State v. Johnson

Citation212 Ariz. 425,133 P.3d 735
Decision Date09 May 2006
Docket NumberNo. CR-03-0420-AP.,CR-03-0420-AP.
PartiesSTATE of Arizona, Appellee, v. Ruben Myran JOHNSON, Appellant.
CourtSupreme Court of Arizona

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Phoenix, Robert J. Gorman, Jr., Assistant Attorney General, Tucson, Attorneys for the State of Arizona.

Kerrie M. Droban, Scottsdale, Attorney for Ruben Myran Johnson.


McGREGOR, Chief Justice.

¶ 1 A grand jury indicted Ruben Myran Johnson for first degree murder, assisting a criminal syndicate or criminal street gang, burglary in the first degree, and armed robbery. On November 28, 2001, a jury found Johnson guilty of all four counts. At the conclusion of the aggravation phase of the sentencing proceeding, a different jury found three aggravating factors proved beyond a reasonable doubt: (1) Johnson was previously convicted of a serious offense, Ariz.Rev. Stat. (A.R.S.) § 13-703.F.2 (2001); (2) Johnson knowingly created a grave risk of death to another person in addition to the person murdered, A.R.S. § 13-702.F.3; and (3) Johnson committed the offense in an especially heinous and depraved manner, A.R.S. § 13-703.F.6.1 In the penalty phase, that same jury determined that Johnson should receive the death sentence for the charge of first degree murder. The trial court sentenced him to death for the murder and to consecutive, aggravated terms on the non-capital charges. The clerk filed an automatic notice of appeal from the judgment and sentence pursuant to Rule 31.2.b of the Arizona Rules of Criminal Procedure. This Court has jurisdiction pursuant to Article 6, Section 5.3 of the Arizona Constitution, and sections 13-4031 and -4033.A of the Arizona Revised Statutes.


¶ 2 On November 7, 2000, Ruben Johnson and Jarvis Ross, both members of the Lindo Park Crips Gang (the LPC), committed a robbery at the Affordable Massage business in Phoenix. They committed the robbery at the behest of Johnson's friend, Cheryl Newberry. Newberry drove Johnson and Ross to the Affordable Massage location. Johnson and Ross then entered the massage parlor through a back door and confronted Stephanie Smith and Russell Biondo. Johnson and Ross stole Biondo's wallet and pager and Smith's cell phone and left the massage parlor separately. Johnson escaped, but police officers captured Ross after a short chase. Smith and Biondo both identified Ross as one of the robbers.

¶ 3 Soon after the robbery, Johnson learned from his friend Phyllis Hansen, a clerk at the Maryvale Justice Court, that Ross's preliminary hearing was scheduled for November 15, 2000, and that the victims were going to testify at the preliminary hearing. Newberry later testified that Johnson and two other men came to her home in an SUV and made her reveal the location of Stephanie Smith's residence.

¶ 4 Johnson and Quindell Carter, a fellow gang member, arrived at Smith's home shortly after one o'clock on the morning of November 15, 2000. Smith was in a bedroom reading a story to her four-year-old son, Jordan. Leonard Justice and Mike Solo were also at her home visiting. Solo heard a dog barking behind the house and went into the backyard to investigate. When he got outside, a black male put a gun to Solo's head, threatened to kill him, and asked who else was in the house. The gunman first pushed Solo into the house through the back sliding glass door and then told him to leave the house. Solo hurried to his car and drove away. Leonard Justice looked out the back window of the house, saw what was happening, and called 9-1-1 on his cell phone. He then went into Jordan's bedroom and handed Smith the phone so she could give the dispatcher the address. After handing the phone back to Justice, Smith left the bedroom. Justice followed her, and they both saw Johnson come through the arcadia door. Justice then ran into the bathroom, while Smith ran into Jordan's bedroom. Johnson walked into Jordan's bedroom and shot Smith in the head, killing her. Arriving officers apprehended Quindell Carter after a short chase, but Johnson evaded the officers.

¶ 5 Two days later, Johnson visited Phyllis Hansen at her home. Hansen testified that Johnson showed her a newspaper article about the murder and told her that he was the unnamed suspect mentioned in the story. Hansen also testified that Johnson stated he killed Smith because Smith was going to testify against "his cuz or one of his homies." Hansen later went to the police and turned over papers Johnson had left at her home. One of those papers had Johnson's fingerprint on it and contained Russell Biondo's name and date of birth written in Johnson's handwriting.

¶ 6 Johnson raises multiple issues on appeal. We address each of these issues below.


¶ 7 The first issue Johnson raises involves the trial court's failure to sever Count 2, assisting a criminal syndicate,2 from the remaining counts. Two or more offenses may be joined if they:

(1) Are of the same or similar character; or

(2) Are based on the same conduct or are otherwise connected together in their commission; or

(3) Are alleged to have been a part of a common scheme or plan.

Ariz. R.Crim. P. 13.3.a.

¶ 8 Before trial, Johnson unsuccessfully moved to sever Count 2. The trial court ruled that because "the defendant noticed several alternative defenses including mistaken identity. . . the evidence in regard to gang activity [was not only] material in regard to Count 2 but also relevant in regard to identity and motive in regard to the remaining counts." Johnson now argues that Count 2 was joined only because it was of "the same or similar character" as the other charges and thus he could sever it as a matter of right.

¶ 9 A defendant is entitled to sever offenses joined only by virtue of being of the same or similar character as a matter of right, "unless evidence of the other offense or offenses would be admissible under applicable rules of evidence" if tried separately. Ariz. R.Crim. P. 13.4.b. Denial of a motion to sever under Rule 13.4.b constitutes reversible error "if the evidence of other crimes would not have been admitted at trial" for another evidentiary purpose. State v. Aguilar, 209 Ariz. 40, 51 ¶ 38, 97 P.3d 865, 876 (2004) (quoting State v. Ives, 187 Ariz. 102, 106, 927 P.2d 762, 766 (1996)).

¶ 10 Count 2 does not fall within Rule 13.4.b. Assisting a criminal street gang is not of the same or similar character as first degree murder, burglary in the first degree, or armed robbery. See State v. Mauro, 149 Ariz. 24, 28, 716 P.2d 393, 397 (1986) (noting that homicide and child abuse counts were joined under Rule 13.3.a pursuant to the "same conduct" provision and not the "same or similar character" provision), rev'd on other grounds, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987).

¶ 11 Moreover, as the trial court noted, evidence material to Count 2 could have been admitted to establish motive and identity in the armed robbery, murder, and burglary charges. Prejudice from a failure to sever is unlikely "[i]f the evidence of one crime would have been admissible in a separate trial for the others." State v. Stuard, 176 Ariz. 589, 596, 863 P.2d 881, 888 (1993). In addition, if "testimony is probative on the crucial issue of identification[,] any slight prejudicial element is clearly outweighed by [the] probative value." United States v. Buck, 548 F.2d 871, 876 (9th Cir.1977).

¶ 12 We agree that evidence material to Count 2 was admissible to establish motive and identity for Johnson's other crimes.3 The murder of Stephanie Smith resulted from Johnson's desire to eliminate a witness to an armed robbery with which Jarvis Ross, Johnson's "cuz" or "homeboy," was being charged. The State presented ample evidence to establish that the motivation behind the armed robbery and the murder of Stephanie Smith was to further the criminal objectives of the LPC.4 For example, the three individuals involved in the murder and robbery were all members of or affiliated with the LPC; as an original gangster (O.G.), Johnson had an obligation to "bring up," or look after, younger gang members such as Jarvis Ross; Damon Ross, another LPC O.G., went with Johnson to locate Smith's house; and Johnson told Phyllis Hansen that he killed Smith to keep her from testifying against his "cuz," or fellow gang member, referring to Jarvis Ross. The evidence of gang involvement provided a motive for Johnson to kill Smith, who had no connection with Johnson other than her role as a witness against his fellow gang member. The State provided evidence that these acts were consistent with the LPC's typical criminal activity of pursuing pecuniary gain and intimidating witnesses. The evidence of Johnson's gang involvement helped to establish his identity and motive for committing the other charged crimes.

¶ 13 In addition, the trial judge took several steps to reduce any prejudice that could have resulted from joinder.5 First, prior to opening statements, the court cautioned the State against misusing the gang evidence and instructed it to avoid presenting evidence of any gang motivation until later in the case, when its relevance became clear. Second, the court instructed the jury to consider each offense separately and advised that each must be proven beyond a reasonable doubt. "[A] defendant is not prejudiced by a denial of severance where the jury is instructed to consider each offense separately and advised that each must be proven beyond a reasonable doubt." State v. Prince, 204 Ariz. 156, 160 ¶ 17, 61 P.3d 450, 454 (2003) (citing holding in State v. Atwood, 171 Ariz. 576, 613, 832 P.2d 593, 630 (1992)).

¶ 14 Under the circumstances of this case, we conclude that the trial court did not abuse its discretion in refusing to sever Count 2.


¶ 15 Johnson also asserts that the F.3 and F.6 aggravators are facially vague and that the trial court's jury...

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