Johnson v. State

• Citation: 61 P.3d 1234,2003 WY 9
• Decision Date: 23 January 2003
• Docket Number: No. 98-57.,98-57.
• Parties: Daniel JOHNSON, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

61 P.3d 1234

2003 WY 9

Daniel JOHNSON, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 98-57.

Supreme Court of Wyoming.

January 23, 2003.

Rehearing Denied February 18, 2003.

Ken Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel, Representing Appellant. Argument by Mr. Koski.

Hoke M. MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; and Robin Sessions Cooley, Assistant Attorney General, Representing Appellee. Argument by Ms. Cooley.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] The issues raised by Appellant, Daniel J. Johnson (Johnson), in this case concern the equal protection and the cruel and unusual punishment protections afforded by the Wyoming Constitution, as well as the United States Constitution. Specifically, the instant issues and their implications arise when a defendant is charged with first degree felony murder, which carries a maximum punishment of death (though in this case a mandatory life sentence was imposed), and the underlying felony for that charge is a violation of the child abuse statute, which carries a maximum punishment of five years' imprisonment, including in those circumstances when the abuse results in the death of the child.² Other issues are urged, including the necessity of disqualifying the entire district attorney's staff when an appointed defense counsel accepts employment as an assistant district attorney; error in instructing the jury; the failure to have Johnson present when a supplemental instruction was furnished in response to a question from the jury; and prosecutorial misconduct. This Court is satisfied that the offenses of felony first degree murder and felony child abuse are distinguishable by different elements and that no constitutional violation arises from the invocation of the felony child abuse statute as the underlying felony for first degree felony murder. We are also satisfied that no reversible error is to be found in Johnson's other issues and, consequently, we will affirm.

ISSUES

[¶ 2] In his brief and supplemental briefs, Johnson raises these issues:

I. Whether the trial court abused its discretion by not disqualifying the entire Natrona County District Attorney's Office from the case at bar due to the appearance of impropriety?

II. Whether appellant's equal protection rights under Article 1, §§ 2 and 34 of the Wyoming Constitution were violated as two statutes declared the same acts to be crimes, and appellant was charged and convicted under the statute that penalized him more severely?

III. Whether appellant's right to be free from cruel and unusual punishment was violated by the use of child abuse as the underlying felony for purposes of the felony murder rule?

IV. Whether the trial court erred when it refused to give appellant's instruction on specific intent and when it incorrectly defined intentionally?

V. Whether the trial court erred when it instructed the jury without the presence of appellant and without him waiving his right to be present?

VI. Whether the prosecutor improperly commented on Johnson's right not to incriminate himself by inferring invocation of this right was evidence of guilt?

VII. Whether the trial court erroneously instructed the jury?

The State rephrases those issues³ as follows:

I. Did the district court abuse its discretion in refusing to disqualify the Natrona County District Attorney's office from prosecuting the case at bar?

II. Was appellant's conviction for felony murder violative of the equal protection and cruel and unusual punishment provisions of the United States and Wyoming Constitutions?

III. Did the district court properly instruct the jury on the elements of the crime of felony murder upon which appellant was convicted?

IV. Did the district court err in responding to jury questions without affording appellant the opportunity to be present?

V. Statements made by the prosecutor during closing arguments constituted proper argument.

VI. The district court properly instructed the jury.

INTRODUCTION

[¶ 3] By an Information filed on August 29, 1995,⁴ Johnson was charged with first degree felony murder. The punishment for first degree murder is either life in prison or death. The death penalty was not sought in this case. In addition, Johnson was charged with two counts of inflicting injury on a child in violation of Wyo. Stat. Ann. § 6-2-503 (Michie 1988 and Supp.1994). Eventually, one of those counts was dismissed because the alleged crime was also the predicate felony for the felony murder charge. The jury found Johnson innocent of the other count.⁵ The jury found Johnson guilty of first degree felony murder.

FACTS

[¶ 4] At about 10:00 p.m., on August 23, 1995, the victim, Thomas Johnson, was left in Johnson's care when his wife, who was the victim's mother, went to work. The arrangement made by the Johnsons was that wife worked, and Johnson stayed home with the child because she had a better job. When she left for work, Johnson's wife testified that there did not appear to be any problems with the child. At about 4:40 a.m., on August 24, 1995, Johnson called his wife and told her the baby was not breathing right and to come home immediately. When she arrived, the baby was in a chair, and Johnson was on the phone with emergency personnel. Shortly thereafter, emergency personnel arrived to transport the child to the hospital. The first response to the call came from Johnson's neighbor and landlord, an Emergency Medical Technician (EMT) with the Casper Fire Department. The EMT noticed the baby was not breathing and that there was a small drop of blood around one of the child's nostrils. While waiting for an ambulance, the EMT immediately began administering CPR, but neither he nor other medical personnel were able to revive the child while transporting him to the hospital. When he arrived at the emergency room at 5:07 a.m., the child was in full arrest, unresponsive, with no pulse or respiration, his eyes were fixed and dilated, his tongue was bluish-yellow and stiff, and his body temperature was below normal at 93.5 degrees. Upon unsuccessfully trying to resuscitate the infant, the emergency room physician pronounced the infant dead at 5:52 a.m.

[¶ 5] Acting according to standard procedure after an infant's death, the treating physician notified the coroner. In addition to performing a physical exam, the treating physician obtained a sample of the infant's spinal fluid to culture. While the doctor was unable to detect any external injuries, he observed bilateral retinal hemorrhaging, indicating a brain injury. The spinal fluid was "grossly"⁶ bloody, also indicating a brain injury. An autopsy disclosed an intercranial hemorrhage. The bilateral hemorrhage and blood between the two hemispheres of the brain indicated findings consistent with shaken baby syndrome. The injuries had occurred at various times. The most recent injuries were the cause of death. The older injuries (one to two weeks old) were in the process of healing and would have resolved themselves over the course of time.

[¶ 6] Johnson did not testify in his own behalf. However, he gave several statements to investigating police officers, including one that was tape-recorded and played for the jury. Those statements, in their totality, told the following story, and are the principal sources of the evidence demonstrating Johnson's guilt. Initially, Johnson denied any knowledge of the cause of the infant's injuries. Later, he told the police and the treating physician that the infant awoke at 4:00 a.m., and that he tried to give him a bottle, but the infant sounded "weird." The feeding was unsuccessful and the baby soon shut his eyes. The baby was in his stroller and Johnson shook him to try to awaken him. At that point, the baby stopped breathing, and Johnson tried to awaken him with a slap on the cheek, but this did not revive the child either. When specifically confronted with the autopsy results that the infant died as a result of severe shaking, Johnson admitted to "bouncing" the infant up-and-down on his knee, sometimes harder and faster, in order to soothe the child and get him to stop crying. The pathologist who performed the autopsy testified that the cause of death was most likely an up-and-down shaking of the baby, but that some of the intercranial injuries were indicative of a side-to-side, rotational turning of the infant's head.

[¶ 7] With respect to the events of August 24th, Johnson said he bounced the infant for about five to seven minutes, which was about the amount of time it took to heat the baby's formula. The baby vomited, and Johnson noticed blood in the child's mouth and nose at about midnight. Although a friend previously told Johnson he was too rough with the child, Johnson claimed that he had never seen any blood in the past. Johnson used a doll to demonstrate to the police how he bounced the infant the morning of his death. In a thirty-second period, the officers counted ninety-one bounces, with Johnson never providing support for the doll's head.

[¶ 8] We will set out other facts pertinent to the particular issues in conjunction with our discussion of those issues.

DISCUSSION

Disqualification of District Attorney's Office

[¶ 9] From August 29, 1995, until the end of November of 1995, H. Steven Brown represented Johnson. Brown went to work for the Natrona County District Attorney's Office on December 1, 1995. Brown did not file a motion to withdraw as Johnson's counsel until January 16, 1996, and the motion was granted on January 18, 1996. In Brown's January 16, 1996 motion to withdraw, an appearance was entered by Virginia Hazen as Johnson's new counsel.

[¶ 10] Only three activities are shown in the record between November 29, 1995, and Hazen's withdrawal. First, a request for setting...