State v. Johnson
Decision Date | 24 June 1986 |
Citation | 714 S.W.2d 752 |
Parties | STATE of Missouri, Respondent, v. Cornelius JOHNSON, Appellant. WD 36591. |
Court | Missouri Court of Appeals |
Holly G. Simons, Columbia, for appellant.
William L. Webster, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before NUGENT, P.J., and SHANGLER and MANFORD, JJ.
The defendant Johnson was convicted of two counts of capital murder and was sentenced to concurrent terms of life imprisonment without probation or parole for fifty years. Sections 559.005, 559.011, RSMo Cum.Supp.1975. The appeal presents six contentions of trial error, but does not question the sufficiency of the evidence for conviction of the offenses.
On August 18, 1976, one Bobbie Jean Moore occupied living quarters with Donald Dumas and Loretta Minor. Dumas was a drug dealer and fence and Bobbie Jean had worked as his prostitute. That morning, Bobbie Jean was awakened by voices in the bedroom. She saw the defendant Johnson [whom she knew] in the doorway, a gun trained on Dumas and Minor, back the two into the bedroom. Bobbie Jean arose from the bed, and stood behind Dumas. The intruder demanded to know where Dumas kept the money, and then shot Dumas. As he fell, Dumas pointed to the dresser. Johnson seized the money [proceeds from drug sales, arranged in stacks], and ordered the women into the dining room. Johnson then asked where the drugs were kept, was directed to the coffee table in another room, wrapped the drugs in foil, and then let a second man into the apartment. The two women were forced into the living room, their hands were bound behind the back with tape, and their feet were also bound. They were ordered to lie on the floor. A pillow was placed over the head of Loretta, and a single shot was fired. A pillow was then placed over the head of Bobbie Jean, and a shot fired. Bobbie Jean was able to avert the bullet by a movement of the head. The second intruder noticed that Bobbie Jean survived, and so instructed Johnson to fire again. The second shot struck the left side of her head.
Bobbie Jean lay on the floor until the two intruders left, extricated her feet from the tape, and attempted to telephone for help, but was not successful. Her attempts to rouse other dwellers in the apartment building were no more successful, and she finally ran out of the building clad only in a pajama top, hands still bound behind the back, and was admitted to a residence. She telephoned the police and reported the incidents. The medical examiner gave evidence that Dumas died of a gunshot wound to the head, as did Loretta Minor. Bobbie Jean Moore suffered a superficial bullet wound to the head.
The defendant Johnson presented the alibi testimony of one Vivian Alexander that on the day and time of the shootings, Johnson accompanied her to apply for work at Church's Fried Chicken on Quindaro in Kansas City, Kansas. The defense presented also the alibi testimony of witness Lawrence McClooney, a former employer of the defendant, that on August 18, 1976 at about 11:30 a.m.--date and hour of the homicides--Johnson had come by to pick up some money owed for work performed there. Johnson told McClooney then that he had "dropped a young lady off who was filling out an application at Church's Chicken." The jury rejected the alibi and found Johnson guilty of two murders.
to Submit to Psychiatric Examination
In the course of the lengthy proceedings immediately prior to the juration of the venire, the trial court took up a number of formal defense motions. The defendant Johnson requested, and was allowed, to make a record. He moved orally for a continuance on the ground that several witnesses Johnson deemed important to the defense were not summoned by counsel to give testimony at the trial. Johnson suggested to the court also that among other neglects of counsel: The reasons Johnson ascribed were:
"[S]he's been inconsistent in her own, you know, summation of what went down, and everything, I guess, she says in her testimony is contradictory to the physical evidence.
....
"I mean, I feel that something's wrong with her, because I know I'm not guilty of these charges. I've maintained that throughout. But she's saying that she's--she's sworn to God that I did it several times, and I just know something's wrong, that she's lying or she's mentally deranged or something.
....
"Well, she sustained, you know, a gunshot wound to the head about 10 minutes after she awakened from, I suppose, a drugged state, because she had--I think she stated at one time or another that she'd been drinking and doing certain narcotics the night before this incident took place.
....
1
The trial court responded to Johnson that those were matters that affect the credibility of a witness, matters which--if elicited from the evidence--the jury would evaluate for purposes of belief. In fact, it was elicited from witness Bobbie Jean Moore, by the prosecutor on direct-examination, and then by the defense counsel on cross-examination, that during that period of her life she was a habitual user of cocaine, and the night and early morning before the homicide incidents, she absorbed "a lot of cocaine." That night and morning, Bobbie Jean, Loretta, Dumas and the entire assemblage, were "just getting high." The effect was to "keep you moving," but--in response to cross-examination--did not distort the sense of time. She testified to a vision, some days before the homicides, which presaged the event:
There was no other episode of manifestation. 2
On this appeal, counsel for the defendant ascribes as error that the trial court refused the oral request by Johnson to suppress the testimony of Bobbie Jean Moore, summoned as a witness for the prosecution. Bobbie Jean gave testimony against Johnson at the first trial of the offenses, and it was her disclosures on the stand that, at the time of the shootings she saw and described, she was a habitual user of drugs, and it was her contradictory responses [as Johnson perceived them], and her testimony [mistaken, according to Johnson] that he was the culprit, which demonstrated her incompetency as a witness. The defendant Johnson asserted to the court--"I don't know if the law allows for this, but I think she should be examined by a psychiatrist, or at least Mr. White [counsel] should have investigated that possibility of their being something, you know, wrong with her mentally." 3 We assume for purpose of decision that the motion pro se, although by a defendant represented by counsel, was duly before the court, and hence amenable to our review. State v. Turner, 623 S.W.2d 4, 12 (Mo. banc 1981) cert. denied Turner v. Missouri, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982); State v. Williams, 681 S.W.2d 948, 951 (Mo.App.1984).
The argument of the defendant tacitly acknowledges that our procedures do not provide for the involuntary psychiatric examination of a prosecution witness in a criminal case. And in fact, Rule 25.03, the formal promulgation for disclosure and discovery in criminal cases, contains no express provision for such a procedure, and our pre-discovery practice rejected any claim by a defendant to the involuntary psychiatric or physical examination of a prosecution witness--asserted as a matter of right. State v. Cox, 352 S.W.2d 665, 672[18-20] (Mo.1961); State v. Oswald, 306 S.W.2d 559, 563[7-9] (Mo.1957); State v. Wilson, 361 Mo. 78, 233 S.W.2d 686, 688 (1950). The defendant asserts the power of the court to submit a witness in a criminal case to such evaluation, not as of right--as under a rule or statute 4--but as an exercise of an inherent discretion when the competency of the witness is questionable. Our decisions have not ruled the question. The defendant argues the effect of cases from other jurisdictions: Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838 (bank 1966); Dinkins v. State, 244 So.2d 148 (Fla.App.1971); Easterday v. State, 254 Ind. 13, 256 N.E.2d 901 (1970); State v. Gregg, 266 Kan. 481, 602 P.2d 85 (1979); and State v. Buckley, 325 N.W.2d 169 (N.D.1982). Those cases, all criminal prosecutions, were charges of sex offenses. Those courts determined the want of express rule or statute notwithstanding, that in the trial of a sex offense, the court possesses the discretionary power to submit the prosecutrix to a psychiatric examination--but only where the defendant demonstrates a compelling necessity for such a procedure. Ballard, 49 Cal.Rptr. at 313, 410 P.2d at 849; Easterday, 256 N.E.2d at 905-906; Dinkins, 244 So.2d at 150; Gregg, 602 P.2d at 91; Buckley 325 N.W.2d at 171. That guarded grant of discretion to the judge in a sex offense case--as the rationale goes--is to enable the accused to probe whether the complainant was induced to the belief of an assault by an emotional or mental aberration, rather than by the misconduct of the person charged. It subserves the testimonial purpose of impeachment, and hence, credibility. Ballard, 49 Cal.Rptr. at 311, 312, 410 P.2d at 847, 848[17, 18]; 5 Gregg, 602 P.2d at 89-92.
The prosecutions against the defendant Johnson, however, were not for sex...
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