Johnson v. State

ToForest Onesha Johnson v. State of Alabama

No. CR-05-1805

Alabama Court of Criminal Appeals

May 6, 2022

Appeal from Jefferson Circuit Court (CC-96-386.60)

On Return to Remand After Remand from the United States Supreme Court

MINOR JUDGE

This appeal involves a postconviction petition that ToForest Onesha Johnson filed almost two decades ago. After three evidentiary hearings on many of the claims that Johnson alleged, the only issue remaining before this Court is whether the Jefferson Circuit Court abused its discretion in finding that Johnson did not prove his claim alleging that the State of Alabama violated Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing that a key witness testified in the hope of a reward. After giving Johnson the chance to prove his claim the circuit court found that the State did not pay the witness a reward until years after Johnson's trial and that the State thus could not have disclosed the reward payment before trial. The circuit court also found that the witness did not testify in the hope of a reward and that the State thus could not have suppressed that information.

After supplemental briefing from the parties and with the benefit of oral argument, we hold, for the reasons below, that the circuit court did not abuse its discretion in denying Johnson's Brady claim, and we affirm.

Facts and Procedural History

A jury convicted Johnson in 1998 of capital murder for the 1995 shooting death of Jefferson County Deputy Sheriff William G Hardy. The jury recommended, by a 10-2 vote, that the circuit court sentence Johnson to death, and the circuit court followed that recommendation. This Court affirmed Johnson's conviction and death sentence. Johnson v. State, 823 So.2d 1 (Ala.Crim.App.2001). Both the Alabama Supreme Court and the United States Supreme Court denied certiorari review. See Ex parte Johnson, 823 So.2d 57 (Ala. 2001); Johnson v. Alabama, 535 U.S. 1085 (2002).

Johnson filed this Rule 32, Ala. R. Crim. P., petition in 2003, attacking his conviction and death sentence. The circuit court summarily dismissed the petition in 2006. On appeal, this Court remanded the matter for more proceedings in 2007. On return to remand in 2013, this Court again remanded the matter for more proceedings. In 2015, we affirmed the circuit court's denial of Johnson's petition. See Johnson v. State, [Ms. CR-05-1805, Sept. 28, 2007] So.3d (Ala.Crim.App.2007) (June 14, 2013, opinion on return to second remand). The Alabama Supreme Court denied certiorari review in November 2016.

Upon Johnson's and the State of Alabama's request, the United States Supreme Court granted Johnson's petition for a writ of certiorari, vacated this Court's judgment, and remanded the matter to this Court in July 2017 for consideration of Johnson's claim under Brady, supra, and Ex parte Beckworth, 190 So.3d 571 (Ala. 2013). See Johnson v. Alabama, U.S., 137 S.Ct. 2292, 2292, 198 L.Ed.2d 720 (2017). In April 2018, this Court remanded the matter to the Jefferson Circuit Court:

"The evidence against Johnson is set forth in multiple opinions and will not be recounted in detail here other than to note that Victoria Ellison was a key witness for the State. Ellison testified at Johnson's trial and stated that she had listened in on a three-way telephone call her daughter had made for Johnson while he was in jail awaiting trial. Ellison testified that during the call Johnson said, 'I shot the fucker in the head and I saw his head go back and he fell.... He shouldn't have got in my business, messin' up my shit.' (Direct Appeal R. 683-84.)

"In his third amended Rule 32 petition, Johnson alleged:

"'The State also withheld crucial evidence regarding Violet Ellison's motivation for coming forward with her story. Although news of the large cash reward offered in the case was widespread, the State never disclosed to Mr. Johnson's lawyers that Ms. Ellison had specifically come forward with her story pursuant to the reward offer, although it knew this to be the case. Had Mr. Johnson's lawyers known that Ms. Ellison was specifically motivated by the reward money, they would have had in their possession powerful impeachment evidence with which to challenge her credibility on cross-examination.'

"The circuit court denied the claim on the basis that the information regarding Violet Ellison's motivation to testify amounted to impeachment evidence. This Court's opinion of September 28, 2007, upheld the denial of that claim, citing authority that the claim was 'procedurally barred because [Johnson] failed to satisfy the requirements of Rule 32.1(e)[, Ala. R. Crim. P., ] and because of the preclusionary grounds of Rule 32.2(a)(3) and (5), Ala. R. Crim. P.' Johnson, So.3d at .

"In 2013, the Alabama Supreme Court in Ex parte Beckworth, supra, recognized that a petitioner may allege a claim for relief under Rule 32.1(a) based on an alleged violation of Brady. In such a case, the Court held, the petitioner does not have to plead facts in the initial petition to negate the preclusive bars of Rule 32.2(a)(3) and (5), Ala. R. Crim. P. Ex parte Beckworth, 190 So.3d at 575.

"Johnson's claim that the State knew Ellison was motivated by hope of a reward and did not disclose that fact to Johnson is a claim for relief under Rule 32.1(a), Ala. R. Crim. P. Johnson thus far has not had the opportunity to establish that the preclusionary grounds do not apply or to prove his claim. In light of Ex parte Beckworth, Johnson is entitled to that opportunity.

"Accordingly, this matter is remanded for additional proceedings. On remand, the circuit court shall conduct an evidentiary hearing on Johnson's Brady claim related to the State's alleged knowledge of and alleged failure to disclose to Johnson that Violet Ellison testified against Johnson in the specific hope of obtaining the reward offered in the case."

Johnson v. State, [Ms. CR-05-1805, April 27, 2018] So. 3d, (Ala.Crim.App.2018) (opinion on remand from the United States Supreme Court).

In May 2019, Johnson moved the circuit court to vacate his death sentence. The next month, the circuit court ruled that it lacked jurisdiction to vacate Johnson's death sentence because, the court said, this Court in its opinion remanding the matter had limited the circuit court's jurisdiction to addressing the Brady claim involving Ellison. On June 6, 2019, the circuit court held a hearing on Johnson's Brady claim.

At the hearing, Johnson offered 28 documentary exhibits^[1] into evidence, including:

-A July 1995 letter from Jefferson County District Attorney David Barber asking then Governor Fob James to make an offer of reward for information leading to the arrest and conviction of the person or persons who killed Deputy Hardy (C. 461);^[2]

-Then Governor James's reward proclamation from 1995 offering up to $10, 000 for information about the crime (C. 463);

-Newspaper articles from 1995 about the crime and the reward offer (C. 134-37); -An August 2, 2001, e-mail from Barber to Kathy Faulk, an employee in then Governor Don Siegelman's office, asking about getting part of the reward money for Ellison's assistance with the case (C. 479);

-Ellison's August 6, 2001, application for the reward (C. 470);

-An August 7, 2001, letter from Barber to then Governor Siegelman requesting payment of $5, 000 to Ellison (C. 472);

-An August 13, 2001, letter from then Governor Siegelman's legal advisor to the State Finance Director requesting payment of $5, 000 to Ellison (C. 469); and

-A copy of an August 18, 2001, check for $5, 000 that the State paid Ellison for her testimony in Johnson's case (C. 467).

The State called Ellison to testify at the hearing. Johnson called one witness in rebuttal, Sandra Turner.

At the circuit court's request, Johnson filed a post-hearing brief and a proposed order in October 2019 and the State did likewise in November 2019.^[3] In March 2020, the circuit court denied the petition after considering the Brady claim, finding that Johnson did not show "by a preponderance of the evidence that witness Violet Ellison either came forward or gave testimony out of a 'hope of reward' OR that the State had knowledge of such motivation at or before the time of trial'" (capitalization in original). (Supp. C. 54.) Johnson timely appealed.^[4]

Standard of Review

"'To prove a Brady violation, a defendant must show: (1) that the prosecution suppressed evidence, (2) that the evidence was of a character favorable to the defense, (3) that the evidence was material [or that the defendant was prejudiced].'" Jones v. State, 322 So.3d 979, 1024-25 (Ala.Crim.App.2019) (quoting Jefferson v. State, 645 So.2d 313, 315 (Ala.Crim.App.1994)).

The circuit court denied Johnson's Brady claim after Johnson had a chance to prove the claim at an evidentiary hearing. See Rule 32.9(a), Ala. R. Crim. P.

"When the circuit court conducts an evidentiary hearing, '[t]he burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State.' Davis v. State, 9 So.3d 514, 519 (Ala.Crim.App.2006), rev'd on other grounds, 9 So.3d 537 (Ala. 2007). '[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence.' Wilson v. State, 644 So.2d 1326, 1328 (Ala.Crim.App.1994). Rule 32.3, Ala. R. Crim. P., specifically provides that '[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' '[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.' Ex parte White, 792 So.2d 1097, 1098 (Ala. 2001). 'However, where there

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