Johnson v. State, 8 Div. 446
| Decision Date | 25 November 1986 |
| Docket Number | 8 Div. 446 |
| Citation | 521 So.2d 1006 |
| Parties | Anthony Keith JOHNSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John E. Mays, Decatur, for appellant.
Charles A. Graddick, Atty. Gen., and Rivard Melson, Asst. Atty. Gen., for appellee.
Appellant, Anthony Keith Johnson, was indicted by the June 1984 term of the Morgan County Grand Jury for the intentional murder of Kenneth Cantrell, during the course of a robbery, in violation of § 13A-5-40, Code 1975. The indictment charged specifically that "Anthony Keith Johnson ... did intentionally cause the death of Kenneth Cantrell by shooting him with a pistol" and that he "caused said death during ... the course of attempting to commit a theft of property of Kenneth Cantrell ... by the use of force against the person of Kenneth Cantrell with intent to overcome his physical resistance or physical power of resistance...." Appellant was subsequently tried and found guilty as charged in the indictment. A sentencing hearing was held, at which the jury recommended that appellant be sentenced to life imprisonment without parole. The trial court overrode the jury's recommendation and, on November 8, 1985, sentenced appellant to death.
The record reveals that on the evening of March 11, 1984, the victim, Kenneth Cantrell, and his wife, Nell Cantrell, were at their home in Hartselle, Alabama. The Cantrells had been in the jewelry business for 24 years and at this time were conducting the business from their home.
Mrs. Cantrell received a phone call from a person identifying himself as Bill Spears from Florence, Alabama, and he asked to speak to Mr. Cantrell. He told Mr. Cantrell that he would like to purchase some jewelry from him, and they arranged a meeting a short time thereafter at the Cantrell home. Mr. Cantrell was apparently suspicious of the caller, because he asked his wife to hide his wallet and bring him his .38 caliber pistol.
When Mrs. Cantrell heard a knock at the door, which led from their carport into the combined living room and dining room area of their home, she went to answer it. She observed that the man already had the storm door open, but she had to open the door to hear what he had to say. When she opened the door she encountered a man between 45 and 50 years of age who identified himself as Bill Spears. She noticed that he held one hand behind his back and she asked if he was concealing something. He said that he was not and showed her his hand.
At the same time he motioned for another man who had been hiding in the carport to come forward. At this, the man already at the door grabbed Mrs. Cantrell, and the other man, wearing a blue bandana over his face and brandishing a "real shiney" gun in his hand, announced "This is a holdup."
Mrs. Cantrell, attempting to warn her husband, was able to break free from the first man who was holding her, run to her husband and fall at his feet. As she lay at her husband's feet she heard one of the men say, "Come on in, Bubba, I have got him," whereupon Mr. Cantrell said, and one of the men said, "No, we have got you." During this verbal exchange one of the men fired at Mr. Cantrell; he returned fire and a short gun battle ensued. Mrs. Cantrell lay motionless at her husband's feet while this exchange occurred, only raising her head up enough to notice that one man had on brown boots. After a number of shots were exchanged, there was a silence, and then Mr. Cantrell fired one last shot. When this shot was fired she heard one of the intruders say, "Oh", and then she heard the sound of shuffling feet, as if one of the intruders was assisting the other in getting out the door.
Mrs. Cantrell waited a moment after the intruders left, looked up at her husband, noticed that he had blood all over him and that she had blood all over her but that she was not shot. She then called an ambulance and police to the scene.
Mr. Cantrell sustained six gunshot wounds in the exchange, three in the right side of his chest, one in the left side of his chest, one on the back of his right arm, and one to his right middle finger. The bullets which struck him in the chest passed through his lungs and the large arteries from the heart, causing rapid death.
On the evening of March 12, 1984, the day after the murder, appellant went to the home of David Lindsey, who was a friend, in Newell, Alabama. Appellant told Lindsey that he had been shot. When Lindsey inquired as to what had happened, appellant stated, "Well you know how it is when you have got the habit." Appellant told Lindsey that he knew he had been to Vietnam and asked if he knew a medic or someone who could get the bullet out. Lindsey told him that he knew no one who could do that.
At appellant's request, Lindsey, on the morning of March 13, 1984, drove him to a motel in Oxford to meet Gene Loyd. Lindsey testified that Loyd and appellant were glad to see each other, and Loyd asked appellant where he had been. Appellant replied that he "had to get the hell out of Hartselle." He said that he and some friends had gone into a place to get some gold and that he had been shot. According to Lindsey, appellant stated, "I got shot, but I got off a couple of rounds, and I believe I got that son of a bitch." Lindsey returned home, where he heard that a murder had occurred in Hartselle, and he contacted authorities.
Appellant was arrested on March 14, 1984, at the motel where he had been taken by Lindsey. A pair of brown boots, which appellant claimed to own, were found at the scene of the arrest. A bullet wound was discovered in his back; that wound was 50.5 inches from the ground when appellant was standing. A search warrant was obtained, and the bullet was removed from his back.
It was discovered that Mr. Cantrell had fired his R.G. brand revolver six times at the intruders. Most of the shots were in an upward direction from the point where he was sitting on his couch. The revolver was loaded with .38 special C.C.I. Blazer cartridges manufactured by Omark Industries. Four C.C.I. Blazer bullets were recovered from objects which they had struck at the scene. One bullet apparently passed through the ceiling and could not be found. One bullet passed through a pane of glass on the back door 46.375 inches from the ground. A search of cardboard boxes and the wall in this bullet's path failed to reveal the bullet. The four C.C.I. Blazer bullets found at the scene had the same number of lands and grooves as the bullets test fired from Mr. Cantrell's R.G. revolver, but it was impossible to definitely make a determination that Mr. Cantrell's revolver actually fired the bullets.
The bullet which was removed from appellant's back was a .38 special C.C.I. Blazer. The bullet had the same number of lands and grooves as those test fired from Mr. Cantrell's R.G. revolver and those found at the scene, but again, it was impossible to make a definite determination that Mr. Cantrell's revolver actually fired the bullet.
The bullet which was removed from appellant's back had glass imbedded in its nose. Test comparisons of the glass removed from the bullet and that found in the pane on the back door, through which the unaccounted-for bullet had passed, revealed that all of their physical properties matched, with no measurable discrepancies. Based upon F.B.I. statistical information, it was determined that only 3.8 out of 100 samples could have the same physical properties, based upon the refractive index test alone, which was performed.
Appellant contends that the trial court erred in permitting the State to challenge juror Carrell for cause over appellant's objection. Appellant argues that juror Carrell was not unalterably opposed to the death penalty and that she was able to follow the trial court's instruction as to the law. He contends that when the trial court permitted the challenge for cause of juror Carrell it effectively denied appellant a fair trial under the Sixth and Fourteenth Amendments of the United States Constitution.
The most pertinent questions posed to juror Carrell on this issue by District Attorney, Mike Moebes, defense attorney, Thomas Digiulian, and the trial court and the corresponding answers given by juror Carrell were as follows:
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