Johnson v. State, 3 Div. 340

• Court: Alabama Court of Criminal Appeals
• Citation: 335 So.2d 663
• Docket Number: 3 Div. 340
• Parties: Oscar Lee JOHNSON v. STATE.
• Decision Date: 18 May 1976

Page 663

335 So.2d 663

Oscar Lee JOHNSON v. STATE.

3 Div. 340.

Court of Criminal Appeals of Alabama.

May 18, 1976.

Rehearing Denied June 15, 1976.

William M. Dawson, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Second degree murder; sentence: thirty-one years.

The homicide in question took place at Atmore State Prison on January 18, 1974. It occurred during a prison riot, which inmates termed a 'revolution.' The victim Officer Luell Barrow, was held as a hostage by rioting prisoners in the prison's segregation unit. Appellant was tried for murder in the first degree on February 10, 1975, and on February 12, the jury returned the above verdict and punishment.

Other inmates have also been tried as a result of the riot, assaults and the killing. Johnny Harris, a key participant, was convicted of first degree murder pursuant to Title 14, § 319, Code of Alabama 1940, and sentenced to death. His conviction was affirmed by this Court on January 20, 1976, and is now pending in the Alabama Supreme Court on automatic appeal. Harris v. State, Ala.App.

The first witness for the State, Nelson E. Grubbs, a State Toxicologist, testified as to his post mortem examination on the body of Luell Barrow on January 19, 1974, at a funeral home in Escambia County. He stated that Barrow had five stab wounds on the head and a total of twenty-seven stab wounds. Dr. Grubbs testified that death was caused by stab wounds, inflicted by a long sharp instrument, possibly a knife some twelve to fourteen inches long. Dr. Grubbs stated, 'In my opinion, death would have resulted immediately because the heart was cut almost into two pieces.'

The next witness called was Marion Harding, warden at the then Atmore State Prison (since renamed). He stated that he was notified by radio around 3:30 on the afternoon of January 18, 1974, that the inmates in segregation had taken two correctional officers hostage. When he got to the window inside the unit, he was informed that inmate George Dobbins was requesting to talk to him. Warden Harding testified that the following took place:

'A. When the cardboard was removed and I saw, I asked George Dobbins who was standing at the window along with Oscar Johnson, I asked . . . Dobbins what his problem was. He stated to me he didn't have a problem, that I had a problem. That they were not bitching about the food nor the conditions of the prison, that this is a revolution and the revolution is on.

'Q. When you saw these inmates would you tell the jury whether or not they were armed at the time you saw them.

'A. They were armed. Inmate Dobbins had a prison-made knife, inmate Heard had what appeared to be one of the Officers' night sticks, Oscar Johnson had a prison-made knife and inmate Moore had a prison-made knife.'

After this, inmate Johnson, the appellant, started hitting a knife against the windowpane and said, 'This is no game. We mean business and we are ready and willing to die but we are going to kill some of these mother-$ $ pigs before we do.' Inmate Dobbins then stated that they wanted to see the Governor's Aide, the Commissioner, Sister Patricia, Sister Williams, Harold Martin and 'a black dude that is a representative.' Harding said the inmates demanded those people there within five minutes, and that when he told them it was impossible, Dobbins said he knew that it was before he asked it. Dobbins then told Harding, 'Just to show you we mean business and we are not joking, we are going to bring up some people that we have already killed. We have already killed some houseniggers and snitches and we are going to show you who they are.' Harding stated that he saw two inmates brought up and 'that they were mutilated or they had blood all over them.'

Warden Harding also testified that he saw the appellant holding a knife at the throat of Officer Dreadin just before the inmates put the piece of cardboard or cloth back over the window. Then the following occurred:

'I asked Dobbins could we talk some more. He said, 'Man, we are through talking. We are not talking anymore.' And someone back in here, some several people talking, says, 'Quit talking to the man. Let's get started and get on with what we are supposed to be doing; this is a revolution, man, let's go on and do what we are supposed to be doing.'

'Q. What happened then?

'A. Dobbins called back and said, 'Bring up one of them mother---- pigs and let's show the man we mean business.'

'Q. What happened then?

'A. I heard a commotion back in here and then I heard Officer Dreadin yell and say, 'Come in and get me. They have killed one of us and they are killing me now.' At that time he appeared here at the door and I saw Frank Moore stab him as he fell through the door and George Dobbins stabbed him as he come through the door and he fell into the lobby. And George went back this way and we started in after them.'

After the Warden and his guards entered, he stated that he saw the appellant, Oscar Lee Johnson, and inmate Johnny Harris leave the Number One cell, the cell where Officer Barrow's body was found.

Jewell F. Thomas, an inmate, testified that he was 'hall flunky' with duties similar to a janitor and that the appellant and Johnny Harris were the other two 'hall flunkies.' Thomas testified that he was in the lobby when he heard someone yell, 'This is a revolution.' Someone also yelled to inmate Robert York, 'This is a revolution--Do you want your cell open,' and York said, 'Yes.' Thomas testified that he (Thomas) was stabbed twenty-two times. He was stabbed first by Dobbins and then Johnnie Wilson, Grover McCorvey, Charles Beasley, Oscar Johnson and Johnny Harris came in and attempted to 'cut him up.' However, he testified that he could not say which of them was actually cutting him. Sometime later Dobbins instructed California Richie to finish Thomas off and Richie also stabbed him. Jewell Thomas testified that during the riot he saw the appellant and Grover McCorvey pass by his cell at separate intervals, each carrying a bloody knife.

The next State witness was Bruce Etheridge, a correctional officer, who testified as to the help he rendered in removing Officer Barrow from the lock-up area of the prison and getting him into an ambulance. He testified that Barrow was covered with blood and that he stopped breathing during the drive to the hospital in Atmore. Etheridge saw none of the disturbance on the day in question as he arrived on the scene as order was being restored.

Arthur Dreadin, a correctional officer, testified that he was captured and taken hostage along with Officer Luell Barrow. The following appears in the record in regard to the taking of the two guards as hostage:

'A. And we had already fed supper and was taking up the trays from the inmates and so Johnny Harris and Oscar Johnson, Johnny Harris come out first with a pick and he put it to my back and said not to say anything. And Oscar Johnson had a knife around Mr. Barrow's neck, throat, and told us not to say nare word; did, they was going to kill us. We did not say nothing. They taken our keys, pocket book, watches and pocket knife, all our personal belongings we had on us and then they carried us over on Number Two side, on Number One.'

Dreadin testified that the appellant appeared to be one of the six ringleaders. He also stated that the inmates said that the revolution was, 'taking over and that they was going to cut our heads off and . . . and roll them down the hall.' Dreadin testified that he and Barrow were taken to cell Number One in the following manner:

'Q. With these four persons. Where were you standing?

'A. Standing right in the door. Frank X. Moore was standing in the hall right ahead of me and just kept punching his knife at me and he said he wasn't going to cut me, he just practicing, just kept doing that.

'Q. Harris, Moore, McCorvey and this Defendant were behind you in the cell with Barrow?

'A. Yes.

'Q. Did you say anything at this time?

'A. No, I didn't.

'Q. Did you see Mr. Barrow at this time?

'A. I could just see him, just part of him. And so they taken--I saw him. He grunted, groaned like.

'Q. Did any of these inmates have weapons?

'A. They all had knives.

'Q. What kind of knives were they?

'A. Prison-made knives.

'Q. Did you hear Mr. Barrow say anything while he was behind you in the cell?

'A. He said 'uhh, uhh,' something like that. I saw him going down. I knowed what was happening so I run and Frank Moore was standing right at me. That is when he went to cutting me, stabbing me. I got to the door and that is about as far as I know.

'Q. Did you say anything?

'A. All I done I hollered for them to come on, get us. 'They done killed Mr. Barrow and they cutting me.''

At the close of Officer Dreadin's testimony, the State rested its case. A motion to exclude the State's evidence was overruled, and the defense called its first witness.

William Boyd testified as to the atmosphere existing at Atmore on January 18, 1974. When the defense sought to elicit testimony concerning an unrelated incident at an earlier date with Warden Harding and concerning conditions at the prison, the court held such to be irrelevant and immaterial. It was shown that the witness was not in the segregation unit on January 18, 1974.

Paul Echols testified next for the defense that he was in the segregation unit on January 18, 1974, and testified to the conditions present at the time of the incident. He also testified that he never saw the appellant stab anyone and that Dobbins appeared to be the only leader. Echols stated that he and the rioters were beaten after the quelling of the 'rebellion,' as he termed it, and that he had been threatened three times by guards seeking to keep him from testifying.

Claude Harris, Jr., testified that he was also in the unit on the day in question and that he had been there for twenty-one days. He, too, described conditions at Atmore Prison. He...