State v. Johns

• Citation: 34 S.W.3d 93
• Parties: (Mo.banc 2000) . Supreme Court of Missouri State of Missouri, Respondent, v. Alis B. Johns, Appellant. Case Number: SC81479 Handdown Date:
• Decision Date: 05 December 2000
• Court: United States State Supreme Court of Missouri

34 S.W.3d 93 (Mo.banc 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Supreme Court of Missouri

State of Missouri, Respondent, v. Alis B. Johns, Appellant.

Case Number: SC81479

Handdown Date: 12/05/2000

Appeal From: Circuit Court of Pulaski County, Hon. Douglas E. Long

Counsel for Appellant: Melinda K. Pendergraph, Christopher A. Slusher and Nancy McKerrow

Counsel for Respondent: Breck Burgess and John M. Morris

Opinion Summary:

Alis Ben Johns shot and killed a man in October 1996. He was convicted of first-degree murder and sentenced to death. He appeals.

AFFIRMED.

Court en banc holds:

1) Johns was competent to stand trial. At a pretrial competency hearing, the court found the state's experts more credible and persuasive than the defense experts. Johns' low I.Q. scores did not render him incompetent. Evidence supported that Johns could consult with his lawyer and understand the proceedings. Nothing in the record suggests Johns became incompetent during trial to warrant a second competency hearing two weeks after the first.

2) A) The court did not err in refusing to change venue a second time. Jury selection took place hundreds of miles from the trial almost two years after Johns' capture. Although about 80% of the potential jurors were exposed to publicity, all who had fixed opinions were stricken, and all Johns' jurors testified that they would be fair and impartial. Johns failed to show a pattern of deep and bitter prejudice or passion.

B) The court did not abuse its discretion by initially conducting voir dire in panels and declining to quash panels with a high percent of unqualified, excused venirepersons, absent an affected juror.

C) Limiting counsel's definition of lesser-included offenses in voir dire was not an abuse of discretion.

3) The opening statement anticipated evidence sufficient to infer deliberation and apprise Johns of the charges. The evidence, such as that Johns shot the victim eight times with the fatal shot up close after the victim was lying helpless, supported the inference of deliberation.

4) Evidence of the victim's reputation for violence when drinking was properly excluded because Johns did not show he knew of the victim's reputation or violent acts.

5) Johns' attempt to flee shows his consciousness of guilt, and the methodology of his flight, such as taking a hostage to evade capture, is probative of the quality and depth of this consciousness, making this evidence admissible.

6) Prior convictions are admissible in the penalty phase, even if they do not relate to a statutory aggravator, pursuant to section 565.030.4.

7) Johns' numerous bad acts while evading capture were admissible in the penalty phase. This phase permits evidence of the defendant's character for an individualized sentencing determination, while avoiding prejudice in determining guilt or innocence. The quantity of evidence related to the seriousness of Johns' actions. No manifest injustice resulted from two weeks' notice of such evidence.

8) The court, rather than jury, properly found that Johns' prior conviction for second-degree assault was "serious" for the statutory aggravator.

9) The evidence supported the "depravity of mind" aggravator, which sufficiently guides jurors' deliberations.

10) Although Johns appeared earlier, he did not appear for certain penalty phase defense evidence, closing arguments, or sentencing. Defense counsel said Johns waived his right to be present. Johns does not allege his waiver was invalid but only that the court failed to investigate. Johns also failed to raise the issue before appeal.

11) The court properly sustained the state's objections to Johns' guilt phase closing arguments that the victim chased Johns, that guilt required finding Johns' story not possible, and that deliberation required planning and motive. The court also allowed Johns an opportunity to clarify the objectionable arguments.

12) The state's penalty phase closing arguments were proper. The prosecutor did not imply he had information outside the record but, rather, expressed his opinion about the amount of evidence warranting death. The doctrine of "curative admissibility" allowed the prosecutor to say prison guards are unarmed in response to Johns' argument.

13) The case passes the Court's statutory proportionality review.

Dissenting Opinion Summary:

The dissenting author believes Johns was deprived of a fair trial with respect to his self-defense theory and would grant a new trial. The dissent states, first, Johns was precluded from introducing critical self-defense evidence, namely the victim's reputation for violence when drinking. An officer testified that Johns and the victim drank together for 7 months. The jury could make or not make the inference that Johns would know the victim's reputation from this evidence.

Second, Johns was prejudiced by the court sustaining an objection to the defense argument that the victim chased Johns. The evidence supported this argument. The court's ruling sent the message that there was no chase. Defense argument clarifying that it was a car chase rather than a foot chase did not cure or overcome the prejudice.

Opinion Author: William Ray Price, Jr., Chief Justice

Opinion Vote: AFFIRMED. Limbaugh, Covington, Holstein and Benton, JJ., concur; Wolff, J., dissents in separate opinion filed; White, J., concurs in opinion of Wolff, J.

Opinion:

A jury convicted Alis Ben Johns (a.k.a. Joe Johns) of first degree murder for the killing of Thomas Stewart on October 1, 1996. Because the trial court sentenced Johns to death, we have exclusive jurisdiction over the appeal. Mo. Const. art. V, section 3. We affirm the judgment.

I. Facts

Alis Johns began spending time with Thomas Stewart in the spring of 1996. Both men traveled in the same circles and spent considerable time drinking alcohol together. On the night of October 1, 1996, Johns accepted a ride from Stewart's girlfriend, Deborah Tedder. Stewart, who had been fighting with Tedder earlier in the day, followed in his truck and eventually confronted Johns and Tedder on rural Highway KK in Pulaski County. All three individuals were intoxicated. The confrontation became violent, and two of Tedder's car windows were shattered. At some point, Johns exited the automobile with a .22 caliber pistol. Johns shot Stewart seven times, killing him.

At 10:00 p.m., Robert and Christina Deardeuff passed by the scene while returning home from a family gathering. They saw Stewart's gray Chevrolet truck stopped in the northbound lane with a small white car in close proximity. Robert also noticed a man lying face down between the automobile and the truck. As they approached the second vehicle, Robert slowed down to offer his assistance. But Johns admonished them several times, "Everything's all right -- just go on." After the Deardeuffs left the scene, Johns and Tedder fled in Tedder's car. Approximately one hour later, Kristine Brockes came upon Stewart's truck while returning from her job at Ft. Leonard Wood. She found Stewart's body lying face down behind the truck and called the police. Paramedics and law enforcement officers arrived shortly thereafter. Though police were unable to find the murder weapon, they did recover seven .22 caliber shell casings, which were resting in close proximity to one another approximately fifteen feet from Stewart's body. In addition to the shell casings, police found a pile of glass and two spots of blood where Tedder's car had been parked. The next morning, police found an eighth shell casing that had come to rest within a few feet from where the victim's body had been.

The autopsy report revealed that Stewart had been shot in his left wrist, the left side of his belly, his left side, the back of his upper right leg, the right lower leg, the right side of his body, and the left side of the back of his head. While each wound produced varying degrees of internal damage, the wound to the head proved instantly fatal.

The police apprehended Tedder the next morning. Tedder indicated that Johns might have been involved in Stewart's death. While questioning Tedder, the officers noticed two types of damage to Tedder's car: two shattered windows and a puncture to the left rear quarter that looked like a bullet hole. They also found what appeared to be a splatter of blood on the fender. Local law enforcement began searching for Johns.

Johns had been living on a small farm that was owned by Pearl Rose. When police arrived at the farm, however, Johns was already on the run. The officers searched the premises and recovered several .22 caliber shell casings, which were sent to the Missouri State Highway Patrol Crime Lab and compared to shells found at the scene of Stewart's death. The lab could not confirm that the shells were used in the same gun. But, the lab did identify certain class characteristics of the casings that were consistent with the shells found at the murder scene.

Johns evaded capture for the next six months. During this time, Johns was implicated in two murders and several robberies. On February 7, 1997, Ron Wilson returned to his home to find Johns standing on the front porch with a shotgun that he had just stolen from inside. After firing once into the ceiling and once at Wilson, Johns fled with Wilson's car, two guns, a hunting knife, and a watch. On February 26, 1997, Johns forcibly entered the home of Bud and Melinda Veverka and held the couple at gunpoint while he warmed himself by the stove. This robbery proved largely unsuccessful, as Johns was only able to steal two dollars, a wallet, and some juice. Though no one was injured in these robberies, Johns' next victims were less fortunate.

On February 28, 1997, police found Leonard Voyles lying dead in his Camden County home. He died of a single .22 caliber gunshot wound to the head. An inventory of the home revealed that Voyles' Ford Ranger truck...