This slip opinion is subject to revision and may not reflect the final
opinion adopted by the Court.
Supreme Court of Missouri
Case Style: State of Missouri, Respondent, v. James R. Johnson,
Case Number: 75878
Handdown Date: 04/21/98
Appeal From: Circuit Court of Laclede County, Hon. Mary A. Dickerson
and Hon. James A. Franklin, Jr.
Counsel for Appellant: Janet M. Thompson
Counsel for Respondent: David G. Brown
Following an argument with his wife, James R. Johnson shot five
people in Moniteau County. He first shot and killed a deputy who
was returning to his car after visiting Johnson's home. He then
proceeded to the sheriff's home and shot and killed the sheriff's
wife at her family Christmas party. Next he shot and wounded the
deputy sheriff. He went to the sheriff's office and shot and killed
two officers. Finally, he held an elderly woman hostage and was
apprehended in her home.
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. He claimed to be a Vietnam veteran suffering post traumatic
stress disorder (PTSD).
A Laclede County jury convicted him of four counts of first degree
murder and sentenced him to death on all four convictions. His motion
for postconviction relief under Rule 29.15 was overruled.
Court en banc holds:
1. No error was committed through certain of the prosecutor's
statements in voir dire. Johnson made no objection to the comments
and does not explain how these comments resulted in manifest injustice
or miscarriage of justice.
2. A. Johnson's claims of prosecutorial misconduct and ineffective
assistance of counsel are denied. Johnson claimed the prosecutor
failed to disclose that police officers had created "perimeter evidence"
(a tin can perimeter rope around his garage, foil from possibly
a baked potato, and flattened car tires), and defense counsel failed
to investigate, mistakenly arguing that Johnson had created the
perimeter evidence as part of his Vietnam flashback. Defense counsel's
mistaken use of the perimeter evidence, even if that use was the
result of prosecutorial misconduct or ineffective assistance of
counsel, did not give rise to manifest injustice or a reasonable
probability that the outcome of the trial would have been different.
First, the mistake did not preclude Johnson from maintaining the
PTSD defense. In addition, defense counsel had shown some caution
in attributing the perimeter evidence to Johnson and did not press
the point once he realized the theory was not supported by the evidence.
Most likely, the defense theory failed not because of the mistaken
use of the perimeter evidence, but on the overall weakness of the
theory itself and the proof offered in support of the theory. The
State exposed the defense's weaknesses and emphasized the facts,
including Johnson's confession, which demonstrated he had known
what he was doing and why.
B. There was no error when, as part of the state's rebuttal of Johnson's
defense, the state called a psychologist who the defense had initially
hired to conduct Johnson's psychological evaluation. The psychologist's
ethical standards are not at issue. Johnson waived any privilege
that would prevent the psychologist from testifying. The defendant
cannot call those doctors who support his position and then try
to prevent the testimony of other doctors who examined him for the
C. There was no abuse of discretion in excluding the testimony of
cumulative character witnesses.
D. Johnson made no objection to certain evidence of which he now
complains or to any of the state's allegedly improper comments and
questions. Likewise, Johnson failed to preserve the alleged error
regarding the exclusion of some of his background and character
evidence. There has been no showing of manifest injustice or miscarriage
of justice. Johnson's corresponding claims of ineffective assistance
of counsel for failing to object are denied because he has shown
no reasonable probability that the result of the trial would have
3.A. Section 494.485, RSMo 1994, addresses the use of alternate
jurors. On its face, it is unclear whether the statute applies to
the guilt or penalty verdicts, or both. Its intent is to provide
for alternate jurors to prevent mistrials. Allowing juror replacement
during penalty phase, but before deliberations, is consistent with
both the legislative purpose of preventing mistrials and the statutory
exception. The legislature intended to afford the same protection
against mistrials in bifurcated cases as in non-bifurcated cases.
Therefore, alternate jurors may properly serve in penalty phase
B. Even if certain comments made in closing argument were erroneous,
which is a tenuous proposition, this Court declines to undertake
plain error review because no manifest injustice or miscarriage
of justice resulted.
C. Johnson's counsel was not ineffective for failing to investigate
and present childhood evidence of a cold family in mitigation because
it would have contradicted the reasonable trial strategy of portraying
Johnson as the product of a good Christian family.
D. This Court has repeatedly rejected Johnson's claims regarding
certain instructions. Although Johnson complains about several aggravators,
at least one aggravator supports each of the counts of murder and
is supported by more than sufficient evidence.
4. Circumstances about which Johnson complains, including a bomb
threat, a graveside tent, and a police presence, do not merit reversal.
The trial court did not abuse its discretion in failing to declare
a mistrial sua sponte. Defense counsel was not ineffective
for failing to object.
5. The trial court's imposition of death sentences did not result
from the influence of passion, prejudice, or any other arbitrary
factor. The jury found the statutory aggravators, which the evidence
amply supports. In addition, the death sentences are neither excessive
nor disproportionate to the penalty imposed in similar cases. Accordingly,
the death sentences are not disproportionate.
Benton, C.J., Price and Robertson, JJ., concur in opinion of
Limbaugh, Jr., J.
Dissenting Opinion Summary by Judge White:
The dissenting opinion would hold that Mr. Johnson received ineffective
assistance of counsel, was prejudiced thereby, and is entitled to
a new trial. The dissenting author argues that defense counsel's
unprofessional failure to interview certain officers led the defense
to make demonstrably false claims in its opening statement, claims
that utterly destroyed the credibility of the PTSD theory before
the defense even presented any evidence. Additionally, the dissenting
opinion contends that the majority opinion applies an outcome determinative
standard for demonstrating prejudice that is too high. The dissent
argues that under the proper standard, given the vagaries of a mental
illness defense, there is a reasonable likelihood that, but for
counsel's unprofessional errors, the result of the trial's guilt
or sentencing phase would have been different.
Opinion Author: Stephen N. Limbaugh, Jr., Judge
AFFIRMED. Benton, C.J., Price and Robertson, JJ., concur; White,
J., dissents in separate opinion filed; Covington and Holstein,
JJ., not sitting.
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
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
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.
II. VOIR DIRE
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.
III . GUILT PHASE
A. The Perimeter Evidence
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.
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, himself, set up the perimeter,
baked the potato and flattened the tires; otherwise, there would
have been no reason to mention the evidence in the reports. The
implication was born out further by the fact that the tin-can-rope
perimeter was listed in the reports as one of the items collected
by the evidence technicians, as if the items somehow linked Johnson
to the crimes. Due to an obvious lack of communication, the authorities
were themselves confused about this evidence, but regardless, the
erroneous implication was never corrected.
According to defense counsel, the problem was compounded by the
prosecutor's passive conduct during a deposition of Johnson's wife
taken a week before trial. At the deposition, defense counsel interrogated
Johnson's wife extensively about the perimeter evidence, and she
speculated that Johnson must have been responsible for it. Although
two prosecutors were present for the deposition, neither made any
effort to correct defense counsel's and Johnson's wife's mistaken
Defense counsel claims to have been further misled by the fact that
an investigator for the State advised that the two highway patrolmen,
who had been endorsed as witnesses, were only involved in the collection
of some of the physical evidence, and would testify solely on chain
of custody issues. As a result of this representation, defense counsel
did not question the two patrolmen before trial.
The corresponding claim of ineffective assistance of counsel is
in large part the converse of the claim of prosecutorial misconduct:
Defense counsel should not have relied on the inference from the
police reports, the suggestive silence of the prosecutors at the
deposition, and the representation regarding the highway patrolmen.
Defense counsel, in other words, made too many assumptions about
the perimeter evidence without adequately investigating the facts,
and failed to conduct a proper investigation that, at the least,
should have included interviews with the two highway patrolmen because
they were endorsed witnesses.
To refute these claims, the State offers several theories. At the
outset, the State maintains that the evidence withheld was not evidence
favorable to the defendant so to require disclosure under the familiar
rule of Brady v. Maryland , 373 U.S. 83, 87 (1963).
While proof that Johnson was responsible for the perimeter evidence
would, perhaps, have been exculpatory, the testimony of the highway
patrolman most assuredly was not.
In addition, the State submits that there can be no prosecutorial
misconduct for failure to disclose evidence where, as here, defense
counsel filed no formal request for discovery and discovery was
handled solely on an informal basis. Moreover, the State contends
that even if counsel had filed a formal request, Rule 25.03 requires
only that the State disclose the names, last known addresses and
existing statements of the witnesses. Because the State had already
voluntarily disclosed all reports required under Rule 25.03, the
State concludes that a formal discovery request would have been
Next, the State suggests that it could not have anticipated that
defense counsel would attribute the perimeter evidence to Johnson's
paranoia. Until defense counsel's opening statement, as the State
explains, the patrolmen's testimony had no significance. It was
for that reason, too, that the State claims an excuse for its earlier
representation that the highway patrolmen were only involved in
the collection of physical evidence. According to the State, that
representation, when made, was entirely true.
On the claim of ineffective assistance of counsel, the State argues
that it was not unreasonable for defense counsel to conclude that
the perimeter evidence was Johnson's handiwork. No other explanation
of this evidence was apparent, there was no evidence to the contrary,
and no further investigation suggested itself. Moreover, the implication
that Johnson was responsible for the perimeter evidence, and his
professed inability to remember his involvement, were entirely consistent
with the PTSD defense.
Though this Court does not condone the conduct of the State in failing
to correct the erroneous implication from its own confusion about
the perimeter evidence, nor the conduct of defense counsel in failing
to further investigate the source of the perimeter evidence, it
is unnecessary to address these issues definitively on their merits.
Johnson did not raise the issue of prosecutorial misconduct until
after trial, and therefore, this Court reviews for plain error only.
As stated, plain error relief will only be granted if manifest injustice
or a miscarriage of justice resulted from the error. Rule
30.20 ; Simmons , 955 S.W.2d at 736. For his
claim of ineffective assistance of counsel, Johnson must show a
reasonable probability that but for his counsel's allegedly unprofessional
errors, the result of the trial would have been different. Strickland
v. Washington , 466 U.S 668, 689-90 (1984). For the reasons
that follow, this Court holds that defense counsel's mistaken use
of the perimeter evidence, even if that use was the result of prosecutorial
misconduct or ineffective assistance of counsel, did not give rise
to manifest injustice or a reasonable probability that the outcome
of the trial would have been different.
First and foremost, the mistake did not preclude Johnson from maintaining
the PTSD defense. Johnson's PTSD experts testified that the existence
and effect of the disorder did not depend on the perimeter evidence
and that the perimeter evidence would have been only minor corroboration
for the theory.
In addition, defense counsel had shown some caution in attributing
the perimeter evidence to Johnson, he did not press the point once
he realized that it was not supported by the evidence, and he tacitly
explained the mistake to the jury. During opening statement, trial
counsel prefaced his reference to this evidence with the caveat,
"[a]nd he doesn't remember particularly" and then hedged somewhat
in describing the evidence by stating that " somebody went
back to Johnson's house . . ." (emphasis added). To be sure, the
highway patrolman testified that he was the someone in question,
but defense counsel made it known to the jury that he had been unaware
of that fact by eliciting on cross-examination that the patrolman
had submitted no report. Likewise, when the State proved that another
patrolman had flattened the tires, defense counsel made it clear
to the jury that he had been unaware of the patrolman's involvement
because the report stated only that the tires had been flattened.
Furthermore, when Johnson, himself, took the stand, he testified
that he had never told defense counsel that he was responsible for
the perimeter evidence and that he simply did not remember one way
or the other. These developments not only took the sting out of
the State's claim that defense counsel had lied about this evidence
but also, in effect, bolstered defense counsel's contention that
Johnson indeed suffered from a "disassociative state," a symptom
of which, as his experts claimed, was an inability to remember events
that took place during the "disassociative state."
Most likely, the defense theory failed not because of the mistaken
use of the perimeter evidence, but on the overall weakness of the
theory itself and the proof offered in support of the theory. The
essence of the PTSD theory, as stated, was that Johnson was suffering
from Vietnam-related flashbacks and was in a "disassociative state,"
a mental illness that prevented him from comprehending the wrongfulness
of his conduct. From our close review of the record, it appears
that the State, in both the cross-examination of the defense experts
and the presentation of its own experts, was highly effective in
exposing the weaknesses of the defense.
Moreover, the State was even more effective simply by emphasizing
the raw facts. One particularly persuasive point focused on the
confession Johnson made to the authorities shortly after his arrest,
a confession in which Johnson recalled in much detail that his targets
were the sheriff and his deputies, not the Viet Cong. He explained
to the authorities how the deputy had come to his house regarding
a domestic disturbance, and how, after a brief confrontation, he
"snapped" and shot the deputy. In this regard, he recounted details
such as the deputy's distance from the house and the deputy's actions
when Johnson began shooting, and that he went back in his house
after the shooting and told his wife he was in trouble. To explain
his conduct to the authorities, he related that "I knew I had a
job to do because [Sheriff] Kenny [Jones] let me down," an apparent
reference to the fact that Johnson and the sheriff had disagreed
on how to handle the ongoing difficulties with Johnson's stepdaughter.
Next, Johnson told the authorities that after shooting the deputy,
he drove to the residence of Sheriff Jones. Although he didn't see
the sheriff, he did see his wife, Pam, and he shot her instead.
He then tried to locate Deputy Connell, but was unsuccessful. Subsequently,
he went to the sheriff's office but did not stop because too many
officers had gathered there. He later made his way to Deputy Borts'
house with the intention of turning himself in, but when he heard
Borts mention his name while talking on the phone, he shot him as
well. On his return to the sheriff's office, he stated that he saw
officers running out the door and, believing that they were coming
after him, he opened fire again.
Tellingly, Johnson referred to his Vietnam experiences only once
during the confession. He stated only that "I could see everything
Johnson's detailed and intimate recitation of these events, together
with his stated reasons for his conduct, seems wholly inconsistent
with the defense of mental disease or defect. In effect, Johnson
admitted that he had known what he was doing and why, and consequently,
he was hard pressed at trial to fit the facts to the theory. In
the end, this was the likely reason why the defense failed.
Johnson's claims of prosecutorial misconduct and ineffective assistance
of counsel are denied.
B. Testimony of Dr. Guindon
As part of the State's rebuttal of Johnson's defense, the State
called Dr. Kurt Guindon, a psychologist. Dr. Guindon had been hired
by the defense to conduct a psychological evaluation of Johnson
some time shortly after the murders. After performing the evaluation,
Dr. Guindon determined that Johnson did not have PTSD, but he did
diagnose a borderline personality disorder with paranoid features.
Because a borderline personality disorder diagnosis would be insufficient
to relieve Johnson of criminal responsibility for his conduct, the
defense decided against using Dr. Guindon as an expert. Prior to
the trial, however, Dr. Guindon contacted a newspaper reporter and
related that he had performed an evaluation of Johnson, and thereafter,
Dr. Guindon was interviewed by newspapers, television, radio stations,
and the State as well.
Johnson now claims that the trial court plainly erred by failing
to declare a mistrial when Dr. Guindon testified and when Johnson
and the defense experts were questioned on cross-examination about
Dr. Guindon's evaluation. Johnson also claims that the Rule 29.15
court clearly erred when it did not find defense counsel ineffective
for failing to preserve the error and when it did not find prosecutorial
misconduct for using Dr. Guindon's evaluation and conclusions.
In particular, Johnson contends that Dr. Guindon's testimony violated
both the American Medical Association's ("AMA") Principles of Ethics
and the physician-patient privilege set out in section 491.060,
RSMo 1994. We disagree. It is not the role of this Court to enforce
the ethics of the AMA nor to police its membership. Furthermore,
the physician-patient privilege is waived in cases such as this,
where the defendant puts his mental status in issue. State
v. Skillicorn, 944 S.W.2d 877, 897 (Mo. banc 1997). More
precisely, "when a party once places the question of his mental
condition in issue he thereby waives the physician-patient
privilege to exclude testimony of any doctors who have examined
him for that purpose." State v. Carter, 641 S.W.2d
54, 57 (Mo. banc 1982). A defendant cannot call those doctors who
support his position and then try to prevent the testimony of other
doctors who examined him for the same condition. Id. at
57 (citing State v. Sapp, 203 S.W.2d 425, 429 (Mo.
1947)). Because Dr. Guindon's ethical standards are not at issue
and because Johnson waived any privilege that would prevent Dr.
Guindon from testifying, there was no error. The point is denied.
C. Excluded Defense Evidence
Johnson next contends that the trial court erred when it excluded
the testimony of several of Johnson's character witnesses, and thereby
denied him his right to defend himself. However, Johnson's counsel
made an oral offer of proof that did not distinguish the testimony
of the proposed witnesses from that of the five character witnesses
who had already testified. Moreover, although the trial court determined
that the proposed witnesses' testimony would be cumulative, the
court still permitted two more character witnesses to testify. Under
these circumstances, there was no abuse of discretion. State
v. Kinder , 942 S.W.2d 313, 336 (Mo. banc 1996).
D. Requests for Plain Error Relief
Johnson contends that a great amount of evidence was improperly
admitted and was so prejudicial that it amounted to plain error.
Admission of the evidence, he adds, violated his rights to due process
and freedom from cruel and unusual punishment. The most prominent
of that evidence includes: 1) the admission of tapes and a transcript
of a recorded conversation between Johnson and a negotiator; 2)
the negotiator's testimony explaining various parts of the tape
that were not clear; and 3) the admission of Johnson's confession,
and the written report prepared by the officer who elicited Johnson's
confession. Additionally, Johnson complains that the State engaged
in a wide variety of allegedly improper questions and comments throughout
the guilt phase, from opening statements through closing argument.
Those questions and comments included: 1) a comment on Johnson's
right to remain silent, 2) a statement that Johnson held Mrs. Miller
"and the entire town of California hostage," 3) speculation on the
possible testimony of Vietnam veterans who were not called as witnesses,
4) a comment that Johnson's defense was a "slap to every veteran,"
5) a comment referring to God, 6) a question that suggested that
Johnson was faking PTSD, 7) a question about the percentage of persons
in the United States who suffer from insomnia, and 8) a question
whether Johnson's demeanor at work had changed so that he might
be fired and receive unemployment compensation.
Johnson also asks for plain error review regarding the exclusion
of certain evidence concerning his background and reputation. The
exclusion, he claims, prevented him from presenting a defense and
thus deprived him of his rights to due process and freedom from
cruel and unusual punishment. The evidence, nearly all of which
was cumulative, included the following: 1) Johnson's reputation
in the community, 2) specific examples of good acts by Johnson,
3) whether Johnson attended church; 4) Johnson's treatment of his
wife Jerri Wilson, 4) people's reaction to the news of the murders
and that Johnson was suspected, 5) why Johnson's friends believed
that he could not have done the murders, 6) how Johnson normally
behaves, 7) how Johnson reacted to the death of his friend Dallas
Cooper, and 8) the morale of Johnson's unit in Vietnam.
As stated, no objections were made to any of the evidence admitted
nor to any of the State's allegedly improper comments and questions.
Furthermore, Johnson failed to preserve the alleged error regarding
the exclusion of some of his background and character evidence.
This Court declines to undertake plain error review because there
has been no showing of manifest injustice or miscarriage of justice.
Rule 30.20 ; Simmons , 955 S.W.2d at
736. Johnson's corresponding claims of ineffective assistance of
counsel for failing to raise objections are denied because he has
shown no reasonable probability that the result of the trial would
have been different.
III. PENALTY PHASE
A. Alternate Juror Sitting in the Penalty Phase
Johnson claims that the trial court erred in allowing, over his
objection, an alternate juror to sit in the penalty phase only and
that the Rule 29.15 court also erred in not finding that Johnson's
counsel was ineffective for failing to request a mistrial when the
alternate juror was seated. Section 494.485, RSMo 1994, which addresses
the use of alternate jurors, states in pertinent part that "[a]lternate
jurors who do not replace principal jurors shall be discharged after
the jury retires to consider its verdict." Because the trial in
a capital case is bifurcated and involves two verdicts instead of
one, it is unclear whether the statute applies to one or the other
of the verdicts, or both. Such ambiguities must be resolved by reference
to legislative intent, as reflected in the language used in the
statute. Akers v. Warson Garden Apartments , ___ S.W.2d
___ (Mo. banc 1998) (No. 80240, January 27, 1998). The overriding
intent of section 494.485 is to provide for the use of alternate
jurors so as to prevent mistrials caused by the loss of a regular
juror. The only statutory exception to the use of alternate jurors
applies when deliberations have already begun. Allowing juror replacement
during penalty phase, but before the jury retires to deliberate,
is entirely consistent with both the legislative purpose of preventing
mistrials and the statutory exception. This Court concludes that
the legislature intended to afford the same protection against mistrials
in bifurcated cases that it afforded in non-bifurcated cases; therefore,
alternate jurors may properly serve in penalty phase deliberations
only. This conclusion, of course, is also entirely consistent with
the practice of conducting penalty phase trials with completely
new juries whenever the imposition of the death penalty is overturned
on appeal. The point is denied.
B. Allegedly Improper Closing Argument
As in voir dire and the guilt phase, Johnson claims that several
comments made by the State during closing arguments constituted
prosecutorial misconduct, that defense counsel was ineffective for
failing to object, and that the trial court plainly erred in not
ordering a mistrial sua sponte . Those comments include:
1) that this case was the first time that the prosecutor had ever
requested the death penalty and that there were several reasons
why the death penalty was being requested; 2) that after Johnson
killed Officer Roark, he was a murderer and that by the end of the
night he had a significant criminal history; 3) that peace officers
should not have to worry that their job endangers their families;
4) that Johnson's mother was a victim of his crimes; and 5) that
the officers who returned fire at Johnson would have been justified
if they had killed him and that the officers would have been lauded
as heroes. In addition, Johnson complains of several instances where
the State allegedly personalized the argument and one instance where
the State asked the jury to consider "whose life has more value."
No objection was made to any of these comments. Even if the comments
were erroneous, which is a tenuous proposition, this Court declines
to undertake plain error review because no manifest injustice or
miscarriage of justice resulted. Rule 30.20 ; Simmons
, 955 S.W.2d at 736. This point is denied.
C. Failure to Investigate and Present Evidence
Johnson next alleges that his trial counsel was ineffective for
failing to investigate and present Johnson's early childhood experiences
-- that he was the victim of a cold, unloving family -- in mitigation
of punishment. He contends that those early experiences show that
Johnson had a predisposition to PTSD and would have convinced the
jury that his conduct did not warrant death. However, defense counsel
was well aware of those early childhood experiences as a result
of talking to Johnson, himself, and elected to pursue a different
strategy of presenting Johnson as the product of a good Christian
family. This was reasonable trial strategy that defense counsel
developed from his discussions with Johnson, and at trial, counsel
called numerous witnesses to support that strategy. The suggested
testimony would have wholly contradicted the reasonable trial strategy
that was actually used. It would have been counterproductive to
search for more witnesses who would contradict that reasonable trial
strategy. The point is denied.
D. Jury Instructions
Johnson also claims that the reasonable doubt instructions given
in both the guilt phase and the penalty phase are constitutionally
infirm. The instructions are based on MAI-CR3d 302.04 and MAI-CR3d
313.03 respectively. This argument has been repeatedly rejected
by this Court. See, e.g., State v. Hall, 955 S.W.2d
198, 206 (Mo. banc 1997); State v. Debler, 856 S.W.2d
641, 652 (Mo. banc 1993). In addition, Johnson claims that the mitigating
circumstance instruction given in the penalty phase, which is based
on MAI-CR3d 313.44B, is unconstitutional because the "may consider"
language misleads the jury. This argument has also been clearly
rejected by this Court. Debler, 856 S.W.2d at 655.
Johnson next argues that the depravity of the mind aggravator, the
dangerous weapon aggravator, and a third aggravator concerning the
attempted homicide of Officer John Ernst, all submitted to the jury
during the penalty phase, were vague, duplicative, and unsupported
by the evidence. Initially, we note that a finding of only one aggravating
circumstance is necessary to support imposition of the death penalty.
State v. Smith, 944 S.W.2d 901, 921 (Mo. banc 1997);
State v. Weaver, 912 S.W.2d 499, 522 (Mo. banc 1995).
In three of the four counts of murder, the jury found the existence
of the statutory aggravator that a peace officer was murdered in
the line of duty, and Johnson does not dispute the applicability
of that aggravator. As to the fourth Count, we need only look at
the dangerous weapon aggravator, which was one of the two aggravators
submitted. To support the dangerous weapon aggravator, it must be
shown that the defendant used a weapon or device to endanger more
than one person. State v. Kenley, 952 S.W.2d 250,
275 (Mo. banc 1997). The evidence supporting the dangerous weapon
aggravator showed that Johnson fired six times with a semi-automatic
rifle on a group of people; only one person was injured but all
were endangered. This evidence was more than sufficient. The point
IV. BOMB THREAT AND OTHER ALLEGED DISTRACTIONS
Johnson alleges that the trial court plainly erred by failing to
declare a mistrial sua sponte when a bomb threat forced
the court to suspend voir dire for a day, when the State mentioned
the bomb threat during its penalty phase closing argument, when
the jurors were forced to walk by a graveside tent during the trial,
when officers "filled the court room," and when a prayer and scripture
were read in the jury room at the beginning of guilt phase deliberations.
Johnson also alleges that his counsel was ineffective for failing
to object to these situations.
"A mistrial is a drastic remedy, granted only in extraordinary circumstances."
State v. Parker, 886 S.W.2d 908, 922 (Mo. banc 1994).
Because the trial court is in a better position to observe the evidence
and its impact, the granting of a mistrial rests within its sound
discretion. Appellate review is for abuse of discretion only. Parker,
886 S.W.2d at 922.
In this case, the circumstances about which Johnson complains do
not merit reversal. After the bomb threat was resolved, the trial
court made sure that no one had read or heard anything about the
matter and assured everyone that all safety precautions were being
taken. No juror who had heard anything or had admitted to being
scared was selected to be on the jury. In addition, the State's
comments in the closing argument were not objected to and there
is no support in the record for the court to have declared a mistrial
sua sponte . The evidence concerning the graveside
tent shows that Johnson has greatly exaggerated his claim. The tent
was near the main entrance which faces west, but the jurors entered
from a south entrance; there was clearly no prejudice from such
limited exposure. As to the alleged "sea of peace officers" during
the trial, Johnson has again shown no prejudice. The record shows
that many of the officers were out of uniform and at least some
of those in uniform were present for security purposes, required
in view of the bomb threat and the nature of the trial. Moreover,
the trial court was present and was in a better position to determine
the impact of the officers' presence. State v. Clover, 924
S.W.2d 853, 856 (Mo. banc 1996). The last claim, that the jurors
prayed and read scripture at the beginning of the guilt phase determination,
is not subject to challenge. The law is clear: jurors may not impeach
the verdict with testimony '"of any partiality or misconduct that
transpired [in the jury room], nor speak of the motives which induced
or operated to produce the verdict.'" State v. Babb, 680
S.W.2d 150, 152 (Mo. banc 1984), citing State v. Underwood
, 57 Mo. 40, 52 (1874). In sum, this Court concludes that
the trial court did not abuse its discretion in failing to declare
a mistrial sua sponte and that defense counsel was
not ineffective for failing to raise objections.
V. PROPORTIONALITY REVIEW
Finally, Johnson contends that the death sentence is improper because
this Court does not engage in a meaningful proportionality review.
Particularly, he claims 1) that this Court does not afford adequate
notice with a meaningful opportunity to be heard on the proportionality
issue, 2) that this Court does not maintain a complete database
of cases as required by section 565.035 because cases in which life
sentences are imposed are not included, and 3) that "similar cases"
is an undefined criterion. Johnson also complains that his death
sentence is improper because the prosecutor has unlimited discretion
in seeking the death penalty. Furthermore, he contends that the
sentence in this case is excessive and disproportionate.
The purpose of the proportionality review, as this Court has repeatedly
explained, is merely to prevent freakish and wanton applications
of the death penalty. Parker, 886 S.W.2d at 933. The
review performed sufficiently meets that standard. See State
v. Ramsey, 864 S.W.2d 320, 328 (Mo. banc 1993); see
also Zeitvogel v. Delo, 84 F.3d 276, 284 (8th Cir.1996)
(upholding this Court's proportionality review). The process for
the review is clearly stated in the statute and in past cases, and
its repetition offers no precedential value. See Parker, 886
S.W.2d at 933-34; Ramsey, 864 S.W.2d at 328. Additionally,
any due process claims, such as the ones Johnson brings here, have
already been rejected by this Court. Weaver, 912 S.W.2d
at 522. Claims contesting the adequacy of the database as a factor
in the proportionality review have also previously been rejected.
Parker, 886 S.W.2d at 933; State v. Whitfield,
837 S.W.2d 503, 515 (Mo. banc 1992). Thus, Johnson's only
remaining point is that imposition of the death penalty in his case
is excessive and disproportionate.
After careful review of the record, this Court holds that the trial
court's imposition of the death sentence did not result from the
influence of passion, prejudice, or any other arbitrary factor.
See section 565.035.3(1). The jury unanimously found
one statutory aggravator in the murder of Officer Roark: that the
murder was committed against a peace officer while engaged in the
performance of his official duty. The jury unanimously found two
statutory aggravators in the murder of Pamela Jones: 1) that Johnson
by his act of murdering Pamela J. Jones knowingly created a great
risk of death to more than one person by means of a weapon that
would normally be hazardous to the lives of more than one person;
and 2) that the murder involved depravity of the mind and was outrageously
and wantonly vile, horrible, and inhuman, and exhibited a callous
disregard for the sanctity of all human life. The jury unanimously
found four statutory aggravators in the murder of Officer Charles
R. Smith: 1) that the murder was committed while Johnson was engaged
in the attempted commission of another unlawful homicide; 2) that
by murdering Smith, Johnson knowingly created a great risk of death
to more than one person by using a weapon that would normally be
hazardous to the lives of more than one person; 3) that the murder
involved depravity of the mind, was outrageously and wantonly vile,
horrible, and inhuman, and exhibited a callous disregard for the
sanctity of all human life; and 4) that the murder was committed
against a peace officer while engaged in the performance of his
official duty. The jury unanimously found two statutory aggravators
in the murder of Sandra B. Wilson: 1) that the murder involved depravity
of the mind, was outrageously and wantonly vile, horrible, and inhuman,
and exhibited a callous disregard for the sanctity of all human
life; and 2) that the murder was committed against a peace officer
while engaged in the performance of her official duty. The finding
of these aggravators is amply supported by the evidence.
In addition, the death sentence in this case is neither excessive
nor disproportionate to the penalty imposed in similar cases. Johnson
shot one victim in the back as he was leaving and then came back
moments later to finish the murder. He shot another victim through
a window while she was sitting in a group of people. He shot another
victim while he was leaving the police station. He shot his final
victim in the back while she was climbing from her police car. Defendants
in similar cases who kill peace officers are often sentenced to
death. See, e.g., State v. Sweet, 796 S.W.2d 607,
617 (Mo. banc 1990); State v. Mallett, 732 S.W.2d
527 (Mo. banc 1987); State v. Driscoll, 711 S.W.2d
512 (Mo. banc 1986); State v. Roberts, 709 S.W.2d
857 (Mo. banc 1986); State v. McDonald, 661 S.W.2d
497 (Mo. banc 1983). Furthermore, a sentence of death is often imposed
where the defendant murdered more than one person. See, e.g.,
State v. Clemons, 946 S.W.2d 206, 233 (Mo. banc 1997); State
v. Ramsey, 864 S.W.2d 320 (Mo. banc 1993); State v.
Mease, 842 S.W.2d 98 (Mo. banc 1992); State v. Hunter,
840 S.W.2d 850 (Mo. banc 1992); State v. Ervin, 835
S.W.2d 905 (Mo. banc 1992); State v. Powell, 798 S.W.2d
709 (Mo. banc 1990); State v. Reese, 795 S.W.2d 69
(Mo. banc 1990); State v. Sloan, 756 S.W.2d 503 (Mo.
banc 1988); State v. Griffin, 756 S.W.2d 475 (Mo.
banc 1988); State v. Murray, 744 S.W.2d 762 (Mo. banc
1988); State v. Young, 701 S.W.2d 429 (Mo. banc 1985);
State v. Byrd, 676 S.W.2d 494 (Mo. banc 1984). Accordingly,
the sentences of death in this case are not disproportionate.
For the foregoing reasons, the judgments are affirmed.
FN1. The text of defense counsel's outline of this part
of the evidence follows:
On the morning of December 10th, Jim Johnson woke up from one
of those horrible nightmares that you've all had. And it was so
lifelike, and he'd been back in Vietnam, only there was something
wrong with the dream. . . .
. . . It was what doctors call an acute dissociative reaction,
and he was reliving war trauma and he couldn't control what he
And everything was so much like Vietnam, he was back in Vietnam.
And all of a sudden, there was a dink. . . . He was invading his
perimeter, and he had to protect it and he shot him. . . . And
just like in Vietnam, he went out and finished him off. . . .
because that's what you do in Vietnam. . . .
. . . .
And he had to try to find the leader, and he went looking for
the leader. . . . He saw the leader and he killed the leader just
like they taught him in the army. . . .
And now, just like he was in the army, now you find safety. And
he doesn't remember particularly finding safety, but somewhere
during the night, somebody went back to Johnson's house and took
a rocking chair out of the house and put it in the back of a pickup
in the garage and covered the windows and set up a perimeter.
They set up a perimeter with cans and rope around the outside
of the garage so that if somebody hit the rope they'd make noise.
And he set up a perimeter, and he renourished, baked a potato
in the wood stove because once you've set up your perimeter and
you've got a guard out, that's what you do in Vietnam, you renourish
and rest while your buddies stand guard duty, only Jim had to
play all the roles. He was playing all the roles that night. He
was on guard duty while he was resting and renourishing because
he didn't have any friendly troops with him.
And he was still in a free fire zone, and at some point he had
to go out and do some recon and he had to -- he had to do some
reconnaissances and see what was going on and see who was there.
And when he went on his recon mission, he thought, I'd better
abandon and destroy this car, take the car, get rid of the car,
but destroy the car, disable the car so the enemy can't use it.
So he flattened the tires, and that's what they taught them to
do in the jungle. You've got to abandon equipment, disable it
so the enemy can't use it against you, so he did.
And then he went to look for some support troops. . . . And when
he got to where he could find support troops, there weren't any.
And there was still enemy and the enemy was calling in, and he
had to take out the radio and he took out the radio.
And now its time to do some more recon, and he sees the VC coming
out of the bunker. . . . And he's in a free fire zone and he shoots,
and he has to escape and evade then. . . . And he tries to escape
and evade, and he sees another dink and shoots that dink.
And he looks for a safe haven and finds the porch of Mrs. Miller
and he rests. . . . Now, Jim Johnson is going to tell you what
he remembers of that night, and he's not going to talk to you
about escape and evade, search and destroy, kill the leader and
how the army taught him that because he -- he doesn't really remember
most of those things from the army. He's tried to forget everything
from the army, but it's still there.
And the psychologists are going to come in, and the military experts
are going to come in and talk to you about how consistent all
of what happened that night was with the Vietnam experience for
Dissenting Opinion by Judge White: While I would find the
result troubling, I am compelled, nevertheless, to dissent. Defense
counsel's unprofessional failure to interview Officers Opperman
and Breen led the defense to make demonstrably false claims in its
opening statement, claims that utterly destroyed the credibility
of the PTSD theory before the defense even presented any evidence.
While defendant has not, perhaps, demonstrated that this was outcome-determinative
prejudice, as the majority opinion requires, that standard is too
high. Under the proper standard, given the vagaries of a mental
illness defense, I am convinced that there is a reasonable likelihood
that, but for counsel's unprofessional errors, the result of either
the guilt or sentencing phases of the trial would have been different.
While the conduct of the prosecution in this matter is, as the principal
opinion notes, not especially praiseworthy, the evidence of purposeful,
prosecutorial misconduct is equivocal, at best, and I am reluctant
to condemn the prosecution on this record. As to the defense counsel,
however, I have no such reservations.
Although the principal opinion is correct in pointing out that defense
counsel was initially careful in attributing the perimeter evidence
to Mr. Johnson ("somebody went back to Johnson's house"), all caution
was quickly abandoned as the defense told the jury, in no uncertain
terms, that the defendant was that somebody:
Intent as they were on making such extravagant claims about what this
behavior revealed about their client's mental state, the defense team
was remarkably cavalier in determining whether these assertions had
any basis in fact. While it is true, as the State argues, that no
evidence in the defense's possession indicated that someone else had
done these things, no evidence pointed to Mr. Johnson, either. As
defense counsel testified at the Rule 29.15 hearing, the defense decided
that Mr. Johnson was responsible because it fit their experts' theory
about what sort of behavior he might have engaged in: "the experts
. . . thought that was a great piece of evidence for their testimony."
Thus, the defense made the mistake of assuming that the evidence would
show what they hoped it would show, instead of investigating to see
what actually might be determined.
he set up a perimeter. . . . , that's what you do in Vietnam,
you renourish and rest while your buddies stand guard duty, only
Jim had to play all the roles. . . . He was on guard duty while
he was resting and renourishing . . . . And when he went on his
recon mission, he thought, I'd better . . . disable the car so
the enemy can't use it. So he flattened the tires . . . .
Even minimal investigation would have sufficed. The defense team was
not required to depose every single endorsed witness. But the defense,
if it was inclined to make so much of what went on in James Johnson's
garage on the night of December 8th, was obliged to at least ascertain
who was present at that location, and, at the very least, to interview
those persons. Similarly, if the defense thought that the tire evidence
was important, it should reasonably have attempted to contact a person
who could confirm that the tires were, in fact, flat when the car
was first found by the authorities. These witnesses were not hard
to find. As defense counsel noted, he had nagging questions about
why these particular officers had been endorsed and repeatedly asked
the prosecution who they were. While the prosecution's investigator
did apparently say "that they were just chain people and probably
aren't going to use them, etc., etc." the equivocal answer of an opposing
investigator does not relieve a reasonably diligent and cautious advocate
of the duty to at least pick up the phone and ask these witnesses
what their connection to the case was. Defense counsel did not do
even that, and it caused them to make a critical error from which
the defense never recovered.
While it may be true that the prosecution sprang a trap on the defense,
it was a trap that defense counsel helped set through inadequate preparation
and investigation and armed through its own overblown, factually unsupported
statements about what happened the night of the killings. Reasonably
cautious and zealous advocates would not have been so easily misled.
The principal opinion does not endorse the behavior of either side
and, at least implicitly, recognizes that some breakdown in professionalism
probably occurred here. Hence, where I really differ from the principal
opinion is on the issue of prejudice. The majority applies too high
While the prejudice standard is, as the majority states, whether there
was a "reasonable probability" of a different result, (FN2) the principal
opinion actually seems to be applying an outcome-determinative standard.
Strickland explicitly rejects an outcome-determinative standard.
(FN2) Thus, Mr. Johnson is not required to show that his counsel's
unprofessional errors are the "most likely" reason why his defense
failed, as the principal opinion holds. The United States Supreme
Court reiterated this as recently as 1995, contrasting the "reasonable
probability of a different result" standard with the higher, outcome-determinative
standard, and also noting that this is not merely a sufficiency of
the evidence standard. (FN3) The majority seems to apply the latter
standard. Tellingly, for a case based entirely on a defense of mental
illness, the principal opinion's review of the evidence does not mention
any of the testimony of the three defense PTSD experts, instead choosing
to focus solely on the inculpatory "raw facts." This disregard for
essentially the entire defense case in assessing prejudice reflects
an improper, sufficiency of the evidence standard. Certainly, I do
not understand the principal opinion to hold that there is overwhelming
evidence that Mr. Johnson was legally sane at the time of the killings.
While I agree that there was sufficient evidence to convict, and am
not necessarily convinced that the weakness of the case was not the
"most likely" reason the defense failed, I find it is reasonably likely
that a jury that had not seen the defense
destroy its own credibility on this issue would have been sufficiently
receptive to the expert diagnosis of a mental disease or defect to
permit a reasonable likelihood of a different result.
As to the idea that the defense was able to mitigate the effects of
its gaffe, I am unconvinced. The fact that the defense elicited testimony
from the officers and the defendant explaining why the defense did
not know that their client had not constructed the perimeter, and
the fact that defense had their experts testify that the perimeter
evidence was not important in their diagnosis of Mr. Johnson actually
indicates the opposite. In my view, these efforts to distance the
defense from this evidence show that the defense team knew how badly
its credibility had been damaged and spent the entire trial vainly
attempting to recover some shred of believability. In particular,
the prosecutor, in his closing argument, did not think that the failure
to ascertain who had created the perimeter evidence was unimportant.
The prosecution's tactic in rebuttal was to "flash back" to defense
counsel's opening argument and to recount what the defense had "promised"
to prove to the jury. After reading at great length from defense's
opening statement, the prosecutor vividly captured the devastating
effect that statement had on the entire defense case: "Pure unadulterated
lies to you. We have disproven each and every fact that the Defense
said they were going to sell you on this Vietnam defense. The only
land mines that this case is about are the ones the Defense has been
stepping on all week."
Obviously, there is no question that Mr. Johnson killed the victims
here. The question is whether he was sane when he did so. There was
expert psychological testimony on both sides. I cannot say that it
is not at least reasonably likely that a jury would have believed
the PTSD theory if Mr. Johnson's counsel had not utterly discredited
himself and the theory by tying it and the defense into a completely
concocted scenario at the very outset of the case.
Penalty Phase Prejudice
Even more troubling to me is an issue that the principal opinion does
not address: "When a defendant challenges a death sentence . . . ,
the question is whether there is a reasonable probability that, absent
the errors [of counsel], the sentencer . . . would have concluded
that the balance of aggravating and mitigating circumstances did not
warrant death." (FN4) Clearly, the aggravating factors here are extremely
grave. But there are clear mitigating factors as well: Mr. Johnson's
previously law-abiding life, his service to his country, at least.
While a reasonable juror might have felt that Mr. Johnson's mental
difficulties did not rise to the level of legal insanity, it is reasonably
likely that such a juror would find those mental problems, combined
with Mr. Johnson's previous positive contribution to society sufficiently
mitigating to warrant a sentence of life. Any such tendency was severely
undercut by defense counsel's opening argument, which left the jury
with the strong impression that any claims of emotional distress by
Mr. Johnson were made up out of whole cloth. Absent this unprofessional
error, it is at least reasonably likely that a jury would have found
the balance of mitigating and aggravating factors differently.
This is a very hard case. If Mr. Johnson was in control of his faculties
when he went on this murderous rampage, then he assuredly deserves
the death sentence he was given. But the question of what Mr. Johnson's
mental status was on that night is not susceptible of easy answers.
While Mr. Johnson may not, as the jury found, have met the legal definition
of insanity, whatever drove Mr. Johnson to go from being a law-abiding
citizen to being a multiple killer was certainly something akin to
madness. I am not convinced that the performance of his counsel did
not rob Mr. Johnson of any opportunity he might have had to convince
the jury that he was not responsible for his actions. This is an excellent
example of why hard cases make bad law. While I share the majority's
horror at this carnage, I cannot uphold this as an acceptable standard
of representation for a defendant accused of capital murder.
I would hold that Mr. Johnson received ineffective assistance of counsel,
was prejudiced thereby, and is entitled to a retrial.
FN1. Strickland v. Washington , 466 U.S. 668, 694
FN2. Id. at 693-94.
FN3. Kyles v. Whitley , 115 S.Ct. 1555, 1565-66 (1995).
FN4. Strickland , 466 U.S. at 695.
This slip opinion is subject to revision and may not reflect
the final opinion adopted by the Court.