Johnson v. Commonwealth

680 S.W.3d 814

Jaikorian J. JOHNSON, Appellant

v.COMMONWEALTH of Kentucky, Appellee

2022-SC-0236-MR

Supreme Court of Kentucky.

December 14, 2023

ON APPEAL FROM DAVIESS CIRCUIT COURT, HONORABLE LISA PAYNE JONES, JUDGE, NO. 21-CR-00342

COUNSEL FOR APPELLANT: Emily Rhorer, Alana Meyer, Assistant Public Advocates.

COUNSEL FOR APPELLEE: Daniel J. Cameron, Attorney General of Kentucky, Thomas Allen Van De Rostyne, Assistant Attorney General.

OPINION OF THE COURT BY JUSTICE CONLEY

This case comes before the Court on appeal as a matter of right¹ by Jaikorian Johnson, the Appellant, from the judgment and sentence of the Daviess Circuit Court. Johnson was convicted of second-degree manslaughter and four counts of first-degree wanton endangerment. He was sentenced to twenty-years imprisonment. Johnson makes three arguments on appeal: 1) the trial court erred in excluding the testimony of two witnesses regarding the alleged criminal scheme of the victim at the time of the shooting; 2) the trial court erred in failing to direct verdicts on all four counts of wanton endangerment; and 3) the victim impact statement of the victim’s mother was improper and prejudicial during the penalty phase. We disagree with the first two arguments but agree as to the latter argument. Consequently, we affirm Johnson’s convictions but remand for a new penalty phase.

I. Facts

Johnson was walking to his house with a friend on August 15, 2020. They were travelling east on West Fifth Street, in Owensboro. Around 10:30 p.m., the boys² heard a moped coming up behind them. The moped had no muffler so was unusually loud and was also capable only of a speed around 20-25 miles per hour. The moped was driven by Raedon Pitman. Corban Henry was his passenger seated behind him. According to Johnson, Henry drew a gun on him. Johnson fled in the opposite direction, westward, and fired blindly behind him five rounds from his own handgun. Pitman testified that he felt a sting similar to being shot with a pellet from an airsoft gun. He kept driving the moped only for Henry to eventually tell him he had been shot. Pitman stopped the moped and Henry succumbed to his injury at the scene.

It was later determined that the bullet that struck and killed Henry had passed through him and grazed Pitman. An airsoft gun was recovered on Henry’s person at the scene. Multiple witnesses testified at trial that he possessed the gun beforehand. Police officers who responded to the scene also testified that the gun lacked any identifying features that would have made it plain it was not a real weapon just by looking at it.

Johnson was eventually located that same night at a neighbor’s house. Johnson and his friend were found in one room, while a 9mm Taurus pistol and a 9mm SCCY pistol were found in a bag belonging to Johnson in a separate room. Johnson does not contest the Taurus was his own weapon. Testing revealed the five shell casings recovered on West Fifth Street matched the Taurus. DNA evidence also linked Johnson to the Taurus. Johnson would not be formally arrested regarding the homicide until eight months later.

A Grand Jury indicted Johnson for, among other things, murder, criminal attempt murder, and four counts of first-degree wanton endangerment. A five-day trial ensued. At trial, Johnson made a self-defense argument. He received instructions regarding self-defense and imperfect self-defense. The jury acquitted Johnson of murder and criminal attempt murder, and instead found him guilty of second-degree manslaughter as to the death of Henry, and fourth-degree assault as to the wounding of Pitman. It also found him guilty of all four first-degree wanton endangerment counts—one for each of the other rounds he fired.

The jury recommended thirty-one years total, the maximum sentence if served consecutively. The parties agreed though that the sentencing cap applied, and the maximum sentence Johnson could receive was twenty years. The trial court imposed the twenty-year sentence. Johnson now argues several errors. First, he alleges the trial court abused its discretion in prohibiting the testimony of two witnesses (one partially, the other wholly) who would have testified that Henry and Pitman were on their way to commit a robbery of some other person when the shooting occurred. Second, he argues a directed verdict for the four counts of wanton endangerment in the first degree should have been granted because the Commonwealth failed to put on evidence that a person was in the vicinity of Johnson who was in substantial danger of death or serious physical injury. Finally, he argues the victim impact statement of Henry’s mother was prejudicial and reversible error since it included multiple Biblical quotes urging the death penalty, as well as several unproven accusations that Johnson engaged in acts of witness intimidation against her and gloating over the death of her son.

Further facts will be developed below. We now proceed to the merits.

II. Analysis

A. No Abuse of Discretion in Excluding Character Evidence of Victim

[1] Johnson sought to introduce the testimony of two sisters, Amelia and Angelina Cates, who testified by avowal. The avowal testimony demonstrates the sister’s would have testified that at the time of the shooting, the victims, Henry and Pitman, were travelling to Smothers Park with the intent of robbing a man named Jameson. Johnson argues the exclusion of this testimony prejudiced his ability to put on a full defense, as evidence that Henry intended to rob another person with his airsoft gun (that looked like a real gun) was "key to painting the full picture of fear Jaikorian was feeling when he saw a gun pointed at him by Corban [Henry] and he acted in self-defense." The issue is preserved.

[2, 3] Evidentiary rulings of a trial court are reviewed for an abuse of discretion. Commonwealth v. Bell, 400 S.W.3d 278, 283 (Ky. 2013). Indeed, "we will not reverse a correct evidentiary decision by the trial judge … [even if] made ‘for the wrong reason.’ " Lopez v. Commonwealth, 459 SW.3d 867, 875 (Ky. 2015). Before we discuss the specific case law, we note that Johnson’s self-defense theory was amply supported by the evidence below. Angelina Cates testified to Henry’s possession of the airsoft gun. The living victim, Pitman, also testified that Henry was in possession of the airsoft gun. Testimony from one of the responding officers to the scene also noted the existence of the airsoft gun, as well as its similarity to an actual gun. Finally, Johnson took the stand in his own defense and testified that Henry pointed this airsoft gun at him. Johnson’s evidence must have been convincing enough to the jury because they acquitted him as to murder, and instead only convicted him for second-degree manslaughter under an imperfect self-defense theory. As Johnson admitted in his reply brief, his testimony "that he saw a gun pointed in his direction from one of the persons on the moped was enough to demonstrate his real and present fear."

The trial court excluded the testimony regarding Henry’s and Pitman’s alleged plan to rob another person at Smothers Park as irrelevant because the shooting did not occur at Smothers Park, the testimony did not suggest Johnson was the intended victim of the robbery, and there was no testimony that immediately prior to the shooting any words had been exchanged between Johnson and Henry dem- onstrating an attempted robbery. We agree the evidence was properly excluded as irrelevant though on slightly different grounds.

[4] The true issue is "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." KRE³ 404(b). "[T]he unaltered proposition of the rule is that ‘evidence of criminal conduct other than that being tried, is admissible only if probative of an issue independent of character or criminal predisposition, and only if its probative value on that issue outweighs the unfair prejudice with respect to character.’" Bell v. Commonwealth, 875 S.W.2d 882, 888-89 (Ky. 1994) (quoting Billings v. Commonwealth, 843 S.W.2d 890, 892 (Ky. 1992)). Johnson’s argument is that this testimony supports his self-defense theory as providing full context for his own conduct. The leading cases are Saylor v. Commonwealth, 144 S.W.3d 812 (Ky. 2004), and Ragland v. Commonwealth, 476 S.W.3d 236 (Ky. 2015).

[5] In Saylor, we explained "a homicide defendant may introduce evidence of the victim’s character for violence in support of a claim that he acted in self-defense …[,] [h]owever, such evidence may only be in the form of reputation or opinion, not specific acts of misconduct." Saylor, 144 S.W.3d at 815.

An exception exists … when evidence of the victim’s prior acts of violence, threats, and even hearsay evidence of such acts and threats, is offered to prove that the defendant so feared the victim that he believed it was necessary to use physical force (or deadly physical force) in self-protection ….

Id. "But for such evidence to be relevant and admissible for this purpose, the defendant must have known of the victim’s prior bad acts at the time he purportedly acted in self-defense." Ragland, 476 S.W.3d at 253. In Saylor, we concluded that evidence of police records demonstrating three prior acts of violence of which the defendant was not previously aware was not prejudicial to the defendant. Saylor, 144 S.W.3d at 815. In Ragland, we held that testimony of the victim’s prior, multiple robberies was properly excluded first, because it was "offered to show that he was a violent person and that he acted in conformity with that violent character in this instance," 476 S.W.3d at 253, and second, the defendant did not claim to have been aware of the robberies prior to the fatal encounter. Id. Johnson’s citation to Bush v. Commonwealth, 335 S.W.2d 324 (Ky. 1960), is unavailing. There the Court did say "[a] defendant is entitled to show why he believed it was necessary to shoot and...