Johnson v. State, No. CR-99-1349 (AL 3/11/2005)

• Decision Date: 11 March 2005
• Docket Number: No. CR-99-1349.,CR-99-1349.
• Citation: Johnson v. State, No. CR-99-1349 (AL 3/11/2005), No. CR-99-1349. (Ala. Mar 11, 2005)
• Parties: Shonda Nicole Johnson v. State.
• Court: Alabama Supreme Court

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Shonda Nicole Johnson v.State.

No. CR-99-1349.

Court of Criminal Appeals of Alabama.

Decided March 11, 2005.

Appeal from Walker Circuit Court(CC-99-19)

McMILLAN, Presiding Judge.

Shonda Nicole Johnson was convicted of the capital offense of "murder when the victim is subpoenaed, or has been subpoenaed, to testify, or the victim has testified, in any preliminary hearing, grand jury proceeding, criminal trial or criminal proceeding of whatever nature, or civil trial or civil procedure of whatever nature, in any municipal, state, or federal court, when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness."§ 13A-5-40(14),Ala. Code 1975.Specifically, Johnson was charged and convicted of intentionally causing the death of Randy McCullar by shooting him, or causing him to be shot, by aiding and abetting Timothy Richards in the shooting, after McCullar had testified before a grand jury on behalf of the state of Alabama in a bigamy case against Johnson; the murder stemmed from or was related to McCullar's role as a witness.Following a separate sentencing hearing before the jury, it recommended that Johnson be sentenced to death by a vote of 11 jurors in favor of death and 1 juror in favor of life without parole.The trial court then conducted a separate hearing and sentenced Johnson to death.

After the final sentencing hearing before the trial court, the judge issued his sentencing order that contained his findings of facts summarizing the crime and Johnson's participation therein; the sentencing order stated:

"In the early morning hours of November 30, 1997, David O'Mary, a vice-president of First National Bank of Jasper, was traveling down Alabama Highway 195 in Walker county.As he drove past the Harmony Missionary Baptist Church, he noticed what appeared to be a man lying next to a parked car in the church parking lot.He noticed that the man was not moving and pulled into the parking lot to investigate.Upon approaching the person, O'Mary noticed that the man had gray color to his complexion.Upon further investigation, he saw that the man had been shot and was, in fact, dead.He notified the authorities of his discovery.

"Two nights prior to this discovery, the defendant, Shonda Johnson(Richards), and her co-defendant/husband, Tim Richards, were having Thanksgiving dinner at the home of Audrey Gray, the sister of Mr. Richards.At the conclusion of the meal and as they were about to leave, the defendant, Shonda Johnson, stated that she and her husband were going `headhunting' and stated that they had a gun in the back of the car.The defendant, Shonda Johnson, and her husband, Timothy Richards, on an earlier visit, discussed the fact that Randy McCullar(later the victim in this matter) was taking the defendant back to court to get custody of their son, Chad.In the conversation, in the presence of Mrs. Gray, there was some mention of the defendant, Shonda Johnson, being raped by Mr. McCullar.When Mrs. Gray realized that they were serious, she told her brother`not to be stupid.'

"The Saturday after Thanksgiving, 1997, the defendant and Timothy Richards hired a baby sitter and went to the Kooler, a restaurant in Jasper, Alabama.They asked for a menu, but were told that the kitchen was closed.They went back to their apartment in Jasper.After a while they both decided to go to the BC Lounge, a Jasper night spot.The defendant had told Richards that Randy McCullar would leave the lounge at 12:00 to 12:30 A.M. and that would be a good time to get rid of him.

"When they arrived at the BC Lounge they spotted [McCullar's] car.Timothy Richards got out of his car and sliced the tire of McCullar's car.McCullar came out of the lounge.He appeared to be drunk.He got in his car and drove away from the parking lot.At this point the couple lost McCullar.They drove around Jasper until they found him at the Omelet Shoppe in Jasper.When McCullar left the Omelet Shoppe, they followed him traveling north on Highway 195 toward Double Springs in Winston County.

"At a point the defendant, Shonda Johnson, saw that McCullar had pulled into a church parking lot.They turned around, went to the parking lot of the church, and pulled up to McCullar.Words were exchanged between Johnson and McCullar.Johnson had put shells in the rifle when they were in route following McCullar.As they pulled up to the scene, she`bolted the shells into the chamber.'She then `shoved' the weapon into the hands of Richards.She said, `[D]o it, do it, get it over it.'Richards then point[ed] the gun at the head of McCullar and fire[d] the gun.While backing out of the parking lot, the defendant, Johnson, was laughing and smiling.

"Johnson and Richards returned to their apartment in Jasper.After a while in the apartment, they both got in the car and drove to Littleton's bridge near Goodsprings, Alabama.Richards threw the rifle off the bridge into the river.They later did the same thing with the gun case at Baker's Creek which is located in the same area of the county.

"They again returned to their apartment[.]Shonda Johnson wanted to have sex, but Richards could not handle it.Richards stayed up all night.Johnson went to sleep.

"Prior to her `marriage' to Tim Richards, the defendant had a live-in relationship with Ronnie Webb.This relationship started in September 1996.After about a month into this relationship, Randy McCullar took a warrant for the defendant charging her with bigamy.After this occurred, the defendant constantly wanted `somebody to do away with Randy McCullar or have something done with him' according to Webb.At one point in this relationship the defendant talked about killing McCullar.She even suggested that Webb get some dynamite and do it right then."

The record indicates that Johnson gave a number of varying statements to the police, originally denying the existence of her marriage to McCullar or any involvement in his murder.Subsequently, with each successive statement, she confessed to increased involvement in the murder, particularly as more evidence surfaced implicating her.Richards also originally denied any involvement in McCullar's murder and he secured an alibi for Johnson and himself through his sister in Tuscaloosa.However, he also eventually admitted to being involved in the murder, although both Johnson and he indicated that the other was the primary wrongdoer.Richards entered into a guilty-plea agreement with the State and testified against Johnson at trial.

Concerning McCullar's role as a witness before the grand jury on the bigamy charges against Johnson, the record revealed that on June 24, 1995, Johnson and McCullar had participated in a wedding ceremony conducted by the preacher from McCullar's church.Just before the ceremony, McCullar contacted the preacher and indicated that he was quite upset because he had learned that Johnson's divorce was not final and would not be final before the wedding ceremony took place.The preacher agreed that the ceremony would be a "practice" ceremony, and he informed McCullar that Johnson and he should come to the preacher's home after Johnson's divorce was final to again take the vows and be legally wed.On July 11, 1995, a marriage certificate for McCullar and Johnson was filed in the Winston County Probate Court Clerk's office.The couple remained together only a matter of months, and, on September 29, 1995, Johnson married William Hayward McIntyre, Jr., while still legally married McCullar.Therefore, McCullar filed a bigamy complaint and obtained an arrest warrant against Johnson.Johnson was arrested and subsequently indicted for bigamy by the Winston County grand jury.McCullar had been listed as a witness on the arrest warrant against Johnson and he testified before the grand jury during its proceedings.There was testimony McCullar was considered the prosecutor's main witness in the bigamy case and, further, that without his testimony it would be extremely difficult to gain a conviction against Johnson for bigamy.It was during this time that Johnson attempted to enlist the help of Ronnie Webb and David Prescott to hurt or kill McCullar.On May 10, 1997, while still legally married to McCullar, Johnson married Tim Richards; Johnson insisted that they go to Gatlinburg, Tennessee, to be married.Richards knew nothing of Johnson's prior marriage to McCullar.Shortly after their marriage, Johnson began prompting Richards to kill McCullar.On November 6, 1997, McCullar filed for a divorce and, as part of the divorce complaint, he sought custody of his child, Chad McIntyre, and requested a DNA paternity test.After McCullar had filed the bigamy charges against Johnson, he received a large legal settlement resulting from an automobile accident with a logging truck, wherein he had suffered serious injuries.Johnson had informed Richards of the settlement and had told him that, should McCullar die, the money would go to Chad or to her.In late November 1997, just following Thanksgiving, Johnson and Richards planned and carried out the shooting death of McCullar.

Johnson argues that the trial court erroneously admitted evidence of a prior conviction and prior bad acts of Johnson.Specifically, Johnson argues that evidence and testimony concerning her conviction for bigamy, testimony concerning her adulterous relationships, testimony by Richards that she solicited him to beat up another man that she had dated, was inadmissible.She further argues that, if that evidence was admissible, she was entitled to a limiting instruction informing the jury that it could not consider the evidence as an indication of bad character or to show her propensity for criminality.

We will address the admissibility of that evidence and testimony in Part I of this opinion.The need for a limiting instruction as to that evidence and testimony will be discussed in Part II.

I.

Johnson claims that improper...