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State v. Johnson

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1041 (Wash. Ct. App. 2007)

Opinion

No. 55860-9-I.

March 19, 2007.

Appeal from a judgment of the Superior Court for King County, No. 02-1-04644-1, Douglass A. North, J., entered February 16, 2005.

Counsel for Appellant(s), Nielsen Broman Koch PLLC, Attorney at Law, 1908 E Madison St, Seattle, WA.

Eric J. Nielsen, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA.

Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA.

Brian Martin Mcdonald, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA.


Affirmed by unpublished per curiam opinion.


Melvin Johnson appeals his conviction of three counts of first degree aggravated murder. Johnson contends the trial court violated his right to present a defense by limiting the evidence he could present regarding possible other suspects and bias and incompetence by police in failing to investigate such other suspects. We find no abuse of discretion and no violation of Johnson's rights. Johnson's pro se supplemental claims also fail. We affirm.

FACTS

Johnson and Patricia Whitfield were two of Ola Johnson's nine children. In 1995, Ola became ill and Patricia moved in with Ola to take care of her. Patricia secretly took legal title to Ola's house in 1996 by means of a quitclaim deed she executed using a power of attorney. Before Ola died in 1997, Patricia also obtained a loan using the house as collateral. Johnson and some of his other siblings were upset when they learned this. Johnson believed he should have inherited the house as Ola's youngest child, but Patricia required him to pay her rent while his family lived in the house in 1998. When Patricia raised the rent, Johnson was forced to move. He expressed anger and complained that he could not get his money back for improvements he had made. Liah Nelson, a friend of Johnson's wife Julia Bishop, testified Johnson made threats about Patricia, saying he would "handle her" and "take her out".

Many of the victims and witnesses share the same last names. This opinion uses first names for the sake of clarity. No disrespect is intended.

In February 1999, Johnson rode with Julia's step-sister Kenyatta Carroll to visit a friend in the Reynolds work-release facility. On the way, Johnson had Kenyatta buy him bullets at Warshal's Sporting Goods store in Seattle.

In June 1999, Patricia's daughter Artis Ingram and granddaughters Champagne, age 6, Chabrone, 11 months, and Chandlier, a newborn, were living with Patricia. On June 7, Patricia's sister Alicia spent the evening at Patricia's house, leaving at approximately 11:20 in the evening. At approximately 2:45 the next morning, police stopped Johnson for speeding while he was driving his van. His wife Julia and his children were in the car. Johnson said one of the children was having an asthma attack and was released with a warning. Later, between 3:00 and 4:00 a.m., Johnson's neighbor heard screeching tires and saw Johnson driving his white Ford LTD. At approximately 4:00 a.m., Johnson arrived by himself at Julia's friend Liah's house, seeking a place to stay. His only response, when asked what was going on, was to make a slashing motion across his throat and say "she's out of here."

That afternoon, Patricia's adult sons found Patricia, Artis and Champagne dead of multiple gunshot wounds together in a bedroom with the unharmed babies. The medical examiner estimated the time of death between midnight and 5:00 a.m. Police found no sign of forced entry or robbery. The bullets that killed the victims were all .44 caliber "Nosler partition rounds," unusual ammunition that consists of two bullets contained in a single casing to multiply potential damage. Such ammunition is generally used for big game and is not commonly manufactured for use in handguns. The state's expert pathologist, the former King County chief medical examiner, had not encountered partition round ammunition in more than 75,000 autopsies conducted over 26 years.

A few days after the homicide, the State's firearms expert began looking for similar bullets in the Seattle area. He learned that Nosler supplied partition bullets exclusively for Winchester branded handgun ammunition. Winchester personnel identified three possible retail stores in the area. Of those stores, only the Seattle Warshal's Sporting Goods store actually had the ammunition in stock.

In July 1999, police arrested Johnson and Julia on outstanding warrants. Police served a search warrant at Johnson's home and recovered handguns, but none that matched the bullets used in the homicide. Johnson eventually pleaded guilty to unlawful possession of a firearm and was committed to state prison.

Police interviewed Kenyatta Carroll in December 1999. Reynolds facility records showed that she and Johnson had visited on February 25. Warshal's records showed an ammunition purchase that day in an amount matching the price of Winchester brand .44 caliber Nosler partition handgun ammunition.

Though warned that his telephone calls could be recorded, Johnson discussed the case with Julia by phone from prison. During one call, Julia said police had learned Kenyatta purchased the bullets. Johnson asked how and Julia speculated that Kenyatta had signed something. Johnson reassured Julia that if police had DNA evidence they would have arrested him for the murders already and told her to stop giving police information because she might incriminate herself. Julia later gave police a letter from Johnson accusing her of cracking under police pressure. In it, Johnson told Julia her information had just confused the case, but repeated she should not cooperate further. He also wrote "[i]t had nothing to do with you. It was business. . . . Some people are greedy like pigs. They hog everything for them self. Eventually they go to "market."

Johnson also made admissions to several inmates. He expressed both remorse and confidence that the police would not solve the murders. Johnson said that he had disposed of the gun, that bullets at his house did not match the ones used in the shooting and that Julia could not incriminate him even though she was cooperating with the police. Johnson told one inmate that he shot Artis accidentally, panicked and shot Patricia to eliminate her as a witness and did not realize he killed Champagne until he saw the news.

In July 2000, a .44 caliber revolver was found on a Seattle beach during an extremely low tide. Forensic testing was limited by corrosion from saltwater, but experts determined the revolver had fired the bullets used in the homicide.

Johnson was charged with three counts of first degree aggravated murder. Before trial, the defense moved to admit evidence suggesting someone other than Johnson committed the crimes, focusing on Johnson's nephew, Alicia's son Jordan Sullivan, and Artis's boyfriend Labrone Gaines. While Johnson conceded that Gaines had an incontrovertible alibi because he had been in jail, he sought to admit the evidence to challenge the police investigation. After a hearing, the trial court denied both motions and denied Johnson's subsequent motion to reconsider during trial. Johnson was found guilty and now appeals.

DECISION

Johnson first contends that the trial court should have allowed him to present evidence and argue that Sullivan committed the murder. Evidentiary rulings are within the discretion of the trial court and will not be disturbed absent an abuse of discretion, i.e., untenable or manifestly unreasonable grounds. State v. Clark, 78 Wn. App. 471, 477, 898 P.2d 854, review denied, 128 Wn.2d 1004 (1995). Johnson contends that the trial court's unreasonable exclusion of evidence purportedly connecting Sullivan to the murder violated his federal and state constitutional right to compulsory process for obtaining witnesses in his favor. Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); State v. Maupin, 128 Wn.2d 918, 913 P.2d 808 (1996); U.S. Const. amend. VI; Wash. Const. art. I, §§ 22. We disagree.

Washington courts have long held that to admit evidence suggesting another person committed the charged offense, the defendant must establish "a train of facts or circumstances as tend clearly to point out some one besides the [defendant] as the guilty party." State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932). Although a defendant has a constitutional right to obtain witnesses and present a defense, a defendant has no right to present irrelevant evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). Accordingly, a defendant has no right to introduce evidence that a third party committed the charged crime unless a sufficient foundation is established. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993), review denied, 123 Wn.2d 1031 (1994). That foundation requires a clear nexus between the person and the crime. Condon, 72 Wn. App. 638, 647. Motive, ability, and opportunity to commit a crime alone are not sufficient. State v. Rehak, 67 Wn. App. 157, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993). Only when the offered testimony would evidence a "step taken by the third party that indicates an intention to act" on the motive or opportunity does the trial court abuse its discretion in refusing to allow the evidence. Rehak, 67 Wn. App. at 163.

Citing Holmes v. South Carolina, 547 U.S. 319, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006), Johnson first contends that Downs and later Washington cases relying on it are no longer good law. Johnson is incorrect.

In Holmes, the state of South Carolina submitted significant forensic evidence affirmatively linking the defendant to the crime. Holmes, 126 S. Ct. at 1730. The trial court precluded the defendant from introducing potentially exculpatory other suspect evidence because of the nature of the state's case, and state appellate courts affirmed. Id.

In reversing, the Supreme Court noted that South Carolina courts had long followed the widely accepted rule that "`[b]efore [other suspect] testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.'" Holmes v. South Carolina, 126 S. Ct. at 1734 (U.S. 2006) (quoting State v. Gregory, 198 S.C. 98, 104-05, 16 S.E.2d 532, 534-35 (1941)). The Holmes court reaffirmed that states possess broad latitude under the constitution to establish rules excluding evidence from criminal trials. Reversal was required, however, because the South Carolina courts had "radically changed and extended" Gregory's proper rule by holding defense evidence could be excluded, regardless of its strength or capacity to mislead the jury, simply because the state presented a strong forensic case. Holmes, 126 S. Ct. at 1733-34.

Downs and the cases following it are entirely consistent with the rule of Gregory and other cases Holmes cited with approval. Unlike the South Carolina courts, Washington courts have not radically changed or extended the rule so that it no longer serves its proper purpose. Accordingly, we evaluate this case under the settled Washington law. Doing so, we find no error.

Johnson also cites State v. Darden, 145 Wn.2d 612, 41 P.3d 1189 (2002), State v. Hudlow, 99 Wn.2d 1, and State v. Reed, 101 Wn. App. 704, 715, 6 P.3d 43 (2000), to support his claim that the applicable standards for admission of other suspect evidence have changed. But we have recently rejected the same argument in State v. Howard, 127 Wn. App. 862, 113 P.3d 511 (2005), review denied, 156 Wn.2d 1014 (2006).

Johnson's offer of proof of the evidence regarding Jordan Sullivan came in the form of a lengthy unsworn memorandum by defense counsel. In it counsel indicated that: Sullivan was associated with a car seen leaving the crime scene; an anonymous caller to police reported after the murder that Sullivan had threatened Patricia's life; Sullivan did not show up at planned events at or near the time of the murder; and Sullivan had told others he expected to inherit the house. Johnson sought to buttress this evidence with further background information that Sullivan was a congenital liar, had a dysfunctional relationship with his family, had a serious drug problem leading to arrests for drugs and theft, had anger issues shown in an assault he committed in 2004, was said to carry a handgun similar to the murder weapon and had sexual identity issues that were a sore subject because his family did not accept his lifestyle.

We agree with the trial court's view that the proposed evidence of Sullivan's problems with anger, drugs, family relationships, and arrests for theft and drugs amounted to no more than generalized propensity evidence that fails to show the required nexus with the charged crime. See Condon, 72 Wn. App. 638, 647. The same is true regarding the proposed evidence of Sullivan carrying firearms or not appearing at scheduled events, which provided at most a basis for speculation. See State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989). In addition, Johnson could not show how evidence of the anonymous phone call or other components of his proffer could be admitted over hearsay objections. And while Johnson contends on appeal that he offered strong motive evidence, his trial counsel expressly acknowledged difficulty showing any clear motive.

We note that the anonymous tip also referenced supposed threats against Patricia by another of her siblings.

Counsel wrote, "Jordan's motivations had complex and sometimes unpredictable causes." Although counsel speculated a motive was related to the inheritance of the house, for this counsel relied only on a general family understanding that Ola at one time wished the house to go to Sullivan's mother Alicia, and an unsupported assertion that Sullivan once told an unnamed street friend that an unidentified house would be his some day. Counsel offered no proof that Sullivan ever was aware of the quitclaim deed or the loans. Equally speculative was the alternative motive counsel suggested, that Sullivan went to the house begging for money, was turned down and teased about his sexual orientation and exploded in fury.

We also agree with the trial court that the evidence involving the car was central to the defense motion because that was the one portion of the proffer in which counsel actually attempted to show a clear link between Sullivan and the crime. Counsel identified a particular 1976 Dodge Dart that was registered to a brother of Sullivan's close friend Dominick Arcasa. In a statement given during the initial police investigation, Patricia's neighbor Steven Marshall had described an older model car with three passengers speeding down a nearby street and through the alley behind the house at approximately 11:30 on the night of the murder. While Marshall described the car as an Impala or Bel-Aire, and could not identify or describe its occupants, defense counsel asserted that Marshall had recently identified a photograph of the Dodge Dart to an investigator as the car he had seen. Counsel offered several other witnesses who associated Sullivan with the Dart in later years and argued there was a reasonable inference that Sullivan was fleeing the murder scene in the car when Marshall saw it.

At the hearing on the defense motion, however, the State presented additional evidence. Undisputed documentary evidence showed Arcasa's brother was not the registered owner of the car in 1999 at the time of the murders. Police contacted the former owners, who lived near Omak. In recorded police interviews, they gave statements that the car was with them at the time and was never in Seattle. Moreover, Marshall's initial statement to police after the murder described the car driving past Patricia's house. After receiving the defense memorandum, prosecutors reinterviewed Marshall. He again stated that the car he saw never stopped at Patricia's house. He also stated that in his interview with the defense investigator, he had only described the picture of the Dart as similar to the car he saw and had not identified it.

As the trial court recognized, these facts created two substantial problems for the defense. If the car was not in Seattle during the murder, Johnson's evidence connecting Sullivan to the car in later years did not help him. Moreover, even if Marshall's supposed identification of the picture created a fact question that he saw Arcasa's Dodge Dart that night, it was nonetheless uncontroverted that the car Marshall saw never stopped at or near Patricia's house. Because it was beyond dispute that the killer had been inside the house, evidence that provided at best a slight inference that Sullivan was in a car driving through his home neighborhood past the house did not provide the requisite clear connection to the crime. We find no abuse of discretion in the court's reasoning.

We note that despite the court's expressly authorizing defense counsel to present actual witness statements and interview reports if he believed he could controvert the State's evidence, counsel did not do so, even later during the trial counsel asked the court to reconsider.

Johnson also contends that the court erred by not allowing him to present evidence regarding Gaines, the father of Artis's two youngest children. Gaines had previously assaulted Artis and burglarized her home, and she had told police and others that he had threatened her and she feared him. Defense counsel conceded that police correctly found Gaines had the incontrovertible alibi that he was in jail, and that counsel had no proof Gaines had caused anyone else to harm Artis. Counsel nonetheless argued the evidence was admissible to challenge the thoroughness of the police investigation and to corroborate the defense theory that Artis, not Patricia, was the killer's primary target.

But proving police had not further investigated a person they knew had an alibi for the crime did not logically impeach their investigation. And the only way the evidence could support the theory that Artis was the primary victim was if it supported an inference that Gaines had caused or committed the crime, which the defense conceded the evidence did not show.

The trial court nonetheless allowed the defense to present the theory that Artis was the primary victim in expert testimony and question police investigators about it.

We find no abuse of discretion by the trial court in denying the proffered evidence and accordingly find no violation of Johnson's right to present a defense. We therefore do not address the State's alternative argument that any error was harmless.

Johnson raises several additional arguments in a pro se statement of supplemental grounds for review. These all are without merit.

Johnson's first contention, that the court violated his right of confrontation by admitting the tapes of his telephone calls with Julia, fails because her statements were not offered for the truth of the matter asserted. In re Personal Restraint of Theders, 130 Wn. App. 422, 432-33, 123 P.3d 489 (2005), review denied, 156 Wn.2d 1031, 137 P.3d 864 (2006). As to Johnson's second contention, he has not rebutted the presumption that the jury followed the proper limiting instruction the court gave regarding that evidence. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). For the same reason, Johnson's third pro se claim, ineffective assistance by his trial counsel regarding this evidence, fails because he has not shown deficient performance or resulting prejudice. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004). Johnson's fourth claim, that his counsel was ineffective by failing to request a cautionary instruction regarding confidential informant testimony, fails because the inmate witnesses against him were neither accomplices nor confidential. If Johnson means to argue his counsel should have requested a cautionary instruction on paid informant credibility, he has cited no Washington law requiring such an instruction and thus again fails to demonstrate either deficient performance or prejudice. See State v. Walker, 24 Wn. App. 78, 82-83, 599 P.2d 533 (1979). Finally, Johnson's claim of cumulative error fails because he has not demonstrated prejudice from any errors to accumulate.

Affirmed.


Summaries of

State v. Johnson

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1041 (Wash. Ct. App. 2007)
Case details for

State v. Johnson

Case Details

Full title:THE STATE OF WASHINGTON, Respondent, v. MELVIN MARCUS JOHNSON, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 19, 2007

Citations

137 Wn. App. 1041 (Wash. Ct. App. 2007)
137 Wash. App. 1041