State v. Johnston

• Decision Date: 25 November 1997
• Docket Number: No. 74064,74064
• Citation: 957 S.W.2d 734
• Parties: STATE of Missouri, Respondent, v. Timothy JOHNSTON, Appellant.
• Court: Missouri Supreme Court

Page 734

957 S.W.2d 734

STATE of Missouri, Respondent, v. Timothy JOHNSTON, Appellant.

No. 74064.

Supreme Court of Missouri En Banc.

Nov. 25, 1997.

As Modified on Denial of Rehearing Dec. 23, 1997.

Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERTSON, Judge.

A jury convicted Timothy Johnston of first degree murder after he beat his wife to death. Upon the jury's recommendation, the trial court sentenced Johnston to death. Johnston filed a timely Rule 29.15 motion, which the motion court overruled. Johnston appealed the conviction and sentence and the motion court's ruling. Among the numerous substantive and procedural issues he raises, Johnston claims that evidence produced by a search and seizure in violation of the Fourth Amendment tainted his confession and that the state failed to prove that he deliberated prior to killing Nancy Johnston. We have jurisdiction. MO. CONST. ART. V, SEC. 3. The judgments are affirmed.

I.

We review the facts in the light most favorable to the verdict. State v. Copeland, 928 S.W.2d 828, 834(Mo.), cert denied, --- U.S. ----, 117 S.Ct. 981, 136 L.Ed.2d 864 (1996).

At 2:28 a.m., June 30, 1989, paramedics arrived at the home of Timothy and Nancy Johnston in response to a 911 call seeking assistance for a "severe sick case." The 911 operator also dispatched Officer Matthew Rodden of the St. Louis Police Department to the residence. Officer Rodden arrived at the Johnston residence at the same time as the ambulance carrying the paramedics. A male voice from inside the house directed these emergency personnel to "hurry up, inside. She is in here. She needs help." The officer and the paramedics stepped over the bloody sidewalk and porch into the house.

Just inside the doorway, in the living room, they found Timothy Johnston bent over a woman lying on the floor, her otherwise nude upper body draped with a shirt, her face and torso horribly injured, swollen and bloody. A six-inch gash ran across her forehead to the socket of her right eye. Someone had yanked large patches of hair from her head. She did not breathe. Officer Rodden had to remove Johnston before paramedics could assess the woman's condition.

Paramedics declared her dead at the scene. An autopsy performed later that morning revealed extensive, blunt-trauma injuries over much of her upper body; a broken nose; bruised and torn lips; scrapes to the back of her head and on her face; separation of a portion of the scalp from the skull; a broken right collarbone; a four-inch tear in her liver; bruising and tearing in the heart and spleen; breaks in nearly all of her front ribs and in four of the back ribs; and a variety of relatively "minor" scrapes and bruises over much of her body. The medical examiner determined the cause of death as the collapse of the support structure around the heart and lungs, rendering those organs unable to function because they could not bear the weight of the muscle, tissue and bone pressing on them. Bleeding under the skin confirmed that the victim had remained alive through most of the beating.

A purse near the victim yielded the identification necessary to confirm that Nancy Johnston had died.

When informed that his wife was dead, Timothy Johnston flew into a rage, throwing himself against the walls of the living room, knocking lamps and small items from their places and overturning furniture. He ordered the officer and the paramedics to leave his house, screamed that he knew that a motorcycle gang that wanted "to get back at him" had killed his wife and said that he would take care of everything that needed to be done.

Now at an obvious murder scene, the officer, of course, did not leave. Indeed, by this time, other officers had responded to the Johnston residence. One of those officers, Officer John Ruzicka, had seen Timothy Johnston earlier in the evening when he had responded to a call reporting an assault in progress at the intersection of South Broadway and Eichelberger. When he had arrived at that location at approximately 1:30 a.m., Officer Ruzicka had discovered a dark-colored, two-door car stopped in the middle of the southbound lanes of Broadway. Ruzicka approached the car, noted the broken windshield on the driver's side and told the driver to "hold on a minute." The driver ignored him and sped off. Ruzicka gave chase briefly, but returned to the place of the assault to interview witnesses.

Marty Bounds, one of those witnesses, had stopped when he saw a car abandoned in the middle of Broadway and noticed a man "beating on someone" on the sidewalk next to a house. He could not determine the gender of the person being beaten until the attacker ripped her shirt from her. The attacker kicked the victim "like if you would kick a football, stomping like ... a tin can, if I was trying to flatten it." Bounds tried to interrupt the attack verbally, but the attacker responded only with profanity. Bounds drove his truck toward the attacker in an attempt to break off the beating and, when this had no effect, Bounds drove his truck in circles in an attempt to attract enough attention that someone would call the police.

Naomi Runtz awoke to the sound of a fracas outside her window. She saw a man kicking and stomping someone and called 911. Streetlights illuminated the scene sufficiently well so that Bounds, Runtz and Officer Ruzicka later identified the attacker/driver as Timothy Johnston.

Johnston apparently remembered Officer Ruzicka from their previous encounter. When Ruzicka arrived at the murder scene, Johnston renewed his vulgar demands that the officers leave. The officers decided to handcuff Johnston and take him to a police car to protect the officers, the crime scene and Johnston himself. Johnston began kicking the inside of the car. Detective James Maier, who had just arrived, saw Johnston's flailing and ordered Johnston removed from the car in an attempt to calm Johnston. Maier noticed blood and hair on Johnston's steel-toed motorcycle boots. When Johnston did not calm down, Maier directed other officers to take Johnston to the police station.

Officers on the scene learned that a third person, Michael Federhofer, Nancy Johnston's eleven-year-old stepson, also lived in the house. They checked the house to see whether Federhofer was also a victim and to determine whether any members of the motorcycle gang to which Timothy Johnston had referred remained in the house. In that process the officers discovered evidence that will be discussed more fully at point III, following.

After reviewing the crime scene, Detective Maier returned to the police station. He informed Johnston of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Maier told Johnston that he, Maier, believed Johnston was involved in the murder. Johnston denied involvement but became severely agitated. Maier left Johnston alone for nearly an hour. When he returned Johnston told a story that members of the rival motorcycle gang had dumped his wife's badly-beaten body on the driveway. He brought her into the house and called 911. She died before help could arrive.

Maier told Johnston that eyewitness accounts differed substantially from the story Johnston told. Johnston began to cry. After a short delay in the interrogation while technicians took fingernail scrapings from Johnston, Johnston called his wife a "whore" and indicated that he had grown tired of her infidelities. Johnston also said that he was "dead meat" and told Maier he would confess.

Johnston recounted that he and Nancy had gone to a local bar on his motorcycle before midnight, that they had had an argument at a bar, that he had left her there and returned to their residence. He claimed that he called several friends on the telephone, hoping, he said, that they would help him calm down. Still angry after his friends failed him, he grabbed a revolver and shot up the house and a television. Nancy came home in the midst of this tirade and attempted to drive away in her mother's car, which was parked in the driveway. Johnston ran out and jumped on the hood of her car as his wife tried to drive away. On Broadway, she stopped the car after he had kicked in the windshield and tried to run away. Johnston chased her, knocked her to the ground, and punched her a few times. According to Johnston, he and Nancy decided to return home, but the argument resumed once they arrived there. He resumed hitting and kicking her. He took her inside and called 911.

The police found the stepson, Michael Federhofer, the next day in the company of his grandmother. He confirmed parts of Johnston's story, but added that he saw Johnston hitting his stepmother while she was still in the car when the two returned home. Johnston saw Federhofer on the porch and ordered the boy to help him get Nancy into the house. Federhofer told Johnston to "leave her alone." Johnston told Federhofer to "shut up or I'll kill you" and moved toward the boy. Federhofer ran away. He spent the night with his grandmother.

A neighbor, Robyn Romanchuk, told police that she saw a man standing over a woman, kicking her repeatedly and calling her a "slut," "bitch" and "whore." She heard young Federhofer, whom she knew because he played with her son, scream and saw him run away. She recognized the voice as that of the man who lived with Nancy Johnston. She watched as the man continued kicking the woman. She saw the man drag the woman behind some bushes. She saw him beating her with a lawn chair. She saw him go into the house, leaving the woman lying outside, and return carrying a new, unidentified weapon with which he hit the still body repeatedly. She saw him drag the body over the porch and into the house.

On the strength of this and other evidence that we will discuss as it relates to Johnston's legal points on appeal, the...