Opinion
No. M1987-00072-SC-DPE-DD.
Filed August 10, 2004.
ORDER
On July 1, 2004, the State filed a Motion to Set Execution Date for Donnie Johnson. The motion stated that Johnson had completed the standard three-tier appeals process and that an execution date should therefore be set under Tennessee Supreme Court Rule 12.4(A).
On July 12, 2004, Donnie Johnson filed a Response to Motion to Set Execution Date. The Response alleged that an execution date should not be set because of the need to investigate misconduct of Johnson's trial attorneys growing out of their prior representation of one of the witnesses for the State at Johnson's capital trial. The Response requested that this Court appoint a Special Master to take evidence on this matter, make findings of fact, and report back to this Court.
Having considered the Motion to Set Execution Date and the Response, this Court finds that Johnson has presented no legal basis for denying the State's Motion to Set Execution Date. Therefore, the State's motion is GRANTED. Donnie Johnson's request for the appointment of a Special Master is DENIED. It is hereby ORDERED, ADJUDGED and DECREED by this Court that the Warden of the Riverbend Maximum Security Institution, or his designee, shall execute the sentence of death as provided by law on the 16th day of November, 2004, unless otherwise ordered by this Court or other appropriate authority.
Counsel for Donnie Johnson shall provide a copy of any order staying execution of this order to the Office of the Clerk of the Appellate Court in Nashville. The Clerk shall expeditiously furnish a copy of any order of stay to the Warden of the Riverbend Maximum Security Institution.
Justice Adolpho A. Birch, Jr. — Dissenting by Separate Order
I respectfully dissent from the order setting a date for the execution of Donnie Johnson. In my view, Johnson has raised a valid legal issue concerning whether trial counsel had a conflict of interest arising from the firm's former representation of the State's "star" witness, Ronnie McCoy. Specifically, Johnson presents evidence indicating that McCoy may have had an immunity agreement to testify for the State, a fact that may have been known by trial counsel, but concealed from Johnson and not presented to the jury to impeach McCoy. As presented, it appears that this information has only recently come to light and was unknown at the original hearing on the petition for post — conviction relief.
Due to the heightened scrutiny in the review of capital cases, I believe that this information is serious enough to impact the validity of the conviction in this case, and warrants refraining from setting an execution date until the basis for such accusation can be either confirmed or disproved.
I agree with the Court that the request for the appointment of a special master should be denied. The appropriate avenue for relief on this claim is a motion to reopen the post-conviction petition. Although I recognize the case has completed the standard "three tier" review and is thus technically "ripe" for setting of an execution date, see Coe v. State, 17 S.W.3d 251 (Tenn. 2000), the question affecting the reliability of the conviction and the finality of the death sentence convinces me that there should be no rush to execution. I would grant Johnson a grace period of sixty days to file a petition to reopen and reconsider the State's motion to set execution.
For these reasons, I dissent from the order setting a date for Johnson's execution.
ADOLPHO A. BIRCH, JR.