Johnson v. State
| Decision Date | 19 July 1989 |
| Docket Number | No. DP-43,DP-43 |
| Citation | 547 So.2d 59 |
| Parties | Samuel JOHNSON, a/k/a Samuel Bice Johnson v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Clive A. Stafford Smith, Atlanta, Ga., Laurence T. Sorkin, Anthony Paduano, Floyd Abrams, and Cahill, Gordon & Reindel, New York City, for appellant.
Mike Moore, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., Jackson, for appellee.
En Banc.
ON MOTION FOR POST-CONVICTION RELIEF
Johnson was convicted of capital murder in the circuit court of Pike County on change of venue from Covington County in September, 1982, and sentenced to death. This Court affirmed his conviction, Johnson v. State, 477 So.2d 196 (Miss.1985), and his petition for certiorari in the United States Supreme Court was denied, Johnson v. Mississippi, 476 U.S. 1189, 106 S.Ct. 2930, 91 L.Ed.2d 557 (1986).
Thereafter, he filed with this Court his petition for post-conviction relief under our Uniform Post-Conviction Collateral Relief Act (CRA), Miss.Code Ann. Sec. 99-39-1, et seq. (1984). This petition contained a number of assignments.
One assignment dealt with Johnson's conviction of rape in the first degree in the Monroe County Court of New York April 9, 1963, which the State had used as an aggravating circumstance in his capital murder trial. Following the U.S. Supreme Court's denial of certiorari, this conviction had been vacated and dismissed by the Court of Appeals of New York in People v. Johnson, 514 N.Y.S.2d 324, 506 N.E.2d 1177, 69 N.Y.2d 339 (1987).
The majority of this Court held that, despite the New York Court of Appeals vacation of this conviction 23 years after its rendition, this did not operate to invalidate it as an aggravating circumstance considered by the Pike County jury. Johnson's petition was denied. Johnson v. State, 511 So.2d 1333 (Miss.1987).
The United States Supreme Court granted Johnson's petition for certiorari following our denial of his petition, Johnson v. Mississippi, 484 U.S. 1003, 108 S.Ct. 693, 98 L.Ed.2d 646 (1988), to consider whether the New York court's vacation of Johnson's 1963 conviction required a re-examination of Johnson's death sentence. The U.S. Supreme Court held that in view of the New York court's vacating and dismissing his 1963 conviction, this had not been a proper or legitimate aggravating circumstance for consideration by the Pike County trial jury and reversed and remanded to us Johnson's judgment of conviction. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). 1
On August 31, 1988, Johnson filed a motion with this Court for an order for another resentencing hearing before a jury, or in the alternative for this Court to sentence him to life. This motion has been opposed by the State, and on December 2, 1988, the Attorney General filed with us a motion to reimpose the death sentence.
There are two courses open to this Court: (1) remand this cause to the circuit court of Pike County for another sentencing hearing, or (2) make the decision ourselves as to whether to reimpose the death penalty or reduce Johnson's sentence to life because of the invalidation of this aggravating circumstance which was considered by the original trial jury.
As Cabana v. Bullock, fn. 1, supra, makes clear, there is no United States Constitutional requirement that "a jury consider the appropriateness of a capital sentence." 474 U.S. at 386, 106 S.Ct. at 696-97, 88 L.Ed.2d 716.
In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372, 382 (1988), the U.S. Supreme Court held an "especially heinous, atrocious, or cruel" aggravating circumstance under Oklahoma Stat.Title 21, Sec. 701-12(2) and (4) was unconstitutionally vague. This Court in Clemons v. State, 535 So.2d 1354, 1361-1363 (Miss.1988), held that even though under Maynard v. Cartwright an "especially heinous, atrocious, or cruel" aggravating circumstance should not have been submitted to the sentencing jury, this did not necessitate setting aside a death sentence so long as one or more other valid aggravating circumstances remained, which the jury had found existed in that case. And as the above-noted special concurring opinion in Johnson v. Mississippi, fn. 1, also makes clear, this Court is not required to remand this case to another sentencing jury.
Johnson was convicted of being an active participant, if indeed not the leader, in the deliberate, brutal slaying of a highway patrolman carrying out his duties. We stated in our original opinion affirming his conviction:
The very word "murder" embraces within its meaning cruelty, brutality and an evil intent carried to the ultimate in harm: death. It is redundant to characterize a murder as cruel, brutal or malicious.
Civilized society must place its dependence on peace officers. They preserve the peace, protect us from harm, and pursue the wrongdoer. They are the front line infantry in society's eternal struggle with crime.
The murder of a police officer in the line of duty must be equated with treason or espionage in time of war. Such a crime warrants the most severe punishment society exacts.
It is nevertheless true that this aggravating circumstance was considered by the Pike County trial jury, and argued by the State at trial as an additional reason for imposing the death sentence. We cannot know what the sentence of that jury would have been in the absence of this aggravating circumstance.
It is our view that under the facts of this particular case another sentencing jury, rather than this Court, should decide whether Johnson shall be sentenced to life imprisonment or the death sentence reimposed.
This cause is remanded to the circuit court of Covington County to impanel another sentencing jury to consider punishment in this case.
MOTION GRANTED. ORDER ENTERED REMANDING CAUSE TO COVINGTON COUNTY CIRCUIT COURT FOR RESENTENCING.
The facts of this capital murder are stated in Johnson v. State, 477 So.2d 196, 199-206 (Miss.1985). The opinion affirmed the lower court and petition for certiorari filed in the United States Supreme Court was denied. Johnson v. Mississippi, 476 U.S. 1189, 106 S.Ct. 2930, 91 L.Ed.2d 557 (1986). Those facts are lengthy and set forth in detail. In sum, an automobile occupied by Johnson and three companions was stopped by Highway Patrolman Billy Morris Langham as they were traveling north on Highway 49, approaching Collins, Mississippi. The officer asked to see Johnson's license, and he replied that he had none. Langham told Johnson to get out of the automobile. As the officer searched the backseat of the vehicle, Johnson stabbed him in the back with a butcher knife, mortally wounding the officer. Montgomery, one of Johnson's companions, took the officer's .357 Magnum revolver and Johnson directed Montgomery to shoot the officer. As the wounded officer asked for help from them and begged Montgomery not to shoot him, Montgomery, at Johnson's direction, fired a .357 Magnum bullet into the officer's brain.
In Johnson v. State, 511 So.2d 1333 (Miss.1987), on motion for post-conviction relief, Presiding Justice Hawkins wrote:
The aggravating circumstances enumerated in the court's instruction at trial were:
(1) That the defendant, Samuel Johnson, was previously convicted of a felony involving the use or threat of violence to the person of another.
(2) That the defendant, Samuel Johnson, committed the capital murder for the purpose of avoiding arrest or effecting an escape from custody.
(3) The capital murder was especially heinous, atrocious and cruel.
(R. 2236)
The verdict of the jury found all three of these aggravating circumstances existed. (R. 2294)
* * * * * *
Also, the jury found three aggravating circumstances to support its verdict. Even if we conceded that the jury had no authority to consider this conviction, the remaining two aggravating circumstances were sufficient to support the jury's verdict. Zant v. Stephens, 462 U.S. 862, 880-884, 103 S.Ct. 2733, 2744-2746, 77 L.Ed.2d 235, 252-254 (1983); Irving v. State, 498 So.2d 305, 314 (Miss.1986).
* * * * * *
As we noted, the jury found three aggravating circumstances existed, and of the three we have little doubt that in a rational sentencing process Zant v. Stephens, supra, the other two aggravating circumstances would carry greater weight than the New York conviction in determining Johnson's sentence. Indeed, the remoteness in time of the prior conviction was a mitigating circumstance. Johnson v. State, 477 So.2d at 219.
A similar question to the one here was before the Court in Bullock v. State, 525 So.2d 764 (Miss.1987). The case had been remanded to the Mississippi Supreme Court by the United States Supreme Court in Cabana v. Bullock, 471 U.S. 1052, 105 S.Ct. 2110, 85 L.Ed.2d 476 (1985), for determination by this Court, through State procedures, whether the Enmund requirements were met. On the question, this Court decided as follows:
Therefore, we are of the opinion that (1) this Court has properly proceeded to make a determination of whether or not the record in this case as made contains at least one of the Enmund requisites, and (2) this Court has now determined that at least one of the...
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