State v. Johnson

• Decision Date: 11 September 1972
• Docket Number: No. 1,No. 56967,56967,1
• Citation: State v. Johnson, 485 S.W.2d 106 (Mo. 1972)
• Parties: STATE of Missouri, Respondent, v. James Burl JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 106

485 S.W.2d 106

STATE of Missouri, Respondent, v. James Burl JOHNSON, Appellant.

No. 56967.

Supreme Court of Missouri, Division No. 1.

Sept. 11, 1972.

Motion for Rehearing and to Transfer to Court En Banc Denied

Oct. 9, 1972.

John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

Keith Brown, Russell & Brown, Nevada, Mo., Court Appointed, for appellant.

WELBORN, Commissioner.

On April 13, 1953, an information was filed in the Barton County Circuit Court charging James Burl Johnson with forcible rape. The case was tried in Vernon County on a change of venue and on June 17, 1953, a jury returned a verdict finding the defendant guilty and assessing the punishment at 30 years' imprisonment. On appeal, this court reversed the judgment of conviction and the case was remanded for a new trial. State v. Johnson, 267 S.W.2d 642. Upon remand, a jury, on November 18, 1954, found the defendant guilty and fixed the punishment at 40 years' imprisonment. On November 19, 1954, the defendant appeared with his attorney, waived his right of appeal, and was sentenced in accordance with the verdict to 40 years' imprisonment.

As a result of a motion under Supreme Court Rule 27.26, V.A.M.R., the Vernon County Circuit Court found that Johnson had been unconstitutionally deprived of his right of appeal. The order of the circuit court was affirmed by this court. Johnson v. State, 458 S.W.2d 713, decided September 14, 1970. The case was remanded to permit the filing of a motion for new trial and for further proceedings upon the disposition of such motion.

A motion for new trial was filed by counsel appointed to represent the defendant. The motion for new trial was argued on behalf of defendant and on May 26, 1971, the motion was overruled. Allocution was granted and the defendant sentenced to 40 years' imprisonment in accordance with the verdict. The court allowed the defendant credit for jail and prison time served since his first conviction on June 17, 1953. This appeal followed.

The state's evidence showed that, on the evening of January 10, 1953, appellant Johnson was a spectator in a bowling alley in Lamar at which four young women were bowling. The four left the bowling alley together at around 11:30 P.M. They were in an automobile of one of the women on the parking lot of the bowling alley when defendant, carrying a pistol, accosted them, forced his way into the automobile and ordered the driver to drive to a little-traveled road in the vicinity. Johnson ordered the driver to stop the car and, after threatening the women with the gun, had sexual intercourse with three of them. He directed the driver to return to Lamar and at around 2:45 A.M. she did so and Johnson got out after threatening the women if they reported the incident.

Johnson was apprehended in Oklahoma. On February 10, 1953, the four women involved viewed Johnson in the office of the district attorney in Jay, Oklahoma, and identified him. He was returned to Barton County and charged with three separate offenses of forcible rape. Trial was on one of such charges.

On this appeal, numerous grounds have been advanced for reversal of the conviction.

I

During the second day of the trial, at the conclusion of the testimony of the third of the four women involved, the following occurred:

'MR. COMBS (Special Prosecutor): I resent the remarks of this defendant.

'DEFT. JOHNSON: That's my personal opinion.

'MR. COMBS: That's all right, but I don't have to set here and be humiliated before this jury, Your Honor.

'THE COURT: That's right.

'DEFT. JOHNSON: When I was over there--

'MR. COMBS: He called me a son-of-a-bitch.

'DEFT. JOHNSON: I did not call him a son-of-a-bitch.

'MR. COMBS: I don't have to take this, Your Honor, from him or anybody else.

'DEPT. JOHNSON: I didn't call you a son-of-a-bitch.

'MR. COMBS: I heard what you said.

'DEFT. JOHNSON: I said you were a rotten bastard.

'MR. COMBS: You said I was a son-of-a-bitch.

'THE COURT: Just a minute. This is no laughing matter. I want you to conduct yourself different, altogether different. The Court doesn't have to set up here and put up with that neither.

'MR. COMBS: I don't have to take it across this table either.

'DEFT. JOHNSON: Look, Judge.

'THE COURT: Wait a minute. Carrol Combs is a gentleman and you've got no right to sit there and call him a son-of-a bitch or anybody else. The Court won't stand for that at all.

'MR. COMBS: I didn't.

'THE COURT: Now proceed and you conduct yourself different. The Court doesn't have to set up here and let you go on either.

'DEFT. JOHNSON: I didn't say that.

'THE COURT: Proceed, gentlemen.'

Later in the day, Johnson undertook to cross-examine a state's medical witness by use of the transcript of his testimony at the first trial. At the conclusion of the witness's testimony, the following occurred:

'MR. COMBS: If Your Honor please, I've taken just about all I can from this defendant. He is still making remarks to me, calling me a blubber boy and blubberass and everything else across the counsel table and I'm not going to take it any more.

'MR. JOHNSON: I haven't said anything to you. I just messed up your testimony a little bit. I didn't do it, it is in the book.

'THE COURT: Mr. Johnson, I don't want you calling anybody names.

'MR. JOHNSON: I haven't said 'phooey' to the man.

'THE COURT: From here on, behave.'

Appellant's objection here is that these colloquies occurred in the presence of the jury. He contends that the trial court erred in not taking steps to purge the prejudicial effect in the eyes of the jury of the remarks of the special prosecutor. Appellant equates the situation with that in which corrective action by the trial court was required to avoid prejudicial error because the prosecutor applied unbecoming names to the defendant. State v. Burnett, Mo.Sup., 429 S.W.2d 239, 245--246(9), (10, 11); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113(9, 10). The situation presented by those cases is distinguishable on two grounds. First, the prosecutor applied unbecoming names to the defendant, whereas here the prosecutor was reporting to the court the names which the defendant had applied to him. Second, the trial court in those cases was requested to take remedial action and did so. Here, no remedial action was requested and the trial court did not err in failing to act of its own motion. State v. Williams Mo.Sup., 419 S.W.2d 49, 53(6); State v. Bland, Mo.Sup., 353 S.W.2d 584, 587(7).

II

The denial of right to effective assistance of counsel is asserted on the basis that trial counsel failed to object to appellant's being tried as a second offender and failed to object to testimony bh the women, other than the complaining witness, of the details of the assaults by defendant upon them.

The question presented by appellant's being tried as a second offender on the second trial is more fully considered below. On the issue here presented, under Missouri law as it stood at the time of the second trial in 1954, the second trial was a new trial on all issues and the verdict at the first trial which was silent on the second offender charge was not res judicata on that issue. State v. Chamineak, Mo.Sup., 343 S.W.2d 153, 162--163(18, 19). Defense counsel is not now to be faulted for failing to have foreseen later United States Supreme Court decisions now claimed to have a bearing on this issue.

Failure to object to the testimony concerning the assault by appellant upon the women other than the prosecutrix in the case on trial does not evidence inadequacy of representation amounting to deprivation of right of counsel. Part of appellant's defense was that he was incapable of committing four acts of intercourse. Trial counsel may have felt that permitting the entire occurrence to go before the jury would add credence to the defense. In any event, the testimony of the other women was so interrelated with the assault on the one that an objection would not have precluded its admission. See State v. Wilson, Mo.Sup., 320 S.W.2d 525; State v. Swinburne, Mo.Sup., 324 S.W.2d 746, 753(9).

III

The information under which appellant was tried both times charged that he had four prior felony convictions. At the first trial, objection to evidence of two of the convictions was made on the grounds of failure of the record offered to show that the defendant had been discharged from the sentence. § 556.280, RSMo 1949, in effect at that time. When such objection was made, the prosecution withdrew the evidence of those two convictions. The case was submitted to the jury under a verdict form authorizing a finding that defendant had been duly convicted of and discharged on the other two felony convictions charged in the information. The just made no finding on the habitual criminal charge.

At the second trial, the record of discharge from the two sentences not submitted at the first trial had been obtained and the records of all four convictions were submitted and the jury found those four prior convictions.

Appellant here contends that, under the 1970 decision of the United Supreme Court in Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300, the court had no jurisdiction to try him on the second trial under the Second Offender Act because the silence of the jury on that issue on the first trial amounted to a finding that defendant was not a second offender, precluding his subsequent trial as a second offender. Appellant also invokes the rule of collateral estoppel applied in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, and Simpson v. Florida, 403 U.S. 384, 91 S.Ct. 1801, 29 L.Ed.2d 549.

'The habitual criminal act goes only to the punishment, not the guilt or innocence of an accused of the offense on trial, * * *.' State v. O'Brien, Mo.Sup., 252 S.W.2d 357, 360(4, 5). '* * * (T)he Double Jeopardy Clause of the Fifth Amendment is written in terms of potential or risk of trial and conviction, not punishment.' (...