State v. Johnson, No. E2010–00172–SC–DDT–DD.

CourtSupreme Court of Tennessee
Writing for the CourtSHARON G. LEE
Citation401 S.W.3d 1
Docket NumberNo. E2010–00172–SC–DDT–DD.
Decision Date19 April 2013
PartiesSTATE of Tennessee v. Nickolus L. JOHNSON.

401 S.W.3d 1

STATE of Tennessee
v.
Nickolus L. JOHNSON.

No. E2010–00172–SC–DDT–DD.

Supreme Court of Tennessee,
at Knoxville.

Jan. 3, 2013 Session.
April 19, 2013.


[401 S.W.3d 6]


James Thomas Bowman, Johnson City, Tennessee, and Stacy L. Street, Elizabethton, Tennessee, for the appellant, Nickolus L. Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; H. Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney General, for the appellee, State of Tennessee.


OPINION
SHARON G. LEE, J., delivered the opinion of the Court, in which GARY R. WADE, C.J., JANICE M. HOLDER, CORNELIA A. CLARK, and WILLIAM C. KOCH, JR., JJ., joined.

SHARON G. LEE, J.

A jury convicted the defendant of premeditated first degree murder for shooting

[401 S.W.3d 7]

and killing a police officer. As the penalty phase of the trial began, the defendant refused to allow his lawyers to present mental health mitigation evidence. After questioning the defendant about his decision, the trial court directed two mental health experts to evaluate the defendant's mental competency. After the evaluation, the mental health experts testified that they could not render an opinion as to the defendant's competency because the defendant had refused to cooperate. The trial court ruled that the defendant had failed to overcome the presumption of competency and was therefore competent to waive the presentation of expert mental health testimony. The State proved the existence of two aggravating circumstances pursuant to Tennessee Code Annotated sections 39–13–204(i)(2) and (9) (2006). The defendant presented testimony from family and friends. The jury sentenced the defendant to death. The Court of Criminal Appeals affirmed the defendant's conviction and sentence. State v. Johnson, No. E2010–00172–CCA–R3–DD, 2012 WL 690218 (Tenn.Crim.App. Mar. 5, 2012). We hold that a mentally competent defendant may waive the presentation of mitigation evidence during the penalty phase of a capital trial. We further hold that (1) the evidence does not preponderate against the trial court's ruling that the defendant was mentally competent to waive the presentation of mitigation evidence; (2) the trial court did not err in overruling the defendant's motion for a mistrial based on the State's improper reference to abortion during its closing argument; (3) the defendant's challenge to the constitutionality of Tennessee's death penalty is without merit; and (4) based on our review of the death sentence, as required by Tennessee Code Annotated section 39–13–206(c) (2010), the death sentence was not imposed in an arbitrary fashion; the evidence supports the jury's finding of statutory aggravating circumstances; the evidence supports the jury's finding that the aggravating circumstances outweigh any mitigating circumstances; and the sentence of death is not excessive or disproportionate to the penalty imposed in similar cases. We affirm the defendant's first degree murder conviction and sentence of death.

I.
A. Factual Background

Officer Mark Vance of the Bristol Police Department was shot and killed on November 27, 2004, while responding to a dispatch call at the home of Walter Mitchell. Mr. Mitchell, a long-distance truck driver, lived on Belmont Drive in Bristol, Tennessee with his twin seventeen-year-old daughters, B.M. and T.M. 1, and B.M.'s one-year-old son. On the evening of November 27, Mr. Mitchell left his home to pick up a load of goods for his employer. His grandson, two daughters, and two of their friends remained at the home. Not long after Mr. Mitchell left his home, B.M. called him to report that a man was at the house threatening her with a gun. Mr. Mitchell called 9–1–1 and turned his truck around to go home.

The armed man at the Mitchell residence was the defendant, Nickolus Johnson. Mr. Johnson and B.M. had been seeing each other socially, and B.M. was pregnant by him. Mr. Johnson was twenty-six years old and already had two young children by two different women. He insisted that B.M. have an abortion, but

[401 S.W.3d 8]

B.M. refused. Earlier that evening, they argued over the telephone about her pregnancy and her refusal to have an abortion. Mr. Johnson became angry and B.M. abruptly ended the discussion. About ten minutes later, Mr. Johnson arrived unexpectedly at the Mitchell home, entered the house, and started pacing back and forth, “yelling and cussing.” Mr. Johnson, armed with two guns, was worried that Mr. Mitchell would press statutory rape charges against him, and he threatened to kill B.M. and her father. Mr. Johnson laid the guns on the coffee table in the living room, but later picked up the guns and put them in his pocket. Mr. Johnson threatened to kill the first person who walked through the door. He vowed that he would go to prison for murder, but not for statutory rape. Termaine McMorris, a mutual friend of Mr. Johnson and B.M., arrived at the house and tried unsuccessfully to calm Mr. Johnson. Meanwhile, B.M. continued to talk to her father on the telephone. When she told Mr. Johnson that her father had called the police, he responded that the “police can't dodge these shells” and threatened to shoot any police officer who arrived at the house.

Officer Vance was dispatched to the Mitchell residence. From an upstairs bedroom window, Mr. Johnson watched Officer Vance arrive. T.M. and Mr. McMorris met Officer Vance on the front porch and told him everything was “okay.” Officer Vance insisted that he still needed to go into the house. T.M. and Mr. McMorris entered the split-level home first and proceeded up the stairs. Officer Vance was right behind them armed only with his flashlight; his gun was still holstered. Mr. Johnson was standing out of sight in the upstairs hallway. As Officer Vance reached the hallway and living room area at the top of the stairs, Mr. Johnson, from a distance of one to two feet, shot Officer Vance in the head, mortally wounding him. No words were exchanged before the shot was fired. Mr. Johnson immediately threw one of his guns into the living room and said “I'm out.” As he was going out of the front door, Mr. Johnson laid down the other gun.

Lieutenant Eric Senter, also of the Bristol Police Department, arrived at the Mitchell residence at the same time as Officer Vance was entering the home. Lt. Senter watched Officer Vance enter the residence and proceed up the stairs. As Lt. Senter was walking to the front door, he saw an arm holding a gun extend from the hallway toward Officer Vance and heard the gun blast. Lt. Senter retreated behind a nearby tree and called for back-up.

Officer Daniel Graham of the Bristol Police Department arrived at the scene as Lt. Senter took cover behind the tree. Mr. Johnson ran out of the house, followed by Mr. McMorris. Lt. Senter shouted at the two men and ordered them to lie on the ground. T.M. carried the gun out of the house and repeatedly shouted “why did you shoot him?” T.M. was also ordered to lie on the ground. As Mr. Johnson was being handcuffed, he said that he had “shot the fucker.” Lt. Senter asked him who he had shot and Mr. Johnson said “I shot the fucking cop.... I shot him in the head. He's dead.... Ain't no use of going in there.” Then Mr. Johnson began laughing. According to Mr. Johnson, he shot Officer Vance because Mr. Johnson did not call the police and did not want the police there. After the officers placed Mr. Johnson in a patrol cruiser, Mr. Johnson continued to laugh about shooting Officer Vance.

The officers then entered the residence and discovered Officer Vance lying in the upstairs hallway, shot once in the head. Bristol Police Officer Bradley Michael

[401 S.W.3d 9]

Tate arrived shortly after the shooting and attempted to provide medical assistance, but Officer Vance was not breathing, in cardiac arrest, and had no pulse. According to Dr. William McCormick, Deputy Chief Medical Examiner for the State of Tennessee, the bullet entered Officer Vance's right eye and proceeded in a sharp downward angle, causing massive shattering of the middle and anterior cranial parts. Officer Vance died “as the result of a single intermediate range gunshot wound to the face, with the entrance slightly above the right eye about the level of the mid-eyebrow with destruction of the skull[,] damage to the brain[,] ... and bleeding.”

B. Procedural Background

The grand jury in Sullivan County returned a one-count indictment charging Mr. Johnson with the premeditated and intentional killing of Officer Vance in violation of Tennessee Code Annotated section 39–13–202(a)(1) (2006). 2 The State timely filed notice of its intent to seek the death penalty pursuant to Tennessee Rule of Criminal Procedure 12.3(b)(1). The State cited as aggravating circumstances that the defendant had previously been convicted of one or more felonies involving the use of violence to the person, Tenn.Code Ann. § 39–13–204(i)(2), and that the murder was committed against a law enforcement officer who was engaged in the performance of official duties and the defendant knew or should have known that the victim was a law enforcement officer engaged in the performance of official duties, Tenn.Code Ann. § 39–13–204(i)(9).3

At trial, the State presented testimony from eyewitnesses to the murder and testimony from other witnesses regarding forensic evidence collected at the scene. Mr. Johnson presented no proof. On April 24, 2007, the jury convicted Mr. Johnson of first degree murder.

As the penalty phase of the trial began, defense counsel advised the trial court that Mr. Johnson had instructed them not to present any mitigation evidence. Defense counsel had planned to call a number of mitigation witnesses to testify to Mr. Johnson's family and social background and his mental health. Faced with this turn of events, counsel advised the trial court of their desire to present mitigation evidence over Mr. Johnson's objection unless the...

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24 practice notes
  • State v. Taylor, No. W2012-02535-CCA-R3-CD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • September 30, 2014
    ...for a mistrial. The grant or denial of a motion for a mistrial rests within the sound discretion of the trial court. State v. Johnson, 401 S.W.3d 1, 21 (Tenn. 2013) (citing State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004)). A trial court should declare a mistrial "only upon a showing of ......
  • Breton v. Comm'r of Corr., SC 19072
    • United States
    • Supreme Court of Connecticut
    • May 23, 2017
    ...Commonwealth, 140 S.W.3d 510, 560–61 (Ky. 2004) ; State v. Short, 129 Ohio St.3d 360, 368–69, 952 N.E.2d 1121 (2011) ; State v. Johnson, 401 S.W.3d 1, 13 (Tenn.), cert. denied, ––– U.S. ––––, 134 S.Ct. 513, 187 L.Ed.2d 371 (2013). At least one state court has treated this standard as consti......
  • Hugueley v. Westbrooks, No. 09-1181-JDB-egb
    • United States
    • U.S. District Court — Western District of Tennessee
    • August 3, 2017
    ...defendant whether he or she decides to forego the presentation of mitigating evidence. Zagorski, 983 S.W.2d at 660; see State v. Johnson, 401 S.W.3d 1, 16 (Tenn. 2013) (same). 9. Jones and Gibson represented Hugueley both at trial and on appeal. (See ECF No. 58 at PageID 4677.) 10. Although......
  • Wertz v. State, No. CR–12–655.
    • United States
    • Supreme Court of Arkansas
    • May 22, 2014
    ...of review. Several courts have opined on whether a defendant may waive the investigation into mitigating evidence. See State v. Johnson, 401 S.W.3d 1, 15 n. 8 (Tenn.2013) (collecting cases). The Tennessee Supreme Court, in Zagorski v. State, 983 S.W.2d 654, 660 (Tenn.1998), established a th......
  • Request a trial to view additional results
24 cases
  • State v. Taylor, No. W2012-02535-CCA-R3-CD
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • September 30, 2014
    ...for a mistrial. The grant or denial of a motion for a mistrial rests within the sound discretion of the trial court. State v. Johnson, 401 S.W.3d 1, 21 (Tenn. 2013) (citing State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004)). A trial court should declare a mistrial "only upon a showing of ......
  • Breton v. Comm'r of Corr., SC 19072
    • United States
    • Supreme Court of Connecticut
    • May 23, 2017
    ...Commonwealth, 140 S.W.3d 510, 560–61 (Ky. 2004) ; State v. Short, 129 Ohio St.3d 360, 368–69, 952 N.E.2d 1121 (2011) ; State v. Johnson, 401 S.W.3d 1, 13 (Tenn.), cert. denied, ––– U.S. ––––, 134 S.Ct. 513, 187 L.Ed.2d 371 (2013). At least one state court has treated this standard as consti......
  • Hugueley v. Westbrooks, No. 09-1181-JDB-egb
    • United States
    • U.S. District Court — Western District of Tennessee
    • August 3, 2017
    ...defendant whether he or she decides to forego the presentation of mitigating evidence. Zagorski, 983 S.W.2d at 660; see State v. Johnson, 401 S.W.3d 1, 16 (Tenn. 2013) (same). 9. Jones and Gibson represented Hugueley both at trial and on appeal. (See ECF No. 58 at PageID 4677.) 10. Although......
  • Wertz v. State, No. CR–12–655.
    • United States
    • Supreme Court of Arkansas
    • May 22, 2014
    ...of review. Several courts have opined on whether a defendant may waive the investigation into mitigating evidence. See State v. Johnson, 401 S.W.3d 1, 15 n. 8 (Tenn.2013) (collecting cases). The Tennessee Supreme Court, in Zagorski v. State, 983 S.W.2d 654, 660 (Tenn.1998), established a th......
  • Request a trial to view additional results

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