Johnson v. State

Decision Date14 June 2013
Docket NumberCR-05-1805
PartiesToForest Onesha Johnson v. State of Alabama
CourtAlabama Court of Criminal Appeals

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

Appeal from Jefferson Circuit Court

(CC-96-386.60)

On Return to Remand

JOINER, Judge.1

ToForest Onesha Johnson, an inmate on death row at Holman Correctional Facility, appeals the circuit court's dismissal of his petition for postconviction relief filed pursuant toRule 32, Ala. R. Crim. P.

In August 1998, Johnson was convicted of murdering Jefferson County Deputy Sheriff William G. Hardy, while Deputy Hardy was on duty or "because of some official or job-related act or performance." § 13A-5-40(a)(5), Ala. Code 1975. The jury, by a vote of 10 to 2, recommended that Johnson be sentenced to death. The circuit court followed the jury's recommendation and sentenced Johnson to death. Johnson's conviction and sentence were affirmed on direct appeal. See Johnson v. State, 823 So. 2d 1 (Ala. Crim. App.), cert. denied, 823 So. 2d 57 (Ala. 2001). This Court issued the certificate of judgment, making the case final, on December 14, 2001. See Rule 41, Ala. R. App. P.

In April 2003, Johnson filed a timely postconviction petition in the Jefferson Circuit Court attacking his conviction and sentence.2 Johnson filed amended petitions in July 2003 and July 2004. The circuit court summarily dismissed Johnson's third amended postconviction petition, and Johnson appealed to this Court. On September 28, 2007, thisCourt affirmed, in large part, the circuit court's dismissal but remanded the case for that court to conduct an evidentiary hearing on 14 claims of ineffective assistance of counsel and for that court to address 5 claims that were not specifically addressed in the court's order dismissing Johnson's petition. See Johnson v. State, [Ms. CR-05-1805, Sept. 28, 2007] __ So. 3d _ (Ala. Crim. App. 2007). The circuit court has filed its return to remand with this Court, and new briefs have been submitted on behalf of Johnson and the State. We address only those issues raised in Johnson's brief on return to remand.

The evidence supporting Johnson's conviction was thoroughly detailed in this Court's opinions on direct appeal and in our opinion on appeal from the dismissal of his Rule 32 petition; therefore, we will give only a brief synopsis of the facts. The State's evidence tended to show the following. In July 1995 Deputy Hardy was "moonlighting" as a security guard at a Birmingham hotel and was working the night of July 18-19, 1995. At around 12:30 a.m. on July 19 the manager of the hotel heard two "popping noises" and attempted to contact Deputy Hardy by radio. When he was unable to reach DeputyHardy, he walked around the building and found Deputy Hardy's body lying in the rear parking lot. The medical examiner testified that Deputy Hardy died from multiple gunshot wounds to his forehead and jaw. Johnson was stopped by police in the parking lot of a motel in Homewood at approximately 4:00 a.m. on the morning of July 19, 1995, in a vehicle matching the general description of a vehicle seen leaving the hotel after Deputy Hardy was shot. Johnson was with Ardragus Ford, Latanya Henderson, and Yolanda Chambers. Henderson testified that she went with Johnson, Ford, and Chambers to eat at around 2:00 a.m. that morning, that Johnson had a gun with him, and that Johnson hid the gun under the dashboard when police approached his vehicle.

Testimony also showed that while incarcerated at the Jefferson County jail Johnson made several telephone calls. State witness Violet Ellison testified that in August 1995 her daughter received telephone calls from the Jefferson County jail and her daughter would forward those calls to a third party and lay the telephone down and walk away. Ellison said that she listened in on one of those conversations and heard Johnson admit to a girl named Daisy that he shot Deputy Hardyin the head.

Standard of Review

Johnson initiated this postconviction proceeding pursuant to Rule 32, Ala. R. Crim. P. Rule 32.3, Ala. R. Crim. P., provides:

"The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence."

"The standard of review this Court uses in evaluating the rulings made by the trial court [in a postconviction proceeding] is whether the trial court abused its discretion." Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005). "[W]e may affirm a circuit court's ruling on a postconviction petition if it is correct for any reason." Smith v. State, [Ms. CR-08-0638, Sept. 30, 2011] __ So. 3d __, _ (Ala. Crim. App. 2011).

In Johnson's direct appeal, this Court applied the plain-error standard of review and reviewed the claims Johnson raised regardless of whether the issues had been properly preserved for appellate review. See Rule 45A, Ala. R. App. P.The plain-error standard, however, does not apply to the review of the denial of a postconviction petition challenging a death sentence. See James v. State, 61 So. 3d 357 (Ala. Crim. App. 2010). Accordingly, this Court will not consider Johnson's claims that have not been properly preserved for appellate review.

With these principles in mind, we review the claims Johnson raises in his brief on return to remand.

I.

Johnson first argues that the circuit court denied him a full and fair postconviction evidentiary hearing by denying certain motions he filed after this case was remanded. He raises several grounds in support of this contention.

A.

First, Johnson argues that the circuit court erred in denying his motion for discovery. In November 2007, Johnson filed a 25-page discovery motion requesting records from the Alabama Department of Human Resources related to Johnson and to his immediate family members; all jail records and records from the Department of Corrections related to Johnson; all mental-health records related to Johnson and his familymembers; all records related to Johnson from the Alabama Board of Pardons and Paroles; all records related to Johnson and his brother from the Alabama Department of Youth Services; all files from the Jefferson County juvenile court related to Johnson; all law-enforcement records related to Johnson and his family members; all prosecution files related to Quintez Wilson and Omar Berry;3 and all records from the Department of Corrections and from the Jefferson County coroner related to Investigator Steve Saxon.4 (Return to Remand, C. 112-36.) Johnson also moved for discovery of the institutional files of Fred Carter.5 The circuit court granted the motion for discovery of Carter's files but denied the motion in all other respects. (Return to Remand, C. 211-12; 214-15.)

When this Court remanded this case to the lower court we directed that court to hold an evidentiary hearing and to file its findings of fact within 70 days. We stated: "On remand,the trial court shall conduct an evidentiary hearing on those claims and enter specific written findings." This Court did not direct the circuit court to restart the proceedings or to allow discovery. By finding that Johnson was entitled to an evidentiary hearing on certain claims of ineffective assistance of counsel, we determined that Johnson had met his burden of pleading those claims. Allowing discovery, at this late juncture, would have exceeded the scope of this Court's remand directions. "[A]ny act by a trial court beyond the scope of an appellate court's remand order is void for lack of jurisdiction." Anderson v. State, 796 So. 2d 1151, 1156 (Ala. Crim. App. 2000).

Moreover, regarding the standard for discovery in postconviction proceedings, the Alabama Supreme Court stated in Ex parte Land, 775 So. 2d 847 (Ala. 2000):

"We agree with the Court of Criminal Appeals that 'good cause' is the appropriate standard by which to judge postconviction discovery motions. In fact, other courts have adopted a similar 'good-cause' or 'good-reason' standard for the postconviction discovery process. See [State v.] Marshall, [148 N.J. 89, 690 A.2d 1 (1997)]; State v. Lewis, 656 So. 2d 1248 (Fla. 1994); People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 121 Ill. Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconvictiondiscovery process. See Fitzgerald, supra, 123 Ill. 2d at 183, 121 Ill. Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey's Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that 'an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.' Ex parte Boatwright, 471 So. 2d 1257, 1258 (Ala. 1985).
"We emphasize that this holding -- that postconviction discovery motions are to be judged by a good-cause standard -- does not automatically allow discovery under Rule 32, Ala. R. Crim. P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lewis, supra, 656 So. 2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida's rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT