State v. Johnson

• Decision Date: 21 December 1987
• Citation: 108 S.Ct. 1303,743 S.W.2d 154
• Parties: STATE of Tennessee, Appellee, v. Donnie Edward JOHNSON, Appellant.
• Court: Tennessee Supreme Court

Page 154

743 S.W.2d 154

STATE of Tennessee, Appellee, v. Donnie Edward JOHNSON, Appellant.

Supreme Court of Tennessee,

at Jackson.

Dec. 21, 1987.

Certiorari Denied April 4, 1988.

See 108 S.Ct. 1303.

Jeff A. Crow, Jr., W. Clark Washington (original counsel), Memphis, J. Russell Heldman, James L. Weatherly (substitute counsel), Nashville, for appellant.

W.J. Michael Cody, Atty. Gen., James W. Thompson, Ass't Atty. Gen., Nashville, for appellee.

OPINION

HARBISON, Chief Justice.

Appellant was convicted of murder in the first degree in connection with the suffocation of his wife, Connie Johnson and sentenced to death by electrocution. After reviewing the briefs and arguments of counsel and the entire record, we affirm the conviction and the sentence.

At the time of the trial, appellant was thirty-four years of age. The homicide occurred on December 8, 1984. For three or four years prior to that time, appellant had been the manager and a salesman for a camping equipment center in Memphis. His wife had also worked at the center for a period of twelve to eighteen months, but she was not so employed at the time of her death. Appellant had adopted a daughter of his wife by a former marriage, and the couple had a son who was about four years old at the time of the trial.

There had been some difficulties in the marriage, and appellant's wife had from time to time threatened to separate from him. There is no evidence that appellant had ever seriously injured his wife prior to December 1984. He had admittedly been unfaithful to her although he denied involvement with any other woman at the time of his wife's death. More than a year and a half prior to her death, Mrs. Johnson had purchased a policy of life insurance in which appellant was named as primary beneficiary and her sister as contingent beneficiary. Following the death of Mrs. Johnson, both her sister and appellant made claims for the policy proceeds of fifty thousand dollars.

Mrs. Johnson suffered a most terrible death by suffocation. From this record there is no question but that appellant or one Ronnie McCoy murdered her. Appellant did not testify until the sentencing hearing. At the guilt hearing McCoy testified that appellant killed Mrs. Johnson at appellant's place of employment in the early evening of Saturday, December 8, 1984, the time of death being estimated at between 6:30 and 7 p.m.

McCoy was a prisoner on work release at the place where appellant was employed. Appellant transported McCoy to and from work each day, checking him in and out at the Shelby County Penal Farm near Memphis. Appellant did so on the date of the homicide. McCoy and two employees of the penal farm testified that appellant transported McCoy to the penal farm after work on that date and checked him in at about 7:17 p.m.

McCoy testified that he left appellant and Mrs. Johnson alone in the office of the camping center while McCoy attended to some chores preparatory to leaving the place of business for the day. He was gone for some ten to fifteen minutes, and when he returned to the office, he testified that he found Mrs. Johnson strangled or suffocated to death.

It is not necessary here to give the horrible details of the manner of her death. It is sufficient to state that a large plastic garbage bag had been forced into her mouth, resulting in her strangulation and asphyxiation. She bled from the nose and ears, and traces of blood were found on a couch in the office where her death occurred. There was testimony that she would have been conscious during the terrifying ordeal and that from one to four minutes would have elapsed before she expired.

Appellant did not testify until the sentencing hearing after he had already been found guilty of murder in the first degree. At that time he denied killing his wife and attempted to place responsibility upon McCoy. He testified that he left McCoy and Mrs. Johnson alone in the sales office for a few minutes. He had given Mrs. Johnson about $250 earlier that morning and about $200 again that afternoon for purposes of Christmas shopping. It was his contention that McCoy tried to rob Mrs. Johnson and killed her in the process.

Appellant and McCoy each testified to being afraid of the other. In all events, however, they collaborated, willingly or otherwise, in transporting the body of Mrs. Johnson in her 1981 Ford van from the sales office to a shopping center a few miles away. They also placed inside the van her broken spectacles, her shoes, her coat and some earrings which had become dislodged in her struggle for breath. They parked the van on the edge of a large shopping center and left it there. Each testified that the other drove the van from the office to the shopping center. Both agreed that appellant then transported McCoy to the penal farm in appellant's pick-up truck. McCoy testified that he had driven the truck to the shopping center following appellant who was driving the van.

In all events the van was left on the parking lot overnight. A security officer at one of the retail stores noted its presence, and in the early morning hours of December 9 he placed a ticket on the vehicle but did not open it.

Appellant called his employer near 11 a.m. on the morning of Sunday, December 9, pretending to make inquiry about his wife. He said that she had not come home on the previous evening and had not picked up their children from the home of appellant's brother. Appellant had spent the night at the sales office and early on the morning of December 9 had delivered a trailer to a customer at a camp site. Upon returning from that trip, he placed the call to his employer.

The employer, Mr. James Force, and his wife were advised by appellant that Mrs. Johnson was supposed to have gone Christmas shopping on the previous evening. Mr. and Mrs. Force agreed to assist in finding her. In the course of doing so they found her van, which was well known to them, at the shopping center. Upon opening the van, they found the lifeless body of Mrs. Johnson. They immediately reported to security personnel at the mall. Investigating police officers arrived in a short time.

Both Mr. and Mrs. Force and appellant gave statements to the police. Appellant denied any involvement in the death of his wife. He made no mention of having known that McCoy killed her and denied that he had any knowledge of when or how her van had reached the premises of the shopping mall.

In addition to the direct testimony of McCoy, there was other strong evidence implicating appellant in the homicide. Appellant had called one Barry Pfister at about 9 p.m. on Saturday evening to inquire about his wife. He told Pfister that he and his wife were coming to the sales office to try to work out their differences. He asked Pfister to observe if and when Mrs. Johnson arrived and to advise her that appellant was on his way.

At some time during the evening, appellant called on a former girl friend, Debbie McKee, who was working at a local motel. She had called him earlier in the evening, and he drove to her place of employment at some time between 7:30 and 8 p.m. Appellant admitted to the police that he had previously had an affair with Ms. McKee but denied that there was any sexual relationship between them at the time of the homicide.

When Mrs. Johnson's van was opened by police at the shopping mall, it did not contain ignition keys. Mrs. Johnson's set of ignition keys, together with her hairbrush and some other personal items, were found behind the seat of appellant's truck when it was seized following the discovery of Mrs. Johnson's body. Sisters of Mrs. Johnson testified that they could identify the keys which were the only set of keys to the van which Mrs. Johnson had.

The only witnesses called by appellant at the guilt phase were an insurance agent who testified about the life insurance claims made under Mrs. Johnson's policy and one Paul Adams, manager of a tent shop at the camping center. He testified that appellant had come to the door of his shop at about 7 p.m. on Saturday, December 8.

Even if McCoy were an accomplice, his testimony at the guilt phase was corroborated by independent evidence. As previously stated, appellant did not testify or give any version of the facts until the sentencing phase in which he attempted to mitigate his own involvement and to place the primary responsibility for the homicide upon McCoy. His testimony at the sentencing phase was, to say the least, unconvincing. He offered no explanation as to why he did not report McCoy's involvement in the homicide, if it actually occurred, in either of the two statements which appellant had given to the police on December 9 and December 11, 1984.

The evidence to support the conviction of appellant of murder in the first degree was legally sufficient beyond question. This issue, one of four raised by the original counsel for appellant, is without merit.

Appellant had previously been convicted of armed robbery and aggravated assault. The jury found his previous convictions of violent felonies to constitute an aggravating circumstance and also found that the murder was especially cruel and involved torture or depravity of mind. See T.C.A. Secs. 39-2-203(I)(2) and (5). These aggravating circumstances were clearly established by the evidence, and there was no substantial proof of any mitigating circumstances.

The homicide was inhuman and brutal to an almost indescribable degree. Nevertheless, the exhibits which were offered, a few of them including photographs of the victim, were not gruesome or inflammatory. The trial judge excluded some photographs which he felt might be inappropriate, but those which the jurors were permitted to examine did no more than illustrate the medical testimony and the evidence of lay witnesses. The issue raised by counsel for appellant as to the photographs of the decedent is without merit.

Original counsel for appellant challenged the practice of using "death-qualif...