U.S.A v. Johnson

• Decision Date: 18 May 2010
• Docket Number: Criminal Action No. 04-17.
• Parties: UNITED STATES of Americav.John JOHNSON.
• Court: U.S. District Court — Eastern District of Louisiana

713 F.Supp.2d 595

UNITED STATES of Americav.John JOHNSON.

Criminal Action No. 04-17.

United States District Court,

E.D. Louisiana.

May 18, 2010.

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Brian P. Marcelle, Mark A. Miller, Michael William Magner, Michael M. Simpson, U.S. Attorney's Office, New Orleans, LA, for United States of America.

ORDER AND REASONS

HELEN G. BERRIGAN, District Judge.

This capital matter comes before the Court on motion for new trial and supplemental motion for new trial filed by the defendant, John Johnson (“Johnson”). Oral argument was held on March 23, 2010. Having considered the record, the memoranda and argument of counsel and the law, the Court affirms the convictions but grants a new penalty phase hearing for the reasons set forth below.

In May 2009, the defendant was convicted of three counts of a Second Superseding Indictment pertaining to his role in a 2004 attempted bank robbery and death of a bank security officer, Orleans Parish Criminal Deputy Sheriff Sidney Zaffuto. The jury imposed the death penalty on the two capital counts, Count Two and Count Three, making the same eligibility phase findings as to each count, and also making the same selection phase findings as to non-statutory aggravating factors and mitigating factors.

Trial errors and the resulting fairness of the trial are evaluated “against the record as a whole” on a motion for new trial. United States v. Wall, 389 F.3d 457, 466 (5th Cir.2004). Johnson's guilt as to all three counts was essentially conceded, although issues concerning his intent were disputed by the defense. His willingness to plead guilty to a life sentence from the inception of the prosecution was also stipulated. The entire attempted robbery and murder were captured on surveillance film introduced into evidence. During the aborted robbery, defendant Johnson and co-defendant Joseph Smith (“Smith”) were shot by another bank security guard, Orleans Parish Deputy Andrew Jenkins. All three defendants were captured shortly after fleeing the bank. Many of the underlying facts were stipulated. Rec. Doc. 1240. The guilt phase verdict was returned in a little over one hour. Rec. Doc. 1219.

The attempted robbery and murder at the bank occurred over a very short period of time, shocking in its brevity.¹ The surveillance photos and testimony are gripping and the crimes traumatized all unfortunate enough to have been in that bank at that time. The surveillance and testimony establishes that Smith entered first, co-defendant Herbert Jones (“Jones”) entered next and Johnson was the last to enter, taking at most perhaps six steps into the bank and remaining near the front door. Smith rushed toward Deputy Zaffuto, who was standing at a check writing stand near the door, pointed his gun at him, disarmed him and slid the deputy's service gun to Johnson. While this was happening, Jones quickly moved in the opposite direction toward the bank manager's office. Deputy Jenkins, who had been in corner by the entrance to the bank, out of the sight of the defendants, testified that he ordered Smith to drop his gun and when Smith failed to do so, Jenkins shot him, and then likewise shot Johnson, hitting both in the leg area. ² Meanwhile, after Smith was shot, Deputy Zaffuto retrieved Smith's gun and attempted to shoot several times at Johnson from behind the podium but the gun would not fire. Johnson shot back several times at Deputy Zaffuto and also at Deputy Jenkins. Moments thereafter, Smith scrambled across the floor to the entrance of the bank and both he and Johnson fled, to be arrested shortly thereafter.

The bullet fired by Johnson that killed Deputy Zaffuto is captured midair in the surveillance photos at a time when Zaffuto was trying to shoot Johnson with Smith's inoperable gun, not knowing that the gun did not shoot. The fatal bullet first hit the grip of the gun in Zaffuto's hand, then ricocheted into his chest, killing him. Johnson also shot Deputy Jenkins in the foot with Deputy Zaffuto's service revolver just before crawling out of the building immediately before Smith. Johnson had what appears to be ample opportunity to leave the building immediately after Jones, which would have left Smith several yards away from the door and in Deputy Jenkins' line of fire.

The eligibility phase of trial of the sentencing hearing was short in duration and the jury deliberated for less than an hour. Rec. Doc. 1221.³ The jury found the gateway factors that Johnson, who was nearly 57 years old at trial, was over eighteen years old at the time of the offense, and that he intentionally killed Sidney Zaffuto. 18 U.S.C. § 3591; Rec. Docs. 1221-1, 1221-2. It also found, as statutory aggravating factors that the defendant had been previously imprisoned for a crime that involved the use of a firearm against another person, that the defendant knowingly created a grave risk of death to more than one person in addition to the victim, and that he attempted to kill more than one person in a single criminal episode. 18 U.S.C. § 3592; Rec. Docs. 1221-1, 1221-2.

The unanimous jury verdicts from the selection phase of trial consisted of several findings. The jury concluded that the government had proven, beyond a reasonable doubt, the non-statutory aggravating factors that Johnson aided and abetted the taking of a hostage during the robbery, that the defendant had a substantial criminal history based on stipulated guilty pleas ⁴, and an additional unadjudicated attempted bank robbery in 2003.⁵ In addition, the jury unanimously found that the murder of Sidney Zaffuto created harmful emotional and financial distress on his family. Rec. Docs. 1238-1, 1238-2.

At the same time, all the jurors found non-statutory mitigating factors that the defendant offered to plead guilty to a life sentence at the inception of the prosecution, that he was raised in poverty by his mother, that he lacked a positive male role model and father figure, that he was 57 years old, and that if he was not sentenced to death, he will be sentenced to a term of life imprisonment without the opportunity for release. Id. One juror found an additional non-statutory mitigating factor in that Johnson became addicted to heroin in his youth, struggled throughout his life to stop using drugs, being gainfully employed when he was off drugs but relapsing back to drugs and crime to support his addiction. Id. One juror also found that Johnson's life had value in that he had been a good and loving son, brother, father and grandfather and that his family will suffer greatly if he is executed. Id. Some evidence was presented that Johnson had in fact shot heroin the morning of the crime, the crime occurring midday.

CAPITAL REVIEW UNDER RULE 33 ⁶

Defendant Johnson has moved for a new trial based on eighteen claims in two motions. In order to frame his allegations, the Court begins with a restatement of some fundamental legal principles with respect to review of capital cases as well as the standards for a motion for new trial under Fed.R.Crim.P. 33.

The United States Supreme Court has consistently held that under the Eighth Amendment “the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (citation omitted); Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982)(O'CONNOR, J., concurring) (“[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake”); see also Reid v. Covert, 354 U.S. 1, 45-46, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)(J. Frankfurter concurrence)(“The taking of life is irrevocable. It is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights.”); Andres v. U.S., 333 U.S. 740, 752, 68 S.Ct. 880, 92 L.Ed. 1055 (1948)(“In death cases doubts such as those presented here [which involved a confusing jury instruction] should be resolved in favor of the accused.”).

In addition to demanding meticulous review of procedural safeguards in capital verdicts, the Supreme Court more recently has indicated that capital punishment in general should be a relatively rare occurrence. “It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.” Kennedy v. Louisiana, --- U.S. ----, 128 S.Ct. 2641, 2658, 171 L.Ed.2d 525 modified on denial of reh'g on other grounds, --- U.S. ----, 129 S.Ct. 1, 171 L.Ed.2d 932 (2008). In capital jurisprudence, “[t]he tension between general rules and case-specific circumstances has produced results not all together satisfactory.” Id. at 2659. The Supreme Court's response to capital case law, “which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed .... because ‘death as a punishment is unique in its severity and irrevocability.’ ” Id. at 2660, (quoting Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

Against this backdrop, a motion for new trial in a capital case is governed by the same Rule 33 applicable in all criminal cases. In general, a district court may grant a new trial under Rule 33 “if the interest of justice so requires” whether based on newly discovered evidence or other grounds. Wall, 389 F.3d at 466. The motion is addressed to the discretion of the district court, “which should be exercised with caution, and the power to grant a new trial ... should be invoked only in...