Johnson v. State

• Decision Date: 22 May 1979
• Docket Number: 6 Div. 915
• Citation: 399 So.2d 859
• Parties: Anthony O'Hara JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 859

399 So.2d 859

Anthony O'Hara JOHNSON v. STATE.

6 Div. 915.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Rehearing Denied June 26, 1979.

Robert W. Gwin, Jr., Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The defendant was indicted and convicted under the Alabama Death Penalty Act for robbery when the victim is intentionally killed. Alabama Code Section 13-11-2(a)(2) (1975). Punishment was fixed at death by electrocution. Both at trial and on appeal the defendant is represented by court appointed counsel.

In sentencing the defendant the trial judge made written findings of fact from the trial. Those findings are correct and accurately state the evidence introduced against the defendant. There was no defense presented. The trial judge found "The indictment in this case charges the defendant, Anthony O'Hara Johnson, with having committed a robbery wherein William Albert Farmer was the victim, and with having intentionally killed William Albert Farmer in the course of this robbery. The evidence taken on the trial of this case showed that the defendant, who was twenty years old at the time of the robbery, and a companion, who was twenty-four years old at the time of the robbery, had robbed William Albert Farmer on March 30, 1978, in downtown Birmingham and killed him.

"William Albert Farmer owned and operated a jewelry store located 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 music up. This request was made by the defendant.

"Very shortly thereafter, the defendant and his companion proceeded into the 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 that 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 removed from the bus. The proceeds of the robbery were found nearby, on the bus, and they, as well as the gun, were removed 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 companion suggested that the defendant put his arm over the bags so that no one could see what they had. One of the bags had one or more holes in it. 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 were going.

"A billfold with the victim's identification, as well as driver's license, were 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 jumped up and ran to a seat in the back of 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 the people seated nearby, 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 within the jewelry store, which were found to be the fingerprints of the defendant.

"The body of William Albert Farmer was laying on the floor. He was lying on his stomach and on the right side of his face. His right arm was doubled back under his head as if he was using it for 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 twenty-two caliber bullet wound in the center of the back of his neck at the base of the brain.

"An autopsy was performed and fragments of the bullet were removed and were examined by the toxicologist, 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

Initially, the defendant maintains that from the record it cannot be determined whether he was tried in accordance with Alabama Code Section 13-11-8 (1975). That statute dictates the requirements for appointed counsel in death cases and reads as follows:

"Each person indicted for an offense punishable under the provision of this chapter who is not able to afford legal counsel must be provided with court appointed counsel having no less than five years' prior experience in the active practice of criminal law."

Nowhere in the record or in the defendant's brief on appeal is it alleged that his counsel was not qualified. The defendant simply contends that the record does not prove or show he was qualified, and that absent such proof his conviction cannot stand. We disagree.

The record discloses that the trial judge determined that the appointed counsel, Hon. Robert W. Gwin, Jr., was qualified to represent the defendant.

"THE COURT: ... He (Gwin) complies, both in experience and ability, as well as legally and technically with the requirements for such a representation.

"So, I am going to ask Mr. Gwin to accept that appointment.

"I have discussed it with you. Squire, and I understand that you are willing to take this appointment, is that correct?

"MR. GWIN: Yes, sir.

"THE COURT: So, the Court does, at this point, rule the defendant to be indigent, under the circumstances, and appoints Mr. Gwin." (Emphasis added).

The language of the statute does not require the record to show that appointed counsel has at least five years' prior experience in the active practice of criminal law; it simply requires that the indigent accused be provided such counsel. Alabama Code Section 13-11-8 (1975). That the defendant in this matter was, in fact, provided with counsel meeting the statutory requirements is not questioned. Absent some tangible indication that the requirements of the statute were not met this Court cannot summarily rule, as a matter of law, that the statute was not complied with. Though not controlling, we deem it significant that appellate counsel was the defendant's appointed trial counsel.

This Court remanded the case of Jacobs v. State, 371 So.2d 429, Ala.Cr.App., (1977) for an evidentiary hearing to determine whether appointed counsel met the statutory requirements for appointed counsel in a death case. There appointed counsel testified on motion for new trial that he was not qualified. Those facts and that issue are not presented in this case.

II

The defendant next alleges the trial court erred to reversal by admitting at the sentencing hearing, over objection, the grand jury testimony of Sergeant Howard Felts and Marie Merrill, the victim of a prior robbery committed by the defendant. The defendant further objected to certain portions of Sergeant Felts' testimony at the hearing concerning what Mrs. Merrill had told him about the facts of the prior robbery. The defendant submits that both the grand jury testimony and Sergeant Felts' testimony relative to what Mrs. Merrill said concerning the past offense are violative of the hearsay rule. He further contends that the State did not show Mrs. Merrill's unavailability to appear at the hearing as a witness and maintains that his opportunity for cross examination was thwarted.

Basically, the evidence elicited at the sentencing hearing revealed that the prior robbery had been conducted in a similar manner to the present offense. The defendant, along with two others, entered the Spidel Gem Company, a jewelry store in downtown Birmingham, at 1:15 P.M. on October 23, 1973, and robbed Mrs. Merrill of assorted costume jewelry and rings. During the course of that robbery the defendant shot Mrs. Merrill in the head; however, she survived the wound. Sergeant Felts stated that Mrs. Merrill later "looked at him (defendant) and stated that he was the one that had had the gun and the one that did the shooting".

Alabama Code Section 13-11-3 (1975) defines what evidence is admissible at the sentencing hearing to aid the court in determining whether to sentence the defendant to death or to life imprisonment without parole. In pertinent part it reads:

"In the hearing, evidence may be presented as to any matter that the court deems relevant to sentence and shall include any matters relating to any of the aggravating or mitigating circumstances enumerated in sections 13-11-6 and 13-11-7. Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements ; provided further, that this section shall not be...