OPINIONBY: Stephen N. Limbaugh, Jr.

Appellant, James R. Johnson, was convicted by a Laclede County jury of four counts of first degree murder and was sentenced to death on all four convictions. His motion for postconviction relief under Rule 29.15 was overruled. Because the death penalty was imposed, his appeal lies exclusively with this Court. Mo. Const. art. V, sec. 3. The judgments are affirmed.

I. FACTS

Johnson does not dispute the sufficiency of the evidence. That evidence, which we review in the light most favorable to the verdict, [**2] State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995), reveals the following: Johnson lived in rural Moniteau County with his wife, Jerri Wilson, and her 19 year old daughter, Dawn Becker. Johnson and Becker had an uneasy relationship and fought a great deal.

On the evening of December 8, 1991, the two of them were involved in an argument during which Johnson cried out that "he couldn't take it anymore" and told his wife that her daughter had to move out. His wife replied that if her daughter moved out, so would she. Johnson then told her to choose between her daughter and him, and when his wife chose her daughter, [*126] Johnson ordered them both out of the house. At that point, they refused to be forced out, so Johnson produced a loaded rifle and pointed it at his wife. When she did not back down, Johnson pointed the rifle at Becker. Johnson then grabbed Becker in a choke hold and forced her out of the door at which time she fled.

Within a few minutes, Johnson loaded some guns and ammunition into his car and drove away. He returned later with Becker in his car and told his wife that he wanted to work things out. Shortly thereafter, Deputy Les Roark of the Moniteau County Sheriffs Department [**3] arrived at the house to investigate a domestic disturbance.

Roark asked to speak with Becker, but Johnson refused. His wife brought Becker to the door and told Roark that they were both fine. As Roark was walking back to his car, Johnson pulled out a .38 caliber pistol, stepped onto the porch, and shot Roark twice, once in the rear, and once in the back of the hand.

Johnson then stepped back inside, but when he heard Roark moaning, he went again to the porch and shot Roark in the forehead, killing him. Johnson soon left the house in the car with his guns and ammunition, and with clothes and a thermos, and drove to the home of Sheriff Kenny Jones, whose family was having a Christmas party.

Using a .22 caliber semi-automatic rifle, Johnson opened fire on a group of people he saw through the bay window. Pam Jones, the wife of the sheriff, was shot five times, once in the shoulder, once in the face, once in the neck, and twice in the back of the head. She died in her home in front of her family.

Johnson next appeared outside the home of Moniteau County Deputy Sheriff Russell Borts. Johnson shot Borts through a window while Borts was talking on the telephone. Although Borts was shot four [**4] times, once in the hand, twice in the chest, and once in the face, he survived, but he was still under medical care at the time of the trial. After shooting Borts, Johnson went to the sheriffs office where peace officers from numerous jurisdictions had gathered.

When word of the attack on Borts arrived, the officers rushed out from the sheriffs office. Johnson, who was lying in wait, fired on the emerging officers. Cooper County Sheriff Charles Smith was shot four times with a .22 caliber semi-automatic rifle, once in the face, once in the right side, once in the upper back, and once in the head. He died from the shot to the head.

Moments later, Miller County Deputy Sandra Wilson arrived at the sheriffs office, stopped her patrol car in the street, and slid to the passenger side. As she started to climb from the car onto the pavement, Johnson shot her through the heart with an 8-millimeter, bolt-action Mauser.

Deputy Wilson died on the pavement. Johnson then fled to the back porch of the home of an elderly woman named DorthyMae Miller and hid there for the rest of the night The next morning, he confronted Mrs. Miller and hid in her house for most of the day, holding her hostage. [**5]

During that time, Johnson admitted to Mrs. Miller that he had shot five people. That evening, Johnson allowed Mrs. Miller to leave the house so that she could attend a Christmas party where she was expected. Upon her release, Mrs. Miller notified authorities that Johnson was in her house. Soon thereafter, law enforcement officers surrounded her house and negotiated Johnson's surrender.

At trial, Johnson admitted the killings and defended on a plea of not guilty by reason of mental disease or defect under Chapter 552, RSMo. In presenting this defense, Johnson, a Vietnam veteran, claimed to be a victim of Post Traumatic Stress disorder (PTSD), that rendered him incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct. See sec. 552.030.

A. The Perimeter Evidence

The primary thrust of Johnson's entire appeal is a combined claim of prosecutorial misconduct and ineffective assistance of counsel arising from defense counsel's mistaken use of certain evidence to support the PTSD defense.

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Most likely, the defense theory failed not because of the mistaken use of the perimeter evidence, but on the overall weakness of the theory itself and the proof offered in support of the theory.

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Johnson's detailed and intimate recitation of these events, together with his stated reasons for his conduct, seems wholly inconsistent with the defense of mental disease or defect. In effect, Johnson admitted that he had known what he was doing and why, and consequently, he was hard pressed at trial to fit the facts to the theory. In the end, this was the likely reason why the defense failed. Johnson's claims of prosecutorial misconduct and ineffective assistance of counsel are denied.

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For the foregoing reasons, the judgments are affirmed. Stephen N. Limbaugh, Jr., Judge, Benton, CJ., Price and Robertson, JJ., concur; White, J., dissents in separate opinion filed; Covington and Holstein, JJ., not sitting.

DISSENTBY: RONNIE L. WHITE

While I would find the result troubling, I am compelled, nevertheless, to dissent. Defense counsel's unprofessional failure to interview Officers Opperman and Breen led the defense to make demonstrably false claims in its opening statement, claims that utterly destroyed the credibility of the PTSD theory before the defense even [**37] presented any evidence. While defendant has not, perhaps, demonstrated that this was outcome-determinative prejudice, as the majority opinion requires, that standard is too high. Under the proper standard, given the vagaries of a mental illness defense, I am convinced that there is a reasonable likelihood that, but for counsel's unprofessional errors, the result of either the guilt or sentencing phases of the trial would have been different.

II Unprofessional Conduct

While the conduct of the prosecution in this matter is, as the principal opinion notes, not especially praiseworthy, the evidence of purposeful, prosecutorial misconduct is equivocal, at best, and I am reluctant to condemn the prosecution on this record. As to the defense counsel, however, I have no such reservations. Although the principal opinion is correct in pointing out that defense counsel was initially careful in attributing the perimeter evidence to Mr. Johnson ("somebody went back to Johnson's house"), all caution was quickly abandoned as the defense told the jury, in no uncertain terms, that the defendant was that somebody: he set up a perimeter...., that's what you do in Vietnam, you renourish [**38] and rest while your buddies stand guard duty, only Jim had to play all the roles. ... He was on guard duty while he was resting and renourishing... And when he went on his recon mission, he thought, I'd better... disable the car so the enemy can't use it. So he flattened the tires. . . .

Intent as they were on making such extravagant claims about what this behavior revealed about their client's mental state, the defense team was remarkably cavalier in determining whether these assertions had any basis in fact. While it is true, as the State argues, that no evidence in the defense's possession indicated that someone else had done these things, no evidence pointed to Mr. Johnson, either.

As defense counsel testified at the Rule 29.15 hearing, the defense decided that Mr. Johnson was responsible because it fit their experts' theory about what sort of behavior he might have engaged in: "the experts... thought that was a great piece of evidence for their testimony." Thus, the defense made the mistake of assuming that the evidence would show what they hoped it would show, instead of investigating to see what actually might be determined.

Even minimal investigation would have sufficed. [**39] The defense team was not required to depose every single endorsed witness. But the defense, if it was inclined to make so much of what went on in James Johnson's garage on the night of December 8th, was obliged to at least ascertain who was present at that location, and, at the very least, to interview those persons. Similarly, if the defense thought that the tire evidence was important, it should reasonably have attempted to contact a person who could confirm that the tires were, in fact, flat when the car was first found by the authorities.

These witnesses were not hard to find. As defense counsel noted, he had nagging questions about why these particular officers had been endorsed and repeatedly asked the prosecution who they were. While the prosecution's investigator did apparently say "that they were just chain people and probably aren't going to use them, etc., etc." the equivocal answer of an opposing investigator does not relieve a reasonably diligent and cautious advocate of the duty to at least pick up the phone and ask these witnesses what their connection to the case was. Defense counsel did not do even that, and it caused them to make a critical error from which the defense [**40] never recovered.

While it may be true that the prosecution sprang a trap on the defense, it was a trap that defense counsel helped set through inadequate preparation and investigation and armed through its own overblown, factually unsupported statements about what happened the night of the killings. Reasonably cautious and zealous advocates would not have been so easily misled.

The principal opinion does not endorse the behavior of either side and, at least implicitly, recognizes that some breakdown in professionalism probably occurred here. Hence, where I really differ from the principal opinion is on the issue of prejudice. The majority applies too high a standard. While the prejudice standard is, as the majority states, whether there was a "reasonable probability" of a different result, n1 the principal opinion actually seems to be applying an outcome-determinative standard.

Strickland explicitly rejects an outcome-determinative standard. n2 Thus, Mr. Johnson is not required to show that his counsel's unprofessional errors are the "most likely" reason why his defense failed, as the principal opinion holds.

The United States Supreme Court reiterated this as recently [**41] as 1995, contrasting the "reasonable probability of a different result" standard with the higher, outcome-determinative standard, and also noting that this is not merely a sufficiency of the evidence standard. n3 The majority seems to apply the latter standard. Tellingly, for a case based entirely on a defense of mental illness, the principal opinion's review of the evidence does not mention any of the testimony of the three defense PTSD experts, instead choosing to focus solely on the inculpatory "raw facts."

This disregard for essentially the entire defense case in assessing prejudice reflects an improper, sufficiency of the evidence standard. Certainly, I do not understand the principal opinion to hold that there is overwhelming evidence that Mr. Johnson was legally sane at the time of the killings. While I agree that there was sufficient evidence to convict, and am not necessarily convinced that the weakness of the case was not the "most likely" reason the defense failed, I find it is reasonably likely that a jury that had not seen the defense destroy its own credibility on this issue would have been sufficiently receptive to the expert diagnosis of a mental disease or defect to [**42] permit a reasonable likelihood of a different result.

As to the idea that the defense was able to mitigate the effects of its gaffe, I am unconvinced. The fact that the defense elicited testimony from the officers and the defendant explaining why the defense did not know that their client had not constructed the perimeter, and the fact that defense had their experts testify that the perimeter evidence was not important in their diagnosis of Mr. Johnson actually indicates the opposite.

In my view, these efforts to distance the defense from this evidence show that the defense team knew how badly its credibility had been damaged and spent the entire trial vainly attempting to recover some shred of believability. In particular, the prosecutor, in his closing argument, did not think that the [**43] failure to ascertain who had created the perimeter evidence was unimportant.

The prosecution's tactic in rebuttal was to "flash back" to defense counsel's opening argument and to recount what the defense had "promised" to prove to the jury. After reading at great length from defense's opening statement, the prosecutor vividly captured the devastating effect that statement had on the entire defense case: "Pure unadulterated lies to you. We have disproven each and every fact that the Defense said they were going to sell you on this Vietnam defense. The only land mines that this case is about are the ones the Defense has been stepping on all week."

Obviously, there is no question that Mr. Johnson killed the victims here. The question is whether he was sane when he did so. There was expert psychological testimony on both sides. I cannot say that it is not at [*138] least reasonably likely that a jury would have believed the PTSD theory if Mr. Johnson's counsel had not utterly discredited himself and the theory by tying it and the defense into a completely concocted scenario at the very outset of the case.

Penalty Phase Prejudice

Even more troubling to me is an issue that the principal opinion [**44] does not address: "When a defendant challenges a death sentence..., the question is whether there is a reasonable probability that, absent the errors [of counsel], the sentencer... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." n4 Clearly, the aggravating factors here are extremely grave.

But there are clear mitigating factors as well: Mr. Johnson's previously law-abiding life, his service to his country, at least. While a reasonable juror might have felt that Mr. Johnson's mental difficulties did not rise to the level of legal insanity, it is reasonably likely that such a juror would find those mental problems, combined with Mr. Johnson's previous positive contribution to society sufficiently mitigating to warrant a sentence of life.

Any such tendency was severely undercut by defense counsel's opening argument, which left the jury with the strong impression that any claims of emotional distress by Mr. Johnson were made up out of whole cloth. Absent this unprofessional error, it is at least reasonably likely that a jury would have found the balance of mitigating and aggravating factors differently.

Conclusion

This is a very hard case. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he assuredly deserves the death sentence he was given. But the question of what Mr. Johnson's mental status was on that night is not susceptible of easy answers.

While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness. I am not convinced that the performance of his counsel did not rob Mr. Johnson of any opportunity he might have had to convince the jury that he was not responsible for his actions.

This is an excellent example of why hard cases make bad law. While I share the majority's horror at this carnage, I cannot uphold this as an acceptable standard of representation for a defendant accused of capital murder. I would hold that Mr. Johnson received ineffective assistance of counsel, was prejudiced thereby, and is entitled to a retrial.

RONNIE L. WHITE, Judge.