Johnson v. State

• Decision Date: 05 May 1982
• Docket Number: No. 53017,53017
• Citation: 416 So.2d 383
• Parties: Edward Earl JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 383

416 So.2d 383

Edward Earl JOHNSON v. STATE of Mississippi.

No. 53017.

Supreme Court of Mississippi.

May 5, 1982.

Rehearing Denied June 30, 1982.

Brown, Alexander & Sanders, R. Jess Brown, Jackson, Freeland & Gafford, James L. Robertson, Oxford, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Leake County wherein Edward Earl Johnson, defendant/appellant, was indicted, tried and convicted for the June 2, 1979, capital murder of J. T. Trest, a police officer while acting within his official capacity. At the conclusion of the sentencing phase of Johnson's trial, the jury, finding the mitigating circumstances of the crime insufficient to outweigh the aggravating circumstances, sentenced Johnson to death. We affirm.

Sometime between 2:00 a. m. and 3:00 a. m. on June 2, 1979, Sally Franklin, an elderly resident of Walnut Grove, was awakened by a knock at her back door. When she inquired as to who was there, a voice responded it was Fred Smith who had come to pay Clara's Avon bill. Miss Franklin refused to open the door but told the person who identified himself as Fred Smith that he could slip the money under a window. A $20 bill was slipped through the window, whereupon she went to her bedroom to get change and then returned to the window where she delivered the change. The subject refused to leave until she retrieved a certain type of cologne Clara wanted. However, when Miss Franklin went to get the cologne, she heard the screen tearing. She ran back and met the subject at the door. A struggle ensued. Just before Miss Franklin lost consciousness, she heard Carmen Dennis, a boarder at her home. Miss Franklin identified her attacker at trial as Edward Earl Johnson.

Robert Wright, who lived about twenty yards from Miss Franklin, was awakened by two shots around 2:20 a. m. He noticed a light on in Miss Franklin's kitchen, whereupon he slipped on his pants. Wright looked out the window again and saw a Buick automobile with an aerial on the back pass by. Mr. Wright then proceeded to Miss Franklin's. After discovering Miss Franklin's condition, Wright returned to his house and phoned the police. When he proceeded back to Miss Franklin's he met Dorothy and Rufus Carol Graves, another neighbor of Miss Franklin, who had been phoned by Carmen Dennis.

Robert Wright and Rufus Graves walked down the street about fifteen yards from Miss Franklin's home where they found J. T. Trest, the Town Marshal of Walnut Grove. Trest was lying face down in front of his patrol car. The car was parked at an angle facing Miss Franklin's home. The motor was still running, the lights were on and the driver's door open. Trest's pistol holster had been pulled behind his back; however, his pistol, a .357 Magnum, was not seen. A .25-caliber pistol was discovered between Trest's body and the curb.

Morris Tucker, who lived about a mile and a half from Miss Franklin, was informed of the incident by a phone call at 2:30 a. m. The bark of a dog prompted Tucker to look out his window where he saw a green automobile with tail lights across the rear and an antenna on the trunk disabled in front of his home. Another car arrived, whereupon a black male exited the stalled car. The second automobile then pushed the stalled vehicle in a northerly direction toward Madden.

Three bullets were removed from Trest's body during an autopsy. One bullet perforated both lungs while another bullet penetrated the heart. Although Dr. Featherstone opined either bullet could have produced death, he stated the wound to the right ear was the primary cause of death. The three bullets recovered produced a defect measuring about six millimeters in diameter or roughly the size of a .32 or .25-caliber pistol. The wound to the head was about twelve millimeters in diameter, which indicated the weapon was at least a .38-caliber or larger. All the wounds occurred within a relatively short period with the three smaller caliber wounds being sustained first.

Appellant was picked up and questioned the following afternoon based upon information that officers received during their investigation. He was then taken to Miss Franklin's house and his height compared to the height of an outside overhead light bulb which had been unscrewed by Miss Franklin's attacker. Thereafter, he was questioned at city hall and released.

When it was discovered that appellant was seen in possession of a .25-caliber automatic pistol a week or so before the incident, appellant was asked to return to city hall on June 3, 1979, for further questioning. Appellant agreed to accompany Sheriff Joe Mack Thaggard and Rudolph Adcock to Jackson for the purpose of taking a polygraph examination. However, before reaching Jackson, appellant told the officers he wanted to talk about it. He was advised of his rights, whereupon he gave an oral statement to the officers which was tape-recorded. Appellant was placed under arrest and returned to the Leake County Sheriff's Office where he was again advised of his rights and a statement taken from him. This statement, in which appellant admitted killing Officer Trest after the break-in at Miss Franklin's home, was admitted into evidence and also led to the recovery of Officer Trest's pistol.

A criminologist from the Mississippi Crime Lab opined that all three projectiles removed from Trest's body were fired from the RG .25-caliber auto-loading pistol recovered at the scene of the crime by Sheriff Thaggard.

Appellant offered evidence of his good reputation for peace or violence in the community. Several witnesses also attested to appellant's presence at a card game until 2:00 a. m. on June 2, 1979. However, the location of the card game was only five or six miles from Miss Franklin's home.

GUILT PHASE

I. Did the trial court err in admitting evidence of the crimes of burglary and attempted rape with which appellant was not charged?

Appellant was indicted under Mississippi Code Annotated section 97-3-19(2)(a) (Supp.1981), which provides:

(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

(a) Murder which is perpetrated by killing a peace officer or fireman while such officer or fireman is acting in his official capacity or by reason of an act performed in his official capacity, and with knowledge that the victim was a peace officer or fireman. For purposes of this paragraph, the term "peace officer" means sheriff of counties and their deputies, constables, marshals and policemen of cities and towns, game wardens, parole officers, a judge, prosecuting attorney or any other court official, agents of the alcoholic beverage control division of the state tax commission, agents of the bureau of narcotics, personnel of the Mississippi Highway Patrol, and the superintendent and his deputies, guards, officers and other employees of the Mississippi State Penitentiary; ...

As a general rule, testimony in a criminal trial should be confined to the charge for which an accused is on trial and the prosecution should not be allowed to aid the proof against the accused by showing he committed other offenses. Tucker v. State, 403 So.2d 1274 (Miss.1981); Wilborn v. State, 394 So.2d 1355 (Miss.1981); Massey v. State, 393 So.2d 472 (Miss.1981); and Gardner v. State, 368 So.2d 245 (Miss.1979). However, there are exceptions to this rule as stated in Woods v. State, 393 So.2d 1319 (Miss.1981):

In Gray v. State, 351 So.2d 1342 (Miss.1977), the Court said:

"... It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So.2d 657 (Miss.1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 25 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss.1969); cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).

(393 So.2d at 1325) (emphasis added.)

See also Saik v. State, 387 So.2d 751 (Miss.1980).

Appellant contends the incident at Miss Franklin's house was inadmissible due to the fact that he was charged with capital murder of a police officer and not felony murder. The case at bar, aside from appellant's confession, was circumstantial. There were no eyewitnesses to the shooting of Officer Trest. The testimony concerning the break-in and attempted rape was material to prove motive on the part of the appellant. In Murphy v. State, 129 Miss. 634, 92 So. 694 (1922), this Court stated:

It is also objected that the court erred in admitting evidence that the deceased and the defendants engaged in the manufacture of intoxicating liquors. This proof was produced by the state for the purpose of showing motive, and it is supplemented by proof in the record that the defendant stated that the deceased had been talking too much. Whenever the commission of another offense tends to establish a motive for the killing, and where the motive is a material question in issue, it is competent to introduce evidence of another offense which tends to prove motive. It was therefore not error to admit this evidence in this case.

(129 Miss. at 644, 92 So. at 696)

See also Dabney v. State, 82 Miss. 252, 33 So. 973 (1903), wherein we held:

Another, when one crime may have been perpetrated for, or as a means of committing,...