Johnson v. State

• Decision Date: 13 August 1998
• Docket Number: No. 96-3682,96-3682
• Citation: 717 So.2d 1057
• Parties: 23 Fla. L. Weekly D1894 Sirron J. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1057

717 So.2d 1057

23 Fla. L. Weekly D1894

Sirron J. JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 96-3682.

District Court of Appeal of Florida First District.

Aug. 13, 1998.

Nancy A. Daniels, Public Defender and Steven A. Been, Assistant Public Defender, Tallahassee, for Appellant.

Robert Butterworth, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.

KAHN, Judge.

A man identified at the trial of this case as Sirron Johnson accosted and raped three Jacksonville women between December 30, 1994, and January 31, 1995. Although Johnson was charged with crimes involving each of the three victims, the counts involving one victim, C.R., were severed and tried separately. The present appeal arises out of Johnson's conviction for the January 31, 1995, armed kidnaping, armed sexual battery, and armed robbery of C.R.. Over a defense objection, the trial court allowed the jury to hear collateral crime evidence from Mr. Johnson's other two rape victims, P.W. and N.B.. On appeal Johnson raises the following issues:

(1) Whether the trial court erred in overruling the defense objection to the State's peremptory strike of a black juror;

(2) Whether the conduct of the prosecution in procuring P.W. and N.B.'s identification of Johnson violated Johnson's due process rights;

(3) Whether the trial court erred in overruling defense objections to evidence of the P.W. and N.B. collateral crimes; and

(4) Whether the departure sentence imposed by the trial court is invalid because the judge failed to orally articulate the reasons for departure at the time sentence was imposed.

The fourth issue is not preserved for appeal. We affirm the trial court's rulings as to the other three issues.

The Crimes

Around noon on December 30, 1994, P.W. parked her car at the Independent Life Insurance office on Atlantic Boulevard in Jacksonville. The office is near Art Museum Drive. After conducting some business for her employer in the insurance office, she returned to her car. When she opened her car door, a man, whom she identified at trial as Sirron Johnson, came up behind her with a gun. P.W. identified the gun as a small black automatic pistol. Johnson pushed the gun into P.W.'s back and asked for her purse. He then asked for her jewelry. He next instructed her to unlock the passenger door so he could enter the car. He opened the door after pulling his jacket over his hand. Johnson then ordered her to drive out of the Independent Life driveway and proceed to the Atlantic Gardens Apartments. After she parked the car, Johnson took her out of the car and walked her to the back of the apartment complex where there was a tall wooded fenced-in area that apparently housed certain mechanical equipment for the apartment complex. While holding the gun on her, Johnson forced her to remove her clothes and stand facing a wall. At that point, and for the first time, Johnson instructed P.W. that she should no longer look at him. He then forcibly penetrated her.

On January 13, 1995, at around 11:30 a.m., N.B. was waiting at a bus stop on Art Museum Drive. The bus stop is directly across the street from the Atlantic Gardens Apartments. After a few minutes, a man identified by N.B. at trial as Sirron Johnson, approached her and questioned her about when the next bus would be arriving. When, after a few minutes, she sat down on the bench, Johnson stood over her and placed a gun to her side. N.B. described the gun as a very dark semi-automatic pistol. Johnson then demanded that N.B. hand over any belongings she had. N.B. told Johnson that he could take her purse and asked him just not to hurt her. He told her that he could not take the purse at the bus stop because people might see. He then walked her across the street by threatening to kill her if she did not go with him. After crossing the street, Johnson took N.B. to an empty apartment at the Atlantic Gardens Apartments. Once in the apartment, Johnson instructed N.B. to take off all her clothing. Johnson then rifled through N.B.'s belongings. N.B. testified that while Johnson was doing this, he pulled his shirt sleeves over his hands. Johnson then ordered N.B. to lie down on the floor and, for the first time, Johnson covered N.B.'s face so that she could no longer see. After probing her vagina with his pistol, Johnson raped N.B..

On January 31, 1995, at around 8:30 a.m., C.R. arrived at Commonwealth Land and Title Insurance Company, her place of employment, and parked her car near the office door she normally used. After she entered the doorway, she noticed a man, identified by her at trial as Sirron Johnson, in the stairwell. Johnson grabbed her shoulder and ordered her to turn over her money. Johnson had a gun in his hand, described by C.R. as a black semi-automatic pistol. C.R. gave Johnson $40.00, and Johnson then told her "we're going to go get in your car, and we're going to drive to a stoplight, and you are going to let me out of your car. If you scream or try to run, I'm going to kill you." Once in the car, Johnson directed C.R. to a nearby apartment complex, the Atlantic Garden Apartments. During the time Johnson was in C.R.'s car, he did not touch anything, and made a point to pull his sleeves down over his hands before he got out of the car. At the apartment complex, Johnson led C.R. to the back of the apartments to a fenced-in area which housed mechanical equipment. After going through her purse and wallet, Johnson ordered C.R. to take off all her clothes. She complied after he threatened to kill her if she did not remove her clothing. Then, for the first time, Johnson told C.R. to close her eyes, and warned her that if she opened her eyes he would kill her. After forcing her to lie down on top of her clothes, Johnson raped C.R.

The Initial Identifications

P.W. promptly reported the rape and shortly thereafter went to the police station to assist with the preparation of a composite drawing of her assailant. This composite was published to the jury at trial. Several days later, Jacksonville Detective Royal asked P.W. to return to the police station and look at a photo spread. Shown a photo spread of six black men, P.W. selected the person, identified as number 3 on the photo spread, as the rapist.

N.B. called the police from her apartment after being raped. She then went with Jacksonville Detective Terry to the police station to assist in preparing a composite sketch of her attacker. The sketch N.B. assisted in was published to the jury at trial. Sometime after preparing the sketch, N.B. returned to the police station to view a photo spread. Detective Terry presented the same photo spread he had earlier shown to P.W., and N.B. selected the same person, number 3, from the photo spread.

After her rape, C.R. returned to her office where someone called the police. A few days later, C.R. met with Detective Terry to look at some photographs at the police station. He showed C.R. a series of photographs and told her that she should only identify someone if she was "a hundred percent sure that that was the person who had done this." She felt that one photograph could have been the person who committed the rape, but she did not identify that person because she was not positive. Later, on February 23, 1995, C.R. was asked to come to the police station. Detective Terry wanted her to view a lineup. He told her beforehand to look at each person in the lineup carefully and not to identify anyone if she was not sure. At trial she described the lineup procedure in her own words:

Q. (BY MS. BAER): What happened when you first walked into the room.

A. When I first walked into the room, and when I first saw the people, I recognized him immediately. I think probably after the second person stepped forward and said, "Do you have any valuables in your purse," I looked at Detective Terry and Libby Senterfitt and said, "Do we have to do it? I already know who it is." And Detective Terry said, "Yes, you need to have everyone speak and look at everyone carefully." And so I did.

Q. And what was it, did you go through the whole procedure?

A. Yes, I did.

Q. And did you make a positive identification?

A. Yes, I did.

Q. And who did you identify?

A. Sirron Johnson.

Q. And you just pointed. Are you referring to this man at the table?

A. Yes.

Q. What was it about the person in the lineup that you knew it was him?

A. I just looked at him and knew. I felt sick, I started shaking, and I just knew it was him, there wasn't a doubt.

Q. Did you tell Detective Terry that you selected Sirron Johnson?

A. Yes.

Q. Did you make a positive identification?

A. Yes, I did.

Subsequent Identifications by P.W. and N.B.

The person initially identified by both P.W. and N.B. was someone other than Sirron Johnson. His name was Jessie Ellis. A year after the mistaken identifications, a prosecutor told P.W. and N.B. that Jessie Ellis was not the man who had raped them because his DNA did not match. The prosecutor further told them that the DNA matched another person. The prosecutor told N.B. that she would be shown a picture of the man who assaulted her so she would not see him for the first time in court. Both P.W. and N.B. were shown photographs at the prosecutor's office on January 18, 1996. In addition to the victims, Detective Terry, Assistant State Attorney Baer, and Assistant State Attorney Senterfitt were present.

P.W. did not recognize the person depicted in the first, second or third photographs she was shown. In actuality, these were all photographs of Jessie Ellis, the person she mistakenly identified earlier. Although P.W. recognized the three photographs as being of one person, she did not believe any of these photographs looked like the person she had picked out of the initial photo spread shortly after the rape.

When Senterfitt showed P.W. a fourth photograph, P.W. "looked at the photograph and I immediately knew that that was the person that had assaulted...