Opinion Author: William Ray Price, Jr., Judge
Opinion Vote: AFFIRMED. All concur.
A jury convicted Johnny Johnson of first-degree
murder and recommended a sentence of death. The jury also convicted him
of armed criminal action, kidnapping, and attempted forcible rape and
recommended life sentences for these crimes. Judgment was entered
consistent with the jury recommendations. Because Johnson was sentenced
to death, this Court has exclusive jurisdiction of his appeal. Mo.
Const. art. V, sec. 3. The judgment is affirmed.
Johnny Johnson's convictions resulted from the murder
of six-year old Casey Williamson on July 26, 2002. Casey lived with her
mother, Angie, and her siblings at her grandfather's home on Benton
Street in Valley Park. Casey's parents were separated and her father,
Ernie, lived across the street, in the home of Michelle Rehm and her
boyfriend Eddy, so that he could remain close to his children.
Two days before Casey's murder, on July 24, 2002,
Johnson went to Michelle's house to look for Eddy and Ernie. That same
day, he was seen by Casey's sister, Chelsea, and her friend, Angel, when
they were riding bikes on Benton Street. Chelsea and her friend noticed
that Johnson was following them and sped up as they returned home.
On the night of July 24, 2002, Angie took the
children to Michelle's house to spend the night with Ernie. Johnson also
stayed at Michelle's house that evening.
The next morning, July 25, 2002, Angie awoke to find
Casey on the couch watching cartoons with Johnson. Johnson told Angie
that Casey was not bothering him. Unbeknownst to anyone at the time,
however, Johnson had begun to think Casey was "cute" and had "ideas" of
wanting to have sex with her.
That day, Angie took the children back to her
father's house for the day. At one point during the day, Casey, her
sister, and other friends, including Angel, were at the home by
themselves. Angel noticed Johnson sitting on a chair by the deck and
locked the door. Angel later heard knocking, but did not answer the door.
On the evening of July 25, 2002, Johnson joined in a
barbeque at Michelle's house. That evening, Casey and her siblings again
spent the night with their father at Michelle's house.
The next morning, July 26, 2002, Ernie awoke around
6:00 a.m. to prepare for work. Casey awoke and said she was hungry.
Ernie told her that he would take her to her grandfather's house to get
breakfast and told her to wait upstairs while he went downstairs to get
ready for work. Downstairs, he noticed Johnson asleep on the couch.
Casey did not stay upstairs. Johnson awoke to find
Casey standing near the couch watching television and sensed this was
his best opportunity to have sex with her. He had decided that to avoid
being caught for sexually assaulting her, he would kill her after having
sex with her. Johnson asked Casey if she wanted to go to the glass
factory to play games and have fun. Casey said she would go with him and
they left. Casey was wearing only her nightgown and underwear. As they
walked down Benton Street and into an alley, Casey complained her feet
hurt and Johnson picked her up and carried her. When they came to the
woods leading to the glass factory, they walked along one of the paths
to a sunken pit with brick and concrete walls more than 6 feet high.
Casey and Johnson crawled through a small tunnel and dropped into the
Johnson asked Casey if she wanted to see his penis.
She said no, but he pulled down his shorts and exposed himself. Casey
turned her head away. Johnson then asked Casey to pull down her panties
so he could see her vagina. She said no, and Johnson grabbed her
underwear, tore it off her, and forced her to the ground. Pinning her to
the ground with his chest, Johnson attempted to achieve an erection by
rubbing his penis on Casey's leg. Casey started screaming, kicking, and
pushing at Johnson, scratching his chest.
Even though he had not yet raped Casey, Johnson got
up and decided to kill her. He grabbed a brick and hit Casey in the head
with it at least six times, causing bleeding and bruising. She was not
yet dead or knocked unconscious and started to run around the pit.
Johnson hit her with the brick again. She fell to her knees and tried to
crawl away from Johnson. He struck her with the brick again, eventually
knocking her to the ground and fracturing the right side of her skull.
Because she was still moving, Johnson then lifted a basketball-sized
boulder and brought it down on the back left side of Casey's head and
neck, causing multiple skull fractures. Casey inhaled and exhaled
"really fast" and then stopped breathing.
Johnson wiped blood from Casey's face with her
underpants and then threw them in an opening in the wall. He buried
Casey with rocks, leaves, and debris from the pit. He then went to the
nearby Meramec River to wash Casey's blood and other evidence from his
The police were looking for Johnson. Officer Chad
Lewis met up with him. He had Johnson get in a police car to talk
because there were so many people in the area. Without any question
being asked, Johnson said he would not hurt "little kids" and that he
liked them because he had one of his own. He explained to Officer Louis
that he had gone for a swim in the river and explained his route there.
Officer Louis thought Johnson's route was unusual because most locals
would have cut through the glass factory to get to the river. He asked
Johnson if he had been in the glass factory, which Johnson denied. At
Officer Louis's request, Johnson agreed to go to the police station to
talk in private.
While at the station, Johnson was identified by a
witness who had seen him carrying Casey that morning. Around 8:30 a.m.,
Detectives Neske and Knieb arrived at the station and took Johnson to a
police substation that had an open interview room. On the ride to the
substation, Johnson was informed of his rights and indicated he
understood them. At the substation, around 9:25 a.m., Johnson signed a
waiver form after again being advised of his rights. Johnson said he
wanted to make a statement. For about an hour, Johnson and Detective
Neske conversed, and Johnson denied seeing or being with Casey that
morning. Even when confronted with accounts of witnesses seeing him with
Casey that morning, Johnson continued his denials.
When Detective Neske brought up a hypothetical about
Johnson's son being missing, Johnson became angry. Johnson said he was
being treated for schizophrenia and had been hospitalized for it in the
past. Johnson denied that he was hearing voices and said he usually only
saw shadows, but he denied having any hallucinations at that time.
Johnson said he had not taken any medication for a month and was not
suffering from it anymore.
The detectives took a break from talking with Johnson
and brought him food. In the early afternoon, about 1:30 p.m., Johnson
agreed to submit to a rape kit. Before the samples were collected,
Detective Neske told Johnson that they would determine his involvement
and said he needed "to be a man and tell me where she's at." Johnson
started crying and said, "She's in the old glass factory."
When asked if Casey was alive, Johnson said she was
dead and it was an accident. He said that Casey wanted to go to the
glass factory with him and that a rock had fallen from the pit wall when
he was climbing it and hit Casey's head, killing her. Johnson said he
then "freaked out," thinking he would not be believed, and buried Casey.
He said he went to the river to kill himself, but could not. Johnson
drew two maps to help officers find Casey's body, but officers at the
scene were unable to find the body and Johnson was taken there.
Before Johnson arrived, however, a private citizen
who had joined the search for Casey that morning came upon the tunnel
leading to the pit where Johnson had taken Casey. In the middle of the
pit, he saw a pile of rocks, blood around the pile, and Casey's foot
between the rocks. He saw "a piece of concrete that probably weighed a
hundred pounds" where Casey's head would have been. Police arrived and
secured the pit.
Johnson was taken to police headquarters. Detective
Neske observed the pit and spoke with an officer who was processing
evidence at the scene. The evidence officer told Detective Neske that
there was no place to climb out of the pit and said there was blood all
over the floor of the pit, which contradicted Johnson's story.
Detective Neske went to police headquarters to talk
with Johnson. He again advised Johnson of his rights and the waivers,
and said he had been to the scene and did not think it was an accident.
Johnson then told Detective Neske that once he and Casey were in the pit
he had asked Casey if she wanted to see his penis and pulled down his
pants. Johnson said that he asked Casey to show him her vagina and
pulled off her underwear, which caused her to start "freaking out" and
saying she would tell her parents. Johnson said this caused him to start
"freaking out" as well, and he picked up the brick and hit her a couple
of times in the head, then dropped the "boulder" on her head. He said he
wanted her to expose herself so he could masturbate. He said he wiped
blood from Casey's face with the underwear, discarded it, buried the
body, and went to the river to wash off the blood. Around 8:30 p.m.,
Johnson repeated this version of events in an audiotaped statement. In
these statements, Johnson did not admit that he intended to take Casey,
rape her, or kill her prior to entering the pit.
Later that night, around 11:30 p.m., Detective John
Newsham was instructed to take Johnson to the county jail. While Johnson
was awaiting booking, Detective Newsham began discussing reading with
him. Johnson said he liked to read the Bible and was concerned about his
"eternal salvation." He said he was "fine," and that he "felt he was
going to receive the death penalty and that he wanted to be executed."
He asked Detective Newsham, "[D]o you think I'll ever achieve eternal
salvation[?]" Detective Newsham thought that Johnson was indicating he
had not been completely honest earlier and he took this as an
opportunity to get more information. He told Johnson that to be forgiven
for this crime he had to be completely truthful and honest and not leave
out details. Johnson admitted he had not been completely honest. Johnson
was returned to police headquarters, again waived his rights, and made
verbal and audiotaped statements. In these statements, he admitted that
he intended to take Casey for the purpose of having sex with her and
planned to kill her after doing so.
An autopsy showed that Casey died from blunt force
injuries to her head, which caused skull fractures and bruising of her
scalp and brain. She also suffered injuries to her arms, shoulders, legs,
and back. Her blood was found on Johnson's shirt and a brick and large
rock recovered from the pit. Johnson's semen was found on his shorts.
At trial, Johnson did not deny killing Casey, but
disputed that he deliberated before doing so. His diminished capacity
defense asserted that he could not deliberate due to mental illness,
specifically schizo-affective disorder that caused command
hallucinations to rape and kill Casey. In rebuttal, the State's expert
testified that Johnson was capable of deliberation and any
hallucinations that he may have had at the time were due to
methamphetamine intoxication, not psychosis.
The jury found Johnson guilty of all offenses. In the
penalty phase, the jury recommended a sentence of death for murder,
finding all three statutory aggravators submitted. Johnson was sentenced
to death for murder and as a persistent offender to consecutive life
sentences for the other charged crimes.
II. Standards of Review
The evidence is reviewed in the light most favorable
to the verdict. State v. Strong, 142 S.W.3d 702, 710 (Mo. banc
2004). This Court's direct appeal review is for prejudice, not mere
error, and the trial court's decision will be reversed only if the error
was so prejudicial that it deprived the defendant of a fair trial. Id.
Trial court error is not prejudicial unless there is a reasonable
probability that the trial court's error affected the outcome of the
trial. State v. Zink, 181 S.W.3d 66, 73 (Mo. banc 2005). Any
issue that was not preserved can only be reviewed for plain error, which
requires a finding that manifest injustice or miscarriage of justice has
resulted from the trial court error. State v. Glass, 136 S.W.3d
496, 507 (Mo. banc 2004).
III. Issues on Appeal
Johnson raises 10 points of error: (1) the trial
court erred in overruling his Batson challenges to the State's
peremptory strikes of an African-American male juror and an Asian female
juror; (2) the trial court erred in precluding defense counsel from
asking prospective jurors whether, knowing that first-degree murder is a
coolly-reflected-upon, deliberated killing, they could consider a
sentence of life imprisonment without probation or parole; (3) the trial
court erred in allowing the state to elicit evidence of uncharged crimes
of "stalking" children in the days preceding Casey's murder over his
objections; (4) the trial court erred in submitting a voluntary
intoxication instruction, Instruction 6, over his objections; (5) the
trial court erred in overruling his motion to suppress statements he
made to Detective Newsham; (6) the trial court erred in overruling his
objections and submitting Instruction 23, the statutory aggravator that
the murder "was outrageously or wantonly vile"; (7) the trial court
erred in overruling his new trial motion and sentencing him to death;
(8) the trial court erred in overruling his objections to Instructions
24 and 26 because they did not properly instruct the jury about how to
weigh the mitigating and aggravating factors presented; (9) the trial
court erred in overruling his motion to quash the information or,
alternatively, preclude the death penalty and death sentence; and (10)
the trial court plainly erred in failing to admonish the prosecutor and
give a corrective instruction when he stated in guilt phase closing
argument that the jury should "for once" hold Johnson responsible.
A. Batson Challenges
Johnson alleges that the trial court erred in
overruling his Batson challenges to the State's peremptory
strikes of an African-American male juror, Murphy, and an Asian female
juror, Gilbert. In addition to arguing that the State's race-neutral
reasons for striking Murphy and Gilbert were pretextual, Johnson also
asserts that the court wrongly denied him the opportunity to show
1. Batson Standards
Parties cannot exercise peremptory challenges to
remove potential jurors solely based on the jurors' gender, ethnicity,
or race. Strong, 142 S.W.3d at 712. In raising a race-based
Batson challenge, three steps are followed: (1) the defendant raises
a Batson challenge with respect to a specific venireperson struck
by the State, identifying the cognizable racial group to which that
person belongs; (2) the State must supply a reasonably specific and
clear race-neutral reason for the challenged strike; and (3) if the
state provides an acceptable reason for the strike, then the defendant
must show that the State's given reason or reasons were merely
pretextual and that the strike was racially motivated. Id.
In determining pretext, the main consideration is the
plausibility of the prosecutor's explanations in light of the totality
of the facts and circumstances surrounding the case. State v. Edwards,
116 S.W.3d 511, 527 (Mo. banc 2003). The court also considers the
presence of similarly situated white jurors who were not struck.
Strong, 142 S.W.3d at 712. "Evidence of purposeful discrimination is
established when the stated reason for striking [a minority]
venireperson applies to an otherwise-similar member of another race who
is permitted to serve." State v. McFadden, 191 S.W.3d 648, 651 (Mo.
banc 2006). Other factors the court considers include the logical
relevance between the State's proffered explanation and the case to be
tried, the prosecutor's credibility based on his or her demeanor or
statements during voir dire and the court's past experiences with the
prosecutor, and the demeanor of the excluded venireperson. Strong,
142 S.W.3d at 712. Finally, the court can consider objective factors
bearing on the State's motive to discriminate on the basis of race, such
as conditions prevailing in the community and the race of the defendant,
the victim, and the material witnesses. Edwards, 116 S.W.3d at
This Court defers to the trial court in these matters,
and will overturn its decision only upon a showing of clear error.
State v. Morrow, 968 S.W.2d 100, 113 (Mo. banc 1998). A clear error
is one that leaves this Court with a definite and firm conviction that a
mistake has been committed. Id.
2. Challenged Strikes
Johnson maintains that the State's strikes of
venirepersons Murphy and Gilbert were pretextual. He also complains that
the trial court erred in denying his Batson challenges before
giving him a chance to demonstrate pretext.
The following exchange took place after the
prosecutor's peremptory strikes:
[Defense Counsel]: We'll make a Batson motion
as to two jurors. The first one is . . . [Murphy], who is an African-American
male. We would ask the State to state their reason for that strike.
. . . .
[Prosecutor]: Regarding [Murphy] . . . he is single, not married, with
no children. As we know this case involves the death of a very young
child and so I looked for jurors, among other things, who have children.
He's also a youth specialist so he has some contact with kids working
for the Division of Young Services for a number of years, if not an
actual social worker or towards social work, works with troubled kids.
My concern, he might see himself in the position to save the defendant
or could identify with one of the kids he works with and treats for the
past three years.
[Court]: I think that's a viable reason to deny the
[Defense Counsel]: The other one is to both gender
and race as to . . . Gilbert, who appears to be an Asian female.
. . . .
[Prosecutor]: Also Mrs. Gilbert, though a married woman, indicates she
has no minor children. She is a student, she lists her occupation as a
student, and I'm trying to figure out how to be polite, she doesn't look
to be the typical student age range, which leads me to believe she may
be a professional student. Students tend not to have the sort of life
experiences I think would be important life experiences you would have
with kids and life experiences being something other than a student.
[Court]: All right. I'll overrule the Batson
[Defense Counsel]: If you could make a record, the
State indicated the State struck the juror because she didn't have
children? Did you say that was the reason for Gilbert?
[Prosecutor]: Yeah, one of the reasons. There's no
single reason for anybody, but that's mainly one of the considerations
in both selecting and striking jurors with minor children.
[Defense Counsel]: Juror . . . Travers, white male,
also has no children. The State did not use any peremptory challenges
for him. Also, juror . . . Maloney, whi[t]e male, who has no children,
the State did not exercise any challenges for him.
[Prosecutor]: Both Travers and Maloney, the reasons I
struck the others, it's not just for people with children, that's not
the sole consideration. They also had responses, at least by mannerism,
certainly would appear to be favoring the State's position.
[Defense Counsel]: I'm pointing out those jurors that
are similarly situated, they don't have children. I think that's part of
the record we need to make.
[Prosecutor]: They are not just students, they don't
work for the Division of Youth Services. While they didn't have children,
they also don't have some of the other matters that I thought were
important in consideration of striking the others."
The discussion of the strikes of Murphy and Gilbert
then ended without any further comment from the trial court.
Johnson fails to show that the State's reasons for
striking venirepersons Murphy and Gilbert were pretextual and that the
strikes were racially motivated. The State used each of its peremptory
strikes to strike venirepersons without minor children, including white
venirepersons who did not have children. "[I]t is well-recognized that
an important factor in determining whether the defendant has proved
purposeful discrimination is whether the State used peremptory
challenges to remove similarly situated Caucasian venirepersons."
State v. Ashley, 940 S.W.2d 927, 932 (Mo. App. 1997). Johnson cannot
demonstrate pretext in the prosecutor's claim that one of his reasons
for striking Murphy and Gilbert was their lack of minor children given
that the State's challenges were exhausted removing minorless
venirepersons, while minority venirepersons remained on the jury panel.
See State v. Shurn, 866 S.W.3d 447, 456 (Mo. banc 1993) ("[T]he
prosecutor's failure to use all his challenges against blacks is
relevant to show that race was not the motive for the use of peremptory
Given the facts of the case, it was logical for the
State to want jurors who had minor children. Johnson's counsel
recognized the prosecutor's logic in striking minorless venirepersons
when she explained that she had struck a female venireperson for reasons
that included: "She has children. Just as the State indicated they were
interested in finding jurors with children, we believe jurors with
children might be a detriment to us because of the nature of the charge."
Johnson also fails to show there was pretext in the
State's reasons for striking Murphy and Gilbert based on their
occupations. "Employment is a valid race-neutral basis for striking a
prospective juror." State v. Williams, 97 S.W.3d 462, 472 (Mo.
banc 2003). It was logical for the prosecutor to believe that Murphy's
work with the Division of Youth Services might make him more sympathetic
to Johnson. Similarly, the prosecutor was concerned that Gilbert's
occupation as a student caused her to lack sufficient life experiences
he would prefer in jurors. The prosecutor's preference for jurors with
life experience was demonstrated by his use of peremptory strikes
against venirepersons Schafer and Johnson, who had worked at their jobs
less than a year, and venireperson Milan, who was unemployed. Each of
the jurors who served on the jury was employed for five or more years.
Johnson argues that the prosecutor's failure to ask
questions during voir dire relating to his reasons for striking Murphy
and Gilbert undermines the plausibility of his explanations. He asserts
that if the issues of children or occupations truly mattered, the
prosecutor would have inquired about those subjects on voir dire, rather
than relying on juror questionnaire responses. In support of this
proposition, Johnson cites Miller-El v. Dretke, wherein the
United States Supreme Court found pretext where a prosecutor's purported
reasons for striking a prospective juror were "makeweight" and "reek[ed]
of afterthought" and the prosecutor had not inquired into the subject
during voir dire, suggesting it did not "actually [matter]." 125 S.Ct.
2317, 2328 (2005) (citing Ex parte Travis, 776 So.2d 874, 881
(Ala. 2000) ("[T]he State's failure to engage in any meaningful voir
dire examination on a subject the State alleges it is concerned about is
evidence suggesting that the explanation is a sham and a pretext for
discrimination")). Unlike in Miller-El, however, the prosecutor's
reasoning in this case was not "makeweight" or "reeking of afterthought."
Johnson criticizes the prosecutor's failure to ask
Murphy and Gilbert voir dire questions that would have illuminated their
past experiences with children, but he does not allege that the
prosecutor made similar inquiries to other venirepersons listed as
without children on the questionnaires. The prosecutor's reliance on the
questionnaire information was warranted because sufficient information
was available from the questionnaires to support his reasoning for
striking Murphy, Gilbert, and the other venirepersons without children
who were struck.
4. Batson Procedure
Johnson further argues that the trial court erred in
deciding his Batson challenges because it denied him an
opportunity to carry his burden of showing purposeful discrimination.
The trial court denied the Batson challenges as to Murphy and
Gilbert immediately after the prosecutor explained his reasons for the
strikes. Johnson contends that, in doing so, the trial court failed to
consider Batson's third stage--whether or not the prosecutor's
reasoning was pretextual.
Johnson's argument relies on State v. Phillips,
941 S.W.2d 599, 604 (Mo. App. 1997), wherein the Eastern District opined
that denying a defendant a chance to show purposeful discrimination
before denying a Batson challenge constituted trial court error.
The Phillips court rejected the State's argument that giving the
defendant an opportunity to make a record after the court's ruling was
sufficient. 941 S.W.2d at 604. Phillips, however, offers limited
guidance in this case because its discussion of the trial court's
premature ruling on the defendant's Batson challenge followed the
reversal of the defendant's conviction on another ground and the court
did not explore the impact of the trial court's error in ruling on the
Batson challenge. In short, the language relied on by Johnson is
Johnson argues that the trial court's premature
rulings on his Batson challenges constituted structural error
requiring reversal and remand because it involves jury selection. "Structural
defects" are constitutional errors that "defy analysis by 'harmless-error'
standards" because they "affec[t] the framework within which the trial
proceeds, [and are not] simply [errors] in the trial process itself."
Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991).
The State, however, maintains that any error in
ruling prematurely was merely a procedural error, not a structural
error, and should be reviewed for prejudice. It argues that Johnson was
not prejudiced because each step required under Batson was
fulfilled insofar as Johnson was given an opportunity to make arguments
as to pretext after the trial court's initial denial and, as such, the
trial court considered the issue of pretext.
Johnson complains that the trial court too quickly
ruled on his Batson challenges, but he does not argue that the
trial court applied an improper standard in deciding the issue or that
it prevented him from exercising his peremptory challenges.
The trial court's premature ruling did not prevent it
from considering Johnson's arguments as to pretext. After the trial
court denied the Batson challenge as to Murphy, defense counsel
immediately raised her challenge as to Gilbert, without complaining that
she was not allowed to demonstrate prextext before the court's ruling.
After the Gilbert challenge was also denied, defense counsel then
immediately began an inquiry suggesting why the prosecutor's reasons for
striking Murphy and Gilbert were pretextual.
The primary consideration in examining a procedural
Batson challenge is whether the defendant had a full and fair
opportunity to set out his or her arguments and to make a complete
record for review. While the three-step process required by Batson
was not followed in order, no step of the process was omitted. Because
Johnson was afforded consideration of each step of the Batson
process, he was not prejudiced by the trial court's failure to follow
the steps in a precise order. Neither was he denied the opportunity to
make a record of his evidence or arguments. Under these circumstances,
the court's premature ruling resembles an error of process, not a
structural defect that impacted the framework of Johnson's trial.
Because Johnson cannot show that he was prejudiced by the trial court's
premature Batson ruling, he is not entitled to relief on this
The trial court did not err in overruling Johnson's
Batson challenges and permitting the prosecutor's peremptory
strikes of Murphy and Gilbert.
B. Restriction of Voir Dire Questioning
Johnson argues that the trial court erred by not
allowing defense counsel's questions during voir dire that asked
venirepersons whether, knowing that first-degree murder is a coolly-reflected-upon,
deliberated killing, they could consider a sentence of life imprisonment
without probation or parole. He asserts that the trial court's ruling
prevented defense counsel from knowing venirepersons' views on the issue
of punishment for first-degree murder, thereby hindering determination
of who would be a suitable juror and denying him effective assistance of
1. Standards for Review
A defendant is entitled to a fair and impartial jury.
U.S. Const. amends. VI, XIV; Mo. Const. art. I, sec. 18(a). A necessary
component of the guarantee for an impartial jury is an adequate voir
dire that identifies unqualified jurors. Morgan v. Illinois,
504 U.S. 719, 729-30 (1992) (adequate voir dire needed for trial judge
to fulfill responsibility to remove prospective jurors who are unable to
impartially follow the court's instructions and evaluate the evidence).
The trial judge is given wide discretion in conducting voir dire and
determining the appropriateness of specific voir dire questions.
State v. Oates, 12 S.W.3d 307, 310 (Mo. banc 2000).
The trial court's voir dire ruling will be reversed
only where an abuse of discretion is found and the defendant can
demonstrate prejudice. Id. at 311. A trial court abuses its
discretion when its ruling is clearly against the logic of the
circumstances and is so arbitrary and unreasonable as to shock the sense
of justice and indicate a lack of careful consideration. State v.
Brown, 939 S.W.2d 882, 883 (Mo. banc 1997). Where reasonable persons
can differ about the propriety of the action taken by the trial court,
no abuse of discretion will be found. Id. at 883-84. The
defendant bears the burden of showing that there is a "real probability"
that he was prejudiced by the abuse of discretion. Oates, 12 S.W.3d
2. Voir Dire Restrictions
Johnson complains that his counsel was not allowed to
explain to venirepersons that imposition of the death penalty, as
opposed to a life sentence, would require that they find him guilty of
first-degree murder. During voir dire, defense counsel discussed that
first-degree murder would not include self-defense, an accident, or
catching a cheating spouse with a lover. The prosecutor objected,
arguing that defense counsel was inappropriately attempting to define
the crime of first-degree murder. He argued that it was the court's
responsibility to instruct the jury and the verdict director would
provide jurors with the definition of deliberation and the elements of
first-degree murder. Defense counsel explained that her questions were
designed to elicit information about whether venirepersons who say they
can consider a life sentence mean that they can consider a life sentence
for a deliberate killing, not just an accidental killing or for self-defense.
The trial court found that defense counsel's
questions did not give venirepersons a "full and complete definition of
murder first degree." It found that the questions "invade[d] the
province of the court" and were an "improper attempt to instruct the
jury on what the law is." The trial court suggested that defense counsel
ask, "Can you give life without probation and parole if you find him
guilty of first degree murder[?]," rather than attempt to define first
3. Permissible Voir Dire Questions
In State v. Morrow, this Court rejected a
defendant's argument that the trial court erred in prohibiting voir dire
questions regarding the difference between first and second degree
murder because such restrictions prohibited him from intelligently
exercising his peremptory and for cause strikes. 968 S.W.2d at 111. This
Court found that the trial court did not abuse its discretion in
preventing the questions because counsel is not allowed to inform
venirepersons as to what law will be applied in the case or what
instructions will be given. Id. As in this case, the trial court
in Morrow aided defense counsel in developing an appropriate
alternative to the prohibited line of questioning. Id.
In State v. Hall, the defendant alleged that
the trial court erred in preventing his counsel's questions asking
venirepersons if they could recommend a sentence of life imprisonment
for a defendant who had "deliberated" and "coolly reflected" before
committing a murder. 955 S.W.2d 198, 203 (Mo. banc 1997). This Court
found the trial court properly sustained the State's objections to the
questions because it is the role of the court to instruct jurors as to
the legal definitions regarding intent. Id. Hall states
that "[v]oir dire is not the proper arena for the legal definitions that
appear in jury instructions as the venirepanel is not the jury, nor does
it have evidence before it." Id. The trial court in Hall
advised defense counsel to limit questioning to whether the
venirepersons could consider the full range of punishment for
first-degree murder authorized by law. Id.
Johnson cites State v. Gray, 887 S.W.2d 369,
379 (Mo. banc 1994), for the proposition that "[i]n order to discover
bias of potential jurors, it is often necessary to reveal some factual
or legal detail in voir dire." While it is true that the "trial court
may permit parties to inquire whether potential jurors have
preconceived notions on the law which will impede their ability to
follow instructions on issues which will arise in the case," such
decisions are properly left to the discretion of the trial court.
State v. Ramsey, 864 S.W.2d 320, 335-36 (Mo. banc 1993) (emphasis
added). In Gray, the trial judge used hypothetical discussions to
explain accessory liability and reasonable doubt to venirepersons. 887
S.W.2d at 378-79. While no plain error was found in the judge's
comments, this Court cautioned that "[d]espite his well-intended
purposes, the judge said far more than was necessary in this case" and
that it would have been best for the remarks to "[avoid] the appearance
of giving an instruction of law or commenting on the evidence." Id.
at 379. This Court noted that the "purpose of the Approved Jury
Instructions is to avoid confusion among jurors [and] [t]hat purpose is
undermined when a judge or lawyer, under the guise of voir dire, makes
what seem to be comments on the law or facts in the case." Id. Gray
warns that "[s]uch commentary during voir dire risks incomplete or
inaccurate statements and may conceivably lead to confusion." Id.
The concerns raised by Gray were avoided when
the trial court prevented defense counsel's discussions about the
requirements of first-degree murder. The court's proposed solution--asking
"Can you give life without probation and parole if you find him guilty
of first degree murder[?]"--adequately permitted defense counsel to
determine if venirepersons could consider a life sentence in the case.
The trial court did not abuse its discretion in
sustaining the prosecutor's objections to defense counsel's questions
during voir dire. Having found no abuse of discretion, this Court need
not consider the issue of prejudice. This point is denied.
C. Evidence of Uncharged Crimes
Johnson asserts that the trial court erred in
overruling his defense counsel's objections to testimony of ''uncharged
crimes of 'stalking' children in the days preceding his crime." He
argues that this evidence was inappropriate propensity evidence offered
as proof that he deliberated to kill Casey, which prejudiced his defense
of diminished capacity.
The trial court has broad discretion in determining
the admissibility of evidence. Glass, 136 S.W.3d at 507. The
trial court's ruling on the admission of evidence will be reversed only
if the court clearly abused its discretion. Zink, 181 S.W.3d at
Generally, evidence of uncharged crimes, wrongs, or
acts is inadmissible for the purpose of showing the defendant's
propensity to commit such crimes. Morrow, 968 S.W.2d at 107.
Although evidence of prior misconduct is inadmissible to show propensity,
it is admissible if it is logically relevant, in that it has some
legitimate tendency to establish directly the accused's guilt of the
charges for which he is on trial, and legally relevant, in that its
probative value outweighs its prejudicial effect. State v. Bernard,
849 S.W.2d 10, 13 (Mo. banc 1993). An exception to the general rule that
evidence of uncharged misconduct is inadmissible "is recognized for
evidence of uncharged crimes that are part of the circumstances or the
sequence of events surrounding the offense charged." Morrow, 968
S.W.2d at 107. Evidence of uncharged crimes is admissible "to present
the jury a complete and coherent picture of the charged crimes and to
rebut [a defendant's] contention that he lacked the ability to
Errors in admitting evidence require reversal only
when prejudicial to the point that they are outcome-determinative.
State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001). "A finding of
outcome-determinative prejudice expresses a judicial conclusion that the
erroneously admitted evidence so influenced the jury that, when
considered with and balanced against all evidence properly admitted,
there is a reasonable probability that the jury would have acquitted but
for the erroneously admitted evidence." Id.
2. Evidence Presented
Johnson argues that Angel's testimony was not legally
relevant because its probative value was outweighed by its prejudicial
effect and was not logically relevant because the alleged "stalking" was
unrelated and not similar to the charged offense of murdering Casey.
Johnson's arguments are unpersuasive. Angel testified
to events that occurred at Casey's home and on her street only two days
before her murder. The evidence countered Johnson's claims that he did
not deliberate before killing Casey. Angel's testimony was admissible
because it helped construct a complete and coherent picture of Casey's
murder by establishing the context for that offense. See Morrow,
968 S.W.2d at 107.
Moreover, Johnson fails to demonstrate there was
outcome-determinative prejudice from Angel's testimony. Her testimony
about seeing Johnson in the days before the murder, and the prosecutor's
few remarks about that testimony, pales in the presence of the other
evidence in the case. The jury heard evidence of Johnson's confession
that he intended to take Casey for the purpose of having sex with her
and then kill her. He admitted to taking Casey to an isolated location,
burying her body, and attempting to wash evidence from his body. One of
Johnson's experts testified on cross-examination that having a mental
illness does not necessarily prevent a person from deliberating, and the
State's expert witness in rebuttal testified that Johnson was capable of
deliberating on the day of Casey's murder. There is no reasonable
probability that, but for the evidence that Johnson contests, the jury
would have acquitted him.
D. Voluntary Intoxication Instruction
Johnson asserts that the trial court erred in
submitting a voluntary intoxication instruction, Instruction 6, to the
jury over his objections. He alleges the instruction was not supported
by substantive evidence. He argues that the instruction misled jurors to
believe that his defense was an intoxicated or drugged condition at the
time of the crime, prejudicing his true defense of diminished capacity.
1. Preservation of the Issue
Johnson's arguments on appeal are limited to those he
stated at trial. State v. Johnson, 483 S.W.2d 65, 68 (Mo. 1972).
An appellant cannot broaden the scope of his objections on appeal beyond
that made in the trial court. State v. Lindsey, 80 S.W.2d 123,
125 (Mo. 1935) (internal citations omitted). A point is preserved for
appellate review only if it is based on the same theory presented at
trial. See State v. Barnett, 980 S.W.2d 297, 303 (Mo. banc 1998).
Unpreserved issues can be reviewed only for plain error. Glass,
136 S.W.3d at 507.
At trial, defense counsel argued that Instruction 6
was inconsistent with the diminished capacity instruction because the
evidence showed that Johnson's drug use produced psychosis. On appeal,
Johnson argues that there was not substantive evidence of intoxication
to support giving Instruction 6, particularly because evidence of
intoxication from statements Johnson made to experts was not admissible
as substantive evidence. These arguments on appeal were not raised at
trial or in Johnson's motion for new trial.
Johnson argues that, although his arguments at trial
and on appeal differ, this point was sufficiently preserved for review
because the prosecutor's response to his objection at trial discussed
the issue of the evidence presented. He asserts that the prosecutor's
arguments formed the basis for the trial court's ruling on his objection
and cites State v. Wandix, 590 S.W.2d 82, 84 (Mo. banc 1979), for
the proposition that an issue is sufficiently preserved where the record
reflects that the trial court and both parties recognized the issue
during the trial.
The trial court, however, did not state a specific
basis for rejecting Johnson's objection as to Instruction 6. The record
does not reflect that it considered the issue of whether there was
substantive evidence to support giving the instruction.
Johnson's arguments as to Instruction 6 are reviewed
only for plain error because they were not properly preserved for review.
2. Plain Error Review
Plain error is found only where the alleged error
establishes substantial grounds for believing a manifest injustice or
miscarriage of justice occurred. State v. Baker, 103 S.W.3d 711,
723 (Mo. banc 2003). "To establish that [an] instructional error rose to
the level of plain error, appellant must demonstrate that the trial
court so misdirected or failed to instruct the jury that it is evident
that the instructional error affected the jury's verdict." Id.
Johnson argues that giving Instruction 6 resulted in
manifest injustice because it suggested that his defense was an
intoxicated condition at the time of the crimes, which distracted jurors
from his defense that he was unable to deliberate. He argues that the
distraction from Instruction 6 was compounded by the evidence of drugs
and alcohol before the jury. Given that this evidence was presented,
however, the trial court did not err, plainly or otherwise, in providing
an instruction to clarify the jury's consideration of that evidence.
Johnson is not entitled to relief on this point.
E. Statements to Detective Newsham
Johnson alleges that the trial court erred in
overruling his motion to suppress statements he made to Detective
Newsham because the statements were unreliable and involuntary. He
maintains that the admission of the statements prejudiced him because
they provided direct evidence of deliberation.
1. Standards for Review
A trial court's ruling on a motion to suppress is
reviewed to determine if it is supported by substantial evidence, and it
will be reversed only if it is clearly erroneous. Edwards, 116
S.W.3d at 530. The evidence is viewed in the light most favorable to the
trial court's ruling and deference is given to the trial court's
determinations of credibility. Id.
Johnson argues that the trial court should have
suppressed the statements because they were unreliable insofar as
Detective Newsham's account of when the statements were made conflicted
with jail records. He suggests that this conflict demonstrates that
Detective Newsham gave false testimony. This argument questions the
credibility of a witness. The trial court has the "superior opportunity
to determine the credibility of witnesses," and this Court defers to the
trial court's factual findings and credibility determinations. State
v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). The trial court did
not clearly err in refusing to suppress Detective Newsham's testimony
about Johnson's statements on the grounds of reliability.
Johnson further alleges that the statements should
have been suppressed because they were involuntary. Johnson argues that
his statements were coerced by Detective Newsham's comments on eternal
salvation and were made after he had been in police custody for about 16
hours. In support of his coercion arguments, Johnson states that he
failed to complete ninth grade and was in need of medication for his
mental illness at the time the statements were made.
A challenge to the admissibility of a statement on
the grounds that it was involuntary puts the burden on the State to show
voluntariness by a preponderance of the evidence. Id. The test
for voluntariness is whether, under the totality of the circumstances,
the defendant was deprived of free choice to admit, to deny, or to
refuse to answer and whether physical or psychological coercion was of
such a degree that the defendant's will was overborne at the time he
confessed." Id. Factors that are considered include whether the
defendant was advised of his rights and understood them, the defendant's
physical and mental state, the length of questioning, the presence of
police coercion or intimidation, and the withholding of physical needs.
Id. "Evidence of the defendant's physical or emotional condition
alone, absent evidence of police coercion, is insufficient to
demonstrate that the confession was involuntary." Id.
Detective Newsham's comments about eternal salvation
were not improperly coercive. The comments arose from a discussion about
reading and came after Johnson's inquiry about achieving eternal
salvation. Detective Newsham's comments were not "threats of harm or
promises of worldly advantage" that would render Johnson's confession
inadmissible. See State v. Williamson, 99 S.W.2d 76, 79-80 (Mo.
1936) (Promises yielding involuntary confessions must be "promises of 'worldly
advantage,' as distinguished from adjurations of a moral or spiritual
nature; and they must be direct, as distinguished from collateral.").
Additionally, Johnson repeatedly waived his rights
before making statements throughout the day and did so again before
being further questioned by Detective Newsham. Johnson was not
questioned constantly throughout the day and he does not allege that he
was deprived of his physical needs. Johnson's interview with Detective
Newsham lasted only about 20 minutes and was followed by a taped
interview lasting only eight minutes. Detective Newsham testified that
Johnson did not indicate that he was under any physical, emotional, or
mental stress during their conversation, and he did not answer any
The totality of the circumstances do not indicate
that Johnson's will was overborne at the time he confessed and the trial
court did not err in finding that his statements to Detective Newsham
This point is denied.
F. Statutory Aggravator
Johnson alleges that the trial court erred in
submitting Instruction 23 over his objections because it included the "depravity
of mind" statutory aggravator, which he argues is "unconstitutionally
vague." He contends that he was prejudiced by the vagueness of this
aggravator because, had it not been given, the jury would have weighed
the aggravating and mitigating factors differently and not recommended
the death penalty.
Instruction 23 instructed the jury to consider:
Whether the murder of [Casey] involved depravity of
mind and whether, as a result thereof, the murder was outrageously or
wantonly vile, horrible or inhuman. You can make a determination of
depravity of mind only if you find: That the defendant committed
repeated and excessive acts of physical abuse upon [Casey] and the
killing was therefore unreasonably brutal." MAI-CR3d 313.40; section
The limiting language in this instruction, which
explains what is required for a determination of "depravity of mind," is
taken from the Notes on Use for MAI-CR3d 313.40. See MAI-CR3d
313.40, Note 6(B).
This Court has repeatedly held that the depravity of
mind language and limiting instruction, as represented in Instruction
23, provide sufficient guidance to sentencing jurors such that the
instruction is not unconstitutionally vague. Johns, 34 S.W.3d at
115; State v. Knese, 985 S.W.2d 759, 778 (Mo. banc 1999);
State v. Ervin, 979 S.W.2d 149, 166 (Mo. banc 1998); State v.
Butler, 951 S.W.2d 600, 605-06 (Mo. banc 1997); State v. Tokar,
918 S.W.2d 753, 772 (Mo. banc 1996).
2. Limiting Language
Johnson, however, contends that use of the limiting
language is not a cure for the aggravator's vagueness. He argues that
the addition of the limiting language improperly usurps legislative
power because it adds requirements to section 565.032.2(7) that are not
included in the statute. He also maintains that the limiting language
wrongly results in judicial fact-finding.
These arguments are without merit. The use of
limiting language to clarify the requirements of the statutory
aggravator is not an effort by the courts to engage in legislation. The
limiting language gives meaning to the words used in the statute and
ensures that the statute is constitutionally applied. This is statutory
construction, which is clearly in this Court's purview. Further, use of
the limiting language does not result in judicial fact-finding. The
language expressly instructs the jury to determine if "depravity of mind"
was involved based on the evidence in the case.
G. Penalty Instructions
Johnson alleges the trial court erred in giving
Instructions 24 and 26 over his objections because they failed to
properly instruct the jury how to weigh the aggravating and mitigating
This Court will reverse on a claim of instructional
error only if there was error in submitting an instruction and it
prejudiced the defendant. Zink, 181 S.W.3d at 74. MAI
instructions are presumptively valid and, when applicable, must be given
to the exclusion of other instructions. Id.
Johnson complains that the instructions were given in
error and prejudiced him because they failed to tell the jury what to do
if they were tied or not unanimous when weighing aggravators and
mitigators. He fails to demonstrate that the instructions were
insufficient in this regard.
Instruction 24 was patterned after MAI-CR3d 314.44.
It stated in relevant part:
If you have unanimously found beyond a reasonable
doubt that one or more of the statutory aggravating circumstances
submitted . . . exists, you must then determine whether there are facts
and circumstances in aggravation of punishment.
. . . .
It is not necessary that all jurors agree upon
particular facts and circumstances in mitigation of punishment. If each
juror determines that there are facts or circumstances in mitigation of
punishment sufficient to outweigh the evidence in aggravation of
punishment, then you must return a verdict fixing defendant's punishment
at imprisonment for life . . . without eligibility for probation or
Instruction 26 was based on MAI-CR3d 314.48. It
stated in relevant part:
If you unanimously decide that the facts or
circumstances in mitigation of punishment outweigh the facts and
circumstances in aggravation of punishment, then the defendant must be
punished for the murder . . . by imprisonment for life . . . without
eligibility for probation or parole . . . .
. . . .
If you do unanimously find the existence of at least
one statutory aggravating circumstance beyond a reasonable doubt . . .
and you are unable to unanimously find that the facts or circumstances
in mitigation of punishment outweigh the facts and circumstances in
aggravation of punishment, but are unable to agree upon the punishment,
your foreperson will complete the verdict form . . . . [And] you must
answer the questions on the verdict form . . . .
Johnson also asserts that these instructions
prejudiced him because they failed to inform the jury about the proper
burden of proof for weighing mitigators against aggravators. He argues
that under section 565.030.4(3), the third of four steps for determining
whether a defendant is eligible for the death penalty, the jury must be
instructed that the State bears the burden of proving beyond a
reasonable doubt that the mitigators are insufficient to outweigh any
This Court has repeatedly rejected the claim that
section 565.030.4(3) requires the jury to make a finding beyond a
reasonable doubt. State v. Gill, 167 S.W.3d 184, 193 (Mo. banc
2005) ("Although section 565.030.4 expressly requires the jury to use
the reasonable doubt standard for the determination of whether any
statutory aggravators exist, the statute does not impose the same
requirement on the determination of whether evidence in mitigation
outweighs evidence in aggravation."); Glass, 136 S.W.3d at 521;
see also Storey v. State, 175 S.W.3d 116, 156-57 (Mo. banc
2. Plain Error Review
Johnson further requests plain error review of
Instructions 24 and 26 on his claims that the instructions were given in
error because section 565.030.4(3) requires that only aggravators "found"
by the jury be considered and because section 565.030.4(3) does not
require the jury to "unanimously" find that mitigators outweigh
aggravators. An instructional error rises to the level of plain error
only when the appellant demonstrates that the instruction so misdirected
or failed to instruct the jury that it is apparent that the error
affected the jury's verdict. Baker, 103 S.W.3d at 723. Johnson
fails to meet this burden.
This point is denied.
H. Statutory Aggravating Circumstances
Johnson contends that the trial court erred in
overruling his motion to quash the information or, alternatively,
preclude the death penalty because the State's amended information was
insufficient in that it failed to plead any statutory aggravators.
Johnson's claim is based on his belief that Apprendi v. New Jersey,
530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002),
require statutory aggravators to be included in the charging document so
that the offense of aggravated first-degree murder, punishable by death,
is distinguished from the offense of non-aggravated first degree murder,
which would have a maximum sentence of life without parole.
1. Inclusion in Information Not Required
This Court has repeatedly rejected claims that the
information or indictment must include statutory aggravators. See,
e.g., Gill, 167 S.W.3d at 193-94;(FN20) Glass, 136 S.W.3d at
513; Edwards, 116 S.W.3d at 543-44 (Mo. banc 2003); State v.
Gilbert, 103 S.W.3d 743, 747 (Mo. banc 2003); State v. Tisius,
92 S.W.3d 751, 766-67 (Mo. banc 2002); State v. Cole, 71 S.W.3d
163, 171 (Mo. banc 2002). "Missouri's statutory scheme recognizes a
single offense of murder with a maximum sentence of death, and the
required presence of aggravating facts or circumstances to result in
this sentence in no way increases this maximum penalty." Gill,
167 S.W.3d at 194.
2. Notice is Sufficient
Section 565.005.1 requires the state to give the
defendant notice "[a]t a reasonable time before the commencement of the
first stage of [a capital trial]" of the statutory aggravating
circumstances it intends to submit in the event the defendant is
convicted of first degree murder. "Notice of statutory aggravating
circumstances stands in lieu of charging them in the information or
indictment." Glass, 136 S.W.3d at 513. Johnson does not allege
that he had insufficient notice of the statutory aggravating
circumstances in this case.
The trial court did not error in overruling Johnson's
motion to quash the information.
I. Closing Arguments
Johnson seeks plain error review of his claim that
the trial court erred in failing to admonish the prosecutor and give
corrective instructions to the jury when the prosecutor remarked in his
closing argument that the jury should "for once" hold Johnson
responsible for his misconduct.(FN21) Johnson contends that these
remarks improperly asked the jury to base its findings on and punish him
for uncharged bad acts. He asserts that the prosecutor's argument
wrongly relied on information obtained by mental competency examiners
that was prohibited from being used as substantive evidence under
sections 552.030.5 and 552.020.14.
1. Plain Error Review of Closing Arguments
"Statements made in closing argument will rarely
amount to plain error, and any assertion that the trial court erred for
failure to intervene sua sponte overlooks the fact that the absence of
an objection by trial counsel may have been strategic in nature."
Cole, 71 S.W.3d at 171. Plain error relief is seldom granted on
assertions of error relating to closing argument because absence of an
objection and request for relief during closing argument means that any
intervention by the trial court would have been uninvited and may have
caused increased error. State v. Silvey, 894 S.W.2d 662, 670 (Mo.
banc 1995). Johnson's plain error claims relating to closing arguments
need not be considered unless he shows "there is a sound, substantial
manifestation, a strong, clear showing, that injustice or miscarriage of
justice will result if relief is not given." State v. Wood, 719
S.W.2d 756, 759 (Mo. banc 1986) (internal citations omitted).
It is not necessary to determine the propriety of the
prosecutor's closing remarks in this case. When manifest injustice is
the standard, improper argument results in reversal of a conviction only
if it is established that the argument in question had a decisive effect
on the jury's determination. State v. Wren, 643 S.W.2d 800, 802 (Mo.
banc 1983). The defendant bears the burden to prove the decisive
significance. State v. Parker, 856 S.W.2d 331, 333 (Mo. banc
1993). In light of the evidence presented in this case, Johnson fails to
show how the prosecutor's comments had a decisive effect on the jury's
J. Proportionality Review
Johnson asserts the trial court erred in overruling
his new trial motion and sentencing him to death because the death
sentence in this case is excessive, unreliable, and disproportionate.
This claim is addressed as part of this Court's independent
proportionality review pursuant to section 565.035.3, which requires
this Court to determine:
(1) Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary factor; and
(2) Whether the evidence supports the jury's or
judge's finding of a statutory aggravating circumstance as enumerated in
subsection 2 of section 565.032 and any other circumstance found;
(3) Whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering
both the crime, the strength of the evidence, and the defendant.
1. Influence of Prejudice
Johnson argues that the trial court's "serious and
prejudicial errors" during both the guilt and penalty phases improperly
influenced the jury's verdict and undermined the reliability of the
death sentence. As articulated above, however, this Court has found no
errors. The non-errors alleged by Johnson did not improperly influence
the jury's imposition of the death penalty. Having reviewed the record,
this Court finds no evidence suggesting that the punishment imposed was
a product of passion, prejudice, or any other arbitrary factor.
2. Aggravating Factors
This Court next reviews the trial court's findings to
determine if the evidence supports, beyond a reasonable doubt, the
existence of an aggravating circumstance and any other circumstance
found. The jury found three statutory aggravating circumstances as
grounds for considering the death sentence. The jury found that the
murder was outrageously or wantonly vile, horrible, or inhuman in that
it involved depravity of mind. Section 565.032.2(7). It also found that
the murder was committed while Johnson was engaged in committing the
offenses of kidnapping and attempted forcible rape. Section
The evidence supports, beyond a reasonable doubt,
that Casey's murder was wantonly vile, horrible, or inhuman in that it
involved depravity of mind. The jury was instructed that it could make a
determination of depravity of mind only if it found Casey's murder was
unreasonably brutal because Johnson committed repeated and excessive
acts of physical abuse on Casey. The evidence supports such a finding.
Casey's head was repeatedly struck with a brick before Johnson dropped a
"boulder" on her head.
The evidence also supports, beyond a reasonable doubt,
a finding that Johnson murdered Casey while he was engaged in the
commission of the offenses of kidnapping and attempted forcible rape.
Finally, this Court must consider whether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering the crime, the strength of the
evidence, and the defendant. Johnson maintains that the analysis of "the
strength of the evidence and the defendant" must include consideration
of the evidence that he was unable to deliberate because he suffers from
severe mental illness. He contends that, although the jury found his
mental illness "did not diminish his capacity to deliberate, and thus
the evidence on that issue may be sufficient to support his conviction
for murder," the evidence does not satisfy the Eight Amendment's
requirements for imposing the death penalty. He asserts that the
evidence showed that his severe mental illness impaired his ability to
reason and control his conduct in the same manner as an offender who
suffers from mental retardation, such that he should not be sentenced to
death under Atkins v. Virginia, 536 U.S. 304 (2002) (execution of
the mentally retarded criminal is "cruel and unusual punishment"
prohibited by the Eighth Amendment). Johnson further argues that the
mitigating evidence of his mental illness weighed against imposition of
the death penalty.
The jury rejected Johnson's mental illness defenses
and arguments in both the guilt and penalty phases of the trial. Both
federal and state courts have refused to extend Atkins to mental
illness situations. In re Nelville, 440 F.3d 220,223 (5th
Cir. 2006); State v. Hancock, 840 N.E.2d 1032, 1059-60 (Ohio
2006). There is nothing in the record of this case that would justify a
different course of action.
Johnson urges this Court to consider that a death
sentence is disproportionate in his case because other defendants
charged with first-degree murder of a child victim have not been
sentenced to death. In determining whether the sentence of death is
disproportionate compared to similar cases, however, comparison is made
to other cases wherein the death penalty was imposed. Lyons v. State,
39 S.W.3d 32, 44 (Mo. banc 2001).
This Court has upheld the death sentence in other
cases where the defendant presented evidence of mental illness. See,
e.g., State v. Taylor, 134 S.W.3d 21, 25, 31 (Mo. banc 2004)
(paranoid schizophrenia); State v. Anderson, 79 S.W.3d 420, 429,
447 (Mo. banc 2002) (severe depression and extreme paranoia); State
v. Harris, 870 S.W.2d 798, 819 (Mo. banc 1994) (post-traumatic
The death penalty has also been upheld in cases where
the murder involved brutality and abuse that demonstrated depravity of
mind. See, e.g., Strong, 142 S.W.3d at 728; Williams, 97
S.W.3d at 475; Cole, 71 S.W.3d at 177; Knese, 985 S.W.2d
The death sentence is consistent with the punishment
imposed in other cases where the defendant abducted a young victim and
then sexually abused and murdered the victim. See, e.g., Glass,
136 S.W.3d at 521; State v. Ferguson, 20 S.W.3d 485, 511 (Mo.
banc 2000); State v. Brooks, 960 S.W.2d 479, 502 (Mo. banc 1997).
This case involves the heinous killing of a small
child. Johnson admitted that he kidnapped six-year old Casey Williamson
and took her to a pit in an abandoned factory. He admitted that he
attempted to rape her, struck her head repeatedly with a brick, and
dropped a boulder on her head. He admitted that after she stopped
breathing he covered her body with rocks and debris and then went to the
river to wash away the evidence of his crimes. The death sentence in
this case is neither excessive nor disproportionate compared to the
penalty imposed in similar cases.
The judgment is affirmed.