Johnson v. State

• Decision Date: 29 January 2013
• Docket Number: No. SC 91787.,SC 91787.
• Citation: Johnson v. State, 388 S.W.3d 159 (Mo. 2013)
• Parties: Johnny A. JOHNSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

388 S.W.3d 159

Johnny A. JOHNSON, Appellant,

v.STATE of Missouri, Respondent.

No. SC 91787.

Supreme Court of Missouri, En Banc.

Nov. 20, 2012.

Rehearing Denied Jan. 29, 2013.

Robert W. Lundt, Public Defender's Office, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Attorney General's Office, for respondent.

GEORGE W. DRAPER, III, Judge.

Johnny A. Johnson (hereinafter, “Movant”) was convicted by a jury of first-degree murder, section 565.202, RSMo 2000; ¹ kidnapping, section 565.110; attempted forcible rape, section 566.030; and armed criminal action, section 571.015. The trial court sentenced Movant to death and three life sentences to be served consecutively. This Court affirmed his convictions in State v. Johnson, 207 S.W.3d 24 (Mo. banc 2006). Movant's motion for post-conviction relief pursuant to Rule 29.15 was overruled by the motion court after an evidentiary hearing. 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 post-conviction relief is affirmed.

Factual and Procedural History

On July 26, 2003, Casey Williamson (hereinafter, “Victim”) woke early in her home and went downstairs to watch television before getting dressed for the day. Movant had spent the prior night sleeping on the couch and was present when Victim began watching television. Movant then asked Victim to accompany him to an abandoned factory to play games and have fun; Victim agreed.

When Movant and Victim arrived at the abandoned factory, Movant began to sexually assault Victim, exposing himself, and seeking for Victim to remove her nightclothes. A struggle ensued. Movant grabbed a brick and hit Victim in the head at least six times. Victim attempted to escape, but Movant continued hitting her with the brick. Eventually, Victim was knocked to the ground and the right side of her skull was fractured. Because Victim was still moving, Movant lifted a basketball-sized boulder and brought it down on Victim's head. Victim then stopped breathing.

After the murder, Movant attempted to conceal the crime scene. Then Movant washed to remove Victim's blood and other evidence from his body.

When questioned by the police, Movant was informed of his Miranda² rights multiple times and waived them. After questioning, Movant confessed.

Movant was tried and convicted. Movant was sentenced to death. This Court affirmed the conviction and sentence on direct appeal. Johnson, 207 S.W.3d at 50.

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

Standard of Review

This Court will affirm the judgment of the motion court unless its findingsand 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)). There is a presumption the motion court's findings are correct. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). Additionally, a movant bears the burden of proving the asserted “claims for relief by a preponderance of the evidence.” Rule 29.15(i).

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 of ineffective assistance of counsel. 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 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 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 the prejudice requirement of 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, 290 S.W.3d at 708 (quoting State v. Kenley, 952 S.W.2d 250, 266 (Mo. banc 1997)).

1. Brain damage

Movant asserts his trial counsel was ineffective for failing to adduce readily available evidence of his brain damage and neuropsychological impairments because his expert witnesses both suspected brain damage and recommended that counsel obtain additional neuropsychological testing. Movant believes that had counsel consulted with a neuropsychologist, counsel would have discovered that his brain damage and neuropsychological impairments affected his ability to think, problem solve, act rationally, and deal with stress. Further, had the jury been presented this evidence, there was a reasonable probability that it would not have found that Movant deliberated and would have imposed a life sentence.

The motion court made an extensive record of the evidentiary hearing regarding Movant's Rule 29.15 motion. The motion court denied Movant's claim that his trial counsel was ineffective for failing to call Dr. Beaver ³ to testify regarding neuropsychological impairments. At the evidentiary hearing, Dr. Beaver stated he conducted his first test of Movant two and one half years after Movant was convicted and sentenced to death. Dr. Beaver did not attempt to consult with any previous evaluator who assessed Movant closer to the time of his crime, nor did he consider any of the previous testing documents. Dr. Beaver also considered information regarding Movant from after he was convicted and sentenced.

Dr. Beaver testified at the evidentiary hearing that he administered fifteen testing measures during his two visits with Movant. Dr. Beaver stated his testing confirmed Movant is not mentally retarded. Dr. Beaver reiterated Movant's history of sexual and physical abuse, suicide attempts, trouble at school, learning disabilities, and extensive drug abuse.

Dr. Beaver recounted Movant's statements that he was unable to recall any details about the crime he committed. This is consistent with his statements to every other health professional who evaluated Movant. However, Dr. Beaver never spoke with any of the other health professionals. Dr. Beaver opined that Movant suffered from post-traumatic stress disorder, but Dr. Beaver did not express any opinion as to how that related to the murder.

Dr. Beaver concluded that Movant “does have an organic brain syndrome combined with significant psychiatric disorders and those are permanent conditions for him.” Further, Dr. Beaver stated that, on the day of the murder, Movant's condition “would affect his ability to think, to problem solve, to act rationally, to deal with stress, to make appropriate decisions.” However, Dr. Beaver failed to provide the motion court with a diagnosis of Movant, and he offered no opinion as to Movant's competency to stand trial, his ability to deliberate on his actions or his responsibility for the crime.

The motion court further summarized the extensive trial testimony and reports filed by Drs. Dean, English, Becker, and Rabun. Each of these doctors concluded Movant suffered from schizophrenia or schizoaffective disorder. Three of them agreed that Movant was capable of deliberation; Dr. Dean opined Movant was not capable of deliberating on his crime, but he was still responsible for his actions. Drs. Dean, English, and Becker each investigated the potential of brain damage in their reports and testimony.

Movant's trial counsel discussed retaining a neuropsychologist with Drs. Dean and Draper, but has no recollection of a specific reason why they did not seek advice from a neuropsychologist. Trial counsel relied on Dr. Dean's report, which concluded that her testing did not find significant neuropsychological impairment. Trial counsel also relied upon Dr. Keyes' review of Movant's records to determine whether Movant suffered from mental retardation.

The motion court concluded that Dr. Beaver's testimony was of little consequence because he never diagnosed Movant formally, and he failed to offer an opinion regarding Movant's responsibility, competency, or diminished mental capacity. The motion court found trial counsel made reasonable efforts investigating Movant's mental status and relied on the findings of multiple health care professionals. The motion court concluded that trial counsel, after a reasonable investigation of Movant's mental state, was not ineffective for not shopping for a psychiatrist or psychologist who would testify in a particular way.

In a death penalty case, counsel is expected to “discover all reasonably available mitigating evidence.”...