STATE OF IOWA, Plaintiff-Appellee, vs. JOHNNY LEE JOHNSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-623 / 08-0320
Filed December 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOHNNY LEE JOHNSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Paul R. Huscher,
Judge.
Johnny Lee Johnson appeals from the judgment and sentence entered on
his convictions for two counts of murder in the first degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Thomas Gaul, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor and Doug Hammerand,
Assistant Attorneys General, and Mary Benton, County Attorney, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Danilson, JJ.
2
DANILSON, J.
Johnny Lee Johnson appeals from the judgment and sentence entered on
his convictions for two counts of murder in the first degree. He contends his
counsel was ineffective in failing to move to suppress his post-arrest statements
to police. Because we find Johnson‟s counsel was not ineffective, we affirm.
I. Background Facts and Proceedings.
Sometime in March 2007, Johnson‟s wife, Kim Johnson, left the family‟s
home in Coon Rapids and moved to an apartment in nearby Bayard. Johnson‟s
teenage daughter, Jessica, moved in with Kim, and his teenage son, Josh,
remained with him. In early April 2007, Johnson ran into an acquaintance, Mark
Bonney, at the lumberyard in Bayard. Johnson asked Bonney if he knew that
Kim had begun dating Greg White, and stated that he would like to get “his hands
on” White. Bonney warned Johnson that White was strong and that he carried
knives, but did not give serious consideration to Johnson‟s comment.
On the evening of April 29, 2007, Johnson built a bonfire at his home and
drank “four or five” cans of beer. He then retrieved a loaded handgun from inside
his home and drove to Kim‟s apartment in Bayard. Johnson parked about a
block away from the apartment at just after 10:00 p.m. He was wearing a black
sweatshirt with the hood pulled up over his head. As Johnson approached the
apartment he noticed the wooden front door was open. Through the screen
door, Johnson saw White in the kitchen, wearing only pajama pants. White did
not notice Johnson outside the door.
Johnson knelt and shot White three times through the screen door. He
then entered the apartment and shot White once more. Kim ran from Jessica‟s
3
bedroom, saw White on the floor, and ran back into the bedroom screaming and
trying to shut the door behind her. Johnson followed Kim into the bedroom and
shot her four times. He then went back into the hall and beat White on the head
with the butt of his gun to make sure he was dead, crushing his skull. Johnson
reentered the bedroom and beat the back of Kim‟s head with his gun, also
crushing her skull. At that point, Jessica tried to push him off Kim, but he shoved
her back to the bed.
Johnson‟s hood fell away from his face, and Jessica
realized he was her father. Johnson told her, “It is over. She was f‟ing him. I‟m
going to jail, and I don‟t care.” Johnson then left the apartment.
Jessica checked her mother for a pulse and tried to call 911. A neighbor,
Shanda Thomas, heard the gunshots and ran outside. Jessica told Thomas that
“her fucking dad shot her mom.” As they waited for police to arrive, Jessica
called her grandmother. Thomas heard Jessica tell her grandmother, “You need
to get over here. Your fucking son shot my mom.” Jessica then called her uncle,
Joseph Johnson, and said, “Your fucking brother shot my mom.”
Soon after receiving the call from Jessica, Joseph also received a call
from Johnson.
Johnson asked, “Did you hear what I did?” to which Joseph
responded, “Yes, Jessie told me.”1 Joseph talked his brother into meeting him at
the Guthrie County Sheriff‟s Office to turn himself in. When they arrived at the
1
Johnson also spoke to his sister-in-law, Teresa Johnson, twice shortly after the
shooting. The first time he said, “I have some sad news. I shot Kim.” In his next phone
conversation with Teresa, Johnson told her, “I shot them both” and told her, “You‟re
going to have to take care of the children, because I‟m going to jail probably.” He
continued, “I was stupid. I drove to town with a gun.” Johnson explained to Teresa that
he had gotten drunk and had driven to town to see if Kim was with another man, and if
she was, “he was either going to do something, or he was going to kill them.”
4
sheriff‟s office, Johnson noticed a scrape on his hand and told Joseph that he
must have gotten it while “beating them . . . to make sure they were dead.”
Johnson was handcuffed and brought inside the sheriff‟s office. Officer
Jeremy Long read Johnson his Miranda rights, asked him a few questions,
booked him, and placed him in a jail cell. At 1:27 a.m. Johnson submitted to a
breath test, which measured his blood alcohol at .019. Johnson also gave a
DNA sample.2 At 1:39 a.m. Special Agent Mitch Mortvedt began to interview
Johnson. The interview concluded at 3:38 a.m. Mortvedt interviewed Johnson
again later that morning, from 10:02 to 11:31 a.m. During the course of these
interviews, Johnson confessed to the shootings of Kim and White.
Johnson
explained the marital problems he and Kim had been going through, his
discovery that Kim was dating someone else, and what led him to shoot the
victims earlier that evening.
Johnson also described exactly where he had
thrown his gun on his drive home.3
On June 4, 2007, the State filed a trial information charging Johnson with
two counts of murder in the first degree. Johnson pled not guilty. A jury trial
began on January 8, 2008.
During the trial, Johnson‟s counsel tried to limit
Johnson‟s culpability to a manslaughter charge.4 At the close of the evidence,
2
Several evidentiary findings tied Johnson to the crime scene. DNA tested from
the mouth of a Budweiser can found on the ground outside the apartment matched
Johnson‟s. A muddy footprint consistent with Johnson‟s size 9 1/2 Dickies boots was
discovered near the apartment. In addition, blood found on Johnson‟s jeans tested
positive with Kim‟s DNA.
3
The Iowa Division of Criminal Investigation (DCI) later confirmed that Johnson‟s
C2-52 Czechoslovakian pistol had fired all eight shell casings found at Kim‟s apartment.
4
Johnson‟s counsel argued that Johnson had acted out of a sudden passion
when he observed “a man standing half naked” in his estranged wife‟s apartment. In
support of that strategy, Johnson‟s counsel decided to place Johnson‟s somewhat
sympathetic post-arrest statements (in which Johnson described that “it all happened so
5
Johnson‟s motion for judgment of acquittal was denied. On January 14, 2008,
the jury returned verdicts finding Johnson guilty as charged. Johnson filed a
motion for a new trial and a motion in arrest of judgment. Following a hearing,
the court denied both motions. Johnson was sentenced to a life sentence on
each count, to be served concurrently. He now appeals.
II. Ineffective Assistance of Counsel.
We conduct a de novo review of ineffective assistance of counsel claims.
State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of
ineffective assistance of counsel, a defendant must prove (1) counsel failed to
perform an essential duty and (2) prejudice resulted to the extent it denied the
defendant a fair trial. Id. A defendant‟s failure to prove either element by a
preponderance of the evidence is fatal to a claim of ineffective assistance. State
v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). Although we generally preserve
ineffective assistance of counsel claims for postconviction proceedings, we
consider such claims on direct appeal if the record is sufficient. State v. Tate,
710 N.W.2d 237, 240 (Iowa 2006).
In this case, the record is sufficient to
address Johnson‟s claim.
To prove counsel breached an essential duty, a defendant must overcome
a presumption that counsel was competent and show that counsel‟s performance
was not within the range of normal competency. State v. Buck, 510 N.W.2d 850,
853 (Iowa 1994). Although counsel is not required to predict changes in the law,
counsel must exercise reasonable diligence in deciding whether an issue is worth
fast,” that he went “crazy for an instant,” and that he “just frickin‟—frickin‟ went nuts”)
before the jury without subjecting him to cross-examination.
6
raising. In accord with these principles, we have held that counsel has no duty to
raise an issue that has no merit. State v. Dudley, 766 N.W.2d 606, 620 (Iowa
2009).
To prove prejudice resulted, a defendant must show there is a
reasonable probability that but for counsel‟s unprofessional errors the result of
the proceeding would have been different. Ledezma v. State, 626 N.W.2d 134,
143 (Iowa 2001).
Because counsel has no duty to raise a meritless issue, the validity of
Johnson‟s constitutional claim must be determined. See Dudley, 766 N.W.2d at
620. Constitutional claims are reviewed de novo. State v. Bumpus, 459 N.W.2d
619, 622 (Iowa 1990). “If his constitutional challenges are meritorious, we will
then consider whether reasonably competent counsel would have raised these
issues and, if so, whether [Johnson] was prejudiced by his counsel‟s failure to do
so.” Id.
Johnson contends his trial counsel was ineffective in failing to move to
suppress his post-arrest statements to police and object to their introduction at
trial. He argues his right to counsel under the Fifth Amendment of the United
States Constitution (and the comparable provision of the Iowa Constitution,
article 1, section 9) was violated because police improperly continued
interrogation and obtained his statements after he had requested an attorney.5
5
Johnson alleges his right to counsel was also violated under the Sixth
Amendment of the United States Constitution (and its Iowa counterpart, article 1, section
10). These provisions, however, are not applicable. The issue here is whether Johnson
invoked his right to counsel during initial questioning following his arrest.
In contrast, the rights to counsel under the Sixth Amendment and article 1,
section 10 attach upon the initiation of adversarial criminal proceedings, generally by
formal charge, arraignment, preliminary hearing, information, or indictment. State v.
Peterson, 663 N.W.2d 417, 426 (Iowa 2003). An arrest by itself, with or without a
warrant, falls far short of an official accusation by the state against the suspect. State v.
7
Johnson alleges his counsel breached an essential duty by failing to seek
suppression of his statements, and that he was prejudiced by this omission
because “counsel would have had a good chance for success” had a motion to
suppress been filed. Johnson also contends the “inculpatory statements were
critical evidence against [him] and played a substantial role in linking [him] to the
crime . . . .”
In Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630, 16 L. Ed.
2d 694, 726 (1966), the United States Supreme Court determined the Fifth and
Fourteenth Amendments require the police to inform a suspect he has a right to
remain silent and a right to counsel during a custodial interrogation. Absent
Miranda warnings and a valid waiver of those rights, statements made during a
custodial interrogation are inadmissible. Miranda, 384 U.S. at 479, 86 S. Ct. at
1630, 16 L. Ed. 2d at 725; State v. Harris, 741 N.W.2d 1, 5 (Iowa 2007). When a
suspect invokes his right to counsel during a custodial interrogation, the police
must stop questioning immediately until an attorney is present. State v. Walls,
761 N.W.2d 683, 686 (Iowa 2009).
The request for counsel must be unambiguous and unequivocal; that is, a
suspect must articulate his desire to have counsel present sufficiently clear that a
reasonable police officer in the circumstances would understand the statement to
be a request for an attorney. See, e.g., Harris, 741 N.W.2d at 7. Although it is
generally considered good police practice to clarify a suspect‟s unclear request,
officers have no obligation to stop questioning when an ambiguous or equivocal
Johnson, 318 N.W.2d 417, 434 (Iowa 1982); see also Iowa R. Crim. P. 2.4(2) (noting
that an information or indictment must be filed in order to prosecute indictable offenses).
As such, we will not address Johnson‟s arguments under these provisions.
8
request occurs. Davis v. United States, 512 U.S. 452, 461-62, 114 S. Ct. 2350,
2356, 129 L. Ed. 2d 362, 373 (1994); Harris, 741 N.W.2d at 7; State v. Morgan,
559 N.W.2d 603, 609 (Iowa 1997).
When a suspect has invoked his right to counsel, he is not subject to
further police questioning “unless the accused himself initiates further
communication, exchanges, or conversations with the police.”
Edwards v.
Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386
(1981). Even when a conversation is initiated by the suspect and reinterrogation
follows, the prosecution still has the burden to show the subsequent events
indicated a valid waiver of his rights. Oregon v. Bradshaw, 462 U.S. 1039, 1044,
103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 412 (1983). In other words, when
reinitiating questioning with police, the suspect must have “evinced a willingness
and a desire for a generalized discussion about the investigation.” Id. at 104546, 103 S. Ct. at 2834, 77 L. Ed. 2d at 412.
In this case, Johnson was subjected to two separate sessions of custodial
interrogation by Special Agent Mortvedt on the morning of April 30, 2007, the first
of which began several hours after he turned himself in to police.6 Prior to any
questioning, Johnson read the Miranda warning aloud to Special Agent Mortvedt.
Johnson said he did not know whether he wanted to talk to police about the
incident, and asked, “So do I need a lawyer?” He then asked again, “Do I need a
lawyer?” Special Agent Mortvedt responded, “Well, I . . . I can‟t give any advice,
Johnny. Um, I mean that‟s certainly your right” and continued the interrogation.
6
The second session of interrogation did not contain any references to
Johnson‟s right to counsel.
9
Johnson‟s questions at this point were not sufficient to invoke his right to
presence of an attorney.
“Merely asking whether counsel is needed is not
sufficient to invoke the right to counsel and the protections provided by such
invocation.” State v. Washburne, 574 N.W.2d 261, 267 (Iowa 1997); see also
Harris, 741 N.W.2d at 6 (determining the suspect‟s question, “If I need a lawyer,
tell me now” was insufficient to invoke his right to counsel). As such, Special
Agent Mortvedt was permitted to continue questioning Johnson after this
exchange.
Harris, 741 N.W.2d at 6 (“Officers have no obligation to stop
questioning an individual who makes an ambiguous or equivocal request for an
attorney.”).
Special Agent Mortvedt proceeded to ask Johnson some background
questions. As the questioning turned to Johnson‟s actions on the evening of
April 29, 2007, the following exchange occurred:
MORTVEDT: What‟d you do after the bonfire then?
....
JOHNSON: I don‟t know. I can‟t even tell you what else I
did. I better not without a lawyer present.
MORTVEDT: Okay.
JOHNSON: I know what I did.
MORTVEDT: I‟m a . . . I . . . what‟s that? You know what
you did?
JOHNSON: Yeah, I was frickin‟ drunk and I went in to see
her. I wanted to talk to her.
Johnson‟s statements place at issue whether a reasonable officer, in light
of the circumstances, would have understood the statements as a request for an
attorney. See Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885, 68 L. Ed. 2d at
386. Johnson‟s statements, “I can‟t even tell you what else I did. I better not
without a lawyer present” may be viewed as analogous to the defendant‟s
10
statements in Harris, wherein the defendant stated, “I don‟t want to talk about it.
We‟re going to do it with a lawyer. Harris, 741 N.W.2d at 7. In Harris, the Iowa
Supreme Court concluded, “Harris clearly and unequivocally requested an
attorney at this point in the interrogation.” Id. (citing Davis, 512 U.S. at 461-62,
114 S. Ct. at 2356, 129 L. Ed. 2d at 373. Unlike the officers in Harris, however,
Special Agent Mortvedt properly discontinued the questioning by his response,
“Okay.”
However, Johnson reinitiated communication with Special Agent Mortvedt
when, without further questioning, Johnson stated, “I know what I did.” Special
Agent Mortvedt simply parroted Johnson‟s statement in question form, in
responding, “I‟m a . . . I . . . what‟s that? You know what you did?” Johnson then
began to tell what happened, “Yeah, I was frickin‟ drunk and I went in to see her.
I wanted to talk to her.”
Johnson‟s statement clearly demonstrated “a willingness and a desire for
a generalized discussion about the investigation.” Bradshaw, 462 U.S. at 104546, 103 S. Ct. at 2834, 77 L. Ed. 2d at 412. Johnson‟s statement therefore did
not violate the Edwards rule, and Special Agent Mortvedt‟s decision to proceed
with the interrogation was not improper. Questioning continued and Johnson
subsequently confessed to the shootings.
Through a pro se brief, Johnson further argues his counsel should have
moved to suppress his statements as involuntary.7 We disagree. Shortly after
7
Specifically, Johnson contends the circumstances surrounding
interrogations rendered his statements involuntary because:
[W]hile under the influence of alcohol, confined to a cell, [he] was
interrogated at least twice, in the middle of the night, for several hours at
the
11
the shootings, Johnson (after calling his brother and informing him that he had
shot Kim) decided to turn himself in to police. Officer Long read Johnson his
Miranda rights, and Johnson later read the Miranda rights aloud to Special Agent
Mortvedt. He informed both officers that he had law enforcement experience, as
he had previously been employed as a police officer for several years in Maine.
The first interrogation began shortly after his arrival at the sheriff‟s office and
lasted less than two hours. The second interrogation began more than six hours
later and lasted less than one and one-half hours.
Johnson understood the
questions he was asked and appeared to be of normal intelligence. Although
Johnson contends he was impaired due to the influence of alcohol, we note that
his breath test revealed a blood alcohol content of .019, significantly below what
is considered the legal limit for impairment.8
Under the totality of the circumstances, we find Johnson‟s statements
were voluntary. See, e.g., State v. Countryman, 572 N.W.2d 553, 558-59 (Iowa
1997); State v. Pierson, 554 N.W.2d 555, 561 (Iowa Ct. App. 1996). We find
Johnson‟s pro se argument to be without merit.
Because Johnson has failed to show counsel failed to perform an
essential duty, there is no need to address the State‟s claim that the failure to file
a motion to suppress was due to trial strategy of defense counsel. However, we
feel compelled to address the second prong Johnson is required to prove to
establish his claim of ineffective assistance of counsel: prejudice. Ledezma, 626
a time, that he knows of, by a „Special Agent‟ . . . in order to secure
incriminating statements, admissions and several material confessions[.]
8
A person commits the offense of operating while intoxicated if the person
operates a motor vehicle while having an alcohol concentration of .08 or more. See
Iowa Code § 321J.2(1)(b).
12
N.W.2d at 142 (“If the claim lacks prejudice, it can be decided on that ground
alone without deciding whether the attorney performed deficiently.”).
To establish prejudice, Johnson must prove a reasonable probability that,
but for his counsel‟s failure, the result of the proceeding would have been
different. Maxwell, 743 N.W.2d at 196. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Ledezma, 626 N.W.2d at
143 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,
2068, 80 L. Ed. 2d 674, 698 (1984)).
Here, there was overwhelming evidence of Johnson‟s guilt without regard
to his own statements. For example, Johnson told Bonney that he would like to
“get his hands” on White; Johnson‟s teenage daughter was an eyewitness to the
murder of her mother as she recognized her father after his sweatshirt hood fell
down revealing his face; Johnson told his daughter, “It‟s over. She was f‟ing him.
I‟m going to jail, and I don‟t care”; Johnson parked a block away from the
apartment although there was parking right outside the apartment; Johnson‟s
DNA was on a beer can found near his wife‟s apartment; Johnson‟s muddy
footprints were found near the apartment; Johnson‟s wife‟s blood was found on
his blue jeans; eight shell casings matching Johnson‟s Czechoslovakian pistol
were found in and around the apartment; Johnson admitted to his brother and
sister-in-law, “I was stupid. I drove to town with a gun”; and Johnson explained
to his brother that a scrape on his hand must have occurred “while he was
beating [them] to make sure [they] were dead.”
13
Upon our review of the facts of this case, we conclude Johnson‟s Fifth
Amendment right to counsel was not violated.9 Even if we assume there is merit
to the claims, Johnson has failed to show any prejudice arose. As a result, trial
counsel was not ineffective in failing to raise this meritless claim.
III. Conclusion.
We conclude Johnson‟s right to counsel under the Fifth Amendment was
not violated during police interrogation after his arrest and his statements were
admissible.
No prejudice arose in any event.
Therefore, we find Johnson‟s
counsel did not render ineffective assistance by not making such claims. We
affirm Johnson‟s convictions.
AFFIRMED.
9
Similarly, we conclude Johnson was not denied effective representation when his
counsel failed to challenge the statements under article 1, section 9 of the Iowa
Constitution.
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