Johnson v. Thigpen, 53017
| Decision Date | 02 May 1984 |
| Docket Number | No. 53017,53017 |
| Citation | 449 So.2d 1207 |
| Parties | Edward Earl JOHNSON v. Morris THIGPEN, Commissioner, Mississippi Department of Corrections; Eddie Lucas, Warden, Mississippi State Penitentiary; T.B. Bruce, State Executioner; and State of Mississippi. |
| Court | Mississippi Supreme Court |
Barry Powell, Gilbert & Powell, Jackson, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by William S. Boyd, III, Sp. Asst. Atty. Gen., Jackson, for appellees.
ON APPLICATION FOR LEAVE TO FILE PETITION FOR WRIT OF ERROR
CORAM NOBIS
En Banc.
This case is being heard on the petitioner's application for leave to file a writ of error coram nobis. Petitioner Johnson was found guilty of the June 2, 1979 capital murder of Town Marshal J.T. Trest. Following his conviction he was sentenced to death by a jury which found that his crime was aggravated by the following circumstances: (1) That the offense was committed while the defendant was in flight, after committing the crime of burglary or attempting to commit the crime of rape; and (2) the offense was especially heinous, atrocious or cruel. Johnson subsequently appealed to this Court which affirmed both his conviction and sentence in an opinion recorded at 416 So.2d 383 (Miss.1982). Johnson's petition for rehearing was subsequently denied on June 30, 1982.
In his instant petition Johnson assigns five points which he asserts require that we order that he be granted a new trial. We disagree. Each of Johnson's contentions is addressed below.
ITS FACE BECAUSE FELONY MURDER IS PUNISHABLE BY
DEATH AND PREMEDITATED MURDER IS NOT.
Johnson has no standing whatsoever to make this assertion as he was not found guilty of felony murder. Johnson was indicted under Sec. 97-3-19(2)(a) Mississippi Code Ann. (Supp.1981). That provision of this state's laws makes it a capital crime to murder a peace officer who is acting in his official capacity. The felony murder provision is Sec. 97-3-19(2)(e). Therefore, Johnson has no standing to argue the unconstitutionality of the felony murder provision as he was never charged with that crime.
LACK OF PRIOR NOTICE OF AGGRAVATING CIRCUMSTANCES.
This point was not raised on direct appeal but was objected to at trial when the state sought instructions on aggravating circumstances. The failure to raise this issue on direct appeal bars Johnson from raising it now. In Re: Evans, 441 So.2d 520 (Miss.1983); Smith v. State, 434 So.2d 212 (Miss.1983).
THE FAILURE TO ORDER A PRESENTENCE REPORT.
Section 47-7-9(3)(a) reads as follows:
(3)(a) Separate division personnel (hereinafter presentence investigators) shall be provided to perform investigation for the court as provided in this subsection. Presentence investigators shall conduct presentence investigations on all persons convicted of a felony in any circuit court of the state, prior to sentencing and at the request of the circuit court judge of the court of conviction. The presentence evaluation report shall consist of a complete record of the offender's criminal history, educational level, employment history, psychological condition and such other information as the department or judge may deem necessary.
The language of the above quoted statute makes it clear that a presentence report is required only where the circuit judge requests it. In Coleman v. State, 378 So.2d 640 (Miss.1979), we held that under this statute the presentence investigation is discretionary with the circuit court judge and not mandatory. Also, in a capital case the jury imposes the sentence and both the state and the defendant are entitled to present evidence. Therefore, there is no reason to order such a report. Finally, we note that this claim is procedurally barred because it was not raised on direct appeal. In Re: Evans, supra; Smith v. State, supra.
THE FAILURE TO EXPLAIN THE TERMS ESPECIALLY HEINOUS,
ATROCIOUS OR CRUEL.
Johnson did not request an instruction defining these terms. This failure and the subsequent failure to raise this point on direct appeal renders this point procedurally...
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Johnson v. Thigpen
...Johnson applied for leave to file a petition for writ of error coram nobis, which the Mississippi Supreme Court denied. Johnson v. Thigpen, 449 So.2d 1207 (Miss.1984). Then Johnson filed a petition for writ of habeas corpus, which the United States District Court denied. Johnson v. Thigpen,......
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Johnson v. Thigpen
...application for leave to file petition for writ of error coram nobis was denied by the Mississippi Supreme Court. Johnson v. Thigpen, 449 So.2d 1207 (Miss.1983). In June 1984, the instant petition for federal habeas relief pursuant to 28 U.S.C. § 2254 was filed, and this Court issued a stay......
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Edwards v. State
...investigation. Roberson v. State, 595 So.2d at 1315. See also Katz v. King, 627 F.2d 568, 576 (1st Cir.1980); Johnson v. Thigpen, 449 So.2d 1207, 1209 (Miss.1984); Coleman v. State, 378 So.2d 640, 647 If there were any mitigating circumstances, Edwards certainly did not list them in his mot......
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Johnson v. State
...were affirmed by this Court on direct appeal, Johnson v. State, 416 So.2d 383 (Miss.1982), and on error coram nobis, Johnson v. Thigpen, 449 So.2d 1207 (Miss.1984). The district court denied his petition for a writ of habeas corpus, Johnson v. Thigpen, 623 F.Supp. 1121 (S.D.Miss.1985), and ......