State v. Johnson

• Decision Date: 10 January 1983
• Docket Number: No. 82-KA-0045,82-KA-0045
• Citation: 426 So.2d 95
• Parties: STATE of Louisiana v. Ray Charles JOHNSON.
• Court: Louisiana Supreme Court

Page 95

426 So.2d 95

STATE of Louisiana v. Ray Charles JOHNSON.

No. 82-KA-0045.

Supreme Court of Louisiana.

Jan. 10, 1983.

Rehearing Denied Feb. 11, 1983.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.

Ted Brett Brunson and Ralph S. Wright, Lowther & Boone, Many, Wellborn Jack, Jack, Jack, Cary & Cary, Shreveport, for defendant-appellant.

DIXON, Chief Justice.

Ray Charles Johnson was tried by a jury on October 22, 1981 and was found guilty as charged of second degree murder (R.S. 14:30.1). He was sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension. Defendant now appeals his conviction and sentence arguing five assignments of error.

Defendant resided with Ernie Mae McElroy in Apartment 120 in the housing project in Zwolle, Louisiana. Ms. McElroy's four year old son, Barcelis, resided with them. This son was from her previous marriage to the victim, Randolph Davis.

On December 1, 1980, at approximately 1:00 p.m., Davis went to the residence of defendant and Ms. McElroy and asked Ernie Mae if he could see his son. On the front porch Davis took the child in his arms and attempted to pick him up, but Ernie Mae grabbed the child away from him. Davis began hitting Ernie Mae in the face and she called the defendant for assistance. Defendant, inside getting dressed for work, did not hear her until she called a second time.

Defendant, Ernie Mae and Elliot Shepard, all witnesses for the defense, testified that when defendant responded to Ernie Mae's plea for help, Davis reached through the screen door for the defendant with a knife. The defendant then returned to the back of the house to the bedroom to get his gun. While the defendant was back in the house, Davis continued beating Ernie Mae. Upon his return to the front door, defendant fired one shot, apparently at an upward angle, in order to scare Davis.

There are essentially two versions of the events which occurred after the defendant fired the initial warning shot through the screen door.

This shot caused Davis to turn and leave the porch. Defendant and Ernie Mae testified that Davis fell on the porch as he was attempting to leave, and that defendant fired two shots at Davis as he tried to get up and go toward the street to his car. Once Davis reached his car, he reached in his pocket for his car keys near the trunk of his car. At this point the defendant testified that he descended from the porch and stopped on the sidewalk. He called out to Davis warning him not to go into his trunk, since he knew that Davis was known for carrying a gun. Then defendant again fired at Davis.

Elliot Shepard testified that Davis then ran behind the Evans house and toward Cleo German's house and that no one was running behind him. Davis attempted to ascend Cleo's porch, but fell, knocking over a bike, and then died. The defendant testified that after Davis ran away from his car, he returned to Ernie Mae to attend to her injuries. He further testified that he went into the house to get a towel, emptied the shells and reloaded the gun and then took Ernie Mae and the gun over to Autrey Lee Carter's house. Carter testified that defendant left the reloaded gun at his house with instructions to give it to anyone who asked for it. Carter turned the gun over to the authorities when they arrived.

After leaving the gun and Ernie Mae with Carter, the defendant testified that he went to Cleo German's house where there was a crowd gathering. Cleo told the defendant not to come in her yard, and defendant turned and returned to his home.

Andy Pantalion, a white man who lived across the park from the Zwolle project, was also an eyewitness to the shooting. The distance from which he viewed the shooting is approximately two hundred thirteen yards. His version of the incident is substantially different from that of the defense witnesses. He testified that he heard the first shot, turned around and saw the defendant chasing Davis. He then saw Davis fall down and the defendant fire four shots as Davis lay on the ground, under the clothesline behind the Evans home. There were others who testified that they heard these four shots. Defendant then returned to his house, emptied his shells and reloaded his gun. He went to where the victim lay, with his gun in his hand, and was told to leave the yard by Cleo German.

The coroner testified that Davis was struck by three bullets, but only one of these bullets inflicted the fatal wound. The other two bullets did not lodge in the body and caused only superficial wounds.

The police who came to the scene in response to calls testified that there was no knife or other weapon found on the person of Davis, nor in the immediate area. Davis was found holding a set of car keys in his hand.

To further support the state's theory that the defendant chased Davis and shot him while he was lying on the ground, the state attempted to offer pictures into evidence of holes in the ground in the approximate location where Pantalion testified that he saw the shooting. The defense objected and the court sustained the defendant's objection. The state was allowed to introduce the testimony of Chief Detective John Ranier to the effect that they discovered holes in the ground behind the Evans home under the clothesline. He further testified that they dug to find the projectiles, but this search was unsuccessful.

Argument 1 (Assignment of Error No. 1)

The defendant contends that the trial court erred in denying a mistrial based upon the nondisclosure by the state of an oral statement made by the defendant immediately after his arrest to Officer Dean Lambert. This statement concerns the victim's possession of a knife. The defendant argues that this oral statement is Brady material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Substantial evidence was presented by the state at trial that no knife was recovered from the victim's body, nor from the immediate area. There were two written statements made by the defendant which were made available to the defense prior to trial in response to the defendant's discovery motions. The first written statement made by the defendant to the officers does not mention a knife. ¹ The defendant's second written statement, which was made six to eight weeks later, specifically mentions that the victim had a knife. ²

Officer Lambert testified at trial that the defendant made an oral statement to him, shortly after his arrest, to the effect that the victim had a knife. This statement as to the victim's possession of a knife was in response to the officer's question. This information about the oral statement was contained in Officer Lambert's police report, yet it was not disclosed to the defendant. After this exculpatory testimony, the defense moved for a mistrial on the basis that the police report was not furnished to the defendant as requested during discovery. C.Cr.P. 775.

The state maintains that it was not obliged to produce the police report under C.Cr.P. 723, but was required to produce only the written statements. Further, it contends that this oral statement contains substantially the same information which was contained in the second written statement. The defendant maintains that the disclosure of this information falls within the exceptions established by C.Cr.P. 723, and that its disclosure was mandated by C.Cr.P. 718(1) and Brady v. Maryland, supra.

Exculpatory evidence must be provided to the defense when it is material to guilt or punishment, regardless of the good faith or bad faith of the prosecutor. Brady v. Maryland, supra at 87, 83 S.Ct. at 1196. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the United States Supreme Court delineated three tests of materiality, depending on the type of request presented by the defense to the prosecutor. This case falls under the third category of cases set forth in United States v. Agurs, since the request for information was for all Brady material. This court in State v. Willie, 410 So.2d 1019, 1031 (La.1982), discussed the analysis for this type of request when there is undisclosed evidence which may constitute Brady material. ³ Reversible error results when the undisclosed evidence, considered in the context of the entire record, "creates a reasonable doubt that did not otherwise exist." United States v. Agurs, supra 427 U.S. at 112-13, 96 S.Ct. at 2401-02.

In the instant case the defense in its discovery motion requested:

"That the District Attorney permit or authorize the Defendant to inspect, copy, examine, test scientifically, photograph or otherwise reproduce books, papers, documents, photographs, tangible objects, buildings, places, or copies or portions thereof which are within the possession, custody or control of the State in which: (a) are favorable to the Defendant and which are material and relevant to the issue of guilt or punishment, or (b) are intended for use by the State as evidence at the trial, or (c) were obtained from or belonged to the Defendant."

This is a general, not a specific, request for Brady material.

The nondisclosure of the oral statement does not create a reasonable doubt which did not otherwise exist. The jury was presented with the evidence through the testimony of Officer Lambert. State v. Hicks, 395 So.2d 790 (La.1981). Furthermore, the defense presented, through the testimony of the defendant, Ms. McElroy and Elliot Shepard, evidence that the victim had a knife. The possibility of the existence of a knife in the possession of the victim was well known to the defendant.

Defendant has made no showing that this additional evidence would have altered his defense, nor has he shown that, by its nondisclosure, he has been denied a fair trial. On the contrary, Officer Lambert's testimony was supportive of his defense of...