Johnson v. State

• Decision Date: 03 June 1987
• Docket Number: No. DP-16,DP-16
• Citation: 508 So.2d 1126
• Parties: Edward Earl JOHNSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1126

508 So.2d 1126

Edward Earl JOHNSON v. STATE of Mississippi.

No. DP-16.

Supreme Court of Mississippi.

June 3, 1987.

Barry H. Powell, Thomas, Price, Alston, Jones & Davis, R. Jess Brown, Kenneth J. Rose, Sweet & Rose, Jackson, Robert B. McDuff, Washington, D.C., Clive A. Stafford Smith, Atlanta, Ga., for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Marvin L. White, Jr., Asst. Atty. Gen., Jackson, for appellee.

Before En Banc.

DAN M. LEE, Justice, for the Court:

Edward Earl Johnson was indicted, tried, and convicted of capital murder in the shooting death of J.T. Trest. Trest, the Town Marshall of Walnut Grove, was killed on June 2, 1979.

Sometime in the early morning hours of June 2, an intruder entered the home of Miss Sally Franklin, an elderly resident of Walnut Grove. A struggle ensued between the stranger and Miss Franklin, which was loud enough to wake a boarder in her home. The boarder called some neighbors to report the incident. At about the same time, another neighbor awoke to the sound of gun shots. This neighbor called the police.

After checking on Miss Franklin's condition, two of the neighbors found J.T. Trest about fifteen yards from the Franklin home, lying in front of his patrol car. An autopsy performed on Trest indicated that he had been shot first with a .25-caliber pistol found at the scene. Trest's .357 Magnum was missing, and one of Trest's wounds appeared to have been caused by a gun of similar caliber.

Johnson was questioned twice in connection with the crime--the second time after it was discovered that he had been seen with a .25-caliber pistol the week before the incident. After the second arrest, Johnson agreed to take a polygraph test; however, before taking it, he gave an oral, taped confession and a subsequent signed statement in which he admitted shooting Trest and told officers where Trest's gun could be found. Johnson was ultimately found guilty of capital murder and sentenced to death.

Johnson's conviction and sentence were affirmed by this Court on direct appeal, Johnson v. State, 416 So.2d 383 (Miss.1982), and on error coram nobis, Johnson v. Thigpen, 449 So.2d 1207 (Miss.1984). The district court denied his petition for a writ of habeas corpus, Johnson v. Thigpen, 623 F.Supp. 1121 (S.D.Miss.1985), and the court of appeals affirmed that decision, Johnson v. Thigpen, 806 F.2d 1243 (5th Cir.1986), cert. den. --- U.S. ----, 107 S.Ct. 1618, 94 L.Ed.2d 802 (1987). As a result, Johnson's execution was set for May 20, 1987. On May 13, 1987, Johnson filed a Motion for Stay of Execution and a Motion for Post-Conviction Relief. These motions were denied by this Court on May 18, 1987. Having entered an Order denying those motions on Monday, May 18, 1987, we hereby adopt the body of that Order as the opinion of this Court, as follows:

1. IS JOHNSON CURRENTLY INCOMPETENT?

Johnson's first point alleges present insanity as a bar to his execution on grounds of cruel and unusual punishment. The point is predicated on the affidavits of a clinical psychologist and a psychiatrist. Having examined these affidavits, we find that Johnson has "failed to establish to a reasonable probability that he is presently insane." Billiott v. State, 478 So.2d 1043, 1045 (Miss.1985) cert. denied, Billiott v. Mississippi, 469 U.S. 1230, 105 S.Ct. 1232, 84 L.Ed.2d 369 (1985). Accordingly, we find that he falls short of the evidentiary showing required of a proponent of this claim. See Miss.Code Ann. Sec. 99-19-57(2)(b) (Supp.1986); Ford v. Wainwright, 447 U.S. ----, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). (Although we overruled Johnson's Motion to Strike Counter-Affidavits, we do not find it necessary to consider them because he failed to make out a prima facie case of present insanity by his affidavits.) We hold, therefore, that Point 1 is without merit.

2. WAS JOHNSON'S CONFESSION TAKEN IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL?

This attack on the admissibility of Johnson's confession has not been raised in any of his previous state court pleadings nor has he shown sufficient legal "cause" to excuse his failure to timely raise the claim. Accordingly, this claim is procedurally barred. Evans v. State, 485 So.2d 276, 282 (Miss.) cert. denied Evans v. Mississippi, --- U.S. ----, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986); Irving v. State, 498 So.2d 305, 308 (Miss.1986). See also Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Alternatively, were we to address the merits of this claim, it is apparent from the record and our opinion on direct appeal that Johnson was not arrested pursuant to a warrant. Johnson v. State, 416 So.2d 383, 385-6 (Miss.1982).

3. DID THE TRIAL COURT EXCLUDE MITIGATING AND REBUTTAL EVIDENCE IN VIOLATION OF SKIPPER V. SOUTH CAROLINA ?

This point is also raised for the first time in this particular context. Absent a showing of "cause" under Miss.Code Ann. Sec. 99-39-21, a showing conspicuously absent from his Petition, this claim is procedurally barred under Evans and Irving. Moreover, we note that the facts of this claim were challenged in a somewhat different fashion on direct appeal to this Court. Therefore, the point is barred by our state rule prohibiting the successive litigation of facts reconstituted into a claim differing in form from that originally raised and resolved. Gilliard v. State, 446 So.2d 590 (Miss.1984).

4. DID THE ACTIONS OF THE PROSECUTION AND THE TRIAL JUDGE FATALLY REDUCE THE JURY'S SENSE OF RESPONSIBILITY IN VIOLATION OF CALDWELL V. MISSISSIPPI ?

Johnson alleges that comments of the trial judge and the district attorney diminished the jury's sense of sentencing responsibility and were constitutionally impermissible. That claim has not been heretofore presented to this Court despite the litigation on direct appeal of issues arising during the closing arguments (the source of the now complained-of comments). We note an insufficient showing of "cause" to excuse the failure to raise this issue at the appropriate time in prior state proceedings, and, thus, this claim is procedurally barred. Miss.Code Ann. Sec. 99-39-21, supra; Irving; Evans.

5. DID THE INSTRUCTIONS AT THE PENALTY PHASE UNCONSTITUTIONALLY SHIFT THE BURDEN OF PROOF IN VIOLATION OF FRANCIS V. FRANKLIN ?

Johnson here suggests that he was unfairly saddled with a burden of proof in the sentencing phase of his trial, via the judge's granting of Instruction S-7. We note that this instruction remained unchallenged throughout the trial, direct appeal, and Petitioner's previous Petition for Writ of Error Coram Nobis, rendering applicable a rule of procedural forfeiture, in the event the Petitioner fails to establish "cause" under the appropriate statute. Even if we assume for the sake of argument that Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) offers an excuse of "new law," it is inapplicable to this case, since we further find that there was no illicit burden-shifting instruction given in this case. Under both Francis and a long line of state cases, see e.g., Roberts v. State, 458 So.2d 719 (Miss.1984); Billiot v. State, 454 So.2d 445 (Miss.1984), charges to the jury are examined as a whole to assess whether a jury was fairly and fully instructed on the law. When such examination is performed on the instruction at issue in this case, it is clear that the jury was unequivocally and properly advised on the unwavering burden of proof shouldered by the state prerequisite to the jury's consideration of the death penalty. Specifically, Instruction S-12, read together with S-7, sets forth a complete statement of the law, the jury's understanding of which is borne out in their verdict finding the existence of two aggravating circumstances. In sum, S-7 in no way effectively shifted the burden within the meaning afforded that term in Franklin.

6. WAS THE MISSISSIPPI CAPITAL STATUTE IN FORCE AT THE TIME OF JOHNSON'S TRIAL FACIALLY UNCONSTITUTIONAL?

This issue has never before been raised by Johnson and is barred by Miss.Code Ann. Sec. 99-39-21, supra, Evans, and Irving. Alternatively, the record reflects no unconstitutional restriction on the scope of mitigating evidence adduced by the defense at trial.

7. WAS JOHNSON DENIED THE EFFECTIVE ASSISTANCE OF HIS COUNSEL IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLE 3, SECTIONS 14, 26 AND 28 OF THE MISSISSIPPI CONSTITUTION?

This point consists of several allegations that Johnson's counsel was ineffective, with numerous individual claims. We need not specifically address each point, for we find the overall issue of ineffective assistance of counsel to be procedurally barred and directly controlled by our holding in Evans. Therein, we barred an identical claim made in a second post-conviction proceeding, such as this one, where Evans failed to show cause for his failure to raise the claim in his first post-conviction action. We hold here that Johnson waived the issue of effective assistance of trial counsel when he declined to assert the point in his error coram nobis pleading, in 1984. Furthermore, he has not evidenced sufficient cause to excuse this waiver, since records reflect that trial counsel exited state court proceedings at the conclusion of the direct appeal and did not participate in the presentation of the error coram nobis pleading. In sum, the claim of ineffective assistance is not procedurally viable.

8. DID THE PROSECUTION FAIL TO REVEAL THAT ONE JUROR HAD A SUBSTANTIAL REASON TO FAVOR THE PROSECUTION, AND DID IT FAIL TO CORRECT A JUROR'S KNOWN PERJURY ON VOIR DIRE?

Johnson here asserts for the first time an allegation of a biased juror, a fact described as newly-discovered. Counsel's failure to substantiate any reason why this claim could not have been discovered and raised in earlier stages of this appeal leads us to bar this claim. Miss.Code Ann. Sec. 99-39-21, supra, Evans, Irving.

9. WAS...