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
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
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
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
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
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
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
"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
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
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
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
"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
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
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
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
"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
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
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
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
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
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
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
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,  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.  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 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.
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
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).
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
“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,
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
“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
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.
NABERS, C.J., and LYONS, HARWOOD, WOODALL, STUART,
SMITH, and PARKER, JJ., concur.SEE, J., concurs in the result.
Shonda Nicole Roberts