*1 Mаrkets, 617, Inc., 1995), required elements three finding
of section 287.040.1 exist statutory employment pursuant to “the stat ute”, clearly Bass was a section 287.040.1 simply provides argu
case Vatterott’s support. ment
V. judgment affirmed. All concur. Missouri, Respondent,
STATE of JOHNSON, Appellant. James R.
No. 75878. Missouri, Supreme Court of En Banc. April 1998. Rehearing May 26, 1998. Denied
125 *3 Thompson, M. Asst. Public Defend-
Janet er, Columbia, appellant. for Nixon, Gen., (Jay) Atty. Jeremiah W. Gen., Brown, Atty. Asst. Jefferson David G. City, respondent. for LIMBAUGH, Judge. Johnson, R. convict-
Appellant, James was County jury ed of four counts a Laclede degree first murder and was sentenced His all four convictions. motion death on postconviction Rule 29.15 was relief under penalty was overruled. Because death imposed, exclusively appeal lies with this Const, V, judg- art. sec. 3. The Court. Mo. ments are affirmed.
I. FACTS sufficiency dispute
Johnson does not evidence, which we re- That evidence. light most to the ver- view in the favorable Storey, dict, 1995), following: reveals the County Johnson lived rural Moniteau wife, Wilson, year and her 19 with his Jerri daughter, Becker. Johnson and old Dawn relationship uneasy had an Becker De- fought great evening On the deal. 8, 1991, in- the two of them were cember during which Johnson argument volved in an anymore” cried thаt “he couldn’t take out daughter had to and told his wife her if her replied that move out. His wife out, daughter so she. Johnson moved would daughter her then her to choose between told daugh- him, his wife chose her ter, Johnson, wait, Johnson ordered both out lying them who fired on the point, they house. At that refused County to be emerging Cooper officers. Sheriff out, produced forced so Johnson a loaded Charles times Smith shot four with a .22 pointed rifle it at his wife. When she did rifle, face, caliber semi-automatic once in the down, not back pointed the rifle at side, right upper once once grabbed Becker. Johnson then in a Becker back, and once He the head. died from choke hold and forced her out the door at the shot to the head. which she time fled. later, County Deputy Moments Miller San- minutes, few Within a Johnson loaded office, dra Wilson arrived at the sheriff’s guns some into ammunition his car and street, stopped patrol her car in the and slid away. drove He later with returned Becker *4 passenger to the she side. As started to in his car and told his that he wife wanted to pavement, climb from car onto the John- thereafter, work out. things Shortly Deputy through son shot her the heart with an 8- Les Roark of County the Moniteau Sheriffs millimeter, Deputy bolt-action Mauser. Wil- Department arrived at the house to investi- pavement. son died on the gate a domestic Roark disturbance. asked to porch Johnson then fled to the back of the Becker, speak with but Johnson refused. elderly Dorthy- home of an woman named brought His wife Becker the door and told Mae Miller and hid there the rest they Roark that were fíne. As both Roark night. next morning, he confronted car, walking pulled was back to his Johnson Mrs. and in Miller hid her house for most of pistol, stepped out a .38 caliber onto the day, holding her hostage. During that twice, porch, shot Roark in and once time, Johnson admitted to Mrs. Miller that rear, once in of the back the hand. people. evening, he had five shot That John- inside, stepped Johnson then back but son Mrs. allowed Miller to leave house so again he heard Roark he went moaning, party that she could attеnd a Christmas forehead, porch in and shot Roark release, expeeted. Upon where her she was killing him. Mrs. Miller that notified authorities Johnson Johnson soon left the in car house with thereafter, inwas her house. law en- Soon ammunition, guns and with clothes her forcement officers surrounded house and thermos, and a to the drove home of negotiated Johnson’s surrender. Jones, Kenny family Sheriff whose was hav- trial, ing At party. Using killings a a .22 Johnson admitted Christmas caliber rifle, plea by opened guilty semi-automatic defended on a of not reason of Johnson fire on group people Chapter through bay of he saw mental disease or defect under Jones, defense, Johnson, sheriff, window. presenting Pam the wife RSMo. In times, shoulder, veteran, was in shot five once Vietnam claimed to be victim of face, neck, (PTSD), once in the once in the and twice Post Traumatic Stress Disorder that in the in incapable knowing back the head. She died her ap- rendered him nature, family. home front her preciating quality, wrongful- or ness of his conduct. See sec. 552.030. appеared Johnson next outside the home County Deputy Moniteau Sheriff Russell through Boris. Johnson shot Boris win- II. DIRE VOIR talking dow Boris while the tele- Johnson that comments contends several phone. times, Although shot Boris was four panel by made the State to the venire hand, chest, once in the twice in the and once prejudicial prosecu- so they that amounted face, survived, in the but was still misconduct, torial was inef- his counsel under medical care at the time of the trial. fading object to the fective for State’s Boris, comments, shooting plainly After went to court Johnson the trial sponte. peace declaring where officers from sua sheriff’s office nu- erred a mistrial comments, jurisdictions explains, gathered. merous had When These violated arrived, rights process word of attack on freedom from Boris to due punishment. out The com- officers rushed from the sheriffs office. cruel and unusual 1) PHASE pen- III. GUILT following: that the mente include the 2) cheek,” “gut alty phase would be Perimeter Evidence A. The jurors ignore any other information should 3) had, jurors “prop- they whether thе thrust of Johnson’s primary “legitimately consider” the er case” could prosecu combined claim of appeal is a entire 4) jurors should re- penalty, death assistance and ineffective torial misconduct anything recalled in press or sublimate mis counsel’s arising counsel 5) trial, jurors could the midst of whether support taken use of certain evidence impose a case of of law death in homicides evidence, That which de PTSD defense. 6) personnel, aggravators enforcement opening highlighted state counsel fense diversion,” point” “a are “a little little 1) ment, tin-can-rope perime consisted 7) “lucky that Russell Borts was to be with 2) a garage, foil up ter around Johnson’s set Additionally, complains us.” possibly potato, from a baked found wrapper, specific.” “factually were too comments 3) tires on garage, the flattened theory, vehicle. Defense counsel’s noted, objections As were made to jury, night that on the to the related comments, requests these so Johnson experienced Vietnam- question, Johnson *5 plain Plain this review for er Court “acute error.. flashbacks —an disassociative related only be granted ror relief will if manifest that him to believe he reaction” —that led justice injustice miscarriage or resulted Vietnam, by the was in confronted ene back 30.20; from Rule v. Sim the error. in a an my, “fighting free-fire zone.” and 1997). mons, 955 S.W.2d he position, a effort maintain defensive not favor Court with Johnson does this an up perimeter so that supposedly had -set the explanation of how these comments resulted garage hit persons coming near the would injustice miscarriage justice, rattle, in manifest rope the and the tin cans to and cause surprising. and his to do so is not perimeter, failure he resting the ren- while within not grossly When viewed in context and mis- potato. with a baked He ourished himself done, tires, story, has according characterized as defendant the to the the flattened improper, enemy prevent comments were not and no error the his vehicle and disable Undoubtedly, why using against was him. Defense counsel committed. objections. trial no An in how Johnson left counsel made extend then related some detail mission, opinion perimeter have on a “reconnaissance” ed on matter would (the 81.16(b). enemy remaining precedential The com encountered the three value. Rule victims) dispatched plaints regarding voir are them.1 dire denied. murder now, part army, just like he was in the now 1. The text defense counsel’s outline of And you safety. doesn’t remember of the evidence follows: find And he finding particularly safety, th, but somewhere dur- morning On of December 10 Jim night, somebody ing went back to John- up Johnson woke from one of those horrible rocking took a chair out son’s house and you’ve nightmares it was all had. And so pickup put of a in the lifelike, Vietnam, it in the back house and he’d back in been up windows and set a garage covered the wrong something was with the there They up perimeter perimeter. set with cans garage dream.... rope so around outside It was call an dissoci- ... what doctors acute rope they’d somebody make reaction, if hit reliving ative and he was war traumа noise: doing. what he was and he couldn’t control up perimeter, and he renour- Vietnam, And he set everything was much like And so ished, potato in the wood stove be- sudden, baked in And all of a he was back Vietnam. your you’ve up perimeter and once set cause invading was there was a dink.... He out, you you’ve got Vietnam, guard in that’s what do perimeter, protect had it and he shot and he your you while Vietnam, renourish rest just went And like in he out him.... duty, only play guard had to stand Jim buddies off because that’s what and finished him .... playing the roles that the roles. He all all night. you do in Vietnam.... guard duty he was He was on while leader, renourishing resting he didn’t because try he had to to find the And any friendly troops with him. looking He saw the went leader.... zone, and at stiE in a free fire just And was and he killed the leader like leader army.... point go out do some he had to taught him some in the perimeter, potato, tire evidence no reason to mention (hereinafter “perimeter referred to as the reports. implication was born out fur- evidence”) early unraveled in the trial. The by tin-can-rope perime- ther fact chief, fourth witness in the State’s case reports ter was listed as one of the highway patrolman, that he testified was the technicians, items collected the evidence up one set perimeter who the tin-can and left as if items somehow linked Johnson garage. foil He taken had these the crimes. Due to an obvious lack of com- watching measures while the Johnson house munication, the authorities were themselves in case Johnson returned there after the evidence, regardless, about this confused but witness, rampage. The high- next another implication the erroneous was never correct- way patrolman, yet testified that he saw ed. another officer the air let out of the tires of counsel, According problem to defense prevent vehicle to disable it and compounded by prosecutor’s passive on, using point Johnson from it. From that during deposition conduct of Johnson’s wife counsel conceded that Johnson had deposition, taken a week before trial. At the nothing pеrimeter to do with evidence. interrogated defense counsel Johnson’s wife In closing argument, capitalized the State extensively perimeter evidence, about by contending defense counsel’s mistake speculated and she must have many it was one of ways that Johnson responsible prose- Although for it. two had lied order maintain the PTSD present cutors deposition, for the nei- defense. ther made effort correct defense prosecutorial The claim of misconduct is counsel’s and Johnson’s im- wife’s mistaken prosecutor “sandbagged” defense pression. believing into counsel that Johnson was re- *6 Defense counsel claims to have been fur- sponsible perimeter for the evidence and that investigator ther misled the that fact an the to failure disclose the truth about that for the State highway advised the two was misrepresenta- evidence an intentional patrolmen, who had been endorsed wit- tion. The questioned authorities had John- nesses, only were involved in the collection of evidence, son’s wife about this there and was evidence, physical some of the and would apparently passing some of mention the evi- testify solely custody on chain of issues. As police reports, although dence in the at no representation, result of this defense coun- time the State indicate that the evidence question patrolmen sel did not the two before patrolmen, was attributable the highway to trial. impli- rather than Johnson. The reasonable Johnson, himself, cation up was that set corresponding the claim of ineffective as- perimeter, potato baked the in large part and flattened sistance of counsel is the con- tires; otherwise, the prosecutorial there would have verse the been of claim of miscon- recon and he had to do a free to—he had some er.... And he's in fire zone and he shoots, going escape see reconnaissances and what was on and he to and evade has evade, escape and see who and was there. And when he went on then.... And he tries to mission, thought, his recon I’d bеtter aban- and he sees another and shoots that dink. dink car, car, destroy get don this take the safe finds the rid And he looks for a haven and rests_ car, car, Now, destroy porch of the but disable the car of Mrs. and he Miller enemy you so the tires, use it. going can’t So he flattened the Jim Johnson is to tell what he re- they taught night, going and that’s them what to do in members of that to he’s not evade, jungle. got equipment, escape you You’ve to talk search abandon to about enemy against you, army it destroy, disable so the can’t use kill the leader and how really taught
so he did. him that because he—he doesn’t support things army. then to And he went look for some remember most those from troops.... got forget everything army, And when he to where He’s tried support troops, any. could find weren't still there but it’s there. in, enemy enemy psychologists going And there was are come still and the was And the in, calling military experts going are to come in he had take out radio and and the you out he took the radio. and talk to about how consistent all of recon, happenеd night And now its time to do some more what was with the Viet- coming experience and he sees the of the VC out bunk- nam for Jim Johnson. perimeter was Johnson’s evidence not have relied duet: Defense counsel should evi- explanation of this reports, the No other police on handiwork. the inference from prosecutors at the there was evidence suggestive apparent, of the silence dence investigation regarding deposition, representation contrary, no further to the counsel, patrolmen. Moreover, implication highway Defense suggested itself. words, many assumptions perime- made too for responsible other Johnson was inability without ade- perimeter evidence, professed about the evidence ter, and his facts, quately investigating involvement, and failed to entirely remember that, investigation at the proper conduct with the PTSD defense. consistent least, have with should included interviews Though does not condone this Court highway patrolmen because the two failing correct the State in conduct were endorsed witnesses. implication from its own confusion erroneous claims, these the State offers To refute evidence, con nor the perimeter about outset, At the the State several theories. further failing of defense counsel duct maintains the evidence withheld was evi perimeter investigate the source so to evidence favorable to defendant dence, unnecessary address these it is rule require under the familiar disclosure definitively their merits. Johnson issues on 83, 87, Brady Maryland, v. 83 S.Ct. U.S. prosecutorial mis did not raise the issue (1963). 1194, 1196-97, 10 While L.Ed.2d 215 therefore, trial, until after conduct proof responsible for the only. As stat plain for error Court reviews would, perimeter perhaps, have ed, granted if be plain error relief will high testimony of exculpatory, been justice miscarriage injustice manifest way patrolman assuredly was not. most 30.20; Sim resulted from the error. Rule addition, there State submits that mons, 736. For his claim of no prosecutorial can be misconduct for fail- counsel, assistance ineffective here, where, as ure to disclоse evidénce de- probability that but show a reasonable must request fense counsel filed no formal er allegedly unprofessional for his counsel’s discovery discovery solely was handled rors, trial the result would Moreover, informal the State an basis. Washington, 466 different. Strickland if filed a contends that even counsel had 2052, 2065-66, 668, 689-90, 104 S.Ct. U.S. *7 only request, requires formal Rule 25.03 that (1984). that For the reasons L.Ed.2d names, the last known the State disclose follow, coun this holds that defense Court existing the wit- addresses and statements of evidence, perimeter mistaken use of the sel’s already had vol- nesses. Because the State prosecutori if that use was the result even reports required untarily disclosed all under or assistance of al ineffective misconduct 25.03, the State that a formal Rule concludes counsel, injustice give to manifest not rise discovery request would have been fruitless. probability outcome a reasonable Next, suggests State that could not the trial would have been different. the anticipated that defense counsel would foremost, the mistake did nоt First and perimeter Johnson’s attribute the evidence maintaining the preclude from paranoia. opening Until defense counsel’s experts PTSD PTSD defense. Johnson’s statement, patrol- explains, the the as State that the existence and effect testified It testimony significance. men’s had depend perimeter the not on disorder did reason, too, for that the State claims an that perimeter that evidence evidence representation that excuse for its earlier only been minor corroboration would have patrolmen only in highway were involved theory. for the According to physical evidence. collection of made, State, representation, that when addition, counsel had shown defense entirely true. perimeter attributing in some caution Johnson, press not he did evidence to the claim of ineffective assistance
On sup- it was not counsel, point once he realized that argues that it was not the State evidence, tacitly he ex- by ported for to conclude unreasonable defense counsel plained jury. During the mistake to the which that Johnson recalled much detail statement, opening prefaced targets trial counsel his his deputies, were the sheriff and his caveat, reference to this with Cong. explained not the Viet He to the au- particularly” he doesn’t remember “[a]nd deputy thorities how his had come to hedged describing disturbance, then somewhat the evi- regarding house a domestic by stating “somebody how, dence that went back confrontation, after a brief he added). (emphasis to Johnson’s house ...” “snapped” deputy. and shot the In this re- sure, highway patrolman To be gard, testified depu- he details recounted such that he question, was the someone in but ty’s deputy’s distance from the house and the jury defense counsel made it known to the began shooting, actions when Johnson he been that had unaware of that fact that he went back his house after eliciting patrol- on cross-examination shooting and told his wife he was in trouble. Likewise, report. authorities, man had submitted no explain To his conduct to the hе proved patrol- when the another job related that “I I knew had to do tires, man had flattened the defense counsel Kenny because let me [Sheriff] [Jones] jury down,” made it clear had apparent he an reference to the fact that patrolman’s unaware of the involvement be- disagreed Johnson and sheriff had report only cause the stated tires how to ongoing handle the difficulties with Furthermore, had been Next, flattened. stepdaughter. Johnson told Johnson, himself, stand, took the he depu- testified shooting the authorities that after that he had never told defense ty, counsel that he of Sheriff drove the residence Jones. responsible perimeter sheriff, he was evi- Although he see didn’t he did see simply Pam, dence and that he wife, did not remember he shot her instead. He way developments Connell, one or the other. These Deputy then tried to locate but was sting took the out of the State’s Subsequently, he unsuccessful. went to the claim that defense counsel had about stop lied sheriff’s office but did not too because also, еffect, evidence but gathered bolstered defense many officers later had there. He counsel’s contention way that Johnson indeed suf- Deputy made his with Boris’ house state,” in, symp- fered turning “disassociative intention himself but when which, claimed, experts tom as his was an he Boris talk- heard mention his name while inability to place remember events that took ing phone, he on the shot him as well. On during the office, “disassociative state.” return the sheriff’s he stated saw running officers out the door likely, Most theory failed not and, believing coming after perimeter because of the mistaken use of the him, opened again. fire evidence, but on the overall weakness of the theory proof support itself and the offered Tellingly, Johnson referred his Vietnam *8 theory. of essence the PTSD experiences only during once the confession. stated, theory, as was that Johnson was suf- “I everything He stated see could fering from Vietnam-related flashbacks and about Nam.” state,” inwas a mental ill- “disassociative Johnson’s and intimate recitation detailed prеvented comprehending ness him from events, together of these with his stated rea- wrongfulness the of his conduct. From our conduct, wholly sons for seems inconsis- record, appears close review of the it of tent with the defense mental disease State, in the of both cross-examination effect, In defect. Johnson admitted that experts presentation of and its doing why, known what he was and and had experts, highly exposing own was effective consequently, pressed he was hard at trial of the weaknesses the defense. end, theory. fit the facts to In the this Moreover, the State was even more effec- likely why was defense failed. reason simply by emphasizing tive the raw facts. particularly persuasive point prosecutorial of miscon- One focused on Johnson’s claims duct of are the confession Johnson made to the authori- and ineffective assistance counsel arrest, shortly ties after his a confession in denied.
131 examined B.Testimony testimony other doctors who of Dr. Guindon of Id, (citing condition. for the same him of part of thе rebuttal As State’s 425, Sapp, v. Mo. 208 S.W.2d State defense, Dr. Kurt the State called Johnson’s (1947)). Dr. Guindon’s ethical Because Guindon, Dr. had psychologist. Guindon John- at issue and because are not standards a psy by the defense conduct been hired prevent that would privilege son waived chological of some time evaluation Johnson testifying, was there Dr. Guindon from shortly performing After after murders. point is denied. error. evaluation, Dr. Guindon determined PTSD, not have but he did Johnson did Evidence Defense C.Excluded personality disorder diagnose a borderline paranoid features. Because border with that the trial next contends Johnson diagnosis personalty would be line disorder testimony it erred when excluded court of criminal insufficient to relieve Johnson witnesses, character of several of Johnson’s conduct, responsibility for his the defense thereby right him his defend and denied using an against Dr. Guindon as decided However, counsel made Johnson’s himself. trial, however, Dr. expert. Prior to the distinguish not proof oral of that did an offer newspaper reporter and Guindon cоntacted a from testimony proposed witnesses of performed that he had an evaluation related had of character witnesses who the five Johnson, thereafter, Dr. was of Guindon Moreover, already although testified. television, by newspapers, radio interviewed proposed wit trial court determined that the stations, well. State as cumulative, the testimony would be nesses’ character wit permitted now claims that the trial court two more Johnson court still plainly failing testify. a mistrial these circum erred to declare nesses to Under stances, when John- of discretion. when Dr. Guindon testified and there was no abuse Kinder, experts v. questioned and the defense State son 942 S.W.2d 1996). Dr. on cross-examination about Guindon’s banc Johnson also claims that evaluation. clearly it 29.15 court erred when did D.Requests Error
Rule
for Plain
Relief
failing to
find defense counsel ineffective for
great
contends
Johnson
preserve
it
not find
the error
improperly
admitted
amount
prosecutorial
Dr.
using
misconduct for
Guin-
prejudicial that
amounted
so
don’s evaluation and conclusions.
evidence, he
plain error. Admission
adds,
rights
process
violated his
due
particular, Johnson contends
punishment.
unusual
testimony
both the
freedom
cruel and
Dr. Guindon’s
violated
(“AMA”)
in
prominent of that evidence
The most
American Medical Association’s
1)
tapes
and a tran
Principles
physician-patient
cludes:
the admission
of Ethics
491.060,
script
conversation between
privilege
out in section
RSMo
recorded
set
2)
negotiator’s
negotiator;
disagree.
It
is not the role of
1994. We
explaining
parts
testimony
various
AMA nor
Court
enforce the ethics
3)
clear;
Furthermore,
the admis
police membership.
tape
that were not
its
confession,
written
cases
sion
Johnson’s
physician-patient privilege waived
this,
by the officer who elicited
puts
report prepared
such as
where the defendant
Skillicom,
Additionally,
confession.
issue. mental status
*9
(Mo.
1997).
in
877,
complains
engaged
a wide
More
State
897
banc
944 S.W.2d
variety
improper questions and
allegedly
party
places the
of
precisely, “when a
once
guilt phasе, from
throughout
in issue he
comments
his mental condition
question of
argu
through closing
physician-patient privi
opening statements
thereby waives the
in
questions
Those
and comments
any
ment.
testimony of
doctors who
lege to exclude
1)
right to
a
on Johnson’s
cluded:
comment
purpose.”
him for
have examined
2)
1982).
silent,
Carter,
(Mo.
that Johnson
54,
remain
statement
banc
641 S.W.2d
town of
Miller “and the entire
held Mrs.
cannot call those doctors who
A defendant
3) speculation on the
hostage,”
prevent California
support
position
try
then
to
his
possible testimony
juror
phase
penalty
of Vietnam veterans who
nate
to sit in the
4)
witnesses,
not
called as
comment
in
and that the Rule 29.15 com! also erred
“slap
every
that Johnson’s defense was a
to
not
finding
Johnson’s counsel was inef
5)
veteran,”
6)
God,
referring
a comment
failing
request a
fective for
mistrial when
question
suggested
that Johnson was
juror
the alternate
was seated. Section
7)
PTSD,
per-
faking
question
about the
494.485,
1994,which
RSMo
addresses the use
centage
persons
of
in the United States who
jurors,
pertinent part
of alternate
states in
8)
insomnia,
suffer
question
jurors
replace
do
“[alternate
who
whether Johnson’s
demeanor
work had
principal jurors
discharged
be
shall
after the
changed
might
so that he
be fired
re-
jury retires to
its
consider
verdict.” Because
unemployment compensation.
ceive
capital
the trial in a
ease is bifurcated and
plain
for
Johnson also asks
error review
one,
involves
of
it
two verdicts instead
is
regarding
of
the exclusion
certain evidence
applies
one
unclear whether the statute
or
concerning
reputation.
his background and
verdicts,
of
the other
or both. Such
exclusion,
claims, prevented
The
him from ambiguities
by
must be
reference to
resolved
presenting
deprived
him
thus
legislative intent,
in
language
reflected
process
rights
of his
to due
and freedom
used in the statute. Akers v. Warson Gar
punishment.
from cruel and unusual
The
Apartments,
den
evidence,
cumulative,
nearly all which
of
1998) (No.
1998).
January
The
1)
included
following:
reputa-
pro
overriding intent of section
494.485 to
2) specific
in
community,
examples
tion
of
jurors
vide for the use of
as to
alternate
so
3)
Johnson,
good
by
acts
whether Johnson
prevent
by
mistrials
of a
caused
loss
4)
church;
attended
of
Johnson’s treatment
regular juror.
only statutory exception
4)
Wilson,
wife
people’s
Jerri
reaction to
jurors applies
to the use of alternate
the news of the murders and that Johnson
already begun. Allowing
deliberations have
5)
suspected, why
be-
Johnson’s friends
juror
during penalty phase,
replacement
but
lieved that he could not have done the mur-
6)
ders,
7)
deliberate,
behaves,
jury retires to
is en
before the
normally
how Johnson
tirely
legislative pur
how Johnson
death
both
reacted
of
consistent with
8)
Cooper,
friend Dallas
morale of
pose
preventing
mistrials and the statuto
Johnson’s unit Vietnam.
exception.
ry
This Court concludes that the
legislature
pro
intended
afford
same
stated,
objections
any
As
no
were made to
against
tection
mistrials
bifurcated cases
of the evidence
nor to
admitted
cases;
afforded
non-bifurcated
allegedly improper
State’s
commеnts and
Furthermore,
therefore,
jurors may properly
questions.
alternate
Johnson failed
preserve
alleged
regarding
ex-
penalty phase
only.
error
serve
deliberations
background
conclusion,
course,
clusion of some of his
and char-
entirely
This
is also
un-
acter evidence. This Court declines to
practice
conducting
consistent with the
plain
dertake
error review because
has
there
ju
penalty phase
completely
trials with
new
showing
injustice
of manifest
imposition
ries whenever the
of the death
30.20;
justice.
miscarriage of
Rule
Sim-
point
penalty
appeal.
is overturned
mons,
A. Alternate Juror failing сounsel was fense ineffective *10 Penalty in the Phase object, plainly that the trial court erred sponte. ordering in not a sua Those mistrial Johnson claims that the trial court 1) allowing, objection, his comments that this case was the erred over an alter- include:
133 strategy. point The is de- prosecutor re- reasonable trial that the had ever first time penalty quested death and that there nied. why penalty death
were several reasons 2) being requested; that after Johnson Jury D. Instructions Roark, was a killed Officer murderer claims the reasonable Johnson also that night signifi- that the end of the he had a guilt given in both doubt instructions 3) history; peace officers cant criminal that phase are phase penalty constitution- and the worry job should have to that their en- ally are based on infirm. The instructions 4) families; dangers their that Johnson’s MAI-CR3d 313.03 re- 302.04 and MAI-CR3d 5) crimes; mother was victim of re- argument This has been spectively. John- that the officers who returned fire at See, e.g., rejected by this Court. peatedly justified son if had would have been (Mo. Hall, 198, banc v. 955 S.W.2d 206 State killed him and that the officers would have Debler, 1997); 641, 652 v. 856 S.W.2d State addition, as In heroes. Johnson lauded (Mo. 1993). addition, claims banc complains of instances several where the circumstance instruction mitigating allegedly personalized argument State penalty phase, in the is based given which one instance where the asked the State 313.44B, is unconstitutional be- MAI-CR3d jury to life value.” consider “whose has more “may language cause the consider” misleads objection No was made of these argument has also been clear- jury. This if comments were erro comments. Even Debler, ly rejected by this Court. 856 neous, proposition, which is a tenuous S.W.2d at 655. plain Court declines to undertake error re injustice view because no manifest or miscar argues Johnson next that the de 30.20; riage justice of resulted. Rule Sim danger pravity aggravator, of the mind mons, point 955 at 736. This is S.W.2d weapon aggrava aggravator, ous and third denied. concerning attempted homicide of tor Ernst, jury all submitted to the Officer John Investigate C. Failure during penalty phase, vague, dupli Present Evidence cative, unsupрorted by the evidence. finding alleges Initially, only we that a of one Johnson next that trial note failing aggravating necessary counsel was ineffective for to investi circumstance gate imposition penalty. present early support childhood of the death (Mo. Smith, 901, experiences was the victim of a v. 944 S.W.2d State —that cold, Weaver, 1997); unloving family mitigation pun of banc State v. —in (Mo. 1995). early expe ishment. He In three of four contends those banc murder, predisposi jury riences show that Johnson had a the exis counts found statutory aggravator tion PTSD and would have convinced the tence of jury peace that his conduct not warrant death. officer was murdered the line However, duty, dispute appli defense counsel was well aware of and Johnson does not early experiences cability aggravator. As to the fourth those childhood result Johnson, Count, himself, talking dangerous we look at the elected need two pursue strategy weapon aggravator, was one of the presenting a different which product good аggravators support submitted. To the dan Johnson as the Christian weapon family. strategy gerous aggravator, This it must be shown was reasonable trial weapon or developed his dis that the defendant used a device that defense counsel trial, Johnson, endanger person. counsel more than one cussions with 1997). Kenley, support called numerous witnesses to 952 S.W.2d strategy. suggested testimony supporting dangerous would wholly weapon aggravator contradicted the reasonable trial showed rifle on strategy actually It would fired six times with a semi-automatic that was used. counterproductive group people; only person one to search for have been injured endangered. This evi but all were more witnesses who contradict would *11 134 point Moreover,
dence was more than The is sufficient. threat and the nature of the trial. denied. present trial' court was was in a position impact better to determine
IV.
THREAT AND
BOMB
OTHER
Clover,
presence.
the officers’
State v.
924
ALLEGED DISTRACTIONS
853,
(Mo.
1996).
856
banc
The last
claim,
alleges
plainly
jurors
Johnson
prayed
scrip
the trial court
read
by failing
phase
erred
a
beginning
guilt
to declare mistrial sua
at
of the
ture
de
sponte
termination,
a
bomb threat
the court
subject
challenge.
forced
is
to
not
The
suspend
voir
day,
for
jurors
impeach
dire
when the
may
law is clear:
not
‘
during
State mentioned the bomb threat
its
testimony
any partiality
verdict with
“of
penalty
closing
phase
argument, when the
transpired
jury
misconduct
[in
jurors
graveside
were
to walk
room],
forced
speak
nor
in
the motives which
”
trial,
during
tent
when officers “filled the
produce
or operated
duced
the verdict.’
room,”
court
prayer
scrip-
(Mo.
and when a
Babb,
150, 152
v.
State
680 S.W.2d
banc
jury
ture were read in the
at
room
1984), citing
40,
Underwood,
v.
57
Mo.
beginning
guilt phase
John-
deliberations.
(1874).
sum,
52
In
this
Court concludes
son
his
alleges
also
counsel was ineffec-
in
the trial court did not abuse its discretion
failing
object
tive for
to these situations.
sponte
failing to
sua
declare a mistrial
not
that defense counsel was
ineffective for
“A
is
remedy,
mistrial
a drastic
failing
objections.
to raise
granted
extraordinary
circum
in.
Parker,
908,
stances.” State v.
886 S.W.2d
(Mo.
1994).
banc
court
Because
trial
V. PROPORTIONALITY REVIEW
position
is in better
observe the evidence
Finally,
contends that the death
impact,
granting
its
a mistrial
improper
is
sentence
because this Court does
Appellate
within its
rests
sound discretion.
engage
meaningful proportionality
in a
only.
review is for abuse of discretion
Par
1)
Particularly,
review.
he claims
this
ker,
135
mind, was
Parker,
depravity of the
involved
886
murder
precedential value. See
S.W.2d
horrible,
vile,
933-34;
wantonly
Ad
and
Ramsey,
at 328.
outrageously
864 S.W.2d
claims,
ditionally, any
process
inhuman,
disregard
due
such as
a callous
and exhibited
here,
already
2)
brings
life;
the ones Johnson
sanctity of all human
that
for the
Weaver,
rejected by
912
been
this Court.
peace
against
committed
the murder was
contesting
ade
at 522. Claims
S.W.2d
performance of
engaged in the
officer while
in
quacy
database as a factor
of the
aggra-
duty.
finding
The
of these
her official
previously
have also
proportionality review
by
supported
the evidence.
amply
vators is
Parker,
933;
886
rejected.
S.W.2d at
(Mo.
Whitfield,
v.
837 S.W.2d
516
State
addition,
sentence in
the death
1992). Thus,
only remaining
banc
dispropor
nor
is
excessive
this case
neither
point
imposition
penalty
that
of the death
is
in
penalty imposed
similar
to the
tionate
disproportionate.
in his case
excessive
in
back
one victim the
cases. Johnson shot
record,
leaving
After careful review of
then came back mo
he was
imposi
that
trial
this Court holds
court’s
He shot
later to finish the murder.
ments
did not result from
tion of the death sentence
through
victim
a window while she
another
prejudice,
passion,
of
influence
sitting
group
people. He shot
was
in a
of
arbitrary
other
factor.
See
section
po
leaving
victim
he was
another
while
565.035.3(1).
jury unanimously
found
his final victim the
lice station. He shot
of
statutory aggravator in the murder
one
police
climbing from her
she was
back while
that
was commit
Officer Roark:
the murder
cases who kill
car.
in similar
Defendants
against
peace
engaged
ted
officer while
to death.
peace
are often sentenced
officers
duty.
performance
his official
The See,
Sweet,
e.g.,
v.
796 S.W.2d
617
State
jury unanimously
statutoiy aggra-
two
found
(Mo.
Mallett,
1990);
732
v.
S.W.2d
bаnc
State
1)
vators in the murder of Pamela Jones:
Driscoll,
(Mo.
1987);
711
State v.
527
banc
murdering
his act of
Pamela
(Mo.
1986);
v.
512
banc
State
Rob
S.W.2d
knowingly
great
created a
risk of
J. Jones
(Mo.
erts,
1986); State
709
857
banc
S.W.2d
person by
death to more than one
means
(Mo.
McDonald,
banc
661
497
v.
S.W.2d
weapon
normally
that would
be hazardous to
1983). Furthermore, a
of death is
sentence
2)
person;
one
the lives more than
mur
imposed
often
where
defendant
depravity
the murder involved
See, e.g.,
person.
more
State
dered
than one
wantonly
outrageously
mind and was
(Mo.
Clemons,
206, 233
banc
v.
946 S.W.2d
inhuman,
vile, horrible, and
and exhibited a
(Mo.
1997);
Ramsey, 864
320
State v.
S.W.2d
sanctity
hu
disregard
callous
for the
of all
1993);
Mease,
peace officer while
VI.
duty.
jury
unani
of his official
mance
reasons,
judgments
foregoing
For the
statutory
aggravators
mously found two
1) that the
are affirmed.
Sandra B. Wilson:
murder of
BENTON, C.J.,
enemy
PRICE and
... disable the car so the
can’t use
tires_
ROBERTSON, JJ., concur.
it. So he flattened the
*13
they
making
Intent as
on
were
such extrava-
J.,
WHITE,
separate opinion
dissents in
gant claims about what
this behavior re-
filed.
state,
vealed about their
mental
the
client’s
HOLSTEIN, JJ.,
COVINGTON and
not
remarkably
defense team was
cavalier in de-
sitting.
termining
any
whether these assertions had
true,
basis in fact.
itWhile
is
as the State
WHITE, Judge, dissenting.
argues,
that no evidence
the defense’s
I would find
I
troubling,
While
the result
possession indicated that someone else had
nevertheless,
compelled,
am
to dissent. De-
things,
pointed
done these
no evidence
to Mr.
unprofessional
fense counsel’s
failure
in-
to
Johnson, either. As defense counsel testified
Opperman
terview Officers
and Breen led
hearing,
at the Rule 29.15
the defense decid-
demonstrably
the
to
defense
make
false
responsible
ed that Mr. Johnson was
because
statement,
claims in
opening
its
claims that
experts’ theory
it fit their
about
sort of
what
utterly destroyed
credibility of
the
the PTSD
might
engaged
behavior he
have
in: “the
theory
presented
before the
even
defense
experts :..
thought
great piece
that was a
not, per-
evidence. While defendant has
Thus,
testimony.”
their
evidence for
the de-
haps,
this was
demonstrated
outcome-
assuming
fense
made
mistake
prejudice,
majority
determinative
as the
they hoped
evidence
show
it
would
what
opinion requires,
high.
is too
standard
show,
investigating
would
instead of
to see
standard,
proper
given
vaga-
Under
actually might
what
be detеrmined.
defense,
ries
aof mental illness
I am con-
investigation
Even minimal
would have
vinced that there is
reasonable likelihood
required
sufficed. The defense team was not
that,
errors,
unprofessional
but for counsel’s
depose every single
to
endorsed witness.
guilt
sentencing
the result of either the
defense,
But the
if it
so
was inclined to make
phases of the trial
would have
different.
much of
on
what went
in James Johnson’s
8th,
garage
night
on the
of December
Unprofessional Conduct
obliged
present
to at least ascertain who was
prosecution
While the conduct of
location, and,
least,
very
at that
to
is,
notes,
opinion
principal
matter
persons. Similarly,
those
if
interview
especially
not
praiseworthy, the evidence of
thought
defense
that the tire evidence was
prosecutorial
purposeful,
misconduct
is
important,
reasonably
it
at
should
best,
equivocal, at
and I am reluctant
tempted
person
to contact a
who could con
prosecution
condemn the
on this record. As
were,
fact,
firm that the tirеs
flat
counsel, however,
to the defense
I have no
car was first found
the authorities. These
such reservations.
witnesses were not hard to find. As defense
principal
Although
opinion
correct
noted,
questions
nagging
counsel
he had
pointing
initially
out that
counsel
defense
why
particular officers
about
these
had been
in attributing
perimeter
careful
prosecu
repeatedly
asked the
endorsed
Johnson (“somebody
Mr.
went
back
they
prosecution’s
who
tion
were. While
house”),
quickly
all caution was
investigator
say “that
apparently
jury,
abandoned as the defense told the
in no
just
people
probably
chain
aren’t
terms,
uncertain
that the defendant was that
etc.,
them,
going
equivocal
use
etc.”
somebody:
opposing investigator
answer of an
does not
....,
up perimeter
you
reasonably diligent
he set
that’s what
relieve
and cautious
Vietnam,
duty
you
pick up
do
renourish
and rest
advocate of
at least
your
duty, only phone
while
ask
guard
buddies stand
these witnesses what their
play
Jim had to
all the roles....
He was
connеction to the
was. Defense counsel
case
that,
guard duty
resting
on
it
while he was
did not do even
caused them
renourishing....
And when he went on make a
from which the defense
critical error
mission,
thought,
his recon
I’d
recovered.
better
never
convict,
not
am
neces-
prosecution
may
be
cient evidence
trae that
While
defense,
sprang
trap
trap
sarily
it was a
the weakness
convinced
helped
through
likely”
set
inad-
reason
that defense counsel
the “most
case was not
investigation
reasonably likely
equate preparation
failed,
I
it is
defense
find
overblown, factually
through its own
armed
not
jury that had
seen
that a
hap-
unsupported statements about what
credibility
would
on this issue
destroy its own
Reasonably
pened
night
killings.
sufficiently
expert
receptive to the
have been
advocates
cautious and zealous
would
or defect to
diagnosis of
disease
a mental
easily
have been so
misled.
a different
permit a reasonable likelihood
*14
result.
Prejudice
to
was able
that the defense
As to the idea
оpinion
principal
does not endorse the
gaffe, I am uncon-
the
of its
mitigate
effects
and,
implicit-
behavior of either side
at least
the
elicited
The fact that
defense
vinced.
ly, recognizes
pro-
that some breakdown
testimony
the officers and the defen-
Hence,
probably
fessionalism
occurred here.
not
explaining why the defense did
dant
opin-
really
principal
I
from the
where
differ
had not constructed
know that
their client
majori-
prejudice.
ion is on the issue of
had
and the fact that defense
perimeter,
the
ty
high
applies too
a standard.
testify
evi-
experts
perimeter
their
is,
prejudice
as
While the
standard
the
diagnosis of
important in their
dence was not
states,
majority
“rea-
whether there was a
actually
opposite.
Mr.
the
indicates
result,1
probability” of a
sonable
different
view,
In
my
these efforts to distance
principal
actually
apply-
opinion
seems
be
this
show that
defense from
ing an outcome-determinative
standard.
credibility
badly
knew how
its
defense team
Strickland
explicitly rejects
an outcome-de-
damaged
spent
entire trial
had
Thus, Mr.
terminative standard.2
Johnson is
shred of
vainly attempting
recover some
required
not
to show that his
un-
counsel’s
believability.
particular,
prosecutor,
professional
likely”
are the
errors
“most
rea-
argument,
think that
closing
did not
why
failed,
principal
son
his defense
as
the failure to ascertain who had created
opinion
Supreme
holds. The United States
perimeter
unimportant. The
evidence was
recently
Court reiterated this as
prosecution’s
in rebuttal was to “flash
tactic
contrasting
probability
“reasonable
opening argument
back” to
counsel’s
defense
higher,
different result” standard with the
“prom-
had
recount what the defense
standard,
outcome-determinative
and also
jury.
reading at
prove
ised”
to the
After
noting
sufficiency
merely
that this is not
length
opening state-
great
from defense’s
majority
the evidence standard.3 The
seems
ment,
captured
prosecutor vividly
to apply
Tellingly,
latter
for a
standard.
on the
devastating
that statement had
effect
entirely
case based
on
defense of mental
lies
“Pure
entire defense case:
unadulterated
illness,
principal opinion’s
review
every
you.
disproven
We have
each and
testi-
evidence does
mention
going
fact that
Defense said
experts,
mony of
three
PTSD
you
sell
Vietnam defense. The
this
choosing
solely on
incul-
instead
to focus
are the
mines that
this case is about
land
disregard
patory
facts.” This
for es-
“raw
stepping on all
has been
ones the Defense
assessing
sentially
entire defense case
week.”
sufficiency
prejudice
improper,
reflects an
Obviously,
question
Mr.
there is no
Certainly,
the evidence
I do not
standard.
ques-
the victims here. The
Johnson killed
principal opinion to hold that
understand the
so.
tion
he was sane when
is whether
overwhelming
is
evidence that Mr.
there
testimony on
expert psychological
There was
legally sane
the time of the
Johnson was
at
say
it is not at
I
I cannot
killings.
agree that there was suffi- both sides.
While
419, 432-36,
668, 694,
Whitley,
Washington,
Kyles
U.S.
1.
3.
v.
Strickland
466 U.S.
2052, 2068,
(1984).
(1995).
1565-66,
104 S.Ct.
L.Ed.2d 674
least that a performancе would have vinced that of his counsel theory believed the if Mr. PTSD any opportunity did not rob Mr. Johnson of utterly counsel had not discredited himself might jury have had to convince the theory by tying and the it and the defense responsible he was not for his actions. This completely into a concocted scenario at the example why is an excellent hard cases very outset of the case. I majority’s make bad law. While share the uphold horror this I carnage, cannot
Penalty Prejudice Phase acceptable representation as an standard capital for a defendant accused of murder. troubling Even more an me is issue that principal opinion does not address: I Mr. would hold that Johnson received challenges “When defendant death sen- counsel, preju- ineffective assistance ..., question tence whether there is thereby, diced and is to a retrial. entitled that, probability reasonable absent the errors counsel], [of the sentencer ... would have
concluded that aggravating balance of *15 mitigating circumstances warrant Clearly, death.”4 aggravating faсtors extremely are grave. here But there are mitigating clear factors as well: Mr. John- life, previously law-abiding son’s his service country, to his at least. aWhile reasonable Missouri, Respondent, STATE of juror might felt have that Mr. Johnson’s mental difficulties did not rise to level of legal insanity, reasonably it is likely that BLACKMAN, Appellant. Dennis A. juror such a prob- would find those mental No. 80617. lems, previous combined with Mr. Johnson’s positive to society sufficiently contribution Missouri, Supreme Court mitigating to warrant a Any sentence life. En Banc. tendency severely such by undercut de- 26, May 1998. opening argument, fense counsel’s which left jury with strong impression Rehearing Denied June 1998. claims emotional Mr. distress up were made out whole cloth. Absent error, unprofessional at least rea-
sonably likely jury would have found mitigating the balance of aggravating factors differently.
Conclusion is very This case. If hard Mr. Johnson was in control of his faculties when went rampage,
on this murderous then assured- ly given. deserves the death sentence he was question
But the what Mr. Johnson’s men- night tal susceptible status was on that is not easy may answers. While Mr. Johnson not, found, jury legal as the met insanity,
definition whatever drove Mr. go being law-abiding citi- being multiple zen to certainly killer was something akin madness. I am not con- Strickland,
4. S.Ct. at 69. U.S. 2068-