Johnson v. Moore, 8:02-CV-1003-T-23EAJ.
| Decision Date | 07 February 2007 |
| Docket Number | No. 8:02-CV-1003-T-23EAJ.,8:02-CV-1003-T-23EAJ. |
| Citation | 472 F.Supp.2d 1344 |
| Parties | Derrick JOHNSON, Petitioner, v. Michael W. MOORE, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Rochelle Anne Reback, Law Office of Rochelle A. Reback, Tampa, FL, for Petitioner.
John M. Klawikofsky, Office of the Attorney General, Tampa, FL, for Respondent.
Derrick Johnson petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and challenges his convictions for burglary with an assault and for sexual battery with the threat of force. An earlier order (Doc. 36) denies on the merits Ground Two and Ground Three of the original petition but appoints counsel to further develop Johnson's Ground One. This action proceeds on Johnson's memorandum in support of Ground One (Doc. 39), Moore's response (Doc. 43), and Johnson's reply (Doc. 49).
Johnson's conviction followed a brief trial in which the complainant, who was a minor, charged Johnson with rape and denied engaging in consensual sex with Johnson in exchange for drugs, the use of which she claimed to abhor.1 (Respondent's Exhibit 1 vol. III at 138-40) On the other hand, Johnson testified that he and the complainant engaged in consensual sex in exchange for drugs and that, after the consensual sex, he refused to "pay" the complainant with either money or drugs, as promised. (Respondent's Exhibit 1 vol. III at 336-37, 346) Because both Johnson and the complainant agree that the sexual encounter occurred (but differ on the circumstances), the sole and governing issue at trial was Johnson's claim of consent — Johnson's claim that the complainant agreed to sex in exchange for drugs. This habeas corpus proceeding arises from the trial court's refusal, premised on Florida's "rape shield law," to permit the introduction of corroborating evidence that the complainant was a prostitute with a history of exchanging sex for drugs (or cash with which to buy drugs) — evidence directly relevant to the question of the complainant's consent, both the governing issue in the case and Johnson's only defense.
An information filed in Hillsborough County, Florida, charged Derrick Johnson with burglary of a dwelling with the intent to commit an assault or battery (Count One) and sexual battery with the threat of force (Count Two). (Respondent's Exhibit 1 vol. I at 12-13) Johnson pled not guilty and counsel was appointed. (Respondent's Exhibit 1 vol. I at 1-2)
Trial began and voir dire was conducted on January 16, 1996. (Respondent's Exhibit 1 vol. III at 1-102) Counsel delivered opening statements the following morning and the state rested at the end of the afternoon. ( The defense presented its case the next morning (Respondent's Exhibit 1 vol. IV at 328-70) and the jury returned a verdict early in the afternoon after only thirty-five minutes of deliberation. (Respondent's Exhibit 1 vol. IV at 417) Johnson was sentenced to imprisonment for sixty years, enhanced to life imprisonment because of his previous felonies. (Respondent's Exhibit 1 vol. I at 77-84; Respondent's Exhibit 1 vol. V at 364)
During opening statement the prosecutor alleged that Johnson violently raped the complainant in her bedroom in the middle of the night. The prosecutor told the jurors that both the complainant and her brother identified Johnson as the person inside their home that night and that Johnson, while fleeing, attempted to steal the videocassette recorder. The prosecutor also advised the jurors that a DNA test proved that Johnson's semen was recovered from the complainant. Finally, the prosecutor told the jurors that on the night after the incident a police officer spotted a man matching the description of the assailant, that the individual fled, that a K-9 officer found the man hiding in a nearby wooded area, that the individual was Johnson, and that the complainant selected Johnson's photograph as depicting the man who assaulted her. (Respondent's Exhibit 1 vol. III at 110-15)
The defense counsel's opening statement painted a decidedly different picture. Focusing on the lack of any physical evidence linking Johnson to the alleged crime scene, the defense counsel asserted that (1) despite the representation that the assailant touched many items inside the home, Johnson's fingerprints were not recovered from the alleged crime scene, either inside or outside the burglarized home; (2) despite testing, the bed sheets contained no hair or bodily fluid matching Johnson's, no bodily fluid matching the complainant's (even though she claimed she was menstruating at the time of the alleged rape), and no other physical evidence to support the rape allegation; and (3) despite the claim of a burglary, the police found no point of entry (all windows were securely protected with "burglar bars") and no evidence that a door had been forced. The defense counsel next explained that on the night of the alleged assault Johnson was "running around with" the complainant's mother and her boyfriend and that he later had consensual sexual relations with the complainant, for which he had promised her crack cocaine as payment. Concluding his opening statement by admitting to the jurors that Johnson fled when spotted by police, the defense counsel explained that Johnson was dragging "an enormous cardboard box across the parking lot" and that the box contained the "fruits of a burglary of an automobile." (Respondent's Exhibit 1 vol. III at 116-24)
The complainant was the first witness. She testified that on the afternoon or evening of the assault she saw her mother drinking in the front yard with her mother's boyfriend and another person, whom the complainant identified later in the investigation as Johnson. The complainant testified that she visited her cousin later in the evening, returned home about midnight, and went to bed but was awakened by someone pushing her shoulder and saying, "Wake up, bitch." The complainant stated that the assailant told her to spread her legs and, when she refused, he began hitting her and that, despite her attempts to fight back, the assailant overpowered her, removed her clothes, and raped her. The complainant testified that she was menstruating at the time and was wearing a pad for protection. She testified that after the assailant left her bedroom she went into her mother's bedroom (her mother was absent), awakened her brothers, and called her grandmother on the telephone. (Respondent's Exhibit 1 vol. III at 126-31) The complainant testified that she and her brother entered the living room and saw the assailant drop the videocassette recorder and flee. (Respondent's Exhibit 1 vol. III at 134)
Initiating on direct examination an inquiry into the complainant's sexual history and her attitudes toward drugs, the prosecutor elicited testimony from the complainant that she had engaged in prior consensual sexual activity with only her boyfriend:
Q. Does your mom do drugs?
A. She used to.
Q. How did that affect your family?
A. We wasn't staying with her. We was staying with my grandmother.
Q. When she was doing drugs, was she there for you?
A. No.
Q. Is that the reason you don't like drugs?
A. Yes.
Q. Before the night that you were raped, ... had you ever had sex with anyone?
A. Yes.
Q. Who.
A. [Boyfriend's name].2
Q. How old is [boyfriend]?
A. Fifteen.
Q. Is he your boyfriend?
A. Yes.
Q. How long has he been boyfriend?
A. For about two years.
Q. Before the night that you were raped, how long had it been since you had sex with [boyfriend]?
A. About a month.
Q. How many times had you had sex with him?
A. Once.
Q. [D]id you agree to have sex with Derrick Johnson on December 14th?
A. No.
Q. Did you agree to have sex with him in exchange for crack cocaine?
A. No.
(Respondent's Exhibit 1 vol. III at 139-40) On cross-examination the complainant testified that during the rape she screamed loudly in an attempt to awaken her brother and that the assailant claimed to have her mother's gun. (Respondent's Exhibit 1 vol. III at 148-50)
The second witness was the complainant's older brother,3 who testified that he was awakened by the complainant's crying and by her talking to their grandmother on the telephone. The brother testified that, as he opened his bedroom door to enter the living room, he saw Johnson flee from the other side of the same door and out the front door. The brother stated that the living room was "junk[y]" (the videocassette recorder was on the floor, the sofa had been moved, and the cable box was unhooked) but that the room was not "junk[y]" when he went to bed. (Respondent's Exhibit 1 vol. III at 156-59) Although the brother failed during his testimony to identify Johnson as the intruder, he identified the person depicted in a photograph as the same person he saw in the doorway inside the residence the night of the incident.4 (Respondent's Exhibit 1 vol. III at 163)
The complainant's brother, who had previously admitted that he considered himself a "light sleeper," testified on cross-examination that he heard nothing until he was awakened by the complainant using the telephone in his bedroom. He also testified that the assailant, with whom the brother came face-to-face in the doorway of his bedroom, was about his same height, six feet and one inch.5 (Respondent's Exhibit 1 vol. III at 164-66)
The third witness was the complainant's grandmother. She testified that the complainant was crying and screaming on the telephone, "I've been raped." The grandmother called the police and departed for the complainant's residence. The grandmother testified that her daughter, the complainant's mother, is addicted to cocaine, which, the grandmother claims, has provided the grandmother sixteen years of experience observing the behavior of a drug addict, her daughter. So informed (and apparently thereby qualified to the trial court's satisfaction to render an...
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