State v. Johnson

• Decision Date: 03 May 1982
• Docket Number: No. 81-16-I,81-16-I
• Citation: 632 S.W.2d 542
• Parties: STATE of Tennessee, Appellee, v. Cecil C. JOHNSON, Jr., Appellant.
• Court: Tennessee Supreme Court

Page 542

632 S.W.2d 542

STATE of Tennessee, Appellee, v. Cecil C. JOHNSON, Jr., Appellant.

No. 81-16-I

Supreme Court of Tennessee.

May 3, 1982.

J. Michael Engle, Robert L. Smith, Nashville, for appellant.

Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen. and Reporter, Nashville, for appellee.

OPINION

COOPER, Justice.

This case is before us on direct appeal by Cecil C. Johnson, Jr., from a judgment entered in the Circuit Court of Davidson County, Tennessee. See T.C.A. § 39-2406. The judgment approved the jury's verdicts finding appellant guilty of three counts of murder in the first degree, two counts of assault with intent to commit murder in the first degree, and two counts of robbery accomplished with the use of a deadly weapon. The sentence imposed on each murder conviction was death by electrocution. Appellant also was sentenced to serve four consecutive life terms on the assault with intent to commit murder in the first degree and robbery convictions. On review, we find no material error in the trial record and affirm the several convictions.

The crimes for which appellant stands convicted were committed on July 5, 1980. There is evidence that on that day, at about 9:45 p. m., appellant went to the convenience market on Twelfth Avenue South in Nashville, Tennessee, which was owned and operated by Bob Bell, Jr. Appellant pointed a gun at Mr. Bell and ordered him and Lewis Smith, who was in the store working on a boat motor at the request of Mr. Bell, to go behind the store counter. Mr. Bell's twelve year old son, Bobbie Bell, was already behind the counter.

While appellant and his captives were behind the counter, a woman and two children entered the market. Appellant concealed his gun and told his captives to act naturally and to wait on the customers. As soon as the customers left, appellant ordered Bobbie Bell to fill a bag with money from the cash register; Bobbie obeyed. Appellant then searched Smith and Bell, taking Smith's billfold.

At that moment, Charles House stepped into the market, and was ordered out by appellant; House obeyed. Almost immediately thereafter, appellant began shooting his captives. Bobbie Bell was shot first. Smith threw himself on top of Bobbie to protect him from further harm, and was himself shot in the throat and hand. Appellant then walked toward Bob Bell, who was on the floor behind the counter, pointed the gun at Bell's head and pulled the trigger. Fortunately, Bell threw up his hands and the bullet hit him in the wrist, breaking it. Appellant ran from the market.

Bell got a shotgun from under the store counter, preparatory to chasing appellant. He heard two gunshots outside the market. He looked toward the front of the store and saw appellant standing beside an automobile parked at the entrance. Bell chased after appellant. As he passed the automobile, he saw that a cab driver and his passenger had been shot. The passenger was later identified as Charles House, the customer who had entered the market only moments before appellant began shooting his captives and who was acquainted with appellant. Both the cab driver, James E. Moore, and Mr. House died from a gunshot wound.

Appellant was arrested on July 6, 1980, as the result of information given police officers by Bell immediately after the robberies and murders. Subsequently, both Bell and Lewis Smith identified appellant as the perpetrator of the crimes and testified to that effect at the trial. Debra Ann Smith, the customer who came into the market with the children, also identified appellant and placed him behind the store counter with Bell, Bell's son, and Lewis Smith.

In addition to this eyewitness testimony, appellant was tied into the crimes by the testimony of Victor Davis, who had spent most of July 5, 1980, in company with the appellant. During the police investigation, Davis gave statements to the prosecution and to the defense that tended to provide an alibi for appellant. In essence, Davis said that he and appellant were together continuously from about 3:30 p. m. on July 5, 1980, until about midnight and that at no time did they go to Bell's Market. However, four days before the trial, and after his arrest for carrying a deadly weapon and for public drunkenness, Davis gave a statement to the prosecution, which incriminated appellant. In the trial Davis, who was promised immunity from prosecution in the Bell affair, testified in accord with his last statement.

According to Davis, he and appellant left Franklin, Tennessee, about 9:25 p. m. and arrived in Nashville in the vicinity of Bell's Market shortly before 10:00 p. m. Appellant then left Davis's automobile, after stating that he was going to rob Bell and was going to try not to leave any witnesses.

Davis testified that he next saw appellant, some five minutes later, near appellant's father's house which was only a block or a block and a half from Bell's Market. At that time, appellant was carrying a sack and pistol. Appellant discarded the pistol as he got into Davis's automobile and said, "I didn't mean to shoot that boy." Davis retrieved the gun and sold it the next day for $40.00.

Davis further testified that after he picked up appellant, they went directly to appellant's father's house, arriving a little after 10:00 p. m. There, in the presence of Mr. Johnson, Sr., appellant took money from the sack, counted approximately $200.00, and gave $40.00 of it to Davis.

Appellant took the stand in his own behalf and denied being in the Bell Market on July 5, 1980. His testimony as to events of the day generally was in accord with Davis's testimony, except for the crucial minutes before 10:00 p. m. when witnesses placed appellant in Bell's Market. Appellant testified that he never left the Davis automobile on the trip from Franklin to his father's house in Nashville, and that he arrived at his father's house shortly before 10:00 p. m. Mr. Johnson, Sr., fixed the time of arrival of appellant at a few minutes before 10:00 p. m., by testifying that appellant arrived as a television program ended and the 10:00 p. m. news came on. Appellant's girl friend, who talked with appellant on the telephone while appellant was at his father's home, fixed the time as being ten to fifteen minutes before 10:00 p. m. Appellant further testified that the money counted in the presence of his father was money he had won gambling in a street game in Franklin, Tennessee.

The jury accepted the prosecution evidence, including the identifications of appellant as the person who committed the robberies and murders, and found appellant guilty of murder in the first degree in killing Robert Bell III, James E. Moore, and Charles H. House, of assault with intent to commit murder in the first degree in the shooting of Lewis Smith and Robert Bell, Jr., and of the robbery of Smith and Bell.

The appellant does not specifically challenge the sufficiency of the convicting evidence, but does insist the prosecution was guilty of improprieties which had "a cumulative effect denying the (appellant's) right to a fair trial complying with due process and hindering the effectiveness of his counsel in preparing and conducting the defense." Under this general assignment, appellant insists the prosecution violated law and ethics in coverting the crucial alibi witness, Victor Davis, into a prosecution witness hostile to the defense.

The thread of appellant's argument throughout his brief of this assignment, and in his oral argument before this court, is that Davis was a "declared witness" for the defense; and that, having been so declared, the prosecution somehow was prohibited from questioning Davis and getting him to change his "story"-that, it was not fair to permit the defense to build an alibi based on the initial statements given by Davis and then have the prosecution get Davis to change his story shortly before trial.

It is well settled that prospective witnesses are not partisans and do not belong to either party, but should be regarded as spokesmen for the facts as they see them. See Gammon v. State, 506 S.W.2d 188, 190 (Tenn.Crim.App.1974). The purpose of an investigation and trial is to get to the truth. This sometimes entails the interrogation of witness on several occasions before truth is distilled in its purity. Neither party can have its investigation limited merely by a declaration that a witness will testify in behalf of the other party.

In addition to the general argument, appellant points to specific acts of the prosecution, which appellant insists were violative of both law and professional ethics. Appellant complains of the fact that the district attorney general caused Davis to be detained for questioning within a week of the trial date, the fact that Davis was questioned in the absence of his counsel, the time of day the questioning took place and Davis's physical condition, the fact that the prosecution made Davis aware of the possibility that the State would turn up evidence against Davis and move against him, and the ultimate grant of immunity to Davis from prosecution for crimes growing out of the Bell incident. Appellant argues that these actions by the district attorney general and his associates, violated Davis's Fourth, Fifth, and Sixth Amendment rights. We see no basis for the argument, either in fact or law. First, we find nothing in the record to show a violation of Davis's constitutional rights. The evidence shows that Davis's detention was as the result of a lawful arrest on charges of public drunkenness and the unlawful possession of a deadly weapon. The record also shows that Davis knowingly and voluntarily waived his right to counsel when he learned that the interrogation would be limited to the Bell incident. On the Monday following the interrogation, Davis and his attorney went to the office of the district attorney general, where Davis repeated his statement in the presence of his counsel, had it reduced...