Johnson v. State
| Decision Date | 07 December 2010 |
| Docket Number | No. WD 71057.,WD 71057. |
| Citation | 330 S.W.3d 132 |
| Parties | Brett L. JOHNSON, Appellant,v.STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Supreme Court Denied Feb. 1, 2011.
Susan L. Hogan, Kansas City, MO, for appellant.Shaun J. Mackelprang and Karen L. Kramer, Jefferson City, MO, for respondent.Before Division One: JAMES M. SMART, JR., P.J., MARK PFEIFFER, and CYNTHIA L. MARTIN, JJ.PER CURIAM:
Brett L. Johnson appeals the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing in which he sought to vacate his convictions for first-degree murder and armed criminal action. He contends that the motion court clearly erred in denying his claims of ineffective assistance of trial and appellate counsel. The judgment is affirmed.
The State charged Brett Johnson with first-degree murder, section 565.020, 1 and armed criminal action, section 571.015, for his part in the stabbing death of sixteen-year-old Jimmy Weber. The cause went to trial before a jury, and the following evidence was presented.
In the fall of 1999, Johnson and some friends were planning an armed robbery of a local grocery store. They asked their friend Jimmy Weber to drive the “get-away” car, but he declined. At some point, Weber told the group that he had thrown away the stolen shotgun that they planned to use in the robbery.2 Johnson and his co-conspirator, James Boyd, were angry about this and grew concerned that Weber would tell the police about the planned robbery. The two devised a plan to lure Weber into the woods and kill him.
On Saturday night, September 25, 1999, Johnson and Boyd were riding around with two other friends, Lindsay Harper and Adam Lile, in Lile's vehicle. They drove to Searcy Creek Parkway, and Johnson told Lile to pull over. Johnson and Boyd got out of the car and walked to a spot near where the group would later rendezvous and flee the murder scene. At Johnson's suggestion, Lile then drove the group to Weber's home, and Weber joined them. They drove to a wooded area near some townhouses where Johnson had lived as a child. Johnson suggested that they all go into the woods where he often had played. Harper and Weber were reluctant but eventually agreed. Johnson led the group into the woods. Boyd, Lile, and Weber stopped near the top of a hill, but Johnson kept walking. Harper also stopped, unsure of what to do. Johnson told her to come with him, and she followed him.
Johnson and Harper stopped when they reached a clearing. Harper then heard Weber pleading for his life and crying. She asked Johnson what was happening, and Johnson said, “You know Jimmy's not coming out of the woods tonight.” Lile saw Boyd pull a knife out from the waist of his pants and begin stabbing Weber. Boyd stabbed Weber a total of twenty-eight times in the neck, chest, abdomen, back, and arms while Weber pleaded for his life.
Boyd and Lile then joined Johnson and Harper in the clearing, and Boyd said, Johnson asked Boyd, “What happened?” and Boyd said, Boyd and Johnson disagreed about which direction to go. At Johnson's insistence, they walked back the same way they had come “to avoid leaving a trail.” As they walked past Weber lying on the ground, Harper heard Johnson say, “there's our boy,” and Lile heard Johnson ask if anyone wanted a new pair of shoes. Weber then gasped, and the group ran from the scene. When they stopped, Johnson said he would go get the car. The group waited for Johnson atop a hill near Searcy Creek Parkway (a different spot from where they had entered the woods). Johnson drove around to that location and picked them up. As they drove off, Johnson told the group that they needed alibis. He told Harper and Lile what their alibis should be.
The next day, another acquaintance, Aaron Clary, stopped by Johnson's house. Boyd was there with Johnson. Boyd and Johnson had shared a duplex with Clary earlier that summer. When Clary asked about Weber, Johnson told him Weber was “underground.” Clary did not know what that meant. At Johnson's request, Clary agreed to let Boyd stay with him that night.
On the way to Clary's residence, Boyd told Clary that he had killed Jimmy Weber and left his body in the woods. Boyd said he and Johnson planned the murder; Lile was there to prevent Weber from running and Harper was there to make Weber feel comfortable about going into the woods with them. Boyd told Clary that he and Johnson's brother, Branden, had tried unsuccessfully to bury the body. He asked Clary to help him bury the body. Clary told Boyd he did not believe his story. The next day, Monday, Boyd led Clary into the woods and showed him Weber's body.
When Clary was able to extricate himself from Boyd, he went to see his attorney. Clary told his attorney what he had seen, and the attorney called the Clay County prosecutor. Clary's attorney arranged for the prosecutor and the county sheriff to meet Clary at the attorney's office. From there, Clary led the authorities to the woods, where they found Jimmy Weber's dead body. Near the body, officers found a shallow square-shaped depression in the ground that recently had been dug. They also found a shovel and a knife close by. Johnson, Boyd, and the others involved in the crime were arrested that evening.
Kansas City police officers arrested Lindsay Harper at college in Warrensburg. They brought her back to the police department in Kansas City, where she told them what had happened. She said she did not have any prior knowledge that the murder was going to happen. She gave a videotaped statement to police that included her claim that Johnson said: “You know Jimmy's not coming out of the woods tonight.” She later gave a second videotaped statement in which she repeated that statement but also added other details about the night of the murder.
Police also arrested Johnson that Monday evening. After waiving his Miranda rights, Johnson gave the police three different stories. In his first two versions, he denied having any prior knowledge that Weber was going to be killed. Johnson gave a third story after an officer told him his second story was not credible in light of others' statements. This time, Johnson said he and his friends became concerned that Weber was going to tell the police about their robbery plans. Johnson said they decided to kill Weber so he could not tell anyone, and they planned the roles everyone would play when they took Weber into the woods: Boyd was to stab Weber, Lile was to block Weber's exit, and Johnson was to take Harper away so she could not see what was happening. Johnson declined to make a videotaped statement.
At trial, Lile, Harper, Clary, and the detective who interviewed Johnson testified consistent with the foregoing recitation of facts. The parties agreed to play Harper's two videotaped statements for the jury and to provide transcripts of the recordings.
Johnson also testified. He said Boyd stabbed Weber while Johnson and Harper were hiking ahead of the others. He said Boyd never told him why he did it. Johnson said that the second time he heard Weber crying out, he said, “Oh my God, Jimmy might not leave the woods.” Johnson acknowledged that he had “thumbed through” some books belonging to Boyd about how to commit murder. Johnson said it was Boyd who first suggested that they come up with alibis. Johnson also called his brother, Branden, to testify. Branden said that Boyd showed him Weber's body and where the knife was hidden. He said Boyd asked him to help bury the body but he refused.
The State then called Johnson's ex-girlfriend to rebut his testimony that he did not take Boyd's threats to harm people seriously. She stated that Boyd did what Johnson told him to do. She said Johnson once threatened that if she did not shut her mouth, Boyd would “take a bath in her blood,” at which point, Boyd licked his knife. She also told the jury that Johnson and Boyd talked about forming their own mafia, or “gang type thing.”
The State also called Randall Sanford as an additional rebuttal witness. Sanford had shared a jail cell with Johnson. According to Sanford, he and Johnson had discussed Johnson's charges and the facts of the case. Sanford testified, inter alia, that Johnson had admitted to him that while Johnson was in the woods (at the time of the scream by Jimmy Weber coming a distance away in the woods), that Johnson did not say, “Oh my God, Jimmy might not leave the woods.” Sanford testified that Johnson admitted to him that Johnson actually said, at that time, something more similar to what Harper had testified he said: “You know Jimmy's not coming out of the woods tonight.” He also said that Johnson claimed to be the leader of the group that night, rather than Boyd, and admitted that they did it because they were afraid Weber would tell police about the robbery plan. Johnson objected to Sanford's testimony on grounds that the State had not informed the defense about Sanford or about any statements Johnson allegedly had made to him. The court, after allowing Johnson's attorney an opportunity for a brief interview with Sanford, and after requiring the prosecution to provide the defense with Sanford's criminal record, overruled Johnson's objection based on surprise, and allowed Sanford's testimony.
While in deliberation, the jury asked to see the transcripts of Harper's two statements, and the parties agreed to provide them. Ultimately, the jury found Johnson guilty of first-degree murder and armed criminal action, and the court sentenced him to concurrent terms of life without the possibility of parole and twenty-five years. Johnson appealed, and this court affirmed in a per curiam opinion, State v. Johnson, 135 S.W.3d 535 (Mo.App.2004).
Johnson filed a timely motion for post-conviction relief. He raised claims of ineffective assistance of both trial and appellate counsel....
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