State v. Johnson, WD
| Decision Date | 17 September 1996 |
| Docket Number | No. WD,WD |
| Citation | 930 S.W.2d 456 |
| Parties | STATE of Missouri, Respondent, v. Billy D. JOHNSON, Jr., Appellant. 50758. |
| Court | Missouri Court of Appeals |
Jarrett Aiken Johnson, Asst. Appellate Defender, Kansas City, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for respondent.
Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.
Four-month-old Jauanea Price suffers serious and debilitating physical injuries which her treating doctor has diagnosed as "shaken baby syndrome." Defendant-Appellant Billy Johnson was convicted of causing these injuries based largely on the testimony of Marcus Drizzle, nine years old at the time of trial, that two years earlier he saw Mr. Johnson shaking Jauanea so that her head "bobbed" a few hours before she began to display symptoms of shaken baby syndrome. Marcus accompanied his testimony with gestures which indicated that the bobbing resulted from violent shaking.
Was this evidence adequate to support the jury's verdict against Mr. Johnson in light of the countervailing evidence that he did not violently shake the baby and that other children and adults were present in the house at the time the injuries occurred and could have caused those injuries? We find that, considered in the light most favorable to the verdict, the evidence adequately supported the finding of guilt.
We further reject Mr. Johnson's claim that the trial court should not have allowed the jury to see a photograph of Jauanea while in the hospital. He says that the photograph may have inflamed the passions of the jury and that it merely duplicated testimony about Jauanea's injuries. Missouri has consistently upheld introduction of a photograph if it is relevant to the nature and location of the victim's wounds, even if witnesses also testify about the victim's injuries. Accordingly, the trial court did not err in admitting the photograph.
Mr. Johnson also claims that the trial court erred in finding that the State's peremptory strike of a black male juror was not pretextual where one of the three reasons offered by the prosecutor for rejecting the juror was not justified or plausible. Because the other two reasons offered were race-neutral and plausible, we reject defendant's contention.
Finally, we reject Mr. Johnson's further claim that he was entitled to an evidentiary hearing on his motion for post-conviction relief under Rule 24.035 based on his claim that defense counsel did not adequately cross-examine Marcus. An evidentiary hearing is not required where the motion and record conclusively refute the claim that counsel was ineffective. The transcript reveals that counsel adequately cross-examined Marcus about what he saw. Accordingly, an evidentiary hearing was unnecessary.
Jauanea Jones is the daughter of Kendra Price. She was born on January 23, 1992. Ms. Price and Jauanea lived with Billy Johnson. On the night of June 4, 1992, Ms. Price left Jauanea with Mr. Johnson. Jauanea did not appear sick to Ms. Price when she left. Several adults and children were in the apartment that evening. One of the children, a nine-year-old girl named Artisha Warner, laid Jauanea down in an attempt to stop her from crying. When this failed, she gave Jauanea to Mr. Johnson. Mr. Johnson prepared a bottle for Jauanea and took her to a bedroom. As then seven-year-old Marcus Drizzle walked by the bedroom he said he saw Mr. Johnson shaking Jauanea so that her head "kind of bobbed." After about five minutes Mr. Johnson came out of the bedroom and said that Jauanea was going to sleep. Ronald Cole, a visiting adult, testified that he heard no more crying from Jauanea. Sometime around 8:30 or 9:00 p.m., John Robinson, another adult, arrived at the apartment. Sometime thereafter, Mr. Robinson and Mr. Johnson left the apartment for approximately ten minutes, leaving Mr. Cole with the children. After returning, Mr. Robinson noticed Jauanea frothing at the mouth with her eyes rolled back into her head. She had a blue mark on her head. Jauanea's mother, Ms. Price, soon returned and rushed Jauanea to the hospital.
The hospital physicians treated Jauanea for retinal hemorrhages in both eyes, bleeding in the cranial region, swelling of the head, and an overlapping of the bones in her skull. The treating doctor diagnosed the injuries as "shaken baby syndrome." The doctor offered his expert medical opinion that the baby had been shaken within the preceding six hours.
Mr. Johnson was charged under § 565.050, RSMo 1994, with assault in the first degree. He was convicted following a jury trial and was sentenced to ten years in prison. On appeal, Mr. Johnson contends that the State did not present sufficient evidence that he caused Jauanea's injuries, and that its case was instead based solely on suspicion, conjecture, and emotion--elements insufficient to support a criminal conviction.
To find Mr. Johnson guilty of first degree assault, the jury had to find beyond a reasonable doubt that he knowingly caused serious physical injury to Jauanea. Mr. Johnson concedes that the evidence at trial conclusively established that: (1) he was at home and responsible for supervising Jauanea; (2) Jauanea seemed to be healthy when Ms. Price left the house around 7:00; (3) two other adults, Mr. Cole and Mr. Robinson, were at the house; (4) for much of the evening Jauanea was with Artisha, a nine-year-old girl; (5) Jauanea was alone with Mr. Cole for perhaps twenty minutes; (6) Mr. Johnson put Jauanea to bed after Ms. Price left and at that point the baby stopped crying; and (7) the baby was demonstrating strange behavior when viewed an hour or so later and was rushed to the hospital. He does not, however, believe that there is enough other evidence to prove that he, rather than someone else, was the cause of Jauanea's injuries. He directs us to the fact that other persons were alone with Jauanea and, therefore, could have caused her injuries. He says that as a result the jury finding that he caused the injuries was improper speculation. 1
While we agree that there was evidence that other persons had the opportunity to shake Jauanea, we disagree that this means that the State failed to present sufficient evidence of Mr. Johnson's guilt. Challenges to the sufficiency of the evidence are limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. The reviewing court does not re-weigh the evidence or re-evaluate the credibility of witnesses because these matters are solely within the province of the jury. Rather, the reviewing court views the evidence, together with all reasonable inferences drawn therefrom, in the light most favorable to the State and disregards all evidence and inferences to the contrary. 2 In so doing, however, we will not "disregard the dictates of common reason" nor will we give the prevailing party "the benefit of any other than reasonable inferences." 3
Viewed under this standard, there was adequate evidence to support the conviction. In addition to the circumstantial evidence just noted, there was Marcus Drizzle's eyewitness testimony. Marcus was seven at the time of the incident, and nine at the time of trial. He testified that he saw Mr. Johnson holding Jauanea through a partially-open bedroom door, and that he saw Jauanea's head "kind of bobbing" because Mr. Johnson was shaking her.
Mr. Johnson argues that by this testimony Marcus only showed that Jauanea's head was bobbing, not that Mr. Johnson actually shook her. His argument is disingenuous. Even if Marcus' testimony was inadequate, the transcript reveals that Marcus accompanied his testimony with a demonstration for the jury of the manner in which Mr. Johnson shook the baby. In overruling Mr. Johnson's motion to acquit, the trial judge noted that Marcus' gestures could be characterized as "a violent shaking." It was up to the jury to determine whether they believed Marcus' description, and if so whether it explained the cause of Jauanea's shaken baby syndrome. This point is denied.
At trial Mr. Johnson challenged the State's use of its peremptory strikes to remove three of the four blacks who were part of the thirty-four person jury venire, citing Batson v. Kentucky. 4 The trial court rejected his challenge. On appeal, Mr. Johnson does not continue to challenge the striking of two of the black venirepersons, but alleges that the striking of the third venireperson, a black male, was racially motivated.
Batson held that the State may not strike venirepersons on account of their race. It used a three-step approach in analyzing peremptory challenges allegedly motivated by race. Under that approach the opponent of a peremptory challenge has the initial burden of making out a prima facie case of racial discrimination. If that burden is met, then:
the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. 5
In applying Batson 's three-step test, Missouri cases have held that once the defendant raises a Batson challenge with regard to one or more specific venirepersons struck by the State and identifies the cognizable racial group to which they belong, the State is required to offer a race-neutral explanation for the strike. 6 The State's explanation satisfies this test unless the rationale offered is inherently discriminatory. 7
Once the State offers its race-neutral explanation, the burden of production shifts back to the defendant to show that...
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