49th murderer executed in U.S. in 2009
1185th murderer executed in U.S. since 1976
2nd murderer executed in Tennesee in 2009
6th murderer executed in Tennesee since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
|Cecil C. Johnson Jr.
B / M / 23 - 53
B / M / 12
James E. Moore
B / M / 41
B / M / 35
State v. Johnson, 632 S.W.2d 542 (Tenn. 1982) (Direct Appeal).
Johnson v. State, 797 S.W.2d 578 (Tenn. 1990) (Postconviction Relief).
Johnson v. Bell, 525 F.3d 466 (6th Cir. 2008) (Habeas).
Final / Special Meal:
Johnson mouthed “I love you,’’ repeatedly to his family, then said "You all stay strong, and keep trusting in the Lord."
"Tennessee executes Cecil Johnson," by Chris Echegaray. (December 2, 2009)
In the end Cecil Johnson Jr., convicted in the fatal shooting of three people – including a 12-year-old boy — in 1981, was only forgiven by his son who is in prison. Johnson, sentenced to death, was pronounced dead at 1:34 a.m. Wednesday after he mouthed “I love you,’’ repeatedly to his family.
In 1980 Johnson shot the 12-year-old boy in the head and killed two other people after robbing a convenience store on 12th Avenue South in Nashville. The family of the victims declined to say anything publicly following the execution.
Johnson's brother David Johnson spoke to the media, saying, "He's in a better place because he gave his life to the Lord." During the execution a daughter, DeAngela Johnson, was described as turning her back and covering her ears against her father's breathing sounds as the injections began.
Johnson, 53, was forgiven by his 29-year-old son serving prison time in West Tennessee. James Johnson, serving 23 years for aggravated assault and aggravated robbery, sent his father a message with Riverbend Maximum Security Prison warden Ricky Bell. “Tell him I love him and forgive him for not being there,’’ Johnson’s son said in the message. “And tell him he is not the reason why I am in prison.”
Johnson, the sixth person in the state to be executed since 1960, was pronounced dead after a lethal injection was given at 1 a.m. Wednesday morning.
Johnson, then 24, was convicted of three counts of first-degree murder for the deaths of Bobby Bell Jr., James Moore and Charles House. While in prison in 1985, Johnson and an inmate were involved in a fight that led to the death of another inmate. Johnson was charged with voluntary manslaughter.
Still, last ditch efforts for clemency and motions to stop the execution failed. Tuesday night the Tennessee Supreme Court had denied a request for a stay of execution that was filed by the Reconciliation Ministries.
Johnson refused a final meal, said Dorinda Carter, spokeswoman for the Tennessee Department of Correction. He met with his spiritual adviser, Rev. James Thomas, of the Jefferson Street Missionary Baptist Church. Meanwhile, a service was held in opposition to the death penalty at Hobson United Methodist Church in East Nashville, where 60 people gathered.
Suzanne Craig Robertson had visited with Johnson for 17 years, including his last day on Tuesday. She choked back tears, telling the audience that he was fine and hopeful. “He really believes something is going to stop this,’’ she said from the podium. She declined an interview but Robertson has written about her visits with Johnson in the Tennessee Bar Journal, where she’s the editor. The Journal is the monthly publication for the Tennessee Bar Association.
Robertson wrote that “Cecil is very much like many others on death row: he had an abusive, impoverished childhood, he is black, was largely uneducated until he got in prison, and he is indigent. He is nothing like the others to me, though, because I know his face and his laugh. And his daughter. You’d be surprised how that makes a difference.”
Johnson was born August 29, 1956, in Maury County. He had dropped out in the ninth grade before getting his GED in prison in 1987. He was the oldest of 10 children. At 21, Johnson was married and had a child. He worked at Vanderbilt University as dishwasher and cook at the time of his arrest.
What could’ve made a difference in Johnson’s case are some questions surrounding his conviction, said Denver Schimming, an organizer for Tennesseans for the Alternative to the Death Penalty, formerly known as Tennessee Coalition to Abolish State Killing.
Questions were raised after the trial concluded about police reports that were never turned over to Johnson's attorneys that cast doubt on some eyewitness testimony. His attorneys questioned whether a prosecutor coerced Johnson's friend into lying about that night. “I can’t speak on Johnson’s guilt or innocence,” Schimming said as he prepared protest signs. “But the process of convicting him was fraught with problems. There was no weapon found, no physical evidence and no proceeds of the robbery found.
“There has to be an alternate method to executions – life without parole,” he added. Many states are reviewing their death penalty laws with some repealing it and others enacting stricter guidelines, said Stacy Rector, director of Tennesseans for the Alternative to the Death Penalty. “Change may come slowly for us,” she said at the church service. But there is reason for hope.”
Before his death, Nashville’s federal court granted a temporary restraining order stopping Johnson’s autopsy, pending further review by the court. A hearing was set for 1 p.m. Thursday, Dec. 10. Johnson claimed an autopsy after the execution would be against his religious beliefs and “would amount to desecration.”
"Tennessee executes man who killed three," by Erik Schelzig. (December 3, 2009 at midnight)
NASHVILLE - An inmate put to death for a triple slaying got words of forgiveness from his son, a fellow prisoner, a few hours before the early Wednesday execution. Cecil C. Johnson Jr. received the message from son James Johnson before being executed at Riverbend Maximum Security Institution for the three 1980 deaths in Nashville.
The younger Johnson, 29, is serving time at the West Tennessee State Penitentiary for aggravated assault and burglary. "He said he loves him and forgives him for not being there for him as a father, and that it's not Cecil's fault that he ended up in prison himself," said Dorinda Carter, spokeswoman for the Tennessee Department of Correction.
Cecil Johnson, 53, was executed early Wednesday for killing three people while robbing a Nashville convenience store. The victims included the market owner's 12-year-old son, Bobby Bell Jr., and two men sitting in a cab outside, Charles House, 35, and driver James Moore, 41. The boy's father witnessed the killing and was wounded.
Thirteen minutes after the lethal injection began, Cecil Johnson was officially declared dead at 1:34 a.m.
Bob Bell Sr. and Moore's brother witnessed the execution in a separate room from Johnson's family, Carter said. They did not speak to the media after the execution.
When the blinds to the execution room were lifted, Johnson lay strapped to a gurney with medical tubes strapped to his skin. He mouthed "I love you" to his wife, two brothers and daughter, and was asked whether he had any final words. "You all stay strong, and keep trusting in the Lord," he said.
After the warden said "proceed," daughter Deangala Johnson, 30, turned away and covered her ears as her father took two deep breaths, fell asleep and began to snore. She tried to leave the witness room, but was told by a guard that she couldn't until the warden announced the time of death.
After the execution, wife Sarah Johnson said: "You didn't put away an evil man, you put away a holy man." "Cecil didn't want anyone to have pity," said brother David Johnson. "He already gave himself to the Lord."
A few dozen anti-death penalty protesters gathered in a field outside the prison. "If we're not here, who is going to know that there are people who don't want this to happen?" said Monica Scarlett, 50, a graduate student in social work.
The execution came after federal courts, including the Supreme Court, denied a series of last-minute legal efforts to halt the execution. Gov. Phil Bredesen denied clemency for Johnson last week.
Johnson was a 23-year-old kitchen worker at Vanderbilt Hospital when the July 5, 1980, slayings occurred. His father turned him in two days after the shooting, and he was identified at trial by Bob Bell Sr.
In 1987, Johnson was one of two death row inmates convicted in the 1985 beating death of fellow prisoner Laron Williams at the old Tennessee Penitentiary. Williams was on death row for the slayings of a Memphis policeman and a Roman Catholic priest.
Johnson became the sixth person put to death in Tennessee since 2000. There were no executions between 1961 and 1999. The last person executed in Tennessee was Steve Henley in February.
"Justices spar over Tennessee execution," by Bill Mears. (December 2, 2009 2:24 p.m. EST)
WASHINGTON (CNN) -- Two Supreme Court justices engaged in a late-night exchange of harsh words before the execution early Wednesday of a convicted Tennessee killer who had been sitting on death row for nearly three decades.
Justices John Paul Stevens and Clarence Thomas disagreed over whether to grant a stay of execution for Cecil Johnson Jr. The stay eventually was denied, and about an hour later, at 2:34 a.m., Johnson was put to death by lethal injection at a Nashville, Tennessee, prison.
The 53-year-old inmate had been convicted of murder in a 1980 shooting spree at a convenience store near the state capital. The victims included 12-year-old Bobby Bell Jr., son of the store owner, who was wounded. Two other men sitting in a nearby taxicab also were shot to death.
Stevens, who was initially presented the last-minute appeal by Johnson's lawyers, would have granted the stay, along with Justice Stephen Breyer. Stevens was concerned that too much time had elapsed between sentencing and the planned execution, amounting perhaps to cruel and unusual punishment. "Johnson bears little, if any, responsibility for this delay," said Stevens, who said procedural hurdles at the appellate stage for capital defendants created what he called "underlying evils of intolerable delay." "The delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement."
It is an issue that the 89-year-old justice has long urged his colleagues to address, with little success. In his early years on the high court in the mid-1970s he had supported the resumption of the death penalty after a four-year moratorium imposed by the Supreme Court. But in recent years, he has voiced his opposition to capital punishment, particularly in cases involving inmates asserting their right to challenge their sentences.
Thomas reacted strongly to Stevens' statement. The conservative jurist said the inmate had challenged his conviction and sentence for nearly 29 years and "now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out." "In Justice Stevens' view, it seems the state can never get the timing just right. The reason, he has said, is that the death penalty itself is wrong." Thomas said. "As long as our system affords capital defendants the procedural safeguards this court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments."
Then Thomas goes on to say there are "alternatives," citing the custom in England centuries ago to carry out an execution the day after a conviction. "I have no doubt that such a system would avoid the diminishing justification problem Justice Stevens identifies, but I am equally confident it would find little support from this court."
The high court had been presented with Johnson's emergency appeal early Tuesday afternoon, but apparently the time needed to produce the Stevens and Thomas statements delayed the high court from issuing its denial of a stay until 1:38 a.m. Wednesday. The execution was carried out as scheduled, with no problems reported by corrections officials.
WBIR TV-10 Knoxville
"Cecil C. Johnson Jr execution," by Kate Howard, The Tennessean. (Updated: 12/1/2009 5:57:48 PM)
A flurry of filings in the Cecil Johnson death penalty case appears unlikely to delay or halt the convicted killer's execution. Johnson is scheduled to die at 1 a.m. central time Tuesday morning.
Defense attorneys filed an emergency appeal for stay of execution, along with a supporting memorandum. The motion for a stay calls for a consideration of procedural matters, over whether Johnson's subsequent appeal is a second appeal on habeas corpus grounds. Prosecutors fought against the stay, and the United States Court of Appeals for the Sixth Circuit has chosen not to issue a stay of execution.
Bobby Bell Jr. was crying hard as he filled a sack with money and gave it to the gunman. He and his father, Bob Bell Sr., were inseparable, and on that hot Saturday night in July 1980 the boy was working the register at his father's store. The 12-year-old sold Cokes and snacks while the elder Bell and his friend worked on a motor. They were about to close for the night when a man burst in with a six-shot revolver.
Although he did everything the robber told him to do, Bobby was shot point-blank in the head in front of his father. The friend, Louis Smith, jumped on top of the boy without knowing it was too late. Bell Sr. was shot in the wrist when he raised his arms to shield his head. Two men sitting in a taxi outside were shot dead as the robber fled.
Prosecutors theorize that the killer, Cecil C. Johnson Jr., then 23, planned to rob the convenience store on 12th Avenue South and leave no witnesses. Johnson was given three death sentences for the murders and two life sentences for the two victims who survived.
In the early morning hours on Wednesday, Johnson is scheduled to die by injection with a three-drug cocktail at Riverbend Maximum Security Prison. Barring any last-minute reprieve, Johnson will be the first person from Nashville executed since the death penalty was reinstated in 1977.
Questions were raised after the trial concluded about police reports that were never turned over to Johnson's attorneys that cast doubt on some eyewitness testimony. His attorneys questioned whether a prosecutor coerced Johnson's friend into lying about that night. The friend, Victor Davis, planned to testify about Johnson's alibi but later became a state informant. In the end, each of Johnson's arguments was rejected by the 6th U.S. Circuit Court of Appeals. The Tennessee Supreme Court set his execution date.
Gov. Phil Bredesen has denied Johnson's request for clemency, and a request to stay the execution with the U.S. District Court was denied Monday. "It was a case that captured people's imaginations," said Torry Johnson, Nashville district attorney general, who was a prosecutor on the case. "Certainly, we had robberies before this, and market owners and clerks were killed. But having a child killed was something that really did make this different. It was shocking to people."
Johnson, who has maintained his innocence, and his attorney, Jim Thomas, have declined interview requests.
In an interview with the Nashville Banner three weeks after his arrest in 1980, Johnson said he felt like he was stuck in a bad dream. He said he met with police after hearing they were looking for him and told them he was in Franklin with friends at the time of the slayings. He told the paper that he and Victor Davis were just driving around on a pretty summer day, looking for women and dice games, not for the massacre that happened a few blocks from his dad's home.
He was surprised when he was arrested and denied bond. "I feel like this whole thing is wrong," he said. But the witnesses said otherwise.
First robbery at market
The building where Bob Bell's Market was located is now a bar in a district bustling with shops and trendy restaurants. In 1980, what's now the 12South neighborhood was mostly houses, straddling the Edgehill and Belmont neighborhoods. Bell had owned the market for eight years and had never been robbed.
When the man walked into the market with a gun in his hand, Louis Smith didn't realize the gravity. He said he thought the man and Bell were "just jiving," until he was ordered behind the counter.
Minutes later the shooting started. "I jumped on the child," Smith testified. "I didn't think he'd been shot yet."
But a bullet had struck little Bobby in the head. Smith was shot, too. As the man pointed the gun at the head of Bell Sr., he threw his arm up in defense. His wrist stopped the bullet. "Did anyone do anything to provoke the shooting that you know of?" then-prosecutor Tom Shriver asked Smith on the stand. "No. Bob begged him to try to keep him from it," Smith said.
On his way out the door, the man fired two shots, and prosecutors theorized they were the last two bullets in a six-shot revolver. James Moore, a Nashville native and Army veteran who had just started driving for Supreme Cab, was behind the wheel of the taxi. Moore and passenger Charles House died inside the cab.
Bell counted quickly to 10 and jumped up to get his shotgun at the back of the store. He tried to chase the man out, hearing the shots that were fired into the cab as he ran. He told a reporter later that he couldn't have fired the gun anyway, with the bullet in his arm. He stood helpless outside.
Bell said he knew Johnson as a customer in the store who sometimes wore clothing from Vanderbilt. Bell didn't know his name but said he knew the face. "I think (Bell) has made a mistake that he doesn't want to back off of," Johnson told reporters shortly after his arrest. "He looked straight at me and said, it was me. Everything inside me fell down... I don't think he was lying. I just think he made a mistake."
Attempts to reach Bell and relatives of House by phone, mail and through the attorney general's victims services program were failed. On Monday, Bell was the only person signed up to witness the execution by lethal injection.
After Johnson was convicted, his attorneys asked the jury to consider his youth and lack of serious criminal history before sentencing him to death.
Johnson testified at his trial that he was never at the market. But Bell, Smith and two other witnesses identified him as the shooter. There was no physical evidence linking him to the scene, and the murder weapon was never found. But four witnesses testified that Johnson was the killer - one of whom was planning to be his alibi witness, until he was arrested himself a week before trial.
The next day, after an interrogation by the district attorney's office and a promise of immunity, Victor Davis was a witness for the state. He testified that he dropped Johnson off at a car wash just before 10 p.m. when the murders happened. Johnson told him he was going in to rob Bob Bell, and said he didn't intend to leave any witnesses. He said he sat with him later at Johnson's father's house as they counted the money, and Johnson gave him $40.
The district attorney who led the interrogation, Sterling Gray, was later ap-pointed to a judgeship and indicted on charges that he took bribes from defendants in exchange for light sentences. Gray killed his wife and himself that same year. Jim Sledge, an investigator with the district attorney's office who worked on the case, said Gray himself was not the only person involved in that interview. He and the other prosecutors were there, too, he said, and it was above board.
Johnson's attorneys raised the flipped witness as well as questions about the eyewitness testimony in their appeals. Several police reports saying that Bell's friend Louis Smith never got a good look at the accuser were withheld from the defense attorneys, and it wasn't until 1992 that attorneys for Johnson learned of their existence. The district attorneys admitted that the reports were withheld and that the information could have aided Johnson in his defense.
But the federal appeals court ruled the mistake didn't affect the outcome of the trial. Smith admitted that he identified Johnson after seeing him on television, already arrested in the murders, but denied that was the reason he picked him. A panel of federal appeals judges ruled 2-1 to deny Johnson's appeal. In a scathing dissent, Judge R. Guy Cole, Jr. wrote that the jury "saw a markedly different trial than it would have" if the prosecutors hadn't withheld the reports. "Because 'fairness' cannot be stretched to the point of calling this a fair trial, I dissent," Cole wrote.
28 years since the trial
Now 28 years since that trial, gray has crept into the 53-year-old inmate's beard. He was convicted along with Tony Bobo of voluntary manslaughter in prison for the killing of fellow Death Row inmate Laron Williams in 1985. Since then, the cook for Riverbend's Death Row inmates has lived a quieter existence. He hasn't even been written up for talking back in at least seven years.
James Moore's sister, Betty Hunter, has mixed feelings about the execution. Her family, scattered across the country for decades, had no idea a date was set. Learning about it opened a very painful old wound. She said her brother was an intelligent man who played classical piano and had a young daughter. "Even though you never forget, you can kind of move on," Hunter said. "You try not to insist on the how and the why, and time has a way of healing all those wounds to some degree. Don't forget, but you do kind of move on."
Moore was the valedictorian of his high school class and studied physics at Tennessee State University, and his family says he grasped concepts so easily that be barely had to study to make the grades they had to work so hard for. But the man known as "Pretty Mo" was more concerned with enjoying each day, surrounded by friends and loved ones, than keeping his nose in the books. "My family has lost the presence of my brother," Hunter said. "If the courts have decided based on the information they received that he's guilty, at least he's lived 29 years longer than my brother. My brother's life was taken for no reason."
On Monday, Johnson's attorneys argued before a federal court judge that he should get a stay of execution based on the nearly three decades the case has stretched on. They said it amounted to a violation of his civil rights that he was confined in uncertainty for so long. Johnson, his attorney Thomas argued, had done everything he could to move the case along, expecting he'd get a new trial somewhere along the way; the delays were caused by the state.
U.S. District Court Judge Robert Echols dismissed the case, but he did agree that cases like Johnson's, when condemned prisoners stretch on for decades, tend to undermine the public's confidence in the system. "As a member of the judiciary, I am somewhat embarrassed that our system has not been more efficient and more effective," Echols said.
On July 5, 1980, Bob Bell’s Market on 12th Avenue South in Nashville, Tennessee was robbed by an armed gunman around 9:45 pm. In the store at the time of the robbery were Bob Bell, Jr., his son Bobbie, and Louis Smith, an acquaintance of Bob’s.
Bobbie Bell was helping at the cash register and Smith was working at the store repairing a boat motor for Bob Bell. Cecil Johnson pointed a gun at Bell and ordered him and Smith behind the register where Bobbie Bell stood. While Johnson and his captives were behind the counter, a woman and two children entered the market. Johnson concealed his gun and told his captives to act naturally and to wait on the customers. As soon as the customers left, Johnson ordered Bobbie Bell to fill a bag with money from the cash register; Bobbie obeyed. Johnson then searched Smith and Bell, taking Smith’s billfold.
At that moment, Charles House stepped into the market, and was ordered out by Johnson; House obeyed. Almost immediately thereafter, Johnson began shooting his captives. Bobbie Bell was shot first and killed. Smith threw himself on top of Bobbie to protect him from further harm, and was himself shot in the throat and hand. Johnson then walked toward Bob Bell, who was on the floor behind the counter, pointed the gun at Bell’s head and pulled the trigger. Fortunately, Bell threw up his hands and the bullet hit him in the wrist, breaking it. Johnson ran from the market.
Bell got a shotgun from under the store counter, ready to chase Johnson, then heard two gunshots outside the market. He looked toward the front of the store and saw Johnson standing beside an automobile parked at the entrance. Bell chased after Johnson. As he passed the automobile, he saw that a cab driver and his passenger had been shot. The passenger was later identified as Charles House, the customer who had entered the market only moments before Johnson began shooting his captives and who was acquainted with Johnson. Both the cab driver, James E. Moore, and Charles House died from a gunshot wound.
Information Bell gave to police officers immediately after the robbery led to Johnson’s arrest on July 6, 1980. At trial, both Bell and Louis Smith identified Johnson as the perpetrator of the crimes. In addition, Debra Smith, the customer who entered the market during the commission of the robbery, identified Johnson as having been behind the counter with Bell, Bobbie Bell, and Louis Smith. Johnson was also connected to the crimes by Victor Davis, a friend who had spent most of July 5, 1980, in the company of Johnson.
During the course of the investigation, Davis made statements to the prosecution and defense that provided Johnson with an alibi. In essence, Davis said that he and Johnson were together continuously from roughly 3:30 p.m. on July 5 until approximately midnight and that at no time did they visit Bell’s Market. However, the week before the trial, and after he was arrested on unrelated charges of carrying a deadly weapon and public drunkeness, Davis made a statement to the prosecution incriminating Johnson.
At trial, Davis, who was promised immunity from prosecution for any involvement in the crimes committed at Bell’s Market, confirmed his statements incriminating Johnson. According to Davis’s testimony, he and Johnson left Franklin, Tennessee, at approximately 9:25 p.m. on July 5 and arrived in Nashville in the vicinity of Bell’s Market shortly before 10:00 p.m. Johnson then left Davis’s automobile after stating that he was going to rob Bell and was going to “try not to leave any witnesses.” Davis testified that he next saw Johnson some five minutes later near Johnson’s father’s house, which was roughly a block from Bell’s Market. Davis stated that Johnson was carrying a sack and pistol and, when he entered Davis’s automobile, Johnson said, “I didn’t mean to shoot that boy.”
Johnson discarded the gun, which Davis later retrieved and sold the following day for $40. Davis further testified that after he picked up Johnson, they drove directly to Johnson’s father’s house, arriving shortly after 10:00 p.m. There, in the presence of Johnson’s father, Johnson took money from the sack, counted approximately $200, and gave $40 of this money to Davis. According to Davis, Johnson told his father that he and Davis had been gambling and that gambling was the source of the money.
Johnson testified on his own behalf and denied being in Bell’s Market on July 5, 1980. His testimony as to the events of the day was largely in accord with that of Victor Davis, except for the time just before 10:00 p.m. Johnson testified that he never left Davis’s automobile on the trip from Franklin to Johnson’s father’s house in Nashville and that he arrived at his father’s house shortly before 10:00 p.m. Johnson’s father testified that Johnson arrived a few minutes before 10:00, just before the 10:00 p.m. news began.
After hearing all the evidence, a Tennessee jury convicted Johnson of three counts of first degree murder, two counts of assault with intent to commit murder, and two counts of armed robbery. The jury recommended that Johnson be sentenced to death on each count of first degree murder and to consecutive life sentences on each of the remaining counts. The trial court accepted this recommendation and imposed the death penalty. Johnson also murdered fellow death row inmate Laron Williams in 1985. A group of condemned convicts assaulted Williams during an exercise period. Williams had been sentenced to death for the murders of a police officer and a priest.
"Judge to decide on autopsy for executed killer," by Clay Carey and Chris Echegaray. (12-03-09)
A federal judge has moved up the hearing that will determine whether the state can perform an autopsy on a Tennessee death row inmate who was executed earlier this week. U.S. District Court Judge Robert Echols has already issued an order temporarily barring the state from performing an autopsy on the body of Cecil Johnson Jr., 53, who was put to death by lethal injection Wednesday.
Echols had originally scheduled the autopsy hearing for next Thursday. In an order issued late Wednesday night, he rescheduled it for Friday morning. In court filings, Johnson said he did not want the state to perform a routine autopsy on his body after his execution, saying it would violate his religious beliefs.
Johnson was sentenced to death for the 1980 shooting deaths of three people, including a 12-year-old boy, during a robbery at Bob Bell’s Market in 1980.
In court filings, Davidson County Medical Examiner Bruce Levy said this week that his office is bound by law to conduct autopsies on the body of anyone who dies of unnatural causes, including prisoners who are executed. He also said it is the only way to determine whether the execution was carried out properly.
A federal judge will decide next week whether the state can perform an autopsy on a Tennessee death row inmate who was executed by lethal injection. U.S. District Court Judge Robert Echols has temporarily barred medical examiners from performing an autopsy on Cecil Johnson Jr., 53, until a Dec. 10 court hearing.
Johnson was put to death Wednesday in Riverbend Maximum Security Institution for the shooting deaths of three people, including a 12-year-old boy, during a robbery at Bob Bell's Market in 1980. "Cecil's religious conscience would not allow him to have an autopsy," said the Rev. Joe Ingle, a Nashville minister and death penalty opponent. "He felt like it was a desecration of his body."
Before Johnson died, his lawyers asked the court to block the scheduled autopsy. Dorinda Carter, spokeswoman for the state Department of Correction, said autopsies on executed inmates are routine. The Davidson County medical examiner is bound by law to conduct an autopsy on the body of anyone who dies of unnatural causes in Nashville, according to court filings. Executions are classified as unnatural deaths. "An autopsy is the only way I can rule out any possibility that the state failed to protect the rights of an inmate during incarceration and establish that the execution was carried out in the manner prescribed by law," Davidson County Medical Examiner Bruce Levy said in court documents.
Never accepted guilt
At a news conference Wednesday, Ingle and others who knew Johnson said he did not commit the murders. Johnson maintained his innocence for nearly three decades.
He was convicted in 1981 of first-degree murder for the deaths of Bobby Bell Jr., 12, James Moore, 41, and Charles House, 35. Johnson exhausted his appeals in 2008, and an execution date was set.
Joe McGee, a minister who counseled Johnson for many years, said Johnson walked into prison an angry man but later changed and seemed at peace near the end. "He said, 'If it's God's will, I'm willing,' " McGee said. The Rev. James Thomas, of Jefferson Street Missionary Baptist Church, served as Johnson's spiritual adviser and said Johnson winked at a group of family and friends shortly before he was put to death. "Death had no power over him," Thomas said.
About 60 people showed up for an anti-death penalty vigil at Hobson United Methodist Church in East Nashville on Wednesday night, and a handful of protesters gathered outside the prison.
Ingle said Johnson's family is planning a memorial service when the state releases his body. Johnson wanted to be buried in a cemetery in Las Vegas court records show.
Tennessee Coalition to Abolish State Killing
State v. Johnson, 632 S.W.2d 542 (Tenn. 1982) (Direct Appeal).
Defendant was convicted in the Davidson County Criminal Court, A. A. Birch, Jr., J., of three counts of murder in the first degree, two counts of assault with intent to commit murder in the first degree, and two counts of robbery accomplished with the use of a deadly weapon, and defendant was sentenced to death. On appeal, the Supreme Court, Cooper, J., held that: (1) prosecution witness who had been defendant's alibi witness until he changed his story shortly before trial did not have his constitutional rights violated by certain acts of the prosecution; (2) fact that, in questioning prosecution witness, prosecution brought out the fact that witness had been granted immunity from prosecution in exchange for his testimony did not prejudice defendant; (3) no prejudice resulted from a five to ten minute differential between the time frame for the crime set forth in the motion to require defendant to give notice of his intention to offer a defense or alibi and the time frame proven by the witnesses who testified; (4) the trial court properly excluded testimony of expert witnesses on the validity of the death penalty as a deterrent to crime, the moral and ethical standards of conduct of western civilization, and the relationship between youth and the accountability for decision making; (5) the evidence sustained jury's imposition of the death penalty on its findings of two aggravating circumstances and the lack of any mitigating circumstance; and (6) the trial court properly struck the affidavits of a juror and counsel for defendant who had telephone conversation with another juror which were submitted in support of defendant's motion for a new trial. Affirmed. Brock, J., concurred in part, dissented in part, and filed opinion.
This case is before us on direct appeal by Cecil C. Johnson, Jr., from a judgment entered in the Circuit Court of Davidson County, Tennessee. See T.C.A. s 39-2406. The judgment approved the jury's verdicts finding appellant guilty of three counts of murder in the first degree, two counts of assault with intent to commit murder in the first degree, and two counts of robbery accomplished with the use of a deadly weapon. The sentence imposed on each murder conviction was death by electrocution. Appellant also was sentenced to serve four consecutive life terms on the assault with intent to commit murder in the first degree and robbery convictions. On review, we find no material error in the trial record and affirm the several convictions.
The crimes for which appellant stands convicted were committed on July 5, 1980. There is evidence that on that day, at about 9:45 p. m., appellant went to the convenience market on Twelfth Avenue South in Nashville, Tennessee, which was owned and operated by Bob Bell, Jr. Appellant pointed a gun at Mr. Bell and ordered him and Lewis Smith, who was in the store working on a boat motor at the request of Mr. Bell, to go behind the store counter. Mr. Bell's twelve year old son, Bobbie Bell, was already behind the counter.
While appellant and his captives were behind the counter, a woman and two children entered the market. Appellant concealed his gun and told his captives to act naturally and to wait on the customers. As soon as the customers left, appellant ordered Bobbie Bell to fill a bag with money from the cash register; Bobbie obeyed. Appellant then searched Smith and Bell, taking Smith's billfold.
At that moment, Charles House stepped into the market, and was ordered out by appellant; House obeyed. Almost immediately thereafter, appellant began shooting his captives. Bobbie Bell was shot first. Smith threw himself on top of Bobbie to protect him from further harm, and was himself shot in the throat and hand. Appellant then walked toward Bob Bell, who was on the floor behind the counter, pointed the gun at Bell's head and pulled the trigger. Fortunately, Bell threw up his hands and the bullet hit him in the wrist, breaking it. Appellant ran from the market.
Bell got a shotgun from under the store counter, preparatory to chasing appellant. He heard two gunshots outside the market. He looked toward the front of the store and saw appellant standing beside an automobile parked at the entrance. Bell chased after appellant. As he passed the automobile, he saw that a cab driver and his passenger had been shot. The passenger was later identified as Charles House, the customer who had entered the market only moments before appellant began shooting his captives and who was acquainted with appellant. Both the cab driver, James E. Moore, and Mr. House died from a gunshot wound.
Appellant was arrested on July 6, 1980, as the result of information given police officers by Bell immediately after the robberies and murders. Subsequently, both Bell and Lewis Smith identified appellant as the perpetrator of the crimes and testified to that effect at the trial. Debra Ann Smith, the customer who came into the market with the children, also identified appellant and placed him behind the store counter with Bell, Bell's son, and Lewis Smith.
In addition to this eyewitness testimony, appellant was tied into the crimes by the testimony of Victor Davis, who had spent most of July 5, 1980, in company with the appellant. During the police investigation, Davis gave statements to the prosecution and to the defense that tended to provide an alibi for appellant. In essence, Davis said that he and appellant were together continuously from about 3:30 p. m. on July 5, 1980, until about midnight and that at no time did they go to Bell's Market. However, four days before the trial, and after his arrest for carrying a deadly weapon and for public drunkenness, Davis gave a statement to the prosecution, which incriminated appellant. In the trial Davis, who was promised immunity from prosecution in the Bell affair, testified in accord with his last statement.
According to Davis, he and appellant left Franklin, Tennessee, about 9:25 p. m. and arrived in Nashville in the vicinity of Bell's Market shortly before 10:00 p. m. Appellant then left Davis's automobile, after stating that he was going to rob Bell and was going to try not to leave any witnesses.
Davis testified that he next saw appellant, some five minutes later, near appellant's father's house which was only a block or a block and a half from Bell's Market. At that time, appellant was carrying a sack and pistol. Appellant discarded the pistol as he got into Davis's automobile and said, “I didn't mean to shoot that boy.” Davis retrieved the gun and sold it the next day for $40.00. Davis further testified that after he picked up appellant, they went directly to appellant's father's house, arriving a little after 10:00 p. m. There, in the presence of Mr. Johnson, Sr., appellant took money from the sack, counted approximately $200.00, and gave $40.00 of it to Davis.
Appellant took the stand in his own behalf and denied being in the Bell Market on July 5, 1980. His testimony as to events of the day generally was in accord with Davis's testimony, except for the crucial minutes before 10:00 p. m. when witnesses placed appellant in Bell's Market. Appellant testified that he never left the Davis automobile on the trip from Franklin to his father's house in Nashville, and that he arrived at his father's house shortly before 10:00 p. m. Mr. Johnson, Sr., fixed the time of arrival of appellant at a few minutes before 10:00 p. m., by testifying that appellant arrived as a television program ended and the 10:00 p. m. news came on. Appellant's girl friend, who talked with appellant on the telephone while appellant was at his father's home, fixed the time as being ten to fifteen minutes before 10:00 p. m. Appellant further testified that the money counted in the presence of his father was money he had won gambling in a street game in Franklin, Tennessee.
The jury accepted the prosecution evidence, including the identifications of appellant as the person who committed the robberies and murders, and found appellant guilty of murder in the first degree in killing Robert Bell III, James E. Moore, and Charles H. House, of assault with intent to commit murder in the first degree in the shooting of Lewis Smith and Robert Bell, Jr., and of the robbery of Smith and Bell.
The appellant does not specifically challenge the sufficiency of the convicting evidence, but does insist the prosecution was guilty of improprieties which had “a cumulative effect denying the (appellant's) right to a fair trial complying with due process and hindering the effectiveness of his counsel in preparing and conducting the defense.” Under this general assignment, appellant insists the prosecution violated law and ethics in coverting the crucial alibi witness, Victor Davis, into a prosecution witness hostile to the defense.
The thread of appellant's argument throughout his brief of this assignment, and in his oral argument before this court, is that Davis was a “declared witness” for the defense; and that, having been so declared, the prosecution somehow was prohibited from questioning Davis and getting him to change his “story”-that, it was not fair to permit the defense to build an alibi based on the initial statements given by Davis and then have the prosecution get Davis to change his story shortly before trial.
It is well settled that prospective witnesses are not partisans and do not belong to either party, but should be regarded as spokesmen for the facts as they see them. See Gammon v. State, 506 S.W.2d 188, 190 (Tenn.Crim.App.1974). The purpose of an investigation and trial is to get to the truth. This sometimes entails the interrogation of witness on several occasions before truth is distilled in its purity. Neither party can have its investigation limited merely by a declaration that a witness will testify in behalf of the other party.
In addition to the general argument, appellant points to specific acts of the prosecution, which appellant insists were violative of both law and professional ethics. Appellant complains of the fact that the district attorney general caused Davis to be detained for questioning within a week of the trial date, the fact that Davis was questioned in the absence of his counsel, the time of day the questioning took place and Davis's physical condition, the fact that the prosecution made Davis aware of the possibility that the State would turn up evidence against Davis and move against him, and the ultimate grant of immunity to Davis from prosecution for crimes growing out of the Bell incident. Appellant argues that these actions by the district attorney general and his associates, violated Davis's Fourth, Fifth, and Sixth Amendment rights. We see no basis for the argument, either in fact or law. First, we find nothing in the record to show a violation of Davis's constitutional rights. The evidence shows that Davis's detention was as the result of a lawful arrest on charges of public drunkenness and the unlawful possession of a deadly weapon. The record also shows that Davis knowingly and voluntarily waived his right to counsel when he learned that the interrogation would be limited to the Bell incident. On the Monday following the interrogation, Davis and his attorney went to the office of the district attorney general, where Davis repeated his statement in the presence of his counsel, had it reduced to writing, and signed it. Furthermore, when Davis testified in the trial, both parties were allowed to fully explore the circumstances of Davis's arrest and detention, the fact that Davis had changed his “story” from the one he had given earlier to the prosecution and the defense, and that the State had promised Davis immunity from prosecution for any crime predicated on the Bell incident. This exploration, of course, was crucial to the jury's evaluation of the credibility of Davis. Second, even if the law enforcement officials violated Davis's right to be secure in his person, his right not to be compelled to be a witness against himself, and his right to have counsel present during any interrogation, these are rights personal to Davis and can only be asserted by him and not by some other person, such as appellant, who might be adversely affected by information elicited during the detention and interrogation. Cf. Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); United States v. Nobles, 422 U.S. 225, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 2533-34, 45 L.Ed.2d 562 (1975).
Appellant also charges that in the guise of questions and in closing argument, the prosecution made declarative statements calculated to bolster the credibility of Davis to the prejudice of the appellant. With these charges in mind, we have re-read those parts of the record cited by appellant and find no basis for the charge.
Appellant also takes issue with the fact that, in questioning Davis, the prosecution brought out the fact that Davis had been granted immunity from prosecution in exchange for testimony relative to the Bell incident. Appellant argues that this was misleading in that the prosecution had not taken procedural steps to insure that Davis had immunity. Appellant does not indicate how he could be prejudiced by the action of the prosecution, nor can we see any basis for prejudice resulting from the statement that Davis had been granted immunity. Such a fact could serve only to diminish Davis's credibility in the eyes of the jury to the advantage of appellant. Furthermore, appellant's insurmountable problem in this case was not Davis's testimony, but the testimony of the three eyewitnesses, two of whom looked into the barrel of the pistol held by appellant and were shot by him.
Appellant further insists that the prosecution improperly withheld notice to the defense of the existence of the witness, Debra Ann Smith, until eleven days before the trial began. Interestingly enough, no complaint was directed to the prosecution's action, or rather inaction, until the motion for new trial was filed in behalf of appellant. This probably was due to the fact that the prosecution gave notice that Debra Ann Smith would be a witness within the minimum time requirement set forth in Rule 12.1(b) of the Tennessee Rules of Criminal Procedure. But whatever the reason, we now find nothing in the record to indicate that the time of notification hindered counsel's preparation for trial or his ability to adequately represent his client in the trial.
Appellant also takes issue with the time frame for the crimes set forth in the motion by the prosecution to require appellant to give notice of his intention to offer a defense or alibi. The time frame for the crimes set forth in the motion was “July 5, 1980, between 10:00 p. m. and 10:10 p. m.” On trial, the proof indicated that the crimes were likely committed between 9:55 p. m. and 10:00 p. m. Appellant insists that he was prejudiced by the five to ten minute time differential. How he was prejudiced is not clear, since appellant did not limit his alibi evidence to the ten minute period set forth in the motion, but covered the period from 9:00 a. m. on July 5, 1980, until the following morning. This testimony necessarily would be the same for both time frames, and no prejudice could result from a five to ten minute differential between the time frame for the crimes set forth in the motion and the time frame proven by the several witnesses who testified.
In a general assignment of error directed to the sentencing hearing, appellant insists that evidentiary rulings by the trial court, “constitute error, deprive the jury of guidance needed to evaluate the (appellant's) mitigating circumstances, and result in an arbitrary and capricious sentence of death.” In the course of discussion of this assignment, appellant insists that the trial court erred in excluding testimony of expert witnesses on the validity of the death penalty as a deterrent to crime, the moral and ethical standards of conduct of western civilization, and the relationship between youth and accountability for decision making. The experts were to testify on these issues generally, since neither of them had ever seen or spoken with the appellant, or had reviewed his record.
In this state, the legislature has provided that where it is found that the defendant is guilty of first degree murder, a second proceeding is to be held before the same jury to determine the sentence-either life imprisonment or death-to be imposed T.C.A. s 39-2404(a). The jury may impose the death penalty only upon finding that one or more aggravating circumstances, listed in the statute, are present, and further that such circumstance or circumstances are not outweighed by any mitigating circumstance. T.C.A. ss 39-2404(g) and (i). The burden of proof rests upon the state to establish the aggravating circumstances beyond a reasonable doubt and the jury must specifically find that these outweigh any mitigating circumstances before they are justified in imposing the death penalty. T.C.A. s 39-2404(f). These separate determinations must be put in writing and given to the trial judge along with the sentence of death, thus assuring that the jury has gone through the correct analysis in arriving at a death sentence. T.C.A. s 39-2404(g).
In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978), the Supreme Court points out that the: Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kinds of capital cases, not be precluded from considering as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. The Court emphasized, however, in a footnote to this sentence that “nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense.” 98 S.Ct. at 2965 n. 12. The legislature of this state has gone even further than is required by Lockett v. Ohio, supra, and has provided in T.C.A. s 39-2404(c)
In the sentencing proceeding, evidence may be presented as to any matter that the court deems relevant to the punishment and may include, but not be limited to, the nature and circumstances of the crime; the defendant's character, background history, and physical condition; any evidence tending to establish or rebut the aggravating circumstances enumerated ... below; and any evidence tending to establish or rebut any mitigating factors. Any such evidence which the court deems to have probative value on the issue of punishment may be received regardless of its admissibility under the rules of evidence. (emphasis supplied)
The evidence tendered by the appellant and excluded by the trial court was not relevant to, nor did it have any probative value on the issue of punishment, but consisted of matters properly to be considered by the legislature in deciding whether the death penalty is ever a justified punishment for a person convicted of murder in the first degree and, if so, the circumstances under which the death penalty should be imposed. Cf. Houston v. State, 593 S.W.2d 267 (Tenn.1980), cert. denied, 449 U.S. 891, 101 S.Ct. 251, 66 L.Ed.2d 117. The trial court thus correctly excluded the evidence.
In this case, with respect to each of the three murders, the jury unanimously found the following aggravating circumstance to exist: (6) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of the defendant or another. T.C.A. s 39-2404(i)(6) and, in addition with respect to the killing of Robert Bell, III, the jury found the following statutory aggravating circumstances: (3) The defendant knowingly created a great risk of death to two or more persons, other than the victims murdered during his act of murder. T.C.A. s 39-2404(i)(3) (7) The murder was committed while the defendant was engaged in committing robbery. T.C.A. s 39-2404(i)(7) The jury also specifically found that there were no mitigating circumstances sufficiently substantial to outweigh the statutory aggravating circumstances, and fixed appellant's sentence at death on each finding of murder in the first degree.
From our review of the record, we are of the opinion that the evidence proves appellant's guilt of the several crimes charged beyond a reasonable doubt. We are also of the opinion that the evidence supports the jury's imposition of the death penalty on its finding of aggravating circumstances listed in the Tennessee Death Penalty Act and the lack of any mitigating circumstance. Further, we are of the opinion that under the circumstances of this case, as shown by the evidence, the imposition of the death penalty by the jury was neither arbitrary nor excessive or disproportionate to the penalty imposed in similar cases.
Appellant sought to have the trial judge, in his instructions to the jury, inform the jury that evidence had been tendered to show that the death penalty has no deterrent effect upon crime and that the death of appellant would not benefit society or comply with moral and ethical standards of the day, and that the trial judge had excluded the evidence. Appellant insists it was error for the trial judge not to give the requested instruction since appellant's counsel had indicated to the jury in his opening statement that such evidence would be forthcoming. We see no merit in this insistence. The trial judge is under no duty to specifically note or explain his rulings on the admissibility of evidence, nor should he call the jury's attention to evidence that has been excluded. The jury's responsibility is to decide the issues on the evidence submitted, not on what the appellant attempted to show.
Appellant takes issue with the action of the trial court in striking the affidavits of a juror and counsel for appellant, which were submitted to the court in support of appellant's motion for new trial. Appellant insists the affidavits reveal that the sentence of death in this case is the result of extraneous, prejudicial information and is the product of mistake and that appellant is entitled to a new sentencing hearing. On reading the affidavits, which were included in the record in this court, we are of the opinion that the action of the trial court was proper; and, in any event, the facts set forth in the affidavits do not show that the sentence of death was either the result of extraneous, prejudicial information, or was the product of mistake.
The substance of the juror's affidavit was that she did not understand that she could have voted for life; that she felt like she was locked in (on the death penalty); that she thought she would have to explain her vote to the judge if she voted for life; that she was afraid the judge would look at her and say, “Well, why did you do it?” that she was not afraid of the judge, but was afraid that she would be embarrassed. The juror further stated that she now believes, deep down in her heart, that Cecil Johnson did not commit the crimes.
It is settled law in this state that a juror can not impeach her verdict, and that a new trial will not be granted upon the affidavit of a juror that she misunderstood the instructions given the jury by the trial judge, provided the instructions were correct. Batchelor v. State, 213 Tenn. 646, 378 S.W.2d 751, 754 (1964); Norris v. State, 22 Tenn. 333 (1842). See also Montgomery v. State, 556 S.W.2d 559 (Tenn.Crim.App.1977). The instructions in this case were complete and clear, the jury had the instructions before them as they deliberated, and, according to the affidavit, the juror in question read the instructions. She can not now impeach her verdict.
The affidavit of counsel for appellant was based on a telephone conversation he had with juror George B. Davis. When the contents of the affidavit were made public, Mr. Davis filed a statement with the court taking issue with parts of the affidavit and clarifying others. On motion, the trial judge struck both the affidavit and Mr. Davis's statement, which was in letter form. We agree with his action. The documents show no more than that the jurors understood the court's instructions and properly applied them to the evidence as they found it, despite a reluctance to impose a death sentence. Furthermore, there is nothing in the documents to indicate that the jury based its decision on any extraneous matter or outside prejudicial influence, as charged by appellant.
In a supplemental assignment of error, appellant questions the propriety of the trial court's excusing three jurors for cause. Appellant insists that the trial court excluded these jurors on the basis of a statement of general opposition to the death penalty, and that this was in violation of the rule set forth in Witherspoon v. Illinois, 391 U.S. 510, 513-514, 88 S.Ct. 1770, 1772, 20 L.Ed.2d 776 (1968), and followed by this court in State v. Harrington, 627 S.W.2d 345 (Tenn.1981). Our view of the position taken by the jurors on voir dire examination differs from that of the appellant. As we read the record each of the jurors clearly indicated that he would not consider the death penalty under any circumstances and would automatically vote against its imposition, whatever the evidence and whatever the instructions of the trial court. The jurors having taken this stand, it was mandatory for the trial court to excuse them from service, if the jury were to be impartial.
All assignments of error are overruled. The judgment of conviction in each case and the sentence imposed are affirmed. The death sentence will be carried out as provided by law on June 29, 1982, unless otherwise stayed or modified by appropriate authority. Costs are taxed to appellant. HARBISON, C. J., and FONES and DROWOTA, JJ., concur. BROCK, J., dissents in part and concurs in part.
BROCK, Justice, concurring in part and dissenting in part. For the reasons stated in my dissent in State v. Dicks, Tenn., 615 S.W.2d 126 (1981), I would hold that the death penalty is unconstitutional; but, I concur in all other respects.
Johnson v. State, 797 S.W.2d 578 (Tenn. 1990) (Postconviction Relief)
Murder defendant who had been sentenced to death brought petition for postconviction relief. The Criminal Court, Davidson County, A.A. Birch, J., denied the petition. Defendant appealed. The Court of Criminal Appeals affirmed in part, and reversed in part, and set aside the death sentence as imposed and remanded the case. Appeal was taken. The Supreme Court, O'Brien, J., held that State's counsel did not attempt to minimize jury's degree of responsibility in the sentencing decision or indicate to jurors that they were not solely responsible for authorizing the death penalty. Judgment of trial court reinstated and affirmed. Drowota, C.J., concurred and issued an opinion.
This post-conviction proceeding is before the Court on joint applications for permission to appeal from the judgment of the Court of Criminal Appeals. The State takes issue with that court's judgment ruling that the prosecuting attorney's argument at trial was violative of the Eighth Amendment and whether or not the defendant waived any right to post-conviction relief on his claim of prosecutorial misconduct. The defendant-petitioner has raised twenty-six (26) issues about equally divided between the guilt phase at trial and the sentencing proceeding.
On 19 January 1981 petitioner was found guilty in a jury trial on three (3) counts of first degree murder; two (2) counts of assault with intent to commit murder, and one (1) count of armed robbery. He was sentenced to death by the jury on each of the first degree murder charges and received consecutive life sentences on each of the other charges. On 3 May 1982 this Court affirmed the convictions and sentences imposed upon the petitioner.FN1 A petition to rehear was denied on 21 May 1982. On 4 October 1982 the United States Supreme Court denied a petition for writ of certiorari. A petition to rehear in that court was denied on 28 October 1982. This petition for post-conviction relief was filed on 15 March 1983 and denied after an evidentiary hearing. The petitioner here appealed the trial court judgment to the Court of Criminal Appeals which on 20 January 1988 affirmed, in part, and reversed in part, the judgment of the trial court dismissing the petition for post-conviction relief. The intermediate court set aside the death sentences imposed in the trial court and remanded the case for a new sentencing hearing on the first degree murder sentences. FN1. State v. Johnson, 632 S.W.2d 542 (Tenn.1982).
We first address the Court of Criminal Appeals judgment remanding the case for a new sentencing hearing. We reverse that court's judgment and reinstate the sentences imposed in the trial court.
The State of Tennessee, appellant here, citing Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985),FN2 argues that the Court of Criminal Appeals erred in its holding that defendant did not waive any right to post-conviction relief by his failure to attack the prosecuting attorney's arguments on the basis raised here, either at trial or on direct appeal from his conviction. Moreover, they say he failed to allege any reason for his failure to assert this issue at the appropriate time in the prior proceedings. They further argue that defendant has not shown that Caldwell, supra, created a new constitutional right which must be applied retroactively.
FN2. Caldwell was a case on direct appeal from a capital murder conviction and death sentence in the State of Mississippi. On certiorari the United States Supreme Court held that the Eighth Amendment prohibits the imposition of a death sentence by a sentencer that has been led to believe that the responsibility for determining the appropriateness of defendant's capital sentence rests elsewhere. The sentence of death was vacated, the judgment was reversed to the extent it sustained the imposition of the death penalty, and the case was remanded for further proceedings. Subsequently a second petition for certiorari was granted and the entire judgment was vacated and the case remanded to the Supreme Court of Mississippi for further consideration in light of Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) and Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986).
In reference to the procedural waiver of the Caldwell issue due to the defendant's failure to raise it at trial or on direct appeal the intermediate court held that the essential nature of the problem was discussed in the petition for post-conviction relief, even in advance of the opinion in Caldwell. They expressed their agreement with the 10th Circuit Court of Appeals decision in Dutton v. Brown, 812 F.2d 593, which involved federal habeas corpus jurisdiction. In the Dutton case the court discussed Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984). In Reed the court ruled that cause existed for defense counsel's failure to raise an issue when a subsequent Supreme Court decision articulated a constitutional principle not previously recognized. The Court of Criminal Appeals then ruled that this novel-issue principle is equally applicable in State post-conviction litigation. They reversed the judgment of the trial court denying relief on the sentence imposed and remanded the case for a new penalty hearing.
T.C.A. § 40-30-105 expressly provides for relief when grounds stated in a post-conviction petition were not recognized as existing at the time of conviction and require constitutional retrospective application.
T.C.A. § 40-30-112 defines when a ground for relief is previously determined or waived. In the former, a ground for relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair hearing. Waiver is implied if a petitioner knowingly and understandingly fails to present a ground of relief for determination in any proceeding before a court of competent jurisdiction in which the grounds could have been presented. A rebuttable presumption arises that a ground for relief not raised in any such proceeding has been waived.
We do not agree with the State's argument that Caldwell, supra, did not create a new constitutional right, nevertheless there is no constitutional mandate which either prohibits or requires retrospective effect. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965). More recently, United States Supreme Court decisions indicate the intent that new rules for conduct of criminal prosecutions are to be applied retroactively to all cases, State or Federal, pending on direct review which are not yet final. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987). In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) the Court adopted a specific view on retroactivity for cases on collateral review, holding that unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.FN3. See Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) and Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).
In deciding against retroactive application in this case we are not unmindful of the court's admonition in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), that the penalty of death is qualitatively different from a sentence of imprisonment and because of that difference there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. If constitutional error occurred it would require appropriate palliative response. However, the appellate courts of this State may notice plain error at any time, at any stage of the proceedings, where necessary to do substantial justice. Tenn.R.Crim.P. 52. We have examined this record carefully. We do not find, as did the intermediate court, that State's counsel, in their statements to the jury at the sentencing hearing, attempted to minimize the jury's degree of responsibility in the sentencing decision or that the jurors themselves were not solely responsible for authorizing imposition of the death penalty.FN4. The entire opening statement and closing argument of State's counsel is appended to this opinion as an appendix.
That portion of the District Attorney's opening statement and final argument which the lower court found constitutionally offensive is as follows: “Your issue today is whether Cecil Johnson should experience the death penalty. Now in order to arrive at that and we (sic) and we asked you, if you will recall on the voir dire and the judge will explain to you and I am satisfied the defense will, you also have the option of life imprisonment on those three murders. Those are your two options. That is all you have got to debate. You can, you can vote to [have] him executed- now incidentally it is not you doing that. You are representing the reflective judgment, as I have already said, of the people of Tennessee and of the Supreme Court. Or you can sentence him to life imprisonment. (Emphasis in Court of Appeals opinion).
The Court of Appeals also found a part of the prosecution argument to be an attempt to minimize the jury's degree of responsibility in the sentencing decision: The jury is but one step in the process. The Legislature, as General Shriver spoke earlier, has enacted the death penalty, has put that into the body of the law in Tennessee, said that it is applicable in first degree murder cases. It set forth under what circumstances and how the death penalty should be considered and whether or not it will be imposed. And certainly the jury is, is part of that system. But it is just part of a process of determining what is the proper appropriate punishment for, in this case, Cecil Johnson. For his responsibility for three, three separate first degree murders. (Emphasis in Court of Appeals opinion).
That portion of the District Attorney General's opening statement which preceded the remarks found objectionable by the Court of Appeals is as follows: May it please the court, and ladies and gentlemen, you have found Cecil Johnson guilty of murder in the first degree. As we explained when we were questioning you, when you were picked, this is a two-part process. Now your job is to decide what his punishment should be on those charges, the three, three sentences of, or the three charges of murder in the first degree. Now, I think the first thing you need to keep in mind is that the debate here is not whether there ought to be a death penalty. That has already been decided. The United States Supreme Court has decided that. The Tennessee State Legislature which represents the people, and therefore the collective judgment of the people in Tennessee and in Davidson County, the Tennessee State Legislature said there is a death penalty available as a punishment for murder in the first degree. So you are not debating whether there ought to be a death penalty in general.
The part of the closing argument, coming before and after the portion excerpted by the lower court as improper, contains a great deal more to enable a reviewing court to determine if the argument falls short of appropriate constitutional standards: Ladies and gentlemen of the jury, we are once again at a point of argument. We are, however at the sentencing stage as I know all of you are well aware. It is though, what is at least terms (sic) in the statute as argument. As far as I am concerned at this point though I think that what we are in a position of doing is really trying to, what I hope to do is not much argument and more of a discussion with regards to the duties and responsibilities that all of you as jurors are now facing.
When you were called in originally and individually voir dired and asked questions, one of the things, probably the most important thing that you were questioned about by both sides were your feelings about the death penalty. Certainly that is something that before you entered into this courtroom you had thoughts about, you had perhaps discussed, but you had never been in a situation in Court where the death penalty would necessarily be a reality.
If nothing more, we I am sure conveyed to you that this case was, of course, important, and, of course, significant but in addition we conveyed to you that any decision made in this case was not going to be an easy one regardless of what the proof was, regardless of how the evidence came out from that witness stand, the ultimate decisions that you had to make as jurors were going to be difficult ones. And they are made all that much more difficult by the fact that the death penalty is involved.
Now, all of you said at the beginning that you could consider the death penalty and that is all that we ask of you, is to consider the death penalty as it is set forth in the statute, because in order for you to take the oath that the Court administered to you, you had to be able, you had to be in a position to say that you could consider the law as it is in Tennessee. That you could make a true determination in this case according to the law and evidence. And that is what we are down to now. We are past the stage of guilt. We are past the question of guilt. Guilt has been resolved and determined by the jury yesterday afternoon, yesterday evening. In that resolution as you all remember, you found the defendant guilty of first degree murder. Not in one case, or not in one instance, but in three. And your function now has to do with taking those three situations, those three victims, the cases involving those three people and determining whether or not the law dictates that the death penalty shall be imposed. I will be very frank with you that you have convicted the defendant, he already, (sic) you have already given him a considerable period of time and certainly the easiest decision perhaps confronting the jury is to simply conclude that a life sentence on these three murders is what is justified.
While that may be the easiest decision, the question you as individual jurors must ask yourself is how does that fit with what the law says, with what the law is in this State. That's what we are here about. That's what, that's what our entire argument here is about. Is looking at the law in the State of Tennessee and what do you as a juror, as a body, as jurors, what do you do? . . . . . Again, I can't emphasize enough that your situation is going to be unusual in the sense that you are going to have to, to (sic) assess the possibility, the punishment possibilities as to three victims. Not one, but three. Any one of these individuals, Little Bob, James Moore, Charles House, any one of them, their deaths, just their single death alone would be enough for this jury here to be considering and pondering whether or not a life sentence or whether it is death by electrocution....
Ladies and gentlemen, the court will define for you the law in this particular case. It will set out the formula that you need to, (sic) to apply, how you must go about assessing what is the proper punishment.
Both in the opening statement and in the closing argument a great deal more was said to define, explain, and discuss aggravating circumstances and mitigating circumstances and the jury's duty in reference to the consideration of each. In the closing argument the prosecutor also reviewed the evidence and the circumstances of the homicides for which defendant had been convicted.
The trial judge instructed the jury that statutory law required them to fix the punishment after a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment and that their verdict must be unanimous as to either form of punishment. He instructed them on their duty to consider both aggravating and mitigating circumstances in accordance with statutory law on the subject.
Taking all of the foregoing in context, there is no possibility that the sentencing jury was led to believe that responsibility for determining the appropriateness of a death sentence rested not with them or suggested in any way that they might shift their sense of responsibility to an appellate court. Neither the opening statement nor the closing argument contained any such message to the jury. We find considerable ambiguity in the inference made by the Attorney General that the United States Supreme Court had decided there ought to be a death penalty. But, in the light of the balance of his statement, we do not find that remark to fail the scrutiny of the capital sentencing determination required under the Eighth Amendment.
The defendant's application for appeal includes twenty-six issues. The majority of these were considered on direct appeal FN5 and, therefore, have been previously determined. Others have been waived by failure to present them at trial or on direct appeal. T.C.A. § 40-30-112. We have granted the application to consider the intermediate appellate court's treatment of the issues. We now find that they were properly reviewed, considered and dealt with appropriately. FN5. State v. Johnson, supra.
The judgment of the Court of Criminal Appeals reversing the trial court and remanding for a new sentencing hearing is reversed. The judgment of the trial court is reinstated and affirmed. In all other respects, the judgment of the Court of Criminal Appeals is affirmed. Costs are assessed against the defendant. FONES, COOPER and HARBISON, JJ., concur. DROWOTA, C.J., files separate concurring opinion.
OPENING STATEMENT OF STATE'S COUNSEL
THE COURT: All right, are there any opening statements? MR. SHRIVER: Yes, if Your Honor please. May it please the Court, and ladies and gentlemen, you have found Cecil Johnson guilty of murder in the first degree. As we explained when we were questioning you, when you were picked, this is a two part process. Now your job is to decide what his punishment should be on those charges, the three, three sentences of, or the three charges of murder in the first degree. Now the, I think the first thing you need to keep in mind is that the debate here is not whether there ought to be a death penalty. That has already been decided. The United States Supreme Court has decided that, The Tennessee State Legislature which represents the people, and therefore the collective judgment of the people in Tennessee and in Davidson County, the Tennessee State Legislature has said there is a death penalty available as a punishment for murder in the first degree. So you are not debating whether there ought to be a death penalty in general. Your issue today is whether Cecil Johnson should experience the death penalty. Now in order to arrive at that and we asked you, if you will recall on the voir dire and the Judge will explain to you and I am satisfied the defense will, you also have the option of life imprisonment on those three murders. Those are your two options. That is all you have got to debate. You can, you can vote to him executed-now incidentally it is not you doing that. You are representing the reflective judgment, as I have already said, of the people of Tennessee and of the Supreme Court. Or you can sentence him to life in prison. In order to arrive at that judgment, you have to weigh certain things.
The statute says that the State must prove at least one aggravating circumstances. Now, that is sort of a strange concept. What it means is we have got to show something about this case and there is a list of them in the book here, we have got to show that there is something about this case that fits in one of several categories that make it worse than, and I don't know that it is fair to say there is an ordinary garden variety murder, but that it is worse than an ordinary murder. Those are the aggravating circumstances. Now we have to prove at least one of those.
Then the defendant will undertake to convince you that there are mitigating circumstances. Something that overcomes the bad things about this case which should cause you to determine not to impose the death penalty.
Now, the, the aggravating circumstances that we expect to rely on are these three: first that the defendant knowing created a great risk of death to two or more persons other than the victim murdered during his actual murder. We have already shown you, there wasn't just one murder, there were three murders. Moreover, there was a risk of great bodily harm to two or more other persons, Lewis Smith and Bob Bell, Sr. But for the grace of God they would be dead too. Bad aim is about the only thing that makes them alive today. So there was a substantial risk of bodily harm or death to two other persons.
The second aggravating circumstance we expect to rely on is this. That the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest for prosecution of the defendant or another. All the proof has made it quite clear here, that the purpose of these murders was to avoid identification, arrest and prosecution. They were utterly senseless except in that, in that context. There was no purpose for these murders. They were utterly willful, wanton and wasteful murders except for the purpose that he, he engaged in them and that was to avoid being identified, avoid being arrested, avoid being prosecuted.
Finally, the third aggravating circumstance that we expect to rely on is that the murder was committed while the defendant was engaged in committing a robbery. The proof has clearly shown that. He was found guilty of robbery. Those are the three statutory aggravating circumstances which we say justify your consideration of the death penalty.
Now the defendant will put on proof of the mitigating circumstances. Things that they say weigh against that. Now, I have looked at the list here and there are only two that I can conceive of having any relation to this defendant. One is that he had no significant history of prior criminal activities. The other is the youth of the defendant at the time of the crime.
Well, in the first one, no prior criminal acts. It seems to me there is no reason to even consider that as a mitigation in view of the enormity of the crime committed here. The second, his youth, he is twenty-four years old, that's not so youthful. I have assumed that that meant to apply to some juvenile or very young defendant.
Also, the defense is entitled to put on evidence of his character, and I am reading from the statute, his character, background, history, physical condition and any evidence tending to establish or rebut the aggravating circumstances. I don't know how to predict exactly what those are going to be. I am sure you are going to hear from people who think or thought before this happened that he was a good fellow. He may have been a good fellow. He may have been a pleasant man. But consider, keep in your mind, what he did here.
Now, the State is not going to put on any proof at this time, because we feel that we have already proved the aggravating circumstances that I have already mentioned, in the way that I have already stated to you. We have proved, we have proved to you through witnesses here in Court that he created the risk to two other people, that he did it to avoid arrest and conviction and that he did it in the course of a robbery. We therefore are relying on all of the witnesses who have already testified and ask that you incorporate and that the record show that their testimony in the guilt phase of this trial be incorporated by reference and included in the sentencing phase.
THE COURT: All right. Mr. Engle.
CLOSING ARGUMENT OF STATE'S COUNSEL (Whereupon the jury returned to open court and the following proceedings were had in its presence:)
MR. JOHNSON: Ladies and gentlemen of the jury, we are once again at a point of argument. We are, however, at the sentencing stage as I know all of you are well aware. It is though, what is at least terms in the statute as argument. As far as I am concerned at this point though I think that what we are in a position of doing is really trying to, what I hope to do is not much argument and more of a discussion with regard to the duties and responsibilities that all of you as jurors are now facing.
When you were called in originally and individually voir dired and asked questions, one of the things, probably the most important thing that you were questioned about by both sides were your feelings about the death penalty. Certainly that is something that before you entered this courtroom you had thoughts about, you had perhaps discussed, but you had never been in a situation in Court where the death penalty would necessarily be a reality.
If nothing more, we I am sure conveyed to you that this case was, of course, important, and, of course, significant but in addition we conveyed to you that any decision made in this case was not going to be an easy one regardless of what the proof was, regardless of how the evidence came out from that witness stand, the ultimate decisions that you had to make as jurors were going to be difficult ones. And they are made all that much more difficult by the fact that the death penalty is involved.
Now, all of you said at the beginning that you could consider the death penalty and that is all that we ask of you, is to consider the death penalty as it is set forth in the statute, because in order for you to take the oath that the Court administered to you, you had to be able, you had to be in a position to say that you could consider the law as it is in Tennessee. That you could make a true determination in this case according to the law and evidence. And that is what we are down to now. We are past the stage of guilt. We are past the question of guilt. Guilt has been resolved and determined by the jury yesterday afternoon, yesterday evening. In that resolution as you all remember, you found the defendant guilty of first degree murder. Not in one case, or not in one instance, but in three. And your function now has to do with taking those three situations, those three victims, the cases involving those three people and determining whether or not the law dictates that the death penalty shall be imposed. I will be very frank with you that you have convicted the defendant, he already, you have already given him a considerable period of time and certainly the easiest decision perhaps confronting the jury is to simply conclude that a life sentence on these three murders is what is justified.
While that may be the easiest decision, the question you as individual jurors must ask yourselves is how does that fit with what the law says, with what the law is in this State. That's what we are here about. That's what, that's what our entire argument here is about. Is looking at the law in the State of Tennessee and what do you as a juror, as a body, as jurors, what do you do? The jury is but one step in the process. The Legislature, as General Shriver spoke earlier, has enacted the death penalty, has put that into the body of the law in Tennessee, said that it is applicable in first degree murder cases. It set forth under what circumstances and how the death penalty should be considered and whether or not it will be imposed. And certainly the jury is, is part of that system. But it is just part of a process of determining what is the proper appropriate punishment for, in this case, Cecil Johnson. For his responsibility for three, three separate first degree murders.
Again, I can't emphasize enough that your situation is going to be unusual in the sense that you are going to have to, to assess the possibility, the punishment possibilities as to three victims. Not one, but three. Any one of those individuals, Little Bob, James Moore, Charles House, any one of them, their deaths, just their single death alone would be enough for this jury here to be considering and pondering whether or not a life sentence or whether it is death by electrocution.
Now, what the Legislature has done, the Judge will instruct you, is really taken I think a common sense approach to the punishment phase. All of you were questioned by both sides about the death penalty, and more importantly you were questioned about, I recall that many of you were asked, well do you consider the death penalty a punishment-would you consider the death penalty a punishment in all types of murder cases? And I think everyone said no, no, I can't go that far, I wouldn't go that far. Well, what the Legislature has done is more or less agreed with exactly that kind of thinking. The Legislature has acknowledged that the death penalty is really a punishment only available first of all, just first of all, in cases of first degree murder and it is, as in this situation, where that murder is premediated and we have been through all that before. But, just that fact alone, just the fact alone that the case is premeditated, would not necessarily mean that the death penalty automatically must follow. That once premeditated murder has been established, that the death penalty shall be imposed. Because the Legislature said that there are certain things that are, you might call aggravating circumstances or aggravating factors, things that take an already serious crime and make it that much worse. By the same token it recognized that there may be things that mitigate the crime. Either mitigate the crime itself, that is the facts of the crime itself, or should mitigate the punishment in favor of the defendant. Something about his personal background, his prior character, any factors like that. And that what the jury then essentially has to do is weigh the aggravating and mitigating circumstances under a formula, under a process, under a procedure, that the Legislature has set out and in that instance and with that understanding, that is where the jury fits in. Because the jury has sat and listened and deliberated first on the case regarding whether the defendant was guilty or not guilty and then on to the second phase, if you should find the defendant guilty, if you have, what is the proper punishment?
Now, what they said, and again the Judge will instruct you in this, but the first thing that a jury must do in the sentencing phase is they must decide whether or not the State, the State has proved beyond a reasonable doubt one or more, that one or more aggravating circumstances even exists. We don't even, we don't even get to anything more, you don't have to make any other determinations until you decide that first. Whether or not the State has made a case, proved beyond a reasonable doubt that one or more aggravating circumstances exists.
Then, then and only then do they, if you decide, if the jury decides that yes the State has proved beyond a reasonable doubt that the aggravating circumstances, one or more, do in fact exist, the next question is whether or not that aggravating circumstance or those aggravating circumstances are outweighed by any mitigating evidence, any mitigating circumstances that the defense has brought forth. The law goes on and says that if you should find that the aggravating circumstance or circumstances shown to you by the State are not outweighed by any mitigating circumstances-in other words, the mitigating circumstances do not rise to such a point that in your opinion they outweigh the aggravating features of the crime, that the punishment, and this is the Legislature's language, that the punishment shall be death. It is a weighing process. The Legislature has picked out certain features that it believes, as I say, take an already very, an already serious crime and make it that much worse.
Now specifically, what aggravating circumstances, what aggravating features is the State allowed? Now, there are three aggravating circumstances that the State says that by our case-in-chief, the evidence that we presented at the time of the original question of guilt or innocence, what we originally put on, that proof there we say demonstrates three, three aggravating circumstances.
We will do them in this order, but first of all, I am going to shorten it a little bit, use some shorthand, but, the circumstance itself is that the murder was committed while the defendant was engaged in committing or was an accomplice in the commission of, or was attempting to commit or was fleeing after committing, or attempting to commit, any, and in this case, robbery. In other words, any other serious felony. But now, murder was committed during a robbery.
Now the proof in that situation you have already heard. We have not only one, we have three murders. Murders plural. Committed during a robbery. And as a matter of fact the statute says, it says not only that the murder was committed while the defendant was engaged in committing a robbery, but also committed when the murder was, when the defendant was fleeing, fleeing from a robbery and we have- THE COURT: General, that is not in the statutory aggravating circumstances. MR. JOHNSON: I beg your pardon, if Your Honor please? THE COURT: That is not in your aggravating circumstances, the fleeing part. MR. JOHNSON: Well, if Your Honor please, I thought that our circumstances would take into account all of that language but if the Court is going to hold us to that, that is fine.
Ladies and gentlemen, in any event, what the situation is, is that this all occurred while the, while a robbery was taking place. That the murder, the murders, plural, were committed during, during a robbery. That is the first one. And we know what those are. We know what the proof is. We know that there was no resistance by anyone out there. We know that the robbery had in fact been accomplished. We know that the money had already been passed back to Cecil Johnson before the firing started. Before he shot Little Bob first, before he shot his father and before he shot Lewis Smith and before he went out and killed two more men outside. And what is more, you have got those two people, Mr. House and Mr. Moore outside who, the evidence showed, were shot dead where they sat with absolutely no warning, without absolutely any idea, without having done anything, anything whatsoever to deserve that kind of fate.
Well, what else do we have? The second one is that the defendant knowingly created a risk of death to two or more persons other than the victim. Again, created a risk. Of course he created a risk. We have, of course, three murder victims to begin with. Then we have the serious injuries to Mr. Bell and Mr. Smith where murder was the intent. They were, they were almost killed themselves. By that man right there. You heard the evidence itself. You heard the evidence from that stand as to what the intent was, where their wounds were, how they were injured, when they were injured. Again, another aggravating circumstance and we say it is established beyond a reasonable doubt. Then we come to the crux of this case and really the aggravating feature that had this case in mind.
MR. ENGLE: I would object to that. The General could not possible know what the legislature had in mind when they drafted this statute with reference to this case.
THE COURT: All right. Members of the jury, the last sentence you should disregard. Go ahead sir.
MR. JOHNSON: Well, in essence there is an aggravating circumstance that says that the murder was committed for the purpose of avoiding, interferring with, or preventing a lawful arrest for prosecution of the defendant or another. In short, what that means and I am just going to put avoiding arrest to cover this one, but in short what that means is killing a witness. Killing a witness. Something that has to be planned out. Something as we said earlier, is premeditated. Something that requires a deliberate act on the part of the killer. What we have got are three aggravating circumstances that have been established beyond a reasonable doubt. But look at them. The first two are interesting in the sense that what do they, what is aggravating about them? What is aggravating about them I submit is the fact that when a murder occurs during one of those, during a robbery, or when a murder occurs and it creates a risk to other people, what that demonstrates is that the defendant or the perpetrator of that crime is certainly completely wreckless with no disregard for the safety of other people in committing other acts. For instance in the first one where committing a robbery, commits it under circumstances where it is already automatically putting someone else's life in danger. Now, sure, that is a wanton disregard for the safety of another person, but how does that differ from the third? How does that differ from the question of killing a witness or in this case witnesses, plural? How does it differ? It differs because that, what is aggravating about that is the fact that it requires such a deliberate and conscious decision to kill. To deliberately make up one's mind that I am going to eliminate, that I am going to kill witnesses to my criminal behavior. And that is what we have in this case. That is what the case, that is what the State has told you from the very first, that what we have is a conscious, deliberate, premeditated attempt by the defendant to kill all the witnesses to the crime, a crime that he committed virtually in his own backyard, in his own neighborhood, in his own community, without the benefit of any disguise, without any effort whatsoever to disguise who he was, walks in there in a well lit market, holds up a man with whom he has traded with by any recollection of the proof from one to two to three to four times a week, who had not only been in there just a few days before, and goes in there and robs that market and then goes on to kill three of the five people that were there. Three of the five people that were there.
Witnesses are absolutely essential to the criminal justice system and that is why that feature there is an aggravating one. Where someone can deliberately set out to eliminate the very people, the very people that can be of assistance in prosecuting him and bringing that person to justice. What would have happened, what would have happened if Bob Bell and Lewis Smith had also been killed? Remember, remember that Lewis Smith, the only piece of identification he even had on him was a driver's license and the defendant took it. Took it before the robbery had even occurred, while he was hurding people in the back he was searching, he took the license, he said I don't even want you to have this on you, from the very start. From the very start. He went into that market with the idea that he was going to eliminate every single person that could put him in that market. Every single person that could come in and get on that, that witness stand and testify, yes, they saw Cecil Johnson rob that market. Yes, they were the victim of a robbery. And that is precisely what he did.
The defense has an opportunity, has had an opportunity to put on mitigating circumstances. Of course, they will have an opportunity to argue those mitigating circumstances after I sit down. At the present time the only mitigating, two mitigating circumstances I think they have really said anything about, one was the lack of any substantial prior record and the other was that he was twenty-four years of age. I am not, at this point, I don't really intend to discuss the mitigating factors. That is something that you are going to have to weigh and look at yourself. Compare those mitigating factors to those aggravating factors. But, what is I think important, is to remember the proof. All the proof that has come in here. Because it is a serious decision and I think it is safe to say and often is said that actions, actions speak louder than words. There are things that you as individual jurors, as individual people can, can see and can pick up on to determine what this case is all about, what Cecil Johnson is all about. What have you seen from that witness stand? What have you observed in this courtroom about Cecil Johnson? He is cool. He is calm. Unfeeling, unemotional, remorseless. No remorse. Remorseless that night. Cool that night. In the middle of an armed robbery, people were walking in and he has the presence of mind to put his arm around Bob Bell, the man whose son a few minutes later he was going to kill and say Bob you sure got some good barbecue. What about after the robbery? After the robbery he would go to his father's house, he was able to call the girlfriend to set up an alibi, able to go out and have a beer with a few people in the neighborhood. Able to eat breakfast at twelve or one o'clock in the morning.
What about his arrest? Cool. Turned himself in. Relied on his alibi. Said I was out of town, I was in Franklin. What about his testimony? Ladies and gentlemen, the Court will define for you the law in this particular case. It will set out the formula that you need to, to apply, how you must go about assessing what is the proper punishment. That is all that the State asks of you. Thank you.
Johnson v. Bell, 525 F.3d 466 (6th Cir. 2008) (Habeas).
Background: Following affirmance on direct appeal of petitioner's state court convictions for first degree murder, robbery, and assault, 632 S.W.2d 542, he filed petition for writ of habeas corpus. The United States District Court for the Middle District of Tennessee, Robert L. Echols, Senior District Judge, denied petition. Petitioner appealed.
Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that: (1) suppressed evidence was not material for Brady purposes; (2) alibi witness was not coerced by prosecution to change his story; (3) petitioner procedurally defaulted certain improper vouching claims; (4) questioning did not rise to the level of reversible prosecutorial misconduct; (5) prosecutor's improper remarks during closing argument did not amount to reversible prosecutorial misconduct; (6) differential between time frame for the crime set forth in prosecution's motion and time frame presented by government witnesses did not amount to reversible prosecutorial misconduct; and (7) defense counsel's failure to seek a continuance did not deprive petitioner of effective assistance of counsel. Affirmed. Batchelder, Circuit Judge, filed concurring opinion. Cole, Circuit Judge, filed dissenting opinion.
JULIA SMITH GIBBONS, Circuit Judge.
In 1981, petitioner-appellant Cecil C. Johnson, Jr., was convicted by a Davidson County, Tennessee, jury of three counts of first degree murder, two counts of robbery, and two counts of assault. Johnson was sentenced to death for the murders and received four consecutive life sentences for the remaining convictions. The convictions and sentences were upheld by the Tennessee Supreme Court on direct appeal, and the United States Supreme Court denied Johnson's petition for a writ of certiorari. Johnson twice sought post-conviction relief in state court; both attempts failed. Johnson filed the instant petition in federal court in January 1999. The district court granted respondent's motion for summary judgment and dismissed the petition. This court granted a certificate of appealability on six issues. For the following reasons, we affirm the judgment of the district court.
On July 5, 1980, Bob Bell's Market in Nashville, Tennessee, was robbed by an armed gunman. In the store at the time of the robbery were Bob Bell, Jr. (Bell), his son Bobbie, and Louis Smith, an acquaintance of Bell's. Bobbie Bell was helping at the cash register and Smith was working at the store repairing a motor for Bell. The assailant pointed a gun at Bell and ordered him and Smith behind the register where Bobbie Bell stood. While the captives were behind the counter, other customers entered the market. The gunman ordered the Bells and Smith to act naturally and attend to the customers. After the customers left, the gunman ordered Bobbie Bell to fill a bag with the money in the cash register.
Soon thereafter, the gunman began shooting. Bobbie Bell was shot first and later died from his wounds. After Bobbie Bell was shot, Smith threw himself on Bobbie in an effort to protect him from further harm. In the process, Smith was himself shot twice. The gunman then shot at Bell's head but, because Bell had lifted his hands, his wrist deflected the shot and Bell survived. As the gunman fled the market, he shot and killed two men-a cab driver and his passenger-who were sitting in a car parked near the entrance to the market. The cab driver was later identified as James Moore and the passenger as Charles House, a customer who had entered the market moments before the gunman began shooting his victims. Bell left the market and attempted to follow the gunman but was unable to do so successfully.
Information Bell gave to police officers immediately after the robbery led to Johnson's arrest on July 6, 1980. At trial, both Bell and Louis Smith identified Johnson as the perpetrator of the crimes. In addition, Debra Smith, a customer who entered the market during the commission of the robbery, identified Johnson as having been behind the counter with Bell, Bobbie Bell, and Louis Smith.
Johnson was also connected to the crimes by Victor Davis, a friend who had spent most of July 5, 1980, in the company of Johnson. During the course of the investigation, Davis made statements to the prosecution and defense that provided Johnson with an alibi. In essence, Davis said that he and Johnson were together continuously from roughly 3:30 p.m. on July 5 until approximately midnight and that at no time did they visit Bell's Market. However, the week before the trial, and after he was arrested on unrelated charges, Davis made a statement to the prosecution incriminating Johnson. At trial, Davis, who was promised immunity from prosecution for any involvement in the crimes committed at Bell's Market, confirmed his statements incriminating Johnson. According to Davis's testimony, he and Johnson left Franklin, Tennessee, at approximately 9:25 p.m. on July 5 and arrived in Nashville in the vicinity of Bell's Market shortly before 10:00 p.m. Johnson then left Davis's automobile after stating that he was going to rob Bell and was going to “try not to leave any witnesses.”
Davis testified that he next saw Johnson some five minutes later near Johnson's father's house, which was roughly a block from Bell's Market. Davis stated that Johnson was carrying a sack and pistol and, when he entered Davis's automobile, Johnson said, “I didn't mean to shoot that boy.” Johnson discarded the gun, which Davis later retrieved and sold the following day. Davis further testified that after he picked up Johnson, they drove directly to Johnson's father's house, arriving shortly after 10:00 p.m. There, in the presence of Johnson's father, Johnson took money from the sack, counted approximately $200, and gave $40 of this money to Davis. According to Davis, Johnson told his father that he and Davis had been gambling and that gambling was the source of the money.
Johnson testified on his own behalf and denied being in Bell's Market on July 5, 1980. His testimony as to the events of the day was largely in accord with that of Victor Davis, except for the time just before 10:00 p.m. Johnson testified that he never left Davis's automobile on the trip from Franklin to Johnson's father's house in Nashville and that he arrived at his father's house shortly before 10:00 p.m. Johnson's father testified that Johnson arrived a few minutes before 10:00, just before the 10:00 p.m. news began.
After hearing all the evidence, a Tennessee jury convicted Johnson of three counts of first degree murder, two counts of assault with intent to commit murder, and two counts of armed robbery. The jury recommended that Johnson be sentenced to death on each count of first degree murder and to consecutive life sentences on each of the remaining counts. The trial court accepted this recommendation and imposed the death penalty. On direct appeal in 1982, the Tennessee Supreme Court affirmed Johnson's convictions and sentence. State v. Johnson, 632 S.W.2d 542 (Tenn.1982). The United States Supreme Court denied Johnson's 1982 petition for a writ of certiorari. Johnson v. Tennessee, 459 U.S. 882, 103 S.Ct. 183, 74 L.Ed.2d 148 (1982). Johnson filed an application to stay the execution with the Tennessee Supreme Court in December 1982, pending the filing of a state petition for post-conviction relief, which was granted. In January 1988, the Tennessee Court of Criminal Appeals affirmed the trial court's judgment in part but reversed and remanded the case for a new sentencing hearing on the first degree murder convictions, based on error under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).FN1
FN1. The Court of Criminal Appeals found that the jury's death penalty sentence was invalid because the prosecutor improperly attempted to minimize the role and responsibility of the jury in imposing the death penalty. Johnson v. State, No. 83-241-III, 1988 WL 3632, at *13 (Tenn.Crim.App. Jan.20, 1988).
Both Johnson and the State filed applications to appeal to the Tennessee Supreme Court. The Tennessee Supreme Court reversed the appellate court's reversal, reinstated the death sentences, and affirmed the denial of relief on Johnson's claims in all other respects.FN2 Johnson v. State, 797 S.W.2d 578 (Tenn.1990). In September 1990, Johnson filed a petition for rehearing with the Tennessee Supreme Court, which was denied, as was Johnson's motion for leave to file a second petition for rehearing.
FN2. The Tennessee Supreme Court found that the prosecutor did not attempt to minimize the jury's degree of responsibility, as the appellate court had found, and that Johnson could not benefit from retroactive application of the new constitutional rule established in Caldwell, as Johnson's conviction had become final before the Caldwell decision. Johnson v. State, 797 S.W.2d at 580.
Johnson filed his first federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in February 1991. Shortly thereafter, Johnson received information pursuant to a request under the Tennessee Open Records Act suggesting that the prosecution may have suppressed exculpatory material evidence at trial, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court granted Johnson's request to add this Brady claim to his petition. In February 1995, while his first habeas petition was still pending, Johnson filed a second post-conviction petition in state court, which was denied by the trial court and affirmed by the state appellate court. Johnson requested permission to appeal to the Tennessee Supreme Court, and while his application was pending, the federal district court dismissed his first habeas petition without prejudice, pending the exhaustion of the claims he had raised in his second petition for post-conviction relief. In October 1998, the Tennessee Supreme Court denied Johnson permission to appeal. Johnson filed his current, second habeas petition in federal district court on January 25, 1999. The district court granted the government's motion for summary judgment on all ten of Johnson's claims.
This court reviews de novo a district court's decision to grant or deny a petition for a writ of habeas corpus. Burton v. Renico, 391 F.3d 764, 770 (6th Cir.2004). Because Johnson filed his habeas petition on January 18, 1999, this appeal is governed by the provisions of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a claim that was adjudicated on the merits in State court proceedings only if the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state-court decision is contrary to clearly established federal law “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision is an unreasonable application of clearly established federal law if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case,” id. at 407-08, 120 S.Ct. 1495, or if it “either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply,” id. at 407, 120 S.Ct. 1495. Under 28 U.S.C. § 2254(e)(1), a state court's determination of a factual issue is presumed correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. This presumption also applies to the factual findings that the state appellate court makes on its review of the state trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003).
This court granted a certificate of appealability for the following issues: (1) whether the prosecution's failure to disclose material evidence violated Johnson's constitutional rights; (2) whether the prosecution violated Johnson's right to compulsory process by improperly coercing a defense witness; (3) whether the prosecution committed misconduct by improperly interfering with defense witness Victor Davis; (4) whether the prosecution committed misconduct by improperly vouching for a witness's credibility and inflaming the passions of the jury during closing argument; (5) whether the cumulative prosecutorial misconduct resulted in a violation of Johnson's constitutional rights; and (6) whether Johnson's trial counsel rendered ineffective assistance during the guilt phase by not moving for a continuance in light of certain pretrial developments and by not seeking the recusal of the prosecutors after they participated in the conversion of Victor Davis to a prosecution witness. We address these issues in turn.
We first consider whether the prosecution's failure to disclose material evidence violated Johnson's constitutional right to due process. After filing a request for information under the Tennessee Open Records Act in 1992, Johnson received several police and medical reports that were not previously provided to him, which he contends undermine the credibility of certain witnesses. Johnson asserts that the following documents were exculpatory and withheld by the prosecution: (1) a July 6, 1980, report prepared by Detective Jerry Moore of the Metropolitan Police Department concerning his interview of Bob Bell; (2) a July 11, 1980, report of Officer J. Dobson concerning his interview of Louis Smith; (3) a July 5, 1980, report of Detective William Flowers concerning his interview of Louis Smith; (4) a July 5, 1980, report of Officer John Patton concerning his interview of Louis Smith; (5) a pleading filed by the defense in State v. Louis Edgar Smith, No. C6175-A, which was received by the Davidson County District Attorney's office on approximately November 11, 1980; (6) a July 6, 1980, report prepared by Detective William Robeck concerning his interview of Louis Smith; and (7) a “History of Physical Examination” report prepared by Robert Stein, M.D., concerning his examination of Bob Bell at Baptist Hospital on July 5, 1980.
Johnson contends that the decision of the Court of Criminal Appeals with respect to the documents was contrary to the Supreme Court's decisions in Brady and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). The Court of Criminal Appeals identified Brady as the controlling authority and relied on United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), and, to a lesser extent, Kyles for the standard for determining materiality in a Brady claim. See State v. Johnson, 1997 WL 738586, at *4. The Court of Criminal appeals concluded that the evidence was indeed exculpatory but, viewed collectively, it was not material. Id. at *4-8. Because the Tennessee Court of Criminal Appeals rejected Johnson's Brady claim on the merits, id., the deferential AEDPA standard applies. See Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir.2005).
Under Brady, “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” FN3 373 U.S. at 87, 83 S.Ct. 1194. To assert a successful Brady claim, a habeas petitioner must show that: (1) evidence favorable to the petitioner, (2) was suppressed by the government, and (3) the petitioner suffered prejudice. Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004).
FN3. We note the Kyles Court's iteration of Justice Blackmun's statement in Bagley that “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. We have never held that the Constitution demands an open file policy ... and the rule in Bagley (and, hence, in Brady) requires less of the prosecution than the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures of any evidence tending to exculpate or mitigate.” 514 U.S. at 436-37, 115 S.Ct. 1555 (internal citations omitted).
We proceed directly to the issue of prejudice, or materiality,FN4 which is determinative of the Brady claim. Favorable evidence is material under Brady “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. 3375. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 289-90, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The materiality requirement is not a sufficiency of the evidence test; the defendant need not demonstrate that disclosure of the suppressed evidence would have resulted in acquittal. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. Further, we conduct our review mindful of the Supreme Court's instruction that “suppressed evidence [must be] considered collectively, not item by item,” when addressing the prejudice question. Kyles, 514 U.S. at 436, 115 S.Ct. 1555; see also Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir.2003).
FN4. “Demonstrating prejudice requires the defendant to show that the suppressed favorable evidence at issue is material.” United States v. Jefferson, 134 Fed.Appx. 52, 54 (6th Cir.2005) (citing Strickler, 527 U.S. at 282, 119 S.Ct. 1936).
Johnson's Brady claim centers on the use of the withheld material to impeach three witnesses who testified at his trial: Bob Bell, Louis Smith, and Debra Smith. As noted previously, seven documents are at issue, five of which relate to Louis Smith. Smith was working at Bell's Market at the time of the robbery and testified about the events that occurred that day. Smith's testimony corroborated the testimony of Bob Bell and provided details regarding the facts and time sequence of the robbery. He remembered a few customers entering and leaving the market but stated that he did not take close note of the customers because he was focused on the assailant. He was uncertain about the number of customers and their gender but thought that there were two or perhaps three-two men and a woman, perhaps with a child. Smith said he really did not remember about the customers “for sure” and doubted that he could identify any of them except the last one. At trial, Smith identified Johnson in court as the perpetrator of the robbery and murders. He further testified that the assailant was a black male approximately 5' 8? and 160 pounds. Smith also testified that, while he was in the hospital, he picked two photographs from a photo array that closely fit his description of the assailant.FN5 Additionally, he testified that he later viewed a lineup at the police department. Because police had told him to mark the card only if he was certain of his identification, he did not do so. He verbally identified number two for police, however, noting that the curled hair differed from that of the robber.FN6 Johnson's counsel questioned Smith about a prior statement that the robber had no facial hair.
FN5. Smith did not testify that the individual in either of the photographs was Johnson. FN6. Person number two was in fact Johnson, who apparently had placed his hair in curlers for the lineup.
The five documents relating to Louis Smith include: (1) a July 5, 1980, report of Detective William Flowers concerning his interview with Smith; (2) a July 5, 1980, report of Officer John Patton concerning his interview with Smith; (3) a July 11, 1980, report of Officer J. Dobson concerning his interview of Smith, which apparently occurred on July 5, 1980; (4) a July 6, 1980, report of Detective William Robeck concerning his interview with Smith; and (5) a request for continuance of a November 11, 1980, trial date and notice of insanity defense filed on Smith's behalf in a criminal case in which Smith was charged with an offense occurring prior to July 5, 1980. The Flowers report indicates that Smith said he could not describe the suspect at that time but was willing to be interviewed again later, while Patton states that Smith says he did not get a good look at the suspect. Dobson says in his report that Smith, who was in a great deal of distress and “near death,” identified the suspect as a young black male but indicated that he could not see his face. The Robeck report indicates that Smith picked out photos five and six from the photo display shown to him in the hospital.FN7 Robeck also uses masculine pronouns to refer to two customers whom Smith told him entered the store during the robbery. The pleading in Smith's criminal case gives defense counsel's opinion that there was a “reasonable probability” that the most appropriate defense in the case would be either insanity or diminished capacity. FN7. Photograph four was the photograph of Johnson.
Certainly, the officers' reports would have assisted Johnson's cross-examination of Smith at trial, calling into question Smith's identification of Johnson and his ability to recall the events of the evening of July 5. Their contribution would have been limited, however, for several reasons. All of them were taken at a time when Smith could hardly have been expected to describe the events of the evening of July 5 with detailed clarity; Smith was in the hospital and “in distress” with gunshot wounds in his neck and hand. Moreover, defense counsel was able to successfully impeach Smith about identification of Johnson and his recollection of the events of the evening, based on the information he did have. Smith admitted that by the time he verbally identified Johnson at the police department, he had seen Johnson on television in connection with his arrest. He was uncertain in his responses to the questions about facial hair. His testimony did not suggest that Johnson was one of the individuals he identified from the earlier photo lineup in the hospital. And Smith conceded that he was not sure about the number of customers who entered the store and their gender and likely could identify only one of them. Given Smith's testimony and other eyewitness identifications of Johnson, the overall impeachment value of these reports, viewed collectively, is fairly minimal.
With regard to the notice of insanity defense filed in Smith's criminal case, this document has no value as impeachment material. Assuming that cross-examination about it would have been permitted, doubtless questioning would also have elicited the information that a psychiatric examination of Smith failed to support the claimed defense.FN8
FN8. Moreover, as this document was publically available, it simply does not present a Brady issue. See Bell v. Bell, 512 F.3d 223, 235 (6th Cir.2008) (en banc).
The two remaining withheld items relate to Bob Bell. In the undisclosed July 6, 1980, statement given to Detective Moore the morning after the robbery and while Bell was still hospitalized, Bell indicated that the assailant had no facial hair. Because Johnson's mug shot taken one day after the robbery revealed that he had some facial hair,FN9 Johnson's counsel questioned Bell on the issue of Johnson's facial hair, even though he was unaware of Bell's statement to Moore. Bell testified that he focused on the assailant's eyes during the robbery and noticed nothing distinctive about his facial hair. The second relevant document is a medical report, completed the night of the murders, which contained a single statement noting that Bob Bell's medical history indicated “some mental instability.” This statement provides little information, and any impeachment value would have been slight. We also note that Bob Bell was an extremely sympathetic witness and any cross-examination regarding his mental health would by necessity have been delicate at best. Bell had just seen his son murdered, was already familiar with Johnson, and had considerable interaction with the assailant during the course of the robbery. These factors would have minimized any impeachment value stemming from either Bell's statement to Detective Moore or the withheld medical report. Moreover, after the robbery, Bell identified Johnson as the perpetrator on four separate occasions. Bell also identified Johnson at trial and stated that he knew Johnson as a customer who had frequented his market in the past. As a consequence, even in light of the withheld evidence, Bob Bell's testimony remains persuasive.
FN9. The Tennessee Court of Criminal Appeals described Johnson's facial hair as “a faint mustache and a goatee.” State v. Johnson, 1997 WL 738586, at *5. Johnson's mug shot, included in the appellate record, confirms this characterization.
Finally, Johnson argues that Detective Robeck's July 6, 1980, report could have been used to impeach Debra Smith, the customer who entered the store during the robbery and the state's third eyewitness. Ms. Smith, no relation to Louis Smith, testified that she went to Bell's Market on the day of the robbery between 9:30 p.m. and 9:50 p.m. According to her testimony, Debra Smith entered the market alone while Johnson was in the store, recognized him on the basis of their prior acquaintance, and was aware that a robbery was ongoing but nevertheless purchased a soft drink and then returned home. Other than informing her boyfriend and sister of the robbery, Smith did not communicate her knowledge of the incident until contacted by the police on July 15, 1980. At trial, Smith explained that she chose not to report her experience because she knew Johnson and wished to remain uninvolved. As mentioned above, Robeck's report implies that Louis Smith referenced only males entering the market, thus potentially calling into question whether Debra Smith ever entered Bell's Market on the evening of the robbery. Putting aside the evidentiary difficulty of impeaching Debra Smith with the statement of Louis Smith made to Robeck, we note that Debra Smith's testimony was already relatively weak, as it was marked by inconsistencies and statements that called her veracity, or at least the accuracy of her memory, into question. Among other things, Smith contradicted herself by describing Louis Smith as both African-American and Caucasian in her testimony. Johnson's counsel also significantly impeached Smith's contention that she was quite familiar with Johnson and his family. We find that any further impeachment of Ms. Smith would have had little, if any, impact on her persuasiveness with the jury.
The thrust of Johnson's argument is that the decision of the Court of Criminal Appeals is contrary to Kyles. Johnson argues that the testimony of two witnesses in Kyles remained untainted by the Brady violations, while the Brady material in this case impeaches all three primary witnesses, thus making his an “easier” case than Kyles. Such a numerical comparison alone tells us little about whether the suppressed evidence, when viewed collectively, undermines confidence in the verdict. The suppressed evidence in Kyles far exceeded that suppressed here as measured both by quantity and exculpatory persuasiveness. In Kyles, the withheld evidence strongly indicated that “Beanie,” the primary informant who led investigators to Kyles, had actually planted the incriminating evidence. Kyles, 514 U.S. at 425-32, 115 S.Ct. 1555. Beanie also fit the physical description given by other eyewitnesses and was the primary suspect in another recent murder involving the same modus operandi. Id. Finally, the withheld evidence established that the six eyewitnesses gave substantially different physical descriptions of the assailant at the scene of the crime, only one of which roughly matched Kyles. See id. at 423-28, 115 S.Ct. 1555. Here, three eyewitnesses separately identified Johnson as the perpetrator of the crimes.FN10 In sum, this is not a case where, as in Kyles, substantial withheld evidence indicated that another person, not the defendant, was in fact the guilty party.
FN10. We also note that the testimony of these three witnesses was strengthened by the testimony of Victor Davis, which provided a detailed description of Johnson's activities on July 5, 1980, and placed Johnson at Bell's Market during the time of the murder. Davis's testimony was not affected by the documents that form the basis of the Brady claim.
A defendant proves a Brady violation “by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. 1555. In this case, the suppressed evidence, viewed collectively, does not so undermine our confidence in the verdict as to be “material” for Brady purposes. We therefore conclude that the decision of the Tennessee Court of Criminal Appeals was not contrary to, or an unreasonable application of, federal law as determined by the Supreme Court. We affirm the district court's grant of summary judgment to the respondent on this claim.
We next consider Johnson's contention that the prosecution committed misconduct and violated his right to compulsory process by improperly coercing defense witness Victor Davis.FN11 Victor Davis was originally scheduled to be Johnson's principal alibi witness at trial. After the robbery, Davis told defense investigators and the police that he was with Johnson the entire day of July 5, 1980, and that Johnson did not have an opportunity to commit the murders. In his statements shortly after the incident, Davis made no mention of Johnson's discussing his intention to rob Bell's Market or any statement by Johnson regarding the murders or their aftermath. District Attorney General Sterling Gray testified that, in early January 1981, he spoke with Davis's attorney and police officer Gordon Larkin about speaking with Davis before commencement of Johnson's trial. Larkin testified that on the afternoon of January 9, 1981, he told police officer John Patton that Gray wished to talk with Davis.FN12 Near midnight that evening, Patton arrested Davis for public drunkenness and carrying a weapon. Patton testified that Davis was one of three unknown males who were stopped because of suspicious behavior near a gas station that had been robbed in the past. Patton further testified that he recognized Davis only after Davis attempted to leave the stopped car while Patton was questioning the driver. At trial, Davis acknowledged that he had been drinking alcohol and smoking marijuana that evening.
FN11. Both the compulsory process and misconduct issues concern whether the prosecution improperly coerced or interfered with defense witness Victor Davis. We therefore address these claims together. FN12. Patton knew Davis because he had previously arrested him on an unrelated matter.
Patton arrested all three men and took them for booking. On the ride downtown, Patton called Larkin on the police radio and asked Larkin if he still wanted to talk to Davis. At approximately 1:00 a.m. on January 10, 1981, Larkin met Patton at the booking room and took Davis with him to the District Attorney's office, where Gray and a criminal investigator were waiting. Davis testified that he was interrogated for approximately three and one-half hours that morning. After initially requesting his attorney, Davis withdrew the request after being told that he was being questioned only about Johnson, not unrelated burglary and robbery charges that were also pending against Davis. During this interrogation, Davis gave incriminating details related to Johnson's involvement in the Bell's Market murders. Davis returned to Gray's office with his attorney on Monday, January 12, 1981, and provided Gray with a detailed statement. During this January 12 meeting, Gray offered Davis immunity from prosecution for crimes related to the Bell's Market incident if he would testify in court. On January 21, 1981, the State dismissed the weapons possession and public drunkenness charges against Davis.
Johnson maintains that the state courts never addressed the merits of this claim. To the contrary, both the Tennessee Supreme Court (on direct appeal) and the Tennessee Court of Criminal Appeals (on post-conviction review) addressed the claim and determined that the questioning of Davis was not coercive. Specifically, the Tennessee Supreme Court found that the fundamental claim being asserted was that Victor Davis's constitutional rights- not Johnson's-had been violated. State v. Johnson, 632 S.W.2d at 546. As a consequence, Johnson lacked standing to challenge any such alleged violation. Id. (“Even if the law enforcement officials violated Davis's [constitutional] right[s] ... these are rights personal to Davis and can only be asserted by him and not by some other person, such as [Johnson], who might be adversely affected by information elicited during the detention and interrogation.”). The Tennessee Court of Criminal Appeals arrived at the same conclusion. See Johnson v. State, 1988 WL 3632, at *8-9 (finding both that the Tennessee Supreme Court had already addressed the question and that Davis did not change his testimony in response to threats and intimidation but instead “was arrested legitimately for offenses unconnected with the petitioner's charges ... [and Davis's] recanted testimony was freely given”). The deferential AEDPA standard therefore applies, the state courts' determination of factual issues is presumed correct, and Johnson bears the burden of rebutting this presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 400 F.3d at 313.
The Supreme Court has recognized that a party's right to present his or her own witnesses in order to establish a defense is a fundamental element of due process.FN13 Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Government conduct that rises to the level of substantial interference with a witness's “free and unhampered determination to testify” violates this right. United States v. Foster, 128 F.3d 949, 953 (6th Cir.1997). Johnson contends that Davis's testimony was coerced as a part of the pretrial arrest and questioning-which deprived him of his primary defense witness-and this constituted a denial of compulsory process under Washington and Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).FN14
FN13. The right to compulsory process is applicable to the states through the Fourteenth Amendment. Washington, 388 U.S. at 18-19, 87 S.Ct. 1920. FN14. Johnson characterizes the prosecution's treatment of Victor Davis as both a violation of his compulsory process rights and a “stand alone” instance of prosecutorial misconduct. Johnson addresses both claims together and does not provide a separate legal analysis for his misconduct claim with regard to Victor Davis. He does, however, include this allegation in his cumulative prosecutorial misconduct claim. Because we find that the prosecution's treatment of Victor Davis did not constitute misconduct, it has no impact on our consideration of Johnson's cumulative misconduct argument, as discussed more fully below.
Johnson fails to show how the Tennessee state court decisions are contrary to, or an unreasonable application of, Supreme Court precedent. Johnson relies exclusively on Washington and Webb, which are easily distinguished. In Washington, the Court found that a Texas statute violated the defendant's right to compulsory process by “arbitrarily den[ying] him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” Washington, 388 U.S. at 23, 87 S.Ct. 1920. Here, there is no indication that Davis was ever prevented from testifying on Johnson's behalf. Rather, he chose of his own accord to testify for the government. Although the Washington Court articulated the basic parameters of a defendant's compulsory process rights, nothing in the opinion is directly contrary, or even related, to Johnson's experience. See id. at 19, 87 S.Ct. 1920 (noting generally that “[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies”).
Webb is similarly inapposite. In Webb, the defendant called his only witness, Leslie Mills, but before Mills could testify, the court of its own initiative admonished the witness of the consequences of perjury, including stating that “the Court will personally see that your case goes to the grand jury and you will be indicted [and you will likely] get convicted of perjury and [it] would be stacked onto what you have already got.” Webb, 409 U.S. at 95-96, 93 S.Ct. 351. The Webb Court concluded that the witness was willing to testify on the defendant's behalf, but was dissuaded solely by the comments made by the trial court. Id. at 97, 93 S.Ct. 351. The Court found that “[i]n the circumstances of this case ... the judge's threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived the petitioner of due process of law under the Fourteenth Amendment.” Id.
Johnson contends that the prosecutors' treatment of Davis differs in no material respect from the treatment Mills experienced. We disagree. Davis's detention was for an unrelated crime and was the product of a lawful arrest. The record confirms that Davis knowingly and voluntarily waived his right to counsel when he learned that the January 10, 1981, interrogation would be limited to the Bell's Market incident. Two days later, Davis and his attorney went to the office of the district attorney, where Davis repeated his statement in the presence of his counsel, reduced the statement to writing, and signed it as true. Moreover, Davis testified at trial and both parties were able to explore the circumstances of Davis's arrest, detention, and testimony implicating Johnson. The defense was able to question Davis fully about his earlier statements exculpating Johnson. The jury was free to consider the circumstances of Davis's statements, which, presumably, informed its evaluation of Davis's credibility. This bears no resemblance to the trial court's overt threats and insinuations in Webb.
We cannot say that the prosecutorial conduct here substantially interfered with Davis's free and unhampered discretion to testify as he saw fit. See Davis v. Straub, 430 F.3d 281, 287 (6th Cir.2005) (interpreting and applying Webb ). We therefore find that the decisions of the Tennessee courts were not contrary to, or an unreasonable application of, federal law as determined by the Supreme Court, and therefore this claim fails.
Johnson also contends that multiple instances of misconduct on the part of the prosecutor violated his due process right to a fair trial. This court granted a certificate of appealability on the following issues, all related to prosecutorial misconduct: (1) whether the prosecutor committed misconduct by improperly interfering with defense witness Victor Davis; (2) whether the prosecutor committed misconduct by improperly vouching for a witness's credibility and inflaming the passions of the jury during closing argument; and (3) whether the cumulative prosecutorial misconduct resulted in a violation of Johnson's constitutional rights. With respect to the cumulative prosecutorial misconduct claim, Johnson asserted two further issues in his request on this issue: the State improperly concealed the identity of Debra Smith as a government witness, and the State misrepresented the time of the offense.
The relevant question in analyzing a claim for prosecutorial misconduct on habeas review is “whether the prosecutors' comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (internal quotation marks omitted). To satisfy this standard, the conduct must be both improper and flagrant. Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006); see also Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir.1997) (noting that reversal is required if the prosecutor's misconduct is “so pronounced and persistent that it permeates the entire atmosphere of the trial or so gross as probably to prejudice the defendant”) (internal citation omitted). If conduct is found to be improper, four factors are then considered to determine whether the conduct was flagrant and therefore warrants reversal: “(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.” Bates v. Bell, 402 F.3d 635, 641 (6th Cir.2005).
Because we previously addressed the prosecution's alleged interference with Davis, we turn now to the remaining issues.
Johnson contends that the prosecutor improperly vouched for Victor Davis's credibility. “Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the [government] behind that witness.” United States v. Francis, 170 F.3d 546, 550 (6th Cir.1999). Improper vouching typically involves either blunt comments or some implication that the prosecutor has special knowledge of facts not before the jury related to the credibility of a witness. Id. Johnson asserts that various statements made by the prosecution in its direct examination of Victor Davis constituted improper bolstering of the Davis's credibility. See id. (“Bolstering and vouching are much alike and go to the heart of a fair trial. Bolstering occurs when the prosecutor implies that the witness's testimony is corroborated by evidence known to the government but not known to the jury.”).
The district court found that significant portions of Johnson's claim were defaulted, and we agree. This court has explained the doctrine of procedural default as follows: When a habeas petitioner fails to obtain consideration of a claim by a state court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). On direct appeal, Johnson's brief to the Tennessee Supreme Court raised objections only to five allegedly leading questions. When Johnson filed his petition for post-conviction relief with the Tennessee Court of Criminal Appeals, he nevertheless cited the same twenty-one allegedly leading questions that he would later cite in his federal habeas petition. The Court of Criminal Appeals held that Johnson's additional claims were defaulted. Johnson v. State, 1988 WL 3632, at *8 (finding that the claims had “been previously determined or waived and [are] therefore foreclosed from review in a post-conviction proceeding [under] Tenn.Code Ann. § 40-30-112”). Accordingly, we find that the appellate court did indeed rely on Johnson's failure to comply with state procedural rules in denying review. See Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (“[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.”) (internal quotation marks omitted). The Tennessee Supreme Court-also relying on Tenn.Code Ann. § 40-30-112-found that Johnson had raised twenty-six issues on appeal, all of which were either previously determined or waived due to failure to present them at trial or on direct appeal.FN15 Johnson v. State, 797 S.W.2d at 582. Like the district court, we find that, with the exception of the five objections made on direct appeal, Johnson's objections were procedurally defaulted.
FN15. The Tennessee Supreme Court found that the intermediate appellate court “properly reviewed, considered and dealt with [these issues] appropriately.” The Court reversed on grounds not before this court.
As mentioned, Bell's claims as to certain statements were adjudicated by the state courts on the merits and exhausted and therefore are properly before this court. Those include the following statements made by District Attorney General Gray during his questioning of Davis on direct: Gray: Tell the jury what I told you Mr. Johnson [sic-Davis], Saturday morning .... Gray: What did I say to you about this case in terms of what you knew when I talked to you? ... Gray: Now, on Monday, of this week you came to our office with you [sic] attorney, is that correct? ... At that time you sat down and gave us a detailed statement of what you have just told the jury, right? ... Gray: Prior to doing that on Monday I told you that you had immunity in this case if you would testify, is that correct ... if you told the truth about what you knew about it, is that right?
Finally, during closing argument, Gray stated: [B]ecause I wanted you [the jurors] to have the benefit of every piece, everything we knew about this case because of the magnitude of this case.... If you haven't done anything you can't be indicted. If you haven't done anything there is no reason to be frightened.... [T]he burden that was on me was to [victims] Mr. Bell and to Mr. Smith and Mr. House and Mr. Moore, saying to them I know a person that was involved in either the death of your son or the robbery and I can't do nothing with him. That's the thing, that's the burden that was on me. But I had no proof, so I told him, if you will tell the truth, get up there and tell the truth, then yes, you will [sic] have to worry about what happens to you in this case. But the burden that I had was a burden to them. Because I know that he is involved. He knows that he is involved, but I can't do nothing with him. I can't come before you, ladies and gentlemen, without proof on a person. That's not the way our law is written.
Johnson contends that these statements were calculated to bolster Davis's credibility with the jury. The Tennessee Supreme Court reviewed these passages and rejected the objections as without merit. State v. Johnson, 632 S.W.2d at 545. Johnson offers nothing on appeal to indicate that the decision of the state court was in error. We find that the statements here at issue, in the particular context in which they were made, do not rise to the level of misconduct.FN16 Cf. Hodge, 426 F.3d at 377-80 (finding the prosecutor's statements that a key witness was “lying to extricate himself from what he's done” and that another key witness was “absolutely believable” constituted misconduct).
FN16. We note that it is not necessary for the prosecutor actually to use the words “I believe,” or some similar phrase, for a statement to constitute an improper comment on the credibility of witnesses. See Hodge v. Hurley, 426 F.3d 368, 379 n. 20 (6th Cir.2005). However, we find that Gray neither directly nor indirectly vouched for Davis's credibility through the statements at issue. See Francis, 170 F.3d at 550.
Johnson next contends that District Attorney General Shriver inflamed the passions of the jury by improperly using inflammatory language and injecting statements of personal interest into his closing argument. We agree.
In his closing rebuttal argument, Shriver told the jury: I have a very personal interest in this case and I suppose that is why I am here today. Little Bob Bell, twelve years old, started out in the first grade at Burton School with my twelve year old daughter. They started, they have gone through school together. Burton School, Stokes School, would have gone to John Trotwood Moore together this year. It could have been my little girl that was in that store, a witness eliminated. It could have been you. It could have been your children. It could have been any one of us, if we decided that we wanted to buy something from Bob Bell, at nine fifty-eight on July 5, 1980, we would have been dead.
Closing arguments that encourage juror identification with crime victims are improper. See Hodge, 426 F.3d at 384. Similarly, a prosecutor illicitly incites the passions and prejudices of the jury when he calls on the jury's emotions and fears-rather than the evidence-to decide the case. See Gall v. Parker, 231 F.3d 265, 315 (6th Cir.2000) ( overruled on other grounds by Bowling v. Parker, 344 F.3d 487, 501 n. 3 (6th Cir.2003)). Here, the prosecutor's remarks were clearly calculated to trigger the jurors' emotions and fears. We therefore find the statement improper.
Because we find the statement improper, we must address whether the statement was flagrant and therefore warrants reversal.FN17 See United States v. Monus, 128 F.3d 376, 394 (6th Cir.1997). “Even if the prosecutor's conduct was improper or even ‘universally condemned,’ we can provide relief only if the statements were so flagrant as to render the entire trial fundamentally unfair.” Bowling, 344 F.3d at 512 (internal citation omitted). Only one of the “flagrancy” factors is apposite in this case. It is apparent that the prosecutor referenced his own child-and the possibility that the jurors themselves could have been involved-quite deliberately. See Bates, 402 F.3d at 641. No other factor is applicable. Nothing in the record indicates that the remarks were intended to mislead the jury; the statements were undoubtedly intended to trigger the jurors' emotions, but they were made in the context of the prosecutor's recitation of the facts of the case. Indeed, throughout his rebuttal argument, Shriver encouraged the jury to focus on the evidence before it in reaching a decision. Further, the prosecutor's remarks-at least those before this court-were isolated. Finally, the evidence against Johnson was substantial and included the testimony of three eyewitnesses, in addition to Victor Davis. We therefore conclude that the prosecutor's remarks, though improper, were not flagrant.
FN17. We agree with the district court's conclusion that, although the prosecutor's statement was set forth in Johnson's direct appeal brief, the Tennessee Supreme Court did not specifically address whether the comments were improper. Once a federal claim has been presented to a state's highest court, the exhaustion requirement is satisfied, even if the state court failed to address a particular claim that was presented. Meeks v. Bergen, 749 F.2d 322, 325 n. 1 (6th Cir.1984). Because the claim was exhausted but not adjudicated, the district court properly turned to this court's four-factor test for determining whether a prosecutor's improper statements are sufficiently “flagrant” to warrant a new trial.
If a comment is determined not to be flagrant, we will reverse only when: (1) the proof against the defendant was not overwhelming; (2) opposing counsel objected to the conduct; and (3) the district court failed to give a curative instruction. United States v. Cobleigh, 75 F.3d 242, 247 (6th Cir.1996). As discussed above, the evidence against Johnson was substantial. See State v. Johnson, 632 S.W.2d at 548 (reviewing the record and finding that the evidence established Johnson's guilt beyond a reasonable doubt). The record also shows that Johnson's counsel did not object to Shriver's remarks at trial. Finally, at the close of trial, the court provided the following curative instruction: “Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and applying the law, but they are not evidence. If any statements were made that you believe are not supported by the evidence, you should disregard them.” As a consequence, the prosecutor's non-flagrant, though improper, remarks were not “ ‘so egregious as to render the trial fundamentally unfair’ ” and therefore do not warrant reversal. See Gillard v. Mitchell, 445 F.3d 883, 898 (6th Cir.2006) (quoting Angel v. Overberg, 682 F.2d 605, 608 (6th Cir.1982)).
Johnson next contends that the State knew of Debra Smith, an eyewitness to Johnson's presence at the scene of the robbery, as early as July 15, 1980, but concealed her existence until January 2, 1981, and this concealment compromised his defense. The facts surrounding this allegation are not in dispute. On September 3, 1980, Johnson filed a request for discovery that specifically sought, among other things, the names of any witnesses the State intended to call to testify at trial and the names of all persons known to have been present at the time of the robbery. On September 23, 1980, the State responded that all of the witnesses it intended to call at trial were listed in the indictment, which did not include Debra Smith. On November 17, 1980, Johnson made a motion seeking to order the State to identify its witnesses. Neither the State nor the trial court responded to this motion. On January 2, 1981, eleven days prior to commencement of the trial, the State revealed that Debra Smith would testify as an eyewitness.
Under Rule 12.1(b) of the Tennessee Rules of Criminal Procedure, the district attorney general must disclose no later than ten days before trial the name and address of any witness on whom the state intends to rely to establish a defendant's presence at the scene of the alleged offense. The district attorney general complied with this rule. Further, the State's production of a witness that could place Johnson at the scene of the crime was not revelatory and did not necessitate development of a new defense theory. Indeed, Johnson's defense was already aware that two of the victims (Bob Bell and Louis Smith) had identified Johnson as their assailant. Also, in the days following disclosure of Debra Smith's identity, Johnson's counsel was able to and did gather significant information to impeach and discredit Smith's testimony. We therefore find that the prosecution's withholding of Smith's identity as a witness does not rise to the level of misconduct.
Johnson next contends that the State initially misrepresented the time it would argue that the robbery took place, and that this comprised his defense. In its Motion for Notice of Alibi Defense filed on September 23, 1980, the State indicated that robbery took place between 10:00 p.m. and 10:10 p.m. The State's written discovery response, served at the same time, made the same representation. In his response to the motion, Johnson stated that he was at his father's house between 10:00 and 10:10. The State ultimately presented evidence at trial indicating that the robbery likely took place between 9:50 and 10:00 p.m.
Johnson fails to demonstrate how he was harmed by this discrepancy. In his answer to the State's request for an alibi notice, Johnson disagreed with the proffered hour of the incident and sought to reserve the right to call other witnesses who would testify to his presence before and after the robbery. At trial, Johnson did not limit his alibi evidence to the period of 10:00 p.m. to 10:10 p.m., but instead covered the period from 9:00 a.m. on July 5, 1980, until the following morning. Johnson also fails to provide any case law declaring that a lack of precision in the time alleged for an offense will violate due process. Accordingly, we find that the alleged misrepresentation does not constitute misconduct.
Johnson contends that the cumulative effect of the alleged prosecutorial misconduct fundamentally compromised the fairness of his trial and was prejudicial to the extent that it constituted a deprivation of due process. However, as discussed above, we find that the prosecution's personalized statement during closing argument was the sole occurrence of error. We therefore do not have multiple errors to cumulate.
We next consider whether Johnson's trial counsel rendered ineffective assistance. Review of an ineffective assistance of counsel claim is governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish ineffective assistance and obtain relief under Strickland, Johnson must demonstrate that his counsel's performance was deficient and that this deficiency so prejudiced his defense as to render the trial unfair and the result unreliable. Id. at 687, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. To satisfy the prejudice prong of the Strickland test, Johnson must show that a reasonable probability exists that, but for his counsel's unprofessional errors, the results of the proceeding would have been different. Poindexter v. Mitchell, 454 F.3d 564, 570 (6th Cir.2006). Our review of counsel's performance is “highly deferential and counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (internal quotation marks omitted).
The certificate of appealability specified two claims of ineffective assistance for: (1) failure to seek a continuance in light of developments that arose shortly before trial, and (2) failure to seek the recusal of the prosecutors in light of their involvement in the conversion of Victor Davis to a prosecution witness. We address each claim in turn.
The Tennessee Court of Criminal Appeals found that Johnson's attorneys' failure to seek a continuance did not constitute ineffective assistance. Johnson v. State, 1988 WL 3632, at *4 (emphasizing the minimal impact resulting from the state's revelation of a new witness). AEDPA therefore limits our inquiry to assessing whether the state court's conclusion that Johnson failed to demonstrate ineffective assistance under Strickland was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.FN18
FN18. Johnson contends that the Tennessee Court of Criminal Appeals found that Johnson's attorneys' performance was not deficient and therefore did not reach the prejudice prong of Strickland. As a consequence, he argues, the deferential AEDPA standard should not apply to our consideration of the prejudice prong. Our review of the Court of Criminal Appeals's decision reveals that that court did not expressly distinguish between the two Strickland prongs. See Johnson v. State, 1988 WL 3632, at *4. Instead, the court found that “although the new aspects of the prosecution's case were clearly damaging, they were not of a type that could be rectified by delaying the trial.” Id. This statement could be construed as a resolution of either Strickland prong, or both. However, because we find that the Court of Criminal Appeals at least found that Johnson's counsel's performance was not deficient, and this conclusion was not contrary to or an unreasonable application of federal law as determined by the Supreme Court, we need not determine whether the AEDPA standard applies to the prejudice prong.
Johnson contends that, in light of the prosecution's revelation of Debra Smith as a witness eleven days before trial and the conversion of Victor Davis from the primary defense witness to a prosecution witness less than a week before trial, his counsel rendered ineffective assistance by not moving for a continuance to permit additional preparation for these developments. We disagree. Although it would have been perfectly rational for Johnson's counsel to seek a continuance, it is not apparent that any such delay would have been productive. As the Tennessee Court of Criminal Appeals found, Johnson's counsel had created “sound defense strategy,” and the late revelations prior to trial did not offer a clear alternative strategy. Id. The prosecution's production of a witness (Debra Smith) that could place Johnson at the scene of the crime was not revelatory, as Johnson's counsel were already aware that two of the victims had identified Johnson as their assailant. Further, as found by the Court of Criminal Appeals, Johnson's counsel “made every effort possible” in the days before trial to gain information to impeach and discredit Smith's potentially harmful testimony. See id. (“[T]he defense counsel prepared so thoroughly for trial that, despite the devastating nature of the sudden turn of fortune, we can think of little more that an attorney could have done during a continuance that counsel did not do at trial to counter this evidence.”).
Because additional time would not necessarily have aided Johnson's defense, we cannot say that his counsel's failure to seek a continuance fell below an objective standard of reasonableness such to constitute deficient performance.FN19 See Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052 (noting that “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”). His claim therefore fails.
FN19. Johnson asserts that his was an “eminently defensible and even winnable case,” but he fails to show how a continuance would have been, or could have been, productive for his defense. Instead, he offers only that a continuance would have afforded his defense “time to regroup” and the ability to “appreciate the full significance” of the relatively late developments.
Lastly, we consider whether Johnson's counsel rendered ineffective assistance by not seeking the recusal of the prosecutors after they participated in the conversion of Victor Davis to a prosecution witness. The Tennessee Court of Criminal Appeals found that the prosecutors' actions at issue were proper and that Johnson's counsel's performance could not be deemed ineffective for not challenging evidence or actions that have already been found to be proper or acceptable. Johnson v. State, 1988 WL 3632, at *4. We agree. Further, Johnson concedes that no precedent supports his argument on this point. Instead, he argues only that “no conceivable sound trial strategy” would include permitting the prosecutors to recount their version of the examination of a witness. Without more, this bare allegation cannot establish objectively deficient performance. Because Johnson fails to demonstrate how his counsel's decision not to seek the prosecutors' recusal constituted deficient performance, we need not consider whether such failure resulted in prejudice to Johnson's defense.
For the foregoing reasons, we affirm the judgment of the district court.
ALICE M. BATCHELDER, Circuit Judge, concurring.
I concur fully in the lead opinion and rely upon the lead opinion's sound reasoning as the basis for my decision. I write separately merely to emphasize my disagreement with the dissent's depiction of the value of the withheld evidence.
The dissent proceeds from the acknowledged premise that the appellant needs only to convince us “that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” The dissent then attempts to persuade us why we ought not have confidence in the jury's verdict. But, the dissent grossly overstates the value of the withheld evidence and, as a result, its claims cannot survive scrutiny.
The dissent urges us to find, in light of the withheld evidence, that Debra Smith's story “rais[es] a substantial implication that the prosecutor had coached her to give it.” Further, the dissent actually expresses “doubts as to whether she was even present in Bell's store on the night of the crime.” Thus, according to the dissent, Debra Smith is not simply mistaken or even misleading-Debra Smith, under the direction of the prosecution, has concocted a story for the purpose of incriminating and convicting Cecil Johnson, an acquaintance toward whom she had no prior animosity. There is no support in the record for this accusation. Nor does the record contain any basis upon which to assume that the prosecution did what it would have had to do to obtain such perjured testimony, i.e.: (1) select her as a participant in this scheme; (2) instruct her to lie under oath-to tell this false story when, in fact, she had not even been in the store; and (3) coach her into giving this suspiciously inconsistent and unbelievable testimony, during which she repeatedly contradicted herself and other prosecution witnesses. Although the dissent does not specify, presumably, the prosecutors' motive would have been to produce a fourth witness placing Johnson at the scene of the crime. Of course, this requires us to assume that the prosecutors were so intent on obtaining Johnson's capital conviction that they would risk sanctions and prosecution for suborning perjury-an assumption wholly lacking factual support in this record. And, even more tenuous is the necessary assumption that Debra Smith acted without any motive whatsoever. The dissent offers nothing-not even idle speculation, much less evidence from the record-to indicate any motive for Debra Smith to commit this particular (extensive) perjury. To be sure, the dissent is perfectly correct that motive has no role in the legal analysis. I raise the question of motive only to demonstrate the incredibility of the dissent's theory, i.e., that Debra Smith was never even in the store and that she (with help from the prosecutors) concocted the entire story. Equally implausible-in light of that theory-is the dissent's later contention that “[She] might just simply have been mistaken.” There is no question that Debra Smith was a poor witness, but contrary to the dissent's exaggerations, her weak and confused testimony does not demonstrate, or even suggest, that the prosecutors suborned perjury in obtaining it. Indeed, the record suggests the contrary, inasmuch as the prosecutors-had they been inclined to coach her into giving false testimony-surely would not have coached her to give testimony that was so confused and inconsistent. The withheld evidence does not render her testimony any less credible than it was on its own.
The dissent next urges us, again based on the withheld evidence, to completely disbelieve the identification testimony of the two eye-witnesses, Bob Bell and Lewis Smith, testimony which-from each of them-was otherwise coherent and consistent, both with the testimony of the other and with the prosecutors' theory of the case. I do not find their testimony questionable and thus, I do not lack confidence in the jury's verdict. Even if the withheld evidence did render the testimony questionable-which it does not-in order to agree with the dissent, one would have to conclude that the emphatic and unequivocal in-court identifications of Johnson were either terribly mistaken or were part of a conspiracy to frame Johnson (a conspiracy orchestrated by the prosecution). And, while the dubious possibility exists that the potential for conviction would motivate the prosecution, the dissent's only answer to why these two victims would testify falsely against Johnson-thereby convicting an innocent man of murder while setting the actual murderer free-is that “[t]hey might just simply have been mistaken,” and that without the withheld evidence, defense counsel was so “severely crippled” that it could not “bring[ ] to light such mistakes.” Given the magnitude of these alleged mistakes, this claim is as incredible as it is demeaning to defense counsel and jury alike.
Having thus discarded the testimony of Debra Smith, Bob Bell, and Lewis Smith, the dissent would have us conclude that the prosecution was left with only the testimony of Victor Davis. And that testimony, the dissent posits, was coerced by the prosecutors with “dangled threats of prosecution and promises of immunity.” But, as the dissent concedes, none of the withheld evidence had anything to do with Davis. Moreover, it is clear from the record that Johnson's counsel had ample opportunity to, and in fact did, cross-examine Davis about the circumstances of his arrest, detention, and initial story to the police, as well as his testimony incriminating Johnson. The jury had all of this information, and the dissent points to no new evidence to support its speculation that Davis's testimony was coerced. And while one could ascribe to this witness a motive to testify falsely-avoiding implication in this triple murder and obtaining immunity on other crimes-one would still have to assume, without basis, that in procuring this false testimony, the prosecutors were willing to risk sanctions or prosecution for suborning perjury. In short, the jury was aware of this witness's motive to lie and the withheld evidence does not cast any further doubt on this testimony.
In sum, the dissent surmises that if Johnson's counsel had been given the withheld evidence before trial, he might have convinced the jury that Debra Smith lied, Bob Bell and Lewis Smith either lied or erred drastically, and that this-when added to the argument that Davis's testimony was coerced and therefore unreliable-so undermines confidence in the jury's verdict that the trial was unfair. But the withheld evidence, considered in context with the totality of the evidence, is neither as damaging to the witnesses nor as beneficial to the defense as the dissent suggests. And though the dissent argues that the evidence is exculpatory, that too is a gross exaggeration-it points to one witness's misidentification, it does not point to anyone else as the murderer (there is no “Beanie” in this case) and it does not even point away from Cecil Johnson. At most, the withheld evidence makes a little bit of already questionable evidence a little bit more questionable. This does not reduce confidence in the jury's verdict and this is not a valid basis for habeas relief.
R. GUY, COLE, JR., Circuit Judge, dissenting.
The facts giving rise to Johnson's Brady claim are undisputed and straightforward. The entire case against Johnson consisted of only four witnesses and no physical evidence. One of the four witnesses was originally scheduled as an alibi witness to corroborate Johnson's innocence. On the day before trial, after a coerced midnight encounter with the State prosecutor, that witness flipped. As for the other three witnesses, the State admits that the prosecution withheld evidence that would have impeached each witness' identification of Johnson as the perpetrator. To say the least, the jury saw a markedly different trial than it would have had the prosecution honored its Brady obligations. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Accordingly, the Tennessee Court of Criminal Appeals unreasonably determined that the withheld evidence was immaterial and that, without it, Johnson still received a fair trial “resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Because “ ‘fairness' cannot be stretched to the point of calling this a fair trial,” id. at 454, 115 S.Ct. 1555, I dissent.
It is fundamental and firmly established that a defendant's due process rights are violated where the government (1) withholds evidence (2) favorable to the defendant (3) that is “material either to guilt or to punishment.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. The State concedes that it withheld favorable evidence that would have assisted in Johnson's defense. At issue is only whether the suppressed evidence was material.
Brady materiality is established where, viewing the withheld evidence collectively, the “government's evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles, 514 U.S. at 434, 115 S.Ct. 1555 (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). The Supreme Court has repeatedly stated that “a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal.” Id.; accord, e.g., Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006). Indeed, “[t]he reversal of a conviction is required upon a ‘showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” Id. (quoting Kyles, 514 U.S. at 435, 115 S.Ct. 1555). The Supreme Court has referred to this as only a “reasonable probability” or a “significant possibility” of a different result. See, e.g., id.; Strickler v. Greene, 527 U.S. 263, 298, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (Souter, J., concurring in part and dissenting in part) (explaining that “[reasonable] ‘probability’ raises an unjustifiable risk of misleading courts into treating it as akin to the more demanding standard, ‘more likely than not’ ” and preferring the phrase “significant possibility”). Accordingly, Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. “A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.” Id. at 434-35, 115 S.Ct. 1555; accord Castleberry v. Brigano, 349 F.3d 286, 294 (6th Cir.2003).
The prosecution withheld six items FN1 of evidence that, when considered collectively, as we must, compel the conclusion that Johnson's trial did not produce an outcome worthy of confidence. As the Supreme Court of Tennessee explained, “[Johnson]'s insurmountable problem in this case was not Davis's testimony, but the testimony of the three eyewitnesses, two of whom looked into the barrel of the pistol held by [Johnson] and were shot by him.” State v. Johnson, 632 S.W.2d 542, 547 (Tenn.1982). Had the prosecution honored its Brady obligations by disclosing the six relevant items of suppressed evidence, then the value of two of those “insurmountable” witnesses, Bob Bell and Debra Smith, would have been substantially reduced, and the value of the third, Louis Smith, would have been obliterated. A review of the withheld evidence reveals that its disclosure “would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense.” Kyles, 514 U.S. at 441, 115 S.Ct. 1555. As Supreme Court precedent directs, I proceed with an evaluation of “the tendency and force of the undisclosed evidence.” Id. at 437 n. 10, 115 S.Ct. 1555.
FN1. Johnson claims that the prosecution withheld seven items. One of the items is a defense filing in an unrelated case that arguably would have been readily available to Johnson by trial time. As that item does not change my analysis, I proceed assuming that it is not part of the Brady calculus and address only six of the suppressed items. See, e.g., Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir.2007) (“[W]hen the information is readily available to the defense from another source, there simply is nothing for the government to ‘disclose.’ ” (citing Coe v. Bell, 161 F.3d 320, 344 (6th Cir.1998))). The first item of withheld evidence was a police report prepared by Detective Moore, regarding his interview of Bell the day after the crimes. This report would have undermined Bell's identification of Johnson as the perpetrator. Bell testified that he was familiar with Johnson because Johnson had frequented Bell's store in the past, that the assailant had some facial hair, and that Johnson was the assailant. It is undisputed that at the time of the crimes Johnson had a goatee and a light moustache. Thus, the jury heard testimony from Bell that was internally consistent. In Detective Moore's suppressed report, however, Bell described the assailant as having “no facial hair.” (JA 274.) Without employing any fantastic leaps of imagination, this withheld report would have called into question the reliability of Bell's identification. Simply put, by suppressing the report, the prosecution was able to prevent the jury from learning a crucial inconsistency between Bell's initial description of the assailant and Bell's identification of Johnson. Because reliability of identification testimony depends in large part on the accuracy of a prior description, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), Bell's identification would have been substantially undermined by the use of this withheld police report.
The second item of evidence suppressed by the prosecution would have cast further doubt on the reliability of Bell's testimony-a medical report revealing that Bell had a history of “some mental instability.” (JA 1288.) As the majority highlights, any cross-examination regarding Bell's mental health would by necessity have proceeded delicately. This, however, does not mean that defense counsel would not have been able to use it to further undermine Bell's credibility. Although its suppression may not rank with the failure to disclose Detective Moore's police report, it certainly would have had some value to competent counsel, “and it counts accordingly in determining whether ... materiality is satisfied.” Kyles, 514 U.S. at 450, 115 S.Ct. 1555. In short, the medical report “would have had some weight and its tendency would have been favorable to [Johnson].” Id. at 451, 115 S.Ct. 1555.
The third item of evidence suppressed by the prosecution would have impeached another “insurmountable witness,” Debra Smith, by raising doubts as to whether she was present in Bell's store on the night of the crimes. The prosecution withheld a police report prepared by Detective Robeck, revealing that Louis Smith indicated that no female customers entered the store during the robbery. This evidence would have further undermined Debra Smith's testimony, which, both the majority and concurrence acknowledge, was already suspect. Debra Smith testified that, upon entering Bell's store on the night of the crimes, she immediately realized that a robbery was in progress, yet still purchased a soft drink and inexplicably failed to call the police once she returned home. Even more curiously, her testimony repeatedly described Louis Smith, one of only four people apparently in the store when she entered, as a Black man. Louis Smith, however, is white. Consistent with this theory, the prosecution never alleged a female was present in the store during the robbery until only a few days before trial when it named Debra Smith as a potential witness. This withheld police report puts at issue whether Debra Smith was in Bell's store that night and, in the hands of competent defense counsel, would have “fueled a withering cross-examination, destroying confidence in [Debra Smith's] story and raising a substantial implication that the prosecutor had coached [her] to give it.” Id. at 443, 115 S.Ct. 1555.
As the majority and concurrence point out, even without the disclosure of this withheld police report, Debra Smith's testimony was weak, inconsistent, and significantly impeached. There is no question, however, that this report could have been used to further impeach Debra Smith, and may even have been used to expose potential prosecution improprieties, like coaching. The implication of coaching would have been strengthened by the suspicious circumstances surrounding Davis's conversion, which raises further questions of prosecutorial misconduct. Quite simply, it is unreasonable to conclude that the withheld report would have had no value as exculpation or impeachment, and therefore it too must be counted towards determining whether materiality has been satisfied. See Kyles, 514 U.S. at 450, 115 S.Ct. 1555.
I save the worst for last. The fourth, fifth, and sixth items of evidence withheld by the prosecution relate to Louis Smith. Smith testified that he got a “good look” and even a “real good” look at the assailant's face. (JA 334, 364.) He further testified that he correctly identified Johnson from a photo array. By all accounts, Smith was a strong witness for the prosecution. The following three items of suppressed evidence in the hands of competent defense counsel, however, would have obliterated his value as a prosecution witness.
Officer Dobson prepared a police report from an interview with Louis Smith immediately after the shootings. This report indicates that Smith disavowed any ability to identify the assailant: “I then talked to [Louis Smith] who related he was inside the market working on a motor when assailant entered the market and shot and robbed him for no reason and he saw him to be a [young, Black male] but did not see assailant[ 's] face.” (JA 1276 (emphasis added).) Smith's inability to describe the assailant was similarly noted in another police report prepared by Detective Flowers shortly after the crimes: “Louis Smith advised he could not describe susp[ect] at this time but is willing to be reinterviewed at a later date.” (JA 1278.) Finally, and most alarmingly, a withheld police report prepared by Detective Robeck reveals that Smith did not pick Johnson's picture out of a pre-trial photo array, but instead chose the pictures of two other young, Black males. (JA 298-99, 1281.) It is not hard to imagine what competent defense counsel would have done had the prosecution disclosed these three crucial items. Doubtless, their disclosure would have effectively reduced Louis Smith's value as a prosecution witness to nil. Importantly, the prosecution's suppression of these items also prevented the jury from learning that, to the extent Louis Smith could identify the assailant, he identified someone other than Johnson, rendering these items exculpatory as well, despite the concurrence's best attempts to characterize Louis Smith's selection of someone other than Johnson from a photo array containing Johnson's photo as a mere “misidentification.”
Moreover, the demise of Louis Smith as a credible prosecution witness would have done more than just nullify his testimony. For instance, it would have served to discredit generally the police and prosecution methods employed in assembling the case against Johnson, calling into question the veracity of the other “insurmountable witnesses” and Davis. As the Fifth Circuit aptly explained, the consequences of destroying one eyewitness extend beyond just that witness:
We are tempted, but not persuaded, by this arithmetical approach; our experience at the bar has been that positive identification by two unshaken witnesses possesses many times the power of such an identification by one only, and that the destruction by cross-examination of the credibility of one of two crucial witnesses-even if the other remains untouched-may have consequences for the case extending far beyond the discrediting of his own testimony. Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir.1985).
Confronted with this, the Tennessee Court of Criminal Appeals nonetheless determined that Supreme Court precedent did not compel the conclusion that the withheld evidence was material. See Johnson, 1997 WL 738586, at *8. Curiously, the Tennessee court cited Kyles only once, notwithstanding that Kyles came down two years before the Tennessee court's decision and that it was, and still is, the Supreme Court's most thorough application of Brady to any set of facts. See id. at *4 (citing Kyles for the proposition that “[t]he court must view the suppressed evidence collectively in the context of the entire record to determine whether the evidence is material under Bagley ”). Regardless, because Johnson's Brady claim presents at least as strong a case for materiality as Kyles, the Tennessee court's determination that the withheld evidence did not satisfy Brady materiality was an unreasonable application of Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 405-07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“[A] state-court decision involves an unreasonable application of [Supreme Court] precedent if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case.”).
In Kyles, the Supreme Court reversed a Fifth Circuit decision holding that evidence withheld by the prosecution was immaterial under Brady. 514 U.S. at 454, 115 S.Ct. 1555. Kyles was convicted of the daytime murder of a woman outside a grocery store. Id. at 423, 115 S.Ct. 1555. There was a mountain of evidence against Kyles, which included four eyewitnesses, the murder weapon found in Kyles's apartment, and some of the victim's personal effects found in Kyles's trash. Id. at 430-32, 115 S.Ct. 1555. That is, unlike the case against Johnson, physical evidence implicated Kyles. The prosecution withheld the following exculpatory evidence: six contemporaneous eyewitness statements taken by police that would have impeached two of the four eyewitnesses, and various statements, memoranda, letters, and recordings relating to “Beanie,” a police informant, who did not testify at trial, but was responsible for directing the investigation towards Kyles. See id. at 423-26, 115 S.Ct. 1555. At best, the Supreme Court acknowledged that disclosure of the evidence would have served to raise some questions about whether the gun and victim's personal effects were planted by Beanie in an attempt to frame Kyles, and would have “substantially reduced or destroyed” the value of two of the four eyewitnesses. Id. at 441, 115 S.Ct. 1555. Not every item of the State's case, however, would have been directly undercut had the suppressed evidence been disclosed. Importantly, the Court recognized that two eyewitnesses would have remained untouched. These eyewitnesses consistently identified Kyles as the perpetrator immediately after the murder, in a photo array, and in court. Moreover, even without the eyewitness testimony, the overwhelming physical evidence still would have pointed towards Kyles, unless the jury had believed that Beanie was the mastermind behind a massive conspiracy to frame Kyles-an account that Justice Scalia described as “strain [ing] credulity to the breaking point.” Id. at 470, 115 S.Ct. 1555 (Scalia, J., dissenting).
Comparing the probable impact of the withheld evidence in Kyles to the probable impact of the evidence withheld by the State that would have been favorable to Johnson compels the conclusion that the withheld evidence in Johnson's case is material. Here, the withheld evidence would have served to attack all three eyewitnesses, leaving the State with only Davis's testimony. Davis, of course, was a nineteen-year-old, who changed his story the day before trial after a coerced midnight encounter with a prosecutor who dangled threats of prosecution and promises of immunity before Davis. Indeed, his testimony was sufficiently suspect that the Supreme Court of Tennessee discounted it in affirming Johnson's convictions. See Johnson, 632 S.W.2d at 547. Because the case against Johnson relied almost exclusively on eyewitness identification, the materiality of the withheld evidence, which called into question the testimony of all three eyewitnesses, compels a materiality finding.
True enough, the withheld evidence would not have directly undercut Davis's testimony, and, therefore, even had the withheld evidence been disclosed, there may have been sufficient evidence for a jury to convict, notwithstanding the suspicious nature of Davis's conversion. That is, any reasonable jury may very well have believed Davis's testimony. But this is not the proper inquiry. Brady materiality is not a sufficiency-of-the-evidence test. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. The withheld evidence need not touch every prosecution witness and every item of incriminating evidence before materiality is satisfied. To be sure, “the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others.” Id. at 445, 115 S.Ct. 1555 (citing United States v. Agurs, 427 U.S. 97, 112-13 n. 21, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)) (emphasis added).
Consistent with this, we have concluded that withheld evidence satisfies materiality where its disclosure would have left several prosecution witnesses completely unscathed. For instance, in Castleberry v. Brigano, we held that three items of suppressed evidence, when evaluated collectively, “strongly support[ed] the conclusion that Castleberry's trial did not produce an outcome worthy of confidence,” thus satisfying Brady materiality. 349 F.3d at 292. In reaching this conclusion, we acknowledged that some testimony of witnesses present at the scene of the crime “would not have been contradicted by the withheld evidence.” Id. at 294. Nevertheless, we acknowledged, “[t]he key question ... ‘is not whether the state would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same.’ ” Id. (quoting Kyles, 514 U.S. at 453, 115 S.Ct. 1555).
The Supreme Court explained this principle in Kyles: [N]ot every item of the State's case would have been directly undercut if the Brady evidence had been disclosed. It is significant, however, that the physical evidence remaining unscathed would ... hardly have amounted to overwhelming proof that Kyles was the murderer.... ....
The inconclusiveness of the physical evidence does not, to be sure, prove Kyles's innocence, and the jury might have found the eyewitness testimony ... sufficient to convict.... But the question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same. 514 U.S. at 451, 453, 115 S.Ct. 1555.
Before concluding, I am compelled to address the concurrence's disagreement with what it calls my “depiction” of this case. By my best reading, I find three wholly unconvincing points buried in the concurrence and nary a citation.
The first point seems to be that the six items of withheld evidence were all impeaching as opposed to exculpatory, and that this would have rendered it somehow less valuable to competent defense counsel. This is a distinction not supported by case law. The Supreme Court has repeatedly “disavowed any difference between exculpatory and impeachment evidence for Brady purposes.” E.g., Kyles, 514 U.S. at 433, 115 S.Ct. 1555; Bagley, 473 U.S. at 676, 105 S.Ct. 3375. Regardless, it is also a contention unsupported by the record. As mentioned, the suppressed Detective Robeck report would have revealed that Louis Smith did not pick Johnson's picture out of a pre-trial photo array, but instead chose the pictures of two other young, Black males. That the concurrence characterizes this as a mere “misidentification” strains credulity and ignores the Supreme Court of Tennessee's finding that Louis Smith's testimony was “insurmountable” because he supposedly “looked into the barrel of the pistol held by [Johnson] and [was] shot by him.” Johnson, 632 S.W.2d at 547.
The concurrence's second concern appears to be that no motive existed for the three witnesses to implicate Johnson. This concern again finds no basis in law or fact. The touchstone of materiality is a “reasonable probability” of a different result. Kyles, 514 U.S. at 434, 115 S.Ct. 1555. All suppressed evidence that has any value as exculpation or impeachment counts in determining whether materiality is satisfied. Id. at 450, 115 S.Ct. 1555. Indeed, even the concurrence must begrudgingly admit that the suppressed evidence would have assisted Johnson's defense, notwithstanding that the witnesses apparently had no motive to lie. Surely, to conclude otherwise would be to proceed with blinders. Regardless, even assuming that the three eyewitnesses here had no motive to lie, the concurrence's assertion that they needed a motive to implicate the wrong person defies common sense. They might just simply have been mistaken. The hallmark of an effective defense is bringing to light such mistakes. Without the suppressed evidence, there is no question that Johnson's defense was severely crippled in accomplishing this basic defense task.
Finally, the concurrence appears to conclude, after summarily discounting almost the entire value of the suppressed evidence, that it would still have found Johnson guilty of the murders had it been a juror in a hypothetical trial where the suppressed evidence was disclosed. Musing about such hypotheticals, however, is unnecessary because that is not what Brady directs. Supreme Court precedent is crystal clear: the Brady materiality inquiry “is not a sufficiency of the evidence test.” Id. at 434, 115 S.Ct. 1555. “[T]he question is not whether the State would have had a case to go to the jury if it had disclosed the favorable evidence, but whether we can be confident that the jury's verdict would have been the same.” Id. at 453, 115 S.Ct. 1555. Here, there can be no confidence.
Johnson's case is not even a close one. As in Kyles, Brigano, and others, the same is true here: confidence that Johnson's verdict would have been the same simply cannot survive a recap of the suppressed evidence and its significance for the prosecution. The withheld evidence, taken together, reveals at a minimum that one witness's first and most lucid description of the assailant did not comport with his in-court identification, that one witness may not have been present in Bell's store on the night of the crimes, and that one witness implicated someone other than Johnson when confronted with a photo array containing Johnson's picture. These were the same three witnesses that the Supreme Court of Tennessee called Johnson's “insurmountable problem.” Johnson, 632 S.W.2d at 547. Had the prosecution disclosed the six items of withheld evidence, competent defense counsel may very well have destroyed the value of their identifications, or at least raised serious questions in the jurors' minds as to their reliability. This is to say nothing of the potential inferences of police and prosecutorial misconduct that the jurors may also rationally have made had they been apprised of the suppressed evidence. Simply put, Johnson's defense was substantially crippled in cross-examining the three critical witnesses on the only serious issue in this case-identification. See Lindsey, 769 F.2d at 1040. “No reasonable court can have confidence in the decision of a jury that did not hear this withheld evidence.” Castleberry, 349 F.3d at 294 (citation omitted).
The Tennessee Court of Criminal Appeals applied Kyles unreasonably when it determined that the evidence withheld by the prosecution was immaterial and that, without it, Johnson received a fair trial resulting in a verdict worthy of confidence. Such unreasonable application of Supreme Court precedent mandates that we grant Johnson's petition for a writ of habeas corpus. So, I dissent.