State v. Johnson

• Decision Date: 13 November 1972
• Docket Number: No. 55552,No. 2,55552,2
• Citation: 486 S.W.2d 491
• Parties: STATE of Missouri, Respondent, v. Willis James JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 491

486 S.W.2d 491

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

No. 55552.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1972.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Douglas N. Merritt, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.

HENRY I. EAGER, Special Commissioner.

Defendant was convicted by a jury of first degree murder and the jury assessed a term of life imprisonment. He was sentenced accordingly. The case was submitted on the felony-murder doctrine. In defendant's brief no point is made on the sufficiency of the evidence and none on the instructions. We need not relate all the facts in detail from a voluminous record. Defendant was represented at the trial by retained counsel, but here by the Public Defender.

It is admitted that the '7--11' store at 5825 Prospect Avenue in Kansas City, Missouri, was robbed on the evening of March 3, 1969, and that the manager Ralph Binns, was shot through the heart and killed. The store was of a neighborhood type, selling minor grocery items and sundries. It had a check-out counter with two cash registers. There was a small storage area in the rear, shut off by a partition. The front was largely glass, with a parking area in front of the building. Binns was the only regular employee on duty at the time of the robbery, but there were several neighborhood boys in the store (from 11 to 17 years of age), some of whom performed odd jobs, such as sweeping, stacking bottles, etc. The robbery occurred somewhere around 7:30 p.m.

The defendant and his brother, Lewis Johnson, whose nickname was 'skeeter,' had been seen in front of the store around 5:00 p.m. Defendant testified that he was there then with his brother Lewis and Robert Revels; that he used the telephone located in an outside booth, and that he also bought some razor blades. One witness testified that 'someone in the group' spoke then of robbing the store. At about 7:30 p.m. two young Negro men entered the store; one, identified as the defendant, proceeded to the counter, held a pistol on the manager, and a shot was fired. No one testified that he actually saw the shot fired, but there was substantial testimony that the man identified as the defendant was the only person in the place with a gun, that he was standing in front of Binns with the gun pointed at him, that a shot was fired, that Binns fell where he had been standing behind the counter, and died. Defendant then put the gun on keith Owens, one of the boys present, and made him open both cash registers and lay out the money, whereupon he took all but some small change, a net of about $140. One or more witnesses had come out from the back immediately on hearing the shot. A man near the door was holding one of the boys by the neck. Defendant was specifically identified at the trial as the man who held the gun and took the money. According to one witness, defendant's brother Lewis was standing near him. The manager had tried to hide or duck, but one of the men said 'Come on out.'

One boy had seen defendant and his brother enter the store and heard the shot fired. Another had been standing at a rack in the store, saw defendant at the counter 'holding a gun' which was pointed at the manager and ran out, but heard the shot as he ran out. No one had a gun but the defendant. The boy, fourteen years of age, who opened the cash registers, saw defendant standing beside a cash register with the gun, immediately after the shot. The gun was described as a .22 caliber pistol, but it was never found. A .22 caliber bullet was removed at the autopsy and received in evidence. At the time of the shooting defendant had a moustache and 'whiskers' extending from it down under his chin. When he appeared an hour or so later at Mary Richmond's, as will be related, he was clean shaven and in his military uniform. It is not shown specifically how defendant and his brother left the scene, but they did not tarry. Defendant had been in Vietnam serving in some type of supply unit; his organization had been returned to California and he was on leave in Kansas City at the time of the shooting.

Mary Joyce Richmond, 17 years old, a high school student, and an acquaintance of defendant, testified: that defendant came to her home near that of his parents on the evening of March 3, clean shaven and in uniform, as stated; that he looked at the TV, talked awhile and then said: 'I just killed a man'; that he laughed and she did not believe it; a little later Tim Rice and defendant's brother Tyronne came in and defendant said: 'Man, what's going on up at the store?' and Tim said: 'Man, the dude's dead.' That defendant then said: 'I know he was going to die, because I shot him dead in the heart so he couldn't identify me.' Mary Richmond was vigorously cross-examined, partially in an attempt to show that she had been intimidated by the police. She stated that defendant had also said that shooting the enemy in the heart was the way he was supposed to kill them in Vietnam. Tim Rice testified that on that same occasion there was some conversation about what happened at the store, and that defendant then said that 'he hoped that the man died so he couldn't identify him.'

Defendant took the stand and in much detail testified to his activities in his parents' home at the time of the shooting and thereafter, and to other activities later. He denied taking any part in the robbery and shooting. He testified that he shaved that evening because he was going to wear his uniform for his girl friend, and that he could not wear whiskers with a uniform. He admitted being at the 7--11 store around 5:00 p.m. on March 3, 1969. He further testified: that he was upset because just before going to Mary's he had received a letter from a friend stating that his company was going back to Vietnam; that in the conversation with Tyronne and Rice at Mary Richmond's home, he merely said (when told of the robbery and shooting) that it was a shame the way 'these boys go around shooting people' and that if someone was shot in the heart, from what he had seen overseas, he probably would not live; that he knew nothing of what had occurred at the store. Several persons testified that defendant's reputation for truthfulness and being 'law-abiding' was good. His mother corroborated his presence at her home at the time of the robbery and shooting. Certain other details of the evidence will be referred to in the discussion of the points in defendant's brief.

Defendant's first point is that the Court erred in admitting State's Exhibit No. 7, a photograph showing the body of Binns lying on the floor behind the counter where he fell. The contention is that the photograph was inflammatory, and that it was unnecessary. Essential exhibits should be incorporated into the record or sent here by stipulation. Only after a letter, several phone calls from the clerk, and a delay of more than a week have we been able to procure the exhibit, although it involved a specific point on the appeal. Counsel for appellant is not to be commended for this omission and, as we are informed, it was finally found in his files.

A witness testified that this exhibit showed the area where he saw Binns standing before he heard the shot. It shows the body, on the floor behind the counter lying on its right side, fully clothed, and some spots of what is apparently blood near the head. It is not in color. It is certainly not any more inflammatory than any ordinary photograph of a body with a reasonable amount of blood caused by a gunshot wound. The law on this point has long been settled in Missouri. Defendant cites one case, and that from California, namely, People v. Polk, 63 Cal.2d 433, 47 Cal.Rptr. 1, 406 P.2d 641 (1965). After a discussion of the photo of that murder victim with 'bloody undershorts,' it was held that the trial court had not abused its discretion in admitting the exhibit, having weighed its probative value against its prejudicial effect. In Missouri, there is a long line of cases on the matter; perhaps one of the fullest discussions is found in State v. Moore, Mo., Banc, 303 S.W.2d 60. There, a photograph of the body of a wife, murdered in her bedroom with a shotgun blast in her chest, and lying on the floor by her bed, was admitted. A part of her forearm had been torn off. The usual contentions of prejudice were made, and also a claim that the photograph was unnecessary in view of the evidence. The Court held: that although such evidence may be inflammatory it is admissible in the discretion of the trial court, if it throws any light upon relevant issues, or shows the nature of the wound, etc.; that the mere fact that there was evidence on the material issues is not conclusive, for such exhibits often give a clearer impression than oral descriptions; that such exhibits are also to be considered as corroboratory of the witnesses, and the State should not be unduly limited in its proof; also, that if such exhibits are 'shocking and horrible' it is because the crime is one of that sort. It was held that the admission of the exhibit was within the discretion of the trial court. The exhibit there was obviously much more inflammatory than Exhibit No. 7 in our case. The same principles have been announced in the following cases: State v. Stevens, Mo. 467 S.W.2d 10; State v. Perkins, Mo., 382 S.W.2d 701; State v. Sims, Mo., 395 S.W.2d 445; State v. Blair, Mo., 305 S.W.2d 435; State v. Brandt, Mo., 467 S.W.2d 948; State v. Edwards, Mo., 435 S.W.2d 1. See also, particularly, the recent case of State v. Strong, Mo., 484 S.W.2d 657, decided September 25, 1972.

It is entirely clear here that the Court did not abuse its discretion in admitting State's Exhibit No. 7. It showed the location of the body, and raised a clear...