disagreed about which direction to go. At [petitioner]'s insistence, they walked back the same way they had come "to avoid leaving a trail." As they walked past Weber lying on the ground, Harper heard [petitioner] say, "there's our boy," and Lile heard [petitioner] ask if anyone wanted a new pair of shoes. Weber then gasped, and the group ran from the scene. When they stopped, [petitioner] said he would go get the car. The group waited for [petitioner] atop a hill near Searcy Creek Parkway (a different spot from where they had entered the woods). [Petitioner] drove around to that location and picked them up. As they drove off, [petitioner] told the group that they needed alibis. He told Harper and Lile what their alibis should be.

The next day, another acquaintance, Aaron Clary, stopped by [petitioner]'s house. Boyd was there with [petitioner]. Boyd and [petitioner] had shared a duplex with Clary earlier that summer. When Clary asked about Weber, [petitioner] told him Weber was "underground." Clary did not know what that meant. At [petitioner]'s request, Clary agreed to let Boyd stay with him that night.

On the way to Clary's residence, Boyd told Clary that he had killed Jimmy Weber and left his body in the woods. Boyd said he and[petitioner] planned the murder; Lile was there to prevent Weber from running and Harper was there to make Weber feel comfortable about going into the woods with them. Boyd told Clary that he and [petitioner]'s brother, Branden, had tried unsuccessfully to bury the body. He asked Clary to help him bury the body. Clary told Boyd he did not believe his story. The next day, Monday, Boyd led Clary into the woods and showed him Weber's body.

When Clary was able to extricate himself from Boyd, he went to see his attorney. Clary told his attorney what he had seen, and the attorney called the Clay County prosecutor. Clary's attorney arranged for the prosecutor and the county sheriff to meet Clary at the attorney's office. From there, Clary led the authorities to the woods, where they found Jimmy Weber's dead body. Near the body, officers found a shallow square-shaped depression in the ground that recently had been dug. They also found a shovel and a knife close by. [Petitioner], Boyd, and the others involved in the crime were arrested that evening.

Kansas City police officers arrested Lindsay Harper at college in Warrensburg. They brought her back to the police department in Kansas City, where she told them what had happened. She said she did not have any prior knowledge that the murder was going to happen. She gave a videotaped statement to police that included her claim that [petitioner] said: "You know Jimmy's not coming out of the woods tonight." She later gave a second videotaped statement in which she repeated that statement but also added other details about the night of the murder.

Police also arrested [petitioner] that Monday evening. After waiving his Miranda rights, [petitioner] gave the police three different stories. In his first two versions, he denied having any prior knowledge that Weber was going to be killed. [Petit

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