Johnson v. State

• Decision Date: 12 October 1999
• Docket Number: No. 97-KA-01086-COA.,97-KA-01086-COA.
• Citation: 749 So.2d 369
• Parties: Carl Ray JOHNSON, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

749 So.2d 369

Carl Ray JOHNSON, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-01086-COA.

Court of Appeals of Mississippi.

October 12, 1999.

Thomas L. Kesler, Columbus, Attorney for Appellant.

Office of the Attorney General by Jolene M. Lowry, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., DIAZ, AND MOORE, JJ.

MOORE, J., for the Court:

¶ 1. Appellant Carl Ray Johnson was indicted by a Simpson County grand jury on one count of attempted aggravated assault, one count of aggravated assault, one count of murder, and one count of capital murder. Johnson was prosecuted in the Circuit Court of Lowndes County after a change of venue from the Circuit Court of Simpson County. Following a trial, the jury found Johnson guilty of aggravated assault of Mary Walker, manslaughter of R.V. Lewis, and capital murder of Simpson County Sheriff Lloyd Jones. The circuit court sentenced Johnson to fifteen years for aggravated assault, twenty years for manslaughter and life without parole for capital murder, all sentences to run consecutively, in the custody and control of the Mississippi Department of Corrections. Johnson appeals the manslaughter and capital murder convictions, citing a single issue on appeal:

WHETHER THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S PROPOSED SELF-DEFENSE INSTRUCTION, D-5.

Finding no error, we affirm.

STATEMENT OF THE FACTS

¶ 2. In late September or early October 1995, Carl Ray Johnson loaned money to his friend Mary Walker to pay her pastdue furniture bill. Walker did not use the loan money to pay her bill; instead, she gambled with some of the money and loaned some of the money to her sister's stepson Marrell Smith. Johnson was upset with Walker for not applying the borrowed money to her furniture bill.

¶ 3. At about 11:00 p.m. on October 3, 1995, Johnson picked Walker up from her home and drove her to his friend's house where they spent the night. At about 6:00 a.m. on the following morning, Johnson proceeded to drive Walker back to her house. On the way to Walker's home, Johnson and Walker encountered Smith who was driving his car on the same road. Johnson flashed his truck lights to capture Smith's attention. Both Johnson and Smith stopped and exited their vehicles. After exchanging words with Smith, Johnson became angry and retrieved a pistol from his truck. He shot at Smith who then ran away.

¶ 4. Alerted by the shots, Walker stepped out of Johnson's truck and asked him why he shot at Smith. Johnson turned toward Walker and shot her in the groin area. Johnson then told Walker to shut up or he would shoot her mother. Walker ran toward Johnson and he "slung" her on the ground and shot her again. Melinda Green ran from her home, which was in close proximity to the melee, to see what happened. Upon seeing a bleeding Walker on the ground, Green shouted that she would call Sheriff Lloyd Jones. According to Walker, Johnson said, "I'll shoot that big m____f____ too." Green ran back to her house, and Johnson drove away.

¶ 5. At about 7:00 a.m. that same morning, October 4, 1995, Harold Brown, a deputy jailer, and Jerry Lee Sims, a trustee prisoner, drove to Sheriff Jones's residence. They saw R.V. Lewis, a long-time trustee prisoner, lying dead on the ground with a shotgun near his body. They also saw Sheriff Jones slumped over in the front seat of his Suburban. Sheriff Jones, who had been mortally wounded, later died at the scene. No weapons were found on Sheriff Jones. Joe Edward Andrews, Jr., an expert in the field of micro-analysis employed by the Mississippi Crime Laboratory, testified that Jones had gunshot residue on his hands. Trustee Lewis did not have gunshot residue on his hands.

¶ 6. Johnson testified on his own behalf. He claimed that Smith had repaid some of the money to Walker. When Johnson stopped Smith on the road, he asked Smith how much of the money had he repaid to Walker. Johnson stated that he was angry because either Smith or Walker had lied to him about the amount of money Smith paid Walker. Johnson admitted he shot Walker twice. Johnson testified that prior to shooting Walker, he heard a voice in his head that told him not to let Walker get away. After he shot her, Johnson left Walker bleeding and lying in the road.

¶ 7. Johnson testified that he drove to Sheriff Jones's residence to turn himself in for shooting Walker. He claimed he saw a man he later learned was a trustee, Lewis, with a shotgun in his hand. The sheriff was in the front seat of his Suburban. Johnson stated that he told the sheriff he had just shot Walker, to which the sheriff responded: "Well you ain't shot nobody. She ain't nobody." Johnson then mentioned that Walker had accused the sheriff of having molested and killed a prisoner named Andre Jones a few years before. Johnson testified that the sheriff, who had begun uttering racial epithets at him, ordered Lewis to shoot him. According to Johnson, Lewis looked at Sheriff Jones and Jones again told Lewis to shoot Johnson. As Lewis fumbled with the shotgun, Johnson retrieved a shotgun from his truck. Johnson claimed that Lewis leveled his shotgun at him so he shot Lewis because "he was getting ready to shoot me."

¶ 8. Johnson testified that he approached Sheriff Jones and asked "[C]an we get someone out here?" Johnson claimed the sheriff told him, "[Y]ou're a dead n____." Johnson was looking toward the ground when he heard a shot; he then drew up and shot Sheriff Jones twice. Witnesses saw Johnson's truck leaving the scene of the homicides. He was later apprehended at a roadblock and taken into custody.

ANALYSIS

¶ 9. Appellant Johnson assigns and argues only one issue on appeal:

DID THE TRIAL COURT ERR IN REFUSING TO GRANT INSTRUCTION D-5?

¶ 10. If warranted by the evidence, it is fundamental that a defendant is entitled to a jury instruction on his theory of the defense. Slater v. State, 731 So.2d ¶ 15 (¶ 12) (Miss.1999). This Court examines the jury instructions as a whole in deciding whether the trial court committed reversible error in refusing to grant a jury instruction. Coleman v. State, 697 So.2d 777, 782 (Miss.1997). "[T]he instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Hickombottom v. State, 409 So.2d 1337, 1339 (Miss.1982); see Ragin v. State, 724 So.2d 901

(¶ 28) (Miss.1998).

¶ 11. Johnson alleges that even though the trial court granted other self-defense instructions, none of the instructions directed the jury to consider the circumstances existing at the time of the homicides from his viewpoint. Johnson argues that the trial court should have given his proposed instruction, D-5, as follows:

INSTRUCTION D-5

The Court instructs the Jury that you are not to judge the actions of Carl Ray Johnson in the cool, calm light of after-developed facts, but instead you are to judge the his [sic] actions in the light of the circumstances confronting Carl Ray Johnson at the time, as you believe from the evidence that those circumstances reasonably appeared to him on that occasion; and if you believe that under those circumstances it reasonably appeared to Carl Ray Johnson that he then and there had reasonable ground to apprehend some great personal injury from R.V. Lewis and Lloyd Jones, and there reasonably appeared to Carl Ray Johnson to be imminent danger of such designs being accomplished; then he was justified in anticipating an attack and using reasonable means to defend such attack, then you must find Carl Ray Johnson not guilty of the murders of R.V. Lewis and Lloyd Jones.

¶ 12. The trial judge refused D-5 but gave three self-defense instructions, one proposed by the State and two proposed by the defendant. The trial court gave S-9, an instruction requested by the State, as follows:

INSTRUCTION S-9

The Court instructs the jury that to make a killing or assault justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or do him some great bodily harm, and in addition to this, he must have reasonable ground to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

¶ 13. S-9 is the exact instruction the Mississippi Supreme Court suggested that prosecutors should use when self-defense is an issue at trial. Robinson v. State, 434 So.2d 206, 207 (Miss.1983). Robinson was overruled by Flowers v. State, 473 So.2d 164, 165 (Miss.1985), to the extent that it "merely criticized instead of condemned the instruction which it replaced." Gossett v. State, 660 So.2d 1285, 1295 (Miss.1995). Until recently, the Mississippi Supreme Court held that the instruction suggested by the Robinson court was a correct statement of the law of self-defense and accurately guided the jury on the law of self-defense. Gossett, 660 So.2d at 1295. When the trial court gives a Robinson instruction, the trial court does not err when it does not instruct the jury to examine the circumstances at the time of the incident from the defendant's viewpoint. Id. In Cohen v. State, 732 So.2d 867 (Miss.1998), the court again approved the Robinson instruction as a complete and correct statement of self-defense law.

¶ 14. One month after Cohen, the court ruled that the Robinson instruction does "not sufficiently treat the subject of self defense...." Reddix v. State, 731 So.2d 591 (¶ 21) (Miss.1999). In Reddix, the defendant argued on appeal that the Robinson instruction was "incomplete in that it failed to instruct the jury that it was bound to acquit Reddix ... if it believed Reddix acted in self defense." Id. at (¶ 18). The court agreed, stating:

This instruction, while fine for the State, is not sufficient as a neutral self defense instruction.

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