Johnson v. State

• Decision Date: 25 October 2001
• Docket Number: No. SC96333.,SC96333.
• Citation: 804 So.2d 1218
• Parties: Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

804 So.2d 1218

Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. SC96333.

Supreme Court of Florida.

October 25, 2001.

Rehearing Denied December 31, 2001.

Neal Dupree, Capital Collateral Regional Counsel, and William M. Hennis, III, Assistant CCRC-South, Office of the Capital Collateral Regional Counsel—South, Fort Lauderdale, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

Terrell M. Johnson appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Johnson was convicted of first-degree murder for the shooting death of an Orange County bar owner and of second-degree murder for the shooting of a bar customer during the same incident in 1979. The pertinent facts of the crime are described in detail in this Court's opinion on Johnson's direct appeal. See Johnson v. State, 442 So.2d 193 (Fla.1983). The decision was first appealed to this Court in 1980, but when the transcript of the proceedings was discovered to be incomprehensible we relinquished jurisdiction to the circuit court in order to reconstruct the record and to hold an evidentiary hearing as to the accuracy of the reconstructed record. The supplemental transcript was submitted to this Court, and was examined on direct appeal. On appeal, we affirmed both the conviction and the sentence. See id.

Johnson originally filed a motion for postconviction relief in June 1985. Pursuant to a legislative act passed in June 1985, the circuit court appointed the Office of the Capital Collateral Representative (CCR) to represent Johnson and ordered CCR to re-plead all of the issues in Johnson's 3.850 motion. CCR refiled Johnson's motion for postconviction relief with the trial court in October 1986. An evidentiary hearing was held in December 1986 and the trial court denied the motion in June 1989. On appeal, this Court affirmed the denial of relief. See Johnson v. State, 593 So.2d 206 (Fla.1992).

In January 1995, Johnson filed a petition for a writ of habeas corpus with this Court and filed a supplemental habeas petition in February. This Court found the twenty-three issues raised in Johnson's habeas petition either to be procedurally barred because they had been raised and rejected on direct appeal or in his previous 3.850 proceeding or to be meritless. See Johnson v. Singletary, 695 So.2d 263 (Fla.1996).

In February 1997, Johnson filed a second 3.850 motion with the circuit court, alleging newly discovered evidence and evidence of a previously unknown Brady¹ violation. The circuit court tolled the time limits in rules 3.851 and 3.852 to permit Johnson to pursue his public records requests. A status hearing was held on December 28, 1998, and Johnson filed his consolidated motion on January 28, 1999. A Huff² hearing was held on May 3, 1999, and the circuit court entered an order on June 15, 1999, denying Johnson all relief without an evidentiary hearing.

Johnson appeals that summary denial to this Court and raises five issues. Johnson claims that (1) summary denial was improper; (2) he was denied access to public records relating to the jurors; (3) he was denied effective assistance of counsel because his postconviction attorneys were prohibited by rule from interviewing the jurors to determine if constitutional error occurred; (4) the method of execution in Florida is unconstitutional; and (5) he is incompetent to be executed.

In his first issue on appeal, Johnson claims that he was entitled to an evidentiary hearing on his claims of: (1) ineffective assistance of counsel; (2) newly discovered evidence; and (3) several Brady violations. These claims relate to the following evidence, some of which was recently provided to Johnson by Orange County law enforcement officers after a public records request: a copy of a Miranda³ card showing that at 12:05 a.m. on January 6, 1980, Johnson refused to sign the card; previously illegible handwritten police notes indicating that at one time the police suspected the involvement of a second individual in the murders; a statement by the girlfriend of the customer victim that he was the type of person who would resist a robbery attempt; and Johnson's good conduct on death row for nearly twenty years.

The time limit for filing postconviction motions in capital cases does not apply where "the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence." Fla. R.Crim. P. 3.850(b)(1) (emphasis added). The trial court concluded that the copy of the Miranda card indicating Johnson's refusal to sign it approximately two hours after he was arrested could not constitute newly discovered evidence for two reasons. First, Johnson was present when he refused to sign the card and was personally aware of his initial refusal and all the circumstances surrounding his interrogation. Second, a letter from the state attorney to Johnson's trial counsel specifies that a Miranda card was one of the items turned over to defense during discovery.

Johnson contends that his condition during the interrogation (undergoing forced detoxification after his arrest) belies the trial court's conclusion that he was personally aware of his initial refusal and all the circumstances surrounding his interrogation. During the original motion to suppress hearing, one of the police officers testified that Johnson was "very tired, redeyed, extremely nervous" with "wrinkled and unkempt clothing" and "messed up" hair. However, the same officer also testified that Johnson did not appear to be under the influence of intoxicating substances and that he appeared to understand everything that was occurring. Johnson also cites medical testimony from his previous 3.850 hearing as to the physical and mental effects of forced detoxification. While the trial court concluded that the reference to a Miranda card in the state attorney's letter regarding items turned over to the defense during discovery also proves that the refusal was known to Johnson, there were at least seven or eight Miranda cards involved in this case according to police officers who testified at the original suppression hearing.

However, whether Johnson or his attorney had knowledge about the refusal to sign the card is only one prong that must be satisfied in order to grant relief on a claim of newly discovered evidence. The evidence must also be "of such nature that it would probably produce an acquittal on retrial." Jones v. State, 709 So.2d 512, 521 (Fla.1998). Even assuming that all questioning should have stopped after Johnson refused to sign the Miranda card in question and his subsequent statements should not have been admitted, Johnson voluntarily and spontaneously made inculpatory statements to an officer one month later while being transported for a psychiatric examination. These statements were admissible and the refusal to sign the card has no bearing on them. Thus, the trial court correctly concluded that the refusal to sign the card would not produce an acquittal on retrial and no relief was warranted on this claim.

Johnson further argues that the refusal to sign the card was Brady material and that his personal knowledge had no bearing on the State's obligation to present the card to the defense. A defendant must demonstrate the following elements before a Brady violation has been proven: (1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence has been suppressed by the State, either wilfully or inadvertently; and (3) the defendant has been prejudiced by the suppression of this evidence. See Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Way v. State, 760 So.2d 903, 910 (Fla.2000); Thompson v. State, 759 So.2d 650, 662 (Fla.2000). Under this standard, Johnson could not prevail on the Brady claim for the same reason discussed above: his voluntary inculpatory statements, which had no connection with the alleged Brady claim, were properly admitted; and thus Johnson was not prejudiced by the suppression of the refusal to sign the card. Thus, the trial court properly denied relief on this claim.

Although Johnson's trial counsel was provided a copy of police notes regarding the murders, Johnson claims that the notes were illegible. Thus, he contends, he was unaware that the police originally investigated the possibility of a cosuspect based on a witness report that two white males left the bar after the shooting. However, Johnson's counsel was also provided a copy of the police complaint report during discovery, as evidenced by the state attorney's letter regarding discovery materials. This report clearly states that a named witness saw "two W/M drive away from the tavern." Thus, any police investigation of a co-suspect is not newly discovered evidence nor is it withheld Brady evidence. Furthermore, the fact that the police might have investigated the possibility of a co-suspect does not establish a reasonable probability that the outcome would be different had Johnson presented this information at trial and cannot satisfy either the Brady or Jones standards. Thus, the trial court correctly denied relief without a hearing on this claim.

Johnson also claims that the police withheld exculpatory character evidence regarding the customer victim. According to the victim's girlfriend, he was the type of person who would have resisted the robbery attempt. Under section 90.404(1)(b), Florida Statutes (2000), evidence of a pertinent trait of character of the victim of the crime may be offered by the accused. While this evidence might have been admissible if known to Johnson at the time of trial, it would not "probably produce an acquittal...