Johnson v. State

• Court: Georgia Supreme Court
• Writing for the Court: Lewis R. Slaton, Dist. Atty., Joyce Banks; BELL; All the Justices concur, except GREGORY
• Citation: Johnson v. State, 254 Ga. 591, 331 S.E.2d 578 (Ga. 1985)
• Decision Date: 03 July 1985
• Docket Number: Nos. 41813-41815,s. 41813-41815
• Parties: JOHNSON v. The STATE. SMITH v. The STATE. JOHNSON v. The STATE.

Page 578

331 S.E.2d 578

254 Ga. 591

JOHNSON v. The STATE.

SMITH v. The STATE.

JOHNSON v. The STATE.

Nos. 41813-41815.

Supreme Court of Georgia.

July 3, 1985.

As Amended July 10, 1985.

Joseph W. Gudelsky, Atlanta (Court Appointed), for William johnson.

Lewis R. Slaton, Dist. Atty., Joyce Banks, J. Drolet, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Atlanta, for the State.

Michael Edward Bergin, Fairburn, for Donnie James Smith.

Kenneth D. Feldman, Atlanta, for Holly Dawn Johnson.

BELL, Justice.

William "Bill" Augustos Johnson, Holly Dawn Johnson, a/k/a Weiss, a/k/a Henderson, and Donnie James Smith were jointly indicted for various offenses connected with the death of James "Jim" Edward Henderson, who was Holly's former husband (they divorced in 1980) and the consanguineous uncle of Donnie. In Count 1 of the indictment they were charged with aggravated assault; in Count 2 with kidnapping; in Count 3, with malice murder; and Count 4, with concealing the death of another. They were jointly tried, and were convicted of certain offenses. Each appeals. ¹ For convenience we will summarize the facts of this case, then separately discuss each appellant's enumerations.

In June 1983 Holly and Bill were living in Illinois. Holly was employed in a dog grooming business owned by Catherine Pollard. Pollard lived in an apartment, to which there were two keys. Pollard had one, and Holly had the other. Pollard testified that she kept a 9mm pistol in her bedroom. On June 19, 1983, she discovered the gun was missing, although there was no sign of forced entry to the apartment.

According to William Johnson, he and Holly decided to move from Illinois to Atlanta in response to repeated business offers from Jim Henderson. Bill testified that Henderson told them that if they worked 30 days for the family business, Carpet Cleaners of Georgia, he would let them have their own franchise. On June 20, 1983, Holly and Bill wed. They drove to Florida for a honeymoon, with the 9mm pistol hidden in the trunk of Holly's Volkswagen. While in Florida the couple argued, and Holly left the state without Bill. She drove to Atlanta, then returned to Florida with Donnie and Jim in an unsuccessful attempt to find Bill. Henderson, who had found the 9mm pistol in Holly's car, left the party and returned to Georgia, sending the gun ahead by bus. Bill eventually made his separate way to Atlanta.

The capital for Carpet Cleaners of Georgia was provided by Henderson's mother, Margaret Henderson, and the business was owned by Robert Mairs, Donnie's stepfather. Henderson's nephews, brothers Ronnie and appellant Donnie Smith, were also intermittently employed in the business. Henderson apparently did not get along well with Donnie, Bill, or Holly. Umeko Sugimura Glass, Henderson's fiancee, testified that Henderson told her he had problems working with his nephews. Another witness, Rodney Emlet, said that Donnie came to Emlet's house about three weeks before the killing. Donnie, according to Emlet, was very upset, and told him that Henderson had just run him out of a house with a weapon. Donnie also told Emlet that he was going to kill Henderson.

Ronnie Smith testified that sometime after Holly came to Atlanta, she told him that Ronnie ought to kill Henderson and take his body to Florida, and then help her run the carpet business.

Bill, Holly, and Donnie's grievances eventually focused on two points of dispute. One was that Jim had given Umeko one of Holly's diamond rings, and Holly wanted it back. The second was that, according to appellants, Jim had retained possession of the 9mm pistol, and was blackmailing Holly and Bill by threatening to report its theft and send Holly (who had a criminal record) back to prison.

The deceased spent the night of September 19-20, 1983, at Umeko Glass' house. She testified that early the next morning Bill came to the house, and drove away with Jim in Jim's Mustang. Although Glass did not observe him, Donnie had accompanied Bill to her house. The three men drove to Holly and Bill's apartment, which Carpet Cleaners was paying for as a company perquisite. After they arrived, Jim was tied, severely beaten, and menaced with a .22 caliber rifle in an effort to force him to agree to return the ring and disclose the location of the gun. He told the appellants that the gun was buried at the Mairs residence. According to Donnie, he checked the house three times, but couldn't find the gun. Finally, the three appellants drove Jim to the house and searched for the gun, but with no success. According to Donnie, he and Bill put Jim in the back of the Mustang and drove around for a time, with Donnie driving and Bill, sitting in the front passenger seat, trying to coerce Henderson into revealing the information they sought. Donnie said that Bill fired the .22 rifle through the window of the Mustang to frighten Jim, leaving a hole in the window, then fired the gun past Jim in the direction of the trunk, creating a dent in the car's sheetmetal. He finally shot Jim twice in the head. According to Donnie, the two men dumped the body in some woods and returned to the Riverdale Road apartment. He and Bill returned and attempted to bury the body, but found the task too difficult and gave up the attempt. Holly and Bill then left town in Holly's Volkswagen.

After Holly and Bill left, Donnie used the Mustang to retrieve Jim's body, placing it in the trunk. Later, he broke out the left side rear window of the Mustang because he did not want anyone to see the bullet hole, and hammered out the dent from the ricocheting bullet. He made arrangements through his attorney to surrender to the police, and on the evening of September 22-23, 1983, turned over the Mustang and the body to Fulton County police. Holly and Bill were subsequently apprehended in Hernando, Mississippi. A bloodstained washrag was discovered on the floor of their vehicle. According to police, Bill volunteered that the stain had been deposited when Holly used the rag to clean up blood from her menstrual period.

Dr. Saleh Zaki, chief medical examiner for Fulton County, performed the autopsy. He testified that the body exhibited multiple bruises and abrasions resulting from blunt trauma. The cause of death was two contact or near-contact bullet wounds to the face, either of which would have been fatal. Dr. Zaki opined that the bullets had traveled through the head from front to back, at a slight upward inclination.

Dr. Kelly Fite, chief firearms examiner with the Division of Forensic Sciences (formerly the State Crime Lab), testified that a mutilated lead fragment recovered from Henderson's head was a portion of a .22 caliber bullet, and that other lead fragments recovered from his head were consistent with .22 caliber bullets. A mutilated lead bullet had been recovered from the Mustang's trunk, and Fite and Robert Clemensen, a microanalyst with the Division of Forensic Sciences, testified that tests on the car produced results consistent with the shot being fired from the inside right front of the car to the left rear, and ricocheting into the trunk. Forensic serologists from the Division of Forensic Services testified that bloodstains recovered from the Mustang and the washrag found in Holly's Volkswagen were consistent with the victim's blood. The bloodstain on the washrag was inconsistent with Holly's blood.

Joanne Stoner of the Israel Pawn Shop, in Atlanta, testified that on the morning of September 21, 1983, Bill and Holly were her first customers. They pawned a color TV and carpet cleaning equipment, for which they received $200.

After their arrests all three defendants gave statements to the police which were introduced against them at trial. In addition, all three testified in their own defense. In essence, Donnie tried to place the blame for the murder on Bill and Holly, claiming that his participation in the events surrounding the killing was coerced. He claimed that, although he had known when he and Bill picked up Jim that Holly and Bill were going to attempt to force Jim to return the ring and gun, they had told him Jim would not be harmed, and he did not know otherwise until Bill and Holly began to beat Jim at the apartment. He admitted he helped to subdue and tie up Jim at the apartment, but claimed he did it to help the victim avoid an even more severe beating from Bill and Holly. He asserted that he went along with the murder because he was afraid Bill would kill him if he didn't, and for the same reason delayed reporting Jim's death to the police.

Bill swore that Donnie was responsible for Jim's death--he said he last saw Jim alive driving away from the apartment in his car with Donnie. He claimed that Jim had given him the carpet cleaning equipment. Holly admitted having been present when Jim was beaten and tied, but denied having participated in the beating or conspired to kill him.

41813. William Johnson

1. William Johnson does not raise the general grounds. However, we nevertheless have reviewed the record, and we find that the evidence was sufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Johnson raises a single enumeration of error, which concerns the testimony of Frank Magbanua. Magbanua had been Donnie's cellmate in the Fulton County jail. At trial Bill called Magbanua as a witness. He testified that Donnie had talked with him and admitted the murder of Henderson, but had said he "was gonna place the blame on some dude down the hall," presumably Bill Johnson. He also told Magbanua that "he was going to play crazy." On cross-examination Magbanua admitted that he was currently in prison on a bank robbery conviction. The district attorney questioned him about portions of two psychiatric reports on his mental condition, and subsequently introduced the reports into evidence....