Johnson v. Nix

• Decision Date: 03 June 1985
• Docket Number: No. 84-1698,84-1698
• Citation: 763 F.2d 344
• Parties: Kevin Richard JOHNSON, Appellant, v. Crispus C. NIX, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 344

763 F.2d 344

Kevin Richard JOHNSON, Appellant, v. Crispus C. NIX, Appellee.

No. 84-1698.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 14, 1984.

Decided June 3, 1985.

Robert A. Wright, Jr., Des Moines, Iowa, for appellant.

Thomas D. McGrane, Des Moines, Iowa, for appellee.

Before HEANEY, ROSS and FAGG, Circuit Judges.

FAGG, Circuit Judge.

Following a nonjury trial, Kevin Johnson was convicted of the first degree murder of his infant son, Kevin, Jr. His conviction was affirmed by the Iowa Supreme Court, State v. Johnson, 318 N.W.2d 417 (Iowa 1982). Johnson subsequently filed a habeas corpus petition under 28 U.S.C. Sec. 2254. In his petition, Johnson asserts that incriminating statements made by him and admitted into evidence were made in violation of his fifth and sixth amendment right to counsel and thus should have been suppressed. Johnson also asserts that pervasive media coverage surrounding his case denied him of his right to an impartial jury and a fair trial. The district court denied his petition. We affirm.

As an initial matter, we note that this court, in reviewing Johnson's state court conviction, must accord state court findings of fact a "high measure of deference," Sumner v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982); Graham v. Solem, 728 F.2d 1533, 1540 (8th Cir.1984), and may not set aside a state court's findings of fact unless we can reasonably conclude "that the state court findings lacked even 'fair[ ] support[ ]' in the record," Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983); 28 U.S.C. Sec. 2254(d)(8). Keeping this principle in mind, we briefly set out the facts relevant to Johnson's appeal as found by the Iowa Supreme Court. These facts are "fairly supported," 28 U.S.C. Sec. 2254(d)(8), by the record, and thus we defer to the findings of the state court. Sumner, 455 U.S. at 597, 102 S.Ct. at 1306; Graham, 728 F.2d at 1540.

On July 16, 1980, after Johnson's wife reported the unexplained absence of their son to the police, Kevin Johnson was arrested and charged with the abandonment of a dependent person. Johnson, 318 N.W.2d at 420. Prior to interviewing Johnson concerning the disappearance of his son, police officers identified themselves and read Johnson his Miranda rights from a standard police department form. Johnson himself then read this form and signed a waiver stating that he understood these rights and was willing to waive them and make a statement. Id. at 427-28.

Shortly after the officers began questioning Johnson, they were informed that Johnson's lawyer was on the telephone and wished to speak to Johnson. At this point, the officers immediately terminated the interview. As the officers were leaving the room, however, Johnson placed his hand over the telephone receiver and told one of the officers "to get back to him to let him know what he found out." Id. at 428.

Over the course of the next few hours, police officials learned from Johnson's wife that the infant child was dead and had been buried in a wooded area behind the Johnson residence. Id. After an unsuccessful attempt to locate the child's grave, the police officer who Johnson had requested tell him about any new developments and the county attorney went to the county jail to speak to Johnson. Id. Upon entering the interview room, the police officer told Johnson that they had uncovered some new information about Johnson's son. Before speaking to Johnson, however, the officer advised Johnson that he had the same rights as before and could remain silent if he chose to do so. At that point, Johnson asked whether he should have his lawyer present. While the officer told Johnson that the decision was up to him, the county attorney specifically told Johnson that "it would be in his best interest to have a lawyer there and if it were me, I'd have one there." Id. at 428-30.

Despite being made fully aware of his right to have an attorney present, Johnson asked the officer where his wife was. The officer told Johnson that his wife was in the building making a statement and that from her they had learned that the infant was dead and had been buried. Johnson then stated that he would talk about burying the baby but would not discuss how the baby died. Id. at 428-29. Over the course of the next hour to hour and a half, Johnson made a number of incriminating statements that were subsequently admitted into evidence at his trial. During this second interview, Johnson at no time requested a lawyer, invoked his right to remain silent, or told the county attorney or the police officer that he had been advised by his lawyer not to discuss the case with anyone. Id. at 429, 436.

In his petition for writ of habeas corpus, Johnson contends that the state trial court should have excluded the statements made by him at the second interview and that the court's failure to do so violated his fifth and sixth amendment right to counsel. With respect to Johnson's fifth amendment right, the Iowa Supreme Court found that Johnson had been "adequately informed of his Miranda rights and that he voluntarily, knowingly, and intelligently waived [these rights]." Id. at 431. The Iowa Supreme Court reached a similar conclusion with respect to Johnson's sixth amendment right. The court concluded that while Johnson's sixth amendment right to counsel had attached at the time of the second conversation, id. at 435, the government had sustained its heavy burden of demonstrating, consistent with the mandate of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), that Johnson had understood his right to retain counsel and had intentionally relinquished that right. Johnson, 318 N.W.2d at 437; see Brewer, 430 U.S. at 404, 97 S.Ct. at 1242. The court also found that, although Johnson had received accurate advice concerning his right to remain silent and his right to have a lawyer present, Johnson himself initiated the conversation in an attempt to ascertain what had been discovered. Johnson, 318 N.W.2d at 436; see Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981), and Shea v. Louisiana, --- U.S. ----, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985).

Although we believe the conclusions advanced by the Iowa Supreme Court are constitutionally correct and are fully supported by the record, we find it unnecessary to address the merits of Johnson's fifth and sixth amendment claims. Based on our own independent and thorough review of the record as a whole, we conclude that even if it was error to admit the challenged statements, this error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). We reach this conclusion for two reasons. First, separate and apart from the statements challenged by Johnson, the evidence presented at trial overwhelmingly established Johnson's responsibility for the infant's death. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969). This evidence convincingly reveals that from the beginning of his tragically short life, Johnson's infant son was systematically and deliberately subjected to a litany of abuse and torture. Johnson, 318 N.W.2d at 437-38. And, while it does appear that Johnson's wife played some role in the abuse, it is also clear that Johnson himself was primarily responsible for and the instigator of this sadistic abuse. The evidence is also uncontradicted that Johnson felt his son was a "creep" and that Johnson "wanted him dead." See, e.g., Trial Transcript at 324. Finally, although defense counsel nobly attempted to discredit Mrs. Johnson's testimony, the evidence shows that on June 29, 1980, Johnson's wish to have his son dead was realized when, with two severe blows, he killed his son by essentially crushing his head.

Second, the statements made by Johnson concerning his son's burial, although certainly relevant, were largely cumulative of his wife's uncontradicted testimony concerning the child's burial. During her testimony, Mrs. Johnson precisely and clearly related the details of her son's burial, including substantial testimony of Johnson's involvement. Defense counsel, while attacking Mrs. Johnson on a number of fronts, made virtually no attempt to discredit or contradict her testimony concerning the burial and Johnson's involvement in it. Given the overwhelming independent evidence of Johnson's guilt and the cumulative nature of the challenged statements, we conclude that any error committed by the trial court in admitting these statements was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828.

Johnson next argues that the trial court's refusal to grant his motion for a pre-voir dire change of venue denied him of his right to an impartial jury and to a fair trial. Johnson cannot demonstrate that potential jurors were actually prejudiced because he waived jury trial before conducting...