State v. Johnson, 525A83

Decision Date12 August 1986
Docket NumberNo. 525A83,525A83
Citation346 S.E.2d 596,317 N.C. 343
PartiesSTATE of North Carolina v. Bobby Ray JOHNSON, Jr.
CourtNorth Carolina Supreme Court

Lacy H. Thornburg, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for State.

Smith, Patterson, Follin, Curtis, James & Harkavy by Charles A. Lloyd, Martha E. Johnston, John A. Dusenbury, Jr., Donnell Van Noppen III, and Davison M. Douglas, and Stephen S. Schmidly, Greensboro, for defendant.

MARTIN, Justice.

For the reasons set forth below, we arrest judgment on the rape charge. In addition, defendant is granted a new sentencing hearing on his conviction of murder in the first degree. We find no error in the kidnapping trial or sentencing.

On 3 December 1982 the body of Donna Phillips was discovered near a turnaround area on Rock Quarry Road in Guilford County. The body was lying on its left side, the victim's midsection bare, with a sweater, vest, and bra lying around her neck, and her jeans and underclothing near her ankles.

An autopsy was performed by Dr. John Butts, associate chief medical examiner for the state. He discovered approximately fifty-five separate stab wounds on the torso, right arm, thigh, and back, with thirty-eight of these being in the chest area, passing from the left of the left breast to below the right breast. The blade used, he testified, was approximately one-half inch wide and three to four inches long. One stab wound which passed completely through the right hand was, in his opinion, a defensive wound. He also found, among other injuries, a recent bruise on the right eye, scratches, and human bite marks on both the left thigh and the left breast. In his opinion, any one of approximately twenty stab wounds which punctured the lungs, abdominal cavity, or heart could have caused the victim's death, which resulted from bleeding into the chest cavities or from an interruption of the heart rhythm.

In the course of the autopsy, Dr. Butts also found that the deceased had a blood alcohol level of .15 percent, and he discovered the presence of occasional sperm in the victim's vagina, consistent with having had intercourse resulting in incomplete ejaculation within two or three days, although he detected no trauma to that area.

Based on information they had received that Bobby Ray Johnson, Jerry Williams, and a female had been seen leaving a bar called the "Rock" with Donna Phillips on the night of the killing, Guilford County Sheriff's Department officers located defendant and Williams on 4 December 1982 and requested that they come to headquarters to be questioned concerning the last known whereabouts of the victim. Initially, Johnson and Williams, who were interviewed separately, told the detectives that they had met Donna Phillips at the Rock on 2 December and had taken her part of the way home, but the last time they had seen her was when they had let her out of the car. Eventually, defendant confessed to the killing, rape, and kidnapping of Donna Phillips.

With respect to defendant's confession, the state presented the testimony of Lt. James Sheppard and detectives Jonathan Jacobs, A.J. Dunevant, and Richard Jackson of the Guilford County Sheriff's Department. Their testimony tended to establish the following: After being told by Johnson's mother and sister that Bobby would likely be walking home, Jacobs and Dunevant parked in a parking lot along the route to wait for defendant. When they spotted defendant walking down the street at 2:18 p.m., they approached him and asked him if he would accompany them to the sheriff's department to talk with them about an incident that had occurred the previous night. Neither detective was wearing a law enforcement uniform. Detective Jacobs told Johnson that after they finished their discussion he would be happy to drive Johnson back home. After asking Detective Jacobs a second time what it was about, Johnson said he would go with them, and the three got into the detectives' unmarked car, with the officers in the front seat and Johnson in the back. Johnson was neither frisked, touched, threatened, told he was under arrest, read his Miranda rights, nor told he had to go with them. On the way to headquarters, Johnson once more asked why the officers wanted to question him, and again they told him they wanted to talk to him because he might have information concerning the events of the previous morning. The officers testified that defendant was not a suspected perpetrator of the crime, but was considered merely a possible witness.

Upon their arrival at the station, the officers recounted that the three went into an interview room. Jacobs and Dunevant testified that they read the defendant his rights, even though at that time he was considered merely a witness and not a suspect. Defendant signed a written waiver of his rights. Between 2:40 and 5:55 p.m., Johnson was questioned by Jacobs, Dunevant, and a Detective Shaver, who again read the defendant his rights. Once more, the defendant waived his rights. During the afternoon defendant's movement was not restricted, and he was freely allowed to use the telephone and restroom without being monitored or guarded in any way. Defendant was cooperative during the entire interview; he never indicated he wanted to leave and never indicated he wanted to be taken home. The detectives testified that although Johnson adhered to his story that the last time he had seen Donna Phillips was when she was let out of the car, there was a discrepancy between Johnson's and Williams' accounts of exactly where she was let out.

At 5:55 p.m., Lt. Sheppard entered the interview room with Detective Jackson, who said he merely wanted to meet Bobby Johnson. After introductions were made, Detective Jackson asked Johnson whether he knew and understood his rights, and defendant replied "yes." Jackson then said, "I just wanted to meet a cold-blooded killer." Johnson responded, "Now wait a minute, I have already talked to the other officers and have told them my story." Jackson answered that he knew what Johnson had told the other officers, but he knew the truth and the truth was that Johnson was a cold-blooded killer. Johnson then began to cry and said that the police never understood him. When Jackson said he was willing to listen to him and that everybody had a good side to him, Johnson began talking about his mother. He said that his mother did not understand him, that she was always interfering with his girlfriends by running her mouth to them, and that she kept on running her mouth. Jackson said, "Sort of like Donna?" and the defendant said "yes." "Was Donna running her mouth?" Jackson inquired, and defendant said "yes." "Did you shut Donna up?" Jackson asked, and defendant said "yes" and began to cry again. When Jackson asked Johnson if he wanted to start at the beginning and tell his side of it, defendant said he did and thereupon made a full confession. After Johnson was placed under arrest, he stood up, reached in his pocket, handed Jackson a knife, and said, "I guess you will want this, the murder weapon." He then pointed to some blood on his shoes and said, "I guess you will want the tennis shoes." Sheppard also testified that defendant had told him that he thought it would never have happened had the victim not cursed at him and that he was sorry it had happened.

Defendant's confession showed that in the late evening on 2 December 1982 Bobby Ray Johnson and two companions, Jerry Williams and Cheryl Cassaro, went to a bar called the "Rock" (now known as the Country Playground) on Burlington Road in Guilford County. While there, they ran into Donna Phillips, with whom defendant had been acquainted since childhood. The four of them played pool and drank beer together. At about 1:15 a.m., Donna told Johnson that the friends with whom she had arrived had left her and asked if he thought Williams would give her a ride to a friend's house where she had left her car. When defendant said "sure," Donna and defendant got in the backseat and Williams and Ms. Cassaro sat up front. En route, defendant asked Donna if she wanted to spend the night with him at Williams' house, and she replied that she didn't. Shortly thereafter Cheryl and Donna began arguing over which of them should be taken home first. Finally, Donna requested that she be let out immediately. Williams pulled over on Burlington Road, let Ms. Phillips out, and proceeded to the Cassaros' house. After Cheryl got out, she told the two men, "Don't go back and pick that girl up." As they drove away, Williams said to defendant, "We should go back and get us some." The two men then talked about raping Donna and drove around on Wendover and Bessemer Avenues until they saw Ms. Phillips walking down the street. They stopped and asked her if she wanted a ride. When she said she did, Johnson got out and let her in the front seat between himself and Williams. As soon as they were all inside the car, Williams turned the car around and headed out Burlington Highway towards McLeansville, away from where Donna had said she had left her car. Donna demanded to know where they were going and began to curse the two men. When defendant refused her demand to be let out of the car, she began hitting and cursing him. Johnson then hit her in the face, throwing her down onto the seat. When she continued to yell and began kicking at the steering wheel and at Williams, the defendant took out his knife and stabbed her in the leg while Williams attempted to hold her legs down across his lap. At some point defendant also knocked her across the face with his elbow.

At a store off Highway 70, they turned onto a dead-end dirt road and stopped. Defendant got out of the car, dragging Ms. Phillips with him. Williams got out, held Donna's arms behind her back, and told defendant to "go ahead and kill her." Instead, Johnson tore her sweater and bra off, forced her down to the ground, and raped her. When he had finished, he asked...

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