Johnson v. State

• Decision Date: 18 May 1988
• Docket Number: No. 57526,57526
• Citation: 529 So.2d 577
• Parties: Leon JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 577

529 So.2d 577

Leon JOHNSON v.STATE of Mississippi.

No. 57526.

Supreme Court of Mississippi.

May 18, 1988.

J. Richard Barry, Bourdeaux & Jones, Meridian, Joseph W. Hutchinson, III, Butler, Ala., for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys.Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and GRIFFIN, JJ.

PRATHER, Justice, for the Court:

Leon Johnson, the defendant below, was tried on a capital murder indictment with an underlying crime of robbery and appeals his conviction of murder and life sentence in the Circuit Court of Lauderdale County.Venue was changed to Jackson County as a result of this Court's reversal of Johnson's conviction and death sentence on his first appeal.Johnson v. State, 476 So.2d 1195, 1198(Miss.1985)(hereinafter Johnson I ).On this second appeal, three primary questions are raised: (1) discriminatory and unconstitutional jury selection by the State's exercise of peremptory challenges for the purpose of striking members of the defendant's race under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986);(2) interpretation of new Mississippi Rule of Evidence 609, when the trial court puts a time limitation on impeachment evidence of former convictions; and (3) the denial of funds to employ an independent fingerprint expert.However, Johnson assigns all of the following errors, most of which were previously assigned in Johnson I and rejected by this Court:

(1) The verdict of the jury as to guilty and sentence imposed is against the overwhelming weight of credible evidence, and there is insufficient evidence for the jury to base a finding of guilt and sentence beyond a reasonable doubt.

(2)The trial court erred in overruling the defendant's motion for directed verdict as to robbery.

(3)The trial court erred in denying the defendant's motion for directed verdict as to capital murder.

(4)The trial court erred in denying defendant's motion to strike and quash the unconstitutional Mississippi statutes providing for the imposition of the death penalty in the application of this case.

(5)The trial court erred in overruling the defendant's motion to impanel a separate jury for the guilt and punishment phases of the trial.

(6)The trial court erred in denying defendant's motion for funds to hire an investigator to aid in preparation of his defense, which denied the defendant due process of law.

(7)The trial court erred in denying the defendant's motion for funds to employ an independent fingerprint expert, which denied the defendant due process of law.

(8)The trial court erred in denying the defendant's motion to restrict prosecutorial strikes.

(9)The trial court erred in failing to sustain the object of the defendant to quash the petit jury panel because the jury selection process exercised by the State was discriminatory and unconstitutional.

(10)The trial court erred in allowing into evidence Exhibits 28 and 29, and the testimony of State's witness Larry Turner concerning the human blood contained on said exhibits.

(11)The trial court erred in overruling defendant's motion in limine relating to fingerprints lifted from the door facing of the Super Stop containing human blood.

(12)The trial court erred in overruling defendant's motion to suppress a suggestive line-up and pictures thereof in which the defendant was a participant.

(13)The trial court erred in overruling defendant's motion to suppress statements given by the defendant to law enforcement agencies.

(14)The trial court erred in overruling defendant's motion to suppress and exclude certain illegally seized items and clothes taken from the home of the defendant's grandfather.

(15)The trial court erred in overruling defendant's motion to suppress evidence of fingerprints taken of the defendant.

(16)The trial court erred in granting instructions, C-12, C-15, C-17, C-34, C-37, C-51, C-52, C-53, and refusing all other instructions where said instructions did not contain the two theory instruction as the State's case was based solely upon circumstantial evidence.

(17)The trial court erred in imposing a time limitation and limiting the evidence the defendant could offer in impeaching State's witnesses Tommy Hill and Jack Amison as to their prior convictions.

(18)The trial court erred in refusing instructions of the appellant instructing the jury to find the appellant not guilty of capital murder and refusing to instruct them to find appellant not guilty.

I.

At the outset, several general observations need to be made.The evidence offered in the second trial was almost identical to that offered in the first.Furthermore, Johnson's assignments of error almost duplicate those in the first appeal.

The principles governing this situation may be drawn from West v. State, 519 So.2d 418, 424-25(Miss.1988), wherein this Court held that where a case has been reversed and remanded for a new trial, a trial de novo follows.Thus, on remand, where the defendant desires to introduce new evidence not considered at the first trial, the trial judge is required to permit a new evidentiary hearing.This is true even though the issue had been determined at the first trial, and this Court expressly affirmed the trial court's ruling on the first appeal.

On the contrary, however, this Court distinguished factually Jones v. State, 517 So.2d 1295(Miss.1987).In that case, the defendant incorporated a transcript of the suppression hearing at the first trial into the record of the second trial.The trial court correctly rejected the identical arguments on the same evidence at the second trial, this Court having decided the three specific issues in question adversely to the defendant."The decision was based not upon the fact that the issues had been raised in a prior appeal, but because [the defendant's] arguments advancing the issues were supported by the evidence and law argued and rejected in the first appeal."West, 519 So.2d at 425.

Turning to the case before this Court, it is noted that the only change in the evidence of any significance in the second trial is Johnson's personally testifying and denying any part in the crime and asserting an alibi.Fifteen of his eighteen assignments of error were decided adversely to Johnson on the first appeal.Johnson has admitted this fact, merely stating that he"resubmits those ... assignments of error, originally submitted, for further review."This Court holds the same to be res judicata and therefore does not address them again.West, supra.

II.

The facts of this case are now quoted from Johnson I, with certain changes at the second trial noted afterwards:

"On December 4, 1982, around 8:30 in the morning, the Super Stop convenience store located at the corner of Eighth Street and 29th Avenue in the City of Meridian, was robbed and Mrs. Eileen Grogan, the attendant, was brutally murdered.Her body was discovered in the back room of the Super Stop, nude from the waist down with her bra and shirt pulled up under her chin.The victim's underclothes were never located.According to the pathologist, who examined the body, Mrs. Grogan had been struck on the head with a blunt object causing a depression fracture to the skull.She had experienced sexual intercourse at some undetermined period of time prior to her death.The cause of death was established as strangulation.

"The Meridian Police Department received a call from a customer of the Super Stop, who had become suspicious, around 8:30 on the morning of the homicide, indicating to the police that a black male had waited on him; that the person didn't know how to use the cash register; and that he didn't know the prices of some of the merchandise.The first officer to arrive at the scene was Carl Molony.When he entered the store, the black male took the officer's gun and shot Molony twice with it, seriously injuring him.Molony managed to radio to the police department for more assistance, which was immediately forthcoming.The store was surrounded, tear gas was thrown into it, the fire department was called, and a hole was cut through a wall into the back room where Mrs. Grogan's body was found.Officer Molony survived the gunshot wounds inflicted on him, but was unable to remember what occurred.

....

"Naomi Shadow testified that she bought a coke in the Super Stop between 8:00 and 8:30 on the morning of December 4, 1982.Ms. Grogan was there at the time, and Ms. Shadow did not see anyone else in the store.Kevin Bartley testified he went into the store at about the same time and Mrs. Grogan waited on him.He did not see appellant in the store.

"Herbert Smith entered the Super Stop prior to 8:30 that morning to buy beer for an elderly friend, who lived across the street.He identified appellant as the person who waited on him.Smith noticed that appellant had an orange Super Stop jacket draped over his right shoulder.There was blood on the jacket.When Smith paid for the beer, appellant stepped over to the cash register as if to open it, but didn't.He then stepped back and made the change out of a roll of money in his shirt pocket.

"After leaving, Smith watched the Super Stop from a window at his friend's house across the street.He saw Officer Molony go in and look around, but could not see appellant.Molony then opened the door and stepped into a back room.A few seconds later, he came 'flying out backwards' from that room, appellant came out behind him, Smith heard two shots fired, and appellant left.

"Tommy Hill and his brother, Jack Amison, stopped at the Super Stop and Hill went in.There was no one in the store at the time.A policeman came in looking around.Hill lost sight of him when he went behind the counter.He then heard a shot and saw a tall black man leaning against the wall.While Hill was running out, he heard another shot.The gunman followed him out and said, "You haven't seen me, man." ...