Johnson v. State

379 So.3d 994

ToForest Onesha JOHNSON

v.STATE of Alabama

CR-05-1805

Court of Criminal Appeals of Alabama.

September 28, 2007

Opinion Issued on Return to Remand June 14, 2013

Opinion Issued on Return to Second Remand August 14, 2015

Opinion Issued on Application for Rehearing Following Return to Second Remand February 12, 2016

Certiorari Denied November 18, 2017 Alabama Supreme Court 1150524

Opinion Issued on Return to Remand from the United States Supreme Court April 27, 2018

Opinion Issued on Return to Remand after Remand from the United States Supreme Court May 6, 2022

Rehearing Denied August 26, 2022

Certiorari Denied December 16, 2022

Alabama Supreme Court SC-2022-0827

Ty Alper, Berkeley, California; William Robert Montross, Jr., Atlanta, Georgia; and Katherine R. Weisburd, Berkeley, California, for appellant.

Troy King, atty. gen., and Beth Jackson Hughes and Peter Smyczek and Jon B. Hayden, asst. attys. gen., for appellee.

McMILLAN, Judge.

The appellant, ToForest Onesha Johnson, appeals the trial court’s summary dismissal of his Rule 32, Ala. R.Crim. P., petition.

In August 1998, Johnson was convicted in the Jefferson Circuit Court of the murder of William G. Hardy, a Jefferson County deputy sheriff, while Deputy Har- dy was on duty or "because of some official or job-related act or performance," an offense made capital by § 13A-5-40(a)(5), Ala.Code 1975. The jury recommended by a vote of 10-2 that the death sentence be imposed. The trial court accepted the jury’s recommendation and sentenced Johnson to death. This court affirmed the conviction and sentence. Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001). The Alabama Supreme Court denied Johnson’s petition for writ of certiorari. Ex parte Johnson, 823 So.2d 57 (Ala.2001).

On direct appeal of Johnson’s conviction and death sentence, this court summarized the evidence presented at Johnson’s trial:

"The evidence adduced at trial tended to show the following. On July 19, 1995, between 12:30 a.m. and 1:00 a.m., Deputy Hardy was shot and killed in the parking lot of a hotel in Birmingham. Deputy Hardy had been working a second job as a nighttime security guard at the hotel. Deputy Hardy was paid by the hotel while ‘moonlighting’ as a security guard, but he wore his deputy’s uniform and drove his patrol car to the hotel.

"Barry Rushakoff, the night manager of the hotel, testified that at approximately 12:30 a.m., he heard two ‘popping noises’ coming from the rear parking lot of the hotel. (R. 335.) Rushakoff attempted to contact Deputy Hardy, who carried a portable radio with him, to investigate the noises, but Deputy Hardy did not respond. Rushakoff stated that he then received telephone calls from several guests of the hotel who reported that they had heard gunshots in the rear parking lot. Rushakoff telephoned emergency 911 to report the shots and to get backup support for Deputy Hardy. Rushakoff again attempted to contact Deputy Hardy over the radio, without success. Rushakoff then began walking to the rear of the hotel. On his way, Rushakoff passed a table in the atrium of the hotel where Deputy Hardy often sat. On the table, Rushakoff saw Deputy Hardy’s radio, a cup of coffee, and a cigarette burning in an ashtray. When Rushakoff reached the glass doors at the rear of the hotel, he saw Deputy Hardy’s body lying in the rear parking lot. Rushakoff returned to the front desk and telephoned 911 a second time to report that Deputy Hardy had been injured. Rushakoff stated that while he was on the telephone with the 911 operator, a guest of the hotel, Leonard Colvin, came to the front desk to inquire about car keys that Michael Ansley, his stepson, was supposed to have left for him earlier in the evening. Rushakoff had the keys at the front desk, and he gave them to Mr. Colvin. After completing the 911 call, Rushakoff went to the rear parking lot to wait for police to arrive. According to Rushakoff, he did not see anyone, other than Deputy Hardy, in the parking lot while he was waiting for the police.

"Larry Osborne was a guest at the hotel on the night of July 18–19, 1995. He was staying in a third-floor room facing the rear parking lot. Osborne testified that he was awakened in the middle of the night by a gunshot. He looked at the clock, which reflected 12:40 a.m., and within a few seconds heard a second gunshot. Osborne stated that he went to the window of his room and looked at the rear parking lot. He did not see anyone in the lot, but he did see a car directly under his window slowly pull out of the lot without its headlights on. Osborne described the car as an early 1980s model General Motors vehicle that appeared to be ‘greenish.’ (R. 398.) He stated, however, that the parking lot was illuminated by sodium vapor lights that cast a yellow tint on everything in the parking lot and that could have affectedhis perception of the color of the vehicle. Osborne stated that he remained in his hotel room until the ambulance arrived and Deputy Hardy’s body became visible in the spotlight. He then went down to the parking lot and was later questioned by police.

"Annie Colvin testified that she and her husband, Leonard Colvin, were also guests at the hotel on July 18-19, 1995. Colvin stated that she was driving her son’s red Lexus coupe on July 18 and that she parked it in the parking lot at approximately 9:00 p.m. Her son, Michael Ansley, was supposed to drop off his second car, a gold Lexus sedan, pick up the red Lexus, and leave the keys to the gold Lexus at the hotel for Colvin sometime that evening. Colvin stated that she was awakened that night by gunshots and immediately woke her husband. Her husband went downstairs and retrieved the keys to the gold Lexus from the front desk of the hotel. The night manager, Rushakoff, stated that Ansley had dropped off the set of keys for Colvin at the front desk of the hotel at approximately 11:30 p.m. on July 18, 1995. Rushakoff stated that Ansley was driving a red sports car at the time.

"Several law-enforcement officers from Homewood, Birmingham, and Jefferson County Sheriff’s Department responded to the ‘double ought’ dispatch, meaning officer down, that resulted from Rushakoff’s second 911 call. Officer Rett Tyler with the Homewood Police Department was the first officer to arrive on the scene. Officer Tyler stated that when he arrived, he saw the body of a deputy sheriff in the rear parking lot. Although he did not know Deputy Hardy personally, Officer Tyler stated that he recognized the Jefferson County deputy’s uniform. When Officer Tyler arrived, Deputy Hardy was still breathing, but was unconscious as a result of bullet wounds to the head. Officer Tyler stated that Deputy Hardy’s pistol was still in its holster. At this point, several other officers and emergency personnel began arriving on the scene. The emergency personnel worked on Deputy Hardy briefly and then transported him to a hospital, where he ultimately died.

"Dr. Robert Brissie, chief medical examiner for Jefferson County, performed an autopsy on Deputy Hardy on July 19, 1995. The initial exterior examination of Deputy Hardy’s body and clothes revealed a bullet hole in the front of Deputy Hardy’s hat that corresponded to an entrance wound on the front of Deputy Hardy’s forehead and a bullet hole in the back of the hat that corresponded to an exit wound on the back of Deputy Hardy’s head. Dr. Brissie stated that the soot pattern on Deputy Hardy’s hat and face indicated that the shot to the forehead was fired from between 12 and 20 inches away. In addition, the autopsy revealed that the bullet entered Deputy Hardy’s forehead at approximately a 15–degree upward angle. Dr. Brissie’s examination also revealed a wound to the little finger and base of the thumb of Deputy Hardy’s left hand, and to Deputy Hardy’s left jaw. Dr. Brissie stated that, in his opinion, a single bullet passed through the tip of the left small finger, entered and exited the base of the left thumb and then entered Deputy Hardy’s left lower lip and jaw. However, he stated that it was possible that the wounds to the left hand and the left jaw were caused by two bullets rather than one. Dr. Brissie stated that Deputy Hardy died from multiple gunshot wounds.

"Testimony showed that during the initial investigation of the scene several different descriptions of automobiles that had been seen leaving the area were given to police and dispatched tothe local police departments. One BOLO (‘be on the lookout’) was issued for a white Caprice automobile with two to three occupants; another was issued for a black vehicle. In addition, during the investigation, Sgt. Charlie Richardson, an evidence technician with the Jefferson County Sheriff’s Department, discovered two 9mm shell casings in the parking lot. Sgt. Richardson stated that ballistics tests indicated that both shell casings had been fired from the same weapon. The weapon used to kill Deputy Hardy was never recovered.

"James Evans, a patrol officer with the Homewood Police Department, testified that at approximately 4:00 a.m. on July 19, 1995, he received a dispatch to investigate a suspicious vehicle at a motel in Homewood; the vehicle matched the BOLO issued for a black vehicle. When he arrived at the motel, Officer Evans saw a 1972 black Monte Carlo automobile in the parking lot. A black male, later identified at Johnson, was standing by the driver’s side door; another black male, later identified as Ardragus Ford, was seated in the front passenger seat of the car; a black female, later identified at Latanya Henderson, was seated in the backseat; and another black female, later identified as Yolanda Chambers, was exiting the motel. After approaching the vehicle, Officer Evans and his partner moved Johnson to the rear of the vehicle and attempted to remove Ford from the passenger seat. Because Ford was paralyzed, he was Unable to get out of the vehicle until his wheelchair was retrieved from the trunk. The suspects were patted down, and Johnson was

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