Johnson v. State

• Decision Date: 10 February 1987
• Docket Number: 4 Div. 650
• Parties: Paul JOHNSON, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 877

502 So.2d 877

Paul JOHNSON, Jr. v. STATE.

4 Div. 650.

Court of Criminal Appeals of Alabama.

Feb. 10, 1987.

L. Joel Collins, Phenix City, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram and William D. Little, Asst. Attys. Gen., for appellee.

McMILLAN, Judge.

The appellant, Paul Johnson, Jr., was found guilty of capital murder and was sentenced to life in prison without parole.

Riley Turpin testified that approximately a week prior to the murder, the appellant had inquired as to the whereabouts of Ralph Sims, the victim, and stated, "I am looking for him because don't no son-of-a-bitch take no money from me or nothing else." The appellant further stated to Turpin, "I am going to kill him if I see him." Riley Turpin further testified that on the night of the murder he observed the appellant, Leon Carroll, and Sims leave the apartments in which Sims lived.

Sims's wife testified that she had seen him earlier on that same evening. She stated that he had left his apartment with intentions of going to a store and to his mother's house. Thereafter, she said both Riley Turpin and the appellant came by Sims's home looking for him.

Sims's mother testified that the appellant and Leon Carroll visited the home of Ernest Jones and attempted to purchase some .38 caliber bullets from Mr. Jones. Mr. Jones suggested that they go to the pawn shop.

Chris Morgan testified that the appellant came to his home around midnight on the night of the murder wanting to drink some liquor and watch television. He further testified that the next day the appellant returned and stated that he was in trouble because he had shot Sims. When Mr. Morgan attempted to refute the appellant's confession, the appellant stated "Yes, I did." Morgan testified that the appellant asked him to hold his pistol for him and keep it hidden; however, Mr. Morgan eventually turned the pistol over to the police.

A State's expert testified that in his opinion the bullet removed from the body of the deceased was also a .38 caliber bullet. The State also presented evidence that the tire tracks found at the scene of the offense matched those made by the appellant's vehicle. Additionally, the State presented evidence of footprints found and preserved at the scene which appeared to have been made by boots worn by Leon Carroll.

Officer Sue Carey of the Phenix City Police Department testified that the appellant was read his Miranda rights and that he chose to waive those rights. He stated that he knew nothing about the shooting and was not in Phenix City on the night in question. Thereafter, the appellant offered two different accounts of what happened on the night in question. The appellant, in a taped statement, claimed that on the night in question he gave Leon Carroll a gun belonging to the appellant. He stated that he went to Sims's home because Sims owed him money. After discussing the matter with Sims, he said he and Sims left Sims's home together. The appellant stated that Sims was giving directions and, when the car stopped, Leon Carroll and Sims got out of the car, walked a few yards away, and Leon Carroll then repeatedly shot the victim.

The State also presented the testimony of Deputy Sheriff B.J. Ammons, who stated that while bringing the appellant to court on one morning of the trial, he threw salt in Mr. Ammons's eyes and tried to escape.

I.

The appellant contends that the trial court erred in excluding from the jury panel any juror who was opposed to the death penalty. Several potential jurors were excluded from the venire by the trial court after being challenged for cause by the State because they indicated that they could not vote for the death penalty regardless of the evidence. The appellant's allegation is not based on the insufficiency of the venire members' statements under the doctrine of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1170, 20 L.Ed.2d 776 (1968) (which was later clarified in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Rather, the appellant argues that excluding the venire members denied him a fair trial. In Wainwright, the proper constitutional standard for exclusion was determined to be whether a prospective juror's views would prevent, or substantially impair, his performance as a juror in accordance with his instruction and his oath. Although the appellant in the present case claims that such a standard denies him his right to a "fair trial of his peers," such claim has been laid to rest by the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The United States Supreme Court has stated:

"The essence of a 'fair cross-section' claim is the systematic exclusion of 'a "distinctive" group in the community.' Duren [v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) ]. In our view, groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the 'Witherspoon -excludables' at issue here, are not 'distinctive groups' for fair cross-section purposes."

Lockhart v. McCree, supra, 476 U.S. 162, 106 S.Ct. at 1765.

The appellant also argues that because the trial court is the actual sentencing authority under the capital murder statute, the State has no interest in excluding venire members because of their inability to sentence a defendant to death. Under the Code of Alabama (1975), § 13A-5-46, in cases of capital offenses, the jury shall return an advisory verdict recommending a sentence. Although this advisory verdict is not binding upon the court, it is nevertheless to be given consideration under § 13A-5-47(e) of the Code of Alabama (1975). Furthermore, this court has held that "Witherspoon jurors, those irrevocably committed to vote against the death penalty, are appropriately dismissed to insure a fair and impartial jury." Callahan v. State, 471 So.2d 447, 453 (Ala.Cr.App.1983), reversed on other grounds, 471 So.2d 463 (Ala.1985). The jury plays a key role in the sentencing phase of a capital case, as is clear in the Alabama Supreme Court's discussion of the jury's role in such sentencing in Beck v. State, 396 So.2d 645, 662-63 (Ala.1980). The trial court's exclusion from the jury panel of jurors opposed to the death penalty was proper.

II.

The appellant argues that the trial court improperly overruled his challenge to the jury venire because of the systematic exclusion of blacks from the venire. Specifically, the appellant argues that the jury venire was unfair because it did not have the same percentage of blacks as the percentage of blacks in the population of Russell County, Alabama. In his motion, the appellant indicated that the jury venire was only 32 percent black, whereas the census figures indicated that the population of Russell County was 39 percent black. Thus, he makes no claim as to proportionality on the master list, but only as to the venire in his case.

"[A] defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Virginia v. Rives, 100 U.S. [10 Otto] 313, 322-23 ; Gibson v. Mississippi, 162 U.S. 565, [16 S.Ct. 904, 40 L.Ed. 1075]; Thomas v. Texas, 212 U.S. 278, 282 [29 S.Ct. 393, 394, 53 L.Ed. 512]; Cassell v. Texas, 339 U.S. 282 [70 S.Ct. 629, 94 L.Ed. 839]. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. 'Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.' Cassell v. Texas, 339 U.S. 282, 286-87 [70 S.Ct. 629, 631, 94 L.Ed. 839] (opinion of Mr. Justice Reed, announcing judgment). We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is underrepresented by as much as 10%. See Thomas v. Texas, 212 U.S. 278, 283 [29 S.Ct. 393, 394, 53 L.Ed. 512]; Akins v. Texas, 325 U.S. 398 [65 S.Ct. 1276, 89 L.Ed. 1692]; Cassell v. Texas, 339 U.S. 282 [70 S.Ct. 629, 94 L.Ed. 839]."

Swain v. Alabama, 380 U.S. 202, 208-09, 85 S.Ct. 824, 829-30, 13 L.Ed.2d 759 (1965), overruled on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See also Carter v. State, 53 Ala.App. 43, 297 So.2d 175, 180 (Ala.Cr.App.1974); White v. State, 48 Ala.App. 111, 262 So.2d 313, 318 (Ala.Cr.App.1972).

"The Constitution does not guarantee a defendant a proportionate number of his racial group on the jury panel or on the jury which tries him; it merely prohibits deliberate exclusion of an identifiable group from the juror selection process. ... Mere statistical disparity between the number of blacks presumed eligible for jury duty and the number actually included in the jury roll does not of itself establish a primary inference of invidious discrimination."

Smith v. State, 364 So.2d 1, 11 (Ala.Cr.App.1978), citing Swain v. Alabama, supra; Beecher v. State, 294 Ala. 674, 320 So.2d 727 (1975); Rainer v. State, 342 So.2d 1348 (Ala.Cr.App.1977).

III.

The appellant argues that he lacked effective assistance of trial counsel. He cites four instances to support this allegation.

In his brief, the appellant alleges that "[t]he first instance is...