Johnson v. State
| Docket Number | WD85293 |
| Decision Date | 08 August 2023 |
| Parties | RAY JOHNSON, Appellant, v. STATE OF MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Patrick William Campbell, Judge
Before Gary D. Witt, Chief Judge, Presiding, Lisa White Hardwick Judge, W. Douglas Thomson, Judge
Ray Johnson ("Johnson") appeals the judgment of the Circuit Court of Jackson County, Missouri ("motion court"), denying, after an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 29.15.[1] Johnson argues that the motion court erred in (1) denying Johnson's claim that his trial counsel ("Trial Counsel") was ineffective for failing to object to a portion of the State's closing argument at trial; and (2) denying Johnson's claim that Trial Counsel was ineffective for failing to call a fact witness. Finding no error, we affirm.
Factual and Procedural Background[2]
Johnson shot and killed Victim. On the evening of April 23, 2016 Victim and Johnson were both inside Bobs-N-Motion bar ("Bob's"). The shooting occurred just outside the bar. Portions of the events of the evening inside Bob's were captured on the bar's video recording system. Johnson was inside Bob's with a group of other men. After some time, Victim exited the building. Upon noticing this, Johnson tapped one of the men he was with on the shoulder and Johnson, the man whom Johnson tapped on the shoulder, and another man in the group followed Victim outside.
Once outside of Bob's, Victim and Johnson became involved in a physical altercation. The State presented the testimony of Eye Witness to these events. Eye Witness testified that he saw a fight occur outside of Bob's while riding as a passenger in a vehicle that was driving past the building. He stated that the men were already fighting when the car he was riding in drove past. The window on the vehicle was rolled down. In observing this encounter, Eye Witness heard one of the men say "get off me" and then saw Johnson raise a gun, point it at Victim, and shoot him. Eye Witness saw Victim fall to the ground, at which point Eye Witness testified that Johnson proceeded to stand over him and shoot him three to four more times. He testified that the man with the pistol was wearing a white t-shirt with blue and red stripes, matching Johnson's appearance as shown in surveillance footage from inside Bob's. After seeing Johnson shoot Victim, Eye Witness testified that he saw Johnson run south. Surveillance video footage from a neighboring building confirmed Eye Witness's account of an altercation between Victim and Johnson. This footage also showed the two men, who followed Johnson outside the bar, leaving the scene but did not show them involved in the altercation.
Police arrived at the scene of the shooting where they found Victim still breathing but bleeding profusely. At the scene, police also found a broken pair of eyeglasses on the ground, which later DNA testing established Johnson to be a "source of the major genetic information" and which matched the appearance of the glasses worn by Johnson as captured in video footage from inside Bob's. Four days after the shooting occurred, police detained Johnson, who had a black eye and was wearing a new pair of eyeglasses.
Johnson was charged with first-degree murder and armed criminal action. At trial, the State made the following argument to the jury:
The jury found Johnson guilty on Count I of murder in the first degree, and the trial court sentenced Johnson to a sentence of life imprisonment without the possibility of parole for the murder charge and a consecutive 10-year sentence on Count II for the charge of armed criminal action. On direct appeal, this court affirmed Johnson's conviction in State v. Johnson, 599 S.W.3d 222 (Mo. App. W.D. 2020). Johnson then timely filed his pro se motion for post-conviction relief pursuant to Rule 29.15, following which appointed counsel timely filed an amended motion. As relevant to this appeal, Johnson alleged that his Trial Counsel was ineffective in failing to object to the above quoted language from the State's closing argument and that Trial Counsel was ineffective for failing to call a woman who was walking her dog ("Dog Walker") nearby the scene of the crime as a fact witness during trial. The motion court held an evidentiary hearing on the amended motion.
Dog Walker was not called as a fact witness at Johnson's trial, although Trial Counsel was aware of Dog Walker through the discovery, as she had been interviewed by the police during the investigation. Dog Walker stated that she was walking her dog near Bob's when she heard what sounded like fireworks and saw two men not matching the description of Johnson shouting and motioning toward the bar before leaving the area in a vehicle. Trial Counsel testified at the evidentiary hearing that she had received a copy of Dog Walker's videotaped statement to police, along with a corresponding transcript. Trial Counsel also testified that she asked her investigator to locate and interview Dog Walker, and that based on that conversation and conversations with Johnson, she chose not to call Dog Walker as a witness. The motion court then issued Findings of Fact and Conclusions of Law, as well as a Judgment and Order denying relief. This appeal follows.
"When reviewing a motion court's denial of a claim of ineffective assistance of counsel, the reviewing court is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Lindsey v. State, 633 S.W.3d 547, 551 (Mo. App. W.D. 2021) (quoting Hays v. State, 360 S.W.3d 304, 309 (Mo. App. W.D. 2012)); Rule 29.15(k); Davis v. State, 653 S.W.3d 169, 171 (Mo. App. S.D. 2022). "A judgment is clearly erroneous when, in light of the entire record, the court is left with a definite and firm impression that a mistake has been made." Hollings v. State, 662 S.W.3d 821, 828 (Mo. App. E.D. 2023); Beck v. State, 637 S.W.3d 545, 551 (Mo. App. W.D. 2021) (citing Watson v. State, 520 S.W.3d 423, 428 (Mo. banc 2017)). "The motion court's findings of fact and conclusions of law are presumed to be correct." Beck, 637 S.W.3d at 551.
Both points on appeal argue that the motion court erred in denying Johnson's claim of ineffective assistance of counsel.
Johnson's first point on appeal argues that the motion court erred in denying his claim that Trial Counsel was ineffective for failing to object to the State's closing argument. The jury was instructed on the charge of first-degree murder and multiple lesser included offenses. In its closing argument the State argued that the jurors needed only consider the lesser-included offense instructions if they found Johnson not guilty of murder in the first degree.
Ineffective assistance of counsel is not established when counsel chooses to pursue one reasonable trial strategy in favor of another. Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019). Counsel's choices and conduct are viewed through an objective lens. Strickland, 466 U.S. at 688. Further, counsel's decisions are presumed to be strategic. McLaughlin v. State, 378 S.W.3d 328, 343 (Mo. banc 2012). Reasonable trial strategy decisions cannot be a basis for post-conviction relief, regardless of whether they were ineffective in hindsight. Whitt v. State 366 S.W.3d 669, 674 (Mo. App. E.D. 2012). The decision to pursue an all-or-nothing defense strategy has repeatedly been deemed reasonable trial strategy. Jones v. State, 514 S.W.3d 72, 81-82 (Mo. App. E.D. 2017). As long as the strategic choice is made after a thorough investigation of the facts and the law, the...
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