State v. Johnson
| Decision Date | 30 April 1998 |
| Docket Number | No. 75878,75878 |
| Parties | STATE of Missouri, Respondent, v. James R. JOHNSON, Appellant. |
| Court | Missouri Supreme Court |
Janet M. Thompson, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., David G. Brown, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, James R. Johnson, was convicted by a Laclede County jury of four counts of first degree murder and was sentenced to death on all four convictions. His motion for postconviction relief under Rule 29.15 was overruled. Because the death penalty was imposed, his appeal lies exclusively with this Court. Mo. Const. art. V, sec. 3. The judgments are affirmed.
Johnson does not dispute the sufficiency of the evidence. That evidence, which we review in the light most favorable to the verdict, State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following:
Johnson lived in rural Moniteau County with his wife, Jerri Wilson, and her 19 year old daughter, Dawn Becker. Johnson and Becker had an uneasy relationship and fought a great deal. On the evening of December 8, 1991, the two of them were involved in an argument during which Johnson cried out that "he couldn't take it anymore" and told his wife that her daughter had to move out. His wife replied that if her daughter moved out, so would she. Johnson then told her to choose between her daughter and him, and when his wife chose her daughter Johnson ordered them both out of the house. At that point, they refused to be forced out, so Johnson produced a loaded rifle and pointed it at his wife. When she did not back down, Johnson pointed the rifle at Becker. Johnson then grabbed Becker in a choke hold and forced her out of the door at which time she fled.
Within a few minutes, Johnson loaded some guns and ammunition into his car and drove away. He returned later with Becker in his car and told his wife that he wanted to work things out. Shortly thereafter, Deputy Les Roark of the Moniteau County Sheriff's Department arrived at the house to investigate a domestic disturbance. Roark asked to speak with Becker, but Johnson refused. His wife brought Becker to the door and told Roark that they were both fine. As Roark was walking back to his car, Johnson pulled out a .38 caliber pistol, stepped onto the porch, and shot Roark twice, once in the rear, and once in the back of the hand. Johnson then stepped back inside, but when he heard Roark moaning, he went again to the porch and shot Roark in the forehead, killing him.
Johnson soon left the house in the car with his guns and ammunition, and with clothes and a thermos, and drove to the home of Sheriff Kenny Jones, whose family was having a Christmas party. Using a .22 caliber semi-automatic rifle, Johnson opened fire on a group of people he saw through the bay window. Pam Jones, the wife of the sheriff, was shot five times, once in the shoulder, once in the face, once in the neck, and twice in the back of the head. She died in her home in front of her family.
Johnson next appeared outside the home of Moniteau County Deputy Sheriff Russell Borts. Johnson shot Borts through a window while Borts was talking on the telephone. Although Borts was shot four times, once in the hand, twice in the chest, and once in the face, he survived, but he was still under medical care at the time of the trial.
After shooting Borts, Johnson went to the sheriff's office where peace officers from numerous jurisdictions had gathered. When word of the attack on Borts arrived, the officers rushed out from the sheriff's office. Johnson, who was lying in wait, fired on the emerging officers. Cooper County Sheriff Charles Smith was shot four times with a .22 caliber semi-automatic rifle, once in the face, once in the right side, once in the upper back, and once in the head. He died from the shot to the head.
Moments later, Miller County Deputy Sandra Wilson arrived at the sheriff's office, stopped her patrol car in the street, and slid to the passenger side. As she started to climb from the car onto the pavement, Johnson shot her through the heart with an 8-millimeter, bolt-action Mauser. Deputy Wilson died on the pavement.
Johnson then fled to the back porch of the home of an elderly woman named DorthyMae Miller and hid there for the rest of the night. The next morning, he confronted Mrs. Miller and hid in her house for most of the day, holding her hostage. During that time, Johnson admitted to Mrs. Miller that he had shot five people. That evening, Johnson allowed Mrs. Miller to leave the house so that she could attend a Christmas party where she was expected. Upon her release, Mrs. Miller notified authorities that Johnson was in her house. Soon thereafter, law enforcement officers surrounded her house and negotiated Johnson's surrender.
At trial, Johnson admitted the killings and defended on a plea of not guilty by reason of mental disease or defect under Chapter 552, RSMo. In presenting this defense, Johnson, a Vietnam veteran, claimed to be a victim of Post Traumatic Stress Disorder (PTSD), that rendered him incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct. See sec. 552.030.
Johnson contends that several comments made by the State to the venire panel were so prejudicial that they amounted to prosecutorial misconduct, that his counsel was ineffective for failing to object to the State's comments, and that the trial court plainly erred by not declaring a mistrial sua sponte. These comments, Johnson explains, violated his rights to due process and freedom from cruel and unusual punishment. The comments include the following: 1) that the penalty phase would be a "gut check," 2) that the jurors should ignore any other information they had, 3) whether the jurors in the "proper case" could "legitimately consider" the death penalty, 4) that the jurors should repress or sublimate anything they recalled in the midst of trial, 5) whether the jurors could impose death in a case of homicides of law enforcement personnel, 6) that aggravators are "a little point" or "a little diversion," and 7) that Russell Borts was "lucky to be with us." Additionally, Johnson complains that the comments were too "factually specific."
As noted, no objections were made to these comments, so Johnson requests that this Court review for plain error. Plain error relief will only be granted if manifest injustice or miscarriage of justice resulted from the error. Rule 30.20 ; State v. Simmons, 955 S.W.2d 729, 736 (Mo. banc 1997). Johnson does not favor this Court with an explanation of how these comments resulted in manifest injustice or miscarriage of justice, and his failure to do so is not surprising. When viewed in context and not grossly mischaracterized as defendant has done, the comments were not improper, and no error was committed. Undoubtedly, that is why trial counsel made no objections. An extended opinion on the matter would have no precedential value. Rule 84.16(b). The complaints regarding voir dire are denied.
The primary thrust of Johnson's entire appeal is a combined claim of prosecutorial misconduct and ineffective assistance of counsel arising from defense counsel's mistaken use of certain evidence to support the PTSD defense. That evidence, which defense counsel highlighted in opening statement, consisted of 1) a tin-can-rope perimeter set up around Johnson's garage, 2) a foil wrapper, possibly from a baked potato, found in the garage, and 3) the flattened tires on Johnson's vehicle. Defense counsel's theory, as related to the jury, was that on the night in question, Johnson experienced Vietnam-related flashbacks--an "acute disassociative reaction"--that led him to believe that he was back in Vietnam, confronted by the enemy, and "fighting in a free-fire zone." In an effort to maintain a defensive position, he had supposedly set up the perimeter so that persons coming near the garage would hit the rope and cause the tin cans to rattle, and while resting within the perimeter, he renourished himself with a baked potato. He flattened the tires, according to the story, to disable his vehicle and prevent the enemy from using it against him. Defense counsel then related in some detail how Johnson left his perimeter on a "reconnaissance" mission, encountered the enemy (the three remaining murder victims) and dispatched them. 1 The perimeter, potato, and tire evidence (hereinafter referred to as the "perimeter evidence") unraveled early in the trial. The fourth witness in the State's case in chief, a highway patrolman, testified that he was the one who set up the tin-can perimeter and left the foil in the garage. He had taken these measures while watching the Johnson house in case Johnson returned there after the rampage. The next witness, another highway patrolman, testified that he saw yet another officer let the air out of the tires of Johnson's vehicle to disable it and prevent Johnson from using it. From that point on, defense counsel conceded that Johnson had nothing to do with the perimeter evidence. In closing argument, the State capitalized on defense counsel's mistake by contending that it was one of the many ways that Johnson had lied in order to maintain the PTSD defense.
The claim of prosecutorial misconduct is that the prosecutor "sandbagged" defense counsel into believing that Johnson was responsible for the perimeter evidence and that the failure to disclose the truth about that evidence was an intentional misrepresentation. The authorities had questioned Johnson's wife about this evidence, and there was apparently some passing mention of the evidence in the police reports, although at no time did the State indicate that the evidence was attributable to the highway patrolmen, rather than Johnson. The reasonable implication was that Johnson,...
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