Johnson v. State

Decision Date01 October 2013
Docket NumberNo. SC92448.,SC92448.
PartiesKevin JOHNSON, Jr., Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

406 S.W.3d 892

Kevin JOHNSON, Jr., Appellant,
STATE of Missouri, Respondent.

No. SC92448.

Supreme Court of Missouri,
En Banc.

July 16, 2013.
Rehearing Denied Oct. 1, 2013.

[406 S.W.3d 897]

Kent Denzel, Public Defender's Office, Columbia, for Johnson.

Daniel N. McPherson, Attorney General's Office, Jefferson City, for the State.


Kevin Johnson (hereinafter, “Movant”) was convicted by a jury of first-degree murder, section 565.202, RSMo 2000.1 The trial court adopted the jury's recommendation and sentenced Movant to death. This Court affirmed his conviction in State v. Johnson, 284 S.W.3d 561 (Mo. banc 2009). Movant's motion for postconviction relief pursuant to Rule 29.15 was overruled by the motion court after an evidentiary hearing on five of the fourteen allegations of error. Movant appeals. This Court has exclusive jurisdiction over this appeal because a sentence of death was imposed. Mo. Const. art. V, sec. 10; order of June 16, 1988. The judgment denying Movant post-conviction relief is affirmed.

Factual and Procedural History

On July 5, 2005, police officers were in the Meachem Park neighborhood investigating the ownership of a vehicle, suspected to be owned by Movant, who was wanted for a probation violation. At the same time, Movant's younger brother suffered a seizure inside his home. Movant's family sought assistance from the police officers who were already in the neighborhood. The police officers called for an ambulance, attempted to assist inside the house, and additional police officers, including Sergeant William McEntee (hereinafter, “Sgt. McEntee”), were called to the scene. Movant's brother was taken to the hospital, but he passed away from a preexisting heart condition.

Later that day, Movant retrieved his black, nine millimeter handgun from his vehicle. Movant told friends he believed the police officers were so busy looking for him that they let his brother die.

[406 S.W.3d 898]

Sgt. McEntee returned to the Meachem Park neighborhood that evening, responding to a report of fireworks in the neighborhood. As Sgt. McEntee spoke with three juveniles about the fireworks report, Movant approached his vehicle. Movant squatted down to see through the passenger window and said something to the effect of, “you killed my brother.” Movant then fired his handgun approximately five times. Sgt. McEntee was struck in the head and upper torso. One of the juveniles was struck in the leg. Movant reached inside Sgt. McEntee's car and took his gun.

Sgt. McEntee's car then rolled down the street, hitting a parked car and a tree. Sgt. McEntee got out of his car and fell forward onto his knees, unable to talk due to his injuries and blood in his mouth. Movant approached, told everyone who had gathered to get out of his way, and Movant shot Sgt. McEntee approximately two more times in the head. When Sgt. McEntee collapsed, Movant rifled through Sgt. McEntee's pockets. Movant shot Sgt. McEntee a total of seven times in the head and upper torso.

Movant left Meachem Park, cursing and claiming, “that m––– f––– let my brother die, he needs to see what it feels like to die.” Movant spent several days at a family member's apartment while arrangements were made for him to surrender.

Movant was tried and convicted. Movant was sentenced to death. This Court affirmed the conviction and sentence on direct appeal. Johnson, 284 S.W.3d at 589.

Movant sought post-conviction relief through a Rule 29.15 motion. The motion court held an evidentiary hearing on five of his claims and entered judgment overruling Movant's motion in its entirety. Movant appeals the denial of post-conviction relief.

Standard of Review

This Court will affirm the judgment of the motion court unless its findings and conclusions are clearly erroneous. Rule 29.15(k); Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). The motion court's judgment is clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting Goodwin v. State, 191 S.W.3d 20, 26 (Mo. banc 2006)). The motion court's findings are presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336–37 (Mo. banc 2012). Additionally, a movant bears the burden of proving the asserted “claims for relief by a preponderance of the evidence.” Rule 29.15(f).

Pursuant to Rule 29.15, an evidentiary hearing is not mandatory when the motion and record conclusively show that the movant is not entitled to relief. Lamastus v. State, 989 S.W.2d 235, 236 (Mo.App. E.D.1999). Courts “will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). To be entitled to an evidentiary hearing, Movant's motion must: (1) allege facts, not conclusions, warranting relief; (2) raise factual matters that are not refuted by the file and record; and (3) raise allegations that resulted in prejudice. Id.

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a movant must demonstrate that: (1) his

[406 S.W.3d 899]

or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he or she was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.

A movant must overcome the strong presumption that counsel's conduct was reasonable and effective. Smith v. State, 370 S.W.3d 883, 886 (Mo. banc 2012). To overcome this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Trial strategy decisions may be a basis for ineffective counsel only if that decision was unreasonable. Id. “[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable....” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006).

To establish relief under Strickland, a movant must prove prejudice. Prejudice occurs when “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Prejudice in a death penalty case is “a reasonable probability that, but for counsel's deficient performance, the jury would have concluded the balance of aggravating and mitigating circumstances did not warrant death.” Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009) (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997)).

1. Diminished Capacity

Movant asserts the motion court clearly erred in denying his claim that his trial counsel were ineffective for failing to investigate and present a diminished capacity defense. Movant claims counsel should have adduced testimony from two expert witnesses regarding his acute stress disorder (hereinafter, “ASD”), which would have demonstrated Movant was not capable of deliberation. Movant believes that had counsel presented this evidence to the jury, there was a reasonable probability that the jury would have imposed a life sentence.

Movant claims his trial counsel should have presented the testimony of psychologist Dr. Daniel Levin (hereinafter, “Dr. Levin”) and Dr. Donald Cross (hereinafter, “Dr. Cross”) to prove he suffered from ASD at the time of the murder. Both of Movant's experts testified at the post-conviction hearing. Dr. Levin testified he was retained by post-conviction counsel to conduct a psychological evaluation of Movant to determine whether he suffered from a mental impairment, mental illness, or mental defect at the time of the murder that would interfere with his ability to deliberate. In addition to the documents Dr. Levin reviewed in preparation for his trial testimony, Dr. Levin reviewed additional documents from the Division of Family Services and other records to form his opinion. Dr. Levin testified at the evidentiary hearing that he believed Movant suffered from ASD at the time of the murder and that ASD would have impacted Movant's ability to deliberate. Dr. Levin stated he could have prepared the same evaluation prior to trial.

Dr. Cross also was retained by post-conviction counsel to conduct a psychological evaluation of Movant. Dr. Cross interviewed Movant three times, interviewed other family members, and reviewed records. Dr. Cross testified it was his opinion Movant was experiencing ASD at the time of the murder and that ASD would have impaired Movant's ability to coolly reflect and make rational, reasonable decisions.

[406 S.W.3d 900]

Movant's trial counsel also testified. Counsel Karen Kraft (hereinafter, “Kraft”) testified she decided as a matter of trial strategy not to pursue a diminished capacity defense because she believed Movant's story was compelling in relationship to the time the murder happened after his brother's death. Kraft stated that had the defense presented a mental health expert, the State would have sought its own evaluation of Movant. Kraft testified she did not want to turn Movant's story into one of competing mental health experts.

Counsel David Steele (hereinafter, “Steele”) testified he did not want to present evidence of all of the specific instances of abuse and neglect Movant suffered in his preschool years. Steele noted he believes a jury tends to have a certain tolerance and a certain time frame in which it is receptive to hearing evidence. Steele worried that he would lose the jury's attention and focus if it were to hear repetitive, cumulative...

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