Johnson v. Kemp

• Decision Date: 24 April 1985
• Docket Number: No. 84-8419,84-8419
• Citation: 759 F.2d 1503
• Parties: Johnnie L. JOHNSON, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1503

759 F.2d 1503

Johnnie L. JOHNSON, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent-Appellant, Cross-Appellee.

No. 84-8419.

United States Court of Appeals, Eleventh Circuit.

April 24, 1985.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Alice C. Stewart, Atlanta, Ga., for petitioner-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Georgia.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.

GODBOLD, Chief Judge:

Petitioner is a Georgia state prisoner convicted in 1975 and sentenced to death for murder, life imprisonment for rape, 20 years for kidnapping, and ten years for aggravated assault. ¹ The district court 585 F.Supp. 1496, after an evidentiary hearing, granted the writ of habeas corpus on the ground of ineffective assistance of counsel at sentencing and denied relief on all other grounds. We affirm the denial of relief on the other grounds, vacate the judgment on the issue of ineffective counsel at sentencing, and remand for reconsideration of that issue under new standards handed down by the Supreme Court since the district court's decision.

I. Facts

Petitioner Johnnie L. Johnson and co-perpetrator Jerry Sprouse approached two young women, Suzanne Edenfield, age 20, and Lynn Harrod, age 18, in Savannah, Georgia, after the women left a rock concert around 11 p.m. The two women agreed to smoke a joint (marijuana) with the men, and the four went to a park. After the four of them smoked two or three joints of marijuana and listened to a tape, the women set above to leave in their own car. Sprouse took a gun from the trunk of Johnson's car and forced the women into Johnson's car. ² The men bound the women's hands behind them with wire. Suzanne gagged Lynn at the direction of the men. Johnson then gagged Suzanne and told her he would kill her if she made any noise.

Johnson drove to a wooded area outside of town. Once there he took Suzanne away from the car, disrobed her, and, the jury could find, raped her. ³ Sprouse removed Lynn's clothing and attempted to have intercourse with her in the back seat of the car, but was unable to complete the act. Johnson put some of Suzanne's clothes back on her and brought her back to the car. At Sprouse's direction Johnson again removed Suzanne's clothing. Both of the women, nude and still bound, were ordered by Johnson to stand at the side of the road. Johnson got in his car and turned it around, then, according to Lynn, got out of the car and stood beside Sprouse, who was behind and at almost point blank range from the women. Johnson testified, however, that he remained in the car after turning it around. Lynn heard a gunshot and saw Suzanne fall to the ground, fatally wounded. Suzanne was struck by two shots, one to the head, one to the chest. A pathologist testified that probably she lived about 15 minutes. Two shots struck Lynn, wounding her. Lynn did not see which of the two men held the gun and fired the shots. The district judge found that most likely Sprouse was the triggerman.

Johnson and Sprouse left the scene in the car, taking with them all of the women's clothing, which they threw out at various points. Lynn went to a nearby house, and police were called. The two men returned to town to wipe off fingerprints from the women's car but did not find it. They threw the gun in a river, took Johnson's car to South Carolina and burned it, and fled to South Dakota and then to Canada, in Sprouse's car. The burned car was traced to Johnson. He and Sprouse returned to South Carolina and were arrested. ⁴

II. Excuse of Jurors for Cause

The district court considered the excusal for cause of veniremen Louis Bryan, Sam Coleman and Angus Henry ⁵ and held that interrogation of each at trial revealed that under no circumstances conceivable at the time could he impose the death penalty on the defendant. We have examined the voir dire of these three persons, and it shows beyond question that the district court correctly held that the trial court properly excused them. All said unequivocally that they could not impose the death penalty. Georgia requires jurors to determine whether the death penalty is appropriate in the case. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). Under the law both before and after Wainwright v. Witt, --- U.S. ----, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the district court was correct. See Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) (a juror wholly unable even to consider the death penalty in assessing sentence should be excused).

III. Evidence of Other Misconduct

The prosecution introduced over objection the testimony of witness Dan Lilly, a friend of Johnson's, that about a week and a half before the crimes in question Johnson had mentioned to him that he (Johnson) and Sprouse recently had seen a couple of girls coming in and out at different clubs, that he (Johnson) wanted to have sex with them and said "if they didn't want to do what he told them to, he was going to force them." Lilly described how at a later occasion Johnson waved a pistol owned by Lilly, saying that as long as he had the pistol he could do what he wanted to. Johnson acknowledged the incident concerning Lilly's pistol but stated that the conversation was limited to whether it was an antique.

Also introduced was testimony of Greg Yawn that a week and a half or two weeks before the crimes in question a magazine saleswoman came to Yawn's house while Johnson was there, and Johnson mentioned to Yawn possibly raping her and using the gun because he didn't want anyone to know about it. He invited Yawn to go along with him on the venture, but nothing further occurred.

The Supreme Court of Georgia pointed out that Johnson's participation in the crimes was undisputed and that the foregoing testimony of similar misconduct was highly relevant to show his "bent of mind" to commit rape and to voluntarily participate in kidnapping and raping the two victims. Johnson, 250 S.E.2d at 399.

The district court correctly rejected Johnson's contention that this prior misconduct evidence improperly put his character in evidence (and, inferentially, that it was so fundamentally unfair that it violated due process).

IV. Ineffective Counsel at Trial

The district court considered an array of claims that counsel was ineffective at the guilt phase. Counsel had testified at the state habeas hearing. The court reviewed all of these claims under pre-Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standards, and rejected all of them.

Defense counsel's trial strategy cannot be faulted. The tactical choice was to recognize that Johnson participated in the kidnapping but to claim that he only attempted to rape Suzanne and that he did not participate in the shooting. It was, in effect, a recognition that conviction on some charges, and a prison sentence, were inevitable, and an attempt to escape the death penalty. It is difficult to see that counsel had any other rational choice. Johnson never claimed to have an alibi. In view of the actual events--the women's car left in town, two nude and bound women abandoned on a remote road at night, both shot, one dead and the other alive and seeking help, the clothing of both taken away--the question was "who did it?" The surviving victim identified Johnson as driver of the car into which she and Suzanne had been forced and as a participant in the events that followed. She described the car, and her description tallied with Johnson's car found burned in South Carolina. She identified articles of their clothing found at a place distant from the scene.

Johnson took the stand and gave his version. His contention that he only attempted to rape Suzanne was hardly credible since sperm was found in her body. He claimed that Sprouse fired the shots while he, Johnson, remained in the car after turning it around.

Petitioner's suggestion that counsel somehow should have developed additional evidence that Johnson did not pull the trigger ⁶ and that he only attempted to rape Suzanne is frivolous. The same is true of the contention that somehow he should have turned up evidence to rebut the testimony of Yawn and Lilly concerning Johnson's respective statements to them (about girls going in and out of night clubs and about the magazine saleswoman). Johnson's statements were made when no one else was present. Johnson acknowledged that the two conversations described by Yawn and Lilly occurred, and he could only seek to explain and soften his statements and the witnesses' descriptions of the circumstances. With respect to the pistol incident, the evidence is unclear on whether others were present when the pistol incident occurred, but in the overall context of the trial Lilly's testimony concerning Johnson's statement about the pistol could not have affected the result. The Johnson/Sprouse stolen pistol was, without dispute, in the trunk of Johnson's car, was seen in only Sprouse's hand during the crimes, and the district court found that Sprouse most likely fired the shots.

The district court did not err in rejecting petitioner's attack on the trial strategy and on counsel's investigation of issues relating to guilt.

V. The Enmund Issue

Johnson raises a number of arguments under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), where the Supreme Court held that the Eighth Amendment barred the imposition of the death penalty "in the absence of proof that [the defendant] killed or attempted to kill, and regardless of whether [he] intended or contemplated that life be taken...." 458 U.S. at 801, 102 S.Ct. at 3379. We find no error.

Enmund was a felony murder case in which the Supreme Court examined the record to determine whether the Eighth Amendment permitted imposition of the death...