Washington v. State

• Decision Date: 12 July 1978
• Docket Number: No. 50401,50401
• Citation: 361 So.2d 61
• Parties: Johnny Lewis WASHINGTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 61

361 So.2d 61

Johnny Lewis WASHINGTON v. STATE of Mississippi.

No. 50401.

Supreme Court of Mississippi.

July 12, 1978.

C. Darrell Reeves, Columbus, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Special Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

ROBERTSON, Presiding Justice, for the Court:

Johnny Lewis Washington was indicted, and tried on May 24, 25 and 26, 1977, in the Circuit Court of Lowndes County, Mississippi, for the capital murder of J. K. Woods.

A bifurcated trial was conducted in accordance with the provisions of Mississippi Code Annotated sections 99-19-101 and 99-19-103 (Supp.1977), which laws were enacted by the Mississippi Legislature after carefully studying and analyzing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), and went into effect on April 13, 1977.

At the conclusion of the guilt phase of the trial, the jury returned a unanimous verdict of "guilty of capital murder." Thereupon a separate sentencing proceeding was conducted strictly in accordance with the provisions of Sections 99-19-101 and 99-19-103, before the same trial jury.

The trial jury returned this verdict:

"We the jury unanimously find that the aggravating circumstances of one, the capital murder was committed while the defendant Johnny Lewis Washington was engaged in the commission of the crime of robbery; two, the defendant Johnny Lewis Washington committed the capital murder in an especially heinous, atrocious, or cruel manner are sufficient to impose the death penalty. That there are unsufficient mitigating circumstances to outweigh the aggravating circumstances. And we unanimously find that the defendant should suffer death."

In accordance with the unanimous jury verdict, the court sentenced the defendant to suffer death by lethal gas on July 8, 1977. After appeal was perfected, execution was suspended.

The indictment recited in part:

"That JOHNNY LEWIS WASHINGTON late of the County aforesaid, on OR ABOUT the 26TH day of MARCH in the year of our Lord, 1977, did then and there wilfully, unlawfully, feloniously and of HIS malice aforethought kill and murder a human being, J. K. WOODS, WITHOUT AUTHORITY AT LAW AND NOT IN NECESSARY SELF-DEFENSE WHILE HE, THE SAID JOHNNY LEWIS WASHINGTON WAS THEN AND THERE ENGAGED IN THE COMMISSION OF THE CRIME OF ARMED ROBBERY IN VIOLATION OF SECTION 97-3-19(2)(E) OF THE MISSISSIPPI CODE ANNOTATED, 1972, . . ."

Mississippi Code Annotated section 97-3-19 (Supp.1977), provides in pertinent part "(2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:

"(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies;"

Woods Quick Pick, a Columbus, Mississippi, convenience store, was robbed on the night of March 26, 1977, by two men armed with shotguns and wearing stocking masks. During the robbery, one of the bandits, later identified as Johnny Lewis Washington, at close range shot J. K. Woods, the proprietor of the store, in the stomach with a long-barrel shotgun loaded with buckshot. Woods died about five hours later in a Columbus hospital.

Booker T. Cole, Jr. testified that between 7:30 and 8:00 P.M. on March 26, 1977, Johnny Washington contacted him and told him to come by his house because "he had something up". Some time later, when Cole arrived at Washington's house, the defendant told Cole that they were going to rob a Quick Pick. Washington provided Cole with a stocking mask and a sawed-off shotgun, and they took up their station across the street from Woods Quick Pick. After assembling and loading their shotguns, when the coast was clear they ran across the street and into Woods Quick Pick store. J. K. Woods, owner of the store, Roy Thompson, an employee, and a female employee, Elouise Clark, were in the store.

Cole and Washington pointed their shotguns at Woods and Thompson, and told them to open the cash registers and "give us the money". Thompson began to put the money from the first cash register into a brown paper sack. Cole, the smaller and younger of the two robbers, found a bank sack of money in a cabinet drawer, and he fled with that sack.

Washington, in the meantime, ordered Woods to put the money from the second cash register into the same paper sack that Thompson had put the money from the first cash register. Woods misunderstood and reached for another paper sack, whereupon, according to the testimony of Thompson, Washington hit Woods over the head with the gun barrel "just as hard as he could". In falling, Woods knocked Thompson's sack of money off on the floor. Thompson told Washington that Woods had been drinking and to let him sack the money. Washington told Thompson not to move and placed the shotgun about 8 inches from Thompson's head. Woods went ahead and picked up the sack and sacked the money from the second cash register.

As Woods handed Washington the sack in one hand, he reached for the gun barrel with the other, but missed, and Washington kept the gun on Woods as he, Washington, backed toward the door. Woods moved very slowly toward Washington. Just before he left, Washington fired his shotgun into Woods' stomach. Washington reloaded his shotgun and left. Thompson testified that Washington and Woods were about 10 feet apart when Washington fired, and that Washington could very easily have made his exit with his sack of money without shooting Woods.

Cole testified that he was a short distance away when he heard the shot, and Washington came running out of the store telling Cole that he had shot Woods. Cole testified that later that night, about 12:30 or 1:00 A.M., they got together and divided the money (about $600) between them.

Washington's defense was that he was at a party, was not at Woods Quick Pick, did not commit the robbery, nor did he kill Woods. Several people at the party testified that Washington did not arrive there until around midnight, and no witness testified that Washington was there from 10:00 to 10:30 P.M.

Ben Hodo of Ethelsville, Alabama, was visiting his grandmother in Columbus, Mississippi, on the night of the robbery. He testified that around 10:00 P.M., as he was going down to Lee's Restaurant to get something to eat, he saw a man in an alley next to Woods Quick Pick with a long gun and a sack of money. Hodo testified that he and the man with the long gun looked at each other about 10 seconds and that they were close together. He positively identified Washington as the one he saw in the alley with the sack of money and long gun.

After a full trial (the Record on the guilt phase consisting of 308 pages in two volumes), the jury returned a verdict of guilty of capital murder.

Before the same jury, the court then took evidence in aggravation and mitigation. Eyewitness Thompson testified in aggravation that Washington hit Woods with the gun barrel as hard as he could; that "He should have knocked him out looked like." Thompson further testified:

"Q Do you know of any other reason why Mr. Woods was killed?

A No, sir, I don't. He had the money and he had backed all the way to the door. And I thought sure he was just going to back on out. But he backed to the door and then pulled the trigger.

Q What did he do after he had shot?

A He stood there and reloaded his gun. And that is when I thought he was going to turn and shoot me."

On cross-examination, Thompson answered that Woods had been drinking and when asked about whether Mr. Woods was advancing on Washington, Thompson said:

"And Mr. Woods, he was traveling slower than the boy with the gun. He could have backed. He backed to the door and could have backed right on out. Mr. Woods couldn't have got nowhere close to him."

In mitigation, Washington testified that he was 23 years old, that, while he had been living with a lady for about five years, he was not married but had a three-year-old daughter by her. When asked by his counsel whether he had ever been convicted of a crime, Washington replied that he had been convicted of a "marijuana crime that same year" for which he had paid a $400 fine.

In strict compliance with the provisions of Section 99-19-101, supra, before the jury retired to consider the sentence, the court gave this instruction:

INSTRUCTION C-20

You have found the defendant guilty of the crime of capital murder. You must now decide whether the defendant will be sentenced to death or to life imprisonment. In reaching your decision, you must objectively consider the detailed circumstances of the offense for which the defendant was convicted, and the defendant himself.

To return the death penalty, you must find that aggravating circumstances those which tend to warrant the death penalty outweigh the mitigating circumstances those which tend to warrant the less severe penalty.

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:

(1) The capital murder was committed while the defendant, Johnny Lewis Washington, was engaged in the commission of the crime of robbery.

(2) The defendant, Johnny Lewis Washington, committed the capital murder in an especially heinous, atrocious or cruel manner.

You must unanimously find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances exists in this case to return the death penalty. If none of those elements are found to exist, the death penalty may not be imposed, and you shall write the following verdict on a sheet of paper:

"We, the jury, find that the defendant should be...