State v. Johnson

• Decision Date: 25 June 1998
• Docket Number: 96-727,Nos. 96-592,s. 96-592
• Citation: 969 P.2d 925,291 Mont. 501
• Parties: , 1998 MT 289 STATE of Montana, Plaintiff and Respondent, v. Daniel Martin JOHNSON, Defendant and Appellant. . Heard
• Court: Montana Supreme Court

Page 925

969 P.2d 925

291 Mont. 501, 1998 MT 289

STATE of Montana, Plaintiff and Respondent, v. Daniel Martin JOHNSON, Defendant and Appellant.

Nos. 96-592, 96-727.

Supreme Court of Montana.

Heard June 25, 1998.

Submitted June 30, 1998.

Decided Nov. 24, 1998.

Edmund F. Sheehy, Jr., Helena, for Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Christopher G. Miller, Powell County Attorney, Deer Lodge, Montana, John P. Connor, Jr., Special Deputy Powell County Attorney, Helena, for Respondent.

NELSON, Justice.

¶1 Daniel Martin Johnson (Johnson) was convicted by a jury in the District Court for the Third Judicial District, Powell County, of deliberate homicide and sentenced to death. Johnson appeals his conviction and, pursuant to § 46-18-308, MCA, his appeal is consolidated with this Court's automatic review of his death sentence. We affirm.

¶2 Johnson raises the following issues in his appeal of his conviction on the charge of deliberate homicide:

¶3 1. Whether the District Court properly instructed the jury on "flight" and "concealment."

¶4 2. Whether there was sufficient evidence to support Johnson's conviction of deliberate homicide.

¶5 We address the following issues in our review of the death sentence:

¶6 3. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factors.

¶7 4. Whether the evidence supports the District Court's findings of the nonexistence of mitigating circumstances as enumerated in § 46-18-304, MCA.

¶8 5. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.

Factual and Procedural Background

¶9 On September 10, 1995, Andrew Joseph Burgess (Burgess), an inmate at Montana State Prison (MSP), was severely beaten in a bathroom stall in the high-security or "high-side" recreation yard at MSP. He died two days later.

¶10 The high-side recreation yard contains a softball field, a basketball court and horseshoe pits surrounded by a jogging track. Next to the basketball court is a small building used to store recreation equipment. On one end of that building are three small stall-like bathrooms each containing a single stainless steel toilet. These bathrooms face toward the softball field and their doors are divided in half so that the top half of each stall may be secured open. This allows the correctional officers to observe inside the stalls and still afford the inmates some degree of privacy. Prior to allowing the inmates into the yard, officers open the doors to the bathrooms.

¶11 On the day Burgess was beaten, inmates from two of the close-security housing units, Close 1 and Close 3, entered the recreation yard at about 5 p.m. for an exercise period. Correctional Officers Scott McNeil and William Hogart, along with Recreational Officer Ray Hoffenbacker, were responsible for monitoring the activities of the inmates during that exercise period. Officer McNeil opened the bathrooms and, once the inmates were in the yard and the recreation equipment was distributed, Officers McNeil, Hogart and Hoffenbacker walked the track in a clockwise direction.

¶12 The officers later testified that as they came around the track near the back stop of the baseball field, they noticed a disturbance inside one of the bathroom stalls across the field. Officer McNeil testified that, through the open top door of the middle stall, he could see an inmate moving up and down. Officer Hogart testified that he saw the inmate bending over. Officer Hoffenbacker testified that the inmate had his back toward the officers and that the inmate appeared to be swinging at something. Officer Hoffenbacker also testified that he could hear a pounding noise and he assumed that the inmate was beating on the toilet.

¶13 The three officers left the track and began walking toward the bathrooms. As they approached, the inmate inside the middle stall stopped what he was doing, put on a coat and dark glasses, pulled his cap down, exited the stall, pulled the door closed, and walked quickly away. All three officers testified that they recognized that the inmate was Johnson.

¶14 Officer Hoffenbacker followed Johnson around the building while Officers McNeil and Hogart went into the stall to investigate. There they discovered an inmate lying on the floor in a pool of blood, his head and face beaten beyond recognition. Near the inmate's body was a bloody horseshoe. Officer Hogart called the prison infirmary on his radio and remained at the scene with the injured man while Officer McNeil rushed to assist Officer Hoffenbacker.

¶15 When Officer Hoffenbacker heard Officer Hogart say that there was a man down, he ordered Johnson to stop. Johnson, instead of doing as the officer ordered, began to run toward Close 1, his housing unit. Officer Albert Cox was the floor officer in control of the movement of inmates between Close 1 and the recreation yard that afternoon. He caught Johnson as Johnson was entering the building and held him until Officers Hoffenbacker and McNeil, along with several other officers, arrived. Johnson struggled with the officers as they attempted to place him in handcuffs. Officers McNeil and Cox later testified that they noticed blood on Johnson's hands and clothing.

¶16 After Johnson was apprehended, the rest of the inmates in the recreation yard were ordered to return to their housing units. Officers conducted a pat-down search of each inmate as they entered the units, but they did not find any blood on any other inmates. In addition, officers searched the cells in each unit, but found nothing. A count of the inmates in the two units led officers to identify the injured inmate as Burgess.

¶17 Eunice Cole, a staff nurse at the prison infirmary, and Kenneth Linsey, an infirmary aide, responded to the call for assistance in the yard. They found Burgess bleeding and slumped over in a pool of blood. His face was distorted and swollen and his head was soft and mushy to the touch. Nurse Cole wrapped Burgess's head in bandages and ordered that he be transported to the infirmary. The infirmary staff was unable to control the bleeding hence Burgess was taken to St. James Community Hospital in Butte. Burgess's head wounds were treated and closed, but his brain had been severely injured. The neurosurgeon who operated on Burgess found depressed skull fracturing above his right eyebrow, over his right temporal area, and on the right back side of his head. The bruising and swelling resulting from the blunt force injuries caused the blood flow into the brain to cease and the doctors determined that Burgess was brain-dead. With the consent of his family, Burgess eventually was removed from a ventilator whereupon his heart stopped beating. He died on September 12, 1995, two days after the assault.

¶18 An autopsy conducted by the state medical examiner disclosed that Burgess had sustained 26 wounds or lacerations, mostly to the right side of his head. These lacerations required nearly 200 surgical staples or sutures to close. The medical examiner concluded that Burgess had died as a result of multiple blunt-force injuries to the head.

¶19 Tom Blaz and Mike Micu, investigators for the Montana Department of Corrections, were called to the prison to investigate the assault. They secured the middle bathroom so that it could be processed by personnel from the state crime lab. They also looked in the other two bathroom stalls, but did not find any sign of blood on the floor or any other evidence. They searched the recreation yard and found nothing irregular.

¶20 Blaz and Micu interviewed Johnson after advising him of his rights. During that interview, Blaz and Micu noticed that Johnson had blood stains on his clothing, his hands, his watch and his glasses. When they called Johnson's attention to the blood on his hands, he tried to remove it by rubbing his hands together. He also tried to rub the blood off of his watch. Blaz and Micu secured Johnson's clothing, watch and glasses as evidence.

¶21 During that interview and again during his testimony at trial, Johnson claimed that he had not killed Burgess and that he had gotten blood on himself when he had attempted to assist Burgess. Johnson explained that earlier that day, another inmate, Pat Tracy, had told Johnson that he had received a letter from Johnson's ex-wife and that Tracy agreed to bring the letter to the yard that afternoon. Johnson stated that when yard was called out, he took a lap on the track and then sat at the picnic table facing the baseball field to wait for Tracy. When Tracy joined him at the picnic table, Johnson read the letter and the two discussed it. Johnson claimed that while they were engaged in that conversation, another inmate, Bill Ries, approached them and said that Johnson's "kid was down." "Kid" in prison parlance refers to a weaker inmate who has an emotional or other relationship with a stronger inmate and receives protection in return for favors. Johnson acknowledged that Burgess had been his "kid" and that they had had a sexual relationship while they were cell mates in 1991 ¶22 Johnson testified that after he heard that his "kid" was down, he left the picnic table and went to the middle restroom stall where he found a man whom he could not identify lying in a pool of blood. Johnson claimed that the man grabbed at his leg and that when he tried to help the man up, the man fell back down into the pool of blood. Johnson contended that that is how he got the blood smears and spatters on his pants. Johnson also testified that when he looked up and saw the officers coming towards the bathroom, he panicked. He claimed that he left the scene and headed for Close 1 because he wanted to talk to Officer Cox whom he trusted.

¶23 On September 21, 1995, the State charged Johnson with the offense of deliberate homicide in violation of § 45-5-102(1)(a), MCA. Johnson moved for a change of...