Johnson v. State

• Decision Date: 18 September 1992
• Docket Number: CR-89-415
• Citation: 612 So.2d 1288
• Parties: Anthony Keith JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1288

612 So.2d 1288

Anthony Keith JOHNSON v. STATE.

CR-89-415.

Court of Criminal Appeals of Alabama.

Sept. 18, 1992.

As Modified on Denial of Rehearing

Nov. 13. 1992.

Certiorari Denied Feb. 19, 1993

Alabama Supreme Court 1920371.

John H. Schafer, Arvid E. Roach II, Debra Ann Palmer and Deborah K. Forbes, Washington, D.C., for appellant.

James H. Evans, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for appellee.

JAMES H. FAULKNER, Retired Justice.

This is an appeal from the denial of a petition for post-conviction relief filed pursuant to Rule 20, A.R.Cr.P.Temp.

The petitioner, Anthony Keith Johnson, was indicted for the capital offense of the murder of Kenneth Cantrell during the course of a robbery, in violation of § 13A-5-40, Code of Alabama 1975. Johnson was subsequently tried and found guilty as charged in the indictment. At the sentencing hearing, the jury recommended that Johnson be sentenced to life imprisonment without parole. The trial court overrode the jury's recommendation and on November 8, 1985, sentenced Johnson to death.

Johnson's conviction and death sentence were affirmed on direct appeal. Johnson v. State, 521 So.2d 1006 (Ala.Cr.App.1986), aff'd, 521 So.2d 1018 (Ala.), cert. denied, 488 U.S. 876, 109 S.Ct. 193, 102 L.Ed.2d 162 (1988).

The Rule 20 petition that led to this appeal was filed on April 4, 1989, and an answer to the petition was filed on April 19, 1989. An amendment to the petition was filed on November 9, 1989, and an answer to the amended petition was filed on November 19, 1989. The petition, as amended, was summarily denied on March 16, 1990, by Judge A.L. Hundley. In response to a joint motion of the parties, this court remanded the case on April 10, 1990, for further proceedings. On April 30, 1990, Judge Hundley recused himself from any further participation in the proceedings. Evidentiary hearings were conducted before Judge John Jolly on November 15, 1990, and on December 17, 1990. On March 12, 1991, another amendment to the petition was filed. Thereafter, an answer to the petition as amended was filed.

On May 23, 1991, Judge Jolly entered a one-paragraph order denying the Amended Rule 20 petition. On May 31, 1991, Johnson appealed from that order. On June 5, 1991, the parties filed a joint motion in this court, seeking a remand with instructions for the trial court to file specific findings of fact with regard to each material issue of fact in the case. On June 7, 1991, this court remanded the case to the trial court with directions that the trial court file written findings of fact in support of its order denying Johnson's petition, as required by Rule 20.9(d), A.R.Cr.P.Temp., and this court's order of April 10, 1990. On June 17, 1991, Judge John Jolly filed a more specific order dated June 14, 1991, which denied Johnson's Rule 20 petition. In that order, Judge Jolly found that of the 13 claims which Johnson asserts, 8 claims were procedurally barred and, alternatively, lacked merit and the remaining 5 claims, although not barred, lacked legal merit.

I. Procedurally Barred Claims

Rule 20.2(a)(3), A.R.Cr.P.Temp., provides: "A petitioner will not be given relief under this rule based upon any ground ... [w]hich could have been but was not raised at trial ..." except for claims that the court lacked jurisdiction.

Rule 20.2(a)(4), A.R.Cr.P.Temp., provides: "A petitioner will not be given relief under this rule upon any ground ... [w]hich was raised or addressed on appeal...."

Rule 20.2(a)(5), A.R.Cr.P.Temp., provides: "A petitioner will not be given relief under this rule based upon any ground ... [w]hich could have been but was not raised on appeal ..." except for claims that the court lacked jurisdiction.

These procedural default rules have been uniformly enforced by the courts of this state in capital cases. Ex parte Singleton, 548 So.2d 167, 169-71 (Ala.1989); Ex parte Clisby, 501 So.2d 483, 484 (Ala.1986); Singleton v. State, 587 So.2d 1117 (Ala.Cr.App.1991); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App.1991); Baldwin v. State, 539 So.2d 1103, 1104-05 (Ala.Cr.App.1988) cert. denied, 493 U.S. 874, 110 S.Ct. 206, 107 L.Ed.2d 159 (1989).

Consistent with the trial court's findings, we hold that the following claims raised by Johnson in his amended petition are procedurally barred under Rules 20.2(a)(3) and 20.2(a)(5), A.R.Cr.P.Temp., because these claims could have been but were not raised either at trial or on direct appeal:

1) his claim that the jury was not charged on the lesser included offense of felony murder;

2) his claim that the jury did not receive proper instructions on reasonable doubt;

3) his claim that the court incorrectly failed to find the existence of statutory mitigating circumstances;

4) his claim that the pre-sentence report was inaccurate and prejudicial to petitioner;

5) his claim that the sentence was imposed on the basis of facts not in the record; and

6) his claim that the override of the jury's recommendation was unconstitutional.

On direct appeal, Johnson raised and this court addressed the issue of whether the "trial court erred in refusing his motions for judgment of acquittal on the grounds that there was no proof that he was in Morgan County, where the murder was committed, and no proof that the gun which he possessed at the time he was arrested was used in the shooting." Johnson v. State, 521 So.2d 1006, 1012 (Ala.Cr.App.1986), aff'd, 521 So.2d 1018 (Ala.), cert. denied, 488 U.S. 876, 109 S.Ct. 193, 102 L.Ed.2d 162 (1988).

In his Amended Rule 20 petition Johnson now claims that due process requires that his conviction be set aside because of an alleged insufficiency of proof.

We hold that to the extent that this claim constitutes the same insufficiency-of-evidence issue asserted on direct appeal, this claim is procedurally barred from review under Rule 20.2(a)(4), A.R.Cr.P.Temp., because it was raised or addressed on appeal. We likewise hold that to the extent that this claim differs from the insufficiency of evidence issue asserted on direct appeal, this claim is procedurally barred from review under Rule 20.2(a)(5), A.R.Cr.P.Temp., because it could have been but was not raised on appeal.

On direct appeal, this court addressed sua sponte the issue of whether the surgical procedure performed on Johnson, pursuant to a search warrant to remove a bullet from his back, constituted an unconstitutional search and held that it did not. Johnson v. State, supra, 521 So.2d at 1014-15.

In his Amended Rule 20 petition Johnson now claims that he was convicted of a capital offense based on evidence seized as a result of searches conducted in violation of the United States and Alabama Constitutions. Johnson argues in particular that 1) the seizure of the revolver from under the mattress in a motel room occupied by Johnson resulted from an unconstitutional search; 2) the surgical procedure performed on his body constituted an unconstitutional search; and 3) the admission of this illegally obtained evidence at trial prejudiced him.

We hold that the claim involving the seizure of the revolver is procedurally barred under Rule 20.2(a)(3) and 20.2(a)(5), A.R.Cr.P.Temp., because this claim could have been but was not raised at trial or on direct appeal. We likewise hold that Johnson's search and seizure claim involving the bullet that was removed from his back is procedurally barred under Rule 20.2(a)(4), A.R.Cr.P.Temp., because it was addressed and rejected on the merits on direct appeal.

II. The Brady v. Maryland Claim

Johnson contends that the State failed to produce exculpatory information in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In particular, Johnson argues that although his trial counsel filed a discovery motion that requested, among other things, all information favorable to the defense, the state did not produce or disclose 1) documentary evidence, including an investigatory report of the crime prepared by the Alabama Bureau of Investigation ("ABI Report"), that the state was investigating two other suspects in connection with the Cantrell homicide; 2) statements of some persons present in the motel room when Johnson was arrested, which statements allegedly contradicted the statement of David Lindsey, which implicated Johnson in the Cantrell homicide; and 3) the short synopsis of the lengthy ABI report, which indicated that the victim, Kenneth Cantrell, fired at the robbers before they fired at him.

"A Brady violation occurs where: 1) the prosecution suppressed evidence; 2) the evidence was favorable to the defendant; and 3) the evidence was material to the issues at trial." Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.1990).

A. The "Other Suspects" Information

We hold that the prosecutor's failure to disclose the "other suspects" information contained in the ABI report and the police file did not violate Brady v. Maryland for the following reasons.

First, the fact that there were other suspects was not necessarily exculpatory evidence because an eyewitness, the victim's wife, testified that two robbers entered the house and fired shots inside it. Hence, the fact that law enforcement officials were looking for the other person or persons who acted in concert with Johnson in perpetrating the attempted robbery and homicide in no way exculpates Johnson.

Secondly, the "other suspects" information was not suppressed. Johnson's trial counsel both testified that they knew before trial that there were other suspects in the case and that Sergeant Newell of the ABI had specifically informed them before trial that there were other suspects. Hence, because Johnson's trial counsel had independent knowledge of the "other suspects" information, the "other suspects" information contained in the ABI report and police files cannot be said to have been suppressed.

Finally, even if, arguendo, the "other suspects" information had been favorable to Johnson and even if, arguendo, the defense...