Johnson v. State

• Citation: 333 S.W.3d 459
• Decision Date: 01 March 2011
• Docket Number: No. SC 90582.,SC 90582.
• Parties: Ernest JOHNSON, Appellant,v.STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

333 S.W.3d 459

Ernest JOHNSON, Appellant,

v.STATE of Missouri, Respondent.

No. SC 90582.

Supreme Court of Missouri, En Banc.

March 1, 2011.Rehearing Denied March 29, 2011.

William J. Swift, Public Defender's Office, Columbia, for Johnson.Evan J. Buchheim, Shaun J. Mackelprang, Attorney General's Office, Jefferson City, for the State.ZEL M. FISCHER, Judge.

This is an appeal from a Boone County circuit court judgment overruling Ernest Johnson's Rule 29.15 motion for post-conviction relief. This Court previously affirmed Johnson's 1995 guilty verdicts on three counts of first degree murder, but the three death sentences recommended by the jury and imposed by the circuit court were set aside on direct appeal, and the case was remanded for a new penalty-phase proceeding. See State v. Johnson, 968 S.W.2d 686 (Mo. banc 1998) ( Johnson I ). Following a second penalty-phase proceeding, the new jury returned three death sentences, and the circuit court sentenced Johnson to death. This Court affirmed the sentence of death on direct appeal in State v. Johnson, 22 S.W.3d 183 (Mo. banc 2000) ( Johnson II ). Those death sentences were later set aside by this Court during Johnson's second post-conviction appeal, and the case was remanded for a third penalty-phase proceeding because of incomplete evidence of his mental capacity, specifically, his alleged mental retardation. See Johnson v. State, 102 S.W.3d 535, 537 (Mo. banc 2003) ( Johnson III ). Following the third penalty-phase proceeding, the jury found that Johnson was not mentally retarded, and three death sentences were again imposed. Johnson appealed, and this Court affirmed the sentence of death on direct appeal. See State v. Johnson, 244 S.W.3d 144 (Mo. banc 2008) ( Johnson IV ).

Johnson then filed a Rule 29.15 pro se motion for post-conviction relief, and appointed counsel later filed an amended motion. An evidentiary hearing was held, and the motion court received testimony from three mental-health professionals, from Johnson's third penalty-phase attorneys, and from several other witnesses relating to guilt-phase testimony. The motion court entered findings and a judgment overruling Johnson's motion. Because death was imposed, this Court has exclusive jurisdiction over this appeal. Mo. Const. art. V, sec. 10; order of June 16, 1988.

Facts

This is the fifth time Ernest Lee Johnson has been before this Court. Johnson was convicted for the 1994 murders of three employees of a Casey's convenience store in Columbia. The victims were bludgeoned, stabbed, and shot. The details of the crimes are set forth in Johnson I, 968 S.W.2d at 689–90.

Johnson's third penalty-phase proceeding was held in Boone County circuit court in May 2006. The State presented evidence from police officers, the medical examiner, and other witnesses regarding the circumstances of the crime and presented testimony from family members of the victims. The State also presented a recorded interview between Johnson and a psychiatrist, Dr. Heisler, who evaluated Johnson for mental retardation in 2004.

Johnson called his brother and sister to testify, as well as former teachers, probation officers, an ex-girlfriend, and an ex-cellmate. He also called a psychiatrist, Dr. Parwatikar, and a psychologist, Dr. Smith, to testify about the effects his alleged cocaine use may have had on him at the time of the murders. Dr. Smith also testified that recent testing showed Johnson is mentally retarded, that Johnson's mother abused drugs and alcohol while she was pregnant with him, and that Johnson's condition suggests fetal alcohol syndrome. Johnson also presented testimony from Dr. Keyes, who testified that Johnson is mentally retarded.

The parties entered a stipulation before the jury that Johnson was the only person, other than the victims, who was in the store on the night of the murders. The jury found that Johnson had not proven by a preponderance of the evidence that he was mentally retarded. It also found beyond a reasonable doubt the existence of six statutory aggravating circumstances: (1) each murder was committed while murdering another victim; (2) each murder was committed while murdering yet another victim; (3) each victim was murdered for the purpose of receiving money; (4) each murder involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman; (5) each murder was committed to prevent defendant's arrest; and (6) each murder was committed while defendant was engaged in a robbery. Like the previous two juries that heard Johnson's case, the jury in Johnson's third penalty-phase proceeding recommended three death sentences, which the trial court later imposed.

Johnson filed a Rule 29.15 motion for post-conviction relief. An evidentiary hearing was held on the motion, and the motion court received testimony from three mental-health professionals specializing in fetal alcohol spectrum disorder, from Johnson's third penalty-phase attorneys, and from several other witnesses relating to guilt-phase testimony. The motion court entered findings and a judgment overruling Johnson's motion.

Standard of Review

This is an appeal from the motion court's judgment overruling Johnson's post-conviction motion. This Court reviews Johnson's claims for the limited purpose of determining whether the motion court clearly erred in making its findings of fact and conclusions of law. Skillicorn v. State, 22 S.W.3d 678, 681 (Mo. banc 2000); Rule 29.15(k). “In order to prove that his counsel was ineffective, a movant must show that counsel's performance ‘did not conform to the degree of skill, care, and diligence of a reasonably competent attorney’ and that movant was thereby prejudiced.” Id. (citing State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)). “To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different.” Id. “This Court presumes that counsel acted professionally in making decisions and that any challenged action was a part of counsel's sound trial strategy.” Id. at 681–82.

Analysis

Johnson raises six points on appeal.

I. Dr. Keyes's Testimony

Johnson argues the motion court erred in overruling his post-conviction motion because he received ineffective assistance of counsel in that effective counsel would not have called Dr. Keyes, but instead would have called a qualified, neutral fetal alcohol syndrome diagnostic expert. Johnson claims counsel called Dr. Keyes knowing that he was an unprepared, unqualified, and incredible witness and knowing that he was an advocate for the mentally retarded rather than an objective clinician.

“Generally, the selection of witnesses and the introduction of evidence are questions of trial strategy and virtually unchallengeable.” State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997). “[D]efense counsel is not obligated to shop for an expert witness who might provide more favorable testimony.” Id. at 268.

Johnson contends that trial counsel should have known that Dr. Keyes was an incredible witness because this Court rejected Dr. Keyes's testimony about mental retardation in another case, Goodwin v. State, 191 S.W.3d 20, 32 (Mo. banc 2006). In Goodwin, Dr. Keyes was called as a defense witness during a hearing on Goodwin's claims for post-conviction relief. 191 S.W.3d at 32. On appeal from the overruling of his Rule 29.15 motion, this Court held that Dr. Keyes's testimony that Goodwin was mentally retarded was insufficient to support a holding that the motion court clearly erred in finding Goodwin was not mentally retarded. Id. This Court pointed to three bases for this holding. Id. First, his testimony resulted from a diagnosis of Goodwin when he was 34 years old, but § 565.030.6, RSMo Supp.2006 ¹ requires that mental retardation be “manifested and documented” by age 18 years. Id. Second, Dr. Keyes's testimony lacked the necessary evidentiary support because the basis of his testimony was litigation materials chosen by defense counsel, not objective evidence. Id. Third, Dr. Keyes's testing was found to be unreliable because he was not trained to evaluate the IQ of a hearing-impaired individual, like Goodwin, and he failed to test for malingering or depression, which was below professional standards. Id. at 33.

This Court did not hold in Goodwin that Dr. Keyes is per se an incredible or unreliable witness. On the facts of that case, Dr. Keyes's testimony did not have the evidentiary support or reliability necessary to warrant relief. Here, arguably Dr. Keyes's testimony was based on objective factors, unlike his testimony in Goodwin. Dr. Keyes, who holds a Ph.D. in special education, evaluated Johnson. Based on Dr. Keyes's finding that Johnson was mentally retarded, Dr. Smith, who had previously evaluated Johnson in 1996 and 1999 and found he was not mentally retarded, changed his opinion. See Johnson IV, 244 S.W.3d at 156. Dr. Keyes's work was cited by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 316 n. 20, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Even though there were issues of credibility related to Dr. Keyes, see Johnson IV, 244 S.W.3d at 156, the decision to call him was reasonable trial strategy. Kenley, 952 S.W.2d at 266.

Significantly, the jury did not hear about the Goodwin opinion. Six days after the Goodwin opinion was issued, defense counsel moved for a continuance after jury selection on the ground that in Goodwin, Dr. Keyes's testimony had not been found to be credible evidence of Goodwin's mental retardation. The prosecutor agreed that he would not cross-examine Dr. Keyes regarding the Goodwin opinion, and the court overruled the continuance motion. The court noted that this Court's decision in Goodwin was based on the particular facts elicited in that case and not on the background that would be provided in Johnson's case.

Johnson attempts to prove counsel should have known...