State v. Johnson

654 S.W.3d 883

STATE of Missouri, Respondent,

v.Kevin JOHNSON, Appellant.

State of Missouri, Plaintiff/Appellant,

v.Kevin Johnson, Defendant/Appellant.

No. SC 89168

No. SC 99873

Supreme Court of Missouri, en banc.

Opinion issued November 28, 2022

Johnson was represented by Joseph W. Luby of the federal community defender office in Philadelphia, Pennsylvania, (215) 928-0520, and Rebecca E. Woodman of Rebecca E. Woodman Attorney at Law LC in Kansas City, (785) 979-3672.

The special prosecutor was represented by Edward (E.E.) Keenan and J.R. Montgomery of Keenan & Bhatia LLC in Kansas City, (816) 809-2100.

The attorney general was represented by Andrew J. Crane, Daniel McPherson, Gregory M. Goodwin, Shaun J. Mackelprang and Andrew J. Clarke of the attorney general's office in Jefferson City, (573) 751-3321.

MOTIONS FOR STAY OF EXECUTION

PER CURIAM

Kevin Johnson was found guilty of first-degree murder and sentenced to death. His execution is scheduled for November 29, 2022. This matter comes before the Court on two motions – one by Johnson and one by the Special Prosecutor – to stay Johnson's execution. Neither Johnson nor the Special Prosecutor claims Johnson is actually innocent. Instead, Johnson relies on the claims of "constitutional error" asserted by the Special Prosecutor in his motion to vacate Johnson's conviction under section 547.031.¹ This Court has heard and rejected those claims before, however, and nothing asserted by the Special Prosecutor materially alters those claims or establishes any likelihood he would succeed on them if that case were to be remanded for a hearing as he claims it should be. Accordingly, both motions to stay Johnson's execution are overruled.

Background

I. Facts of Underlying Crime and Procedural History

A St. Louis County jury unanimously found Johnson guilty of first-degree murder and recommended the death penalty for the shooting of Kirkwood Police Sergeant William McEntee. On direct appeal this Court summarized the factual and procedural background as follows:

[Johnson] had an outstanding warrant for a probation violation resulting from a misdemeanor assault. Around 5:20 in the evening of July 5, 2005, Kirkwood police, with knowledge of the warrant, began to investigate a vehicle believed to be [Johnson]’s at his residence in the Meacham Park neighborhood. The investigation was interrupted at 5:30 when [Johnson]’s younger brother had a seizure in the house next door to [Johnson]’s residence. The family sought help from the police, who provided assistance until an ambulance and additional police, including Sgt. McEntee, arrived. [Johnson]’s brother was taken to the hospital, where he passed away from a preexisting heart condition. [Johnson] was next door during this time, and the police suspended their search for [Johnson] and never saw [Johnson].

After the police left, [Johnson] retrieved his black, nine millimeter handgun from his vehicle. When talking with friends that evening, [Johnson] explained his brother's death as, "that's f____ up, man. They wasn't trying to help him, that he was too busy looking for me." Around 7:30, two hours after [Johnson]’s brother had the seizure, Sgt. McEntee responded to a report of fireworks in the neighborhood and [Johnson] was nearby. As Sgt. McEntee spoke with three juveniles, [Johnson] approached Sgt. McEntee's patrol car and squatted down to see into the passenger window. [Johnson] said "you killed my brother" before firing his black handgun approximately five times. Sgt. McEntee was shot in the head and upper torso, and one of the juveniles was hit in the leg. [Johnson] reached into the patrol car and took Sgt. McEntee's silver .40 caliber handgun.

[Johnson] proceeded to walk down the street with the black and silver handguns. He then saw his mother and her boyfriend. [Johnson] told his mother, "that m____ f_____ let my brother die, he needs to see what it feel[s] like to die." His mother replied, "that's not true." [Johnson] left his mother and continued to walk away.

Meanwhile, Sgt. McEntee's patrol car rolled down the street, hit a parked car, and then hit a tree before coming to rest. Sgt. McEntee, alive but bleeding and unable to talk, got out of the patrol car and sat on his knees. [Johnson] reappeared, shot Sgt. McEntee approximately two times in the head, and Sgt. McEntee collapsed onto the ground. [Johnson] also went through Sgt. McEntee's pockets.

Sgt. McEntee was shot a total of seven times in the head and upper torso. Six of the wounds were serious but did not render Sgt. McEntee unconscious or immediately incapacitated. One wound was a lethal injury that caused Sgt. McEntee's death. All seven wounds were from a nine millimeter handgun.

[Johnson] left the scene cursing and drove to his father's house. [Johnson] spent three days at a family member's apartment before arrangements were made for [Johnson] to surrender to a family member who was a police officer.

[Johnson] was indicted on one count of first-degree murder, one count of first-degree robbery, one count of first-degree assault, and three counts of armed criminal action. The murder count was severed from the other counts. [Johnson]’s first trial ended with a hung jury in the guilt phase. In this trial, the jury deliberated for four hours before finding [Johnson] guilty of first-degree murder. In the penalty phase, the jury spent four hours deliberating and found the following aggravating factors present: (1) "the defendant by his act of murdering Sgt. William McEntee knowingly created a great risk of death to more than one person by means of a weapon that would normally be hazardous to the lives of more than one person;" (2) "the murder of Sgt. William McEntee ‘DID’ involve depravity of mind, as a result thereof, the murder was outrageously and wantonly vile, horrible, and inhuman;" and (3) "the murder of Sgt. William McEntee was committed against a peace officer while engaged in the performance of his official duty."

State v. Johnson , 284 S.W.3d 561, 567-68 (Mo. banc 2009).

This Court affirmed Johnson's conviction on direct appeal,² id. at 589, and the United States Supreme Court denied certiorari. Johnson v. Missouri , 558 U.S. 1054, 130 S.Ct. 749, 175 L.Ed.2d 525 (2009). Johnson filed a motion in state court for postconviction relief under Rule 29.15 and, after a hearing, this motion was overruled. Johnson v. State , No. 09SL-CC04252 (Jan. 12, 2012). This Court affirmed that denial,³ Johnson v. State , 406 S.W.3d 892, 909 (Mo. banc 2013), and the Supreme Court denied certiorari. Johnson v. Missouri , 571 U.S. 1240, 134 S.Ct. 1495, 188 L.Ed.2d 380 (2014). Johnson thereafter sought relief in this Court on multiple occasions. Each time, this Court rejected his claims and denied relief. State v. Johnson , No. SC89168 (Nov. 7, 2022) (overruling the motion for stay of execution); State v. Johnson , No. SC89168 (Aug. 30, 2022) (overruling the motion to recall the mandate and, alternatively, petition for writ of habeas corpus); State v. Johnson , No. SC89168 (Oct. 26, 2021) (overruling the motion for an order directing transportation of appellant for brain imaging and, alternatively, petition for writ of habeas corpus); State v. Johnson , No. SC89168 (Feb. 28, 2017) (overruling the motion to recall the mandate and, in the alternative, petition for writ of habeas corpus);⁴ State v. Johnson , No. SC89168 (Oct. 27, 2015) (overruling the motion to recall the mandate and, in the alternative, petition for writ of habeas corpus).

Johnson also sought habeas relief in the federal courts, which rejected each of his claims and denied relief.⁵ Johnson v. Steele , No. 4:13-CV-2046-SNLJ, 2018 WL 3008307 (E.D. Mo. June 15, 2018) (amended memorandum and order denying petition); Johnson v. Steele , 999 F.3d 584 (8th Cir. 2021) (denying certificate of appealability and affirming district court's refusal to recuse), cert. denied , ––– U.S. ––––, 142 S. Ct. 1376, 212 L.Ed.2d 330 (2022).

After Johnson exhausted all legal avenues for relief, including direct appeal and various postconviction relief proceedings in state and federal courts, this Court sustained the state's motion and set Johnson's execution date for November 29, 2022.

II. Special Prosecutor's Motion to Vacate Pursuant to § 547.031

In 2021, the legislature passed section 547.031, which empowers a prosecuting or circuit attorney in the jurisdiction of conviction to file a motion to vacate or set aside the judgment at any time upon information that the convicted person may be actually innocent or there was constitutional error at the original trial that undermines confidence in the judgment. Section 547.031 provides in its entirety:

1. A prosecuting or circuit attorney, in the jurisdiction in which a person was convicted of an offense, may file a motion to vacate or set aside the judgment at any time if he or she has information that the convicted person may be innocent or may have been erroneously convicted. The circuit court in which the person was convicted shall have jurisdiction and authority to consider, hear, and decide the motion.

2. Upon the filing of a motion to vacate or set aside the judgment, the court shall order a hearing and shall issue findings of fact and conclusions of law on all issues presented. The attorney general shall be given notice of hearing of such a motion by the circuit clerk and shall be permitted to appear, question witnesses, and make arguments in a hearing of such a motion.

3. The court shall grant the motion of the prosecuting or circuit attorney to vacate or set aside the judgment where the court finds that there is clear and convincing evidence of actual innocence or constitutional error at the original trial or plea that undermines the confidence in the judgment . In considering the motion, the court shall take into consideration the evidence presented at the original trial or plea; the evidence presented at any direct appeal or post-conviction proceedings, including state or federal habeas actions; and the

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