Johnson v. State

• Decision Date: 28 April 2000
• Parties: James Allen JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

820 So.2d 842

James Allen JOHNSON v. STATE.

CR-98-1688.

Court of Criminal Appeals of Alabama.

April 28, 2000.

Rehearing Denied June 16, 2000.

William Keith Bradford, Birmingham; Donald L. Colee, Jr., Birmingham; Patrick I. Gustin, Jasper; Brian Royster, Jasper; and Charles Clyde Tatum, Jr., Jasper, for appellant.

Bill Pryor, atty. gen., and James R. Houts, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, James Allen Johnson, was convicted of murdering Mary Charlene "Sissy" Lawson during the course of a robbery, an offense defined as capital by § 13A-5-40(a)(2), Ala.Code 1975. The jury, by a vote of 10 to 2, recommended that Johnson be sentenced to death. The trial court accepted the jury's recommendation and sentenced Johnson to death by electrocution.

The State's evidence tended to show that on August 5, 1995, Rodney Earley discovered Lawson's body slumped behind the counter in the BP gasoline station on Old Highway 78 in Jasper—unconscious from gunshot wounds to her head. Earley testified that he telephoned the emergency 911 number and that Lawson died before the ambulance could arrive.

Ira Morris,¹ Johnson's codefendant, testified that several weeks before the robbery/murder he met with Johnson and discussed plans to rob and kill the attendant at the BP station in Jasper. The two agreed that Morris would be the lookout and that Johnson would commit the robbery/murder. On the designated day the two went to the BP station. Morris testified that Johnson approached the counter purportedly to purchase a drink, and he threw his crumpled money down so the clerk would have to pick it up. Lawson stooped to pick up the money; when she straightened, Johnson was pointing a .38 caliber revolver at her head. He demanded money. After Lawson gave him the money in the register Johnson shot at the clerk four times. Morris said that Morris wiped the door clean of fingerprints and left during the shooting. The two met the next day to split the $447 that had been taken in the robbery/murder. Morris testified that he refused to take any of the money because he felt remorse for what he had done.

There was also evidence presented indicating that Johnson confessed to two fellow inmates that he had committed the BP robbery/murder. There was also testimony that approximately two weeks before the robbery/murder Johnson had approached two children, had showed them a map of the area surrounding the BP station, had showed them a gun that he had hidden in his front yard, and had told them he was going to rob the BP station. The State also presented evidence indicating that Johnson, six months after the robbery/murder at the BP station, had robbed another attendant at a package store located one mile from the BP station.

Because Johnson was sentenced to death, this Court, pursuant to Rule 45A, Ala.R.App.P., will search the record for "plain error," i.e., we will review for error, whether or not that error was brought to the attention of the trial court. Rule 45A states:

"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."

We have repeatedly recognized that the plain-error rule is to be used sparingly and only in those cases where a miscarriage of justice would result. Bryant v. State, [Ms. CR-98-0023, November 19, 1999] ___ So.2d ___ (Ala.Cr.App. 1999); Wilson v. State, 777 So.2d 856 (Ala. Cr.App.1999); Perkins v. State, 808 So.2d 1041 (Ala.Cr.App.1999); Minor v. State, 780 So.2d 707 (Ala.Cr.App.1999); Burton v. State, 651 So.2d 641 (Ala.Cr.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995).

"The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is `particularly egregious' and if it `seriously affects the fairness, integrity or public reputation of judicial proceedings.' See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. denied, 526 U.S. 1052, 119 S.Ct. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App.), cert. denied, 510 U.S. 905, 114 S.Ct. 285, 126 L.Ed.2d 235 (1993)."

Hall v. State, 820 So.2d 113, 121-22 (Ala. Cr.App.1999).

Guilt-Phase Issues

I.

Johnson argues that the trial court erred in refusing to dismiss the second indictment issued against him. He cites several reasons for this contention.

The record reflects that in September 1996 Johnson was indicted for capital murder defined in § 13A-5-40(a)(2), Code of Alabama 1975. This first indictment read as follows:

"The Grand Jury of said County charge, before the finding of this indictment, James Allen Johnson, whose name is otherwise unknown to the Grand Jury than as stated, did intentionally cause the death of Mary Charlene Lawson by shooting her with a handgun, and James Allen Johnson was in the course of committing a theft of in lawful U.S. currency the property of Don's # 3, by the use of force against the person of Mary Charlene Lawson, to-wit: a cashier at Don's # 3, with the intent to overcome her physical resistance or physical power of resistance, while the said James Allen Johnson was armed with a deadly weapon, to-wit: a handgun, in violation of Section 13A-5-40(a)(2) of the Code of Alabama, against the peace and dignity of the State of Alabama."

(Supp.R.9-10) (Emphasis added.)

Johnson was reindicted in January 1999 for capital murder defined in § 13A-5-40(a)(2). This second indictment read as follows:

"The Grand Jury of said County charges before the finding of this indictment, James Allen Johnson, whose name is otherwise unknown to the Grand Jury other than stated, did, intentionally cause the death of Mary Charlene Lawson by shooting her with a handgun, and James Allen Johnson was in the course of committing a theft of to-wit: $447.70 in lawful U.S. currency, in the possession of the said Mary Charlene Lawson, the property of Henry Oil Company, Inc., by the use of force against the person of Mary Charlene Lawson, with the intent to overcome her physical resistance or physical power of resistance, while the said James Allen Johnson or another person present was armed with a deadly weapon, to-wit: a handgun, in violation of Section 13A-5-40(a)(2) of the Code of Alabama."

(R. 8-9) (Emphasis added.)

On February 9, 1999, after the second indictment was issued the State moved to dismiss the first indictment. The trial court granted that motion.

Johnson argues that the grand jury lacked jurisdiction to issue the second indictment because it had already issued an indictment in the case. Johnson argues in his brief to this Court, "it is well established that the grand jury's role in the prosecution of a specific crime terminates upon returning a true bill of indictment for that crime." (Johnson's brief, p. 37.) He contends that the State presented new witnesses at the grand jury proceedings that resulted in the second indictment and used it to gather new information—a function, he argues, that is outside the scope of a grand jury's power. See Rule 12.3(d), Ala. R.Crim.P.

Johnson is correct in stating that a grand jury may not further investigate a case once an indictment has been issued. As our Supreme Court stated in Ex parte Williams, 710 So.2d 1350, 1354 (Ala.1997), cert. denied, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998):

"Rule 12.3, Ala.R.Cr.P., sets out the powers and duties of an Alabama grand jury, including the power and duty to inquire into indictable offenses. However, the power of a grand jury has its limits, as noted by the Committee Comments to Rule 12.3, which quote with approval the following statement from Fields v. State, 121 Ala. 16, 17, 25 So. 726, 727 (1899): `The functions and powers of the grand jury as to the indictment so returned are ended when the presentment is made and the indictment or true bill is received by the court.' (Emphasis added [in Williams].) Thus, although a district attorney may continue to investigate a crime until the very time of the trial, once an indictment has been returned by a grand jury the function of that grand jury is complete as to that crime and the grand jury cannot be used as a means for further investigation. Stated otherwise, `it is improper to utilize a Grand Jury for the sole or dominating purpose of preparing an already pending indictment for trial.' United States v. Dardi, 330 F.2d 316, 336 (2d Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964)."

The record reflects that 12 witnesses were named on the first indictment issued in 1996. The second indictment contained the name of only one witness, a police officer, who had also been named as a witness on the first indictment.

There is absolutely no evidence in the record indicating that the State used the second grand jury to gather new information about the case. The record reflects that the second indictment was issued to correct perceived defects in the first indictment. The prosecutor, at the motion hearing, stated, "no additional evidence was obtained, no investigation was done pursuant to the new one, it was just correcting an old indictment." (R. 117.) The second indictment contained the amount stolen in the robbery/murder and also changed...