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Shonda Nicole JOHNSON

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: The victim had filed a bigamy case against her
Number of victims: 1
Date of murder: November 30, 1997
Date of birth: September 30, 1969
Victim profile: Her husband, Randy McCullar
Method of murder: Shooting
Location: Jasper, Walker County, Alabama, USA
Status: Sentenced to death on October 22, 1999
 
 

 
 

Johnson, Shonda Nicole (aka: Richards): White; age 28 at crime and now age 33 (DOB 9-30- 1969); murder of white male (1 of her 3 husbands) in Jasper in 1997; sentenced on 10-22-1999 (jury).


Shonda Nicole Johnson (A.K.A. Richards)

Johnson was convicted in 1999 of the shooting death of Randy McCullar in a church parking lot in rural Walker County on Nov. 30, 1997. The capital murder charge involved killing a person who had been a grand jury witness.

Testimony at the trial showed that Johnson was still married to McCullar when she married William Howard McIntyre Jr. in 1995 and when she married Tim Richards in 1997. McCullar testified before a grand jury and got Johnson prosecuted for bigamy. He also filed for divorce and custody of their child three weeks before he was killed.

Johnson was so mad that she tried to get a former boyfriend she lived with between the McIntyre and Richards weddings to kill McCullar, but he wouldn't. Then she persuaded Richards to cut McCullar's tire while he was in a lounge. According to testimony, Richards and Johnson followed McCullar to a church parking lot, where Johnson gave Richards a loaded gun and got him to kill McCullar. In a plea deal, Richards testified against Johnson.


Facing execution, the polygamist wife who married FIVE men by the age of 28... and now husband number 5 is on the run after killing number 3

By Michael Zennie - DailyMail.co.uk

April 11, 2012

At age 28, Shonda Nicole Johnson found herself divorced twice and remarried to three men -- at the same time.

But five husbands became one too many for the Alabama woman after husband number three found out about her polygamist life. Randy McCullar filed for divorce and turned her into police.

She didn't take his rejection well, authorities say. After he testified in front of a grand jury, she convinced her fifth husband, Timothy Richards, to murder him.

Now, Johnson is on death row and Richards, convicted of murder, is on the run after escaping from a minimum security prison Sunday.

The search for Richards, who was eligible for parole next year, has revealed the story of Johnson's bizarre, and violent, love life.

According to authorities, Johnson targeted Mr McCullar in 1997 to silence his testimony about her polygamist ways. Initially, she asked an ex-boyfriend to kill him -- a man she had lived with in between meeting husbands number four and five.

It's unknown what charms Johnson had to attract her many lovers. She had bleached blond hair and crooked teeth. She almost never worked and seemed to run out on her husbands as soon almost as soon she married them.

She was a high school dropout who had four children from four different men.

But in rural Walker County, Alabama, she was a small-town siren.

After two short marriages and divorces, she married McCullar in 1995.

'They were just as happy as they could be, couldn't keep their hands off each other,' Rev Jerry Haley, who performed the ceremony, told the Associated Press.

When they separated, it took only three months for Johnson to find a new man, Bill McIntyre, and married him, too -- despite still being wedded to McCullar.

A year later, when McCullar was hospitalized with AIDS, she left him and moved in with a boyfriend. She was pregnant with his child within three months.

When McCullar filled bigamy charges against her, she asked her new flame to kill him. He wouldn't, so she found a man who would -- Timothy Richards.

The plotted the murder for months, authorities say. In 1997, they slashed his tires after stalking McCullar at a bar. When he stopped at a church to change the flat, Johnson handed Richards a hunting rifle and told him to shoot.

Richards pleaded guilty in 2000 to murdering Randy McCullar, one of his wife's two other husbands, as he changed a tire in the parking lot of a church in the small city of Jasper.

Richards avoided the death penalty by testifying against his wife, providing investigators information about the plot.

'I don't think Tim would have ever spent a day in jail if he hadn't met Shonda,' Walker County sheriff's detective Joey Vick told the AP.

Thanks, in part, to Richards cooperation, Johnson was convicted and sentenced to death. She is one of just four women awaiting execution in Alabama.

Under the terms of his plea agreement Richards received a life sentence in prison, but would have been eligible for parole in May 2013 -- just 13 months away.

It's unknown why Timothy Richards slipped out of State Cattle Ranch, a prison in Greensboro, early Sunday. He was found missing from his bunk during an inmate headcount taken at 1.30am.

At least one local official, who fears for the safety of his staff and the victim's family, says a minimum-security prison is no place for a convicted murderer to be held.

US Marshals and local police have fanned out across central Alabama where Richards, 42, disappeared but have been unable to find any trace of him yet.

Prison officials tracked Richards' scent with dogs, though the trail eventually ran out, according to Department of Corrections spokesman Brian Corbett.

Corbett would not comment on how Richards escaped.

Thanks, in part, to Richards cooperation, Johnson was convicted and sentenced to death. She is one of just four women awaiting execution in Alabama.

In Richards' home town, Sheriff Mark Tirey told the Jasper Daily Mountain Eagle newspaper that his deputies were on 'high alert' searching for the convict.

'We’ve been checking local addresses that would be familiar to him -- the homes of family members and places he’s been associated with in the past,' he said.

Richards was being housed at the State Cattle Ranch, which is a farm run by the Department of Corrections and once raised cows to feed to inmates across the state. However, state no longer operates a farm at the facility.

Walker County District Attorney Bill Adair, who prosecuted Richards, said he is worried for his staff and the family of Richards' victim, told the Daily Mountain Eagle.

Richards is a large man, standing six-foot-four and weighing 230 pounds.

He blasted stat budget cuts that landed Richards on a minimum-security prison, rather than a high-security lockup.

'The cattle ranch shouldn’t be a place where the state puts murderers,' he told the newspaper.
Corbett, the prisons spokesman, said Richards was transferred to the farm, which is a minimum-security facility, in July 2010 because he was nearing a possible release date.

Before his escape, Richards had a clean record in prison with no disciplinary problems, Corbett said.


Inmate recants in bizarre Alabama murder case

By Jay Reeves - Asociated Press

Jacksonville.com

January 25, 2008

BIRMINGHAM, Ala. - A Walker County man who pleaded guilty to murdering one of his wife's three husbands in a bizarre show of love has recanted his confession, which helped send the woman to Alabama's death row.

Tim Richards said he was goaded by his lawyer into giving a false confession and that Shonda Nicole Johnson alone carried out the killing of Randy McCullar, who had filed a bigamy case against her.

Richards, who pleaded guilty and testified against Johnson at her capital murder trial in 1999, was sentenced to life with the possibility of parole. Johnson, married to three men at the same time, was sentenced to death for having one kill another while the third died of AIDS.

But now Richards claims Johnson killed McCullar on her own.

"My lawyer told me we needed to stick with the story ... to get her," Richards said in a telephone interview Thursday with The Associated Press from Kilby prison. "I have evidence to prove my innocence."

Walker County prosecutors did not immediately return messages seeking comment, but Richards' former lawyer denied exerting any undue influence.

"I can assure you he wasn't coerced by me to confess to it," attorney Ronald Sandlin said Friday. "That happened in 2000, and Mr. Richards signed a plea agreement stating that he was the shooter."

Richards has filed documents in federal court seeking to get his guilty plea and life sentence thrown out. State courts have already turned aside his challenges.

Richards and Johnson, both 38, are imprisoned for a murder that drew notice for its odd circumstances. Now Richards says he no longer loves Johnson, but he would like to help her if he could.

In his court testimony during Johnson's capital murder trial and later during a jailhouse interview with AP in 2000, Richards detailed how he and Johnson followed McCullar in his car to a rural church parking lot, where McCullar stopped to change a flat tire. Richards said he had cut the tire while McCullar was in a bar, part of the plot to kill him.

McCullar had filed a bigamy case against Johnson, and Richards said she thrust a deer rifle into his hands and urged him to shoot when McCullar stopped to change the tire.

"She just kept saying, `Do it! Do it!,'" Richards said in the AP interview. "The last thing I remember seeing was him falling."

But now Richards says all that was a lie. In an affidavit filed in U.S. District Court in November, Richards said he pulled into the church parking lot alone after Johnson already had murdered McCullar.

"She threatened to kill me if I ever told this story," Richards said in the statement.

In the telephone interview Thursday, Richards said he never would have confessed without pressure from Sandlin, a claim the attorney denied.

"He is eligible for parole one day and his wife got the death penalty. That's all I want to say about it," Sandlin said.

An appeals court overturned Johnson's death sentence, but the Alabama Supreme Court reinstated it in 2006.


Ultimate Betrayal Unravels a Woman's Tangled Life

Murder: Shonda Johnson always managed to find a man to do her bidding. That talent landed her on death row

By Jay Reeves - Los Angeles Times

JASPER, Ala. — Shonda Johnson had a way with the men no one could explain.

Her blond hair came from a bottle, and her teeth were so crooked she wouldn't smile for photos. A high school dropout who rarely worked, she dreamed up a glitzy past for herself: head cheerleader, homecoming queen, high-paid paramedic.

Despite the plain appearance and the lies, there was something about Johnson. She was a small-town siren who had no problem attracting men in Walker County, a tough coal-mining area just north of Birmingham.

When Johnson quit school at age 18 and needed someone to support her, she married within a few months. When she needed a father for an unborn child conceived with another man, she found one. Twice.

And police say when she needed a man to commit murder, she found him too. Johnson, 31, is awaiting execution in Alabama's electric chair for a bizarre crime of passion. Married to three men at the same time, she was convicted of getting one to murder another as the third died of AIDS.

The tale is one of tangled relationships and deadly intentions, all revolving around a petite mother of four described by her family as naive and childlike.

"In certain ways Shonda had her own little world. But that doesn't make her a bad person," said her sister, Christi Johnson.

Police say not only was Johnson bad, she made those around her bad--particularly Tim Richards, her fifth husband, who pleaded guilty to killing husband No. 3, Randy McCullar, in a show of love.

McCullar was fatally shot in the head with a deer rifle as he changed a tire outside a rural church on Nov. 30, 1997. The machinist and aspiring pilot was killed after filing a bigamy charge against Johnson, who stood to lose custody of her children if convicted.

"I don't think Tim would have ever spent a day in jail if he hadn't met Shonda," said Walker County sheriff's detective Joey Vick.

Johnson's attorney, Steve Jones, refused to let her speak with the Associated Press, saying the case is on appeal.

Johnson had already wed and divorced two husbands legally before she went on her marrying spree. The first husband, Jeff Nelson, twice filed police reports during their six-year marriage claiming Johnson tried to kill him, but no charges were filed. The second husband, Jimmy Tidwell, divorced her after only five months.

Johnson and McCullar married on June 24, 1995, during a small ceremony at a white church within a couple of hundred yards of his parents' home. The two met at the BC Lounge, a country bar that both frequented. Johnson would wear short skirts or jeans; McCullar liked his cowboy boots and western shirts.

"They were just as happy as they could be, couldn't keep their hands off each other," said the Rev. Jerry Haley, who performed the ceremony.

The bliss didn't last long. McCullar quickly grew tired of working every day while his bride played at the lake with her friends, his parents say.

"She'd put on her bikini, throw a towel around her and go to the beach. He was working and she was out partying," said his mother, Betty McCullar. "Randy was a Christian, and he just couldn't take a life like that."

The McCullars weren't all that surprised when the couple separated. But they were stunned by a telephone call they received only three months after the two had wed: A friend of McCullar's had seen Johnson marrying another man, Bill McIntyre, in a courthouse ceremony. McCullar and Johnson were still legally married.

Johnson and McIntyre met while working at a sleeping-bag plant, one of the few places she ever worked. Johnson, who already had a son by her first husband, was carrying McCullar's child when she put on an ivory-colored dress to marry McIntyre.

"He told us he thought that was the girl God meant for him," said McIntyre's mother, Freida McIntyre. "Bill talked her out of having an abortion. He carried her to her doctor appointments and was in the delivery room."

McIntyre was completing a home-study course to become a preacher in addition to supporting Johnson by working at the factory, where she was employed only two weeks, but his health started failing within a year. Despite telling in-laws she was a paramedic making $52,000 annually, Johnson began selling McIntyre's compact discs for money to go to bars.

On Aug. 2, 1996, McIntyre went to the hospital with the onset of the disease that would later kill him, AIDS. That was the last day he and Johnson lived together as man and wife. McIntyre went back to his parents' home, and Johnson went on to the next man.

Ronnie Webb moved in with Johnson, and she became pregnant about three months after she separated from McIntyre. By then, McCullar had gotten wind of Johnson's new men and filed the bigamy charge.

Johnson was looking for a way to stay out of prison and keep her kids when she went to the BC Lounge in the spring of 1997 and met Tim Richards, a round-faced delivery truck driver described by both police and his adoptive parents as simple and trusting. Richards' first marriage had failed, and he was lonely.

"I found out she was pregnant, and I went over and patted her on the stomach and said, 'We're all going to have to take care of this,' " Richards recalled in a jailhouse interview. In Johnson, Richards said, he saw a single mom who needed help. He fell in love that night.

"She laughed a lot. She's pretty to me," said Richards, who initially believed her stories about being a high school beauty queen, an "it" girl. "We dated about four weeks, and she asked me to move in."

While still married to both McCullar and McIntyre, Johnson married Richards along the bank of a bubbling brook in the Smoky Mountains of Tennessee. Her world started caving in within weeks.

Johnson didn't put up a fight as her first husband won custody of their son by claiming she was an unfit mother who left her children with neighbors for extended periods of time. Meanwhile, pressure was starting to build as the bigamy charge filed by McCullar wound its way through the courts.

It was then, Richards said, that the murder plot began.

Johnson told Richards and her family that she and McCullar were never really married because the ceremony was held before they had a license. She accused McCullar of raping her while they were together. She began talking about how she'd lose custody of her other two children if convicted of bigamy.

"She finally came out and said, 'We've got to kill him, get him out of the picture,' " Richards said. "I had to make a choice between losing the woman I really loved or doing it. I had to do it to prove I loved her."

The two stalked McCullar for weeks and finally settled on a plan. They lay in wait one night outside the BC Lounge, where McCullar was drinking. Richards slashed one of McCullar's tires so he'd have to stop on the isolated two-lane road between the bar and home.

The plan worked.

Realizing his tire was flat, McCullar pulled into the gravel parking lot of Harmony Baptist Church. Richards pulled in beside him, with Johnson in the passenger seat. She'd already put a shell in the chamber of Richards' hunting rifle, according to testimony at her trial.

Richards said Johnson shoved the weapon into his hands. He pointed it at the head of McCullar, who was kneeling with a lug nut in his hand just a few feet away.

"She just kept saying, 'Do it! Do it!,' " Richards said. "The last thing I remember seeing was him falling."

Richards drove off as Johnson laughed. They threw the gun and its case off two river bridges and went back home. Richards said Johnson wanted to have sex, but all he could think about was the murder.

Johnson was questioned only hours after the slaying and denied any involvement, but she changed her story repeatedly during a series of interviews with police. In the last version, she said the killing was all Richards' idea but admitted she was in the car with him at the time.

This explanation makes sense to Johnson's longtime friend, Bobbie Feltman, who says each of Johnson's husbands except McIntyre beat her.

"She tries to treat her husbands like the Bible says, but then they run over her," Feltman said.

But investigators didn't buy Johnson's story, so they turned to Richards. He, too, denied the killing at first but broke down after investigators played him tapes in which his wife pinned the blame on him. "I just started crying," he said.

Believing Johnson was really behind the killing, prosecutors offered Richards a deal: In exchange for his testimony against Johnson in her capital murder trial, he could plead guilty to simple murder and have a chance at parole.

Richards agreed and testified against Johnson, who already had pleaded guilty to bigamy. Jurors didn't buy defense claims that Richards--who once wrote a note threatening one of Johnson's boyfriends, David Prescott--was the true aggressor in the slaying.

Perhaps just as devastating as Richards' testimony was that of Prescott and Ronnie Webb, who both told jurors Johnson had tried to get them to kill McCullar before settling on Richards.

Johnson was sentenced to death on Jan. 19 of this year, about two weeks after McIntyre died of AIDS. Their marriage was annulled more than a year after she married Richards.

Johnson's four boys, all by different men, live with the fathers' families, with the exception of Tim Richards' son, who was conceived in February 1998, two months after the slaying but before Johnson was jailed on capital murder charges.

The boy lives with Johnson's mother, Wanda, who defiantly rejects the bad things being said about her daughter. "She's not a bigamist. She didn't kill nobody," Wanda Johnson said.

Tim Richards still loves Shonda Johnson, despite all the men, the pain and the death. It's there in his eyes, past the tears.

Looking down at his handcuffs and orange jail uniform, Richards tries to come to terms with all he has done. He is the one who should be on death row, he said, not Johnson.

"I took one life with a gun, and I took another one just by speaking," Richards said. "That's hard to deal with."


Supreme Court of Alabama

Johnson v. State

Ex parte State of Alabama. (IN RE: Shonda Nicole JOHNSON v. STATE of Alabama).

1041313.

October 06, 2006

Troy King, atty. gen.; Kevin C. Newsom, deputy atty. gen.; and Corey L. Maze, asst. atty. gen., for petitioner.Edward S. Stoffregen III of Newman, Miller, Leo & O'Neal, Birmingham; and Stephen H. Jones, Bessemer, for respondent.

Shonda Nicole Johnson was convicted of capital murder for the killing of Randy McCullar. The murder was made capital because it arose out of or was related to McCullar's role as a witness for the State of Alabama before a grand jury in a bigamy prosecution against Johnson. See § 13A-5-40(a)(14), Ala.Code 1975. The jury, by a vote of 11-1, recommended that Johnson be sentenced to death. The trial court followed the recommendation and sentenced Johnson to death. The Court of Criminal Appeals reversed Johnson's conviction and remanded the case for a new trial on the basis that no limiting instruction had been given on the use by the jury of evidence of Johnson's prior bad acts. Johnson v. State, [Ms. CR-99-1349, March 11, 2005] --- So.2d ---- (Ala.Crim.App.2005). We granted the State's petition for a writ of certiorari; we reverse the judgment of the Court of Criminal Appeals and remand the case.

Facts and Procedural History

The Court of Criminal Appeals set forth the trial court's written findings of fact summarizing the crime and Johnson's participation in it:

“ ‘In the early morning hours of November 30, 1997, David O'Mary, a vice president of First National Bank of Jasper, was traveling down Alabama Highway 195 in Walker County. As he drove past the Harmony Missionary Baptist Church, he noticed what appeared to be a man lying next to a parked car in the church parking lot. He noticed that the man was not moving and pulled into the parking lot to investigate. Upon approaching the person, O'Mary noticed that the man had gray color to his complexion. Upon further investigation, he saw that the man had been shot and was, in fact, dead. He notified the authorities of his discovery.

“ ‘Two nights prior to this discovery, the defendant, Shonda [Nicole] Johnson (Richards), and her codefendant/husband, Tim Richards, [1] were having Thanksgiving dinner at the home of Audrey Gray, the sister of Mr. Richards. At the conclusion of the meal and as they were about to leave, the defendant, Shonda Johnson, stated that she and her husband were going “headhunting” and stated that they had a gun in the back of the car. The defendant, Shonda Johnson, and her husband, Timothy Richards, on an earlier visit, discussed the fact that Randy McCullar (later the victim in this matter) was taking the defendant back to court to get custody of their son, Chad. In the conversation, in the presence of Mrs. Gray, there was some mention of the defendant, Shonda Johnson, being raped by Mr. McCullar. When Mrs. Gray realized that they were serious, she told her brother “not to be stupid.”

“ ‘The Saturday after Thanksgiving, 1997, the defendant and Timothy Richards hired a babysitter and went to the Kooler, a restaurant in Jasper, Alabama. They asked for a menu, but were told that the kitchen was closed. They went back to their apartment in Jasper. After a while they both decided to go to the BC Lounge, a Jasper night spot. [Shonda Johnson] had told Richards that Randy McCullar would leave the lounge at 12:00 to 12:30 A.M. and that would be a good time to get rid of him.

“ ‘When they arrived at the BC Lounge they spotted [McCullar's] car. Timothy Richards got out of his car and sliced the tire of McCullar's car. McCullar came out of the lounge. He appeared to be drunk. He got in his car and drove away from the parking lot. At this point the couple lost McCullar. They drove around Jasper until they found him at the Omelet Shoppe in Jasper. When McCullar left the Omelet Shoppe, they followed him traveling north on Highway 195 toward Double Springs in Winston County.

“ ‘At a point the defendant, Shonda Johnson, saw that McCullar had pulled into a church parking lot. They turned around, went to the parking lot of the church, and pulled up to McCullar. Words were exchanged between Johnson and McCullar. Johnson had put shells in the rifle when they were en route following McCullar. As they pulled up to the scene, she “bolted the shells into the chamber.” She then “shoved” the weapon into the hands of Richards. She said, “[D]o it, do it, get it over it.” Richards then point[ed] the gun at the head of McCullar and fire[d] the gun. While backing out of the parking lot, the defendant, Johnson, was laughing and smiling.

“ ‘Johnson and Richards returned to their apartment in Jasper. After a while in the apartment, they both got in the car and drove to Littleton's bridge near Good Springs, Alabama. Richards threw the rifle off the bridge into the river. They later did the same thing with the gun case at Baker's Creek, which is located in the same area of the county.

“ ‘They again returned to their apartment[.] Shonda Johnson wanted to have sex, but Richards could not handle it. Richards stayed up all night. Johnson went to sleep.

“ ‘Prior to her “marriage” to Tim Richards, the defendant had a live-in relationship with Ronnie Webb. This relationship started in September 1996. After about a month into this relationship, Randy McCullar took a warrant for [Shonda Johnson] charging her with bigamy. After this occurred, [Shonda Johnson] constantly wanted “somebody to do away with Randy McCullar or have something done with him” according to Webb. At one point in this relationship [Johnson] talked about killing McCullar. She even suggested that Webb get some dynamite and do it right then.’ ”

Johnson, --- So.2d at ----. Regarding McCullar's role as a witness before the grand jury on the bigamy charge against Johnson, the Court of Criminal Appeals stated:

“[O]n June 24, 1995, Johnson and McCullar participated in a wedding ceremony conducted by the preacher from McCullar's church. Just before the ceremony, McCullar contacted the preacher and indicated that he was quite upset because he had learned that Johnson's divorce was not final and would not be final before the wedding ceremony took place. The preacher agreed that the ceremony would be a ‘practice’ ceremony, and he informed McCullar that Johnson and he should come to the preacher's home after Johnson's divorce was final to again take the vows and be legally wed. On July 11, 1995, a marriage certificate for McCullar and Johnson was filed in the Winston County Probate Court Clerk's office. The couple remained together only a matter of months, and, on September 29, 1995, Johnson married William Hayward McIntyre, Jr., while still legally married to McCullar. Therefore, McCullar filed a bigamy complaint and obtained an arrest warrant against Johnson. Johnson was arrested and subsequently indicted for bigamy by the Winston County grand jury. [2] McCullar had been listed as a witness on the arrest warrant against Johnson, and he testified before the grand jury during its proceedings. There was testimony McCullar was considered the prosecutor's main witness in the bigamy case and, further, that without his testimony it would be extremely difficult to gain a conviction against Johnson for bigamy. It was during this time that Johnson attempted to enlist the help of Ronnie Webb and David Prescott to hurt or kill McCullar. On May 10, 1997, while still legally married to McCullar, Johnson married Tim Richards; Johnson insisted that they go to Gatlinburg, Tennessee, to be married. Richards knew nothing of Johnson's prior marriage to McCullar. Shortly after their marriage, Johnson began prompting Richards to kill McCullar. On November 6, 1997, McCullar filed for a divorce and, as part of the divorce complaint, he sought custody of his child, Chad McIntyre, and requested a DNA paternity test. After McCullar had filed the bigamy charges against Johnson, he received a large legal settlement resulting from an automobile accident with a logging truck, wherein he had suffered serious injuries. Johnson had informed Richards of the settlement and had told him that, should McCullar die, the money would go to Chad or to her. In late November 1997, just following Thanksgiving, Johnson and Richards planned and carried out the shooting death of McCullar.”

--- So.2d at ----.

During Johnson's capital-murder trial the trial court admitted evidence of her bigamy conviction and her prior bad acts, which included evidence of adulterous relationships in which she had attempted to solicit her partners to assault or to murder McCullar; evidence indicating that she had attempted to enlist her partners' help in hurting McCullar through sympathy by claiming that McCullar had raped and beaten her; evidence indicating that she had taken or led her partners by McCullar's home on numerous occasions hoping to prompt an altercation; and evidence that she had manipulated Richards in the hope of prompting an altercation with David Prescott, with whom she had previously had an affair. Johnson did not request a limiting instruction relating to this evidence.

In oral argument before the Court of Criminal Appeals, Johnson argued that the trial court had erred in admitting evidence of her bigamy conviction and of her prior bad acts. The State argued on appeal that evidence of Johnson's bigamy conviction and of her prior bad acts was properly admitted because the conviction and the prior bad acts constituted the res gestae of the offense and such evidence was relevant to prove Johnson's motive and intent to commit the offense.

The Court of Criminal Appeals held that evidence of Johnson's bigamy conviction and her prior bad acts was admissible for limited purposes as exceptions to the general rule excluding such evidence. See Rule 404, Ala. R. Evid., and Charles W. Gamble, McElroy's Alabama Evidence § 69.01(1) ( 5th ed.1996). The Court of Criminal Appeals explained that evidence of Johnson's bigamy conviction was properly admitted as proof of motive and as a necessary element of the capital offense with which Johnson was charged, i.e., murder when the victim had testified as a witness in a criminal proceeding and the murder is related to the victim's role as a witness, § 13A-5-40(a)(14), Ala.Code 1975. Johnson, supra. Additionally, the Court of Criminal Appeals stated that evidence of Johnson's prior adulterous relationships and evidence indicating that she attempted to solicit her partners to assault or to murder McCullar, including evidence that she sought to enlist their support through sympathy and that she had steered the men by McCullar's residence in an attempt to provoke an altercation, were “admissible as proof of the unbroken chain of events leading up to the homicide.” Johnson, --- So.2d at ----. The court also explained that evidence of Johnson's prior adulterous relationships and her threats and proddings to enlist the aid of the men with whom she was having the relationships to kill McCullar was admissible because it “tended to explain and relate to the killing; those acts were a part of one continuous transaction wherein the murder became the culmination of all of the circumstances. While somewhat peripheral, those acts were all links in the chain of events culminating in the murder.” --- So.2d at ----. Finally, the Court of Criminal Appeals stated that evidence indicating that Johnson had prompted an altercation between Richards and Prescott was admissible because it tended to explain “the relationship between the coconspirators and illustrated the nature of Johnson's conduct as a catalyst in the murder” and was “relevant to show [Johnson's] state of mind, motive, and intent at the time of the offense.” --- So.2d at ----.

Having determined that the evidence regarding Johnson's bigamy conviction and her prior bad acts was admissible, the Court of Criminal Appeals then considered whether Johnson was entitled to a limiting instruction as to that evidence. Although Johnson did not request a limiting instruction, she nevertheless argued to the Court of Criminal Appeals that she was entitled to a limiting instruction informing the jury that it could not consider the evidence as an indication of bad character or to show that she had criminal propensities. The State argued on appeal that no limiting instruction was required because the evidence of Johnson's bigamy conviction and her prior bad acts was not admitted to impeach Johnson and, further, because no limiting instruction is required when the evidence of the prior bad acts or a prior conviction establishes intrinsic facts of the present offense rather than collateral matters. Because no objection had been made on this basis at trial, the Court of Criminal Appeals conducted a plain-error review of the issue. Rule 45A, Ala. R.App. P.

The Court of Criminal Appeals undertook a detailed discussion of this Court's decisions in Ex parte Minor, 780 So.2d 796 (Ala.2000), and Snyder v. State, 893 So.2d 482 (Ala.2001), and, concluding that Johnson was entitled to a limiting instruction regarding the evidence of her prior bad acts, reversed Johnson's conviction. The Court of Criminal Appeals specifically stated:

“In the present case, the trial court gave no limiting instructions concerning the use of the evidence of Johnson's prior bad acts to the jury. The jury was neither informed as to what limited purposes the evidence could be considered [for] nor informed as to what purposes the evidence could not be considered [for]. After hearing and seeing all of the evidence of Johnson's sexual relationships and manipulations, it is highly probable that the jury could have used that information to determine that Johnson was of bad character and poor morality. Because in this case the jury may have, without having been instructed otherwise, based its conviction on its belief that Johnson is a person of bad character, we cannot say that Johnson received a fair trial. Because we find plain error in the absence of limiting instructions informing the jury of the proper purposes for which the evidence could be considered or the purposes for which that evidence could not be considered, the judgment of the trial court is due to be reversed and the cause remanded for a new trial.”

Johnson, --- So.2d at ----. Thus, the basis of the Court of Criminal Appeals' holding was that the trial court had erred in not sua sponte giving a limiting instruction on the use by the jury of evidence of Johnson's prior bad acts, i.e., evidence of her “sexual relationships and manipulations,” and not that the trial court had erred in failing to give such an instruction as to evidence of her bigamy conviction. --- So.2d at ----.

This Court granted certiorari review to address the State's contention that the decision of the Court of Criminal Appeals is in contravention of this Court's holdings in Ex parte Minor and Snyder and to determine whether the Court of Criminal Appeals erred in finding plain error in the trial court's failure to sua sponte give a limiting instruction to the jury regarding the evidence of Johnson's prior bad acts.

Standard of Review

Rule 105, Ala. R. Evid., provides: “When evidence which is admissible ․ for one purpose but not admissible ․ for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.” The Court of Criminal Appeals properly concluded that the evidence of Johnson's prior bad acts was admissible for the reasons explained earlier in this opinion; the admissibility of that evidence is not under review here. However, as mentioned above, Johnson did not request a limiting instruction relating to the evidence of her prior bad acts, and the trial court did not give a limiting instruction as to that evidence. We note that Rule 39(a)(2)(D), Ala. R.App. P., allows this Court, when reviewing a death-penalty case, to address “any plain error or defect in the proceeding under review, whether or not brought to the attention of the trial court ․ and to take appropriate appellate action ․ whenever such error has or probably has adversely affected the substantial rights of the petitioner.” Because the death penalty has been imposed in this case, this Court will notice any “plain error,” regardless of whether an objection was made before the trial court. Ex parte Land, 678 So.2d 224 (Ala.1996). Plain error arises when the claimed error seriously affects the defendant's substantial rights and has an unfair prejudicial impact on the jury's deliberations. Ex parte Martin, 931 So.2d 759 (Ala.2004).

Discussion

In Ex parte Minor, the defendant, Minor, was convicted of the capital murder of an infant who died as the result of shaken-baby syndrome. Minor testified on direct examination that he had prior convictions for assault in the second degree, possession of cocaine, and for rape in the second degree. On cross-examination the State drew increased attention to the prior convictions by delving into the details of those convictions in an attempt to demonstrate “that Minor failed to take responsibility for his actions.” Ex parte Minor, 780 So.2d at 804.3 Minor did not request a limiting instruction as to the proper scope of the jury's consideration of that evidence. Additionally, the trial court gave only a vague instruction regarding the use of impeachment evidence and failed to instruct the jury that the evidence of the prior convictions could not be considered as substantive evidence that Minor committed the capital offense with which he was then charged. This Court framed the issue presented as “whether, absent a request or an objection by the defendant, the trial court has a duty to instruct the jury that evidence of prior convictions is not to be considered as substantive evidence of guilt.” Ex parte Minor, 780 So.2d at 800. In holding that the trial court “does have such a duty in a capital-murder case” this Court stated:

“[T]his Court has acknowledged the inherently prejudicial nature of evidence of a defendant's prior convictions. Cofer v. State, 440 So.2d 1121, 1124 (Ala.1983) (‘[e]vidence of prior bad acts of a criminal defendant is presumptively prejudicial to the defendant’). ‘The general exclusionary rule bars the state from introducing evidence of an accused's prior criminal acts for the sole purpose of proving the propensity of the accused to commit the charged offense.’ Hobbs v. State, 669 So.2d 1030, 1032 (Ala.Crim.App.1995). Thus, evidence of prior convictions is admissible only for limited purposes. ‘The basis for the rule lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them. Most agree that such evidence of prior crimes has almost an irreversible impact upon the minds of the jurors.’ Cofer, 440 So.2d at 1123 (quoting Charles W. Gamble, McElroy's Alabama Evidence § 69.01 (3d ed.1977)). The general exclusionary rule ‘protects the defendant's right to a fair trial’ by seeking ‘to prevent conviction based on a jury belief that [the] accused is a person of bad character. The jury's determination of guilt or innocence should be based on evidence relevant to the crime charged.’ Cofer, 440 So.2d at 1123 (citation omitted). Thus, it naturally follows that the trial court should take all necessary precautions to ensure that when evidence of a defendant's prior convictions is admitted into evidence, the jury is properly instructed on the purpose for which it may consider that evidence. This includes instructing the jury, sua sponte, that it may not consider the evidence of prior convictions as substantive evidence that the defendant committed the charged offense.

“․

“․ The trial court did not tell the jury that the evidence of Minor's prior convictions could not be considered as substantive evidence that he committed the crime charged. Because the jurors were not so instructed, they were free to consider the prior convictions for any purpose; thus, they could consider the probability that Minor committed the crime because he had demonstrated a prior criminal tendency. Allowing the jury to make such use of the evidence was highly prejudicial and constitutes reversible error. See Randolph v. State, 348 So.2d 858 (Ala.Crim.App.1977) (conviction reversed because the trial court failed to adequately distinguish between impeachment evidence and substantive evidence).

“The failure to instruct a jury in a capital-murder case as to the proper use of evidence of prior convictions is error, and that error meets the definition of ‘plain error.’ That failure is ‘so obvious that [an appellate court's] failure to notice it would seriously affect the fairness or integrity of the judicial proceedings.’ Womack, 435 So.2d at 769․ Considering the presumptively prejudicial nature of evidence of a defendant's prior convictions, we consider it incumbent on the trial court to ensure that the jury was instructed on the proper use of such evidence. We conclude that the failure of the trial court to instruct the jury that it could not use such evidence as substantive evidence of guilt ‘has or probably has' substantially prejudiced Minor; thus, it satisfies the plain-error standard. See Rule 39(a)(2)(D) and (k), Ala. R.App. P.”

Ex parte Minor, 780 So.2d at 802-04.

In Snyder, the defendant, Snyder, was convicted of three counts of capital murder. On direct examination Snyder testified that he had previously pleaded guilty to second-degree theft of property. During cross-examination by the State, the prosecutor briefly alluded to the earlier conviction without further questioning Snyder regarding the conviction. Although the trial court instructed the jury that it could consider evidence of Snyder's prior conviction in determining what credibility to give his testimony, the Court of Criminal Appeals nevertheless concluded that plain error had occurred because the trial court had failed to specifically instruct the jury that it could not consider Snyder's prior conviction as substantive evidence that he had committed the crimes with which he was charged.

This Court in Snyder framed the issue on appeal as whether the trial court erred “by not specifically instructing the jury that it could not use prior-conviction evidence as ‘substantive evidence of guilt.’ ” Snyder, 893 So.2d at 486. This Court in Snyder limited the holding of Ex parte Minor by stating that although the Court in Ex parte Minor found “plain error in the trial court's failure to instruct the jury on the purpose of the evidence of Minor's prior conviction, the Court's holding in that regard did not establish a per se rule” regarding such evidence and that “each inquiry regarding the propriety of an instruction on the use of evidence of prior convictions presented for impeachment purposes must be determined on a case-by-case basis.” Snyder, 893 So.2d at 485. This Court distinguished the facts in Snyder from those in Ex parte Minor, noting that in Ex parte Minor the prosecutor emphasized the prior-conviction evidence to the jury, whereas in Snyder the prosecutor only briefly alluded to the prior conviction on cross-examination and did not emphasize it during his closing argument, thus prompting this Court to conclude that “unlike the evidence in Ex parte Minor, the evidence of Snyder's prior conviction was presumptively prejudicial, but its impact was not egregious.” Snyder, 893 So.2d at 485. Further distinguishing Snyder from Ex parte Minor, this Court noted that the trial court in Snyder gave the jury the standard charge on its proper use of the evidence relating to the prior conviction, whereas in Ex parte Minor the trial court gave the jury no direction as to the purpose of the prior-conviction evidence. In reversing the judgment of the Court of Criminal Appeals, this Court specifically stated:

“Here, the trial court properly instructed the jury as to the purpose of the evidence of Snyder's prior conviction. If an instruction clearly informs the jury of the sole purpose of prior-conviction evidence-the witness's credibility-it is reasonable to assume that the jury would not use the evidence for any other purpose. See, e.g., Taylor v. State, 666 So.2d 36 (Ala.Crim.App.1994), aff'd, 666 So.2d 73 (Ala.1995), cert. denied, 516 U.S. 1120, 116 S.Ct. 928, 133 L.Ed.2d 856 (1996) (recognizing that jurors are presumed to follow instructions). Unlike the circumstances in Ex parte Minor, where the jury could have used the testimony for whatever purpose it desired-to determine a witness's credibility or as substantive evidence of the defendant's guilt-the trial court in this case informed the jury that the prior-conviction evidence had ‘one purpose’ and that that purpose was to determine credibility; consequently, it eradicated the necessity of informing the jury that it would be improper to use the evidence as substantive evidence of guilt. The unambiguous instruction adequately cautioned the jury, explicitly stated the sole purpose of the testimony, and eliminated the risk that the evidence would be used improperly. Therefore, the emphasis in the instruction on the one purpose of the evidence overcomes a finding that the alleged error ‘has or probably has adversely affected the substantial right of [Snyder].’ Rule 45A, Ala. R.App. P. To hold that the trial court is required to inform the jury that prior-conviction evidence cannot be used as substantive evidence, would unnecessarily limit the trial court's discretion in forming jury instructions, would restrict defense counsel's trial strategy, cf. United States v. Barnes, 586 F.2d 1052, 1059 (5th Cir.1978), and in certain circumstances may unnecessarily emphasize the prejudicial evidence. Therefore, while the instruction to the jury must state either that prior-conviction evidence can be used only for the purpose of assessing a witness's credibility or state that such evidence may not be used as substantive evidence of the defendant's guilt of the crime charged, it is not reversible error per se if the trial court does not instruct both as to the admissible purpose of the prior-conviction evidence and the purpose for which such evidence may not be considered, unless counsel requests such a two-pronged instruction and the instruction is supported by the evidence.”

Snyder, 893 So.2d at 486-87.

In Ex parte Martin, supra, the defendant, Martin, was convicted of the capital murder of his wife. The State offered, over a hearsay objection from Martin, the testimony of a friend of the victim. The victim's friend testified that the victim had told her a few days before the victim's death that if she did not hear from her in three or four days the friend was to contact the victim's parents and tell them that “he did it.” The friend also stated that in the same conversation the victim told her that the “[defendant] might not do it, [he] loves me.” 931 So.2d at 763. This Court concluded that the friend's testimony was properly admitted because it was probative of the victim's state of mind and was relevant to rebut the defendant's trial theory that the victim had committed suicide. Ex parte Martin, supra.

In addressing in Martin the issue whether plain error had occurred in the trial court's failure to sua sponte give a limiting instruction regarding the testimony of the victim's friend, this Court emphasized that the holdings of Ex parte Minor and Snyder requiring a sua sponte limiting instruction were limited to only those instances where evidence of prior convictions are offered for impeachment purposes. This Court specifically stated:

“In Ex parte Minor, 780 So.2d 796 (Ala.2000), we held that it was plain error for the trial court to fail to give, sua sponte, limiting instructions to the jury regarding its use of evidence of the defendant's prior convictions. The defendant had not objected to the evidence and had not requested an instruction that the evidence was to be used solely for impeachment purposes and not as evidence of guilt. In finding plain error, we recognized the ‘presumptively prejudicial nature of evidence of a defendant's prior convictions.’ 780 So.2d at 804. In the instant case, we are not dealing with evidence of prior convictions and their corresponding ‘presumptively prejudicial nature.’ In any event, in Snyder v. State, 893 So.2d 482, 485 (Ala.2001), we limited the holding of Minor, stating, ‘each inquiry regarding the propriety of an instruction on the use of evidence of prior convictions presented for impeachment purposes must be determined on a case-by-case basis.’ ”

Ex parte Martin, 931 So.2d at 768. Although the Court recognized that the holdings in Ex parte Minor and Snyder were limited to situations in which evidence of prior convictions were offered for impeachment purposes, the Court went on to conclude that based on the circumstances of that case, including the fact that the evidence in question was admissible for a limited purpose, the trial court's failure to sua sponte give a limiting instruction regarding the proper use of the evidence did not constitute plain error. 931 So.2d at 769.

The Court of Criminal Appeals itself has recognized the limited holding of Ex parte Minor. In Key v. State, 891 So.2d 353 (Ala.Crim.App.2002), the defendant, Key, was convicted of the capital murder of his ex-wife. The State offered evidence during the penalty phase of the trial indicating that on the day before he killed his ex-wife Key had pleaded guilty to aggravated stalking as to his ex-wife and had been sentenced to 10 years' imprisonment. The Court of Criminal Appeals held that the evidence of the stalking conviction was properly admitted to show motive for the murder. Key argued that plain error occurred when the trial court failed to give the jury a limiting charge regarding the evidence of the stalking conviction. The Court stated:

“Key argues that plain error occurred because the trial court failed to sua sponte charge the jury that evidence of his prior conviction could be considered for impeachment purposes only. Key relies on Ex parte Minor, 780 So.2d 796 (Ala.2000). The State contends that Ex parte Minor is distinguishable, because Key did not testify and because the evidence of his prior conviction was not offered for impeachment purposes. Rather, the State argues, the evidence was offered as proof of his motive to murder his ex-wife. The State's analysis is correct. In Ex parte Minor, the Alabama Supreme Court held that plain error occurred when the trial court failed to instruct the jury that evidence of Minor's prior conviction was admitted only for purposes of impeachment. As the State correctly argues, the evidence here was not offered to impeach Key as was the case in Ex parte Minor.”

Key, 891 So.2d at 366-67.

The Court of Criminal Appeals' holding here that plain error occurred in the absence of a limiting instruction to the jury as to the proper use of the evidence regarding Johnson's bad acts, i.e., her adulterous relationships, sexual manipulations, and proddings, conflicts with this Court's decisions in Ex parte Minor and Snyder.

A fundamental difference exists between the evidence of prior convictions offered in Ex parte Minor and Snyder and the evidence of Johnson's bigamy conviction and prior bad acts offered in this case. In Ex parte Minor and Snyder evidence of the defendants' prior convictions were offered for the purpose of impeaching the defendant's credibility. This Court noted the “inherently prejudicial nature” of such evidence and the “irreversible impact [of such evidence] upon the minds of the jurors” and recognized the need for a limiting instruction telling the jury that it may not consider evidence of the defendants' prior convictions “as substantive evidence that the defendant committed the charged offense.” Ex parte Minor, 780 So.2d at 802.

The evidence of Johnson's bigamy conviction and her prior bad acts were offered, not as impeachment evidence, but as substantive evidence of the crime with which she was charged. As discussed above, the bigamy conviction was offered as proof of motive and as an element of the capital offense with which she was charged-i.e., murder of a witness who had testified against her. Evidence of Johnson's prior bad acts, i.e., her adulterous relationships, sexual manipulations, threats, and proddings in order to enlist a male counterpart to assault or to murder McCullar, was offered to prove an unbroken chain of events or a single transaction that culminated in the murder of McCullar. The evidence indicating that Johnson had prompted an altercation between Richards and Prescott was necessary to explain the conspiracy between Johnson and Richards to murder McCullar and was relevant to show Johnson's state of mind, motive, and intent at the time of the offense. The Court of Criminal Appeals noted in its opinion that not only was this evidence necessary to prove the State's case, it was “highly necessary” to the State's case. Johnson, --- So.2d at ----.

It is contradictory and inconsistent to allow, on the one hand, evidence of Johnson's prior bigamy conviction and prior bad acts as substantive evidence of the offense with which she was charged, yet, on the other hand, to require a limiting instruction instructing the jury that it cannot consider the evidence as substantive evidence that Johnson committed the charged offense. Other jurisdictions that have considered this issue have concluded that a limiting instruction is not required when evidence of other crimes or prior bad acts is properly admitted as part of the res gestae of the crime with which the defendant is charged. See People v. Coney, 98 P.3d 930 (Colo.Ct.App.2004) (holding that evidence of other offenses or acts that are part and parcel of the charged offense is admissible as res gestae and may be admitted without a limiting instruction); State v. Long, 173 N.J. 138, 171, 801 A.2d 221, 242 (2002) (evidence of the defendant's actions “served to paint a complete picture of the relevant criminal transaction” and therefore was admissible, and a limiting instruction was unnecessary because the evidence was admitted under the res gestae exception); and Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993) (holding the evidence of the extraneous offenses showed the context in which the criminal act occurred, i.e., the res gestae, and was therefore admissible and not subject to the requirement of a limiting instruction).

Accordingly, we conclude that the trial court did not commit plain error in failing to give the jury a limiting instruction regarding its use of the evidence relating to Johnson's prior bigamy conviction and her prior bad acts, including her adulterous relationships, sexual manipulations, and proddings, because that evidence, as discussed above, was properly admitted as substantive evidence of the offense with which Johnson was charged and was not offered for purposes of impeachment. Therefore, the judgment of the Court of Criminal Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BOLIN, Justice.

NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART, SMITH, and PARKER, JJ., concur.SEE, J., concurs in the result.



Shonda Nicole Roberts

 

Timothy Richards

 

 

 
 
 
 
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