Johnson v. State, CR–99–1349.
| Court | Alabama Court of Criminal Appeals |
| Writing for the Court | MAIN |
| Citation | 120 So.3d 1130 |
| Decision Date | 22 February 2013 |
| Docket Number | CR–99–1349. |
| Parties | Shonda Nicole JOHNSON v. STATE of Alabama. |
120 So.3d 1130
Shonda Nicole JOHNSON
v.
STATE of Alabama.
CR–99–1349.
Court of Criminal Appeals of Alabama.
Oct. 2, 2009.
Rehearing Denied June 18, 2010.
Certiorari Quashed Feb. 22, 2013
[120 So.3d 1145]
Stephen H. Jones, Bessemer; and Edward S. Stoffregen III, Birmingham, for appellant.
William H. Pryor, Jr., and Troy King, attys. gen., and James R. Houts, Tracy Daniel, and Pamela Casey, asst. attys. gen., for appellee.
[120 So.3d 1146]
MAIN, Judge.
Shonda Nicole Johnson was convicted of capital murder, in violation of § 13A–5–40(14), Ala.Code 1975, for intentionally murdering Randy McCullar, who had testified or was to testify in a criminal proceeding, specifically a bigamy case, against Johnson, where the murder stemmed from his role as a witness in the bigamy case. Johnson was sentenced to death by the trial court following an advisory verdict by the jury of death by a vote of 11 in favor of death to 1 in favor of life without parole.1 This Court reversed and remanded Johnson's conviction because, although her prior bad acts and conviction were admissible as exceptions to the exclusionary rule, this Court held that the trial court should have given limiting instructions as to the jury's consideration of this evidence. Johnson v. State, 120 So.3d 1100 (Ala.Crim.App.2005). The Alabama Supreme Court reversed and remanded this Court's decision, finding that limiting instructions by the trial court were not necessary because the prior bad acts and conviction were admissible as substantive evidence and therefore no limiting instructions were warranted. Johnson v. State, 120 So.3d 1119 (Ala.2006).
Because these two referenced issues, concerning the admissibility of the prior bad acts and conviction of Johnson, as well as the necessity of limiting instructions therefor, have now been decided on appeal, they will not be revisited.
We also note that a full rendition of the facts established at trial was set forth in the original decision on appeal. See Johnson v. State, 120 So.3d at 1123–26, and will not be repeated.
Johnson argues that the trial court erred by failing to allow her to impeach Timothy Richards with evidence of his prior convictions, and further failing to allow her to admit evidence of these convictions during the penalty phase of her trial, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Alabama law. Johnson refers to two prior convictions for distributing harmful material to minors.
Timothy Richards, Johnson's codefendant in the present case, testified as to Johnson's and his roles in the shooting and murder of McCullar. During the cross-examination of Richards, defense counsel questioned him as follows:
“Q. Did you have any arrests in the City of Hueytown?
“A: Yes, sir, I do.
“Q: And what was that for?
“A: Distributing to delinquency of a minor.
“Q: Distributing to the delinquency of a minor? And tell what type of distributing to the delinquency of a minor did you partake in?
“A: I didn't partake in anything, but I was found—
“Q: Did a woman make you do something then?
“A: No.
“Q: What were you—what was the basis of that charge?
“A: What do you mean?
[120 So.3d 1147]
“Q: Did that—why were you charged with that?
“A: Because of my sister.
“[Prosecutor]: Your Honor, can we approach the bench?
“THE COURT: Uh-huh.
“BENCH CONFERENCE:
“[Prosecutor]: We want to interpose an objection at this point. The defense has not supplied us with any information like this. He's asked a purely illegal question and he knows it's illegal to ask and we'd object and we ask for curative instructions at this point.
“[Defense Counsel]: Judge, this is, I believe, going to be a crime of moral turpitude, this is contributing to the delinquency of a minor.
“THE COURT: It seems to me.
“[Prosecutor]: And under the rules, he knew that and we want curative instructions.
“[Defense Counsel]: It is a moral turpitude, therefore, it isn't necessary. Contributing to the delinquency of a minor—
“[Another Prosecutor]: Was there a conviction?
“[Another Defense Counsel]: I don't know.
“THE COURT: Contributing to the delinquency of a minor can be as asking a kid to run a stop sign.
“[Prosecutor]: Judge, co-counsel here said they didn't even know if there was a conviction on it and they haven't supplied anything. He knew—we ask for instructions, he was intentionally doing that—
“THE COURT: That's okay, it's close to 4:00 and everybody is irritable.
“[Defense Counsel]: Judge in my defense, I just found out about it myself. She's just revealed it to me.
“THE COURT: Okay. That's fine. That's fine.
“(END OF BENCH CONFERENCE)
“THE COURT: Ladies and gentlemen of the jury I'm instructing you to disregard any statements or testimony or answers with regard to a charge of, I think they said distributing, but it's contributing to the delinquency of a minor. That has nothing to do with anything of this case, all right, so just do away with that.”
(R. 576–578.)
Thereafter, the next day, the following transpired:
“[Prosecutor]: Judge, we have filed and gave them a copy of a Motion in Limine.
“THE COURT: Uh-huh, What does it say?
“[Another Prosecutor]: Basically it says anymore questions concerning bad acts of Timothy Richards prior to his meeting the defendant, in front of the jury without being screened, we just thought the way they've asked those things, the basically unsubstantiated allegations they've asked him about—
“THE COURT: Oh—
“[Prosecutor]:—and it's just gotten to the point of recklessness—
“[Prosecutor]: Not only that, but they're throwing out child molestation with no basis for asking the question, there's no basis or fact for any of that, before they do that we'd ask that they at least approach the bench.
“THE COURT: Uh-huh.
“[Another Prosecutor]: Do you want Tim now or do you want to discuss this first? Richards, the witness.
“THE COURT: They don't want to do that anymore.
[120 So.3d 1148]
“[Prosecutor]: Do you want to tell them or—
“THE COURT: I want to be put on notice for any bad acts that you may be wanting to bring out with regard to any witness, give me some notice beforehand so I can rule on it. Okay. Bring the jury in.
“[Another Prosecutor]: One minute. Your Honor.
“[Another Defense Counsel]: We probably need to go ahead and take it up now.
“THE COURT: What? What is it?
“[Defense Counsel]: Judge, this is what we were just discussing, those are the originals. Ed's got to find something, just a moment. Your Honor.
“[Another Defense Counsel]: Do you want a few minutes to look at that? We just got that copy Friday afternoon.
“[Prosecutor]: Yes, it's the first time we've seen—
“[Another Defense Counsel]: Well, we would have given it to you earlier if we had it earlier. We left here and went straight to the courthouse.
“[Defense Counsel]: There's a narrative in there. Your Honor,
“THE COURT: A what?
“[Defense Counsel]: A narrative—a deposition, I mean, there's two of them, one you can read and one you can't.
“THE COURT: This is one?
“[Defense Counsel]: Yes, sir.
“THE COURT: Was he charged with something on this?
“[Defense Counsel]: Yes, sir.
“THE COURT: Was there a conviction on this?
“[Another Defense Counsel]: Yes, sir, there's two convictions. These are—there were originally six cases, three were dismissed and three were pled to.
“THE COURT: Uh-huh.
“[Another Defense Counsel]: One was a violation of 13A–12—
“THE COURT: Don't give me numbers, tell me what it is.
“[Another Defense Counsel]: It's distribute material which is harmful to a minor, to wit:—
“THE COURT: Is that a felony?
“[Another Defense Counsel]: It's not a felony, but it's a crime of moral turpitude we would argue.
“[Another Prosecutor]: But it's not moral turpitude—
“THE COURT: Give me a list.
“[Another Defense Counsel]: Sir?
“THE COURT: There's a list somewhere of moral turpitude crimes—I assume you've seen it?
“[Another Defense Counsel]: I expect that's a determination made by the trial court. There's a—
“THE COURT: Oh, no, we don't make these things up,—
“[Another Defense Counsel]: Judge, the Section 12–21–162 governs that issue.
“THE COURT: Uh-huh. What does it say?
“[Another Defense Counsel]: It says that in cross-examining a witness with regard to credibility, the witness can be examined, touching on a conviction for a crime involving moral turpitude.
“THE COURT: Uh-huh.
“[Another Defense Counsel]: And his answers may be—may be contradicted by other evidence if they don't speak truthfully with regard to that. We would argue that distributing pornographic material to a minor—
“THE COURT: Is a felony.
“[Another Defense Counsel]: It is not a felony—
“[Defense Counsel]: No, sir, but it—it's definitely a crime involving moral turpitude
[120 So.3d 1149]
when you're giving young girls who seem like they're nine or ten by the way they write—
“THE COURT: That sounds good, but that ain't how the law works.
“[Another Prosecutor]: Your Honor, I think it's been something that anyone might simply deny, talking about prior convictions and the standard now is no longer moral turpitude, but goes to the truthfulness or falsity of the statement, either more than a year imprisonment or any conviction, I think it's on the top of the next page, any conviction concerning truthfulness.
“THE COURT: Can you show me where y'alls case is in this?
“[Another Defense Counsel]: This is the statute.
“THE COURT: Oh, I know there's a statute against it. I'm looking for why it would be admissible.
“[Another Defense Counsel]: It would be—
“[Defense Counsel]: Uh—go ahead.
“[Another Defense Counsel]: It's a crime of moral turpitude. Your Honor.
“THE COURT: You're just using that word.
“[Another Defense Counsel]: Yes, sir.
“THE COURT: You're just using the word moral turpitude.
“[Another Defense Counsel]: Yes, sir.
“THE COURT: Does this involve impeachment?
“[Another Defense Counsel]: That involves impeachment, Judge. I believe the defendant in that—or the witness in that case...
To continue reading
Request your trial
-
Dallas v. Dunn, CASE NO. 2:02-CV-777-WKW
...2d 958, 960 Ala. Crim. App. 1990), in support of this conclusion. Id. Alabama law has not changed on this subject. See Johnson v. State, 120 So. 3d 1130, 1169-70 (Ala. Crim. App. 2009) (holding prosecutor's argument that a prosecution witness, while a murderer, had testified truthfully beca......
-
Capote v. State, CR-17-0963
...to the jury supports the testimony." ’ " ’ " Morris v. State, 60 So. 3d 326, 370 (Ala. Crim. App. 2010) (quoting Johnson v. State, 120 So. 3d 1130, 1165 (Ala. Crim. App. 2009), quoting in turn other cases).The excerpts Capote cites to do not constitute improper bolstering of the witness. He......
-
Lindsay v. State, CR-15-1061
...affected the substantial right of the appellant."326 So.3d 15 In discussing the scope of plain error, this Court in Johnson v. State, 120 So.3d 1130 (Ala. Crim. App. 2009), stated:" ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard use......
-
Ala. River Grp., Inc. v. Conecuh Timber, Inc., 1150040
...ruling as of the time when it was made and according to what the record shows was before the lower court at that time." Johnson v. State, 120 So.3d 1130, 1205–06 (Ala. Crim. App. 2009) (citations and quotations marks omitted). Based on the record as it was before the trial court when the mo......
-
Capote v. State, CR-17-0963
...to the jury supports the testimony." ’ " ’ " Morris v. State, 60 So. 3d 326, 370 (Ala. Crim. App. 2010) (quoting Johnson v. State, 120 So. 3d 1130, 1165 (Ala. Crim. App. 2009), quoting in turn other cases).The excerpts Capote cites to do not constitute improper bolstering of the witness. He......
-
Lindsay v. State, CR-15-1061
...affected the substantial right of the appellant."326 So.3d 15 In discussing the scope of plain error, this Court in Johnson v. State, 120 So.3d 1130 (Ala. Crim. App. 2009), stated:" ‘The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard use......
-
Ala. River Grp., Inc. v. Conecuh Timber, Inc., 1150040
...ruling as of the time when it was made and according to what the record shows was before the lower court at that time." Johnson v. State, 120 So.3d 1130, 1205–06 (Ala. Crim. App. 2009) (citations and quotations marks omitted). Based on the record as it was before the trial court when the mo......
-
Lane v. State, CR–10–1343.
...failure to make specific findings concerning any nonstatutory mitigating circumstances in the case and stated:“ ‘In Johnson v. State, 120 So.3d 1130 (Ala.Crim.App.2009), this Court determined that the trial court's failure to make specific findings as to each nonstatutory mitigating circums......