State, v. Johnson

• Decision Date: 13 June 2000
• Parties: (Mo.banc 2000) . State of Missouri, Respondent, v. Ernest Lee Johnson, Appellant. Case Number: SC81596 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

22 S.W.3d 183 (Mo.banc 2000)

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

State of Missouri, Respondent, v. Ernest Lee Johnson, Appellant.

Case Number: SC81596

Supreme Court of Missouri

Handdown Date: 06/13/2000

Appeal From: Circuit Court of Boone County, Hon. Gene Hamilton

Counsel for Appellant: William J. Swift

Counsel for Respondent: Linda Lemke

Opinion Summary:

Ernest Lee Johnson killed three convenience store employees by beating them with a hammer. He was convicted of the murders and sentenced to death. His convictions were affirmed. His sentences were remanded for a new penalty phase. The new jury returned three death sentences. He appeals.

AFFIRMED.

Court en banc holds:

(1) A potential juror indicated that he could not sign the death verdict form and hesitated about his ability to follow the instructions related to imposing the death penalty. The court did not abuse its discretion in sustaining the state's request to excuse him for cause.

(2) A potential juror said he would hold the state to a higher burden than beyond a reasonable doubt on aggravating circumstances. The court did not abuse its discretion in determining he was not qualified.

(3) The law of the case precludes re-litigating Johnson's challenge to the state's method of execution. His direct-appeal challenge to it was ruled against him. No mistake, manifest injustice, or intervening change of law has occurred.

(4) In his first appeal, Johnson failed to raise the issue that the court should not have admitted his statements to police and other seized evidence. By the law of the case, a court later hearing the case need not consider the issue.

(5) The prosecutor did not imply that the victims' lives were worth more than Johnson's life.

(6) The judge did not abuse his discretion in refusing a mistrial based on an argument that Johnson contends the prosecutor would have made or did imply. An objection to the prosecutor's closing argument was sustained, and the court instructed the jury to disregard the argument.

(7) Each of the six aggravating circumstances that the jury found were valid.

(8) The death sentences pass the Court's statutory proportionality review. They were not imposed under the influence of passion, prejudice, or other arbitrary factor. The evidence supported each aggravator. The death sentences were not excessive or disproportionate to the penalty imposed in similar cases, considering the crime, strength of the evidence, and defendant. Expert evidence demonstrated Johnson is not mentally retarded. The jury weighed the expert testimony, the facts, and Johnson's long criminal history.

Opinion Author: Duane Benton, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

Defendant Ernest Lee Johnson killed three employees of a convenience store by beating them to death with a hammer. A search of his home led to the discovery of bloody clothes, money and receipts from the convenience store. See State v. Johnson, 968 S.W.2d 686, 689-90 (Mo. banc), cert. denied, 119 S.Ct. 348 (1998).

Defendant was convicted of the murders and sentenced to death. This Court affirmed the convictions, but vacated the death sentences, remanding for a new penalty phase. Id. at 702. The new jury also returned three death sentences. Defendant appeals. Mo. Const., art. V, sec. 3. Affirmed.

I.

Defendant claims the circuit court erred in striking for cause F.R., a venireperson who stated he could vote to impose the death penalty, but could not sign his name on the verdict form as foreperson.

The following colloquy occurred:

PROSECUTOR: What about you? Can you consider both punishment options?

VENIREPERSON F.R.: I could decide both.

Q: Life without parole?

A: Yes.

Q: And can you consider the death penalty?

A: Yes.

Q: You kind of, on that one, now, you kind of hitched up on me a little bit. That's the -- See, only you know what's going on with this.

A: That would have to be a real tough decision, in any mind.

Q: Nobody says this is going to be easy.

A: Right.

Q: Nobody says this is going to be easy. But not knowing any more than what you've been told as you sit there today, do you think that you could consider that punishment, the death penalty, in this particular case? Because this is a real person sitting here. It's not on T.V.

A: I could consider it, but it would have to be well -- How do we say? -- presented before I could decide.

Q: Well, yeah. I guess -- I can't go any further into the facts.

A: Right.

Q: You've obviously done some thinking about the death penalty?

A: A little.

Q: Could you ever really envision yourself as an individual going, yes, death?

A: Yes, I could.

Q: Okay.

A: I've done that before.

Q: Okay. You've done what?

A: I mean, I've envisioned myself.

Q: Okay. I was going to say, if you've been through this before, brother.

(Laughter.)

Q: Okay. But, I mean, you've done some thinking about this, then?

A: Uh-huh.

Q: Okay. If you were selected as a juror in this case and then your fellow jurors decided that you would be their foreman, under the law, the foreman, if the final decision is death, signs that verdict. That would be you. Could you do that, knowing that there's a certain --

DEFENSE COUNSEL: I'm going to object. Asking for a commitment.

COURT: Objection will be overruled.

PROSECUTOR: -- knowing that there's a certain finality to your decision?

VENIREMAN F.R.: I can't say right now. I have no idea. I don't think -- I don't know.

Q: You don't think you could do that, do you?

A: I don't think I could put my name behind, my single name behind one person's death.

Q: That's what it is. It's your name, as foreperson, on that verdict form. And it's okay --

A: I don't think I could do that. I don't think I could put my name there.

Q: That's fine. It's tough, isn't it?

A: Yeah.

Q: Tough talking about this?

A: Yeah.

During later questioning by defense counsel, F.R. responded that he could basically go through the process (including following the instructions and considering the aggravating circumstances), but reiterated, "I don't think I could put my single name to one person's death."

The State challenged F.R. for cause. Defendant countered that F.R. could "envision himself giving the death penalty, he just will have difficulty signing the form." The trial judge removed F.R. for cause. A trial court's ruling on a challenge for cause will not be reversed unless clearly against the evidence and a clear abuse of discretion. State v. Middleton, 995 S.W.2d 443, 460 (Mo. banc), cert. denied, 120 S.Ct. 598 (1999).

A juror's equivocation about his ability to follow the law in a capital case together with an unequivocal statement that he could not sign a verdict of death can provide a basis for the trial court to exclude the venireperson from the jury. State v. Clayton, 995 S.W.2d 468, 476 (Mo. banc), cert. denied, 120 S.Ct. 543 (1999); State v. Rousan, 961 S.W.2d 831, 840 (Mo. banc), cert. denied, 118 S.Ct. 2387 (1998); see also Johnson, at 694.

Defendant relies on two federal appellate cases for the proposition that jurors should not be excluded for stating that they could not serve as a foreperson: Alderman v. Austin, 663 F.2d 558, 562-64 (5th Cir. 1982), aff'd on this point, 695 F.2d 124, 126 (5th Cir. en banc 1983); and O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983), cert. denied, 465 U.S. 1013 (1984). Both cases base their decisions on the then-controlling Witherspoon v. Illinois, 391 U.S. 510 (1968). However, in Wainwright v. Witt, 469 U.S. 412, 424 (1985), the United States Supreme Court clarified Witherspoon, creating a new standard for evaluating venire strikes. State v. Debler, 856 S.W.2d 641, 645-46 (Mo. banc 1993). The relevant question is whether a venireperson's beliefs preclude following the court's instructions so as to "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright, at 424.

In this case, F.R. indicated that he could not sign the death verdict form and hesitated about his ability to follow the instructions. This constituted equivocating about his ability to serve, which would substantially impair the jury process. See Clayton, at 476; Rousan, at 840. The trial judge did not abuse his discretion in sustaining the strike of F.R.

II.

Defendant argues that the trial court wrongly struck for cause F.A., a venireperson who stated he would require more than proof beyond a reasonable doubt, before considering the death penalty.

F.A. initially said he could consider both life imprisonment and death.

PROSECUTOR: Okay. So you think you could consider both of those punishment options and listen to the evidence and make your decision?

VENIREMAN: Yes, I believe I could.

Q: All right. You seem like you're kind of hesitant on the -- potentially on the latter of the two, and that's --

A: Well, I haven't been faced with it before.

Q: I understand.

A: So, you know, yeah, I believe, if -- if, you know, evidence was overwhelming, I'm sure.

Q: Well, overwhelming evidence. Would you -- would you be inclined, because of your views on the death penalty, to hold the State to a higher burden than proving the aggravating circumstances beyond a reasonable doubt?

A: Truthfully, yeah, probably.

Q: You would. So if the court instructed you that the State's burden of proof was proving the aggravating circumstances, the things that we'll submit make this murder, you know, worse, like I said, the State would instruct you that the burden of proof is beyond a reasonable doubt, okay, would you have trouble following that particular instruction? In other words, would you require the State to prove those beyond all doubt, for instance?

A: Probably so.

Q: Okay. So because of your views on the death penalty, is it a fair statement to say that your ability to follow the Court -- and I'm not trying to get on you now -- would you say that your ability...