State v. Johnson

Decision Date26 May 2009
Docket NumberNo. SC 89168.,SC 89168.
PartiesSTATE of Missouri, Respondent, v. Kevin JOHNSON, Appellant.
CourtMissouri Supreme Court

Deborah B. Wafer, Office of Public Defender, St. Louis, MO, for Appellant.

Chris Koster, Atty. Gen., Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

I. Introduction

A jury found Kevin Johnson (Appellant) guilty of one count of first-degree murder, pursuant to section 565.020,1 for killing Sgt. William McEntee and recommended the death penalty. The trial court adopted the jury's recommendation and sentenced Appellant to death. This Court has exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.

II. Facts2

Appellant had an outstanding warrant for a probation violation resulting from a misdemeanor assault. Around 5:20 in the evening of July 5, 2005, Kirkwood police, with knowledge of the warrant, began to investigate a vehicle believed to be Appellant's at his residence in the Meacham Park neighborhood. The investigation was interrupted at 5:30 when Appellant's younger brother had a seizure in the house next door to Appellant's residence. The family sought help from the police, who provided assistance until an ambulance and additional police, including Sgt. McEntee, arrived. Appellant's brother was taken to the hospital, where he passed away from a preexisting heart condition. Appellant was next door during this time, and the police suspended their search for Appellant and never saw Appellant.

After the police left, Appellant retrieved his black, nine millimeter handgun from his vehicle. When talking with friends that evening, Appellant explained his brother's death as, "that's f____ up, man. They wasn't trying to help him, that he was too busy looking for me." Around 7:30, two hours after Appellant's brother had the seizure, Sgt. McEntee responded to a report of fireworks in the neighborhood and Appellant was nearby. As Sgt. McEntee spoke with three juveniles, Appellant approached Sgt. McEntee's patrol car and squatted down to see into the passenger window. Appellant said "you killed my brother" before firing his black handgun approximately five times. Sgt. McEntee was shot in the head and upper torso, and one of the juveniles was hit in the leg. Appellant reached into the patrol car and took Sgt. McEntee's silver .40 caliber handgun.

Appellant proceeded to walk down the street with the black and silver handguns. He then saw his mother and her boyfriend. Appellant told his mother, "that m____ f____ let my brother die, he needs to see what it feel[s] like to die." His mother replied, "that's not true." Appellant left his mother and continued to walk away.

Meanwhile, Sgt. McEntee's patrol car rolled down the street, hit a parked car, and then hit a tree before coming to rest. Sgt. McEntee, alive but bleeding and unable to talk, got out of the patrol car and sat on his knees. Appellant reappeared, shot Sgt. McEntee approximately two times in the head, and Sgt. McEntee collapsed onto the ground. Appellant also went through Sgt. McEntee's pockets.

Sgt. McEntee was shot a total of seven times in the head and upper torso. Six of the wounds were serious but did not render Sgt. McEntee unconscious or immediately incapacitated. One wound was a lethal injury that caused Sgt. McEntee's death. All seven wounds were from a nine millimeter handgun.

Appellant left the scene cursing and drove to his father's house. Appellant spent three days at a family member's apartment before arrangements were made for Appellant to surrender to a family member who was a police officer.

Appellant was indicted on one count of first-degree murder, one count of first-degree robbery, one count of first-degree assault, and three counts of armed criminal action. The murder count was severed from the other counts. Appellant's first trial ended with a hung jury in the guilt phase. In this trial, the jury deliberated for four hours before finding Appellant guilty of first-degree murder. In the penalty phase, the jury spent four hours deliberating and found the following aggravating factors present: (1) "the defendant by his act of murdering Sgt. William McEntee knowingly created a great risk of death to more than one person by means of a weapon that would normally be hazardous to the lives of more than one person;" (2) "the murder of Sgt. William McEntee `DID' involve depravity of mind, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman;" and (3) "the murder of Sgt. William McEntee was committed against a peace officer while engaged in the performance of his official duty."

III. Standard of Review

On direct appeal, this Court reviews a death penalty conviction for prejudice, not mere error, and will reverse the trial court's decision only when the error was so prejudicial that the defendant was deprived of a fair trial. State v. Johnson, 207 S.W.3d 24, 34 (Mo. banc 2006) (Johnson I). Prejudice exists when there is a "reasonable probability that the trial court's error affected the outcome of the trial." Id. Non-preserved issues are reviewed for plain error, where the error resulted in manifest injustice or a miscarriage of justice. Id. Evidence is reviewed in the light most favorable to the verdict and is reviewed for abuse of discretion. State v. Johns, 34 S.W.3d 93, 103 (Mo. banc 2000).

Appellant raises eleven points on appeal. Each point is denied.

IV. Point One: Juror Non-disclosure

In the first point, Appellant argues the trial court erred in overruling the motion for new trial because juror Broome failed to disclose in voir dire and at trial that she knew a State's witness, Det. Scognamiglio. Appellant learned after the trial that Broome knew Scognamiglio and raised the issue in a motion for new trial. The record shows that during voir dire, the State read the list of police witnesses, including Scognamiglio, and asked:

Are any of those names familiar to anybody as County police officer?

Anybody — let me start back with the jury box. Anybody know, friends with County police officers — or I won't even limit it to County. Close friends with police officers, law enforcement officers.

Broome disclosed that her stepbrother is a police officer. She did not disclose she knew Scognamiglio. At the post-trial hearing, Broome stated that she knew Scognamiglio from working with his wife. She said she did not respond at voir dire or during trial because:

it didn't register to me because he listed off a bunch of people, and I really didn't put two and two together because I hadn't seen him in over at least two and a half years. And when I seen him on the stand, I didn't — I'm like, oh. I didn't know what I could do. I had no idea. If I should have said, I didn't know.

Broome further testified at the hearing that she told her husband, "I had seen Don [Scognamiglio] there, and he was one of the ones who had brought evidence in that seemed to be the same evidence as the first time we had seen the previous pictures or trial."

The trial court overruled the motion and found Broome's conduct was not non-disclosure or, at worst, was unintentional non-disclosure. The trial court made the following findings in a written order:

Juror # 1 [Broome] was asked, after the list of witnesses was read: "Are any of those names familiar to anyone as county police officers?["] The juror did not respond to that. The credible evidence before this court is that the juror did not know Don Scognamiglio as a county police officer, although she had been aware that he was a police officer. Her relationship with the officer was peripheral to her familiarity with his wife. She never socialized with the officer and his wife but only knew him as one who occasionally appeared at work. The court finds the juror's denial that the mention of his name in the midst of a list of 12 officers did not register with her as someone she knew was credible. She had not seen or had contact with him for a few years.

The remainder of the question by the prosecutor to which there was a response sought was if "Anybody — let me start back with the jury box. Anybody know, friends with County police officers — or I won't even limit it to County. Close friends with police officers, law enforcement officers." There is no credible evidence before this court that the juror was close friends with any officers including the County Detective other than the friendships the juror disclosed during voir dire.

Clearly, even if the court were to find that the juror's conduct could be interpreted as non-disclosure, which it does not, there is no credible evidence that the non-disclosure would be intentional. At the very worst it would [be] unintentional. Also there is no credible evidence before the court that the Defendant was prejudiced by any non-disclosure that would have resulted.

Juror non-disclosure during voir dire requires a two-prong analysis. State v. Mayes, 63 S.W.3d 615, 625 (Mo. banc 2001). First, non-disclosure occurs when the juror reasonably can "comprehend the information solicited by the question asked." Id. A response is reasonable based on the language and context, and the question's clarity is subject to de novo review. Nadolski v. Ahmed, 142 S.W.3d 755, 765 (Mo.App.2004). Second, it must be determined whether the non-disclosure is intentional or unintentional. Mayes, 63 S.W.3d at 625. Intentional non-disclosure occurs when the juror "actually remembers the experience or that it was of such significance that his purported forgetfulness is unreasonable." Id. When material information is intentionally withheld, bias and prejudice are presumed. Id. Unintentional non-disclosure involves an insignificant or remote experience, misunderstanding the question or disconnected information. Williams v. Barnes Hosp., 736 S.W.2d 33, 36-37 (Mo. banc 1987). For unintentional non-disclosure, a new trial is...

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