State v. Johnson
| Decision Date | 28 October 1985 |
| Citation | 698 S.W.2d 631 |
| Parties | STATE of Tennessee, Plaintiff-Appellee, v. Walter Keith JOHNSON, Defendant-Appellant. |
| Court | Tennessee Supreme Court |
Wayne E. Uhl, Asst. Atty. Gen. Nashville, for plaintiff-appellee; W.J. Michael Cody, Atty. Gen., of counsel.
William R. Heck, Chattanooga, for defendant-appellant.
In this case the defendant Johnson was convicted of first degree murder and sentenced to death for the killing of Raymond Harris. His conviction was reviewed and affirmed by this Court in State v. Johnson, Tenn., 661 S.W.2d 854 (1983); however, his death sentence was set aside and the case was remanded to the trial court for a new sentencing hearing and the imposition of a new sentence. Following the second sentencing hearing a jury again has imposed the death penalty upon the defendant.
The facts and circumstances of the killing are set forth in our prior opinion but we will again relate a brief resume of the facts sufficient to provide background for our review of the second death sentence.
In September, 1980, the defendant pawned two .22 caliber rifles to the 84 year old Raymond Harris. These rifles had been stolen by the defendant in a burglary of the residence of a minister at Dunlap, Tennessee. On the early morning of September 8, 1980, the defendant went back to the decedent Harris' home in Hamilton County and demanded the return of these two rifles. When Harris refused, the defendant proceeded forcibly to take the rifles from Harris and in so doing struck the decedent in the head with a heavy glass candlestick knocking him unconscious and fatally injuring him. The evidence indicated that the defendant struck the victim at least twice in the head with some blunt instrument which caused at least two fractures of his skull. The defendant took the two guns in question as well as three others and more than $100.00 which the decedent had on his person. Shortly after the killing the defendant was apprehended and confessed to striking Harris but denied that he intended to kill him or rob him but that he had acted out of fear and in anger.
The jury found aggravating circumstances, T.C.A., Section 39-2-203(i)(2)(7) in that (1) the defendant had been previously convicted of second degree murder in 1975 and (2) that the defendant killed the decedent while robbing him in the instant case. The defense attempted to show mitigation of the offense by the testimony of Mr. James Vandiver, an associate warden of security at the Tennessee State Prison in Nashville, who testified that defendant had been a model prisoner during his incarceration there. Other mitigating evidence was that the defendant had run away from home when he was 13 years of age because his father engaged in abusive treatment of him, that he had an alcohol and drug abuse problem, and that the decedent Harris had struck him first and was reaching for a gun when the defendant hit him with a candlestick. The defendant further testified that most of the guns which decedent Harris accepted in pawn were stolen; he tried to characterize the Harris family as a band of dangerous former moonshiners.
During the voir dire examination of prospective jurors, juror Carolyn Wilkes stated that she needed clarification about The prosecuting attorney replied that the only consideration for the jury would be whether to impose life imprisonment or death by electrocution. After a bench conference between the court and attorneys, the judge explained to the juror:
Wilkes was accepted as a juror. Moreover, the idea of a parole was indirectly introduced later in the trial when it was revealed that the defendant had been released from parole on a second degree murder sentence when this killing occurred and that he had not served his full sentence for that crime.
The defendant argues that the response of the trial court was error, that the trial judge did not sufficiently explain to the jury "that its deliberations must be governed exclusively by the court's instructions regarding punishment alternatives given at the close of the proof" and that the response given by the trial court only invited speculation regarding the possibility of parole.
Our cases have long held that it is improper for a jury to consider parole when fixing a defendant's punishment. Keith v. State, 218 Tenn. 395, 401-406, 403 S.W.2d 758, 761-764 (1966); Graham v. State, 202 Tenn. 423, 304 S.W.2d 622 (1957); Williams v. State, 191 Tenn. 456, 234 S.W.2d 993 (1950); Porter v. State, 177 Tenn. 515, 151 S.W.2d 171, 174 (1941). See, also, Farris v. State, Tenn., 535 S.W.2d 608 (1976). However, in these cases, which are relied upon by the defendant, the issue of parole of a defendant's sentence did not arise until after the jury had been chosen, instructions given and deliberations had begun. But even in those cases it was held to be enough that the trial court had made it clear to the jury that the question of parole should not enter their deliberations and they were not to consider that factor in fixing punishment. In the instant case the prosecuting attorney and the trial judge both explained to juror Wilkes that "you can only consider death by electrocution or life imprisonment." This admonition should have clearly conveyed to the jury that they could not consider anything else such as the possibility of parole. Perhaps the trial judge's response could have been in more emphatic terms; the preferable response to a juror's inquiry about parole is to instruct the jury to limit their deliberations to the instructions given them at the close of the evidence. Porter v. State, supra; Hale v. State, 198 Tenn. 461, 477-478, 281 S.W.2d 51 (1955). Nevertheless, we are of the opinion that the trial court's response in this instance comported with the holdings of our cases, cited above, and is clearly distinguishable from the response disapproved in State v. Conner, 241 N.C. 468, 85 S.E.2d 584 (1955) in which the trial judge merely responded: "I cannot answer that question." We find no error.
Next, the defendant complains that the trial court denied his...
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...based on the (i)(2), (i)(5), and (i)(7) aggravating circumstances. Tenn.Code Ann. § 39–2–203(i)(2), (5), (7) (1982). In State v. Johnson, 698 S.W.2d 631 (Tenn.1985), Mr. Johnson went to the home of his eighty-four-year-old victim and demanded the return of two rifles Mr. Johnson had pawned ......
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