Johnson v. State, 2004-KA-01202-SCT.

• Decision Date: 11 August 2005
• Docket Number: No. 2004-KA-01202-SCT.,2004-KA-01202-SCT.
• Parties: Ardes JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

908 So.2d 758

Ardes JOHNSON v. STATE of Mississippi.

No. 2004-KA-01202-SCT.

Supreme Court of Mississippi.

August 11, 2005.

Phillip Broadhead, Oxford, Raymond L. Wong, Cleveland, attorneys for appellant.

Office of the Attorney General By John R. Henry, attorney for appellee.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. Ardes Johnson was indicted for deliberate design murder pursuant to Miss. Code Ann. § 97-3-19(1)(b). Following a jury trial in the Bolivar County Circuit Court, Johnson was found guilty and sentenced to serve a life term in the Mississippi Department of Corrections. Johnson's post-trial motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial was denied and this appeal followed.

¶ 2. Finding that a pre-arming instruction (S-3) improperly precluded the jury's consideration of Johnson's theory of self-defense and that a defective self-defense instruction (S-4) is contradictory and confusing, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 3. Ardes Johnson was in Shelby, Mississippi, having made the trip from his home in Chicago to attend his grandmother's funeral. After the funeral, Johnson stayed in Shelby at his aunt's house and spent most of July 1, 2003, packing her belongings for an intended move. Shirley Landrum, an old friend of Johnson's whom he had not seen in twenty years, arrived at 10:00 a.m. to help Johnson pack his aunt's belongings. Throughout the day, Dennis Terrell Davis, Landrum's live-in boyfriend, stopped by the apartment to speak with Landrum.

¶ 4. Davis made his first appearance at the apartment around 7:30 a.m., inquiring as to Landrum's whereabouts. Johnson informed Davis that Landrum was not there, and Davis left peacefully. Landrum arrived at the apartment to help Johnson pack around 10:00 a.m. Thirty minutes later, Davis returned to the apartment to speak with Landrum. Landrum and Davis went outside, had a conversation, and Davis went on his way. Landrum went back inside the apartment to continue helping Johnson pack.

¶ 5. Johnson and Landrum continued packing throughout the day. While Johnson was packing, he found a folding knife, that had a blade around five inches long, among his aunt's belongings. According to Johnson, he is a knife collector, so he threw the knife into his suitcase to take with him when he left for Chicago. Around 9:30 p.m. Davis made his last visit at the apartment demanding to see Landrum. Davis, who was irate at the time, pounded on the front door demanding that Landrum leave the apartment. Upon Landrum's request, Johnson informed Davis that Landrum was not at the apartment and had already left. Following this incident, Johnson called 911 and related the incident to Officer Gwendolyn Russell. Officer Russell arrived at the apartment for a short investigative visit and to look around for Davis. Officer Russell told Johnson that she did not see Davis and that if he came back to call the station.

¶ 6. When Officer Russell left, Landrum and Johnson continued to pack and later took a break for dinner. Around midnight, the two decided to walk to the store to get a few beers. Johnson suggested walking instead of driving because it was a nice night outside. As Johnson was leaving the apartment, he put the folding knife in his pocket. While Landrum and Johnson were walking down the street, Johnson stopped at the corner to talk to a few friends. While they were on the street corner, Davis appeared from around a dark corner and ran towards Landrum calling her a liar and yelling obscenities. Davis approached Landrum hitting her in the chest with both hands and then hit her in the face. However, the number of times Davis actually struck Landrum is disputed. Upon seeing Davis hit Landrum, Johnson walked over to them and told Davis to stop hitting her. At this point, Landrum walked away from Davis, claiming that she did not want to get into a fight in the middle of the street. Both Johnson and Landrum testified that Davis had a black object in his hand, however, no object was ever recovered. Johnson claims that Davis then turned towards him, as if to hit him, and Johnson stabbed Davis once in the abdomen with the knife. When Landrum realized that Davis had been stabbed, she ran to a neighboring house to get a towel for the wound. Johnson threw the knife in some bushes and fled the scene.

¶ 7. Marlon Taylor and his partner Curtis Smith, paramedics at the Bolivar County Medical Center in Cleveland, Mississippi, responded to a 911 call supposedly placed by Johnson shortly after midnight. When the paramedics arrived at the scene in Shelby, they saw the victim, Davis, lying on his back in the middle of the street. At this point in time, Davis was not responding so they performed a sternum rub which proved successful in getting him to respond. The paramedics observed that Davis was suffering from a stab wound in the upper left region of his abdomen. Davis was placed in the ambulance, where he continuously asked the paramedics if he was going to die. Noticing that he was suffering from internal bleeding, the paramedics responded that they were doing everything they could to help him. While in the ambulance, Davis was speaking to the police officer at the scene, Officer Russell, and told the officer that Ardes Johnson was the person that stabbed him. Officer Russell went to Johnson's family home but was unsuccessful in finding Johnson.

¶ 8. Around 6 a.m. Johnson left Shelby, Mississippi, and headed back home to Chicago. Johnson was eventually found on July 8, 2003, in Chicago by FBI Agent Pablo Araya. Agent Araya is a special agent in the violent crimes task force and is also a fugitive coordinator for those that come into the Chicago area. Agent Araya arrested Johnson in a home in the Chicago area, read him his Miranda rights, and then interviewed him at a police station. Notes were taken contemporaneously with the interview, and a detective by the name of Robert Distasio was present during the interview.

¶ 9. During the interview, Johnson gave his version of the story. Johnson stated that he was in Shelby for his grandmother's funeral and stayed a couple more days to help his aunt move. Johnson told the agent that he found the folding knife while he was packing his aunt's belongings and since he was a knife collector, he threw the knife into his suitcase. Johnson told the agent that it was a folding knife with a blade that was around five inches long. Johnson told Agent Araya that Landrum was helping him pack, that Davis repeatedly stopped by the house to speak with Landrum, and that Johnson eventually called the police after the third visit from Davis. Johnson also told Agent Araya that upon leaving the apartment to get beer, he placed the folding knife in his pocket for protection. Johnson then told Agent Araya that Davis hit Landrum and then turned towards him so he responded by stabbing him. Johnson also described the area where he threw the knife upon fleeing the scene.

¶ 10. When Charlie Griffith, a criminal investigator with the Bolivar County Sheriff's Department, received word from the FBI, he went and found the knife that was used to stab Davis. Upon Johnson's return to Mississippi, Griffith asked him if the knife he found in the bushes was the knife used to stab Davis, and Johnson replied that it was, in fact, the one he used to stab Davis.

¶ 11. Johnson was indicted on March 24, 2004, on a charge of murder and was tried by a jury in Bolivar County. Johnson continually asserted throughout trial that Davis made a gang sign towards him and he felt that his life was in danger. Johnson testified that the reason he grabbed the knife before leaving the apartment was to protect himself because Davis had earlier directed a gang sign towards him. However, it was never conclusively established whether Davis belonged to a gang. Johnson asserted that he stabbed Davis in self-defense and in defense of Landrum. However, the assertion that Davis made a threatening gang sign only came out during trial. The statement to the FBI in Chicago and to the police in Shelby did not contain the assertion that Davis threatened Johnson with a gang sign. Johnson was the only witness to this claim, and Johnson was also the only witness to the stabbing of Davis because Landrum had already walked away.

¶ 12. Following the trial, the jury returned a verdict of guilty, and the trial judge sentenced Johnson to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Subsequently, Johnson filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. These motions were denied by the trial judge, and Johnson now appeals to this Court raising the following issues:

1. Whether the Trial Court Erred in Granting Jury Instructions S-3 and S-4.

2. Whether the Trial Court Erred in Admitting into Evidence a Hearsay Statement under the Dying Declaration Exception.

3. Whether the Trial Court Erred in Denying the Motion for a New Trial Because the Jury's Verdict Was Not Supported by the Weight of the Evidence.

ANALYSIS

1. Jury Instructions

Instruction S-3

¶ 13. Johnson argues that the trial judge committed reversible error by giving jury instruction S-3 regarding pre-arming because it allowed the jury to discount his theory of self-defense. The instruction given to the jury in this case reads as follows:

The Court instructs the jury that if a person provokes a difficulty, arming himself in advance and intending, if necessary, to use his weapon and overcome his adversary, he becomes the aggressor and deprives himself of the right of self-defense.

If you believe from the evidence in this case beyond a reasonable doubt, that the defendant, Ardes Johnson, provoked a difficulty with Dennis Terrell Davis (sic) after having armed himself as the case may — with a knife in advance of going out of the house and intended, if necessary, to use such weapon

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