Johnson v. State, 6 Div. 942

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TAYLOR
• Citation: Johnson v. State, 507 So.2d 1337 (Ala. Crim. App. 1985)
• Decision Date: 20 August 1985
• Docket Number: 6 Div. 942
• Parties: Anthony O'Hara JOHNSON v. STATE.

Page 1337

507 So.2d 1337

Anthony O'Hara JOHNSON v. STATE.

6 Div. 942.

Court of Criminal Appeals of Alabama.

Aug. 20, 1985.

Rehearing Denied Oct 22, 1985.

Carol J. Millican, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Anthony O'Hara Johnson was convicted by a Jefferson County jury of robbery in which the victim was intentionally killed, and sentenced to death. This court affirmed the conviction, Johnson v. State, 399 So.2d 859 (Ala.Cr.App.1979). However, the Supreme Court of Alabama affirmed in part, reversed in part, and remanded with directions requiring a new sentencing hearing. Johnson v. State, 399 So.2d 873 (Ala.1979). The conviction was then reversed and the case remanded upon the authority of Beck v. State, 396 So.2d 645 (Ala.1980). Johnson v. State, 399 So.2d 875 (Ala.Cr.App.1981). Johnson was retried, reconvicted, and resentenced to death, and is now before us on appeal from that conviction and sentence.

The trial judge made written findings of fact ^* which we find to be correct. No defense was offered. The trial judge found:

"That the victim, William Albert Farmer, owned and operated a jewelry store operated at 1902 First Avenue, North, Birmingham, Jefferson County, Alabama, and it was at this location that the robbery took place. Just before the robbery, the defendant and his companion went into the store next door, where a record player and stereo were being played and asked the clerk to turn the volume of the music up. This request was made by the defendant, Anthony O'Hara Johnson. Very shortly thereafter, the defendant and his companion proceeded into Farmer Jewelry Store, and robbed and killed Mr. Farmer, and ransacked the jewelry store of watches, rings, and other items of Jewelry. The companion proceeded out on the sidewalk and offered the occupant of an automobile, which was parked at the curb, ten dollars to drive him and his friend away from the location, and the occupants of the automobile refused and left. There was a witness there on the sidewalk, who was talking to the occupants of the automobile who heard and reported the conversation. She saw the defendant then come out of the store and proceed behind his companion who had walked around the corner and was boarding a bus. The defendant also boarded the bus, which proceeded North on 19th Street. The witness on the sidewalk summoned a policeman who appeared nearby on a three- wheel motorcycle, who came to the scene and put out a police call, which resulted in the bus being stopped and the defendant being removed from the bus. The proceeds of the robbery were found nearby on the bus, and they, as well as the gun, were recovered by the police. There was a witness seated on the bus who identified the defendant as the man who sat in a particular seat with the two bags of loot under his arm and who reported the conversation between the defendant and his companion wherein the defendant suggested that the companion put his arm over the bags so that no one could see what was in the bags. One of the bags had one or more holes in it, and the contents were visible through the holes in the bag.

"This witness further reported that the companion had a billfold and was counting money in the billfold, and was instructed by the defendant not to be counting the money until they [got] where they are going.

"A billford with the victim's identification, as well as driver's license, [was] found in the two bags of loot. When the police stopped the bus some six blocks north of the scene of the robbery, the defendant and his companion moved to the rear seat in the bus, leaving the bags of loot unattended, where the defendant had originally kept them. When the police boarded the bus, asking questions generally as to who had the bags of loot, no one would reply, but from the direction of the eyes of people seated thereby, as well as the fact that the defendant was perspiring heavily, the officer was led to arrest the defendant. His companion was not apprehended.

"The scene of the robbery was properly secured by the police, and was turned over to the evidence technicians who made pictures and lifted a number of fingerprints from the jewelry store, which were found to be the fingerprints of the defendant. The body of William Albert Farmer was lying on the floor. He was lying on his stomach on the right side of his face. His right arm was doubled back under his head as if he were using it as a pillow. His left arm was in a raised position, joining the right hand with the hand and fingers of the left hand lying over the right hand. His hands were placed in such a manner as to appear as if he had been using his right hand as a partial pillow. There was a .22 caliber bullet wound in the center of the back of his neck at the base of the brain.

"An autopsy was performed and the fragments of the bullet were removed and were examined by the Department of Forensic Sciences, but were not sufficient on which to base a ballistics comparison with the gun found in the bag with the loot which had been in the possession of the defendant."

I

On appeal, Johnson first contends that the admission into evidence of state's exhibit "EE", a fingerprint record card, and reference to state's exhibit "CC", a photograph of Johnson, although not objected to, constitute plain error. Rule 45A states:

"SCOPE OF REVIEW IN DEATH CASES"

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

State's exhibit "EE" was a police fingerprint card. On the front of the card are the name of the appellant Johnson, a series of police numbers and an FBI number, the fingerprints themselves, and the signature of the taker of the impressions, and the date taken. The reverse side of the fingerprint card contains the name of the appellant, his signature, the offense charged at the time the fingerprints were taken, a description, and other information. Also on the back of the card is a list of dates of arrests. The arrest list shows an arrest for burglary in 1977 followed by a release, an arrest for burglary and grand larceny in 1977 followed by a release, an arrest in 1978 for grand larceny from a person followed by a release, and the present charge of murder in 1978 followed by a delivery to the sheriff's office. The card also shows the original arrest in 1973 for robbery followed by a delivery to the sheriff's office.

The first witness called to establish the fingerprint identification was Jack T. Brand, a policeman and former fingerprint officer in the city jail. He testified that one of his duties at the city jail was to take inked fingerprints, and he described the procedure. He was questioned regarding whether he signed the fingerprint card and whether the person whose fingerprints were taken signed the cards, to both of which questions he answered in the affirmative. Another card marked as state's exhibit "DD" contained the palm prints of appellant Johnson. Brand identified Mr. Johnson as the person whose picture appeared in state's exhibit "CC" for identification, which he testified was taken at the same time as the fingerprint cards were made; the photo and the print cards were all assigned the same identification number at the same time. He testified that the prints were made in the ordinary course of business of fingerprinting people at the Birmingham City Jail and were kept by the Birmingham Police Department in its Identification Bureau.

Sandra Tiplett, a fingerprint technician, testified to her qualifications, including employment with the Federal Bureau of Investigation in Washington. She proceeded to use a blackboard to explain in some detail the science of identification by fingerprint. There were then offered for identification state's exhibits "V", "W", "X", "Y", "Z", "AA", and "BB", all latent impressions on "lifts" from Farmer's Jewelry Store. She compared state's "DD" and "EE" with the latent impressions reflected by the other referenced exhibits, and found the prints to be of the same person. The latent print exhibits were received into evidence.

Then the state offered photocopies of exhibits "DD" and "EE" so that "the master print cards could be kept in the files of the Birmingham Police Department." The following ensued:

"THE COURT: Okay, without objection, they're in.

"MR. STRIPLING: Your Honor, may we approach the bench?

(Attorneys approach bench for side bar).

"MR. CAHILL: (Continuing). I will ask you, Sandy, does State's Exhibit "DD" for identification, a copy, appear to be substantially the same as the original that you keep in your files at the Birmingham Police Department?

"A: Yes, sir.

"Q: Okay, and State's Exhibit "EE" for identification, does that appear to be a copy of the inked prints that you keep in your files at Birmingham Police Department?

"A: Yes, sir.

"MR. CAHILL: Okay, and then we would offer "EE" and "DD", substitutes into evidence at this time.

"THE COURT: Okay, mark them as in."

The case then proceeded with the introduction of evidence regarding evidence collection.

State's exhibit "CC" for identification was never offered into evidence. It is argued by appellant Johnson that the exhibit was a "mug shot" taken while he was in jail. However, it does not appear that the jury ever saw state's exhibit "CC", and that "CC" was used for purposes of securing the testimony of the fingerprint officer that "CC" was assigned the same number as "DD" and "EE" and that they were of appellant Johnson. The objections to receiving a mug shot into evidence are that the photograph suggests that the subject was in custody at the time the photograph...