Johnston v. State

• Decision Date: 14 October 1986
• Docket Number: 4 Div. 676
• Citation: 497 So.2d 844
• Parties: James W. JOHNSTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 844

497 So.2d 844

James W. JOHNSTON v. STATE.

4 Div. 676.

Court of Criminal Appeals of Alabama.

Oct. 14, 1986.

Allen Edward Cook and Benton Persons, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

James W. Johnston was charged with and convicted of capital murder of Miss Mildred Hart, a 67-year-old resident of Andalusia, Alabama. His case was appealed to this court, which reversed and remanded. Johnston v. State, 455 So.2d 152 (Ala.Cr.App.), cert. denied, 455 So.2d 152 (1984). He was again tried, but this time convicted of murder rather than capital murder. He was sentenced to life imprisonment in the penitentiary; from this second conviction and sentence he prosecutes this appeal.

One of the issues in the case is sufficiency of the evidence. The statement of facts presented by the attorney general provides a summary of the state's evidence, and we set it out here:

"On May 16, 1982, Mrs. Mary Braxton telephoned her lifelong friend, Miss Mildred Hart, a little after 7:00 a.m. as it was their usual custom to call each other every morning to see that everything was all right. After each of three calls received no answer, Mrs. Braxton called Mrs. Franklin, who met her at Miss Hart's residence. They went through the garage, where they saw a bag of groceries in Miss Hart's car. Then the two ladies proceeded to the back door and called for Miss Hart. When they received no answer, they opened the unlocked door and saw papers, cloth napkins, and rubbish littering the kitchen floor. They also observed a broken window, glass on the floor, and little shutters torn from the window and broken. The two ladies then went to a neighbor's house and called the police.

"Mrs. Braxton stated she knew the Appellant and had seen him passing Miss Hart's house. Miss Hart had in fact pointed the appellant out to Mrs. Braxton.

"Mrs. Levonia Fugua testified that Miss Hart checked out at her cash register at the Winn-Dixie at 10:57 a.m. on Saturday, May 15, 1982.

"John Earl Duggan, another lifelong friend of Miss Hart's, testified he had had a conversation with Miss Hart concerning the defendant. As a result of his conversation with Miss Hart, Mr. Duggan gave her a .38 Smith and Wesson pistol. He has seen the defendant in the street in front of Miss Hart's house.

"When Officer Spivey of the Andalusia Police Department arrived, Mrs. Braxton and Mrs. Franklin related their discovery to him. They entered the house and Officer Spivey found the body of Miss Hart in the bath tub, which was half full of water. The house was then secured.

"Charles Brooks, Department of Forensic Sciences, arrived at the scene at 10:00 a.m. In the east bedroom he observed that papers and other materials had been pulled out of drawers. On the telephone bench, Mr. Brooks recovered a striped blouse, green slacks, and a bra. A pair of panties and a girdle, both of which had been cut with some instrument from each leg hole to the waist band, were beside the bed on the floor. Here, a checkered apron was also recovered. Mr. Brooks further noted that two pieces of white electrical cord were found attached to the bedposts--one to the bottom northwest post and the other to the bottom northeast post. Three pieces of telephone cord were on the floor by the bed and on the bed. On the kitchen table he found a short, reddish brown hair which he determined to be a mustache or beard hair from a Caucasian. This hair was subsequently compared to known mustache hairs of the appellant and they had the same physical and microscopic characteristics. The body was lying face down in the tub in three or four inches of water. A white bath towel was wrapped partially around Miss Hart's neck and to each wrist was attached a piece of electrical cord similar to that found on the bedposts. What appeared to be blood was coming from the vaginal area.

"The inside of Miss Hart's house was 'a mess.' It appeared that someone had eaten some ice cream, as there was a carton on the table with a spoon in it. A bottle of Coke was also partially gone.

"Officer Garrett of the Andalusia Police Department identified the body as that of Miss Hart and then processed each room for latent fingerprints. From the several hundred specific areas that Officer Garrett dusted, he obtained nineteen valuable prints. Three of those nineteen prints were identified as the victim's palm prints; none were identified as belonging to Appellant. At trial, Officer Garrett testified that when he took appellant's fingerprints for comparison, he found appellant's fingers to be extremely dry and leatherlike; he explained that these conditions would prevent appellant from leaving good latent prints.

"During the police investigation conducted within the victim's home, Appellant was seen several times outside Miss Hart's residence. Investigator Treadaway saw appellant in front of Miss Hart's home on at least eight occasions. Upon the investigator's inquiry, Appellant stated that he had not seen anybody messing around the house nor any strange people in the neighborhood. After the investigator asked him to leave the area because the police were still conducting their investigation, appellant left.

"An autopsy was performed on Miss Hart's body on this same day, May 16, by Dr. Thomas Gilchrist, a forensic pathologist with the Montgomery Laboratory of the Alabama Department of Forensic Science. During the autopsy, Dr. Gilchrist noted contusions or bruises on the forehead, the scalp, the upper arms, over the left breast, on the left shoulder and back area, on a thigh, and on a knee. Small lacerations caused by blunt force were found on the forehead and behind the right ear. Injuries to the genitalia included small lacerations to the entrance to the vagina and to the anus. Dr. Gilchrist deemed these latter injuries to be consistent with rape. A vaginal smear revealed the presence of sperm. Dr. Gilchrist opined that the cause of death was ligature strangulation: the blood supply to the brain was cut off by a large, soft ligature wrapped completely around the victim's neck. He approximated the time of death to be noon on May 15, give or take four hours either way.

"Sometime later in the day, Investigator Treadaway went to see Appellant at his residence for the purpose of collecting hair samples. When the investigator and appellant had come out the front door and were about to get in the police vehicle, appellant said, 'I didn't rape the woman, I didn't kill her, I didn't drag her to another room.' After the two men got in the car and as the investigator was about to drive across the railroad tracks on the way to the police station, appellant stated, 'I didn't rape the woman and I didn't kill her.' While they were in the back of the station where fingerprints and photographs are taken, appellant declared, 'I didn't rape the woman, didn't kill her, and didn't drag her to the closet.' All three of appellant's statements were freely and voluntarily given; no statement resulted from questioning.

"Appellant was arrested on May 17 by Officer Newton who at the time of the arrest advised appellant that he was under arrest for the murder of Mildred Hart and, also, advised appellant of his Miranda rights. Appellant then consented to giving nasal, blood, and pubic hair samples and he was transported to community hospital by Officers Garrett and Anderson. About an hour after his arrest--sometime between 5:30 p.m. and 6:30 p.m.--appellant made a statement in front of Investigator Tucker, Agent Davis, and Officers Anderson and Garrett. The statement was not the result of any questioning or interrogation nor was it the product of any reward, hope of reward, or threat; appellant appeared to know what he was saying. When Investigator Tucker walked into the room of the hospital where appellant was, appellant asked who he was, to which the investigator replied that he was a state investigator. Appellant then asked him if he was the officer who arrested him and he replied negatively, explaining that the Andalusia Police Department had arrested him. Appellant then made the statement to the effect:

'I'm your man. It took you three days to get me, but you will never convict me, because they said I'm crazy.'

"Appellant made yet another voluntary statement concerning Miss Hart's death around December 13, to Mrs. Brenda Sweatt, the matron of the jail. Such statement was not the result of questioning, promise of reward or hope of reward, or threat. Mrs. Sweatt was passing out medication when appellant asked her if he could take a shower. She replied that he could not because she was about to get off work. Appellant then said that he would not do her like he did Miss Hart."

I

Appellant first contends that his utterance while in custody on May 17, 1982 was inadmissible because it was the fruit of an illegal arrest. This was the statement made in the presence of three officers at the hospital and quoted above:

"I'm your man. It took you three days to get me but you will never convict me, because they said I'm crazy."

This contention was made at the first trial and on the first appeal of this case, and the determination and ruling were made at that time that this utterance was admissible as a voluntary statement. Consequently, this issue is res judicata as to us now.

II

Appellant next contends that the court erred in admitting his three pre-arrest statements because they were denials instead of admissions. The appellant made comments to Officer Treadaway before he was arrested as follows:

(1)

"I didn't rape the woman, I didn't kill her, I didn't drag her to another room."

(2)

"I didn't rape the woman, and I didn't kill her."

(3)

"I didn't rape the woman, didn't kill her, and didn't drag her to the closet."

The admissibility of these statements was treated at length in the first appeal of this case. The court there ruled that all three statements were...